Lead Opinion
[¶ 1] Jеremy Ballard appeals a district court judgment after he conditionally pled guilty to drug charges, reserving the right to challenge the denial of his motion to suppress evidence. He argues the district court should have suppressed evidence from his residence because the suspicion-less probationary search violated his constitutional rights against unreasonable searches and seizures. We reverse because the suspicionless search of an unsupervised probationer’s home was unreasonable under the Fourth Amendment of the United States Constitution.
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[¶ 2] In October 2013 Ballard pleaded guilty to several misdemeanor drug crimes. He was sentenced concurrently on each charge to 30 days incarceration, with 30 days suspended and two years unsupervised probation. One probation condition was that Ballard “submit to a search of his person, place and vehicle at the request of law enforcement without a warrant.” Another required him to “submit to random drug-testing without a warrant or probable cause, including but not limited to, urine analysis.”
[¶ 3] On March 28, 2014, around 7:30 p.m., a Divide County deputy sheriff saw Ballard driving a car with two passengers in Noonan, North Dakota. The deputy was aware Ballard and a passenger were on unsupervised probation and were subject to random drug test and search clauses as part of their probation. For these reasons alone, the deputy stopped Ballard’s car. The deputy testified at the preliminary hearing that hе stopped Bal
[¶ 4] The deputy next entered Ballard’s hom¿ without consent or a warrant. The deputy testified he was aware the house where Ballard lived was owned by a third person. After confirming Ballard lived at the residence, the deputy searched Ballard’s bedroom and found methamphetamine paraphernalia and a bag of a “clear crystalline substance” which later was confirmed by the state crime lab to be 0.41 grams of methamphetamine. Ballard was arrested and charged with possession of methamphetamine, a class C felony, and possession of paraphernalia, a class C felony.
[¶ 5] In July 2014 Ballard moved to suppress the evidence found in the search of his bedroom and to dismiss the charges against him, arguing-the State failed to demonstrate it had' reasonable suspicion for a probationary search. At the September 2014 hearing on the motion to suppress, neither party called witnesses; instead, they stipulated to the facts and testimony presented at the preliminary hearing. At the conclusion of the hearing, the district court denied Ballard’s suppression motion, stating:
“Well, what I do find factually is the facts are as testified to by Deputy Hubble, as reflected in the brief of the Defendant. And the conclusions that I draw from that testimony, that evidence, is that the search that was being conducted was a-suspicionless probationary search done pursuant to the probation that Mr. Ballard was under. And I concluded from also that information that the search was not done in an intimidating or harassing fashion. It.was done 'by a police officer, who I- understand under our case law can conduct ■... probationary searches. ■
“And therefore my reading of the Maurstad case and what it said about the U.S. Supreme Court Knights case, is that Maurstad is not precedent for this kind of search. And essentially where our state of the law is in North Dakota, as I understand it, is what the Court had previously said in the. Perbix case still applies, other than the Court does not take into consideration the motive for the search which I think was,the only thing overruled in Perbix. And,.therefore I will , deny the Suppression Motion.”
The district court issued a written order denying Ballard’s motion to suppress and dismiss charges. Ballard entered a conditional guilty plea, reserving the right to appeal the district court’s- denial of his motion to suppress the evidence seized.
.. II
[¶ 6] “A trial court’s disposition of a motion to suppress will not be reversed if, after conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court’s findings, and the decision is not contrary to the manifest wеight of the evidence.” State v. LaFromboise,
A
[¶7] Ballard argues the district court erred in denying his motion to suppress the evidence found during the suspi-cionless probationary search of his residence. Ballard claims the district court’s order denying his motion to suppress evidence and the criminal judgment should be reversed and he should be permitted to withdraw his conditional guilty plea. We agree.
