*1 MONTANA, OF Respondent, STATE DAVID Plaintiff appellants. MEANS, MAUREEN Defendants No. 13918. Submitted 1978. March May Decided 1978.
Rehearing
July
Denied
MR. JUSTICE Missoula, Larrivee, Lar- Noel & Connor, Smith, Valkenburg Van Missoula, and appellants. for defendants rivee (argued), Raciot, Gen., Helena, Asst. Gen. Atty. Mark Mike Atty. Greely, Missoula, III, Helena, Atty., County Robert Deschamps, (argued), and respondent. for plaintiff OLSEN, vacant seat on in the sitting District Judge,
ARNOLD Court, of the Court. the opinion delivered Court, Missoula of the District the judgment Defendants appeal criminal possession two counts of them on convicting County, felonies, a jury. a trial without following both drugs, dangerous 27, 1976, plea Means entered defendant David On September He drugs. of dangerous criminal possession to a charge of guilty three in the Montana sentenced to serve subsequently years sentence was and David state prison. Imposition suspended Means on contained the was placed probation. judgment condition: following himself,
“2. That the Defendant shall submit his residence and Officers, vehicle to search at time Peace Officers Probation authorities, or other lawful without a search warrant and without the need to show cause.”
Counsel for defendant David Means objected imposition the condition at the time it was as violative of imposed being Fourth Amendment unreasonable searches and guarantees against seizures. same,
The facts Maureen Means regarding are the except condition in question was of a deferred imposed part prosecu- tion agreement.
On November information was received from con- fidential informant which indicated to Officer Lambert of the *3 One Team Region was Anti-Drug drug trafficking that possibly at the residence taking place of defendants. The information was related by neighbor of defendants. The stated that neighbor residence, numerous cars were to the coming short staying time, result, Lambert, periods and then As a Officer on leaving. 9, 1976, November surveillance for six revealed that began nights several known team be involved in the people, drug drug trade, residence, were continually coming for short staying time, surveillance, periods Prior to this leaving. Officer information, corroborate, Lambert received which he could not that David Means was at the Missoula selling dangerous drugs Vocational Technical School.
On December Lambert decided to David approach Means and search his residence to see if he was in possession Lambert intended to execute the search under the dangerous drugs. warrantless search clause on October 1976. The imposed sup- shows that the officers pression hearing clearly based transcript their search on the condition warrantless probation authorizing cross-examination, was asked Lambert
searches and seizures. On be a search warrant produced. that requested whether defendants The officer responded:
“Yes, that to believe that we had suspicion Sir. I informed him that we would search in the house and was dangerous drugs there house, if we had a search Defendant asked and at that his point that he was under the Defendant At I reminded warrant. that point allow his probation part and he had accepted probation himself, residence, time aby searched at any and vehicle to be that exercising right.” at that time we were officer and peace Lambert, at defendants’ and Wicks arrived Victor As Officers residence, to the front door walking up Means was observed David approaching noticed the officers David Means of the residence. the door. slamming the house and into reacted quickly by going Lambert while Officers of the house went to the rear Victor Officer and Wicks detected Lambert to the front door. and Wicks went out- While standing from the house. emanating odor of marijuana door, to be toilet thought heard what they also they side the the door approx- opened Maureen Means After knocking, flushing. seconds thereafter. imately twenty house, immediately pro- and Wicks Lambert entering
After standing David Means found they bathroom where ceeded to the bowl as in the toilet marijuana circling and observed over the toilet the accused secured and flushed. The residence it had been if there were to believe he had reason Lambert that informed by were to sit instructed The accused were the house. dangerous drugs seat, was searched David Means Prior to taking down. in the of white Lambert, powder a small paper packet who found was in- David Means Means. At point, of David shirt pocket Lambert’s He reacted under arrest. that he was formed and resisting his hands out of the powder discovery by slapping *4 Means, David subduing After to restrain him. attempt Lambert’s was continued. the the toilet bowl in marijuana Wicks located the bathroom underneath the well as grams, 20.0 approximately
weighing floor, bathtub in a hole in the which 25.7 Wicks weighed grams. also found hashish 1.8 in a grams wrapped weighing plastic bag between bed two mattresses on a in the bedroom. found Victor another bag marijuana, approximately paper weighing in the back room of house. grams, the
The and hashish were sent State marijuana Montana Crime Laboratory, where revealed that the analyses suspected substance what were the officers had surmised them to be. total,
marijuana was found 70.0 and the weigh grams hashish, 1.8 grams.
