Stаte of North Dakota, Plaintiff and Appellee v. Richard John Jason Powley, Defendant and Appellant
Nos. 20190323 & 20190324
IN THE SUPREME COURT STATE OF NORTH DAKOTA
Filed 6/2/20 by Clerk of Supreme Court
2020 ND 124
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Justice.
Joshua A. Amundson, Assistant State‘s Attorney, Bismarck, ND, for plaintiff and appelleе.
Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
[¶1] Richard Powley appealed from a criminal judgment entered after a jury found him guilty of three counts of gross sexual imposition (GSI). On appeal, Powley argues the district court erred by denying his motion to suppress evidence obtained from a warrantless search of his cell phone. We affirm.
I
[¶2] Powley was arrested for aggravated assault on July 17, 2017. Powley was on parole at the time of his arrest. As a condition of his parole, Powley consented to the following term:
I shall allow my person, plaсe of residence and any outbuildings or curtilage, vehicle, or property I own, lease or possess; to be searched and any contraband and evidence found may be seized at any time of the day or night by a parole officer without requiring the parole and probation officer to obtain or present a search warrant.
On the day after Powley‘s arrest, the detective investigating the assault case seized Powley‘s cell phone from his property at the detention center. On July 25, Powley was transferred to the state penitentiary. On July 26, detectives conducted a warrantless search of Powley‘s cell phone as part of the investigation of the aggravated assault under the condition of Powley‘s parole permitting warrantless searches. The detectives believed there was evidence of communications between Powley and the victim of the aggravated assault on Powley‘s cell phone. As part of the warrantless search of Powley‘s cell phone, detectives discovered videos of Powley sexually assaulting an adult woman. These videos led to the GSI chаrges against Powley. Powley‘s parole was revoked on August 9, 2017.
[¶3] After being charged, Powley made a motion to suppress the evidence extracted from his cell phone. Powley argued that given the totality of the circumstances, the search of his phone was unreasonаble because he was in custody at the time of the search. Powley cited State v. White, 2017 ND 51, 890 N.W.2d 825, and State v. Ballard, 2016 ND 8, 874 N.W.2d 61, in support of this argument. Powley also argued the conditions of his parole became null and void once he was taken into custody. The district court denied Powley‘s motion. The court found Powley‘s pаrole was not revoked until August 9, 2017, and therefore Powley was still subject to the conditions of his parole. The district court additionally found the conditions of Powley‘s parole remained in effect while he was incarcerated under
II
[¶4] Our standard for reviewing a district court‘s decision to grаnt or deny a motion to suppress evidence is well established:
A trial court‘s disposition of a motion to suppress will not be reversed if, after conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable оf supporting the trial court‘s findings, and the decision is not contrary to the manifest weight of the evidence. Questions of law are fully reviewable. Whether a violation of the constitutional prohibition against unreasonable searches and seizures has occurred is a question of lаw.
State v. West, 2020 ND 74, ¶ 7, 941 N.W.2d 533 (quoting State v. Ballard, 2016 ND 8, ¶ 6, 874 N.W.2d 61).
III
[¶5] On appeal, Powley argues that because law enforcement detectives conducted
IV
[¶6] Powley argues the terms of his parole were suspended because he was incarcerated.
Upon issuance of a warrant of arrest for a parole violation, the running of the time period of parole must be suspended until the parole board issues a final order under this section. The parolee is entitled to credit for time spent in physical custody from the time of arrest until the time the parole board issues a final order.
Powley cоntends this provision suspended the terms of his parole once he was incarcerated, and, therefore, law enforcement was not permitted to conduct the warrantless search of his cell phone pursuant to the terms of his parole.
[¶7] In State v. Stenhoff, 2019 ND 106, 925 N.W.2d 429, we considered an argument similar to Powley‘s. Stenhoff was on supervised probation. Id. at ¶ 2. As part of the terms of his probation, Stenhoff agreed to submit his person, place of residence and vehicle, or any other property to which he had access to warrantless searches. Id. While serving his probationary sentence, Stenhoff was arrested for allegedly violating the terms of his probation and incarcerated. Id. at ¶¶ 2-3. After Stenhoff was incarcerated, law enforcement officers and Stenhoff‘s probation officer conducted a probationary search of thе residence where Stenhoff was apprehended and found illegal contraband. Id. at ¶ 4. Stenhoff filed a motion to suppress the illegal evidence claiming the warrantless probationary search violated his Fourth Amendment rights. Id. at ¶ 5. The district court granted Stenhoff‘s motion. Id. at ¶ 1. We reversed concluding Stenhoff‘s incarceration did not terminate or suspend Stenhoff‘s probation or the conditions of his probation and held “conditions of probation may apply when a person is incarcerated.” Id. at ¶¶ 13-14. More analogous to the instant case, we pointed out that “a similar result has been held in regard to prisoners on parole.” Id. at ¶ 15 (citing U.S. v. Jones, 152 F.3d 680, 686-87 (7th Cir. 1998); U.S. v. Hill, 967 F.2d 902, 911 (3d Cir. 1992); U.S. v. Trujillo, 404 F.3d 1238, 1243-44 (10th Cir. 2005)).
