*1 ruling majori- will wonder at such as the
ty makes this date. considered, things being
All wholly agree misplacing unable that the proof in a trial can ever burden civil error, imperative harmless I find it that the decision below be vacated and the cause This, hearing. remanded for another knowledgeable those who are in this area law, may unnecessary seem provides the law that Chilton entitled to statutory in start anew where the once-a- year only requirement is not a bar. How-
ever, help prejudicial it cannot
Chilton that a series of efforts over five years up build have served to a record which, closely unless I examined as
done, continuing judicial demonstrates a de- kept termination that he in must secure confinement, notwithstanding, over those years, five following: putting error trial, jury him to a attorney error one believing inapplicable; 18-214 was error § relying upon evidence, reports not in subject the authors thereof not to cross-ex- amination; declaring error in as harmless placing the erroneous of the burden of proof; and profession- evidence who work daily
als with him on a basis that is ready proper for a conditional release. Trimming George
Alan E. M. Par- Boise, (argued), appellant. ham for Jones, Gen., Lynn Thomas, Atty. Jim E. Gen., Minert, Deputy Sol. R. David Boise, Atty. (argued), respondent. Gen. SHEPARD, Chief Justice. Idaho, Plaintiff-Respondent, STATE of appeal defendant-appellant This is an Gawron, grand from a conviction of theft GAWRON, Timothy by possession property. of stolen I.C. Defendant-Appellant. 18-2403(4) ques- and 18-2407. The sole §§ presented legality of a warrant- No. 16235. pursuant less search to the terms of Gaw- Idaho. uphold legality ron’s the search and affirm conviction. March 1987. 1984, Hartgrove, In April a detective in Rehearing May Denied Department, the Boise Police was investi- gating burglaries recent the Boise area silver, gold in which coins and jewelry had been pawn stolen. routine check of tick- appeared ets indicated that name *2 pawning Following on several tickets related to jury, a trial to a Gawron was jewelry, gold coins and melted-down bars. guilty grand by possession found theft These items matched those taken property, judgment of stolen of convic- burglaries. investigation Further of Gaw- entered, tion was and a sentence ron revealed that he was on and years. of an indeterminate term of seven unemployed. stated, question As heretofore the sole Thereafter, Hartgrove called the Office presented validity of the warrantless Parole, of Probation and and since Gaw- search, and the admission into evidence of working ron’s officer was not during the items seized those searches. day, spoke that to Senior Probation and 1981, suspending The order of October Housley, informing Parole him Officer receiving Gawron’s then sentence for and investigation pawn of the tickets. disposing property, unequivocally of stolen Housley confirmed that Gawron was then agrees any states and that Gawron waives on and had been convicted of right constitutional to be free from such a receiving disposing property, and of stolen 19-2601(4)pro- warrantless search. I.C. § placed from which conviction he had been may placed upon vides that conditions probation in on October 1981. One of the probation: defendant’s probation imposed terms of on Gawron stated: (4) Suspend judg- of the execution hereby agree
That
any
during
does
and
the first 120
at
time
person,
consent to the
of his
auto-
days
custody of
of a sentence to the
mobile,
property,
any
real
and
other
correction, during
state board of
which
property
any place by
time and at
jurisdiction
time
court shall retain
officer,
enforcement
law
jurisdiction
over
defendant
cer,
officer,
and does waive
shall be entered on the order of the com-
his constitutional
to be free from
mitment,
place
and
the defendant on
such searches.
bation under such terms and conditions
That order indicated that Gawron had certi-
necessary
expedient,
it deems
and
not-
reading
understanding
fied to a
withstanding
of the court
that the term
order,
accepted
terms of the
and that he
during which such defendant was con-
signed
those terms and
the order.
expired;
victed or sentenced
Thereafter,
upon application of the state board of
Housley decided that under
shown,
good
cause
the circumstances a search
correction and
warranted,
Housley,
period
residence was
ac-
under which
court
extend
companied by Hartgrove and two other of-
jurisdiction of the defendant an
it retains
ficers, went to Gawron’s residence. Gaw-
sixty days.
additional
Housley
ron was not home at the
Kerns,
People
71 Cal.
As stated
marijuana
conducted a search and found a
(1968):
Cal.App.2d 962
Rptr.
floor,
bong in the bathroom of the main
probation that defend-
The condition
proceeded
ga-
and thereafter
to search the
person by
to a search
ant consent
rage.
ga-
Housley broke the lock on the
officer without a search
law enforcement
enter,
rage to
and therein found a locked
warrant,
procedure
supervisorial
is a
re-
box,
tool
the lock to
was also broken
to his reformation and rehabilita-
lated
by Housley.
Inside the box were found
light
the offense of which
tion in
coins,
books, stamps, stamp
coin
numerous
purpose
was convicted.