[¶8] The Fourth Amendment to the United States Constitution and art. I, § 8, of the North Dakota Constitution protect individuals from unreasonable searches and seizures. “When reviewing the constitutionality of probationary searches, we have interpreted the North Dakota Constitution to provide the same protections for probationers as provided by the United States Constitution.” Maurstad,
[¶ 9] Ballard acknowledges probationary search clauses generally are permitted under N.D.C.C. § 12.1-32-07(4)(n). But he claims the suspicionless search of his residence under the statute does not pass Fourth Amendment muster. His argument calls for examination of North Dakota’s cases on probationary searches and the traditional Fourth Amendment analysis required by United States v. Knights,
[¶ 10] In State v. Schlosser,
[¶ 11] In determining whether Schlos-ser’s status as a probationer affected his Fourth Amendment rights, this Court examined United States Supreme Court and California cases and made two conclusions. First, a “defendant’s status as a probationer does affect his rights under the Fourth Amendment. The court has a responsibility to regulate a probationer’s activities to help in his rehabilitation and at thе same time to guard against continued criminal behavior.” Schlosser,
“The test applied by the court was that laid down in People v. Dominguez, 256Cal.App.2d 623, 64 Cal.Rptr. 290 , 293 (1967):
‘A condition of probation which (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality does not serve the statutory ends of probation and is invalid.’
“Applying this rule in reverse, [Schlos-set’s search] clause (3)(g) is a reasonable and valid exercise of the court’s authority under Section 12-53-13, N.D.C.C.”
Id. at 139.
[¶ 12] The Schlosser Court’s second conclusion was that “the search and seizure of the contraband from the defendant’s apartment by his parole officer without a search warrant was not unreasonable under the Fourth Amendment to the United States Constitution, and the contraband seized was admissible in a probation violation hearing.”
[¶ 13] This Court next decided State v. Perbix,
[¶ 14] The second issue in Perbix was whether the probationary search clause violated the Fourth Amendment. Id. at 18. The Fourth Amendment discussion started by noting, “Although the constitutional status of probationers has not been precisely delineated, case law clearly indicates that probationers are neither totally bereft of nor fully invested with constitutional protections.” This Court applied the four-part test from Schlosser and held:
“We conclude that conditions of probation requiring the probationer to submit to warrantless searches by probation officers or law enforcement officers, to the extent such searches contribute to the rehabilitation process; are not used as a subterfuge for criminal investigations; and are performed in a reasonable manner, are valid and not violative of the Fourth Amendment.”
Perbix, 331 N.W.2d at 21
[¶ 15] The Court in Perbix concluded:
“Because the search provision in the instant case related to Perbixfs prior criminal conduct, related to activity which is criminal in itself, and prohibited conduct which is reasonably related to future, criminality, under the test set forth in Schlosser, swpra, the search provision and the resultant _ search, which was performed in a reasonable manner, did not violate the defendant’s Fourth Amendment rights.”
[¶ 16] In State v. Vermilya,
“In State v. Perbix,331 N.W.2d 14 (N.D.1983), we held that a ‘search clause,’ as a condition of probation, which provided that the probationer must allow a search of his person, place of residence, or motor vehicle without a search warrant and without probable cause, did not violate the probationer’s Fourth Amendment right against unreasonable searches and seizures. We did not hold in Perbix, supra, that a search clause so restricting the probationer’s Fourth Amendment rights must be included by a tidal court as a condition of probation, nor did we hold that a search of the probationer’s residence could be conducted without warrant or probable cause in the absence of such a clause.”
Vermilya,
[¶ 17] After Vermilya, in 1987 the United States Supreme Court in Griffin v. Wisconsin affirmed a probation officer’s warrantless search of the supervised probationer’s home based on unsubstantiated information from a police detective.
[¶ 18] The Griffin opinion discusses the State’s interest in fostering the relationship between the probation officer and his • “client” so that the public and the probationer are protected.
“[I]t is both unrealistic and destructive of the whole object of the continuing probation relationship to insist upon the same degree of demonstrable reliability of particular items of supporting data, and upon the same degree of certainty of violation, as is required in other contexts. In some cases — especially those involving drugs or illegal weapons — the ' 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 thelight of its knowledge of his life, character, and circumstances.”