On April defendants were convicted of two counts of criminal possession dangerous drugs, trial without following conviction, jury. From this defendants appeal. case,
Defendants contend that instant had no police cause, circumstances, nor which exigent would justify warrantless search. that the law They argue enforcement officials the search accomplished and seizure on basis of the strictly pro- bation condition heretofore noted. Defendants maintain such a condition is unreasonable and violative of a constitu- probationer’s tional for the rights, following reasons:
1. The consent given to such a probationer clause not voluntary; rehabilitation;
2. The condition is not reasonably related 3. The condition is of a violative Fourth probationer’s and Fifth Amendment rights.
Plaintiff contends the law enforcement officers had probable cause to believe offense was committed in being defendants’ and, circumstances, residence because of the presence exigent were,justified in entering defendants and arresting searching defendants and their under their control. premises immediately that, case, Plaintiff thus argues under facts of this the constitu- of the warrantless search and tionality seizure condition of parole status probation is irrelevant. We agree. 95-608, Section R.C.M. states:
“A officer peace arrest when: person *5 “(d) He that the is com- believes on reasonable grounds, person
“ * * * and an offense or that the has committed an offense mitting person require the circumstances his immediate arrest.” existing 95-702(c) (d), and In section R.C.M. state: addition “* * * the arrested officer search may reasonably person peace the and the within such immediate presence pur- area person’s of: pose
<<* * Me crime,
“(c)
the
the
and
fruits of
or
Discovering
seizing
instruments,
“(d)
articles
seizing any
and
Discovering
persons,
of,
the
or
or
which
have been used in
commission
things
may
of,
which
constitute
the offense.”
evidence
made in-
of
Court have been
this
rulings
no definitive
Although
facts,
dealt with
has previously
this Court
these
volving
specific
a factor con-
odor
marijuana
cases
whether the
considering
arrest, in State v. Hull
for search and
cause
tributing
(1972),
Bennett,
(1972),
1314 and State
Mont.
496,
In Hull this determined 95-608(d), with section compliance reasonable grounds, had where officers prior entry arresting R.C.M. their the was in de progress, received “pot party” information at and aroma of or burnt burning fendant was a the the party guest the The officers entered was from residence. marijuana emanating was one of whom de and arrested several persons, the residence fendant, the was observed marijuana visually even no though A of defendant an yielded at the time of their search entry. officers house, into the arrest of the oc tablet. The entry amphetamine was con their and persons premises and the search of cupants, warrant. Yet Court either arrest ducted without an effecting the residence for purpose into entry determined that arrest constitu incident to arrest defendant searching tionally statutorily permissible. ac- Bennett officers had received information indicating drug at defendant’s had also
tivity taking place apartment. They received information that one the defendants was a dealer. drug information, Based the officers this went upon apartment arrived, defendant, When one investigate. they observed they dealer, suspected enter the When the officers apartment. ap- drug noticed odor of burning mari- proached apartment, they emanating from the door of the officers juana apartment. The open stairs, entered the walked short apartment, up flight *6 observed the defendants around a was sitting table which upon marijuana. The defendants were arrested and the immediately seized. The held the marijuana Court into the to entry apartment arrest and the search incident thereto constitutionally permissible.
It that is clear Hull Bennett stand for the proposition that the odor of or burnt burning marijuana, together with other cause, facts to establish tending is sufficient probable justification an for officer enter to the residence for the of an purpose effecting arrest and incident thereto. searching
There are additional cases from other jurisdictions, particularly cogent our herein. inquiry Chew, (1956), v. Bock People 142 298 Leung Cal.App.2d
P.2d two officers had entered an apartment building, when, were to a certain proceeding apartment the door walking by to the defendant’s apartment, smelled they The officers opium. were wife, admitted to the the apartment defendant’s the by sole and, The person present. officers searched the under the premises kitchen found cupboard, smoking officers searched the opium. The from 9:15 premises until 11:00 p.m. neither a search p.m. having warrant nor warrant of arrest. The California Court held that substance, where detect officers the of a odor the of possession which constitutes are felony, they in an offense justified believing is committed in being their make presence can immediate en- into try the residence from which the odor emanates and search such residence without first a warrant. 298 procuring P.2d in v.
