State v. Means

No. 13918

I N THE SUPREME COURT O THE STATE OF M N A A
F OTN

STATE O MONTANA,
F

P l a i n t i f f and R e s p o n d e n t ,

DAVID and ImUREEN MEANS,

Defefidant and A p p e l l a n t .

Appeal from: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
H o n o r a b l e E. Gardner Brownlee, J u d g e p r e s i d i n g .

C o u n s e l o f Record:

For A p p p e l l a n t :

S m i t h , Connor, Van V a l k e n b u r g & L a r r i v e e , M i s s o u l a ,
N o e l L a r r i v e e a r g u e d , M i s s o u l a , Montana
.-,

F o r Respondent:

Hon. Mike F r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Marc ~ a c i k, A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d ,
t
H e l e n a , Montana
R o b e r t Deschamps 1 1 County A t t o r n e y , M i s s o u l a ,
1 ,
Montana

Submitted: March 8 , 1978

Decided: -MAY r'
J -( 1978
r- $-F,-~ , . -

Filed : hi..
Honorable Arnold Olsen, District Judge, delivered the Opinion of
the Court.

Defendants appeal the judgment of the District Court,
Missoula County, convicting them on two counts of criminal posses-
sion of dangerous drugs, both felonies, following a trial without
a jury.
On September 27, 1976, defendant David Means entered a
plea of guilty to a charge of criminal possession of dangerous
drugs. He was subsequently sentenced to serve three years in the
Montana state prison. Imposition of sentence was suspended and
David Means was placed on probation. The judgment contained the
following condition:
"2. That the Defendant shall submit himself, his
residence and vehicle to search at any time by
Probation Officers, Peace Officers or other lawful
authorities, without a search warrant and without
the need to show probable cause."
Counsel for defendant David Means objected to the imposition of
the condition at the time it was imposed as being violative of
Fourth Amendment guarantees against unreasonable searches and
seizures.
The facts regarding Maureen Keans are the same, except the
condition in question was imposed as part of a deferred prosecution
agreement.
On November 8, 1976, information was received from a con-
fidential informant which indicated to Officer Lambert of the Region
One Anti-Drug Team that drug trafficking was possibly taking place
at the residence of defendants. The information was related by a
neighbor of defendants. The neighbor stated that numerous cars
were coming to the residence, staying for short periods of time,
and then leaving. As a result, Officer Lambert, on November 9, 1976,
began surveillance of defendants' residence. Surveillance for six
nights revealed that several people, known by the drug team to be
involved in the drug trade, were continually coming to the residence,
staying for short periods of time, and leaving. Prior to this
surveillance, Officer Lambert received information, which he could
not corroborate, that David Means was selling dangerous drugs at
the Missoula Vocational Technical School.
On December 13, 1976, Lambert decided to approach David
Means and search his residence to see if he was in possession of
dangerous drugs. Lambert intended to execute the search under the
warrantless search clause imposed on October 14, 1976. The sup-
pression hearing transcript clearly shows that the officers based
their search on the probation condition authorizing warrantless
searches and seizures. On cross-examination, Lambert was asked
whether defendants requested that a search warrant be produced. The
officer responded:
"Yes, Sir. I informed him that we had suspicion
to believe that there was dangerous drugs in the
house and that we would search his house, and at
that point the Defendant asked if we had a search
warrant. At that point I reminded the Defendant
that he was under probation and he had accepted
as part of his probation to allow himself, resi-
dence, and vehicle to be searched at any tine by
a peace officer and at that time we were exercising
that right."
As Officers Lambert, Victor and Wicks arrived at defendants'
residence, David Means was observed walking up to the front door of
the residence. David Means noticed the officers approaching and
reacted quickly by going into the house and slamming the door.
Officer Victor went to the rear of the house while Officers Lambert
and Wicks went to the front door. Lambert and Wicks detected the
odor of marijuana emanating from the house. While standing outside
the door, they also heard what they thought to be a toilet flushing.
After knocking, Maureen Means opened the door approximately twenty
seconds thereafter.
 ~fterentering the house, Lambert and Wicks immediately
proceeded to the bathroom where they found David Means standing
over the toilet and observed marijuana circling in the toilet bowl
as if it had been flushed. The residence was secured and the ac-
cused were informed by Lambert that he had reason to believe there
were dangerous drugs in the house. The accused were instructed
to sit down. Prior to taking a seat, David Means was searched by
Lambert, who found a small paper packet of white powder in the
shirt pocket of David Means. At that point, David Means was in-
formed that he was under arrest. He reacted to Lambert's discovery
by slapping the powder out of his hands and resisting Lambert's
attempts to restrain him. After subduing David Means, the search
was continued.
In the bathroom Wicks located marijuana in the toilet bowl
weighing approximately 20.0 grams, as well as underneath the bathtub
in a hole in the floor, which weighed 25.7 grams. Wicks also found
hashish weighing 1.8 grams wrapped in a plastic bag between two
mattresses on a bed in the bedroom. Victor found another paper bag
of marijuana, weighing approximately 25 grams, in the back room of
the house.
The marijuana and hashish were sent to the Montana State
Crime Laboratory, where analyses revealed that the suspected sub-
stances were what the officers had surmised them to be. The mari-
juana was found to weigh 70.0 grams in total, and the hashish, 1.8
grams.
On April 27, 1977, defendants were convicted of two counts
of criminal possession of dangerous drugs, following a trial without