[¶ 8] Nowhere in
V
[¶ 9] Powley asserts law enforcement detectives conducted a suspicionless
[¶ 10] In State v. Stenhoff, 2019 ND 106, ¶ 9, 925 N.W.2d 429, we expounded the relationship between the protections provided under the Fourth Amendment and probationary searches:
The
Fourth Amendment to the United States Constitution andart. I, § 8, of the North Dakota Constitution protect individuals from unreasonable searches and seizures. “When reviewing the constitutionality of probationary searches, we have interpreted the North Dakota Constitution to provide the same protections for probationers as provided by the United States Constitution.” [State v.] Maurstad, 2002 ND 121, ¶ 11, 647 N.W.2d 688 (citations omitted). “[U]nder our general Fourth Amendment approach we examin[e] the totality of the circumstances to determine whether a search is rеasonable within the meaning of the Fourth Amendment.” Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 16 L.Ed.2d 250 (2006) (citation omitted) (quotation marks omitted).
2016 ND 8, ¶ 8, 874 N.W.2d 61 (emphasis added). “The touchstone of the
[¶ 11] Parole is one point on the “continuum” of state-imposed punishments. See Ballard, 2016 ND 8, ¶¶ 34-35 (quoting Samson, 547 U.S. at 850). “On this continuum, parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.” Samson, 547 U.S. at 850. By virtue of their status alone, parolees have “severely diminished expectations of privacy.” Samson, at 852.
[¶ 12] In Ballard, 2016 ND 8, 874 N.W.2d 61, a deputy sheriff conducted a suspicionless search of Ballard‘s home while he was on unsupеrvised probation. Id. at ¶¶ 2, 4.
[¶ 13] Shortly after Ballard, we decided White, 2017 ND 51, 890 N.W.2d 825. White argued a probation search of his cell рhones while he was on supervised probation was unreasonable because the terms of his probation limited a search to his person, vehicle, or residence. Id. at ¶ 6. We held that “[a] supervised probationer has a lower expectation of privacy than an unsuрervised probationer,” and “[b]alancing the totality of the circumstances, no more than reasonable suspicion was required to conduct a search under the conditions of White‘s probation.” Id. at ¶ 12. Additionally, we concluded the “conditions of White‘s probation allowed officers to search the cell phones located inside White‘s residence as part of the probation search.” Id. at ¶ 13 (citing State v. Gonzalez, 2015 ND 106, ¶¶ 16-17, 862 N.W.2d 535 (holding search of probationer‘s cell phones located inside probationer‘s residence and vehicle was within scope of valid prоbationary search when condition of probation authorized search of person, place of residence or vehicle)).
[¶ 14] “Reasonable suspicion exists when a reasonable person would be justified by some objective reason to suspect the defendant was, or was about to be, engaged in unlawful activity.” Id. at ¶ 14 (citing State v. Franzen, 2010 ND 244, ¶ 12, 792 N.W.2d 533). “Whether the facts in a particular case support a reasonable and articulable suspicion is a question of law which is fully reviewable on appeal.” State v. Ashby, 2017 ND 74, ¶ 9, 892 N.W.2d 185 (citing City of Dickinson v. Hewson, 2011 ND 187, ¶ 6, 803 N.W.2d 814). Powley was arrested for aggravated assault while he was on parole. As part of the investigation into the aggravated assault, law enforcement officers conducted a warrantless search of Powley‘s cell phone, as was authorized under the conditions of Powley‘s parole. The detective who conducted thе search of Powley‘s phone believed there may have been evidence of communications between Powley and the victim in the aggravated assault case. Under the facts of this case, the search of Powley‘s cell phone was not a suspicionless search. The detectives who conducted the search had a basis for doing so as part of the investigation into the aggravated assault. And consistent with our decision in White, Powley agreed to the warrantless search of his cell phone under the conditions of his parole.
[¶ 15] Powley‘s еxpectation of privacy was diminished by virtue of his parolee status alone. On the continuum of state-imposed punishments, parolees have fewer expectations of privacy than probationers. We have held that warrantless searches of supervised probationers based on reasonable suspicion are not unreasonable under the
VI
[¶ 16] The criminal judgment is affirmed.
[¶ 17] Gerald W. VandeWalle
Jerod E. Tufte
Lisa Fair McEvers
Daniel J. Crothers
Jon J. Jensen, C.J.