OPINION
Steven Nowling appeals his conviction for possession of methamphetamine as a class D felony. 1 Nowling raises two issues, which we revise and restate as:
I. Whether the trial court abused its discretion by admitting certain evidence; and
II. Whether the trial court erred in admitting evidence of Nowling’s statements made to his probation officer.
We affirm.
The relevant facts follow. Nowling was on probation for two offenses. A written condition of probation was that: “[Y]our person, vehicle, home and all your property of any kind is subject to search and seizure. Any search or seizure procedures shall be conducted by the probation officer and/or his or her authorized agent and shall be reasonable under the circumstances.” Transcript at 63. Nowling’s probation officer, Jeff Skaggs, referred him to intensive outpatient drug and alcohol counseling, which he completed on January 21, 2010. In his discharge summary dated January 25, 2010, the counselor noted that Nowling “lives in la-la land,” which Skaggs believed meant that Nowling was “not being honest with [himself] about what’s going on ... with [his] use or [his] amount of control [he has] to abstain” from using drugs, and the counselor recommended close supervision including home visits during evening hours. Id. at 89. The counselor also recommended that Nowling continue to abstain from drugs and alcohol. After Nowling’s discharge from treatment, Skaggs performed a risk assessment and determined that Nowling was a “high risk.” Id. at 94.
On February 26, 2010, Skaggs, accompanied by Indiana State Troopers Katrina Smith and Jackie Smith, whom Skaggs referred to as his “authorized agents,” conducted a home visit at a home owned by James Zimmerman, at which Nowling had resided with Zimmerman and Zimmerman’s daughter Gail Rikard, who was also Nowling’s fiancee, for about twelve years pursuant to an arrangement in which Ri-kard and Nowling helped take care of Zimmerman and run the household. Id. at 57. Trooper Jackie Smith was in full uniform and armed, and Trooper Katrina Smith was dressed in plain clothes and also armed. Upon arriving at the residence, they were greeted at the door by Zimmerman who asked them “to come in.” Id. at 120. Zimmerman informed Skaggs and the troopers that Nowling was not home but that he would be home shortly. Skaggs asked Zimmerman where Nowl-ing’s bedroom was, and Zimmerman replied that it was upstairs and “directed [Skaggs and the troopers] to the staircase.” Id. at 138. Skaggs and Trooper Katrina Smith then proceeded upstairs. *857 Neither Skaggs nor the troopers asked Zimmerman for permission to search the home.
Upon entering Nowling’s bedroom, Trooper Katrina Smith and Skaggs noticed drug paraphernalia, including a white pen hull containing white powder, a plastic baggie with white residue in it, and aluminum foil sitting on a table. Trooper Katrina Smith also found an unloaded handgun in a dresser drawer.
A short time later, Nowling arrived home, and, while Trooper Katrina Smith remained in the bedroom, Skaggs, in the presence of Trooper Jackie Smith, met Nowling on the first floor of the house and asked him if there was “anything ... there that we needed to know....” Id. at 58. Skaggs then went back upstairs with Nowling and proceeded to ask him about the items found in his room. At that point, according to Trooper Katrina Smith, Nowling was “detained,” but he had not been handcuffed and it had not been decided whether he would be taken to jail. Id. at 112. Nowling claimed that the drug paraphernalia in his room was old and “had been there for a while,” but admitted that he had used methamphetamine earlier that day. Id. at 62. Test results later revealed that the white powder on the pen hull consisted of both cocaine and methamphetamine and the baggie contained cocaine residue.
On April 8, 2010, the State charged Nowling with possession of cocaine as a class D felony, possession of cocaine while in possession of a firearm as a class C felony, and possession of methamphetamine while in possession of a firearm as a class C felony. At the outset of the jury trial, Nowling moved to suppress the drug paraphernalia and any statements made by Nowling to Skaggs. The court held a hearing on the motions, but ultimately denied them. The trial proceeded with the presentation of the evidence and Nowling objected to the introduction of the physical evidence and the statements made on the day of the search.
During the trial, Skaggs testified that Nowling admitted in court on August 16, 2010 that he possessed drug paraphernalia on the day of the search in violation of his probation. Skaggs also testified that he had no evidence that Nowling was using illicit substances when he decided to conduct the home visit and was simply following protocol as his position requires. Ri-kard testified that the handgun recovered from Nowling’s bedroom belonged to her.