a jury. From this conviction, defendants appeal.
Defendants contend that in the instant case, the police had
no probable cause, nor exigent circumstances, which would justify
the warrantless search. They argue that the law enforcement offi-
cials accomplished the search and seizure strictly on the basis
of the probation condition heretofore noted. Defendants maintain
such a condition is unreasonable and violative of a probationer's
constitutional rights, for the following reasons:
1. The consent given by a probationer to such a clause
is not voluntary;
2. The condition is not reasonably related to rehabilita-
tion; and
3. The condition is violative of a probationer's Fourth
and Fifth Amendment rights.
Plaintiff contends the law enforcement officers had probable
cause to believe an offense was being committed in defendants' resi-
dence and, because of the presence of exigent circumstances, were
justified in entering and arresting defendants and searching de-
fendants and their premises immediately under their control. Plain-
tiff thus argues that, under the facts of this case, the constitu-
tionality of the warrantless search and seizure condition of parole
and probation status is irrelevant. We agree.
Section 95-608, R.C.M. 1947, states:
"A peace officer may arrest a person when:

"(d) He believes on reasonable grounds, that the
person is committing an offense or that the person
has committed an offense and the existing circum-
stances require his immediate arrest."
In addition section 95-702(c) and (d), R.C.M. 1947, state:
" * * *a peace officer may search the person ar-
rested and the area within such person's immediate
presence for the purpose of:

"(c) Discovering and seizing the fruits of the
crime, or
"(d) Discovering and seizing any persons, in-
struments, articles or things which may have
been used in the commission of, or which may
constitute evidence of, the offense."
 Although no definitive rulings of this Court have been
made involving these specific facts, this Court has previously
dealt with cases considering whether the odor of marijuana is a
factor contributing to probable cause for search and arrest, in
State v. Hull, (1972), 158 Mont. 6, 487 P.2d 1314 and State v.
Bennett, (1972), 158 Mont. 496, 493 P.2d 1077.
In Hull this Court determined defendant's arrest was based
on reasonable grounds, in compliance with section 95-603(d), R.C.M.
1947, where prior to their entry arresting officers had received
information that a "pot party" was in progress, the defendant was
a guest at the party and the aroma of burning or burnt marijuana
was emanating from the residence. The officers entered the resi-
dence and arrested several persons, one of whom was defendant, even
though no marijuana was observed visually by the officers at the
time of their entry. A search of defendant yielded an amphetamine
tablet. The entry into the house, the arrest of the occupants, and
the search of their persons and the premises was conducted without
either an arrest or search warrant. Yet the Court determined the
entry into the residence for purposes of effecting an arrest and
searching defendant incident to that arrest constitutionally and
statutorily permissible.
In Bennett officers had received information indicating

drug activity was taking place at defendant's apartment. They had
also received information that one of the defendants was a drug
dealer. Based upon this information, the officers went to the
apartment to investigate. When they arrived, they observed one
defendant, a suspected drug dealer, enter the apartment. When the
officers approached the apartment, they noticed the odor of burning
marijuana emanating from the open door of the apartment. The offi-

cers entered the apartment, walked up a short flight of stairs, and
observed the defendants sitting around a table upon which was mari-
juana. The defendants were immediately arrested and the marijuana
seized. The Court held the entry into the apartment to arrest and
the search incident thereto constitutionally permissible.
It is clear that Hull and Bennett stand for the proposition
that the odor of burning or burnt marijuana, together with other
facts tending to establish probable cause, is sufficient justifica-
tion for an officer to enter the residence for the purpose of ef-
fecting an arrest and searching incident thereto.
There are additional cases from other jurisdictions, par-
ticularly cogent to our inquiry herein.
In People v. Bock Leung Chew, (1956), 142 Cal.App.2d 400,
298 P.2d 118, two officers had entered an apartment building, and
were proceeding to a certain apartment when, walking by the door to
the defendant's apartment, they smelled opium. The officers were
admitted to the apartment by the defendant's wife, the sole person
present. The officers searched the premises and, under the kitchen
cupboard, found smoking opium. The officers searched the premises
from 9:15 p.m. until 11:OO p.m., having neither a search warrant
nor a warrant of arrest. The California Court held that where
officers detect the odor of a substance, the possession of which
constitutes a felony, they are justified in believing an offense
is being committed in their presence and can make immediate entry
into the residence from which the odor emanates and search such
residence without first procuring a warrant. 298 P.2d 119.
Similarly, in Vaillancourt v. Superior Court for County of
Placer, (1969), 273 Cal.App.2d 791, 78 Cal.Rptr. 615, the Court held
that police officers had probable cause to enter a hotel room and
effect an arrest when walking down the hotel hallway, they detected