Id. at 879,
[¶ 19] State v. Raywalt,
[¶ 20] In State v. Smith,
[¶ 21] The Smith decision 'raises several concerns. First, the Fourth Amendment holding in Smith is dicta because the case was decided on the basis that reasonable suspicion supported the search.
[¶22] In 2001 the United States Supreme Court decided Knights. There, the Court held that a sheriff deputy’s warrant-less search of a probationer’s home was constitutional when based on reasonable
[¶ 23] Shortly after Knights, this Court decided State v. Maurstad,
“We hold the alleged purpose of a probationary search is irrelevant to the determination of its validity, and overrule the portion of Perbix that requires the purpose of a probationary search be considered when deciding the validity of a probationary search. We will no longer consider whether the search was conducted as a subterfuge for a criminal investigation.”
Id. at ¶ 31.
[¶ 24] Maurstad next claimed his probationary search must be based on reasonable suspicion to be valid. Id. at ¶23. Using the Perbix formulation of the test, the Maurstad Court stated,
“Since Perbix, challenges to the validity of a probationary search authorized by a condition of probation have been reviewed under the standard of whether the search was reasonable, including whether the search was performed in a reasonable manner, whether the search was a subterfuge for criminal investigation, and whether the search contributed to the probationer’s rehabilitation.”
Id. at ¶ 18. Specific to the Fourth Amendment, this Court stated Knights held a probationary search based on reasonable suspicion was constitutionally adequate, and Maurstad’s probation officer had reasonable suspicion that Maurstad was engaged in unlawful activity. Id. at ¶ 37. This Court further noted, “Our decision is based on the probation officer’s reasonable suspicion coupled with the search condition of Maurstad’s probation, and we need not decide whether a suspicionless search would satisfy the Fourth Amendment.” Id. at ¶ 38.
[IT 25] In 2006 the United States Supreme Court decided Samson v. California, where a police officer stopped a parolee on the street based on the officer’s mistaken belief the parolee was subjеct to an outstanding warrant.
[¶ 26] Like Knights, the Samson Court ignored the Griffin “special need” line of thought and also failed to mention the need for relaxing Fourth Amendment standards to foster the relationship between a parolee and his supervising officer. The Samson decision instead was confined to considering whether suspicion-less searches of parolees passed muster under traditional Fourth Amendment analysis.
[¶ 27] Most recently, this Court decided State v. Gonzalez,
[¶ 28] Here, the State urges us to continue employing our constrictive view of the Fourth Amendment by which we looked at the constitutional reasonableness of the search through the Schlosser and Perbix lens of whether the search was performed in a reasonable manner. However, that analysis effectively ignores the directive in Knights and Samson that we must employ traditional Fourth Amendment analysis to probationary search cases.
[¶ 29] The review of precedent from the United States Supreme Court and this Court demonstrates that the use of traditional Fourth Amendment analysis in Knights and Samson was different than the legal justification in Griffin. See Wayne R. LaFave, Search and Seizure § 10.10 (5th ed.2012). (Explaining that the Supreme Court’s shift from a “special needs” analysis in Griffin to a less-restrained “totality of the circumstances” balancing in Knights and Samson is “troublesome.”). In Griffin, the Court concluded, “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. That permissible degree is not unlimited....”
[¶ 30] North Dakota mentioned the Griffin “special need” concept in Smith and Mawrstad, but our analysis was said to follow the Knights traditional Fourth Amendment calculus. Mawrstad, at ¶¶ 26, 33. Under that holding, “The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined by assessing, on the one hand,
[¶31] Applying this test, the Knights Court stated, “We hold that the balance of these considerations requires no more than reasonable suspicion to conduct a search of this probationer’s house.”
