82 Ohio St. 3d 316 | Ohio | 1998
Lead Opinion
The issue presented in this case is whether the Fourth Amendment’s proscription of unreasonable searches and seizures is violated by a random search of the residence of a parolee who, as a condition of parole, consented to warrantless searches by parole officers at any time. For the reasons stated below, we conclude that such searches are constitutional.
The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” See, also, Section 14, Article I, Ohio Constitution.
. We must start with the basic principle that prisoners have forfeited many of their rights and privileges upon incarceration. Some of these privileges are regained upon parole, but the defendant is still subject to limitations because a convicted criminal has no inherent or constitutional right to be conditionally released before the expiration of a validly imposed sentence. Greenholtz v. Inmates of Nebraska Penal & Correctional Complex (1979), 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668, 675; State ex rel. Hattie v. Goldhardt (1994), 69 Ohio St.3d 123, 125, 630 N.E.2d 696, 698; State ex rel. Carrion v. Ohio Adult Parole Auth. (1998), 80 Ohio St.3d 637, 687 N.E.2d 759. Nonetheless, because the state has an interest in rehabilitation and reintegration of the prisoner into society, prisoners are often offered an opportunity for parole. The government is “offering to allow the prisoner to regain his or her freedom in return for a promise to abide by rules which, to a greater or lesser extent, limit the exercise of fundamental rights.” Carchedi v. Rhodes (S.D.Ohio 1982), 560 F.Supp. 1010, 1016.
The presence of the offender in the community creates the need for special supervision. Griffin v. Wisconsin (1987), 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709. Supervision “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.” Id. at 875, 107 S.Ct. at 3169, 97 L.Ed.2d at 718. “Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.” Morrissey v. Brewer (1972), 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494. “These restrictions 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 being at large. * * * These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed.” Griffin, 483 U.S. at 875, 107 S.Ct. at 3169, 97 L.Ed.2d at 718. See, also, Carchedi, 560 F.Supp. at 1015.
In this case, the defendant, a parolee, as part of the conditions of his parole, read and signed an Ohio Adult Parole Authority form entitled “Conditions of Supervision.” One of the conditions enumerated in the form required the defendant, if he chose to sign the form and be paroled, to “agree to a search without warrant of [his] person, [his] motor vehicle, or [his] place of residence by
The United States Supreme Court has already held that warrantless searches of parolees
However, Griffin did not deal with a search conducted subject to the parolee’s consent to be searched without a warrant “at any time.” Therefore, we must examine whether, as a condition of parole, a parolee can consent to random searches.
CONSENT TO SEARCH
Conditions of parole must be reasonably and necessarily related to the government’s interest in rehabilitating the parolee and in protecting society from recidivism. Carchedi, 560 F.Supp. 1010. We find that the consent-to-search condition at issue meets those twin goals. Consent searches are part of the standard investigatory techniques of law enforcement. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 231, 93 S.Ct. 2041, 2050, 36 L.Ed.2d 854, 865. “The
Being on parole with a consent-to-search condition is “akin to sitting under the Sword of Damocles: ‘ “ With knowledge he may be subject to a search by law enforcement officers at any time, [the parolee] will be less inclined to have narcotics or dangerous drugs in his possession. The purpose of an unexpected, unproved search of defendant is to ascertain whether he is complying with the terms of probation; to determine not only whether he disobeys the law, but also whether he obeys the law. Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given the defendant and his amenability to rehabilitation.” ’ ” (Emphasis added.) In re Anthony (1992), 4 Cal.App.4th 1000, 1002, 6 Cal.Rptr.2d 214, 215, fn. 1, quoting People v. Kern (1968), 264 Cal.App.2d 962, 965, 71 Cal.Rptr. 105, 107, and People v. Bravo (1987), 43 Cal.3d 600, 610, 238 Cal.Rptr. 282, 288, 738 P.2d 336, 342.
To require a warrant would decrease the deterrent effect of the supervisory relationship. Griffin, 483 U.S. at 878, 107 S.Ct. at 3171, 97 L.Ed.2d at 720. As the United States Supreme Court pointed out, “[t]he [parolee] would be assured that so long as his illegal (and perhaps socially dangerous) activities were sufficiently concealed as to give rise to no more than reasonable suspicion, they would go undetected and uncorrected.” Id. at 878, 107 S.Ct. at 3171, 97 L.Ed.2d at 720.