the smell of burning marijuana. The Court further stated that the

smell indicated the contraband was, in fact, being destroyed.
 Relying specifically on People v. Bock Leung Chew, supra,
is State v. McGuire, (1971), 13 Ariz.App. 539, 479 P.2d 187. In
McGuire an officer was informed that the smell of burning marijuana
was coming from an apartment. The officer, upon approaching the
apartment door, also detected the odor. He further noted a commo-
tion in the apartment before the door was opened, and heard the
flushing of a toilet. The officer ran into the apartment bathroom
after admittance, where he found a marijuana cigarette floating in
the toilet. In holding that the officer had probable cause to enter
and arrest, the Arizona court stated:
"The weight of authority, and we believe the better
rule, holds that the offense is committed in the
presence of an officer 'when the officer received
knowledge of the commission of an offense in his
presence through any of his senses.' * * *
"The evidence amply demonstrates probable cause
for the arrest, namely: Schmale's complaint
verified by the strong odor of burning marijuana
detected by Wingfield. The prompt police action,
frustrating the attempted destruction of contra-
band, was reasonable and incidental to a lawful
arrest." 479 P.2d 189.
The identical rationale appears in current cases, as well.
In State v. Zamora, (1977), 114 Ariz. 75, 559 P.2d 195, the defendant
on appeal, contested the validity of the search of the trunk of his
automobile based upon the "very faint" odor of marijuana detected by
the arresting officer, who had initially stopped the vehicle for a
speeding violation. The court affirmed the validity of the search.

Under the facts of the instant case, in addition to the odor
of marijuana and the flushing of the toilet, which contributed to
the evidence of probable cause to arrest, there existed the furtive
conduct of David Means observed by Officers Lambert and Wicks. A

furtive movement or gesture, in combination with other suspicious
circumstances, can provide legal justification for a search by the
officer observing the conduct. People v. Powell, (1974), 40 Cal.App.3d
107, 115 Cal.Rptr. 109; People v. Conley (1971), 21 Cal.App.3d 894,
 We answer in the affirmative the question of whether
probable cause to believe an offense was being committed existed,
thus permitting a warrantless entry into defendants' residence
to search and arrest. The prior knowledge of defendants' illicit
drug involvement, the informant's reports concerning David Means'
drug enterprise at the Missoula Vocational Technical School, the
surveillance of defendants' residence, the observance of the unusual
strategy of Maureen Means noted during the surveillance, the furtive
conduct of David Means when confronted by the police on December 13,
1976, the recognition of the odor of marijuana by Officers Lambert
and Wicks, the delay in opening the door, and hearing the flushing
of the toilet, when considered together, can leave no doubt that
probable cause existed to enter defendants' residence to search
and arrest.

Defendants rely heavily upon the case of Johnson v. United
States, (1948), 333 U.S. 10, 68 S.Ct. 367, 92 L.ed. 436, to sup-
port their contention that a warrant to search should have been
obtained by Officer Lambert. The facts of Johnson are substantially
similar to those of the instant case. The reliance by defendants
upon Johnson, however, is somewhat misplaced. The United States
Supreme Court did suppress the evidence seized in Johnson, but did
not indicate that a warrant must be procured to enter a dwelling in
every event. The Court stated:
"There are exceptional circumstances in which,
on balancing the need for effective law enforce-
ment against the right of privacy, it may be
contended that a magistrate's warrant for search
may be dispensed with. But this is not such a
case. No reason is offered for not obtaining
a search warrant except the inconvenience to the
officers and some slight delay necessary to pre-
pare papers and present the evidence to a magis-
trate. * * * No suspect was fleeing or likely to
take flight. The search was of permanent prem-
ises, not of a movable vehicle. No evidence or
contraband was threatened with removal or de-
struction, except perhaps the furnes which we
suppose in time would disappear. * * * " 92 L.ed.
440-441.
Thus, the Court inferred, and in fact it has been so held by other
courts, that had any one of those exceptional circumstances been
present, no need for a magistrate's warrant would have existed. In
the case presently before us, there did exist a suspect who was
fleeing, and contraband or evidence which was threatened with
removal or destruction. It was proper, then, even under the ra-
tionale of Johnson, to proceed without a warrant in this case.
Further, the prosecution in Johnson conceded the arresting
officer did not have probable cause to arrest until he entered the
defendant's apartment, thereby precluding the Court from considering
the threshold question of whether the officer was justified in
entering without a warrant to arrest, and the corollary question
of whether the search was incident to that arrest.
The State makes no such concession here. Rather the State
contends probable cause to arrest existed before the police ever
set one foot inside defendants' residence. Johnson is therefore
inapplicable here, except insofar as the facts of this case fall
within the "execptional circumstances" rule. As this Court stated
in State v. Bennett:
"Since Johnson in 1948, courts have recognized
exceptional circumstances which permit entry and
arrest and expand the narrow view adopted in
Johnson. * * * " 158 Mont. 502.
If probable cause to arrest exists before the search takes
place, it is immaterial that the search preceded the actual arrest,
provided that the search and arrest are part of one continuous trans-
action. This rule is grounded on the common sense principles that
it is often difficult to pinpoint the precise moment of arrest, and
that it is often necessary, because of exigent circumstances, to
search first, in order to safeguard evidence, and then make the
formal arrest. State v. Barnes, (1976), 220 Kan. 25, 551 P.2d 815;
People v. Wright, (1969), 273 Cal.App.2d 325, 78 Cal.Rptr. 75.
 In addition to verbalizing the rule in the manner described
above, the court in Barnes explained the rationale behind the rule
as follows:
" * * * Under these circumstances a search of
defendant's person was held valid and evidence
obtained from the search was admissible at
trial. The justification for such an intrusion
is the probable cause to believe that the indi-
vidual has committed a crime and the need for
immediate action to prevent the use of weapons
against the arresting officer or destruction of
evidence of the crime. (Citing cases.) Post-
ponement of the further intrusion of arrest does
not remove the justification for the search and
in no way prejudices the individual's Fourth
Amendment rights." 551 P.2d 819.
Such is precisely what occurred in the instant case. Officer
Lambert had probable cause to believe defendants had committed or
were committing a crime in his presence. He also had a reason to
believe that evidence or contraband was threatened with removal or
d~estruction,tnereby mandating immediate action to prevent such re-
moval or destruction. As a result, Officer Lambert did not arrest
defendants until after the search had begun, choosing instead to
preserve the evidence or contraband first, and then to effect an
arrest. As the cases above indicate, this method of proceeding in
no way taints the evidence seized prior to the actual arrest.
We further conclude the search of defendants' residence
was within the scope of a search incident to an arrest.