[¶ 32] While the Court in Knights held reasonable suspicion rather than probable cause or a warrant allowed the house search, even for a supervised probationer the Court expressly did not authorize sus-picionless searches. To the contrary, the Court made clear “[w]e do not decide whether the probation condition so diminished, or completely eliminated, Knights’ reasonable expectation of privacy (or constituted consent) that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment.” Knights,
[¶33] In Samson, the- Court started where Knights left off, stating,
“Because the search at issue in Knights ■was predicated on both the probation search condition and reasonable suspicion, we did not reach the question whether the search would have been reasonable under the Fourth Amendment had it been solely predicated .upon the condition of probation. Our attention is directed to that question today, albeit in the context of a parolee search.”
[¶ 34] The Fourth Amendment test for the “reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Knights,
[¶35] Here, Ballard was an unsupervised probationer, not ■ a parolee like Knights. Ballard’s status as a probationer informs both sides of the Fourth Amendment balancing test. See Knights,
■ [¶ 36] In Samson a parolee’s suspicion-less search was deemed constitutional after the Court concluded the legitimate governmental interest exceeded the parolee’s expectation of privacy. The State’s interest was described as “substantial”:
“This Court has repeatedly acknowledged that a State has ‘an “overwhelming interest” ’ in supervising parolees because ‘ “parolees ... are more likely to commit future criminal offenses.”’ Pennsylvania Bd. of Probation and Parole, 524 U.S. [357], at 365,118 S.Ct. 2014 [141 L.Ed.2d 344 (1998) ] (explaining that the interest in cоmbating recidivism ‘is the very premise behind the system of close parole supervision’). Similarly, this Court has repeatedly acknowledged that a State’s interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment.”
[¶37] Penalties imposed' in criminal ■proceedings should bear the hallmark of proportionality. See Leo M. Romero, Punitive Damages, Criminal Punishment and Proportionality: The Importance of Legislative Limits, 41 Conn. L. Rev. 109, 118 (2008) (“Proportionality of punishment to an offense involves two judgments — how serious is the offense and how. much punishment does it deserve. In the case of criminal punishment, legislatures make these judgments.”). Legislative judgment, .as an expression of the public will, typically imposes more serious penalties on more serious crimes. Id. Presumably, the converse also is true, punishing less serious crimes less strictly. If the state’s interest in supervising parolees upon release from prison is “overwhelming,” the corollary is that the state’s interest in restraining the liberty of an unsupervised probationer is much less.
[¶38] The defendant’s expectation of privacy is the other interest to be weighed. In Samson, the parolee’s privacy interests were severely limited due to his'conditions of release from incarceration for being a felon in possession of a firearm.
[¶ 39] By contrast to Samson, Ballard pleaded guilty to two misdemeanor drug crimes. For one he was fined $200 and was sentenced to 180 days in jail with 150 days suspended. He received credit for pretrial time served in jail. Nothing indicates Ballard served time in jail after pleading guilty. He was placed on unsupervised probation, and his conditions while on probation were to undergo a chemical dependency evaluation, to be subject to warrantless searches and chemical testing. For the second crime, Ballard received a 90-day suspended jail sentence, was fined $725 and was placed on unsupervised probation.
[¶ 40] Ballard’s minimal unsupervised probation conditions stand in stark contrast to Samson’s extensive parole restraints, limitations and loss of liberty after prison time. Ballard pleaded guilty to two misdemeanors, as opposed to Samson’s felony conviction. Ballard was not incarcerated after his guilty pleas; Samson was paroled after time in prison. Ballard was not subject to supervision for either conviction. Samson was heavily supervised and his liberty was severely curtailed in virtually every respect important to a law-abiding person. Samson’s associational rights were severely curtailed. Samson’s travel rights were similarly limited. Samson was required to report his movements and changes in employment while Ballard had no similar constraints. Samson was subject to onerous and intrusive changes to his parole conditions, including psychiatric treatment or other special conditions. Ballard faced no such uncertainty and suffered no comparable loss of liberty.
