No. 88-48
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Appellant,
-vs-
MARCELLA BURKE, CORWIN ROTH,
Defendants and Respondents.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C.B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Mike Greely, Attorney General, Helena, Montana
Clay R. Smith argued, Asst. Atty. General, Helena
Larry J. Nistler, County Attorney, Polson, Montana
For Respondent :
James E. Handley argued for Roth, Polson, Montana
Rebecca T. Dupuis, (Burke) Polson, Montana
Submitted: September 20, 1988
Decided: December 15, 1988
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Ad Clerk
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Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This case comes on appeal from the District Court of
the Twentieth Judicial District, Lake County, Montana, the
Honorable C. B. McNeil, presiding. The District Court
dismissed revocation proceedings which resulted from a
suppression of evidence. At the time of this appeal,
defendant Roth had completed his probation period.
Marcella Burke and Corwin Roth pleaded guilty to
criminal sale of dangerous drugs on February 4, 1987.
Judgments dated March 4, 1987 were entered imposing deferred
imposition of sentence under various conditions for six years
as to Burke and one year as to Roth. Five probation
conditions are germane to this case:
1. That the Defendant be placed under
the jurisdiction of the Adult Probation
and Parole Division of the State of
Montana Department of Institutions and
that he [she] comply with all of the
terms and conditions established by said
Division.
2. That the Defendant is prohibited from
using or possessing any drugs of any
kind, unless under the direct supervision
of a physician.
4. That the Defendant submit to blood,
breath, or urine tests, without warrant,
at the request of his [her] probation
officer or law enforcement officers, upon
reasonable cause.
5. That Defendant submit to search of
his [her] person, premises or vehicle,
without warrant, at the request of his
[her] probation officer or law
enforcement officers, upon reasonable
cause.
6. That the Defendant obtain such drug
and/or alcohol counseling and/or
treatment as deemed advisable by his
[her] probation officer.
Neither defendants adhered to the requirements of
contacting their respective probation officers nor obtaining
alcohol and drug counseling.
On September 3, 1987, at approximately 11:OO p.m.,
Officer Bruce Phillips of the Lake County Sheriff's
Department observed Burke in the parking lot of the Diamond
Horseshoe Bar. Phillips watched various persons leave the
bar, walk to Burke's automobile, and then return to the bar.
After requesting assistance, Phillips drove toward the Burke
vehicle. He exited his car, approached Burke, and requested
she exit her car. Phillips detected the smell of marijuana
on Burke's breath and saw Zig-Zag cigarette papers on the
vehicle's front seat. He then leaned into Burke's vehicle
from the driver's side and opened the ashtray, finding the
remnant of a smoked marijuana joint. Phillips contacted
Burke's probation officer, David Weaver, requesting
permission to continue the vehicle search. In addition to
granting permission, Weaver also instructed Phillips to take
Burke into custody for a possible probation violation. On
further search, Phillips discovered two baggies containing
marijuana in a soft-drink carton on the passenger front seat
area.
After completion of the vehicle search, Phillips again
contacted Weaver, obtaining permission to search Burke's
residence. Residents of the home included Burke, Roth and
four children. Phillips and three county officials conducted
the search which revealed marijuana and various drug
paraphernalia. Roth was arrested for possible probation
violations at Weaver's direction. This third contact between
Phil-lips and Weaver occurred at approxi-mately 12 :35 a.m.
On September 4, 1987, Weaver and Ron Alsbury, Roth's
probation officer, issued written authorization to the Lake
County Sheriff to arrest and hold Burke and Roth for possible
probation condition violations. At this time, Weaver
requested a urinalysis of Roth, who indicated his specimen
would "come hack dirty." Results revealed both marijuana and
cocaine use. Prior to release, a similar test was performed
on Burke. Likewise, the results indicated marijuana and.
cocaine use.
Burke and Roth posted bond and were released September
9, 1987. At the District Court's direction, each met with
their probation officers in the latter's office . Durincj
Burke's meeting with Weaver, Burke admitted using marijuana.
Roth also admitted to his probation officer his use of
marijuana. In a follow-up meeting on September 14, 1987,
Alsbury advised Roth of his Miranda rights and stated that
the urine samples indicated both marijuana and cocaine use.