The case of State v. Callaghan, (1964), 144 Mont. 401, 396
P.2d 821, settled the law in Montana relating to the scope of the
area to be searched incident to an arrest. This Court, in Callaghan,
stated:
"* * * A search nay be made pursuant to a valid
arrest without a search warrant. United States
v. Lefkowitz, 285 U.S. 452 (1932); Agnello v.
United States, 296 U.S. 20 (1925); 51 A.L.R. 409.
It is permissible to search a dwelling where a
valid arrest had been made there. Harris v.
United States, 331 U.S. 145 (1947). The objects
of such a search are the fruits and instrumen-
talities of the crime. However, the arresting
 officer may not indiscriminately root through
the dwelling just because there has been an
arrest there. Carlo v. United States, (2nd
Cir. C.A. 1961), 286 F.2d 841, cert. denied,
366 U.S. 944. The search must be reasonable
in scope." 144 Mont. 407.
This Court found the search of the dwelling in Callaghan reasonable
where two men had been arrested in the premises, and the search was
one of the most likely places where the fruits and instrumentalities
of the crime might be hidden.
Here, the scope of the search was for fruits and instrumen-
talities of the crime, as provided for by section 95-702, R.C.M.
1947, and was reasonable as mandated by Callaghan. The officers
did not root through the dwelling simply because of the arrest, but
rather searched the most likely places of hiding.
Callaghan defines the arrestee's dwelling, under the cir-
cumstances present there, as that within his immediate presence,
which in turn is referred to in section 95-702 as the permissible
scope of such a search. Likewise, the search here of defendants'
dwelling, because of the circumstances, was a search of an area
within their immediate presence. We find the search as conducted
here did not infringe upon defendants' constitutional or statutory
rights. Based upon the foregoing, the search of defendants' resi-
dence was not unreasonable, nor overly broad in scope.
As both the search and arrest were conducted in a constitu-
tionally permissible manner, we affirm the judgment convicting de-
fendants on both counts of criminal possession of dangerous drugs.
We note there was much emphasis in argument by counsel for
the parties, and in questions from this Court concerning the validity
of a condition of probation authorizing a warrantless search of pro-

