FOR PUBLICATION


ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

DANIEL S. TANKERSLEY            KAREN FREEMAN-WILSON    
Winamac, Indiana     Attorney General of Indiana

ADAM M. DULIK
Deputy Attorney General
Indianapolis, Indiana

TIMOTHY KOPKEY,         )

                             )
Appellant-Defendant,         )
                             )
vs.                          )    No. 66A04-0005-CR-220
                             )
STATE OF INDIANA,            )
                             )
Appellee-Plaintiff.          )

Record pp. 31-32. A review of the record confirms there was no indication or reason to suspect Kopkey had recently used illegal drugs or alcohol at the time the two drug tests were administered.
    In Green v. State, 719 N.E.2d 426 (Ind. Ct. App. 1999), another panel of this court held that “a condition of work release that purports to require a participant to submit to a search or seizure without reasonable suspicion is overly broad.” Id. at 430. This holding was based upon our observation in an earlier case that “[w]e . . . affirm the importance of a reasonableness limitation on a probationer’s consent to waive his Fourth Amendment rights in a probation agreement.” Purdy v. State, 708 N.E.2d 20, 23 (Ind. Ct. App. 1999). This statement, in turn, was based upon a separate concurrence in Rivera v. State, 667 N.E.2d 764 (Ind. Ct. App. 1996), trans. denied, where the author concluded that a condition of probation requiring the probationer to submit to a search without reasonable suspicion of wrongdoing is overly broad and violates the Fourth Amendment. Id. at 767-68. We do not believe this analysis controls the present case.
    First, we observe that the Green holding is based indirectly upon the Rivera concurrence, which was a view that did not command a majority vote in that case. Rather, the Rivera majority, we believe correctly, focused primarily on the probationer’s voluntary consent to warrantless searches as part of his probation agreement. The published Rivera opinion concerned the defendant’s conviction on various drug charges, but we observed in a footnote that we had recently upheld, in an unpublished opinion, the defendant’s probation revocation based upon a positive drug screen. “In doing so, we rejected Rivera’s claim that he had not validly waived his Fourth Amendment right to be free from drug testing. We held that, under the terms of his probation, Rivera had, in effect, agreed to submit to drug testing in order to be released from incarceration and placed on probation. The same result obtains in the present case.” Rivera, 667 N.E.2d at 766 n.1 (emphasis added). We also stated that “[t]he record affirmatively supports the conclusion that Rivera had agreed to submit to searches as a condition of his probation in order to be released from prison.” Id. at 767. There is no indication in the present case and Kopkey makes no claim that his consent to submit to random drug testing was procured by fraud, duress, fear, or intimidation, or was merely a submission to the supremacy of the law, which would be necessary to render such consent invalid. See Rivera, 667 N.E.2d at 766.
    Second, we note that the work release agreement at issue in Green purported to waive the inmate’s “4th Amendment right with regard to a search and seizure by any law enforcement officer.” Green, 719 N.E.2d at 429. While the probation agreement in Purdy was not made part of the record on appeal, it also apparently contained a blanket waiver of the probationer’s Fourth Amendment rights. Purdy, 708 N.E.2d at 23-24. Here, we focus our analysis on the more specific paragraph fourteen of Kopkey’s in-home detention agreement, relating solely to random drug testing, rather than the more general paragraph nine that resembles the blanket waivers in Green and Purdy. We thus limit our holding in this case to the constitutional validity of paragraph fourteen.
    Next, we believe that a distinction must be made between the “reasonableness” of a search under the Fourth Amendment and whether there was “reasonable suspicion” to support a particular search, as the two terms convey different concepts and may be improperly interchanged. “Reasonable suspicion” is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, but it still requires at least a minimal level of objective justification and more than an inchoate and unparticularized suspicion or “hunch” of criminal activity. Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S. Ct. 673, 675-676 (2000). On the other hand, a search of a citizen may be “reasonable” under the Fourth Amendment, even when there is no individualized suspicion of wrongdoing whatsoever, because the Fourth Amendment does not necessarily require such suspicion. See Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S. Ct. 2386, 2391 (1995). This distinction is important. We agree that all government searches, whether or not conducted pursuant to a voluntary consent, must be “reasonable” and would not condone indiscriminate “ransacking” of an in-home detainee’s residence at all hours, or the pumping of his or her stomach contents, for example. Cf. Rochin v. California, 342 U.S. 165, 172, 72 S. Ct. 205, 209-10 (1952) (pumping of defendant’s stomach “shocked the conscience” and violated Fourteenth Amendment’s Due Process Clause). We do not believe there is a prohibition against conducting a search of an in-home detainee’s person via urinalysis in the absence of “reasonable suspicion,” notwithstanding the broad language of Green.