...
of an
books,
jewelry,
which were
collection
unexpected, unprovoked search of de-
burglaries
proceeds
determined to be
fendant
is to ascertain whether he is
investigating. There-
Hartgrove
complying
probation;
with his terms of
after,
a search warrant was obtained
whether
to determine
he diso-
pursuant to
search was conducted
another
law,
beys
obeys
but also whether he
warrant,
being
evidence
with additional
Information
the law.
obtained under
seized.
such
Zap
circumstances would afford a valu- We hold
the decision
v. United
States,
analogous
bar,
able measure of the effectiveness of the
supra,
the case at
given
supervision
validity
upheld
defendant
for it
of an advance
*3
amenability to rehabilitation.
waiver of fourth amendment
which
provisions
are akin to
of
the
the
Bushman,
767,
See
In re
1
also
Cal.3d
83
agreement
Zap,
in the instant case.
In
a
375,
Cal.Rptr.
(1970)
BISTLINE, Justice, dissenting.
theory,
presumes
The waiver
probation by
consent to the terms of
would affirm the conviction
defendant, presents consent in more of a
uphold
Gawron and
nominal than real sense. The damoclean
expediency
embarking upon
imprisonment
choice of
rarely
validity
discussion of the
of his “volun-
chosen over
even if the
tary
intelligent”
waiver. Left with
accept
tioner must
severe inroads on
cursory
discussion is the
Rights.
tections afforded
the Bill of
question
condition
itself and
of its “rea-
Ariz.
State v.
[115
131]
sonable” intrusion
Gawron’s Fourth
(Ariz.Ct.App.1976).1
*4
rights.
provision
pro-
Amendment
The
goes
beyond being
bation here at issue
far
recognized
Fogarty
court next
that
rights.
a reasonable intrusion of Gawron’s
dealing
with inviolable constitutional
rights,
conditions must come
Strangely,
majority
has chosen a
“special scrutiny.”
duty
under a
This
opposite
path in a direction
to the recent
scrutinize was noted in United States v.
opinion
supreme
well-reasoned
court
Consuelo-Gonzalez,
(9th
845
upholds
provision
condition
on
Consuelo-
[T]he
literally permits
potential
Gonzalez
searches which
for
the same
abuse and is
creates
possibly
not
could
serve the ends of
the same broad intrusion on Gawron’s
example,
intimidating
bation. For
Oregon
rights.
Fourth Amendment
harassing
serve law en-
Fogarty
the same result as
in con-
reached
totally
forcement ends
to ei-
unrelated
sidering such “search”
State
conditions.
v.
ther her
or her
conviction
rehabili- Fisher,
Or.App.
(1978);
The search here permit just probation” The “ends of which Consue- cer “lawful authorities” to lo-Gonzalez refers to are ultimate ref- home, probationer’s per- search the ormation and son, vehicle, or his and in Any tioner. diminution Fourth Amend- manner, any place and no other justified only legit- by the *5 caprice reason than the mere or whim process. imate probation demands the whomever decided to conduct a search. the protection These demands include (Tex.App.1976), In Tamez v. State 534 society but should not involve law enforce- S.W.2d the Court struck down a probation ment or officers aviz viz provision warrantless search in essen- all process. in probation officers the tials similar to the one under in attack police part of probation are not the [T]he holding provi- this case. In the search process. responsibil They have no direct in scope sion too broad in thus viola- ity supervise probation or to facilitate probationer’s tion of the Fourth Amend- the defendant. Their rights (as well aas of the violation primary responsibility is to ferret out Constitution) Texas aptly the court char- the prosecute crime offender. In acterized its effect: negotiations give plea the and take of the “The condition literally would attorney necessarily district not does permit searches, probable without negoti rehabilitation in mind when cause, suspicion, or proba- even ating probation. may the terms of He person, tioner’s or vehicle home at simply attempting be to facilitate future night, day by any peace or offi- investigation of crimes. State Hova cer, which possibly could not serve the ter, (Or. P.2d Or.App. example, ends For an Ct.App.1978). intimidating harassing search to majority probationer notes that the totally serve law enforcement ends un- but, expectation privacy, has a reduced related to either his conviction or court, Fogarty as observed the there is his rehabilitation is authorized the rights overriding an need to balance the probationary condition.” 534 S.W.2d against society probationer’s and the third at 692. parties’ expectation privacy. The unlim- say We can no less about the effect of probation ited bounds of Gawron’s the provision imposed warrantless search inevitably to an tion could lead invasion of case; permitted it this law en- parties privacy the of third associated with forcement official to search the defend- Gawron, relatives, they family, be or ant, home, vehicle, or whenever friends: provision the mood struck. Such a is too “respectable can great infringement assume a the position” give if rights tioner’s under we can fair considera- the federal and state constitutions. Fogarty, supra, rights par- tion to the of innocent third P.2d at 149. may caught up ties who be the web of violation, port and the will probationary system probationary or the be
the
stripped
not
revoked.2
process.
people are
These
right
privacy
they
of their
because
Both
mentioned
from
forms differ
may
living
be
with
majority
the one
selected
proba
While
may
living
with them.
establishing any
majority’s
or no limitation
privacy may
justifi
tioner’s
on the role of those outside the
ably
while on
diminished
process,
police.
recog-
namely the
We all
people are not
dimin
of these
so
nize, as
that infor-
did
We,
courts,
as the
ished.
as well
trial
originate
leading
mation
to the search
in our duties if we
derelict
points
police.
