NO. 95-507
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W. Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John I. Petak, III, Deputy Public Defender,
Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Carol Schmidt, Assistant Attorney General,
Helena, Montana
Dennis Paxinos, Yellowstone County Attorney,
Daniel L. Schwarz, Deputy County Attorney,
Billings, Montana
Submitted on Briefs: April 25, 1996
Decided: July 1, 1996
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
After Joseph Burchett was charged by information in the
District Court for the Thirteenth Judicial District in Yellowstone
County with the offense of burglary, in violation of § 45-6-204,
MCA, he moved the District Court to suppress evidence seized during
a search of his residence. The District Court denied Burchett's
motion to suppress. Burchett pled guilty to the offense charged
and reserved his right to appeal the denial of his motion to
suppress. The District Court sentenced Burchett to a term of five
years under the custody and supervision of the Department of
Corrections. Burchett appeals the District Court's denial of his
motion to suppress. We affirm the District Court.
The issue on appeal is whether the District Court erred when
it denied Burchett's motion to suppress evidence seized during a
probation search.
FACTUAL BACKGROUND
In 1994, Joseph Burchett pled guilty to felony assault. As a
result of that plea, he was sentenced to two consecutive two-year
terms. That sentence was suspended; however, Burchett was placed
on probation pursuant to the rules and regulations of the State
Department of Probation and Parole. Among other requirements, the
rules provide that: "The probationer/parolee shall not own,
possess or be in control of any firearm, including black powder, or
deadly weapon as so defined by state or federal statute." Rule
20.7.1101(5), ARM. The rules also provide that: "Upon reasonable
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cause, the probation or parole client shall submit to a search of
their person, vehicle or residence by a probation/parole officer at
any time without a warrant." Rule 20.7.1101(7), ARM.
Burchett was an employee of Billings Crown Parts, a store
dealing in mining equipment parts and supply, from 1990 through
1994. During his employment with Crown Parts, Burchett possessed
a key to the store. In August 1994, Crown Parts terminated
Burchett after several unexcused absences.
During the Thanksgiving holiday in 1994, Crown Parts was
burglarized. Many items, including unique tools, were stolen from
a new storage room. Law enforcement suspected an "inside job"
because there was no sign of forced entry and the store employees
recalled locking the building at closing time.
On December 1, 1994, Crown Parts' manager contacted law
enforcement authorities and told them that he suspected Burchett
and another employee as the person or persons who may have been the
burglars because of their recent discharges and the fact that the
burglary appeared to be an "inside job." Law enforcement did not
make a search or arrest at that time.
On January 17, 1995, Crown Parts' manager summoned Deputy
Frank Dostal to Crown Parts. He informed Dostal that one of his
employees had been to Burchett's home on January 12, 1995, and had
observed not only the stolen parts, but also a large cache of
firearms. The employee reported this information to the manager,
but had insisted on remaining anonymous because he feared reprisal
from Burchett.
Upon receipt of this information, Dostal immediately contacted
Detective Hirschi of the Yellowstone County Sheriff's Department.
Detective Hirschi recalled that Burchett was on probation and
contacted Probation and Parole Officer Steven Hurd of the
Department of Corrections. Hurd, who remembered that Burchett's
prior two convictions had involved firearms, immediately organized
a search of Burchett's home. Probation and Parole Officer Pam
Bunke, Detective Hirschi, and Detective Ron Armstrong of the
sheriff's department assisted Hurd in the search.
Once at Burchett's home, Hurd knocked on the door, entered,
and told Burchett he was conducting a "parole search." The other
officers followed Hurd inside and Detective Hirschi secured the
premises. In the basement of Burchett's home, Hurd, Bunke, and
Armstrong discovered a large cache of military-type weapons and
explosives. Although the weapons looked authentic, they were later
discovered to be antique BB guns, "dummy" weapons, and explosives.
Upon discovery of the weapons, Hurd summoned Detective Hirschi
to the basement. As he walked through the kitchen on his way to
the basement, Hirschi discovered a boring bar and tool head, which
he believed matched a description of the some of the tools missing
from Crown Parts. After examining the weapons in the basement,
Hirschi obtained Burchett's consent to search the premises. During
the search, Hirschi discovered numerous items taken from Crown
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Parts. After Officer Hurd arrested Burchett for violation of his
probation and Detective Hirschi gave Burchett Miranda warnings,
Burchett admitted to stealing the Crown Parts' items found in his
possession.
On January 25, 1995, the Yellowstone County Attorney charged
Burchett in the Thirteenth Judicial District Court with the offense
of burglary. Burchett moved the District Court to suppress the
seized weapons and tools because he maintained that the probation
search conducted by Hurd violated his rights against unreasonable
search and seizure pursuant to the United States and Montana
Constitutions. The District Court denied Burchett's motion on
June 6, 1995.
DISCUSSION
Did the District Court err when it denied Burchett's motion to
suppress evidence seized during a probation search?
