I N THE SUPREME COURT O F THE S T A T E O F MONTANA
S T A T E O F MONTANA,
Plaint-iff and Respondent,
-vs-
F A T I N A SMALL,
Defendant and Appellant.
A P P E A L 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 y of C a s c a d e ,
T h e H o n o r a b l e Joel Roth, Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
John K e i t h , G r e a t F a l l s , M o n t a n a
For R e s p o n d e n t :
Hon. 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 , M o n t a n a
Dorothy Kccarter, Asst. Atty. General, Helena
Patrick L. P a u l , C o u n t y A t t o r n e y , G r e a t Falls,
M o n t a n a ; S t e p h e n E. H a g e r m a n , D e p u t y C o u n t y A t t o r n e y
S u b m i t t e d on B r i e f s : Dec. 16, 1988
Decided : January 5, 1 9 8 9
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- ED S M I T H
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Defendant probationer Fatina Small appeals an order
from the Eighth Judicial District, Cascade County, revoking
her deferred sentence for probation violations and sentencing
her to serve three years in the Montana State Prison at Deer
Lodge. (Sentence suspended in its entirety.) We affirm.
The issue on appeal is whether the warrantless search
initiated by defendant's probation officer pursuant to the
terms of her probation violated her constitutional rights.
We hold that it did not.
Defendant was charged by information on September 3,
1986, with three counts of felony drug violations for the
sale of dangerous drugs as specified by 5 50-32-101, MCA.
Defendant plead not guilty to each count. Later, pursuant to
a written plea agreement with the Cascade County Attorney's
deputy, defendant plead guilty to the first count and the
other two were dismissed. Defendant's sentence was deferred
for three years based on certain probation conditions. The
pertinent conditions read as follows:
1. Defendant is prohibited from pos-
sessing or using any dangerous drugs
except those prescribed by a medical
doctor.
5. Upon reasonable suspicion that the
Defendant is violating the above condi-
tion relating to the no use of marijuana
or any other dangerous drug, the Defen-
dant shall be subject to search and
seizure at any time of the day or night,
by any law enforcement officer , without
the necessity of obtaining a search
warrant.
Testimony indicated that special provisions were recom-
mended in the presentence report by the Adult Probation and
Parole Office due to defendant's admissions of the regular
use of dangerous and illegal drugs. The provision specifi-
cally recommended by Probation Officer Rick Holzheimer read
as follows:
You shall, while on parole, or during
the period of your probation if so
stipulated by the Court, submit to a
search of your person, automobile or
place of residence by a probation/
parole officer, at any time of the day
or night, with or without a warrant,
upon reasonable cause as ascertained by
a probation/parole officer.
The trial judge substituted his special condition number 5,
supra, for the one recommended by Holzheimer.
On February 25, 1988, a confidential informant contact-
ed Captain Robert Stevens of the Great Falls Police Depart-
ment and stated that the person living at 411 Sixth Street in
Great Falls (defendant's address) was dealing in marijuana
and distributing it. The informant contacted Stevens again
approximately two weeks later on March 4, 1988, indicating to
him that drugs would be at the same location that afternoon
and available for sale. Stevens testified to the reliability
and on-going nature of the accurate information from this
confidential informant. On both occasions, Stevens relayed
this information to Detective Brian Lockerby.
Brian Lockerby notified defendant's probation officer,
Rick Holzheimer, after the first contact by the informant and
was informed of defendant's conditional probation at that
time. After the second contact, Lockerby notified Detective
Renman and then Holzheimer. Lockerby testified that he did
n.ot attempt to obtain a search warrant because he was advised
of the probation pro~~ision authorizing a warrantless search
and that he anticipated Holzheimer would bring the agreement
with him if they were to search defendant's premises.
After alerting Holzheimer, Renman and Lockerby went to
the defendant's residence that day. They arrived about 5:00
p.m. and watched the house for approximately one hour waiting
for Holzheimer to arrive.
Once Holzheimer arrived at the defendant's residence,
Detective Sinnott knocked on defendant's door. The four
identified themselves to the defendant and explained their
presence. They entered the house at that time and found two
containers of marijuana and other drug paraphernalia. Defen-
dant was issued citations by the police at that time and was
verbally advised by Holzheimer that she was in violation of
her probation for possession of the drug. Holzheimer further
testified that he smelled marijuana upon entering the resi-
dence and defendant's eyes were glassy.
Defendant filed a motion to suppress this evidence at
the revocation hearing. The motion was denied at the June 6 ,
1988, hearing. Defendant appeals.
Defense counsel contends that this warrantless search
initiated by the probation officer is patently unconstitu-
tional in this case and the fruits of the search should be
suppressed based on State v. Fogerty (1980), 187 Mont. 393,
610 P.2d 140. Fogerty held that the unlimited warrantless
search, to be initiated without any reasonable grounds, was
an unconstitutional provision in the defendant's probation
conditions. However, pending the instant appeal, Fogerty was
overruled by this Court in State v. Burke and Roth (Mont.
19881, - P.2d , 45 St.Rep. 2278.
Burke and Roth and its predecessors focused on the lack
of a search warrant and lack of a basis for the police to
institute the warrantless search. Such is not the focus
here, because this case turns on the conduct of the probation
officer.
Defendant's probation officer in the case at bar not
only initiated the search of defendant's residence, but was
present and actually participated in it. The officers testi-
fied that they waited in front of the residence for one hour
for Holzheimer to arrive and direct the search. Probation
Officer Holzheimer testified that he authorized the search,
went to the premises to authorize and supervise the search
and was accompanied into the house by law enforcement person-
nel for his own safety.
Such conduct is constitutionally sound under Montana
law. We need not discuss the warrantless search on a
Fogerty, Burke and Roth analysis of the search provision
itself, because the search in this case was instigated and
supervised by a probation officer and was not independent
police action. Such a search by a probation officer of his
probationer, probationer's car, premises or other belongings
is lawful. As was stated in Burke and Roth: "The probation
officer must be able to supervise the probationer, and upon
his judgment and expertise, search the probationer's resi-
dence or cause it to be searched." 45 St.Rep. at 2283.
Additionally, reasonable grounds existed to initiate
the probation officer's search. The communications between
the Great Falls Police Department and the Adult Probation and
Parole Office as well as the testimony of Officer Stevens
evidence the reliability of the confidential informant.
Thus, it was reasonable to rely on the accurate infor-
mation from the confidential informant and to act on that
information.
Because the search of probationer's residence was
initiated by her own probation officer based on a reasonable
suspicion of a probation vi.olation, the search of Fatina
Small's residence was lawful. Defendant's motion to suppress
evidence was properly denied. We find no abuse of the trial
court's discretion based on the foregoing substantial credi-
ble evidence in this case.
Judgment affirmed.
F e concur:
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