Roth admitted to snorting cocaine, but denied injecting it
intravenously. However, on September 28, 1987, Roth told
Alsbury he had shot cocaine "a couple of times." Reports of
probation condition violations were filed with respect to
Burke and Roth on September 14, 1987.
Burke and Roth filed separate motions to dismiss or
alternatively, to suppress evidence, arguing the probationary
conditions were invalid under State v. Fogerty (1980), 187
Mont. 393, 610 P.2d 140. Relying on the Fogerty decision,
the District Court concluded the searches were unlawful
because the vehicle search "was initiated by the arresting
officer and not initiated at the special request and
direction of the Defendant's parole officer." The residence
search was held invalid because it was warrantless. Further,
the court suppressed admissions and urinalysis results as the
"fruits of the poisonous tree."
The State urges this Court to overrule the Fogerty
decision in light of the United States Supreme Court ruling,
Griffin v. Wisconsin (1987), U.S. , 107 S.Ct. 3164,
97 L.Ed.2d 709, holding that the warrantless search of a
probationer's home, pursuant to Wisconsin regulation
replacing the standard of probable cause by "reasonable
grounds," satisfied the Fourth Amendment. Alternatively,
appellant alleges the good faith exception to the warrant
requirement and the inapplicability of the exclusionary rule
to probation revocation hearings. We find the reasoning of
Griffin persuasive and therefore need not reach the merits of
appellant's alternative arguments.
The Griffin Decision
In Griffin v. Wisconsin, supra, the defendant was
convicted of a state law weapons offense. The weapon was
discovered by his probation officer's supervisor during a
warrantless residence search. The search was conducted
pursuant to a Wisconsin regulation which allowed,
[Alny probation officer to search a
probationer's home without a warrant as
long as his supervisor approves and as
long as there are "reasonable grounds" to
believe the presence of contraband
--including any item that the probationer
cannot possess under the probation
conditions.
Griffin, 107 S.Ct. at 3166. The search was based on
information received by the supervisor from a police officer
"that there were or might be guns in [the probationer's]
apartment." Griffin, 107 S.Ct. at 3166.
The Supreme Court concluded the search of Griffin's
home satisfied the demands of the Fourth Amendment because
"it was carried out pursuant to a regulation that itself
satisfies the Fourth Amendment's reasonableness requirement
under well established principles." Griffin, 1 0 7 S.Ct. at
3167. Continuing, the Court noted that although a warrant is
usually required to carry out a search, "we have permitted
exceptions when 'special needs, beyond the normal need for
law enforcement, make the warrant and probable-cause
requirement impracticable.'" Griffin, 1 0 7 S.Ct. at 3 1 6 7 .
A State's operation of a probation
system, like its operation of a school,
government office or prison, or its
supervision of a regulated industry,
likewise presents "special needs" beyond
normal law enforcement that may justify
departures from the usual warrant and
probable cause requirements.
Griffin, 1 0 7 S.Ct. at 3 1 6 8 . Restrictions on a probationer
are meant to assure that the probation serves as a period of
genuine rehabilitation and that the community is not harmed
by the probationer's conditional liberty status.
These same goals require and justify the
exercise of supervison to assure that the
restrictions are in fact observed ...
Supervision, then, is a "special need" of
the State permitting a degree of
impingement upon privacy that would not
be constitutional if applied to the
public at large.
Griffin, 1 0 7 S.Ct. at 3 1 6 8 .
This special need is equally applicable to the State of
Montana. In conjunction with the need for supervision, a
degree of flexibility must also be accorded the probation
officer. The probation officer acts upon a continued
experience with the probationer, with knowledge of the
original offense, and with the probationer's welfare in mind.
Because of his expertise, we view the probation officer in a
far superior position to determine the degree of supervision
necessary in each case.
This expertise would be rendered meaningless if a
warrant requirement were imposed prior to a probationary
search. The independent magistrate, rather than the
probation officer, would ultimately make supervisory
decisions. In addition, the delay associated with obtaining
a warrant plus the greater evidentiary burden would, we
believe, substantially inhibit the effectiveness of the
probation system.
