STATE OF HAWAII, Plaintiff-Appellee, v. SHIRLEY LYNN FIELDS, Defendant-Appellant
NO. 9252
STATE OF HAWAII
AUGUST 14, 1984
LUM, C.J., NAKAMURA, PADGETT, HAYASHI AND WAKATSUKI, JJ.
Christopher L. Chamness, on the writ for petitioner.
Alvin T. Nagao, Deputy Attorney General (with him on answer to petition for writ: Tany S. Hong, Attorney General, Michael A. Lilly and John Campbell, Jr., Deputy Attorneys General, Charles F. Marsland, Jr., Prosecuting Attorney, and Peter C. K. Fong, Deputy Prosecuting Attorney) for State of Hawaii.
Vernon F. L. Char (Michael K. Kawahara with him on the brief; Damon, Key, Char & Bocken, of counsel) for amicus curiae.
A condition of probation imposed upon Shirley Lynn Fields makes her “subject at all times during the period of her probation to a warrantless search of her person, property and place of residence for illicit drugs and substances by any law enforcement officer including her probation officer.” She contends this portion of the sentence handed down by the Circuit Court of the First Circuit contravenes her constitutionally protected right to be free of unreasonable searches and seizures. The State of Hawaii maintains a “probationer cannot expect to have the same rights and privileges as an ordinary citizen” and the condition is reasonable in light of the circumstances surrounding its imposition. But we think it is not
I.
The pertinent facts are simple and uncontested. The defendant was indicted on five counts of Promoting a Dangerous Drug in the Second Degree in violation of Hawaii Revised Statutes (HRS)
Although she has not been subjected to a warrantless search pursuant to Condition 6(f), the defendant appeals from the sentence of the circuit court. Her right to seek appellate review, however, is challenged by the prosecuting attorney.
II.
The defendant seeks a declaration from this court that Condition 6(f) represents an undue infringement of her constitutional right to be free of unreasonable searches and seizures. But her request for review comes before any effort by the government to exploit the particular condition of probation. We are, of course, reminded by the prosecuting attorney that the self-imposed rules governing the exercise of our statutory jurisdiction militate against a present review of the circuit court‘s order. The contention is not without merit; yet, we think there is reason for us to act here.
A.
While the courts of the State of Hawaii are not bound by a “case or controversy” requirement,4 we nonetheless recognize that the ” ‘prudential rules’ of judicial self-governance ‘founded in concern about the proper — and properly limited — role of courts in a democratic society’ are always of relevant concern.” Life of the Land v. Land Use Commission, 63 Haw. 166, 172, 623 P.2d 431, 438 (1981) (citations omitted). For “even in the absence of constitutional restrictions, courts [must] still carefully weigh the wisdom, efficacy, and timeliness of an exercise of their power before acting.” Id.
“[R]ipeness is peculiarly a question of timing,” Regional Rail Reorganization Act Cases, 419 U.S. 102, 140 (1974), and the relevant prudential rule deals with ” ‘[p]roblems of prematurity and abstractness’ that may prevent adjudication in all but the exceptional case. Socialist Labor Party v. Gilligan, 406 U.S. 583, 588 (1972).” Buckley v. Valeo, 424 U.S. 1, 114 (1976). A ruling that an
B.
1.
If the foregoing precepts were strictly applied to the situation at hand, we could only conclude that problems of prematurity preclude an adjudication of the issue raised on appeal; for at the moment, Condition 6(f) merely poses a nascent threat to Shirley Lynn Fields. And until a police or probation officer conducts a warrantless search of her person, property, or place of residence, we would be hard put to say the dispute between the State and the defendant has ripened into a justiciable controversy. Other important considerations nevertheless lead us to believe we are confronted with the exceptional case demanding attention in advance of an actual attempt by the government to enforce the condition.
Condition 6(f), we said, gives an appearance of stripping the defendant of protection against invasions of privacy by the government. To be sure, “there is considerable authority supporting the proposition that probationers may lawfully be subjected to searches which, absent their probation status, would be deemed unlawful because of the absence of probable cause or a search warrant or both.” 3 W. LaFave, Search and Seizure § 10.10, at 422 (1978) (citations omitted). Still, we were recently instructed by the Supreme Court that the deprivation of a fundamental right may not be lightly regarded, even when exacted as part of the price of conditional release. See Minnesota v. Murphy, 465 U.S. 420, 104 S. Ct. 1136, 1142 (1984) (“[a] defendant does not lose [his Fifth Amendment] protection by reason of his conviction of a crime” and placement on probation).
The condition in question is neither mandated nor expressly sanctioned by the statutory provisions governing the suspension of sentence and the grant of probation. See
We have been charged with “the general superintendence of all courts of inferior jurisdiction” of the State of Hawaii.
