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State v. Ballard

Supreme Court of North Dakota

January 14, 2016

State of North Dakota, Plaintiff and Appellee
Jeremy Ballard, Defendant and Appellant

Appeal from the District Court of Divide County, Northwest Judicial District, the Honorable Paul W. Jacobson, Judge.

Seymour R. Jordan, Divide County State's Attorney, Crosby, N.D., for plaintiff and appellee.

Elizabeth L. Pendlay, Crosby, N.D., for defendant and appellant.

Daniel J. Crothers, Carol Ronning Kapsner, Lisa Fair McEvers. Opinion of the Court by Crothers, Justice. McEvers, Justice, concurring specially. Sandstrom, Justice, dissenting. VandeWalle, Chief Justice, dissenting.


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Crothers, Justice.

[¶1] Jeremy Ballard appeals a district court judgment after he conditionally pled guilty to drug charges, reserving the right to challenge the denial of his motion to suppress evidence. He argues the district court should have suppressed evidence from his residence because the suspicionless probationary search violated his constitutional rights against unreasonable searches and seizures. We reverse because the suspicionless search of an unsupervised probationer's home was unreasonable under the Fourth Amendment of the United States Constitution.


[¶2] In October 2013 Ballard pleaded guilty to several misdemeanor drug crimes. He was sentenced concurrently on each charge to 30 days incarceration, with 30 days suspended and two years unsupervised probation. One probation condition was that Ballard " submit to a search of his person, place and vehicle at the request of law enforcement without a warrant." Another required him to " submit to random drug-testing without a warrant or probable cause, including but not limited to, urine analysis."

[¶3] On March 28, 2014, around 7:30 p.m., a Divide County deputy sheriff saw Ballard driving a car with two passengers in Noonan, North Dakota. The deputy was aware Ballard and a passenger were on unsupervised probation and were subject to random drug test and search clauses as part of their probation. For these reasons alone, the deputy stopped Ballard's car. The deputy testified at the preliminary hearing that he stopped Ballard

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for the sole reason of performing a probation search and that he did not have any " reasonable articulabl[e] suspicion" of any drug-related or criminal activity when he made the stop. After the deputy activated his emergency lights, Ballard pulled over in front of his residence. The deputy testified he spoke with the individuals briefly before asking Ballard to get out of the vehicle so he could perform a pat-down search. The search did not yield any contraband.

[¶4] The deputy next entered Ballard's home without consent or a warrant. The deputy testified he was aware the house where Ballard lived was owned by a third person. After confirming Ballard lived at the residence, the deputy searched Ballard's bedroom and found methamphetamine paraphernalia and a bag of a " clear crystalline substance" which later was confirmed by the state crime lab to be 0.41 grams of methamphetamine. Ballard was arrested and charged with possession of methamphetamine, a class C felony, and possession of paraphernalia, a class C felony.

[¶5] In July 2014 Ballard moved to suppress the evidence found in the search of his bedroom and to dismiss the charges against him, arguing the State failed to demonstrate it had reasonable suspicion for a probationary search. At the September 2014 hearing on the motion to suppress, neither party called witnesses; instead, they stipulated to the facts and testimony presented at the preliminary hearing. At the conclusion of the hearing, the district court denied Ballard's suppression motion, stating:

" Well, what I do find factually is the facts are as testified to by Deputy Hubble, as reflected in the brief of the Defendant. And the conclusions that I draw from that testimony, that evidence, is that the search that was being conducted was a suspicionless probationary search done pursuant to the probation that Mr. Ballard was under. And I concluded from also that information that the search was not done in an intimidating or harassing fashion. It was done by a police officer, who I understand under our case law can conduct . . . probationary searches.
" And therefore my reading of the Maurstad case and what it said about the U.S. Supreme Court Knights case, is that Maurstad is not precedent for this kind of search. And essentially where our state of the law is in North Dakota, as I understand it, is what the Court had previously said in the Perbix case still applies, other than the Court does not take into consideration the motive for the search which I think was the only thing overruled in Perbix. And therefore I will deny the Suppression Motion."

The district court issued a written order denying Ballard's motion to suppress and dismiss charges. Ballard entered a conditional guilty plea, reserving the right to appeal the district court's denial of his motion to suppress the evidence seized.