bationers. As our holding above disposes of this case, this issue
need not be reached in this opinion. However, we determine that
limited discussion of a central facet of this issue is necessary.
 Defendants contend that execution of a probationer search
clause by law enforcement officers can never be a proper condition
of probation. In so arguing, defendants rely primarily upon the
decision in United States v. Consuelo-Gonzalez, (9th Cir. 1975),
521 F.2d 259, wherein it was held that execution of a search clause
by law enforcement personnel was not in keeping with the Federal
Probation Act, 18 U.S.C. 51351, as amended, although execution of
such a clause by a probation officer is in keeping with the Act.
The distinction between probation and police officers is
attributable to the fact that the Federal Probation Act has been
interpreted by the federal courts as emphasizing reformation and
rehabilitation, rather than contemplating the dual objectives of
rehabilitation and protection of the public.
The Montana sentencing statute, section 95-2206, R.C.M. 1947,
states that any reasonable conditions deemed necessary for rehabilita-
tion or for the protection of society may be imposed. Either or both
of these objectives may be considered when imposing sentence. This
statute has at no time been interpreted to emphasize rehabilitation
alone, as has the Federal Probation Act. Thus, we conclude a search
clause as a condition of probation need not relate solely to the
objective of rehabilitation. The court, in Consuelo-Gonzalez, ad-
mitted as much in stating:
" * * * It is obvious, however, that opinions
differ as to what controls are improper, and
we express no opinion here regarding the extent
to which the states constitutionally may impose
conditions more intrusive on the probationer's
privacy than those we here have indicated are
proper under the Federal Probation Act. * * * I 1
521 F.2d 266.
Nonetheless, the distinction drawn by the court in Consuelo-
Gonzalez does nothing but encourage law enforcement personnel to go
to the probation officer, who can then search the probationer pur-
suant to the search clause. In our view, such a procedure is nothing

more than an unnecessary game of obstruction. There is no doubt that
inquiry into the private life of a probationer is a necessary pre-
requisite to rehabilitation. As stated by the court in Consuelo-
Gonzalez, "Probation authorities also have a special and unique
interest in invading the privacy of probationers." 521 F.2d 266.
The more rational approach is that outlined in People v.
Bremmer, (1973), 30 Cal.App.3d 1058, 106 Cal.Rptr. 797:
"* * * A condition of probation that subjects a
convicted person to search and seizure at any
time may serve a useful purpose by providing a
workable alternative to imprisonment of the con-
victed person. Patently, the constitutional
rights of a probationer--like the rights of
those convicts who have been imprisoned--are
circumscribed by the judgment of conviction and
are not coterminous with those possessed by per-
sons whose status remains unimpaired by condi-
tions of probation imposed by court order. The
probationer, like the parolee, has what is eu-
phemistically known as a reduced expectation
of privacy. (Citing cases.) * * *" 106 Cal.Rptr.
800.
In addressing the situation involving execution of a search clause
by a police officer, the court in Bremmer noted:
"Since a peace officer's primary concern lies with
enforcement of the law and not with rehabilitation
of a probationer, the officer's exercise of authority
is ordinarily activated by violations, or seeming
violations, of public order and safety. When a
known probationer subject to warrantless search is
discovered conducting himself in a manner that sug-
gests a resumption of the misconduct that brought
about the condition of probation, a peace officer
may exercise the authority of a general search order
to search. The officer's search is a search on sus-
picion only, but a suspicion grounded on present
activity as related to past performance. * * * " 106
Cal.Rptr. 802.
Under the rationale of Bremmer it is plain that the search
of defendants in this case was reasonable. The search conducted

here not only protected the public, but promoted the rehabilitation
of defendants as well. All have agreed that defendants have bene-
fited-.considerably from the experience of this case.
We therefore conclude that execution of a probationer

search clause by law enforcement personnel, being instrumental in
achieving the objectives of probation, is a proper condition of

probation.

The judgment of conviction is therefore affirmed.

L / L t C
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H W o r a b l e Arnold O l s k , District
Judge, sitting in the vacant seat
on the Court.

We Concur:

- -
Chief Justice

Justices
Mr. Justice Gene B. Daly dissenting:

I cannot disagree that the majority had the option to
resolve this case on nonconstitutional grounds, if the same
existed, and avoid ruling on the constitutional grounds presented
by defendants. However, the majority involves itself in a long
discussion of probable cause and at the conclusion makes a
sweeping all inclusive ruling on the constitutional questions

presented without discussion or authority, except for a Ninth

Circuit case which is against the majority's views, United

States v. Consuelo-Gonzalez, 521 F.2d 259, and a California

case which is not strong authority inasmuch in State v.

Merlin T. Battit, Mont . , 574 P.2d 998, 35 St. Rep.
154 (1978), this Court rejected the California approach to

this problem and followed more rational jurisdictions .
The foundation questions presented to this Court for

review are:

I. Whether a condition of probation authorizing unlimited

search and seizure by law enforcement officers violates constitu-
tional guarantees against unreasonable searches and seizures.
A. ~efendant'sconsent to unlimited .sear.chand

seizure by law enforcement officers was not freely and
voluntarily.given.

B. A condition of probation authorizing unlimited

search and seizure by law enforcement officers is con-

trary to the purpose of probation as a rehabilitative and

reformative process.
C. The warrantless search of the defendant's

residence was unreasonable because it was unsupported by

exigent circumstances.
 11. A c o n d i t i o n of probation a u t h o r i z i n g unlimited search

and s e i z u r e by law enforcement o f f i c e r s v i o l a t e s c o n s t i t u t i o n a l

guarantees a g a i n s t s e l f - i n c r i m i n a t i o n .