[Tlhe probation agency must be able to
act based upon a lesser degree of
certainty than the Fourth Amendment would
otherwise require in order to intervene
before a probationer does damage to
himself or society. The agency,
moreover, must be able to proceed on the
basis of its entire experience with the
probationer, and to assess probabilities
in the light of its knowledge of his
life, character and circumstances.
Griffin, 107 S.Ct. at 3171. Thus, the special needs of the
probation system strongly militate toward the "reasonable
grounds" standard.
Under the Department of Institutions administrative
rules, a probationary search may be conducted without a
warrant upon reasonable cause:
20.7.1101(11): Search a person or
property. The probationer/parolee while
on probation or parole if so ordered b 7
5
the sentencing court, shall submit to a
search of his person, automobile, or
place of residence by a probation or
parole officer, at any time of the day
or niqht, with or without a warrant upon
reasonable cause as may be ascertained
by a probation/parole officer.
(Emphasis added. )
The critical language reflects the recognition that the
court, viewing the circumstances individually, may see a need
tc? impose a condition otherwise invalid to the public at
large. Such a condition was believed to be necessary in the
instant case.
The facts involved in Griffin are distinguishable from
those in the present case in one notable respect: namely, the
intervention of police officers. This particular aspect,
respondent argues, should render the United States Supreme
Court decision inapplicable. However, the unique
circumstances of probation enforcement in Montana counsel
against such result. Montana is primarily a rural state.
Because of its size and small population, probation officers
are often responsible for a number of counties within their
districts. It would be an untenable position, therefore, to
require constant and individual supervision of every
probationer. Our probation system would be unworkable,
absolutely crippled, if police were not available to assist
probation officers.
Nor can we demand police officers to be deaf, dumb, and
blind in their observations of probationers. We see
situations where the probation officer, for one reason or
another, is not available to direct the actions of the
police. Such lack of direction should not amount to a
fortuitous event for the probationer, enabling him to escape
punishment for probation violations. Instead, we encourage
cooperation and communication between police and probation
officers. Police cooperation with probation officers is to
be encouraged as an important aid to effective administration
of the probation system. Cooperation will not interfere with
the final determination as to whether or not a revocation
petition is to be presented to the district court. This
discretion remains with the probation officer.
While acknowledging the State's interest in supervising
probationers, respondents contend a greater interest exists
in protecting the privacy rights of innocent third parties
who are involved in the life of the probationer.
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.
State v. Fogerty (1980), 187 Mont. 393, 411, 610 P.2d 140,
151. Upon this language, respondents urge this Court to
uphold the warrant requirements for residence searches. The
assertion ignores the situation surrounding conditional
liberty status.
It is undisputed that a probationer has a reduced
privacy interest. Morrissey v. Brewer (1972), 408 U.S. 471,
92 S.Ct. 2593, 33 L.Ed.2d 484. Indeed, the judgment imposing
a deferred sentence is a form of contract between the court
and the probationer, eliminating privacy expectations: the
probationer is aware that his activities will be scrutinized.
To impose a warrant requirement for residential searches, on
the basis of rights enjoyed by persons not on probation,
would artificially raise a probationer's privacy interest to
a level inconsistent with conditional liberty status. The
probation officer must be able to supervise the probationer,
and upon his judgment and expertise, search the probationer's
residence or cause it to be searched.
We do not ignore the interests of third parties
involved in a residential search. The search should be
permitted only if there is an underlying factual foundation
justifying the search; and the search should not be used as
an instrument of harassment or intimidation.
Remand Instructions
We expressly overrule v. Fogerty (1980), 187
State
Mont. 393, 610 P.2d 140. The District Court's order of
December 14, 1987, is reversed.
This case is remanded to the District Court for further
proceedings consistent with this opinion.
We concur: 1
Justices
Mr. Justice John C. Sheehy, dissenting:
As the only remaining Justice from the majority in State
v. Fogarty, supra, I dissent to overruling that case.
Fogarty is a balanced decision which, contra to the position
of the state, preserved the state's interest in supervision
of parolees and yet looked at the rights of others who might
be involved. This decision is absolutist, something we
avoided in Fogarty.
Mr. Justice William E. Hunt, Sr.:
I concur in the foregoing dissent of Mr. Justice Sheehy.