Tervarus L. Gary discovered pepper spray, a lighter, and drug residue in his pockets hours after being arrested during a methamphetamine-impaired state and placed in an Elkhart County jail cell. When officers arrived to retrieve the contraband at 10:30 a.m., Gary used the pepper spray as a bargaining chip, demanding a phone call and transfer to a regular cell before surrendering it. He only relinquished the canister after officers deployed their own pepper spray about six minutes later, leading to his conviction under Indiana Code section 35-44.1-3-7 for possessing material capable of causing bodily injury while incarcerated.
Writing for a unanimous court, Chief Justice Loretta Rush rejected Gary's argument that he could not be convicted because he didn't voluntarily bring the pepper spray into the facility. "The plain language of Section 35-44.1-3-7 criminalizes the knowing or intentional possession, by a person incarcerated in a penal facility, of contraband that is used or intended to be used in a manner capable of causing bodily injury," Rush wrote. "Nothing in this statute limits when or how such possession begins. It instead prohibits possession at any time—whether a defendant brings a prohibited item into a penal facility or obtains it once inside."
The court delivered particularly sharp language about Gary's negotiation tactics with officers. "Ample evidence shows that he still failed to do so at the earliest reasonable opportunity," Rush wrote. "Officers testified that Gary attempted to use the pepper spray as a bargaining chip to obtain a phone call or a new cell." The opinion noted that Gary himself testified he told officers "I need a phone call" when they said "we need those items," and acknowledged he "didn't set it on the ground and let the officers come in and take it."
The case began when officers found Gary impaired on a friend's couch around 3:00 a.m., leading to his arrest on drug charges. Due to Gary's passive resistance—described by officers as "dropping his body weight like a rag doll"—jail staff bypassed normal intake searches and placed him directly in a padded cell. Gary slept intermittently before discovering the contraband around 10:20 a.m., about seven hours after his arrest. The trial court, presided over by Judge Kristine A. Osterday, sentenced Gary to four years after his conviction.
Gary's defense team argued unsuccessfully that he lacked a "reasonable opportunity to purge himself" of the contraband and that his possession wasn't voluntary since he didn't choose to enter the jail. The court acknowledged that arrestees must receive a reasonable opportunity to surrender contraband, but found the evidence showed Gary had that chance and chose not to take it. "Video evidence corroborated this account, showing Gary deflecting officers' questions and attempting to negotiate rather than surrendering the item," Rush wrote.
The Indiana Court of Appeals had initially reversed Gary's conviction, agreeing with his voluntariness argument, but the Indiana Supreme Court granted the state's petition for transfer and vacated that decision. The ruling aligns with majority jurisdictions that hold inmates responsible for retaining contraband regardless of how it entered the facility, citing a 2023 Indiana Court of Appeals decision that recognized "a person may voluntarily retain possession of contraband by failing to disclose or surrender it upon arrival."
The court's decision clarifies that correctional facilities need not provide surrender opportunities "at the jailhouse door," but must allow reasonable chances to relinquish contraband without penalty once discovered. "What matters is that, once an arrestee becomes aware of the contraband, they must be afforded a reasonable opportunity to surrender it without penalty," Rush explained. "But if the arrestee declines that opportunity, continued possession becomes voluntary." The ruling reinforces the legislature's goal of maintaining institutional safety while preserving due process protections for defendants who genuinely lack knowledge of contraband possession.