The problem i s p r e s e n t l y i n t h e e a r l y s t a g e s of develop-

ment and d e f i n i t i o n by t h e c o u r t s . A s an example n e i t h e r t h e

United S t a t e s Supreme C o u r t m r t h i s Court has s t u d i e d t h e

matter o r expressed an opinion. There e x i s t s a g e n e r a l s p l i t

of a u t h o r i t y among t h e c o u r t s t h a t have t r e a t e d t h e i s s u e and

t h e t r e n d seems t o be toward erpanding a p r o b a t i o n e r ' s sphere

of Fourth Amendment p r o t e c t i o n . I n any event t h e l e g a l problems

involved a r e s e r i o u s and many. They concern b a s i c human r i g h t s

t h a t a r e too f r a g i l e t o be summarily disposed of i n t h e

c a v a l i e r manner engaged by t h e majority here.

M r . J u s t i c e F r a n k f u r t e r s t a t e d i n Wolf v. Colorado, (1949),

338 U.S. 25,27, 69 S.Ct. 1359, 93 L ed 2d 1782, 1785, t h a t

t h e Fourth Amendment p r o t e c t s t h e " s e c u r i t y of one's privacy

against arbitrary intrusion by t h e police." A more r e c e n t

c a s e , Tehan v. S h o t t , (1966), 382 U.S. 406, 416, 86 S.Ct. 459,

15 L ed 2d 453,460, r e i t e r a t e d :

"* * * t h e guarantees of t h e Fourth Amendment, stands
a s a p r o t e c t i o n of q u i t e d i f f e r e n t c o n s t i t u t i o n a l
values -- values r e f l e c t i n g t h e concern of our s o c i e t y
f o r t h e r i g h t of each i n d i v i d u a l t o be l e t alone. To
recognize t h i s i s no more than t o accord those values
undiluted r e s p e c t .I'

The C a l i f o r n i a c o u r t s have taken t h e p o s i t i o n t h a t a

probationer enjoys only a l i m i t e d expectation of t r a d i t i o n a l

Fourth Amendment p r o t e c t i o n , and have endorsed t h e use of t h e

w a r r a n t l e s s search c l a u s e a s a condition of probation. People

v. Brernmer, (1973), 30 Cal.App.3d 1058, 106 Cal.Rptr. 797;

People v. Mason, (1971), 97 Cal.Rptr. 302, 488 P.2d 630.
 However, the Ninth Circuit Court of Appeals recently
stated in United States v. Consuelo-Gonzalez, 521 F.2d 259, 265,

(9th Cir. 1975), that "A probationer, like the-parolee,has the

right to enjoy a significant degree of privacy.'' Further, that
a defendant' s submission to warrantless searches "should not be
the price of probation." (Emphasis added.)
More recent state court decisions have adopted the position
that warrantless search clauses as a condition of probation

represent an undue infringement upon the probationer's consti-

tutional rights. State v. Page, (1976), 115 Ariz. 131, 564

P.2d 82; Tamez v. State, (Tex.Cr.App. 1976), 534 S.W.2d 686, 692;
People v. Peterson, (1975), 62 Mich.App. 258, 233 N.W.2d 250;

State v. Gansz, (Fla.App. 1974), 297 S.2d 614.

In Tamez the Texas Court of Criminal Appeals stated:
'I** * We conclude that the probationary condition
in the instant case is too broad, too sweeping and
infringes upon the probationer's rights under the
Fourth and Fourteenth Amendments to the United States
Constitution * * *. The condition imposed would
literally permit searches, without probable cause or
even suspicion, of the probationer's person, vehicle
or home at any time, day or night, by any peace officer,
which could not possibly serve the ends of probation.
For example, an intimidating and harassing search to
serve law enforcement ends totally unrelated to
either his prior conviction or his rehabilitation is
authorized by the probationary condition. A proba-
tioner, like a parolee, has the right to enjoy a
significant degree of privacy." (Emphasis added.)
534 S.W.2d 692.

In holding a similar probationary condition invalid in

Gansz, the Florida Appellate court reasoned:
"The Fourth Amendment puts a restraint on
the arm of the government and prevents it from
invading the sanctity of a man's home or his
private quarters except under safeguards calculated
to prevent oppression and abuse of authority.It
297 S.2d 616.

Striking down a search clause imposed upon a probationer

the Michigan Court of Appeals in Peterson, stated emphatically:
 "Our research has uncovered many cases from other
jurisdictions which sustained the same imposition
of consent to warrantless searches and seizures as
were here imposed. However, the waiver of protection
sainst unreasonable searches and seizures is so
repugnant to the whole spirit of the Bill of Rights
as to make it alien to the essence of our form of
jgovernment." (Emphasis added.) 233 N.W.2d 255.
In Page the Arizona Supreme Court agreed with the de-
fendant's contention that because the search clause imposed

upon her as a condition of probation gave any peace officer

the authority to seize and search her person or property without
a warrant at his unfettered whim, it held the condition overbroad

and invalid. The court noted:

"Although the record does not reflect that
any search has yet been conducted * * * we nevertheless
decide the issue presented because of the fact that
defendant's Fourth and Fourteenth Amendment rights have
been and are being reduced by the Court's existing
provision." 564 P.2d 83, Footnote 1.
A probationer does have a right to privacy. Tamez v.

