No. 14437
I THE SUPRJ3!lE C O W OF THE STATE OF PDNTANA
N
1979
THE STATE OF ICNTNW,
Plaintiff and Respondent,
-vs-
WILLIAM~FOGAIITY,
Defendant and Appellant.
Appeal from: D i s t r i c t Court of the Fourth Judicial D i s t r i c t ,
Honorable Jack L. Green, Judge presiding.
Counsel of Record:
For Appllant:
Wrales, Volinkaty & H a r r , Missoula, Wntana
Bruce Harr argued, Missoula, mntana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Wntana
Allen B. Chronister argued, A s s i s t a n t Attorney C J a l ,
Helena, Wntana
Douglas G. Harkin, County Attorney, Hamilton, mntana
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Defendant appeals from an order of the Ravalli County
District Court revoking a ten-year suspended sentence and
ordering him to prison. Defendant remains free on his own
recognizance pending this appeal.
Defendant attacks the order revoking his suspended
sentence on the grounds that the revocation order was based
upon the results obtained from a search of his home and a
polygraph examination administered to him. The search was
conducted pursuant to an unlimited search provision, and the
polygraph examination was performed pursuant to an unlimited
polygraph examination provision both of which were placed in
the original judgment as conditions of probation. Defendant
attacks these provisions on several constitutional grounds.
There is no statutory authority directly authorizing
either of the two questioned provisions. Section 46-18-201(b),
MCA, however, permits a trial court, when placing a person on
probation, to impose any reasonable restrictions on the defendant
during the period of probation. These conditions must, of
course, be reasonably related to the rehabilitation of the
defendant or the protection of society. Section 46-18-201
(a) (l), MCA. Furthermore, section 46-18-202, MCA, is a broad
grant of authority permitting a trial court to impose additional
restrictions which may be considered necessary to carry out
the dual objectives of rehabilitation of the defendant and
the protection of society. Imposition of conditions under
the express or implied authority of the statutes, must, of
course, comply with the broad objectives for the laws of
punishment contained in our constitution. Article 11, Section
28 provides that "[llaws for the punishment of crime shall
be founded on the principles of prevention and reformation
. . ." For two cases interpreting these statutory provisions,
-2-
see State v. Babbitt (1978), Mont. , 574 P.2d
998, 35 St.Rep. 154; and State v. Petko (1978), Mont .
, 581 P.2d 425, 35 St.Rep. 908.
Balanced against express or implied statutory sentencing
powers are federal and state constitutional provisions which
must be considered as part of the sentencing process. Needless
to say, a sentence imposed under a libbral interpretation of
a sentencing statute which in itself grants broad sentencing
powers to a trial court does not necessarily pass constitutional
muster. Constitutional provisions may well have a countervailing
influence on the legality of the sentence imposed.
We have not directly ruled on the constitutionality of
a search provision, and we have not ruled upon or even discussed
the constitutionality of a polygraph provision. In relation
to search provisions however, in State v. Means (1978),
Mont. , 581 P.2d 406, 35 St.Rep. 673, dicta in the majority
opinion would seem to hold that a search provision is not
constitutionally offensive. We note, however, that the
opinion turned on the conclusion that probable cause to search
existed independent of the search provision. To the extent
that Means can be interpreted as permitting an unlimited search
provision as a condition of probation, it is hereby expressly
overruled.
The circumstances underlying the imposition of the
questioned provisions shed little light on why the conditions
were imposed. The search and polygraph provisions were inserted
in the judgment in this case as part of a ten-year suspended
sentence given to defendant after he had entered a guilty plea
to selling a lid of marijuana to an acquaintance. Also
required as part of this sentence was that defendant spend
weekends for a year in the county jail.
The presentence investigation report prepared by the
probation officer recommended that a warrantless search
provision and a polygraph provision be placed in the judgment
if the court saw fit to suspend the sentence. The report
recommended that law enforcement officers have the right to
search defendant's person or his residence or vehicle at any
time, and also that the defendant subject himself to a polygraph
examination whenever the probation officer made the demand.
The challenged provisions in the judgment provide:
"b. That the defendant shall submit to a search
of his person, premises or vehicles at any time
by lawful authorities, without a search warrant.
"c. That the defendant shall submit to a polygraph
examination by qualified examiners at any time,
upon the request of any law enforcement officer
and the results of such examination may be used in
Court, without objection by the Defendant, against
the Defendant in any proceeding in which the
Defendant is involved."
Defendant raises other issues, but we dispose of this appeal
by deciding that the unlimited polygraph condition is overly
broad and thus an invalid condition of probation, and that
the unlimited warrantless search warrant is an unconstitutional
condition of probation.
The record is silent as to why the trial court imposed
either of the conditions. It is possible, of course, that it
relied upon the recommendations of the probation officer but
even those recommendations provide no insight as to why the
probation officer considered them to be necessary or desirable.