We review a district court's denial of a motion to suppress to
determine whether the court's findings of fact are clearly
erroneous and whether those findings were correctly applied as a
matter of law. Statev. Wilhms (1995), 273 Mont. 459, 462, 904 P.2d
1019, 1021.
In this case, the facts are undisputed. Prior to the District
Court's ruling on Burchett's motion to suppress, the Deputy
Yellowstone County Attorney and Burchett's attorney jointly
submitted stipulated facts. Based on those stipulated facts, the
District Court denied Burchett's motion to suppress. The court
concluded that:
Parole Officer Steven Hurd, after being advised by
Detective Hirschi of the report that [Burchett] had a
large cash [sic] of weapons in his residence had
reasonable cause to conduct a search of his residence to
ascertain whether or not the conditions of his parole
were being violated and the warrantless search conducted
by Officer Hurd with the assistance of the other officers
did not violate his right, protected by either the United
States Constitution or the Montana Constitution to be
secure in his home against unreasonable search and
seizure.
It is well established that a probation officer may search a
probationer's residence without a warrant as long as the officer
has reasonable cause for the search. Rule 20.7.1101(7), ARM; State
v. Burke (1988), 235 Mont. 165, 169, 766 P.2d 254, 256. The
"reasonable cause" standard is substantially less than the probable
cause standard required by the Fourth Amendment because of the
probationer's diminished expectation of privacy and because the
probation officer is in the best position to determine what level
of supervision is necessary to provide both rehabilitation of the
probationer and safety for society. Burke, 235 Mont. at 169, 171,
766 P.2d at 256, 257 (citing GrifJinv. Wisconsin (1987), 483 U.S. 868).
As we stated in Burke, 235 Mont. at 171, 766 P.2d at 257:
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.
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In this Case, however, Burchett does not contest the
reasonableness of the search of his residence, but rather asserts
that the search was a subterfuge by the police, who did not have
probable cause to perform a Fourth Amendment search and who,
therefore, involved Burchett's probation officer so that they could
"proceed under the cloak of the probation and parole search
clause. 'I Because Burchett maintains that the search was an attempt
by law enforcement to circumvent the warrant requirement, he
asserts that the District Court erred when it determined that the
search was legal pursuant to both the United States and Montana
Constitutions.
There is no evidence, however, that the search of Burchett's
residence was anything other than a probation and parole search.
Probation Officer Steven Hurd initiated and supervised the search
based on information he had received from a detective. The
information, if true, would have constituted a violation of the
terms of Burchett's probation. It was Hurd who knocked on
Burchett's door and informed him that he was performing a "parole
search" and it was Hurd who led the other officers into Burchett's
home to perform the search. Such a search by a probation officer
of his probationer is both lawful and constitutionally sound. state
v.Small (19891, 235 Mont. 309, 312, 767 P.2d 316, 318.
Law enforcement assistance does not render an otherwise lawful
probation search invalid. In fact, this Court has specifically
recognized that Montana's probation system would be rendered
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unworkable if police were not available to assist probation
officers. statev. &Won (1994), 269 Mont. 300, 889 P.2d 814; State v.
Hawkins (1989), 239 Mont. 404, 781 P.2d 259; Burke, 235 Mont. 165, 766
P.2d 254; SmaN, 235 Mont. 309, 767 P.2d 316. As we stated in Burke,
235 Mont. at 170, 766 P.2d at 257: 'I [WI e 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."
In this case, based on information he received from law
enforcement personnel, Probation Officer Kurd initiated and
organized a probation and parole search of Burchett's residence.
Hurd then carried out the search by enlisting the assistance of
another probation officer and two detectives who were employed by
the sheriff's department. The fact that Hurd received the
information that Burchett was in violation of the terms of his
probation from a police officer does not establish that the search
was a subterfuge. Rather, the cooperation demonstrated in this
case is exactly the type of cooperation and communication this
Court has encouraged between probation officers and law enforcement
personnel to aid in the effective administration of the probation
system. See Burke, 235 Mont. at 170, 766 P.2d at 257'; Hawkins, 239
Mont. at 411, 781 P.Zd at 263.
We hold that the District Court's conclusion that Probation
Officer Hurd conducted a legitimate probation search based upon
reasonable cause and that the search was not a subterfuge for the
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police is correct as a matter of law. We therefore affirm the
District Court's denial of Burchett's motion to suppress evidence
seized during a probation search.
Justices
CERTIFICATE OF SERVICE
:, I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
John I. Petak, III
Deputy Public Defender
270%1st Ave. No., Ste. 400
Billings, MT 59101
Hon. Joseph P. Mazurek, A.G.
Carol Schmidt, Assistant
Justice Bldg.
Helena, MT 59620
Dennis Paxinos, County Attorney
Daniel L. Schwarz, Deputy
P.O. Box 35025
Billings, MT 59107
MI’I’H
ED S- -----
CLERK OF THE SUPREME COURT
STATE OF MONTANA