    State-compelled collection and testing of urine constitutes a “search” subject to the demands of the Fourth Amendment. Vernonia, 515 U.S. at 652, 115 S. Ct. at 2390. The United States Supreme Court has upheld, in certain circumstances, suspicionless searches and seizures to conduct drug testing of persons or groups of persons. See Vernonia (public school student athletes); Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 109 S. Ct. 1402 (1989) (railroad personnel involved in train accidents); Treasury Employees v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384 (1989) (federal customs officers who carry arms or are involved in drug interdiction); but see Chandler v. Miller, 520 U.S. 305, 117 S. Ct. 1295 (1997) (holding that statute requiring all state office candidates to submit to and pass drug test was unconstitutional). Particularized exceptions to the main rule that searches must ordinarily be based on individualized suspicion of wrongdoing are sometimes warranted based on special needs, beyond the normal need for law enforcement. Chandler, 520 U.S. at 313, 117 S. Ct. at 1301. When such “special needs” — concerns other than crime detection — are alleged in justification of a Fourth Amendment intrusion, courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties. Id. at 314, 117 S. Ct. at 1301.
    A state’s operation of a probation system presents “special needs” beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements of the Fourth Amendment. Griffin v. Wisconsin, 483 U.S. 868, 873-74, 107 S. Ct. 3164, 3168 (1987). The in-home detention of a convicted criminal serves similar “special needs.” In-home detention, like probation or incarceration, is a form of criminal punishment. See id. at 874, 107 S. Ct. at 3168. Like probation, in-home detention is one point “on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service.” Id., 107 S. Ct. at 3169. In-home detention is likewise a conditional liberty dependent on the observance of special restrictions that are meant to assure that the detention serves as a period of genuine rehabilitation and that the community is not harmed by the detainee’s having frequent contact with the public. Id. at 875, 107 S. Ct. at 3169. These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed. See footnote Id.
    Having concluded that “special needs” existed in this case, the first factor to be considered in determining whether the suspicionless collection and testing of Kopkey’s urine violated the Fourth Amendment is the nature of the privacy interest upon which the search intruded. Vernonia, 515 U.S. at 654, 115 S. Ct. at 2391. The Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as “legitimate.” Id. In Griffin, the Supreme Court stated that the supervisory relationship between a probationer and the State justifies a degree of impingement upon a probationer’s privacy that would not be constitutional if applied to the public at large. 483 U.S. at 875, 107 S. Ct. at 3169. See footnote We believe that the in-home detainee also has a highly reduced legitimate expectation of privacy. On the “continuum of possible punishments” mentioned by Griffin, in-home detention lies somewhere between incarceration and probation, where as here See footnote in-home detention is through a direct commitment to community corrections as opposed to being a condition of probation. In such a situation, in-home detention is an alternative to incarceration and, but for the in-home detention, Kopkey would have been an inmate at some type of correctional facility or jail. Additionally, Kopkey’s privacy expectations were greatly reduced when he voluntarily agreed to the terms of his in-home detention placement in exchange for being freed from serving time in the county jail on a work-release program. See Vernonia, 515 U.S. at 657, 115 S. Ct. at 2393 (holding that student athletes had a reduced privacy expectation because they voluntarily subjected themselves to a higher degree of regulation than students generally by “going out for the team”). Certainly, the privacy expecations of a person convicted of a crime and sentenced to in-home detention should fall below those of a student athlete who has never been suspected of any wrongdoing whatsoever.