Yet in our view the situation at hand represents the rare case where it “would not be in the public interest” to compel the issue “to wend its way through the appellate process” after the sentencing court‘s order has been enforced, id. at 227, 580 P.2d at 53; for we have cause to believe the particular order has been adopted as a “standard condition of probation” affecting a sizeable group of
III.
A.
“Probation is a judicial act whereby a convicted criminal offender is released into the community under the supervision of a probation officer, in lieu of incarceration.” Note, Fourth Amendment Limitations on Probation and Parole Supervision, 1976 Duke L.J. 71, 71 n.1. “The essence of probation is the condition — a judicially imposed restriction upon the convict‘s actions after release.” Note, Judicial Review of Probation Conditions, 67 Colum. L. Rev. 181, 181 (1967) (footnote omitted) (emphasis in original). And “probationers, like parolees and prisoners, properly are subject to limitations from which ordinary persons are free.” United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 1975).
While several conditions to which an offender may be subjected have been prescribed by statute, the legislature has acknowledged that judicial discretion in fashioning others may contribute to the effectiveness of probation. See
Here, the release of Shirley Lynn Fields has been conditioned upon her submission at all times to warrantless searches for illicit drugs by any law enforcement officer. This may well serve one of the twin goals of probation, the protection of the public. Still, the pertinent legislative command is that the condition further the other objective, the rehabilitation of the offender, and that it be neither too restrictive of the offender‘s liberty nor incompatible with his freedom or conscience. We doubt that a near-total surrender of privacy could be reasonably related to rehabilitation, and we think the deprivation would be inconsistent with even the limited freedom afforded someone who but for the grace of the sentencing court would be in prison.
There unquestionably is a difference “between correctional supervision which seeks to restore a released offender to society through rehabilitation, and supervision which seeks to investigate and prosecute criminal activity.” 1976 Duke L.J. supra, at 94. The police officer‘s principal role in our criminal justice scheme is related to the investigation and prosecution of criminal activity, and any search he may conduct of Shirley Lynn Fields would probably be “totally unrelated to either her prior conviction or her
Under the circumstances the relationship between warrantless searches at the whim of police officers and the rehabilitation of the probationer is tenuous at best. Indiscriminate invasions of privacy, in our opinion, would be unlikely to foster respect for the law; they could well be “destructive of the rehabilitative process.” W. LaFave, supra, at 446. At any rate, they would be “unduly restrictive of [her] liberty or incompatible with [her] freedom or conscience.”
B.
After convicting Shirley Lynn Fields of three counts of Promoting a Dangerous Drug and finding she was “in need of the supervision, guidance, assistance, or direction that the probation service can provide,”
The probation officer has been described as “a social therapist in an authoritative setting.” Newman, Concepts of Treatment in Probation and Parole Supervision, 25 Fed. Prob. 11, 16 (Mar. 1961). The system he serves demands that he be a helper, a monitor, and an enforcer; it instructs him to aid and guide an individual who has displayed antisocial and criminal behavior, to evaluate and report on his progress toward integration into the community, and to curb his criminal tendencies.9 The desired rehabilitation of the subject of therapy is largely dependent upon the therapist‘s ability to gain “a thorough understanding of the [probationer] and his environment, including his personal habits, his relationships with other persons, and what he is doing, both at home and outside it.” Latta v. Fitzharris, 521 F.2d 246, 249 (9th Cir. 1975). In sum, the system gives the probation officer “a special and unique interest in invading the [probationer‘s] privacy.” Id.
His reason for intruding into the private world of the probationer, unlike that of the police officer, is her demonstrated need for correctional supervision, which she presumably accepted as the preferred alternative to imprisonment. Moreover, what has been expressly authorized as a correctional tool at the disposal of the correctional supervisor are quests for dangerous drugs and substances. Given her known proclivity for involvement in the trafficking of illicit drugs, we encounter no difficulty in finding the necessary connection between such searches and the rehabilitation of Shirley Lynn Fields.
Our inquiry, however, does not end here, for the relevant statu-
IV.
The question remaining is whether warrantless searches of the person, property, and place of residence of Shirley Lynn Fields for dangerous drugs and substances would be unreasonable even when conducted by the correctional supervisor responsible for her guidance during the probationary term. We believe they would be, unless he is able to point to specific and articulable facts giving rise to a reasonable suspicion that illicit drugs are concealed on the person, in the property, or at the place of residence of the probationer.
A.
If anything is settled in the law of search and seizure, it is that a search without a warrant issued upon probable cause is unreasonable per se, “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967); State v. Jenkins, 62 Haw. 660, 662, 619 P.2d 108, 110 (1980). Yet as we noted, “there is considerable authority supporting the proposition that probationers may lawfully be subjected to searches which, absent their probation status, would be deemed unlawful because of the absence of probable cause or a search warrant or both.” W. LaFave, supra, at 422.