Similarly,
Vaillancourt
Court
Superior
County
for
Placer, (1969),
the
Court
Cal.App.2d
Cal.Rptr.
that
officers had
cause
enter a hotel
held
room
police
probable
the
and effect an arrest when
down
detected
walking
hallway, they
that
the smell of
The Court further stated
the
burning marijuana.
was,
fact,
the
destroyed.
smell indicated
contraband
being
Chew,
on
v. Bock
Relying specifically
supra,
Leung
McGuire, (1971),
The identical rationale
in current
State
appears
Zamora,
75,
195,
(1977),
defendant
114 Ariz.
the
on
v.
trunk of
the
of the search of the
his
contested
appeal,
validity
marijuana
automobile
the
faint” odor of
“very
based upon
officer, who had
the
stopped
detected
the
by
arresting
initially
the
validity
vehicle for
violation. The court affirmed
speeding
the search.
Under the facts instant toilet, which contributed of the flushing and the marijuana arrest, the furtive con casue there existed evidence of to probable A Wicks. observed Officers Lambert duct of David Means by other in combination with suspicious movement or gesture, furtive circumstances, the search by can legal justification provide Powell, (1974), 40 officer the conduct. observing People 109; 107, (1971), 21 v. Conley 115 Cal.Rptr. Cal.App.3d 894, 98 Cal.App.3d Cal.Rptr. the of whether question prob
We answer in the affirmative existed, was committed thus able cause to believe an offense being residence to search a warrantless into defendants’ entry permitting of defendants’ illicit involve drug and arrest. The prior knowledge ment, David Means’ enter drug the informant’s report concerning School, the surveillance at the Missoula Vocational Technical prise of the unusual of defendants’ residence the observance strategy surveillance, the the furtive conduct Maureen Means noted during when confronted on December of David Means by police 1976, the of the odor of Officers marijuana by recognition Wicks, door, Lambert and in hearing delay opening toilet, of the when considered can leave no doubt together, flushing cause existed to enter defendants’ residence search and arrest. the case of v. United
Defendants rely heavily upon Johnson States, (1948), 92 L.Ed. 333 U.S. S.Ct. support a warrant to search should have been obtain- their contention that are substantially ed Officer Lambert. The facts of Johnson to those of the instant case. The reliance defendants similar however, Johnson, is somewhat The United States misplaced. upon did the evidence seized Court suppress Johnson, but Supreme did dwelling not indicate that a warrant must be to enter procured event. The Court stated: every which,
“There are circumstances in on balancing exceptional need for effective law enforcement it against right privacy, for search be be contended that a warrant magistrate’s may this is not a case. No reason is offered for with. But such dispensed warrant the inconvenience to the of- not obtaining except ficers and some slight necessary papers pre- delay prepare * * * the evidence to a a No suspect fleeing sent magistrate. *8 202 to take
likely flight. search was of permanent not of premises, a movable vehicle. No evidence or contraband was threatened with destruction, removal or except the fumes perhaps which we sup- * * *” 14, in pose 369, time would 333 disappear. U.S. 68 S.Ct. 92 L.Ed. 440-441.
Thus, inferred, the Court and in fact it has been so held other courts, that had one of those exceptional circumstances been no present, need for a magistrate’s warrant would have existed. In us, the case before there did presently exist a who was suspect flee- and contraband ing, or evidence which was threatened with then, removal or destruction. It was proper, even under ra- tionale of Johnson, to without a proceed warrant in this case.
Further, the in prosecution conceded the of- arresting Johnson ficer did not have cause to probable arrest until he entered the defendant’s apartment, thereby precluding Court from con- the threshold sidering question whether the officer was justified arrest, in entering without a warrant to and the corollary question of whether the search was incident to that arrest.