[¶6] " 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 of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence." State v. LaFromboise, 542 N.W.2d 110, 112 (N.D. 1996). Questions of law are fully reviewable. State v. Adams, 2010 ND 184, ¶ 7, 788 N.W.2d 619. " Whether a violation of the constitutional prohibition against unreasonable searches and seizures has occurred is a question of law." State v. Maurstad,

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2002 ND 121, ¶ 11, 647 N.W.2d 688 (citing LaFromboise, at 112).


[¶7] Ballard argues the district court erred in denying his motion to suppress the evidence found during the suspicionless probationary search of his residence. Ballard claims the district court's order denying his motion to suppress evidence and the criminal judgment should be reversed and he should be permitted to withdraw his conditional guilty plea. We agree.

[¶8] The Fourth Amendment to the United States Constitution and art. 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." 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 reasonable within the meaning of the Fourth Amendment." Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (citation omitted) (quotation marks omitted).

[¶9] Ballard acknowledges probationary search clauses generally are permitted under N.D.C.C. § 12.1-32-07(4)(n). But he claims the suspicionless search of his residence under the statute does not pass Fourth Amendment muster. His argument calls for examination of North Dakota's cases on probationary searches and the traditional Fourth Amendment analysis required by United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), and Samson, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250, balancing the State's interest against an unsupervised probationer's liberty interests and expectations of privacy. When we do so, it becomes apparent that our precedent relies on a formulation of a legal test from the 1970's that is no longer good law.

[¶10] In State v. Schlosser, 202 N.W.2d 136 (N.D. 1972), the defendant was a supervised probationer who appealed revocation of his deferred imposition of sentence. He claimed evidence obtained during a warrantless probationary search should be suppressed because the search was unconstitutional. The underlying facts were that Schlosser plead guilty to possession of marijuana and received a deferred imposition of sentence. Id. at 136-37. One condition of deferring imposition was " that he consent to his parole officer or other law enforcement officers to search his home, property or person at any time without a search warrant." Id. at 137. Schlosser subsequently was arrested for possession of marijuana and, that same day, his probation officer and two law enforcement officers searched his apartment and seized additional drugs. Id.

[¶11] In determining whether Schlosser's status as a probationer affected his Fourth Amendment rights, this Court examined United States Supreme Court and California cases and made two conclusions. First, a " defendant's status as a probationer does affect his rights under the Fourth Amendment. The court has a responsibility to regulate a probationer's activities to help in his rehabilitation and at the same time to guard against continued criminal behavior." Schlosser, 202 N.W.2d at 139. Under this rationale, the North Dakota Supreme Court applied a test of the reasonableness of a search clause, stating:

" The test applied by the court was that laid down in People v. Dominguez, 256 Cal.App.2d 623,

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64 Cal.Rptr. 290, 293 (1967):
'A condition of probation which (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality does not serve the statutory ends of probation and is invalid.'
" Applying this rule in reverse, [Schlosser's search] clause (3)(g) is a reasonable and valid exercise of the court's authority under Section 12-53-13, N.D.C.C."

Id. at 139.

[¶12] The Schlosser Court's second conclusion was that " the search and seizure of the contraband from the defendant's apartment by his parole officer without a search warrant was not unreasonable under the Fourth Amendment to the United States Constitution, and the contraband seized was admissible in a probation violation hearing." 202 N.W.2d at 139. Although the basis for this holding was not fully explained, the Schlosser Court apparently relied on another California holding that " a probationer who has been granted the privilege of probation on condition that he submit at any time to a warrantless search may have no reasonable expectation of traditional Fourth Amendment protection." Id.

[¶13] This Court next decided State v. Perbix, 331 N.W.2d 14 (N.D. 1983). In Perbix, the defendant was charged with possession of marijuana after a warrantless search conducted as a condition of supervised probation. Id. at 15-16. The first issue raised was whether the Fourth Amendment permits law enforcement officers, rather than probation officers, to perform probationary searches when law enforcement relies on a court imposed probationary search clause. Id. at 17. This Court held probationary searches could be performed by law enforcement officers. Id. at 20.