[¶ 41] The United States Supreme Court described a criminal defendant’s Fourth Amendment privacy interests as a “continuum.” Samson,
[¶ 42] Because the suspicionless search of Ballard’s home was constitutionally unreasonable, the district court erred in denying his motion to suppress the fruits of the search. We reverse and remand to allow Ballard to withdraw his guilty plea.
Notes
. The pretext prong was discarded in Maur-stad,
Concurrence Opinion
concurring specialty-
[¶ 44] I agree with the majority that a criminal defendant’s Fourth Amendment privacy interests are weighed against the governmental interests on a continuum. I write separately to point out that this case is different than any of the cases cited by the majority or the dissenters because Ballard was placed on unsupervised probation. The government interest in restricting a defendant’s privacy is obviously less for a defendant on unsupervised probation than supervised probation. The difference should weigh into the reasonableness of the search.
[¶ 46] The court did not designate any department or community program to supervise Ballard. It stands to reason that the court Considered Ballard’s misdemean- or crimes to be low level and low risk to society by choosing to place him on unsupervised probation. The court did not designate law enforcement or any other community corrections program to supervise, monitor or enforce the terms of Ballard’s probation. The search clause used here required Ballard to “submit to a search of his person, place and vehicle at the request of law enforcement without a warrant.” The search term did not specifically include his “place of residence,” although arguably that is likely what the judge intended. The search term set no other parameters, such as the time of day or level of suspicion necessary for the search.
[¶ 47] When the court imposes a sentence to probation, the defendant must be given a certificate explicitly setting the conditions of release. N.D.C.C. § 12.1— 32-07(5). This search' term here did not explicitly include Ballard’s place of residence. Ballard has not challenged the stop of the vehicle or the search of his person or his vehicle. Neither of these searches produced any contraband. Under these circumstances, it was unreasonable for the police officer to search Ballard’s home without consent, without a warrant and without reasonable suspicion. Ballard’s place of residence was not even specifically listed in ’ the search clause. Any suspicion the officer may have had due to Ballard being with another low risk person on unsupervised’ probation should have dissipated when the search of the vehicle and his person turned up nothing. Based on the facts of this case, the search of Ballard’s home was constitutionally unreasonable.
’[¶ 48] Lisa Fair McEvers
Dissenting Opinion
dissenting.
[¶ 49] I respectfully dissent.
[¶ 50] Because the majority erroneously concludes the United States Constitution requires reasonable suspicion for probation searches, I dissent. The majority overreaches the United States Supreme Court decisions and nullifies our own well-established precedents, In doing so, it needlessly ties the hands of law enforcement, and negates the rehabilitative effects of appropriate probation conditions.
[¶ 51] ■ Further, even if reasonable suspicion -is the standard as declared by the majority, that is a question of law, which
I
[¶ 52] Ballard argues, and the majority concludes, that because the probationary search was conducted without a showing of reasonable suspicion or probable cause, the district court erred in denying his motion to suppress the evidence found during the probationary search of the residence at which he was staying. Ballard, therefore argues, and the majority concludes, the district court’s order denying his motion to suppress evidence should be reversed, together with the criminal judgment in this matter, and he should be, permitted to withdraw his conditional guilty plea.
. [¶ 53] This Court has. previously been clear, as we held in State v. Smith,
[¶ 54] The question of whether a war-rantless probationary search may be carried out without a showing of 'probable cause or reasonable suspicion is one that has divided other courts. See Jay M. Zit-ter, Annotation, Validity of Requirement That, as Condition of Probation, A Defendant Submit to Warrantless Searches,
[¶ 55] In 1987, the United States Supreme Court addressed the constitutionality of probationary searches in Griffin v. Wisconsin,
[¶ 56] In 2001, the United States Supreme Court once again addressed the constitutionality of probationary searches in United States v. Knights,
[¶ 57] In reviewing the decision of the Ninth Circuit, the United States Supreme Court examined the totality of the circumstances to decide whether the search of the probationer’s home fell within the Fourth Amendment, stating, “[T]he reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Knights,
; [¶ 58] Although the United States Supreme Court left open the question of whether the Fourth Amendment authorizes a search solely predicated upon the condition of probation, not reasonable suspicion, it did address, and answer in the affirmative, whether a parolee could be subjected to such a search without violating the Fourth Amendment. In Samson v. California, a parolee who was placed on parole following a conviction for. being a felon in possession of a firearm was stopped by a law enforcement officer and asked whether he had an outstanding parole warrant.