The State makes no such concession here. Rather the State con- tends cause to arrest existed before the ever set one police foot inside defendants’ residence. is therefore inapplicable Johnson here, insofar as the except facts of this case fall within the “excep- tional circumstances” rule. As this Court stated in State v. Bennett:
“Since
courts have
cir
recognized exceptional
Johnson
cumstances which permit
and arrest and
entry
the narrow
expand
* * *”
view
adopted
158 Mont.
If probable cause to arrest exists before the search takes arrest, it is immaterial that place, the search the actual preceded that the search provided and arrest are part one continuous transaction. This rule is on the grounded common sense principles arrest, that it is often difficult to moment of pinpoint precise and that circumstances, it is often because of necessary, exigent first, evidence, in order to and then make the for safeguard Barnes, 815; (1976), mal arrest. State v. 220 Kan. (1969), Wright, Cal.App.2d Cal.Rptr. *9 described the manner the rule in verbalizing addition the rule rationale behind above, explained in Barnes the court as follows: defendant’s person a search of these circumstances
“Under
at
was admissible
from the search
obtained
and evidence
held valid
cause to
an intrusion is
probable
for such
The
trial.
justification
and the need for
crime
has committed
the individual
believe that
the ar-
use of weapons against
action to prevent
immediate
crime. (Citing
of the
of evidence
or destruction
officer
resting
arrest does not
cases.)
intrusion of
of the further
Postponement
search and in no way prejudices
for the
remove the justification
The case of State v. Callaghan,
821,
law in
of the area to
relating
settled the
Montana
scope
Court,
to an arrest. This
stated:
be searched incident
Callaghan,
“* * *
to a valid arrest without
A search
be made pursuant
may
452,
285 U.S.
52
a search warrant. United States v. Lefkowitz,
420,
(1932);
v. United
S.Ct.
It is
to search a
where
dwelling
permissible
1098,
States,
made there Harris v. United
331 U.S.
S.Ct.
(1947).
fruits
a search are the
of such
91 L.Ed.
objects
However,
officer
the arresting
and instrumentalities of the crime.
not
root
because
indiscriminately
through
dwelling just
States, (2nd
there has
been
arrest there. Carlo v. United
Cir.
1961),
denied,
C.A.
286 F.2d
cert.
366 U.S.
81 S.Ct.
1972,
This Court found the search of the dwelling Callaghan reasonable where two men had been arrested in the premises, the search was one of the most where the places fruits and in- likely strumentalities of the crime be hidden. might
Here, the of the search was for fruits and instrumentalities scope crime, 95-702, R.C.M.1947, of the section provided was reasonable as mandated The officers did not by Callaghan. arrest, root because of the through dwelling but rather simply searched the likely places hiding. most *10 defines the arrestee’s under the cir-
Callaghan dwelling, there, cumstances as that within his present immediate presence, which in turn is referred to in section 95-702 as the permissible Likewise, of such a search. the search here of defendants’ scope circumstances, because of the a dwelling, was search-of an area within their immediate We find the search as presence. conducted here did not defendants’ constitutional infringe upon or statutory Based the rights. the search of defendants’ upon foregoing, unreasonable, residence was not nor broad in overly scope. As both the search and arrest were conducted in a constitutional- manner, we affirm the defend- ly permissible judgment convicting ants on both counts of criminal of possession dangerous drugs.
We there in for note was much counsel emphasis argument by the and in from this Court the validi parties, questions concerning of a a search of condition of warrantless ty probation authorizing case, of this this issue As our above probationers. holding disposes However, need not we determine that be reached this opinion. limited discussion of a facet of the issue is necessary. central
Defendants contend that execution of probationer clause law enforcement officers can never be condition by proper of the In so defendants probation. arguing, rely primarily upon Consuelo-Gonzalez, (9th 1975), Cir. decision in United States execution of a search clause wherein it was held that 521 F.2d not in with Federal law enforcement keeping personnel amended, Act, execution as although Probation U.S.C. § with the Act. officer is in of such clause by probation keeping officers is at- The distinction between probation police has been inter- tributable to the fact that the Federal Probation Act reformation and the federal courts as emphasizing preted by rehabilitation, rather than the dual of objectives contemplating rehabilitation protection public. statute, R.C.M.1947, 95-2206,
The Montana section sentencing states that reasonable conditions deemed for necessary rehabilitation or be society may imposed. protection Either or both these be considered when objectives may impos- sentence. This statute at no time ing has been em- interpreted alone, rehabilitation Act. phasize has Federal Probation Thus, we conclude a search clause as a condition need probation court, not relate of rehabilitation. The solely objective Consuelo-Gonzalez, admitted as much in stating:
“* * *
obvious, however,
It is
differ as to what con-
opinions
trols are
and we
no
here
improper,
express
opinion
regarding
extent to which the states
conditions
constitutionally may impose
more intrusive on the
those we
than
here
privacy
probationer’s
* * *”
have indicated are
under the Federal Probation Act.
proper
Nonetheless, the distinction drawn the court in Consuelo- does but law enforcement nothing encourage personnel Gonzalez *11 officer, can then search the who go probation probationer view, our such a is to the search clause. In procedure pursuant of obstruction. There is no more than nothing unnecessary game life a is a doubt that into the of private probationer inquiry the court in to rehabilitation. As stated by necessary prerequisite Consuelo-Gonzalez, a authorities also have special “Probation F.2d of 521 probationers.” interest in invading privacy unique 266.