At the hearing on the petition to revoke the suspended sentence,
we are provided a glimpse as to why the probation officer
recommended the polygraph condition, but nothing in relation
to the search provision. While being cross-examined by defense
counsel the following exchange appears:
"A. What was the purpose of having the polygraph
condition?
- 4-
"B. Well, it's a condition that we have
recently imposed, for, well, I don't know,
just to go along with the system, I guess."
The reference to the "system" is left unexplained.
The same hearing transcript provides a little insight
as to the trial court's attitude toward a polygraph condition,
but nothing as to why he thought such condition to be
necessary in this case. During an exchange with defense
counsel after the trial court had denied all of defendant's
motions and ruled that defendant was in violation of his
probation, the trial court stated:
"THE COURT: Well, I understand your position,
and you may have that in the Supreme Court.
If I couldn't have put a condition like this
on this man, he would be in the prison today,
and if the Supreme Court says we can't do it,
there will be a lot more going to prison."
The search provision in the judgment substantially
follows the probation officer's recommendation; but the
polygraph provision in the judgment extended the recommendation
that the probation officer have the right to demand a polygraph
examination to permit "any law enforcement officer" to demand
a polygraph examination at any time. The transcript of the
original sentencing is not before this Court, and thus we cannot
tell whether the local prosecutor or the sheriff recommended
the expanded language in the polygraph provision, or whether
it was simply inserted in the judgment at a later time. The
clerk of court's minutes reflect only that a search provision
and polygraph provision were to be imposed as conditions of
probation. It is customary, however, for the county attorney
to prepare the judgment of conviction after the formal
sentencing, and it appears that he expanded upon the recommenda-
tion of the probation officer by making himself as well as
other law enforcement officers the beneficiaries of the
right to demand that defendant take a polygraph examination.
With this background of the search and polygraph
provisions, we proceed next to a summary of the events
occurring between the time of original imposition of the
search and polygraph conditions and the time defendant's
probation was revoked.
One of the conditions of the ten-year suspended prison
sentence was that defendant spend weekends in jail for one
year. Weekends were ordered so that defendant could have
regular employment during the week. But shortly after he
was sentenced, defendant was offered employment as an outfitter
during big game hunting season, which required that he also
be gone on weekends. He approached the local sheriff and
they agreed that defendant would spend no time in jail during
the hunting season, but at the termination of his employment,
defendant would make up the lost weekends by serving a con-
tinuous period in the county jail.
During the time defendant was out on probation, the
sheriff or his deputies came to defendant's home and place
of employment more than 20 times to check on his activities.
The record does not reflect whether they conducted any
searches of his home during his absence. But they were ready
for him when he returned home at the termination of his out-
fitting employment.
While defendant was working as an outfitter, a friend of
his was living in and taking care of defendant's home. Defendant
had, while employed as an outfitter, returned home once or
twice a month. Defendant returned homeat approximately 6:30
a.m. on October 22, 1977, after having worked all night, and
the same day at approximately 1:00 p.m., the sheriff and his
deputy came to the defendant's home and, pursuant to the
authority conferred by the warrantless search provision searched
the defendant's home.
-6-
The search uncovered some marijuana, but defendant's
friend immediately assumed responsibility for it and claimed
it was his. The officers apparently accepted this claim of
ownership for they did nothing to implicate defendant at
this time. On this same day defendant, in compliance with
the agreement with the sheriff, turned himself in to the
Ravalli County jail to commence serving a continuous 26-day
jail sentence. It was while defendant was in jail that the
county attorney invoked the polygraph examination provision
and demanded that defendant take the examination.
Defendant received an out of state employment offer while
he was serving the 26 days, and he therefore filed a motion
in District Court asking the court to reduce the suspended
sentence and modify the condition as to jail time. This
motion started the wheels spinning in relation to the former
search which the sheriff had made of the defendant's home.
The county attorney invoked the polygraph provision and
demanded that before the trial court take any action on defen-
dant's motion to change the sentence, that defendant take
a polygraph examination in relation to the marijuana which
had been seized by the sheriff pursuant to the warrantless
search provision. Defendant was sent to Columbia Falls to
be examined by Richard Walch, a former law enforcement officer.
The examiner ran two tests on defendant. Between the
first and second test he accused the defendant of not telling
the truth in relation to his personal use of marijuana while
on probation. In response to this accusation defendant
admitted that while on probation he had occasionally used
marijuana. The examiner then ran the second test and the
results, he concluded, were consistent with defendant's
assertion that although he had occasionally used marijuana,
he had nothing to do with the marijuana found in his home
-7-
pursuant to the sheriff's warrantless search. The examiner
then sent the test results to the county attorney.
Based on the admissions by defendant that he occasionally
used marijuana while on probation the county attorney filed
a petition to revoke defendant's probation and send him to
prison. Before the hearing, however, defense counsel filed
a motion to suppress the testimony to be offered in relation
to finding the marijuana in defendant's home and the testimony
of the polygraph examiner as to the defendant's admission to
him while in the course of conducting the polygraph examinations.
