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Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Donald L. Jorgensen, Judge.
Julie A. Lawyer, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee; on brief.
Garrett D. Ludwig, Mandan, N.D., for defendant and appellant.
Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Gerald W. VandeWalle, C.J. Carol Ronning Kapsner, concur in the result.
Dale V. Sandstrom, Justice.
[¶1] Garron Gonzalez appeals from a third amended criminal judgment and orders denying his motion to suppress evidence and revoking his probation. He argues the district court erred in denying his motion to suppress evidence, because the warrantless search of his cell phones was not authorized as a probation search and violated the Fourth Amendment. We affirm, concluding the search was a valid probationary search.
[¶2] In January 2004, Gonzalez pled guilty to two counts of gross sexual imposition, both class A felonies. He was sentenced to five years' incarceration, with all but 130 days suspended for five years, and five years' supervised probation.
[¶3] In November 2004, the State petitioned to revoke Gonzalez's probation. After a hearing, the district court revoked Gonzalez's probation and entered an amended criminal judgment, resentencing Gonzalez to five years incarceration on each count, to run concurrently, with all but 30 months suspended for five years, credit given for time served, and five years of supervised probation. The court also ordered Gonzalez's probation subject to certain rules and conditions, including he submit to a search of his vehicle or place of residence by any probation officer at any time of the day or night, with or without a search warrant; he not have unsupervised contact with minor females under the age of 18; he not purchase, possess, or use sexually stimulating materials of any kind; he not use 900 telephone numbers; and he not date or socialize with anyone who has children under the age of 18.
[¶4] In December 2010, Gonzalez's probation officer received information from the Mandan Police that Gonzalez was being investigated for contact with a minor. The probation officer and other law enforcement officers searched Gonzalez's residence and vehicle. During the search, the officers found two smartphone cellular phones, which were searched. The probation officer found evidence Gonzalez violated the conditions of his probation, and Gonzalez was arrested.
[¶5] The State petitioned to revoke Gonzalez's probation and filed an amended petition in January 2011. The State alleged Gonzalez violated the conditions of his probation by having contact with minor females, possessing sexually stimulating material on his cell phone, and committing the offense of gross sexual imposition. The State later dismissed the gross sexual imposition allegation. The district court revoked Gonzalez's probation and entered a second amended judgment. The court resentenced Gonzalez to twenty years' incarceration on each count, to run consecutively, with credit given for time served. Gonzalez appealed, and we affirmed the district court's order revoking probation and second amended judgment. State v. Gonzalez, 2011 ND 143, 799 N.W.2d 402.
[¶6] In August 2012, Gonzalez applied for post-conviction relief. The district court granted Gonzalez a new hearing on the January 2011 petition for revocation.
[¶7] Before the new hearing on the petition, Gonzalez moved to suppress evidence obtained as a result of the search of his cell phones, arguing the warrantless search was unreasonable and violated his Fourth Amendment rights. The State opposed the motion. A hearing was held on the motion to suppress. The district court denied Gonzalez's motion to suppress, finding Gonzalez had notice that any of his personal effects were subject to the search condition and the warrantless search of the cell phones was reasonable.
[¶8] After a hearing on the January 2011 petition for revocation, the court issued a third amended criminal judgment and an order revoking Gonzalez's probation. Gonzalez was resentenced to twenty years' incarceration on each count, to ...