[¶ 59] In reviewing the decision of the California Court of Appeal, the United States Supreme Court noted the importance of the state’s interests in “integrating probationers back into the community and combating recidivism,” and employed a Fourth Amendment balancing test to weigh thоse interests against the parolee’s expectation of privacy. Id. at 849,
The touchstone of the Fourth Amendment is reasonableness, not individualized suspicion. Thus, while this Court’s jurisprudence has often recognized that “to accommodate public and private interests some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure,” United States v. Martinez-Fuerte,428 U.S. 543 , 560,96 S.Ct. 3074 ,49 L.Ed.2d 1116 (1976), we have.also recognized that the “Fourth Amendment imposes no irreducible requirement of such suspicion,” id. at 561,96 S.Ct. 3074 . Therefore, although this Court has only sanctioned suspicionless'searches in limited circumstances, namely, programmatic and special needs searches, we have never held that these are the only limited circumstances in which searches absent individualized suspicion could be “reasonable” under the Fourth Amendment. In light of California’s earnest concerns respecting recidivism, public safety, and reintegration of parolees into productive society, and because the object of the Fourth Amendment is reasonableness, our'decision today is far from remarkable. Nor, given our prior precedents and caveats, is it “unprecedented.”
Samson,
[¶ 60] Despite, the guidance granted by Samson in regard to suspicionless, war-rantless searches of parolees, state and federal courts around the nation have disagreed as to the constitutional parameters of suspicionless probationary searches. Compare Harrell v. State,
[¶ 61] Although the United States Court of Appeals for the Eighth Circuit has attempted to stake out the constitutional bounds of warrantless probationary searches, it has remained reluctant to decide whether the constitutionality of a war-rantless probationary search requires some quantum of individualized suspicion. See United States v. Becker,
[¶ 62] Although the ■ current Fourth Amendment jurisprudence governing state probationary searches can be described as being in a state of “considerable disarray,” U.S. v. Conway,
[¶ 63] In State v. Perbix,
[¶ 64] In Perbix, this Court held, under N.D.C.C. § 12.1-32-07, other law enforcement officers have the same authority as
[Conditions of probation requiring the probationer to submit to warrantless searches by probation officers or law enforcement officers, to the extent such searches contribute to the rehabilitation process; are not used as a subterfuge for criminal investigations; and are performed in a reasonable manner, are valid and not violative of the Fourth Amendment.
Perbix,
Searches of the residence and person of probátioners ... are not conducted only when there is suspicion of a crime.... [T]he primary purpose of such searches is to deter the commission of crime and to provide supervisors with information on the progress of their rehabilitative efforts. It is clear that a requirement that searches only be conducted when officers have “reasonable suspicion” or probable cause that a crime hаs been committed or that a condition of probation has been violated could completely undermine the purpose of the search condition.
Any search conducted pursuant to the search condition of probation must, of course, be carried out in a reasonable manner and only in furtherance of the purposes of probation. The-terms of the condition do not authorize any.“intimidating and harassing search to serve law enforcement ends totally unrelated” to either Owens’ conviction or rehabilitation. United States v. Consuelo-Gonzalez,521 F.2d at 265 . We thus find that on its face the condition of probation is constitutional and is capable of being lawfully applied. See United States v. Gordon,540 F.2d 452 (9th Cir.1976).