206
The more rational is that outlined in v. Brem approach mer, (1973), 30 797: Cal.App.3d Cal.Rptr.
“* ** A condition of that a convicted probation subjects person to search and seizure at time a serve useful may purpose by a workable alternative to of the convicted providing imprisonment the constitutional of a person. Patently, rights probationer-like rights those convicts who have been circumscrib- imprisoned-are ed of conviction and not coterminous with those judgment whose possed by persons status remains conditions unimpaired by court order. The like the probation imposed by probationer, has what is known as a parolee, reduced euphemistically expecta- * *”* cases.) tion of (Citing 800. privacy. Cal.Rptr. the situation addressing execution of a search clause involving officer, the court in by police Bremmer noted: “Since officer’s peace concern lies with primary enforcement of the law and not with rehabilitation of a the officer’s probationer, violations, exercise of is activated authority ordinarily only by violations, of order and seeming public When a known safety. pro- bationer to warrantless search is subject discovered conducting himself in a manner that suggests the misconduct resumption about the brought condition of probation, officer peace exercise the of a search order to search. authority general The of- ficer’s search is a search on but a suspicion only, suspicion ground- * * *” ed on as related to present activity past performance, Cal.Rptr.
Under the rationale of it Bremmer that the search of plain defendants in this case was reasonable. The search conducted here not but the rehabilitation of only protected public, promoted defendants as well. All have that defendants have benefited agreed from the of this case. considerably experience We therefore conclude that execution of a probationer clause law enforcement instrumental in achiev- personnel, being is a condition of ing objectives probation, proper probation. of conviction is therefore affirmed. judgment *12 HASWELL, HAR- and MR. MR. CHIEF JUSTICE JUSTICE concur. RISON DALY dissenting:
MR. JUSTICE to resolve this that the had the option cannot disagree majority I existed, and avoid if the same on nonconstitutional grounds, case defendants. grounds presented by on the constitutional ruling However, a discussion of proba- involves itself in long the majority rul- all inclusive and at the conclusion makes sweeping ble cause without discussion on the constitutional questions presented ing the ma- for a Ninth case which is against Circuit except authority, views, Consuelo-Gonzalez, v. 521 F.2d United States jority’s which is inasmuch authority and a case not strong California 998, (1978), Battit, this Court re- 175 Mont. State and followed more the California to this jected approach problem rational jurisdictions. review are:
The foundation to this Court for questions presented unlimited I. Whether a condition of probation authorizing search and seizure law enforcement officers violates constitu- by tional unreasonable searches and seizures. guarantees against law
A. Defendant’s consent to unlimited search seizure by enforcement officers was not freely voluntarily given. search and A condition of unlimited authorizing
B. probation seizure law enforcement officers is contrary purpose by and reformative rehabilitative process. probation of the defendant’s residence was C. The warrantless search cir- unreasonable because it was by exigent unsupported cumstances. unlimited search and A condition of probation authorizing
II. officers violates constitutional seizure law enforcement self-incrimination. guarantees against development in the early stages problem presently the United States As an neither example
definition the courts. or expressed studied the matter nor this Court has Court Supreme among split authority exists general There opinion. courts that have treated the issue and the trend seems to be toward expanding probationer’s of Fourth- sphere Amendment protec- tion. In event the legal problems involved are serious and concern many. They basic human that are rights too to be fragile of in the summarily disposed cavalier manner the ma- engaged by here. jority *13 Colorado, Mr. (1949), Frankfurter stated in v. 338 Justice Wolf 25, 27, 1359, 1361, 1782, 1785,
U.S. 69 S.Ct. 93 F.Ed. that the Fourth Amendment the protects of one’s “security privacy against case, intrusion the arbitrary A more recent police.” Tehan v. Shott, (1966), 406, 459, 465, 382 U.S. 86 S.Ct. 15 L.Ed.2d reiterated: “* * * Amendment, the guarantees of the Fourth stands as a pro- tection of quite different constitutional values-values the reflecting concern of our society of each right individual to be let alone. To this is recognize no more than to accord those values un- diluted respect.”
