*1 7, 16, 1977, resentencing February Argued November remanded for 15, reconsideration denied March. OREGON, Respondent, STATE OF FISHER, Appellant. MARILYN K. 8628, (No. 76-3698, CA 76-3697, No. CA 8630) 77-2284, CA 76-3699, CA No. No. consolidated) (Cases P2d 354 [465 ] A. Stephanie Smythe, Defender, Deputy Public Salem, argued cause With her on the appellant. *2 briefs was Babcock, D. Gary Defender, Public Salem.
John W. Burgess, General, Assistant Attorney Salem, him argued the cause for respondent. With on the brief were Redden, James A. General, Attorney and Al J. Laue, General, Solicitor Salem. Schwab,
Before Chief Judge, and Lee and Joseph, Judges.
JOSEPH, J.
JOSEPH, J. of ORS to four violations guilty pled On she 165.013, degree. in the first forgery and of her probation one of the conditions challenges "excessive.” sentence was three-year asserts a involved of checks charges forgery Three of the defendant’s The fourth involved totalling charge $373. totalling of a credit card to charge purchases use stolen claimed that At her sentencing $134.50. of lack of and each situation arose because her to three because of use.1 The court sentenced then her on charge, placed on a check years $33 the two check charges for five on other years years. restitution within four required $340 sus Defendant was subsequently given two-year and was charge sentence on the credit card pended that she restitu pay on on condition placed tion of within four a half years. $134.50 instances in placed probation, which defendant was *3 the court further as a condition of probation that "* * * the Defendant shall consent to the search of may operat-
her
she
be
person, premises,
any
or
vehicle
or
ing
any
day
night by police
at
time of the
or
officer
whether
probation
purpose
determining
officer for the
any drugs
possession
or not the Defendant has
in her
any
use of
drugs.”
to submit
contends that
requirement
to warrantless
search for
"was not
drugs
related to the offenses
she was convicted or to
of which
and,
further,
her rehabilitation”
the condition
un
violates her Fourth Amendment
right against
response
reasonable
searches. The state has made no
1
sentencing
At the
counsel said:
"* * *
primarily
I would submit that
these are situations that have
result,
supervision,
occurred when she’s not been under
and as a
in
part,
due to
involvement. It would be Defendant’s recommenda-
probationary period
tion that the
be instituted with strict
Defendant,
involvement,
any drug
as far as
her
as far as
* *
associates are concerned
brief,
to these
chosen to
having
contentions
its
138.050,
cannot,
that defendant
under
argue only
ORS
a condition of
on an
after a
challenge
probation
appeal
That
has never been
guilty plea.
question
squarely
court,
decided
this
but we have considered chal-
to conditions of
where no issue of our
lenges
probation
Fuller,
v.
so has been raised. See State
to do
12
power
rev den
v.
State
152,
1393,
(1973);
Or
504 P2d
App
(1973).
Allen,
rev den
455,
528,
12 Or
506 P2d
App
Gates,
State v.
84,
(1962),
230
P2d
605
properly
read, would only
an
where
preclude
imposition
of sentence was
suspended
probation granted.
Whether Gates is still
the law is doubtful. See ORS
138.050,
1977,
372, §
by Oregon
as amended
Laws
ch
State,
Stacey
1075,
14. In
ards the Fourth Amendment regulating enunciated in of a and a officer probationer Davis/Travis, rev State v. 412, 496 P2d 9 Or App (1972). In den middle which way for "a searching interests,” by saying, better satisfies all we began "a probationer is a free of all civil person possessed rights those except which are taken from him for away * * *” probationary purposes. say We went on to a court has "the broadest possible to formulate power appropriate case,” conditions in each (emphasis sup- *4 but noted that plied) the discretion is not granted shapeless. to attempt to necessity
In that case there was no that the limits on conditions circumscribe precisely fairly and it cannot be on may imposed probationers, [468] words used here. Culbertson posits be for the authority conditions must aid the objectives of Police officers are supervised probation. not, se, per Moreover, of the part probation process. Culbertson implies that where the conditions diminish constitutionally protected expectations of privacy they should be tested by the necessities making proba- tion effective. The broad terms of the condition here seem not to be in demonstrably aid of probation or required to make probation effective.
It might be argued that the infirmities in the condition imposed here could be met by interpretation, i.e., it should be read ifas it said something like "by police officer called to assist a officer or probation officer.” Such a reading might achieve the court’s intention, actual but to on the place defendant the risk of testing that interpretation would be funda unfair. mentally Justice should not await the event. Recognition of the competing interests the practi cal requirements of supervised could proper ly require consent to searches reasonable furtherance of probation supervision by her probation officer or by a officer police or assisting at acting the request or with the knowledge consent of the probation officer. contends that her three-year sentence
was I, §§ "excessive” under 16,3 Art 152 and Oregon Constitution and ORS 138.050.4 The sentence
2 Const, I, provides: § Or Art punishment "Laws for the of crime shall be founded on reformation, principles justice.” and not of vindictive 3 Const, I, § provides: Art required, imposed. "Excessive bail shall not be nor excessive fines inflicted, penalties punishments Cruel and unusual shall not be but all ** proportioned shall be to the offense judgment pertinent part: provided 138.050 the time of OES at may guilty an pleaded or no contest take "A defendant who has imposes judgment it an excessive from a where conviction * * *” excessive, punishment. fine or cruel unusual *5 was within au five-year the maximum sentence thorized find "exces nothing under ORS 165.013. We sive” about it.5 resentencing.
Remanded for LEE, J., dissenting.
At the
argued
time of
sentencing,
were
drugs
of the reason the offenses had been
part
committed
and
the court
close
urged
require
of the defendant’s own conten-
supervision.
light
tions that
lack of
use
precipi-
crimes,
tated her
condition of
the warrantless
search
was,
the sentence
related to
my
opinion,
the reformation of defendant and the
of the
protection
Mason,
so we
v.
5 Cal
public,
People
should affirm. Cf.
759, 762,
(1971),
3rd
97 Cal