Id. at 21-22.
[¶ 65] After the Perbix décision, this Court reviewed challenges to the validity of probationary searches authorised by a condition of probation “under -the standard of whether the search was reasonable, including whether the search was performed in a reasonable manner, whether the search was a subterfuge for criminal investigation, and whether the search contributed to the probationer’s rehabilitation.” State v. Maurstadi
- [¶ 66] After the United States Supreme Court handed down its decision in Griffin v. Wisconsin,
Griffin does not specifically require reasonable suspicion; it requires the search to be reasonable under a state’s statute on probationer searches. Further, nothing in Griffin suggests the clear logic and holding of Perbix should be reversed.
Smith, at ¶ 18.
[¶ 67] After United States v. Knights,
[¶ 68] In addition to modifying the standard for reviewing the validity of probationary searches, Maurstad reaffirmed Perbix and declined to impose a requirement that such searches may be deemed valid only upon a showing of probable cause or reasonable suspicion. See Maurstad,
[¶ 69] Although a district court is granted the discretion to decide what probation conditions to impose on a probationer, under N.D.C.C. § 12.1-32-07, those conditions must be “reasonably necessary to ensure that the defendant will lead a law-abiding life or to assist the [probationer] to do so.” N.D.C.C. § 12.1-32-07(2). In the past, we have held searсh clauses which require a probationer to submit to warrantless searches of his or her person, place, and vehicle contribute to the rehabilitation process by ensuring the probationer cannot conceal criminality and lives a law-abiding life. See Perbix,
[¶ 70] In addition to contributing to Ballard’s rehabilitation process, the probationary search was conducted in a reasonable manner. In deciding whether similar searches have been conducted in a reasonable manner, we evaluate the manner, intensity, and scope of the search. See, e.g., Maurstad,
[¶71] To determine whether the probationary search conducted on Ballard was valid and not violative of the Fourth Amendment, we must begin “by recognizing that probation is not the same as freedom.” Perbix,
[¶ 72] In light of probationers5 diminished Fourth Amendment protections, a state’s operation of its probation system “presents ‘special needs’ beyond normal law enforcement that justify departure from the usual warrant and probable-cause requirements.” Griffin,
[¶ 73] It is well-established in North Dakota, a condition of probation will be deemed valid under the Fourth Amendment if it has a relationship to the crime of which the offender was convicted, relates to conduct which is in itself criminal, and forbids conduct reasonably related to future criminality.. See Perbix,
4. When imрosing a sentence to probation, probation in conjunction with imprisonment, or probation in conjunction with suspended execution or deferred imposition of sentence, the court may impose such conditions as it deems appropriate and may include any one or more of the following:
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1. Submit to a medical examination or other reasonable testing for the purpose of determining the defendant’s use of narcotics, marijuana, or other controlled substance whenever required by a probation officer.
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n. Submit the .defendant’s person, place of residence, or vehicle to search and seizure by a probation : officer at any time of the day or night, with or without a search warrant. -
N.D.C.C. § 12,l-32-07(4)(i) and (n). .Language similar to this was incorporated into Ballard’s conditions of probation. The conditions provided Ballard was required to submit “to a search of his person, place and vehicle at the request of law enforcement without a warrant” and “to random drug-testing without a warrant or probable cause, including but not limited to a urine analysis,”
[¶ 74] Although Ballard argues the search conducted under these probation
[¶ 75] In sum, although Ballard and the majority attempt to equate “reasonableness” with “reasonable grounds” and argue the lack of individualized suspicion of wrongdoing somehow, in and of itself, invalidates . the probationary search under the Fourth Amendment, the United States Supreme Court, as well as this Court, has made it abundantly clear this is not the proper analysis for determining the constitutional bounds of probationary searches. Because reasonableness, not individualized suspicion, is “[t]he touchstone .of the Fourth Amendment,” a probationary search authorized by state law does not have to be conducted on the basis of reasonable grounds to be considered “reasonable” under the Fourth Amendment. Samson v. California,
II
[¶76] Even if reasonable suspicion is the standard for a probationary search, as declared by the majority, it is a question of law which we review de novo.- It does not matter whether the officers or the district court thought or said there was reasonable suspicion. Based on the facts here, including the defendant’s drug-related criminal history and his association with another on probation for drug-related convictions, there was reasonable suspicion, and we should affirm.