On September 16, 2010, Nowling was found guilty of the lesser-included offense of possession of methamphetamine as a class D felony and not guilty of possession of cocaine while in possession of a firearm as a class C felony. The court declared a mistrial as to the count of possession of cocaine as a class D felony and ultimately dismissed the count without prejudice upon request of the parties. The court sentenced Nowling to two-and-a-half years in the Department of Correction.
The issue is whether the trial court abused its discretion by admitting certain evidence. The admission and exclusion of evidence falls within the sound discretion of the trial court, and we review the admission of evidence only for abuse of discretion.
Wilson v. State,
Nowling argues that the search was illegal under the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution. We begin by addressing Nowling’s Fourth Amendment claims. The Fourth Amendment to the United States Constitution provides, in pertinent part: “[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.... ” U.S. Const, amend. IV. The Fourth Amendment’s protection against unreasonable searches and seizures has been extended to the states through the Fourteenth Amendment. See
Berry v. State,
A. Special Needs of Probation System
Nowling argues that “[w]hen a probationer agrees to a condition of probation which allows the State to search his home, any subsequent search must be supported by a ‘reasonable suspicion,’ ” but that the evidence adduced at trial “fails to establish a ‘reasonable suspicion’ to search [his] room.” Appellant’s Brief at 9, 12. Nowl-ing argues that Skaggs “equated the recommendation for a ‘home visit’ with ‘a search of the residence,’ ” that “based upon this ... alone, [Skaggs] decided to visit and search [the] home without a warrant,” and that Skaggs “admitted that he had no other evidence that [Nowling] was using illicit substances.” Id. at 12. Nowl-ing argues that he “was not at home when the search began, so there is no evidence that [his] behavior prompted the search.” Id. Nowling also notes that the discharge summary prepared by the counselor noted that he “should continue to abstain,” which was “a clear indication that the counselor thought that [Nowling] was not currently using drugs or alcohol.” Id. at 13 (internal quotation omitted). Lastly, Nowling argues that the State relies upon the remark by the counselor that he “lives in la-la land,” which is “an ambiguous, nonspecific reference and does not indicate that [he] has committed or was about to commit a crime.” Id.
“[T]he United States Supreme Court has determined that ‘[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.’ ”
Micheau v. State,
*860 In Schlechty, defendant Schlechty’s car was subjected to a warrantless search by a probation officer with the assistance of two other law enforcement officers following a report “that Schlechty was driving his car around a neighborhood: attempting to ‘pick up’ a thirteen-year-old girl as she was on her way to a school bus stop....” Id. at 2. The search “revealed a green leafy substance, later identified as marijuana, along with drug paraphernalia.” Id. The trial court granted Schlechty’s motion to suppress the evidence seized in the search, noting that there was no evidence presented to demonstrate that “there was reasonable suspicion that a search of [his] vehicle was necessary under the regulatory scheme of probation enforcement.” Id. at 2-3.
In reversing the trial court and concluding that the warrantless search of Schlechty’s car comported with the dictates of the Fourth Amendment, the Court discussed how the trial court “conflated” the distinct legal concepts of “ ‘reasonableness’ of the search under the Fourth Amendment” and “ ‘reasonable suspicion’ to support the search,” and it indicated that, although a search may be “reasonable,” it still may not have been based upon “reasonable suspicion.” Id. at 6-7. First, the Court noted that “all government searches, whether or not conducted pursuant to voluntary consent, must be ‘reasonable,’ ” and that “the Fourth Amendment would not condone the indiscriminate ransacking of a probationer’s home at all hours, or the pumping of his or her stomach, simply because a probation term included a search condition.” Id. Reasonable suspicion, by contrast, “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.” Id. at 7. In evaluating reasonable suspicion, we are to measure “an officer’s subjective motivation for a search ... against an objective standard of reasonableness.” Id. The Court held that “[t]he warrantless search of Schlechty’s car was supported both by reasonable suspicion to believe that Schlechty engaged in criminal activityC[ 3 ] and a search condition contained in his terms of probation. Also, the search itself was not conducted unreasonably.” Id. at 8.