State, supra. In addition, the United States Supreme Court has
recognized a right of personal privacy does exist under the

Constitution. Griswold v. Connecticut, (1965), 381 U.S. 479,

Montana expressly recongized the right to privacy. It is

found in its 1972 Constitution, Article 11, Section 10:

"The right of individual privacy is essential
to the well-being of a free society and shall not be
infringed without the showing of a compelling state
interest.I'
Speaking on the importance of having this right incor-

porated into the 1972 Montana Constitution, the Convention's Bill

of Rights Committee stated:
 "* ** t h e r i g h t of privacy i s a r i g h t t h a t i s
n o t expressly s t a t e d i n e i t h e r t h e United S t a t e s o r
t h e Montana C o n s t i t u t i o n s . It i s our f e e l i n g on t h e
B i l l of Rights Committee t h a t t h e t i m e s have changed
s u f f i c i e n t l y t h a t t h i s important r i g h t should now be
recognized. *** I n our e a r l y h i s t o r y , of course, t h e r e
was no need t o expressly s t a t e t h a t an i n d i v i d u a l
should have a r i g h t of privacy. C e r t a i n l y , back i n
1776, 1789, when they developed our b i l l of r i g h t s , t h e
search and s e i z u r e provisions were enough, when a man's
home was h i s castle and t h e s t a t e could n o t i n t r u d e
upon t h i s home without the procuring of a search
warrant with probable cause being s t a t e d before a
m a g i s t r a t e and a search warrant being issued. N o t h e r o
p r o t e c t i o n was necessary and t h i s c e r t a i n l y was t h e
g r e a t e s t amount of p r o t e c t i o n t h a t any f r e e s o c i e t y
had given i t s i n d i v i d u a l s . I n t h a t type of a s o c i e t y ,
of course, t h e neighbor was maybe t h r e e o r four miles
away. There was no r e a l infringement upon t h e i n d i -
v i d u a l and h i s r i g h t of privacy. However, today w e
have observed an i n c r e a s i n g l y complex s o c i e t y and we
know our a r e a of privacy has decreased, decreased and
decreased. *** a s a p a r t i c i p a t i n g member of s o c i e t y ,
we a l l recognize t h a t t h e s t a t e must come i n t o our
p r i v a t e l i v e s a t some p o i n t , b u t what i t Says i s , d o n ' t
come i n t o our p r i v a t e l i v e s u n l e s s you have a good reason
f o r being t h e r e . W f e e l t h a t t h i s , a s a mandate t o our
e
government, would cause a complete re-examination and
guarantee our i n d i v i d u a l c i t i z e n s of Montana t h i s very
important r i g h t -- t h e r i g h t t o be l e t alone, and
t h i s has been c a l l e d t h e most important r i g h t of them
a l l . Montana C o n s t i t u t i o n a l Convention, T r a n s c r i p t
of Proceedings, Vol. 7 , 5179-5182 (1972).

Courts holding t h a t a probationary condition allowing

unlimited search and s e i z u r e by law enforcement o f f i c e r s a s v a l i d

have g e n e r a l l y j u s t i f i e d t h e i r d e c i s i o n s on t h e r a t i o n a l e t h a t

a defendant waives Fourth Amendment p r o t e c t i o n by consenting

t o t h e terms of probation. See: People v. Mason, supra. The

c r u c i a l i s s u e regarding such a waiver of Fourth Amendment

r i g h t s i s whether a defendant's consent t o such t e r m s and under

such conditions can be c h a r a c t e r i z e d a s f r e e and voluntary, t h a t

i s , f r e e from any coercive influence.

A study of r e c e n t c a s e s ~utIising'the~lfe~~uirenmentsa
of

consent search should begin with S t a t e v. LaFlamme, (1976),

Mont . , 551 P.2d 1011, 33 St.Rep. 632. The Court c i t e d

Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L ed 2d
 797, a s c o n t r o l l i n g and r e s t a t e d t h e r u l e handed down i n Channel

v. United S t a t e s , (9th C i r . 1960), 285 F.2d 217, 219:

"A search and s e i z u r e may be made without a
search warrant i f t h e individual f r e e l y and in-
t e l l i g e n t l y gives h i s unequivocal and s p e c i f i c
consent t o the search, uncontaminated by any
duress or coercion, a c t u a l o r implied. The Govern-
ment has the burden of proving by c l e a r and posi-
t i v e evidence t h a t such consent was given."
285 F.2d 219.

I n Schneckloth v. Bustamonte, (1973), 412 U.S. 218, 93 S.