The California courts have taken the that a position probationer a limited enjoys of only expectation traditional Fourth Amendment and protection, have endorsed the use of the warrantless search clause as a Bremmer, condition of (1973), probation. v. People 30 1058, 797; Mason, (1971), 106 Cal.App.3d Cal.Rptr. v. 5 People 759, 302, Cal.3d 97 488 P.2d Cal.Rptr. 630.
However, the Ninth Circuit of Court Appeals stated in recently Consuelo-Gonzalez, United (9th States v. 521 F.2d Cir. 1975), that “A like probationer, the parolee, has the right enjoy Further, a significant of degree that privacy.” a defendant’s sub- mission to warrantless searches “should not be the price proba- added.) tion.” (Emphasis
More recent state court decisions have adopted position warrantless search clauses as a condition of probation an represent undue infringement upon constitutional probationer’s rights. (1976), 82; State v. State, 115 Ariz. Page, Tamez v. 686, 692; Peterson, 534 (Tex.Cr.App.1976), S.W.2d (1975), 250; 62 Gansz, 233 Mich.App. N.W.2d State v. 297 614. (Fla.App.1974), So.2d the Texas stated:
In Tamez Court Criminal Appeals “* * * conclude that the condition in the in- probationary [W]e broad, stant case is too too sweeping infringes upon proba- tioner’s under the Fourth and Fourteenth Amendments rights * * the United *. The condition States Constitution would imposed searches, without cause or even literally permit suspicion, time, of the vehicle or home at probationer’s person, day officer, which serve the ends night, by any peace could not possibly For search to probation. example, intimidating harassing serve law enforcement ends unrelated to either his totally prior conviction or his rehabilitation is authorized probationary condition. A like a has the probationer, parolee, right enjoy added.) 692. significant degree privacy.” (Emphasis S.W.2d Gansz, a similar condition invalid in holding probationary the Florida Court reasoned. Appellate fourth
“The amendment a restraint on the arm of the puts it from of a man’s government prevents invading sanctity home or his quarters under calculated to private except safeguards and abuse of prevent oppression So.2d authority.” *14 down a search clause a Striking imposed upon probationer Peterson, of Michigan Court in stated Appeals emphatically: research has “Our uncovered cases from other many jurisdic- tions which sustained the same of consent to war- imposition rantless, However, searches and seizures as were here imposed.
waiver
unreasonable searches and seizures is
protection against
of
so
to the whole
the Bill
as to make it
repugnant
spirit
Rights
of
of
added.)
alien to the essence our
(Emphasis
government.”
of
form of
In the Arizona with agreed Court the defendant’s Page, Supreme contention that because the search clause as a her imposed upon condition of officer the to seize any peace probation gave authority and search her without a at his unfet- person warrant property whim, tered it held the condition overbroad and invalid. The court noted: has the record does not reflect that search yet “Although * * * we decide the issue presented
been conducted nevertheless Amend- because of the fact that defendant’s Fourth Fourteenth ex- and are reduced the Court’s ment have been rights being 1. Footnote isting provision.” State, does have a Tamez v. A probationer right privacy. addition, has recognized the United States Court Supreme supra. under the Constitution. a of does exist personal privacy right 479, 486, Connecticut, (1965), 381 85 S.Ct. U.S. Griswold 14 L.Ed.2d It is found recognized right privacy.