    Next, we consider the character of the intrusion into Kopkey’s privacy. Id. at 658, 115 S. Ct. at 2393. Although the collection of urine samples intrudes upon an excretory function traditionally shielded by great privacy, the degree of intrusion depends upon the manner in which production of the urine sample is monitored. Id. Unlike the student athletes in Vernonia, it appears that an in-home detention surveillance officer observed Kopkey as he produced urine samples, which would be a greater intrusion upon privacy interests. Still, we cannot say that this intrusion was so significant as to render the tests unconstitutional. Also unlike the student athletes, for example, Kopkey was permitted to produce the samples in the relative comfort of his own home, not in a public restroom. No other persons besides the surveillance officer observed Kopkey. Additionally, the samples were obtained during reasonable times of day; Kopkey was not roused out of bed in the middle of the night and forced to produce a sample. It also appears that the urinalysis screened only for illegal drugs and alcohol and would not reveal any other medical information regarding Kopkey’s health. See id.
    Our final consideration is the nature and immediacy of the governmental concern at issue and the efficacy of this means for meeting it. The sine qua non of illegal drugs and alcohol is that they alter mental functioning to varying degrees and have great potential to negatively impact a person’s judgment. As such, the detrimental effect on an in-home detainee’s rehabilitation and the increased risk to the public that may result from the use of such substances is readily apparent. Random drug testing of an in-home detainee is an effective and reasonable means to deter the use of those substances and thereby facilitate the detainee’s rehabilitation and ensure public safety, particularly where as here a defendant has been convicted of violent offenses such as criminal confinement and battery. Cf. Chandler, 520 U.S. at 319-20, 117 S. Ct. at 1303-04 (stating that drug testing law for state office candidates was not well designed to serve stated purpose of identifying drug abusers or deterring drug users from seeking office where candidates themselves were permitted to schedule the date of the test). “[W]here the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as ‘reasonable’ . . . .” Chandler, 520 U.S. at 323, 117 S. Ct. at 1305. This court has previously held that a probationer may be prohibited from using illegal drugs and alcohol and that he or she may be required to undergo periodic testing to verify compliance with such a condition, regardless of whether there was any relationship between the probationer’s prior criminal behavior and the use of such substances, although in that case we did not address the validity of such a requirement under the Fourth Amendment. Carswell v. State, 721 N.E.2d 1255, 1264-65 (Ind. Ct. App. 1999). Nevertheless, Carswell indicates the strength of the government interest in deterring drug and alcohol use by probationers or in-home detainees for purposes of our Fourth Amendment analysis.
    In sum, we have concluded that Kopkey’s legitimate privacy expectations were vastly reduced in this case by his status as an in-home detainee and by his agreement to be subject to random urinalysis. The searches at issue, while they admittedly involved performing a bodily function in front of another person, were relatively unobtrusive under all the circumstances. Finally, the State has a very strong interest in deterring persons convicted of crimes and on in-home detention from taking illegal drugs or alcohol, which could severely impair their rehabilitation and/or jeopardize public safety. Thus, we hold pursuant to the Supreme Court’s “special needs” analysis that a condition of in-home detention requiring the detainee to submit to random drug and alcohol testing, without “reasonable suspicion” of wrongdoing, is still reasonable under the Fourth Amendment, as long as the manner in which the tests were carried out was reasonable, as it was here. The trial court properly denied Kopkey’s motion to suppress the results of his urine drug screens.

Id. A defendant’s “probationary period” begins immediately after sentencing, even if his or her actual probation begins at a later date. Crump v. State, -- N.E.2d –, 2000 WL 1839766 *2. (Ind. Ct. App. Dec. 15, 2000). Kopkey was therefore in his “probationary period” when he twice tested positive for cocaine. The trial court acted legitimately when it reevaluated Kopkey’s character in light of this violation of the in-home detention and probation agreements and determined that revocation of probation was proper.
Finally, Kopkey claims that his case is different from others where we have held that probation may be revoked before actual probation has begun because the sentencing order expressly stated that probation would begin after his release from in-home detention. However, we do not see that the manner in which Kopkey was informed of his sentence differs in any material respect from the sentencing order issued in Gardner. There, we affirmed the revocation of the defendant’s probation for conduct occurring before he began serving his sentence, even though the trial court stated that the defendant would be “placed on Probation for 270 days following completion of the Community Corrections Commitment.” Gardner, 678 N.E.2d at 399. Merely because a sentencing order states that actual probation will begin after another portion of the sentence is served does not alter the fact that the “probationary period” for revocation purposes begins immediately after sentencing.