[¶ 77] The majority, at ¶ 3, seems to erroneously believe that the subjective views of the officer are determinative:
The deputy testified at thé preliminary hearing that he stopped Ballard for the sole reason of performing a probation search and that he did not have any “reasonable articulabl[e] suspicion” of any drug-related or criminal activity when he made the stop.
[¶ 78] In Zimmerman v. North Dakota Dep’t óf Transp.,
We resolved a similar issue in State v. Smith).452 N.W.2d 86 , 89 (N.D.1990). In Smith, the officer, stopped a vehicle to investigate a possible open container violation. We held the stop was valid even if the officer’s articulated reason for the stop was inadequate, because the officer had made other observationswhich gave him reasonable cause to stop the vehicle to issue a citation for unlawful deposit of refuse. We explained:
“In the context of probable cause to arrest, courts have held that, except for pretextual arrests, when an officer makes an arrest which is properly-supported by probable cause to arrest for a certain offense, neither his subjective reliance on an offense for which there is no probable cause, nor his verbal announcement of the wrong offense, vitiates the arrest.
⅜ * * * * *
“The same rule applies to police investigatory practices short of formal arrest.”
Smith at 88-89. See also State v. Hawley,540 N.W.2d 390 , 392 (N.D.1995) (“the reasonable-and-articulable-suspi-cion standard is objective, and it does not hinge upon the subjective beliefs of the arresting officer.”).
In United States v. Cummins,920 F.2d 498 , 500-501 (8th Cir.1990), cert. denied,502 U.S. 962 ,112 S.Ct. 428 ,116 L.Ed.2d 448 (1991), the United States Court of Appeals for the Eighth Circuit used similar reasoning in upholding an investigative stop based on the driver’s failure to signal a right turn:
“Defendants argue that Officer Ber-nal’s initial stop of the green Volkswagen was pretextual, because his real reason for making the stop was based on his suspicions aroused by their strange behavior rather than on Cummins’ failure to signal a right turn. The defendants conclude that the stop was unreasonable under the Fourth Amendment. We disagree. When an officer observes a traffic offense — however minor — he has probable cause to stop the driver of the vehicle.... In our view, this otherwise valid stop does not become unreasonable merely bеcause the officer has intuitive suspicions that the occupants of the car are engaged in some sort of criminal activity. It is also our view that the stop remains valid even if the officer would have ignored the traffic violation but for his other suspicions.
⅝ ⅞? ⅜ ⅝ ⅛ ⅝
“[W]e see no reason for requiring an officer’s state of mind to perfectly match his legitimate actions. Such symmetry is not required by the Constitution. Accordingly, we hold that because Officer Bernal had probable cause to believe that a traffic violation had occurred, his initial stop of the car driven by Cummins was valid.”
The rationale of these cases is persuasive. Officer Sampers testified she observed Zimmerman commit a moving violation, and her observation gave her a valid basis to stop Zimmerman’s vehicle. The validity of the stop is not vitiated merely because Officer Sampers subjectively stopped the vehicle for another reason (i.e., Officer Gruebele told her to) which, in itself, may not have provided an adequate basis for the stop.
Id. at 482-83.
Ill
[¶ 79] I would affirm the district court judgment.
Dissenting Opinion
dissenting.
[¶ 81] I respectfully dissent. I agree with much of what Justice Sandstrom has written in dissent. I write specially to note that in light of the majority opinion, a trial court should henceforth not include in its sentence and probation order a condition of probation such as the one at issue