Attorney for Appellant Attorneys for Appellee
Ian A.T. McLean Steve Carter
Crawfordsville, Indiana Attorney General of Indiana
Jodi Kathryn Stein Deputy Attorney General
Appeal from the Montgomery Circuit Court, No. 54C01-9701-DF-3 & 54C01-9605-CF-33
The Honorable Thomas K. Milligan, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 54A05-0401-CR-43
March 14, 2005
As technology marches forward, some Indiana trial courts have taken to using home
detention monitoring systems that employ global positioning system equipment (commonly called GPS).
Chism contends that the relevant provisions of the Indiana Code do not authorize
these devices. We hold that they do.
As part of his sentence for conspiracy to deliver cocaine and driving while
intoxicated, the trial court ordered Chism to serve time on home detention.
The community corrections program charged with supervising Chisms detention deployed a traditional monitoring
system. Chism wore an ankle bracelet that sent a signal to a
monitoring box in his home. The box connected through a telephone line
to the community corrections agency.
Late in 2003, the State filed a petition to revoke or modify Chisms
placement on detention, alleging that he had spent the night away from his
home without permission and failed to pay the required user fees. The
trial court found that these violations had occurred. At a disposition hearing
in early 2004, the court ordered that Chisms home detention be supervised through
GPS, permitting community corrections to identify Chisms exact location at any given moment
with the aid of a satellite.
On appeal, the Court of Appeals affirmed in part and reversed in part.
Chism v. State, 813 N.E.2d 402 (Ind. Ct. App. 2004) vacated.
It rightly rejected Chisms contentions of error concerning whether he had
violated the conditions of his placement. Ind. Appellate Rule 58(A). The
Court of Appeals also held that the Indiana Code did not permit assigning
GPS monitoring. We grant transfer and hold otherwise.
The home detention statutes differentiate between offenders and violent offenders. Ind. Code
Ann. § 35-38-2.5-1 to -13 (West 2004).
See footnote An offender is anyone who
is convicted of a crime (and any adjudicated delinquent). Ind. Code Ann.
§ 35-38-2.5-4 (referring to Ind. Code § 11-8-1-9). As a condition of
home detention, a court must require an offender to maintain a working telephone
in the offenders home and may require an offender to maintain a monitoring
device in the offenders home or on the offenders person, or both.
Ind. Code Ann. § 35-38-2.5-6(6).
This case turns on the definition of monitoring device. The Code says
that a monitoring device is an electronic device that:
(1) is limited in capability to the recording or transmitting of information regarding an offenders presence or absence from the offenders home;
(2) is minimally intrusive upon the privacy of the offender or other persons
residing in the offenders home; and
(3) with the written consent of the offender and with the written consent
of other persons residing in the home at the time an order for
home detention is entered, may record or transmit:
(A) visual images;
(B) oral or wire communication or any auditory sound; or
(C) information regarding the offenders activities while inside the offenders home.
Ind. Code Ann. § 35-38-2.5-3.
Chism acknowledges that the GPS system does not record or transmit any of the sort of information described by subsection (3) above. He argues instead that because GPS monitoring records more than his presence or absence from his home, it does not qualify as a monitoring device under the Code.
We see the statute as differentiating between (1) those devices that require the offenders consent (and that of others residing in the home) to allow corrections personnel to watch or listen to things happening inside the offenders home, and (2) those devices that a court may require without the offenders consent, devices that simply tell whether the offender is there or not without transmitting images or sound. The GPS monitoring system falls in the latter category. The fact that the GPS will tell corrections where Chism is when he is not at home does not destroy its status as a device that broadcasts only location.
Thus, we hold the Code permits GPS monitoring and affirm the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.