State v. Hass

• Decision Date: 27 July 1988
• Docket Number: No. 16845,16845
• Citation: 758 P.2d 713,114 Idaho 554
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Gregory E. HASS, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 713

758 P.2d 713

114 Idaho 554

STATE of Idaho, Plaintiff-Respondent, v. Gregory E. HASS, Defendant-Appellant.

No. 16845.

Court of Appeals of Idaho.

July 27, 1988.

Dennis S. Voorhees, Twin Falls, for defendant-appellant.

Jim Jones, Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., for plaintiff-respondent.

SWANSTROM, Judge.

Gregory Hass appeals from an order revoking his probation after the district court determined that Hass was in violation of its terms by possessing controlled substances. The court ordered Hass to serve two indeterminate seven-year concurrent sentences he had received after being convicted for two counts of first-degree burglary. On appeal, Hass contends that the report of probation violation failed to comply with a due process requirement of notice to Hass of the facts allegedly constituting the violation. He also contends that the court abused its discretion in revoking probation and by requiring the previously imposed sentences to be served. For reasons given below, we affirm.

In December 1986, pursuant to information obtained from an informant, Twin Falls police and local probation officers conducted a search of Hass' residence. Hass and two of his friends were present during the search. At the time Hass was on probation after pleading guilty to two counts of first-degree burglary. The search by the officers led to the seizure of various items, including drug paraphernalia and approximately an ounce of marijuana. The next day Hass underwent an urinalysis test for which he tested positive for cannabinoids. Later that day a violation report was filed with the district court alleging that Hass had violated his probation by the unlawful use or possession of controlled substances and drug paraphernalia.

At a hearing on the violations, various pipes, roach clips and other items described as drug paraphernalia found in the house were offered in evidence, as were the results of Hass' urinalysis. Police and probation officers also testified to finding marijuana in three separate places in the residence. The largest quantity, four separate bags along with a small amount of loose material, was found under a couch in the living room. Another bag was found in the pocket of a jacket on the couch. The last amount of marijuana was found in Hass' bedroom. Inside the room the officers found a pair of gloves. Three officers testified that in one of the gloves a cigarette package containing marijuana stems, seeds and chaff was discovered. At the hearing, Hass made no objection to this testimony. The items were not offered in evidence until a fourth officer testified. Hass then objected to the admission of the gloves and their contents on due process grounds, contending that they were not within the evidence included in the violation report. The violation report summarized the evidence seized in the search as "smoking devices believed to be drug paraphernalia, as well as a substance believed to be marijuana (29.80 grams packaged weight)." Hass contended the gloves and their contents were neither paraphernalia nor part of the marijuana quantity referenced in the report.

The district court admitted the items as evidence over the objections of Hass and found Hass guilty of the two violations based on the marijuana in the glove. The court concluded that the state had failed to establish Hass' ownership interest in the paraphernalia. This conclusion followed from Hass' testimony that another adult, staying with Hass at the time, owned the paraphernalia. Hass also denied ownership and knowledge of the four bags of marijuana found under the couch. The court failed to reach any conclusion regarding possession or ownership of this marijuana. The court also tacitly accepted Hass' argument that the positive urinalysis for cannabinoids was the result of "passive" ingestion of smoke from users of the drug at a recent party. The state did not argue or present any evidence that Hass owned the jacket in which the fifth bag of marijuana was found.

Hass' first contention is that the violation report failed to satisfy a due process requirement that he be apprised of the facts allegedly constituting a probation violation. His arguments are based in part on Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In these cases the U.S. Supreme Court set out due process requirements in probation and parole revocation proceedings.

In Morrissey the Court began "with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations." 408 U.S. at 480, 92 S.Ct. at 2600. However, the Court then held that the nature of the interest being protected in revocation proceedings, the loss of the parolee's liberty, was such that some procedural process, in accord with the fourteenth amendment, was due. The Court described the minimum requirements of due process at the revocation hearing to be:

(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.

Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604. Gagnon extended the due process protection of Morrissey to a probation revocation proceeding. The Court noted there was little "difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation." See also State v. Chapman, 111 Idaho 149, 721 P.2d 1248 (1986).

Hass also calls attention to the case of State v. Edelblute, 91 Idaho 469, 424 P.2d 739 (1967), where the Idaho Supreme Court held that in a revocation hearing the probationer is to be advised of: (1) the alleged violated term or condition of probation, (2) the manner and circumstances of the violation, and (3) all pertinent information received by the court. The probationer was also to be given an opportunity: (a) to call witnesses, (b) to testify, (c) to produce evidence, and (d) rebut adverse evidence, including cross-examination of witnesses.

The pertinent objective of the procedural safeguards of Morrissey and Edelblute is the minimization of surprise so a parolee or probationer may prepare a meaningful defense. Edelblute describes the requirement of "charges sufficiently specific that the probationer be informed of the ... manner and circumstances of his violation," 91 Idaho at 480, 424 P.2d at 750, while Morrissey states the need for "disclosure to the parolee of evidence against him." 408 U.S. at 489, 92 S.Ct. at 2604. Hass' argument is...