Defendant urged several constitutional grounds, but the trial
court, without ever addressing the defendant's contentions,
overruled them and ruled that defendant had violated the
conditions of his probation.
We are provided no insight as to what evidence the trial
court relied upon in determining that defendant had violated
his conditions of probation. It simply declared that defendant
had violated his conditions of probation, and upon that basis
revoked the suspended sentence and ordered him to prison. The
trial court did, however, change the sentence to a degree.
After revoking the ten-year suspended sentence, it suspended
two of the ten years. Defendant then orally announced his
intention to appeal, and the trial court released him on his
own recognizance pending the outcome of this appeal.
Defendant first contends that the unlimited warrantless
search clause provision violates his Fourth Amendment rights
under the United States Constitution and also violates the
right of privacy and search and seizure provisions of the
1972 Mont. Const., Art. 11, 5510 and 11. He takes an absolutist
position that these constitutional provisions absolutely
forbid any kind of warrantless search provision as a condition
- 8-
of probation. Most of the cases he cites, however, at
lease impliedly uphold the constitutionality of a warrantless
search provision, but have struck down the particular clauses
involved as being overly broad and thus in violation of the
probationer's Fourth Amendment rights. We recognize, however,
that these cases were not decided on particular search and
seizure provisions of state constitutions, and neither did the
cases face an express "right of privacy" provision as set
forth in our own constitution.
In relation to the warrantless search provision, the
State presents an equally absolutist contention that any
warrantless search provision, no matter how broad, is per
se constitutional. The State argues that a person laboring
under a conviction and not yet released from State supervision,
even though not in actual physical custody, has no constitutional
rights at all. This absurd position is unworthy of further
discussion. The real thrust of the State's argument, however,
is a recognition that the warrantless search clause imposed
in this case is unconstitutional, but that one which is
properly framed and properly limited, can and should pass
constitutional muster.
The State suggests five factors which can be considered
and added into the tailoring of a warrantless search clause
to-satisfy constitutional objections. First, the right
to search should be limited to parole or probation officers
or law enforcement officers searching at the request of
the parole or probation officer; second, that any search must
be reasonable as to time, place and manner of execution; third,
that searches should be permitted only if there is an under-
lying factual foundation justifying the search (a type of
probable cause); fourth, that the uses to which the products
-9-
of a search can be put should be strictly limited; and
fifth, that no search provision can be used as an instrument
of harassment or intimidation. Unfortunately, however, the
State fails to apply this criteria to the search clause
imposed here, for such application would require a determination
that it is unconstitutional.
First, the search warrant was not limited to a parole
or probation officer; rather, it permitted any law enforcement
officer to conduct the search. Second, the provision did
not limit searches to reasonableness in terms of time, place
and manner of conducting the search; rather, it permitted
a search at any time the mood should strike. Third, the pro-
vision did not contain some form of underlying probable cause
before one could conduct a search; rather, it permitted a search
with no cause whatsoever. Fourth, the provision did not
limit the uses to which the products of a warrantless search
could be put; rather, it was silent as to the extent of use
of the products of a search. Fifth, it did not specify that
a search could not be used for purposes of harassment or
intimidation. Clearly, by the State's suggested standards,
the warrantless search clause imposed here struck out on all
counts. As we shall later explain our holding, the search
provision imposed here is patently unconstitutional.
The thrust of defendant's attack on the polygraph
examination provision is that it constitutes both an illegal
search and seizure and a violation of his rights against self-
incrimination. He contends that both the federal and state
constitutions are violated. As to the illegal search and
seizure contention, defendant has provided no authority. Nor
do we believe, as we understand those terms, that a search
and seizure in the constitutional sense, is involved. But
-10-
requirement that defendant provide answers to questions
asked of a polygraph examiner certainly has the potential
of requiring the probationer to incriminate himself. The
question however, is whether the probationer has the same
rights as a person not laboring under such a disability.
The right of the State to impose a search provision or
polygraph provision on a probationer exists only to the extent
that a probationer can legitimately be denied his full con-
stitutional protections and guarantees as a result of his
status as a probationer. The argument most often advanced
in the face of a claim that a probationer's constitutional
rights were abridged, is that a defendant standing before a
court for sentencing and having accepted the probationary
conditions without objection, has waived his rights to later
assert that any of the conditions imposed may be unconstitutional.
But a waiver theory ignores the realities of the situation.
Regardless of the condition imposed, if that is the
sentencing court's decision, the probationer has little or
no say in the matter. He can refuse to accept the conditions
imposed and go to prison, or he can accept the conditions and
remain in society subject to the State's supervision for the
probationary period. A waiver theory however, does not
comport with the requirements of Johnson v. Zerbst (19381,
304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, that a waiver is
invalid unless it be made knowingly, intelligently, and
voluntarily. A choice cannot be termed voluntary where the
alternative is prison and even more restrictions. As the Court
stated in State v. Page (1976), 115 Ariz. App. 131, 564 P.2d
82, a defendant does not choose whether he is going to prison
or will be placed on probation; that choice is primarily that
of the sentencing court.