In State ex rel. Wright v. Ohio Adult Parole Auth. (1996), 75 Ohio St.3d 82, 661 N.E.2d 728, the defendant signed a similar condition of parole stating that his parole officer could search his person, vehicle, or residence at any time. The defendant cites a footnote in Wright stating that “a state parolee may be searched, pursuant to a consent provision in his parole terms, if his parole officer reasonably believes a search is appropriate.” Id. at 93, 661 N.E.2d at 737, fn. 1. The defendant construes this to mean that the search, though consented to, must still have a reasonable basis. However, we interpret the footnote to refer only to the officer’s subjective belief that a search was appropriate. The search issue in Wright was never appealed and not at issue. At issue was whether the fruits of that illegal search could nevertheless be used in a parole revocation hearing— and this court clearly held that they could. Wright, 75 Ohio St.3d 82, 661 N.E.2d 728, paragraph two of the syllabus.
Because the defendant agreed to the condition of supervision by signing it, thereby consenting to warrantless searches of his place of residence by a parole officer at any time, the defendant waived his Fourth Amendment protection against random searches. Therefore, evidence from that search is admissible.
The defendant testified at the suppression hearing that he had no choice but to sign a waiver as a condition of his parole, thereby implying that the waiver was not voluntary. We recognize that “[w]aivers of constitutional rights not only must be voluntary, but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States (1970), 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747, 756.
The defendant in this case voluntarily waived his Fourth Amendment rights when he signed the consent-to-search term allowing his parole officer to search his residence, vehicle, and person without a warrant at any time. The record reveals that the defendant received an explanation of what conditions would be imposed. In addition, the defendant testified that he read the form before he signed it. He testified that his signing the consent-to-search condition was not a free choice. While it is true that the defendant was presented with choosing either to consent to warrantless searches at any time or to remain incarcerated, the fact that the defendant must decide between two unattractive choices does not invalidate the waiver.
As the Carchedi court stated: “In deciding to accept the terms of a commutation and parole, a prisoner is forced to choose between the prospect of continued incarceration and the prospect of an agreement which may somehow restrict his or her constitutional rights. The government, in effect, is offering to allow the prisoner to regain his or her freedom in return for a promise to abide by rules which, to a greater or lesser extent, limit the exercise of fundamental rights. In this respect the transaction is no different from other agreements in which the government conditions its grant of a substantial benefit on the relinquishment of a known constitutional right.” Id., 560 F.Supp. at 1016.
Further, the defendant’s decision to sign the waiver was sufficiently knowing and intelligent. The terms of the condition are readily understandable. A commonsense reading of the condition is sufficient to provide the defendant with fair notice of what conduct is prohibited and what actions should be expected. See State v. Jones (1990), 49 Ohio St.3d 51, 53, 550 N.E.2d 469, 471. The plain language of the phrase “at any time” means just that: a parole officer •’may conduct random searches of the defendant’s person, vehicle, or residence without a warrant. Therefore, we find that the defendant’s decision to sign the Conditions of Supervision form was sufficiently voluntary, knowing, and intelligent. Brady, supra.
Therefore, we hold that a warrantless search performed pursuant to a condition of parole requiring a parolee to submit to random searches of his or her person, motor vehicle, or place of residence by a parole officer at any time is constitutional. We find that the trial court improperly excluded the evidence from the defendant’s criminal prosecution. Accordingly, we reverse the judgment of the court of appeals and remand the cause for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
. This court has already found that there is no material difference between probationers and parolees in the context of constitutional guarantees. State v. Roberts (1987), 32 Ohio St.3d 225, 229, 513 N.E.2d 720, 723.
. The Wisconsin regulations made it a violation of probation to refuse to consent to a home search, but the opinion never dealt with the effect of this regulation on a search.
. In Ohio, there was no statutory authority for a search of a parolee’s residence until November 9, 1995, four months after the defendant agreed to the conditions of his supervision. After the defendant signed the Conditions of Supervision form, but while he was on parole and before the search in question was conducted, the General Assembly enacted R.C. 2967.131(B). 146 Ohio Laws, Part I, 125. This statute requires field officers conducting a search to have reasonable grounds to believe that the releasee is not abiding by the law or otherwise is not complying with the terms and conditions of his or her conditional release. However, this statute did not exist when the defendant signed the Conditions of Supervision form. Accordingly, this statute cannot create a right that the defendant had already waived.
Dissenting Opinion
dissenting. I am thankful that the enactment of R.C. 2967.13(B) limits the scope of this decision. Under the statute, a parole officer may conduct a warrantless search of a parolee or his property if the officer has reasonable grounds to believe that the parolee is not abiding by the law or complying with the terms of his parole.
R.C. 2967.131(B) strikes a reasonable middle ground between random searches and searches made only upon probable cause. The statute recognizes the protections the Fourth Amendment gives to all citizens as well as the necessity of placing some restriction upon a parolee’s freedom. This court should have done the same.