Turning to this case, we note that although we review a trial court’s decision to admit evidence under an abuse of discretion standard, “the ultimate determination of reasonable suspicion is reviewed
de novo.” Burkett v. State,
Based upon the facts before us, we find that Skaggs and the troopers did not have reasonable suspicion to believe that a probation violation had occurred. Viewed objectively, we can identify nothing in the record indicating that Nowling had been using drugs or had otherwise violated his probation, and we find that the bases cited by the State constitute nothing more than a “hunch.” Indeed, were we to find that Nowling’s status as a high-risk probationer and the vague statement that he “lives in la-la land” as being sufficiently particularized to support a finding of reasonable suspicion, such a determination would eviscerate the minimal Fourth Amendment privacy guarantees that
Schlechty
and
Griffin
afford Nowling and similarly-situated probationers. Thus, we conclude that the decision to enter and search Nowling’s bedroom was not supported by reasonable suspicion.
Cf. Allen,
B. Consent
The State argues, separate from any issue related to the special needs of the State, that Zimmerman provided Skaggs and the troopers with consent to search Nowling’s bedroom and that therefore the search did not run afoul of the Fourth Amendment. The State argues that, after Zimmerman allowed Skaggs and the troopers into the home, “[wjhen Skaggs asked where Nowling lived, Zimmerman stated it was upstairs and directed the officers to the staircase.” Appel-lee’s Brief at 6. The State argues, without citation to the record, that Skaggs “simply asked the home owner, Zimmerman, where Nowling was staying, and without showing any protest, and without any evidence of being coerced, Zimmerman showed them to Nowling’s room.” Id. The State argues that “[w]hen Skaggs and [Trooper Katrina Smith] entered Nowl-ing’s room, all of the evidence that really matters to this appeal — given Nowling’s conviction — was seen in plain view,” and that “[a]t that point, probable cause attached.” Id. at 7-8.
Nowling argues in his reply brief that “whether or not [Zimmerman] had actual or apparent authority to consent to search, [he] did not actually consent to a search of the room.” Appellant’s Reply Brief at 2-3. Nowling argues that “the officers did not ask permission to search Nowling’s room,” *862 and that the State did not prove that Zimmerman had actual or apparent authority to consent to the search. Id. at 3. Nowling asserts that because there was not valid consent to enter and search the bedroom, the contraband seized in plain view therein must be suppressed.
A valid consent to search is an exception to the warrant requirement unless it is procured by fraud, duress, fear, or intimidation, or where it is “merely a submission to the supremacy of the law.”
Melton v. State,
As noted in
Jorgensen,
the Indiana Supreme Court has held that a third party’s “presence, acquiescence, and assistance in the search” demonstrated consent to search despite the fact that the record did not demonstrate whether the Trooper had specifically asked to search the home or whether the third party had agreed to the search.
Here, the record reveals that Skaggs and the troopers arrived at Nowling’s residence and were greeted by Zimmerman who asked them “to come in.” Transcript at 120. Skaggs testified that, upon learning that Nowling was not home, he asked Zimmerman “where [Nowling’s] bedroom was” and Zimmerman answered by stating that “it was upstairs” and directing Skaggs and the troopers “to the staircase,” and Skaggs subsequently proceeded upstairs with Trooper Katrina Smith.
Id.
at 56, 138. It is uncontested that Zimmerman was not asked whether he would agree to a search of the residence or of Nowling’s bedroom in particular. Also, there is no evidence in the record that Zimmerman assisted Skaggs and the troopers in their search. Accordingly, we find that Zimmerman at most merely acquiesced to Skaggs’s claim of authority to search, and conclude that, regardless of whether Zimmerman possessed actual or apparent authority to offer his consent, the State has not shown that Zimmerman consented to the search of Nowling’s bedroom.
See Jorgensen,
However, our review does not end here as the State also submits that the admission of this evidence was harmless at most because “Skaggs testified that Nowl-ing, in court and under oath, [admitted] to his probation violation, [and] admitted that on February 26, 2010, he possessed drug paraphernalia.” Appellee’s Brief at 14. The State argues that Nowling’s conviction for possession of methamphetamine was “proven independently of all the evidence he sought to suppress, and proven independently of all the statements he sought to suppress.” Id. at 15. The State argues that therefore, “even assuming the trial court had granted Nowling’s motions to suppress, or sustained his objections at trial, the exact same result would have attached.” Id. Nowling does not respond to the State’s argument on this issue in his reply brief; however, he does assert in his appellant’s brief that “[t]he State has no evidence against [Nowling] other than the fruits of the illegal search.” Appellant’s Brief at 17.