[¶14] The second issue in Perbix was whether the probationary search clause violated the Fourth Amendment. Id. at 18. The Fourth Amendment discussion started by noting, " Although the constitutional status of probationers has not been precisely delineated, case law clearly indicates that probationers are neither totally bereft of nor fully invested with constitutional protections." This Court applied the four-part test from Schlosser and held:

" We conclude that conditions of probation requiring the probationer to submit to warrantless searches by probation officers or law enforcement officers, to the extent such searches contribute to the rehabilitation process; are not used as a subterfuge for criminal investigations; and are performed in a reasonable manner, are valid and not violative of the Fourth Amendment."

Perbix, 331 N.W.2d at 21.[1] Perbix thus stated warrantless probation searches were valid under the Fourth Amendment if they (1) contributed to rehabilitation; (2) were not used as subterfuge for criminal investigations; and (3) were performed in a reasonable manner. By using this formulation of the test, Fourth Amendment " reasonableness" was determined by applying the three factors. As is explained below, this test is not consistent with current United States Supreme Court precedent.

[¶15] The Court in Perbix concluded:

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" Because the search provision in the instant case related to Perbix's prior criminal conduct, related to activity which is criminal in itself, and prohibited conduct which is reasonably related to future criminality under the test set forth in Schlosser, supra, the search provision and the resultant search, which was performed in a reasonable manner, did not violate the defendant's Fourth Amendment rights."

331 N.W.2d at 22.

[¶16] In State v. Vermilya, 395 N.W.2d 151 (N.D. 1986), the defendant appealed from an order denying suppression of evidence seized by a North Dakota probation officer under authority of probationary conditions imposed in Montana. This Court held that the Montana probationary term required reasonable cause to search and that such cause existed. Id. at 152. This Court explained:

" In State v. Perbix, 331 N.W.2d 14 (N.D.1983), we held that a 'search clause,' as a condition of probation, which provided that the probationer must allow a search of his person, place of residence, or motor vehicle without a search warrant and without probable cause, did not violate the probationer's Fourth Amendment right against unreasonable searches and seizures. We did not hold in Perbix, supra, that a search clause so restricting the probationer's Fourth Amendment rights must be included by a trial court as a condition of probation, nor did we hold that a search of the probationer's residence could be conducted without warrant or probable cause in the absence of such a clause."

Vermilya, 395 N.W.2d at 152. The Court did not further discuss or explain the Fourth Amendment tests used in Schlosser or Perbix.

[¶17] After Vermilya, in 1987 the United States Supreme Court in Griffin v. Wisconsin affirmed a probation officer's warrantless search of the supervised probationer's home based on unsubstantiated information from a police detective. 483 U.S. 868, 871, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). The search was deemed constitutional because of reasonable suspicion of misconduct found by the state court, and based on a " special need" and a valid state regulation governing probationers. Id. at 880.

[¶18] The Griffin opinion discusses the State's interest in fostering the relationship between the probation officer and his " client" so that the public and the probationer are protected. 483 U.S. at 878-79. It makes much of the fact that, unlike normal law enforcement, the probation officer was " an employee of the State Department of Health and Social Services who, while assuredly charged with protecting the public interest, is also supposed to have in mind the welfare of the probationer (who in the regulations is called a 'client[.]')" . Id. at 876 (citation omitted). The Court justified departing from a probable cause standard, stating:

" [I]t is both unrealistic and destructive of the whole object of the continuing probation relationship to insist upon the same degree of demonstrable reliability of particular items of supporting data, and upon the same degree of certainty of violation, as is required in other contexts. In some cases--especially those involving drugs or illegal weapons--the probation agency must be able to act based upon a lesser degree of certainty than the Fourth Amendment would otherwise require in order to intervene before a probationer does damage to himself or society. The agency, moreover, must be able to proceed on the basis of its entire experience with the probationer, and to assess probabilities in the

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light of its knowledge of his life, character, and circumstances."

Id. at 879. The Griffin Court held, " In such a setting, we think it reasonable to dispense with the warrant requirement." Id. at 877. Important for purposes of the instant case is that the Wisconsin regulation in Griffin required " reasonable grounds" to search. Id. at 870-71. Reasonable grounds existed and Griffin therefore sheds no light on the question whether Ballard could be subject to a suspicionless probationary search.