Montana expressly Constitution, II, Section 10: its 1972 Article of a well-being is essential to the “The of individual privacy right a without the of showing not be infringed free and shall society state interest.” compelling in- this incorporated on the of having right
Speaking importance Constitution, the Bill of Rights to the 1972 Montana Convention’s stated. Committee
“* * * stated in of is a that is not right expressly right privacy It is our feel- either the United States or the Montana Constitutions. that the times have changed on the Bill of Committee ing Rights * * * that this should now be right recognized. sufficiently important course, there was no need to state expressly In our of early history, back that an individual should have right privacy. Certainly, our bill of the search rights, when they developed when a man’s house was his and seizure were enough, provisions intrude this home without the castle and the state could not upon stated a search warrant with cause being procuring warrant issued. No other being magistrate before and this was the greatest was necessary certainly protection its in- free had given amount of that any society protection course, the neighbor dividuals. In that type society, real infringement There was no three or four miles away. maybe *15 However, we today and his right privacy. the individual upon our and we know society complex an increasingly have observed 211 * * * decreased, area of has privacy decreased and decreased. as a member of we all participating that the state society, recognize is, must come into our lives at some but it private what point, says don’t come into our lives unless have a private reason for you good this, there. We being feel that as a mandate to our government, would cause a reexamination and complete our in guarantee dividual citizens of Montana this very important right-the right alone, be let and this has been called the most important right Convention, them all.” Montana Constitutional of Pro Transcript 7, (1972). Vol. 5179-5182 ceedings,
Courts that a holding condition probationary unlimited allowing search and seizure law enforcement officers as valid have their generally justified decisions on the rationale that a defendant waives Fourth Amendment protection by to the terms consenting Mason, See: v. probation. The crucial supra. issue regard- such a waiver ing of Fourth Amendment rights whether de- fendant’s consent to such terms under such conditions can be is, characterized as free and voluntary, free from coercive influence.
A
of recent cases
study
outlining
of a
requirements
consent
LaFlamme, (1976),
should
with State
begin
v.
170 Mont.
202,
“A search and seizure be made without a search warrant if the individual freely his intelligently gives unequivocal and search, specific consent uncontaminated and duress or coercion, actual or implied. Government has the burden of clear and proving by evidence that such positive consent was given.” F.2d 219. Bustamonte, (1973), 218, Schneckloth U.S. 2041, 2048,
S.Ct. 36 L.Ed.2d the Court stated: “* * * the Fourth and Fourteenth Amendments that a require coerced, means, consent not be by explicit implicit by implied *16 For, force. no matter how the coercion were subtly threat or covert be more than a for ‘consent’would no resulting pretext applied, Amend- intrusion the Fourth against which unjustified police 93 S.Ct. 36 L.Ed.2d ment is directed.” 412 U.S. a man’s house as his law has always recognized The common castle, in the execu even to its own officers engaged impregnable Brandeis, Warren and Right Privacy, tion of its commands. (1890). The dissent United 4 Harvard Law Review 259, 274, Consuelo-Gonzalez, (9th 1975), Cir. 521 F.2d v. States made this astute observation: is more to be nominal likely however
“Consent
defendant,
alter-
any
will
almost
accept
real. A convicted
than
often
defendant
* *
added.)
A probationer and seizure unreasonable search against right the constitutional does of the two evils between the lesser Choosing imprisonment. choice, however, not amount to a real it is therefore coercive. im- to his own abode to return a defendant A court’s allowing is suf- threat to society an immediate he does not pose plies A pro- supervision. unlimited to not require daily, reliable ficiently bation condition warrantless search “at time of allowing any day condones such night” arbitrary supervision.
Montana’s statutes the dominant of rehabilita express purpose 95-2206, R.C.M.1947, tion sentences. Under section through restrictions”, including: court reasonable upon sentencing impose “any “ * * * “(iii)conditionsfor probation;
“* * * “(v) other reasonable conditions considered necessary * * *17 rehabilitation for the society protection here, A wise once it judge said and that such searches applies measure the effectiveness of rehabilitation in same manner that one fells a tree to measure its It is time age. that we high recognize that a must person have the freedom to be he is responsible, if to become free. responsibly
I conclude the admonition that in addition the brief with here, recital there are more related to many problems those men- tioned herein that need necessarily consideration before Montana can assume a respectable the matter. We must also con- position wife, sider the of those who reside rights with a probationer —his children, mother and others. These do not problems go away by them. just ignoring
I conclude that the of the District Court be reversed judgment clause, and the search at least in its form present and application be rendered void and unenforceable for the reasons here. given SHEA,
MR. dissenting: JUSTICE I concur in the dissent of DALY. Justice It is unfortunate that the of its decisions majority grounds part on cause probable when it not recognizes that were police pro- ceeding search to a that had home belief pursuant pro- they Rather, bable cause. searched the search they pursuant home clause in the conditions of probation. to buttress be that the should permitted
I do not believe police after the fact determination of the search their their justification pur- the home If the searched police had cause. that they probable clause, matter incidentally it should not suant to the search cause had they and in decide that they hindsight search clause provision. and without the without search warrant of the is the validity have decided this Court should only issue probation. the conditions of search clause provision