-11-
Nor can it be reasonably argued that for purposes
of probation, a probationer is in constructive custody
and therefore he can be subjected to the same impositions
on his freedoms as can one actually in jail or prison. The
simple fact is, as the Page court noted, a probationer is for
the most part existing in the mainstream of society and he
may well be living with family or friends whose rights also
must be respected.
On the other hand, if probation is to be successful,
the rights of the probationer must be balanced with those
of society. In this context, a probationer must expect that
his constitutional rights may be justifiably limited during
the probationary period for he cannot reasonably expect that
he will be as free as a citizen not suffering such a disability.
We agree with the Page court, therefore, that a search pro-
vision can be appropriately tailored to and "reasonably
related to the prevention of future criminal activity." And
the same is true of a polygraph provision. A probationer has
no right to expect that he is entitled to the same self-
incrimination protections as is a person not operating under
such disability.
In State v. Age (1979), 38 Or. App. 501, 590 P.2d 759,
the court rejected a probationer's argument that a polygraph
provision violated her rights against self-incrimination. In
holding that a probationer had a statutory duty to "answer all
reasonable inquiries of the probation officer" the Court plugged
this duty into the requirement that the probationer take a
polygraph examination:
.
". . Since the probationer must answer all
reasonable inquiries of the probation officer
or risk revocation, we see no impermissible
extension of that condition in requiring that
the probationer submit to polygraph tests.
The intrusion into the area of self-incrim-
ination is no greater; its main function
appears to be the added psychological factor
that if the probationer fails to tell the
truth, he will be detected. Such purpose would
be in furtherance of a successful probation."
590 P.2d at 763.
The reference in Age, to the duty of the probationer
to answer "all reasonable inquiries of the probation
officer or risk revocation,. . ." has a statutory basis
in Oregon (Ors 137.540(1) (e) cited in Age, 590 P.2d at 763.)
No statute in this State directly imposes such a duty on a
probationer. Nonetheless, a probation program could hardly
be successful if it did not require a probationer to answer
all reasonable inquiries of his probation officer. The added
factor that a polygraph examination may occasionally be used
while in the process of requiring these reasonable inquiries,
does not offend the self-incrimination provisions of the
federal or state constitution.
The vital questions in relation to search provisions
or polygraph examination provisions, compel this Court to
subject the provisions to "special scrutiny" to determine
whether or not they are tailored to and fall within the ambit
of a reasonable limitation on the probationer's "otherwise
inviolable constitutional rights." In recognizing this duty,
the court in United States v. Consuelo-Gonzalez (9th Cir.
1975), 521 F.2d 259, stated:
". . . it must be recognized that probationers,
like parolees and prisoners, properly are subject
to limitations from which ordinary persons are
free, it is also true that these limitations in
the aggregate must serve the ends of probation.
Conditions that unquestionably restrict otherwise
inviolable constitutional rights may properly be
subject to special scrutiny to determine whether
the limitation does in fact serve the dual objectives
of rehabilitation and public safety." 521 F.2d
at 265.
Indeed, when asked to rule on particular polygraph
provisions or search provisions, most courts have subjected
these provisions to "special scrutiny."
Implicit in the search and polygraph provisions imposed
in this case is an assumption that the prosecuting attorney
and law enforcement officials are an integral part of the
probation process and thus have the duty to guard and guide
the probationer through the probationary process until state
supervision has terminated. But neither the prosecuting
attorney nor the police are part of the probationary process.
One of the primary focal points in subjecting these provisions
to "special scrutiny" is an examination of the provisions to
determine who is given the right to demand a polygraph examin-
ation or to conduct a search. Many decisions have determined
that the probation officer must be the person about whom the
rights to conduct a polygraph examination, or to conduct a
search, must revolve.
In State v. Hovater (Or. App. 1978), 37 Or. App. 557, 588
P.2d 56, as part of a plea bargain defendant agreed to take a
polygraph examination either upon the demand of the district
attorney or the state police. This agreement was incorporated
into the judgment and later the district attorney invoked its
provision and demanded a polygraph examination. The probationer
attacked the provision itself, claiming that it violated her
rights against self-incrimination. Although the appellate
court rejected this claim, it declared in effect that neither
the district attorney nor the state police are part of the
probation process and thus have no right to demand that a
probationer take a polygraph examination:
"The district attorney and the police are not
part of the probation process. They have no
direct responsibility to supervise probation
or to facilitate rehabilitation of the defendant.
Their primary responsibility is to ferret
out crime and to prosecute the offender. In
the give and take of plea negotiations the
district attorney does not necessarily have
rehabilitation in mind when negotiating the
terms of probation. He may simply be attempting
to facilitate future investigation of crimes.
.
. ." 588 P.2d at 59.