“When inadmissible evidence has been presented to the jury, reversal of a conviction is required only if the erroneous admission prejudiced the defendant’s substantial rights.”
Williams v. State,
At trial, the State, in advance of recalling Skaggs, noted that the purpose of recalling him was to introduce evidence that Nowling “was under oath and admitted to possession of paraphernalia.” Transcript at 221. The court asked Nowling’s counsel if there was “[a]nything you want to say about that,” and Nowling’s counsel replied: “No, Judge.” Id. Skaggs was then called to the stand and testified, without objection from Nowling’s counsel, that Nowling admitted at his probation revocation hearing that he possessed the paraphernalia seized on February 26, 2010. Also, at trial William Bowles testified, without objection from Nowling, that the paraphernalia contained methamphetamine, and a certificate of analysis signed by Bowles indicating that the pen hull contained methamphetamine was similarly admitted without objection. Thus, this independent, unchallenged evidence is enough to sustain Nowling’s conviction for possession of methamphetamine as a class D felony, and accordingly we must affirm Nowling’s conviction. 4 Hollen v. State, 740 *864 N.E.2d 149, 157 (Ind.Ct.App.2000) (holding that admission of evidence was harmless error because of independent testimonial evidence of the defendant’s guilt). 5
To the extent that Nowling asserts that this evidence constitutes the “fruit of the poisonous tree,” we disagree. “The ‘fruit of the poisonous tree’ doctrine is one facet of the exclusionary rule of evidence which bars the admissibility in a criminal proceeding of evidence obtained in the course of unlawful
searches and seizures.” Morales v. State,
Nowling makes no argument that his Fourth Amendment rights were violated when he made incriminating statements at his August 16, 2010 probation revocation hearing. Indeed, we note that at that proceeding Nowling waived his
Fifth Amendment
right against self-incrimination when he chose to testify regarding the incident which was the focus of a pending criminal charge and made the statements at issue.
See McKnight v. State,
For the foregoing reasons, we affirm Nowling’s conviction for possession of methamphetamine as a class D felony.
Affirmed.
Notes
. Ind.Code § 35-48-4-6.1 (Supp.2006).
. We note that the Court in
Schlechty
also examined
United States v. Knights,
Under the circumstances of this case, which clearly involved a probationary search and in which there is no evidence that criminal activity had occurred prior to the search of Nowling’s bedroom, we need not examine whether the search was justified under the Knights test. Also, we need not address at this time the question of whether the Knights test would apply to a probationer such as Nowling where the search provision in the probation agreement provides explicitly that a search "shall be conducted by the probation officer and/or his or her authorized agent” and does not include law enforcement officers generally. Transcript at 63.
Finally, we also note that, to the extent that recent cases from this court state that “[wjhen a search is not conducted within the regulatory scheme of probation enforcement, a probationer’s normal privacy rights cannot be stripped from him,” that “[t]he State must demonstrate that a warrantless search of a probationer was a true probationary search and not an investigatory search,” and that "[a] probation search cannot be a mere subterfuge enabling the police to avoid obtaining a search warrant,” and setting forth a "bifurcated inquiry,” in which a court should first "determine whether the search was indeed a parole or probation search,” and, if it is determined that the search was "not conducted within the regulatory scheme of parole/probation enforcement, then it will be subject to the usual requirement that a warrant supported by probable cause be obtained,” such statements appear to conflict with the Indiana Supreme Court's examination of
Knights
in
Schlechty. See, e.g., Allen,
. In finding reasonable suspicion, the Court noted:
The record shows that as reported by the thirteen-year old alleged and potential victim, Schlechty’s conduct implicated at least two possible criminal offenses: stalking, and attempted confinement. Thus, viewed objectively, the officers had reasonable suspicion to believe criminal activity had occurred even though their subjective states of mind may have suggested otherwise.
. Nowling also challenges the admission of his previous testimony from the probation revocation hearing by arguing that "before a confession may be admissible, the State must provide corroborating evidence of the
corpus delicti,”
and that since the pen hull "was the product of an illegal search, it may not be used by the State to show evidence of
corpus delicti.'”
Appellant’s Brief at 16. However, we note that because Nowling failed to raise the issue at trial, he has waived this issue on appeal.
Finchum v. State,
. Because we hold that Nowling’s conviction must stand based upon independent evidence submitted without objection at trial, we need not address the issue of whether the trial court erred in admitting evidence of Nowl-ing’s statements made to his probation officer.