In approving the searches, “[s]ome courts stress that probation is an ‘act of grace,’ from which it is concluded that such beneficence may be attended by whatever restrictions upon privacy the government may deem appropriate.” W. LaFave, supra, at 423. “Or... it is frequently concluded that searches of [probationers] are proper because consented to as a part of the ‘contract’ of release.” Id. Granted that Shirley Lynn Fields may have been released rather than incarcerated as “an act of grace” and she may have “consented” to being searched at all times, searches limited only by
“[T]he liberty of a parolee [or a probationer], although indeterminate, includes many of the core values of unqualified liberty,” Morrissey v. Brewer, 408 U.S. at 482, and “[a] probationer, like the parolee, has the right to enjoy a significant degree of privacy.” United States v. Consuelo-Gonzalez, 521 F.2d at 265. Assuming the circuit court deemed the probationer‘s release “an act of grace” and her freedom a privilege, “[b]y whatever name, the liberty is valuable” and entitled to constitutional protection. Morrissey v. Brewer, 408 U.S. at 482. If the court proceeded on consent, it obviously was secured in a “situation... instinct with coercion — albeit colorably lawful coercion. Where there is coercion there cannot be consent.” Bumper v. North Carolina, 391 U.S. 543, 550 (1968). Consequently, a warrantless search must meet a test of reasonableness even when carried out in fulfillment of a condition of probation.
B.
“[T]he right to privacy embodied in the Fourth Amendment is enforceable against the States,” Mapp v. Ohio, 367 U.S. 643, 660 (1961), and we would ordinarily be guided by the pronouncements of the Supreme Court in deciding what may be reasonable in the circumstances. If the Court has spoken on the particular question before us, it has not done so in clear and commanding tones. But the Constitution of the State of Hawaii explicitly protects “the people... against unreasonable searches, seizures and invasions of privacy.”10 And “as the ultimate judicial tribunal in this state, this court has final, unreviewable authority to interpret and enforce the Hawaii Constitution.” State v. Kaluna, 55 Haw. 361, 369, 520 P.2d 51, 58 (1974).
We said in Kaluna that “each case of search and seizure without a warrant must turn on its own facts, and that each proffered
In addition to the general governmental interest above, the means selected to promote rehabilitation gives the probation officer “a special and unique interest in invading the [probationer‘s] privacy,” Latta v. Fitzharris, 521 F.2d at 249. In contrast, the grant of probationary status presupposes at least a partial surrender of privacy; since close supervision by a correctional supervisor, as we have seen, is the mainspring of probation. When the substantial governmental interest in the success of a program designed to rehabilitate a convicted criminal is weighed against her diminished expectation of privacy, we would have to agree there is reason here for permitting searches for illicit drugs without a warrant issued upon probable cause. This is not to say the offender‘s interest in privacy is insignificant and that she may be subjected to searches at the supervisor‘s caprice or fancy. The particular intrusion must still be justified by a reasonable suspicion supportable by specific and articulable facts that dangerous drugs and substances are being secreted by the probationer.11
The sentence is vacated and the case is remanded for the imposition of a sentence not inconsistent with this opinion.12
Anson O. Rego (Joanne M. Lanham with him on reply brief; Anson O. Rego, A Law Corporation, of counsel) for appellant.
Shirley Smith (Arthur E. Ross on the brief), Deputy Prosecuting Attorneys, for appellee.
I concur in the result and in parts I through III of the opinion. I cannot agree with part IV for the reason that in my view it is pure obiter dictum.
No probation condition limited to searches by appellant‘s correctional supervisor has been laid down, and, ergo, no search pursuant to such a condition has yet occurred. Yet, in the absence of any factual situation whatever, the opinion, in part IV, formulates a constitutional test for such searches. That test, the opinion says, is whether the correctional supervisor is able to point to “specific and articulable facts giving rise to a reasonable suspicion” that illicit drugs are concealed on the person, in the property or at the residence of the probationer, as distinguished from the test of “probable cause” necessary to support a warrant. Constitutional issues should not be decided in a vacuum. Much less should new constitutional tests be adopted in a vacuum. Yet that is what the opinion does.
Absent a specific factual situation to test that new constitutional standard against, I do not know what the standard means, and, I submit, neither will anyone else. A myriad of different factual situations involving searches by a correctional supervisor may arise. For example, I harbor grave doubts as to whether it is constitutionally impermissible to require a probationer, convicted of a drug offense, to submit to a warrantless search of his or her person by a correctional supervisor, as a matter of routine, at any scheduled meeting with such a supervisor, but the opinion would forbid this. I believe we should have a concrete factual situation before us before we undertake to lay down a constitutional standard with respect to searches of a probationer by a correctional supervisor pursuant to a probation condition. I therefore cannot agree with part IV, not because I necessarily view the legal pronouncements therein as wrong, but because, without objective facts to test them against, I cannot say that they are either right or wrong.