If this information
rights of
in
these
failed
consider
suspected
violations,
then the
they
swept
are not
or,
nocent others so
designated,
if so
a law
officer
process.
Fo
away
probationary
enforcement officer
supra,
at 151.
garty,
610 P.2d
probationer.
cer’s
can search the
direction
majority’s
This
removed
“carte
majority’s language
give
fails to
even
authority”
probation-
blanche
to search the
consideration,
slightest
nay,
men-
even
or not.
er whether related to
of,
probation con-
the effect Gawron’s
P.2d
There is
Page, supra, 564
at 85.
See
parties.
innocent
ditions
have on
third
com-
opinion
much
acceptable scope for a
consent
public
mend as erudite wisdom which
either limited to
search condition should be
should embrace.
en-
himself
a law
officer
conflict
An
concern here is the
additional
direction of the
*6
forcement officer at the
agree-
orders and
of
various
example
given
An
was
probation officer.
sign
required
to
ments
Gawron
v. Page:
State
Suspending
an “Order
which included both
to a search of
That
defendant submit
and a
of Probation”
Sentence and Order
in a
person
property
her
or
conducted
State Board of Correction
“State of Idaho
reasonable
at a reasonable time
manner
disturbing
Agreement
of Probation.”
by probation officer or
officer at
a
apparent
be-
conflict
situation exists
officer
his direction where
special con-
They both list
tween the two.
grounds to
that a
has reasonable
believe
ditions for
or is
of
occurred
violation
the troublesome
court order contains
Page, supra,
to
564 P.2d at
about
occur.
The State of
previously.
tion discussed
85.
the look of a standardized
Idaho form has
acceptable
ver-
form would
Another
special
section for
an add-on
form but also
signed
State of
sion found
to
conditions,
incorrectly photocopied
here
Agree-
of
Idaho State Board
Correction
aside,
errors
“cial
Clerical
conditions.”
provided: “4.
ment of Probation which
ambiguity.
of
Which
problem
perceive
I
search,
seizure and chemical
Consent
of
the conditions
of the two controls
testing
request
at the
of his
know,
probationer to
tion? How
possession
cer for
or use
controlled sub-
knowledge of a
up to the
meaning
rise
stances, possession
evi-
of contraband or
person, with exactitude
legally trained
crime,
danger-
possession
subjected?
and
Pro-
dence
he is
to which
restrictions
deadly
precisely
ade-
weapon.”
Gawron has
fail to
and
ous
bation terms
and,
probationer of his
agreed
search
if Gaw-
quately
to consent to a
inform
good faith
cannot in
upon
request
restrictions
refuses to
consent
and
ron
so
also,
reasonable,
is
missing,
and
officer,
can
called
then Gawron
forewarn-
requirement
governmental
re-
officer
expect that the
of a
at will on the basis
of a car and
substantially
and
offen-
This is
less severe
less
outright
previous
consent
be searched
slap
having
enforcement officers
sive than
law
Gawrons)
any place.
(and
time and
over the hood
all other
Gawron
Noting
ambiguity
vagueness
ing.
COMPANY,
IDS LIFE
INSURANCE
orders
created
overkill
Corporation;
Minnesota
and Investors
Shepard,
agreements,
and
then that which
Services,
Inc.,
Diversified
a Delaware
J.,
ago
pertinent,
years
wrote
few
Plaintiffs,
Corporation,
reading
from
observed
Harriss,
v.
347 U.S.
United States
74 S.Ct.
reasoning nor out Groshong Amy Groshong, mi distinguishing features the cases be- Timothy Groshong nor children of P. fore those other courts the one Ruby Groshong, Cross-Defendants- Appellants. presented to us. GROSHONG,
Joanne V. claimant, Counter *7 COMPANY, LIFE IDS INSURANCE Corporation; and Investors Minnesota Inc., Services, Diversified a Delaware Corporation, Counter defendants.
No. 16386. Idaho.
April 1, 1987.
Rehearing May Denied 3. Of judges added interest are the number against decimating its altruistic deciding these cases. objectives. legitimate Consuelo-Gonzalez concern admirable panel judges: heard Court, before of thirteen circuit why any giving member of this Chambers, Merrill, Koelsch, Browning, Duni benefit of decision law on the same sub way, Hufstedler, Trask, Ely, Wright, Choy, ject, is so loathe to even concede that there are Goodwin, Wallace and Sneed. The Montana good jurisdictions, legal minds in other case, Fogarty, justices. was decided seven already legal minds have shown route promoting Final score: 16 to 4 favor of paved to take well.