C t . 2041, 36 L ed 2d 854, 863, the Court s t a t e d :

"* ** the Fourth and Fourteenth Amendments require
t h a t a consent not be coerced, by e x p l i c i t o r i m p l i c i t
means, by implied t h r e a t o r covert force. For, no
matter how s u b t l y the coercion were applied; the r e s u l t i n g
' consent' would be no more than a pretext f o r the un-
j u s t i f i e d police i n t r u s i o n a g a i n s t which t h e Fourth
Amendment i s directed." 36 L ed 2d 863.

The common law has always recognized a man's house a s h i s

c a s t l e , impregnable even t o i t s own o f f i c e r s engaged i n the execu-

t i o n of i t s commands. Warren and Brandeis, The Right t o Privacy,

4 Harvard Law Review 192, 220 (1890). The d i s s e n t i n United S t a t e s

v. Consuelo-Gonzalez, (9th C i r . 1975), 521 F. 2d 259, 274, made

t h i s a s t u t e observation:

"Consent by the defendant, however, i s more
l i k e l y t o be nominal than r e a l . A convicted defendant
w i l l o f t e n accept almost any a l t e r n a t i v e t o imprison-
-* * *."
ment (Emphasis added.) 521 F.2d 274.

I n People v. Peterson,(l975),-62 Mich. App. 258, 233 N.W.2d

250,255, the court held t h a t the blanket search and s e i z u r e pro-

v i s i o n s i n the order of probation were invalid. The court s t a t e d :

"* * * But when the waiver i s conditioned on t h e
surrender of so hallowed a r i g h t , the so-called
choice amounts t o no choice a t a l l . W hold the
e
probationer's signed acceptance thereof was i n
l e g a l e f f e c t coerced and thus rendered nugatory."

A t t h i s point w confront a u t h o r i t i e s theorizing t h a t
e

parole i s an a c t of grace, acceptance of which e n t a i l s the
voluntary surrender of curtailment of constitutional rights.

This rationale is not particularly appealing. It makes consti-

tutional rights dependent upon a kind of "contract" in which one

side has all the bargaining power. A better doctrine is that the

state may not attach unconstitutional conditions to the grant of
state privileges, [probation] .
A probationer faces a drastic choice. His alternative to

giving up the constitutional right against unreasonable search

and seizure is imprisonment. Choosing between the lesser of the

two evils does not amount to a real choice however, it is

therefore coercive.
A court's allawing a defendant to return to his own abode

implies that he does not pose an immediate threat to society
and is sufficiently reliable to not require daily, unlimited

supervision. A probation condition allowing warrantless search
"at any time of day or night1'condones such arbitrary supervision.

Montana's statutes express the dominant purpose of

rehabilitation through sentences. Under section 95-2206, R.C.M.
1947, a court upon sentencing may impose "any reasonable
restrictions", including:
"* * *
" (iii)* conditions for probation;
"
**
" v any other reasonable conditions considered
()
necessary for rehabilitation or for the protection
of society * * *.I1

A wise judge once said and it applies here, that such
searches measure the effectiveness of rehabilitation in the
same manner that one fells a tree to measure its age. It is
high time that we reocgnize that a person must have the freedom

to be responsible, if he is to become responsibly free.
 I conclude with t h e admonition t h a t i n addition t o the

brief r e c i t a l here, t h e r e a r e many more problems r e l a t e d t o

those mentioned herein t h a t necessarily need consideration

before Montana can assume a respectable position i n the matter.

W must a l s o consider the r i g h t s of those who r e s i d e with a
e

probationer -- h i s wife, children, mother and others. These

problems do not go away by j u s t ignoring them.

I conclude t h a t t h e judgment of the D i s t r i c t Court be

reversed and the search clause, a t l e a s t i n i t s present form

and a p p l i c a t i o n be rendered void and unenforceable f o r the

reasons given here.
M r . J u s t i c e Daniel J . . Shea d i s s e n t i n g :
I concur i n t h e d i s s e n t of J u s t i c e Daly.

I t i s unfortunate t h a t t h e majority grounds a p a r t

of i t s d e c i s i o n on probable cause when i t recognizes t h a t

t h e p o l i c e were n o t proceeding t o search t h e home pursuant

t o a b e l i e f t h a t they had probable cause. Rather, they searched

t h e home pursuant t o t h e search c l a u s e i n t h e c o n d i t i o n s of

probation.

I do n o t b e l i e v e t h a t t h e p o l i c e should be permitted

t o b u t t r e s s t h e i r j u s t i f i c a t i o n of t h e search by t h e i r a f t e r

t h e f a c t determination t h a t they had probable cause. I f the

p o l i c e searched t h e home p u r s u a n t ' t o t h e search c l a u s e , i t

should n o t matter t h a t i n c i d e n t a l l y and i n h i n d s i g h t they

decide t h a t they had probable cause t o search without a search

warrant and without t h e search c l a u s e provision. The only

i s s u e t h i s Court should have decided i s t h e v a l i d i t y of t h e

search c l a u s e provision i n t h e c o n d i t i o n s of probation.