The courts have applied the same kind of "special
scrutiny" to search provisions in holding that only the
probation officer or a police officer at his special request
and direction, should be entitled to conduct a search imposed
against a defendant as a condition of probation.
The search provision imposed here would permit not just
the probation officer but any "lawful authorities" to search
the probationer's home, his person, or his vehicle, at any
time, and in any place and manner, and for no other reason than
the mere whim or caprice of whomever decided to conduct a
search. In Tamez v. State (Tex. Ct. of Crim. App. 1976), 5 3 4
S.W.2d 686, the Court struck down a warrantless search pro-
vision in all essentials similar to the one under attack in
this case. In holding the search provision too broad in scope
and thus in violation of the probationer's Fourth Amendment
rights (as well as a violation of the Texas Constitution) the
court aptly characterized its effect:
"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." 534 S.W.2d at 692.
We can say no less about the effectfof the warrantless search
provision imposed in this case; it permitted any law enforce-
ment official to search the defendant, his home, or his
vehicle, whenever the mood struck. Such a provision is too
great an infringement upon the probationer's rights under
the federal and state constitutions.
Unlimited searches as a condition of probation or parole
have received the unequivocal condemnation of many courts.
For example, federal decisions include: United States v.
Jeffers (9th Cir. 1978), 573 F.2d 1074; United States v. Bradley
(4th Cir. 1978), 571 F.2d 787 (holding by implication); and
United States v. Consuelo-Gonzalez (9th Cir. 1975), 521 F.2d
259. And, state courts have done ?ikewise. For example:
Tamez v. State, supra; State v Fisher (1978), 32 Or. App. 465,
.
574 P.2d 354, rev. den. 283 Or. 99 (1978); State v. Holm (1978),
34 Or. App. 503, 579 P.2d 860; State v. Batson (1978), 35
Or. App. 175, 580 P.2d 1066; State v. McGivney (1978), 36 Or.
App. 885, 585 P.2d 767; People v. Jackson (1978), 46 N.Y.2d
171, 385 N.E.2d 621; Basaldua v. State (Tex. 1977), 558 S.W.2d
2; and People v. Huntley (1977), 43 N.Y.2d 175, 371 N.E.2d 794.
Several of the above cases have also discussed the situation
where a parole or probation officer searches when a search
provision has not been imposed by the sentencing court as
a condition of probation. Needless to say, unlimited searches
under this situation have also been held to be constitutionally
offensive.
One primary focal point of the special scrutiny to which
search provisions are subjected is to examine who are named
as beneficiaries in the condition of probation as having the
right to search. Several courts have directly or indirectly
held that law enforcement officers have no place in the probation
process and thus cannot be primary beneficiaries of a search
provision. The sentencing court cannot provide this connection
by thus naming law enforcement officers as having the right
to search pursuant to the search provision. Federal decisions
include: United States v. Consuelo-Gonzalez, supra (implied
ruling); United States v. Bradley, supra (implied ruling); and
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U n i t e d S t a t e s v . Workman ( 4 t h C i r . 1 9 7 8 ) , 585 F.2d 1205
(implied ruling) . S t a t e decisions include: Tamez v . S t a t e ,
s u p r a ( i m p l i e d r u l i n g ) ; S t a t e v. F i s h e r , s u p r a ( i m p l i e d
r u l i n g ) ; Roman v. S t a t e ( A l a s k a 1 9 7 7 ) , 570 P.2d 1 2 3 5 ( d i r e c t
r u l i n g ) ; and P e o p l e v. Anderson ( C o l o . 1 9 7 5 ) , 536 P.2d 302
(direct ruling).
A s w e have p r e v i o u s l y s t a t e d , p r o s e c u t i n g a t t o r n e y s and
law enforcement o f f i c e r s a r e n o t involved i n t h e p r o b a t i o n
p r o c e s s , a n d t h e r e f o r e a s e n t e n c i n g c o u r t may n o t p e r m i t
them t o s e a r c h p u r s u a n t t o e i t h e r a w a r r a n t r e q u i r e m e n t o r a
w a r r a n t l e s s s e a r c h p r o v i s i o n imposed a s a c o n d i t i o n o f p r o -
bation. To d o s o c o n s t i t u t e s a n i n f r i n g e m e n t o f o n e ' s r i g h t s
u n d e r t h e F o u r t h Amendment o f t h e U n i t e d S t a t e s C o n s t i t u t i o n
and A r t . 11, S B l O a n d 1 o f o u r own c o n s t i t u t i o n .
1 The s e n -
t e n c i n g c o u r t c a n n o t i n j e c t p r o s e c u t i n g a t t o r n e y s o r law en-
f o r c e m e n t o f f i c i a l s i n t o t h e p r o b a t i o n p r o c e s s by g r a n t i n g
them d i r e c t r i g h t s t o s e a r c h t h e p r o b a t i o n e r , h i s home, o r
h i s vehicle.