[¶19] State v. Raywalt, 444 N.W.2d 688 (N.D. 1989), was decided next. There, Raywalt argued the probationary search of the house at which he was a guest was a subterfuge for a criminal investigation and therefore invalid under Perbix. Id. at 690. This Court rejected the claim, holding the predominate purpose of the search was to determine whether Raywalt was complying with his conditions of probation. Id. Thus, " the search contributed to the rehabilitation process and was reasonable" so that the warrantless search did not violate Raywalt's Fourth Amendment rights. Id. Raywalt used the Perbix formulation of the legal test holding that the reasonable performance of the search, the contribution to the rehabilitative process and the fact a search is not a subterfuge for criminal investigation means the search is " valid and not violative of the Fourth Amendment." State v. Raywalt, 444 N.W.2d 688 (N.D. 1989). But, as relevant to the case at bar, Raywalt provides no new guidance whether the Fourth Amendment is violated by a suspicionless search of an unsupervised probationer.

[¶20] In State v. Smith, 1999 ND 9, 589 N.W.2d 546, the issue was whether reasonable suspicion was required prior to conducting a search of a supervised probationer. Id. at ¶ ¶ 2, 9. Smith argued Raywalt did not discuss Griffin, and that Griffin requires that Perbix be overturned. Id. at ¶ ¶ 16, 17. This Court took up both the Griffin " special need" language and the Schlosser and Perbix legal test on the way to concluding, " because the search of Smith's home and car was performed in a reasonable manner, we conclude the search did not violate Smith's Fourth Amendment rights[.]" Id. at ¶ 24.

[¶21] The Smith decision raises several concerns. First, the Fourth Amendment holding in Smith is dicta because the case was decided on the basis that reasonable suspicion supported the search. 1999 ND 9, ¶ ¶ 18-19, 589 N.W.2d 546 (" Griffin does not specifically require reasonable suspicion; it requires the search to be reasonable under a state's statute on probationer searches . . . . While a valid probationary search need only be reasonable, the reasonable suspicion standard was met here." ). Second, the Smith Court takes an incorrect cue from Griffin, Schlosser, Perbix and Raywalt by improperly equating the reasonableness of the search with constitutional reasonableness under the Fourth Amendment. Smith, at ¶ 9 (" We hold the search did not violate the Fourth Amendment because 'reasonable suspicion' is not required for a probationary search as long as the search is reasonable." ); Id. at ¶ 18 (" Griffin does not specifically require reasonable suspicion; it requires the search to be reasonable under a state's statute on probationary searches. Further, nothing in Griffin suggests the clear logic and holding in Perbix should be reversed." ). This truncated test prevents use of the required traditional Fourth Amendment analysis.

[¶22] In 2001 the United States Supreme Court decided Knights. There, the Court held that a sheriff deputy's warrantless search of a probationer's home was constitutional when based on reasonable

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suspicion of unlawful activity. 534 U.S. at 114. Doing so the Court mentioned, but did not use, the Griffin " special need" analysis and instead concluded a warrantless search of the probationer's home " was reasonable under our general Fourth Amendment approach of 'examining the totality of the circumstances.'" Id. at 118 (citation omitted). Wholly absent was any mention of concern about diminishing a probationer's Fourth Amendment protections out of the need to foster a relationship between the probation officer and a " client." Thus, the two justifications in Griffin for reducing a probationer's Fourth Amendment protections were not used in Knights. The Court instead stated, " reasonableness of a search is determined 'by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.'" Id. at 118-19. The Knights Court described its legal test as " ordinary Fourth Amendment analysis that considers all the circumstances of a search." Id. at 122.

[¶23] Shortly after Knights, this Court decided State v. Maurstad, 2002 ND 121, 647 N.W.2d 688. In Maurstad, the supervised probationer argued the warrantless search was a subterfuge for law enforcement's investigatory purpose and thus invalid. Id. at ¶ 12. This Court rejected the claim, holding Knights utilized " ordinary Fourth Amendment analysis that considers all the circumstances of a search . . . ...

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