I N THE SUPREME COURT OF THE STATE OF MONTANA
1989
STATE OF MONTANA,
P l a i n t i f f and Appell.ant,
-vs-
EVERETT HAROLD S I G L E R ,
Defendant and Respondent.
APPEAL FROM: D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t v of C a s c a d e ,
T h e H o n o r a b l e ,Toel G . R o t h , J u d g e p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
H o n . M a r c R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , Montana
Betsy Brandborg, Asst. Atty. General, Helena
P a t r i c k L . P a u l , C o u n t y A t t o r n e y ; Tammy K . P l u b e l l ,
D e p u t y C o u n t y A t t o r n e y , G r e a t F a l l s , Montana
For G s p o n d e n t :
3
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* :'u John Keith, G r e a t Fal.Ls, Montana
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fo 4 S u b m i t t e d on B r i e f s : Jan. 5, 1989
Decided: February 14, 1989
Filed:
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Clerk
Mr. Justice L . C. Gulbrandson delivered the Opinion of the
Court.
The State of Montana appeals the July 27, 1988 order of
the Eighth Judicial District, Cascade County, denying
reconsideration of the court's June 9, 1988 order denying the
State's petition for revocation of respondent Sigler's
suspended sentence. In light of this Court's recent decision
in State v. Burke (Mont. 1988), P.2d , 45 St.Rep.
2278, we reverse the order of the District Court and remand
for further proceedings.
Pursuant to a plea agreement, respondent Sigler was
found guilty of felony criminal possession of dangerous drugs
and misdemeanor possession of drug paraphernalia. Respondent
received a three year deferred sentence subject to six
conditions. Respondent failed to comply with any of the six
conditions of the deferred sentence and failed three
consecutive urine drug tests. The District Court then
revoked the three-year deferred sentence and replaced the
deferred sentence with a five-year suspended sentence in the
Montana State Prison. The suspended sentence was conditioned
upon respondent's meeting four conditions. These conditions
included that the respond.ent not possess or use dangerous
drugs and that he "submit a urine sample upon request of his
probation officer or any peace officer to assure compliance
with the above condition."
On February 5, 1988, respondent's probation officer,
Michael Redpath, filed a report of violation alleging
respondent had failed to appear for a urine sample scheduled
for February 4, 1988. The report of violation recommended
that the suspended sentence be revoked.
On June 3, 1988, an evidentiary hearing was held and on
June 8, 1988, the court issued its order dismissing the
petition for revocation of the suspended sentence. The court
found that although the respondent was required to submit to
urinalysis testing at the request of his probation officer,
the probation officer stated he had no specific reason for
believing the respondent was using drugs at the time he
requested a urine sample from the respondent. The court he1.d
that the search requested in this case was based solely upon
the probation officer's "unfettered discretion." The case of
State v. Fogarty (1980), 187 Mont. 393, 610 P.2d 140,
requires the probation officer to have some "articulable
reason" for conducting a search of a probationer. Thus, no
violation had occurred, except that based upon an improper
search of the defendant.
On December 15, 1988, this Court decided the case of
State v. Burke (Mont. 1988), P.2d , 45 St.Rep. 2278.
In that decision, this Court specifically overruled the
Fogarty decision based upon the United States Supreme Court's
decision in Griffin v. Wisconsin (1987), U.S. , lo?
S.Ct. 3164, 97 L.Ed.2d 709. The Burke decision replaced the
standard of probable cause, applicable when conducting
warrantless searches of probationers, with the standard of
"reasonable grounds." This Court and the Griffin Court base
the departure from the probable cause standard upon the
"special needs" which exist in operating a State's probation
system. Burke, 45 St.Rep. at 2281.
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 supervision 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 1-arge.
Griffin, 107 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.
Burke, 45 St.Rep. at 2281-2282.
In between the Griffin and Burke decisions, the Ninth
Circuit dealt with a similar situation, except that the order
imposing probation conditions did not explicitly require drug
testing as a probation condition. U.S. v. Duff (9th ~ i r .
1987), 831 F.2d 176. In that case, relying on Griffin, the
court found "the search must he reasonable and must be based
upon the probation ofGicer's reasonable belief that it is
necessary to the performance of her duties." - -
Duff, 831 F.2d
at 179. (Emphasis added.)
The urine testing employed here was
narrowly tailored to determine whether
Duff was using drugs and was less
intrusive of Duff's privacy than other
methods of monitoring, such as continuous
surveillance or repeated searches of
Duff's home and property. The probation
officer had a reasonable suspicion that
Duff might be using drugs ... Because
Duff had been convicted for drug
possession, the probation officer
reasonably believed that drug testing was
necessary "to foster the offender's
reformation and to preserve the public's
safety." Williams, 787 F.2d at 1185.
Duff, 831 F.2d at 179.
As previously noted, the District Court in this case
found the probation officer ordered the urinalysis test based
upon his unfettered discretion. This finding was based upon
the probation officer's testimony that he had no specific
reason to believe that the respondent was using drugs at the
time of the request.
However, the court also found that the probation
officer was authorized to require the respondent to submit to
urine testing and that the probation officer felt "the
rehabilitation process could not begin until he was certain
the Defendant was free from drugs. . . I' Further, it is
undisputed that the respondent had not passed a drug test
from the time of his arrest until directed to appear for the
February 4, 1988 urinalysis. We find such evidence is
sufficient to establish reasonable grounds for requiring the
respondent to submit a urine sample for determining whether
or not the respondent is complying with the conditions of the
suspended sentence. We hereby reverse the order of the
District Court and remand for further proceedings consistent
with this opinion.
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We concur: A