Nor i s t h e m e r e whim o r c a p r i c e o f t h e p r o b a t i o n o f f i -
cer s u f f i c i e n t t o t r i g g e r t h e d e c i s i o n t o s e a r c h u n d e r a
search provision. S e v e r a l c o u r t s have d i r e c t l y o r i n d i r e c t l y
-
r u l e d t h a t some k i n d o f c a u s e r e q u i r e m e n t m u s t f i r s t b e m e t
b e f o r e a s e a r c h can be v a l i d l y conducted. Federal cases in-
c l u d e : U n i t e d S t a t e s v . Consuelo-Gonzalez, supra ( d i r e c t r u l -
i n g ) ; L a t t a v. F i t z h a r r i s ( 9 t h C i r . 1 9 7 5 ) , 521 F.2d 246
( d i r e c t r u l i n g ) ; United S t a t e s v. Bradley, supra ( d i r e c t r u l -
i n g ) ; U n i t e d S t a t e s v . Workman, s u p r a ( d i r e c t r u l i n g ) ; a n d
U n i t e d S t a t e s v . Gordon ( 9 t h C i r . 1 3 7 6 ) , 540 F.2d 452 ( d i r e c t
ruling). S t a t e decisions include: People v. Jackson, supra
( d i r e c t r u l i n g ) ; People v. Huntley, supra (implied r u l i n g ) ;
S t a t e v. F i s h e r , supra ( d i r e c t r u l i n g ) ; Hunter v. S t a t e
( 1 9 7 6 ) , 139 Ga.App. 676, 229 S.E.2d 505 ( i m p l i e d r u l i n g ) ;
P e o p l e v . Anderson, s u p r a ( i m p l i e d r u l i n g ) ; and S t a c e *v
c-
-,- ,_,-., ., -.
MAY 2 0 1980
The problem, of course, is in arriving at an appropriate
standard.
In its brief, the State suggests that "the Court should
require that the probation officer have some articulable
grounds for determining that a search is necessary." Without
arriving at its own conclusions as to standards, the State
accurately sums up the state of the existing law:
". . . Although the courts have been vague in
formulating standards, the probation officer
should have some identifiable reason that
prompted him to conclude that the authority
of the search clause should be exercised. This
could be information received from an informant,
the police or the probation officer's own
observation that the probationer has resumed
criminal conduct or has violated conditions of
probation."
Beyond this, the State adds nothing.
Two federal cases have traveled the additional step of
imposing a search warrant requirement as a condition to
searching a probationer. United States v. Bradley, supra;
United States v. Workman, supra. In relating a search
warrant requirement to a probationer, the court in Workman
stated:
". .
. the special relationship between a
parolee and his parole officer and society's
interest in close supervision of the parolee
serve to lower the standard for determining
probable cause to obtain a search warrant but
that they do not eliminate the warrant require-
ment." 585 F.2d at 1207.
In New York, the legislature has set forth statutory
guidelines for searching probationers and parolees. N.Y.
Crim. Proc. Law 8410.50 (McKinney, 1971). Section 410.50(3)
allows the court to issue a search order upon a showing of
reasonable cause that the probationer has violated a condition
of the sentence during the period of probation. The order
must be directed to the probation officer, and he may search
defendant's person or any premises in which he resides or any
real or personal property which he owns or which is in his
possession. The necessary condition is that a judicial
officer must grant the permission to search.
Polygraph examinations as a condition of probation can
be effectively containedw& constitutional limits by con-
fining the right to demand a polygraph examination to the
probation officer. This will significantly reduce the
potential for abuse. But confining the right to search to
a probation officer only resolves part of the problem. Still
unresolved are the questions of the cause requirement to
conduct a search, the time, place and manner of conducting
the search, and whether different standards should apply to
searches of the probationer's person, the probationer's vehicle,
or the probationer's home.
We recognize that probationary status can and should
carry with it a reduced expectation of privacy. But a
probationer is living within society, not confined to a penal
institution. If the trial courts do not and will not recognize
this fundamental fact of life, it then devolves upon this
Court to do so. We must fashion a formula, however imperfect,
which reasonably balances the competing rights of society and
of the individual probationer and his family and friends. A
search of a probationer's home cannot avoid invading the
privacy of those with whom he may be living, whether they be
immediate family, other relatives, or friends. Probationary
status does not convert a probationer's family, relatives
and friends into "second class" citizens.
In State v. Means, supra, Justice Daly in his dissent,
raised the flag to a problem which the courts must face and
hopefully satisfactorily resolve:
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"I conclude with the admonition that ...
there are many more problems related to those
mentioned herein that necessarily need con-
sideration before Montana can assume a
respectable position in the matter. We must
also consider the rights of those who reside
with a probationer--his wife, children, mother
and others. These problems do not go away by
just ignoring them." 581 P.2d at 417.
We can only assume a "respectable position" if we can
give fair consideration to the rights of innocent third parties
who may be caught up in the web of the probationary system or
probationary process. These people are not sapped of their
right of privacy because they may be living with a probationer
or he may be living with them. While a probationer's right of
privacy may be justifably diminished while on probation, the
rights of these people are not so diminished. We, as well as
the trial courts, would be derelict in our duties if we failed
to consider the rights of these innocent others so that they are
not swept away by the probationary process.
The potential harmful effects of unlimited sweeping
warrantless search provisions are underscored in a note entitled:
Striking the Balance Between Privacy And Supervision: -
The
Fourth Amendment and Parole - Probation Officers Searches of
and -
Parolees and Probationers (1976), 51 N.Y.U.L.Rev. The intrusion
into the lives of family and friends as well as the probationer,
is particularly stressed:
"Fourth amendment protection will be diminished
not only for parolees, but also for the family
and friends with whom the parolee might be living.
Those bystanders may find themselves subject to
warrantless searches only because they are good
enough to shelter the parolee, and they may
therefore be less willing to help him--a sadly
ironic result in a system designed to encourage
reintegration into society. Moreover, the
demeaning effect of arbitrary intrusions into
the parolee's privacy will be reflected in the
attitudes of his relatives and friends. As a
result, the parolee will suffer diminished feelings
of self-worth, making his rehabilitation more
difficult. In addition, warrantless parole officer
searches may reinforce patterns of resentment to
authority, and excessive external controls
may inhibit the development of necessary
internal controls: 'a person must have the
freedom to be responsible if he is to become
responsibly free.'" (Footnotes omitted.) 51
N.Y.U.L. Rev. at 816-817.
in the
These privacy considerations are inextricably interwoven/
relationships between a probationer and his family and friends
no less than in the relationships between a nonprobationer
and his family and friends. The search of a probationer's
home will inevitably affect the privacy of those with whom he
is living.
One of the most important reasons for requiring a search
warrant as a condition to a search is a recognition that
reasonable restrairks must be placed upon law enforcement
officials before a search is conducted rather than simply to
measure the validity of a search by a postsearch inquiry into
its reasonableness. If abuses are to be discouraged, it
does little good to provide postsearch judicial review,
for this neither deters unreasonable searches nor remedies
those which have occurred. Indeed, in all but the most
blatant violations, the searching officers will be able
to retrospectively point to specific facts which justified
the search. Beck v. Ohio (1964), 379 U.S. 89, 96, 85 S.Ct.
223, 228, 13 L.Ed.2d 142, 147. Such is human nature, whether
motivated by good or bad intentions. And that is precisely
why it is considered wise if individual rights are to be
valued, to place a neutral judge between the law enforcement
authorities and the subject of the search. Just as the
Fourth Amendment is aimed at preventing abuses, so our own
constitution setting forth the ground rules for searches and
seizures only upon probable cause set forth in writing has
the same objective. (Art. 1 1 1 . Added to this protection
is the "right of privacy" expressly guaranteed by Art. 11, 510
of our own constitution. If protection of these rights is
to have substantive meaning, restraints must be imposed
before the search is conducted.
Postsearch review of the reasonableness of a search
is hardly an effective deterrent where the rights of third
persons are concerned. A determination that a warrantless
search of a probationer's home was unreasonable provides no
protection for third persons whose privacy has already been
invaded by the search itself. The invasion has occurred;
the damage has been done. Recognition of this fundamental
problem is one of the reasons the court in Latta v. Fitzharris
(9th Cir. 1975), 521 F.2d 246, imposed a search warrant
requirement. Clearly, therefore, so that the legal interests
of innocent third persons can be adequately protected and
considered in the probationary process, we require that a
search warrant must first be obtained, and it must be based
on probable cause.
It is not neces ary that the probable cause consist
prokction c&teeC
of the -zrtp personal knowledge. He may rely on
information received from law enforcement personnel or from
reliable citizens. But if he has relied on such information
received from law enforcement personnel or reliable citizens,
he must state in his affidavit precisely what information
has been provided him. In the case of the private citizen,
the probation officer must set forth reasons why he considers
such person to be reliable.
The probation officer must, on application for a search
warrant, have a reasonable basis to conclude that the pro-
bationer has violated his condition or conditions of probation,
and that a search of the named place will lead to the proof
needed to show that a violation had in fact occurred. This
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information must be presented in affidavit to a judge qualified
to issue search warrants, and if he is satisfied that there
are reasonable grounds to issue a search warrant, he may,
in his discretion, issue a search warrant to the probation
officer. In such event the probation officer may enlist the
aid of law enforcement officers to assist him in the search.
In addition to the information constituting the probable
cause, the probation officer shall provide information within
the affidavit as to probationer's living arrangements, that
is, whether the probationer is living alone, with family,
with other relatives, or with friends. Upon consideration
of these factors, the judge shall impose reasonable limitations
as to the time, place and manner of search. Since privacy
rights of third persons may be affected by the issuance and
execution of a search warrant, the issuing judge shall impose
such conditions of the search which are designed to protect as
much as is reasonably possible, the rights of these third
persons. For instance, in most instances, late night searches
would not be permitted. But this, too, can vary from case to
case.
The State has suggested that a search clause be imposed
in such a manner that a probationer cannot be harassed or
intimidated. This, of course, goes without saying. We believe,
however, that by imposing a search warrant requirement and
limiting the right to obtain a search warrant to a probation
officer, there will be little if any harassment or intimida-
tion. Only the probation officer is in a position to make
the decision, in the context of the particular case, of what
is best for the probation process, considering both the
probationer and the legitimate interests of the public. He
should, therefore, be the person who makes the decision as
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to whether or not to seek a search warrant. Indeed, a
decision to do so may well rupture the working relationship
he has with a probationer, and law enforcement officers
should not be making that decision for the probation officer.
We have primarily focused on a search of a probationer's
home in setting forther the essential guidelines. Obviously,
if the privacy of third persons is to be invaded, the search
4-vGt-
of a probationer's homis laet likely to be the scene of those
invasions. On the other hand, the privacy of third persons is
not as intimately involved where a probationer's vehicle is
searched or where the probationer is personally searched. The
probation officer obviously has no right to search third persons
in any event. Because we have limited the right to search to
a probation officer or a police officer at his direction, we do
not feel that there will be significant abuses in searching
either the probationer's vehicle or the probationer personally.
For this reason we do not impose a search warrant requirement
on the probation officer to search either the probationer's
vehicle or the probationer personally. The probation officer
must, however, have some articulable reason for conducting either
search. It is not sufficient that he make a decision to search
based only on his unfettered discretion.
We note, however, that a probation officer obviously has
the right to protect himself, and therefore we do not require
that he have any articulable grounds to conduct a pat-down
search to assure his own safety.
We emphasize that imposition of these search clause
and polygraph clause limitations does not interfere with
the traditional rights of law enforcement officers to use the
tools at their disposal if they have the requisite probable
cause to believe that probationer has committed a criminal
offense. We hold only that law enforcement officers have
no business directly injecting themselves into the probationary
process, nor should the trial courts directly inject these
law enforcement officials into the probationary process by
permitting them to make decisions that are best left to the
probation officers.
There is an additional question as to whether state
prosecutors, as a condition to agreeing to a deferred sentence
or suspended sentence, should be permitted to condition such
agreement upon the willingness of the defendant to agree to
a search clause condition or polygraph condition. Good policy,
requires, we believe, that they not be permitted to do so.
Rather, that question in each case should be left to the
sentencing court. If a prosecutor could demand either or
both of these conditions as part of a plea bargain the
defendant is placed in an untenable position. Either he
agrees to the conditions or he will not receive a deferred
or suspended sentence. This kind of plea bargaining leverage
should not belong to a prosecutor.
This is not to say that a prosecutor cannot inform a
defendant that at the sentencing hearing he will request either
a search clause or polygraph clause. He may have some good
reasons to present to the sentencing court to ask for either or
both conditions in a particular case, and he has a right
of course, to present his case. But so does the defendant
or his counsel have the right to present his case in opposition
to the imposition of such conditions. In the event the pro-
secutor does ask for either or both conditions he must state
with particularity his reasons for such request.
If, upon a consideration of the special circumstances
of the case, the sentencing court determines that either or
both conditions should be imposed, he shall state for the
record, with particularity, the reasons for his decision.
Another question underlying the use of a polygraph
clause is the use to which the test results are put. Test
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results adverse to the probationer should not be sufficient
in and of themselves to cause the revocation of probation.
We do not believe these tests to be sufficiently trustworthy
that one could be jailed or imprisoned solely as the result
of a polygraph examination. This is not to say that we
believe polygraph examinations have no merit. We hold that
in addition to the adverse results of a polygraph examination,
there must be independent corroboration that a violation of
a condition of probation has occurred. It is conceivable that
a probationer may be subjected to repeated polygraph examin-
ations with relation to different events and different periods
of time, and that he has repeatedly failed the tests administered.
We express no opinion here as to whether this would be
sufficient reason to revoke a probationer's probation.
For the foregoing reasons, the order of revocation and
imprisonment is vacated and the defendant is ordered placed
back on probationary status. Should the court desire to
impose either or both of the conditions again, it shall do
so in a manner consistent with
We Concur:
...................................
Chief Justice
Justices
Mr. Chief Justice Frank I. Haswell and Mr. Justice John Conway
Harrison dissenting.
We dissent. We do not agree that the condition of
defendant's sentence requiring him to submit to a search without
a warrant is unconstitutional as applied to the facts of this
case. Neither do we agree that the provision requiring defen-
dant to submit to a polygraph examination is unconstitutionally
overbroad under the circumstances here.
We would affirm the order of the District Court revok-
ing defendant's suspended sentence and ordering him to prison.
Chief Justice
1