Com. v. LaFrance

Decision Date11 July 1988
Citation525 N.E.2d 379,402 Mass. 789
PartiesCOMMONWEALTH v. Aldina LaFRANCE.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Louis D. Coffin, New Bedford, for defendant.

Cynthia A. Vincent, Asst. Dist. Atty., for Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

WILKINS, Justice.

A judge in the Superior Court required as a special condition of the defendant's probation that, while on probation, she submit to a search of herself, her possessions, and any place where she may be, with or without a search warrant, on request of a probation officer. The defendant challenges that special condition on State and Federal constitutional grounds because it authorizes a blanket search without a warrant.

We agree that both art. 14 of the Massachusetts Declaration of Rights and the Fourth Amendment to the Constitution of the United States forbid the search of a probationer or her premises unless the probation officer has at least a reasonable suspicion that a search might produce evidence of wrongdoing. The requirement that the probation officer have reasonable suspicion should be set forth expressly in any order imposing such a special condition. We reject the Commonwealth's argument that we should affirm the order because it impliedly includes the reasonable suspicion standard. There are, moreover, circumstances in which, under art. 14, a search of a probationer and her premises can be lawful only if conducted pursuant to a search warrant. We shall remand the case for the entry of a revised special condition concerning searches of the defendant while she is on probation.

The defendant pleaded guilty in 1985 to indictments charging her with burglary and larceny. She received a suspended sentence with probation for two years. The defendant violated the terms of her probation by committing motor vehicle offenses and by failing to report to her probation officer. 1 The judge revoked the defendant's probation and ordered her to be confined in a house of correction for one year, of which only three months would be served and the balance would be suspended with probation for two years. The judge then imposed special conditions, including the one challenged here. 2

Defense counsel objected that the special condition concerning searches authorized illegal searches and seizures. In the course of an extended colloquy between defense counsel and the judge concerning the circumstances in which a probation officer would be entitled to conduct a search pursuant to the special condition, the judge stated that the probation officer would be expected to use "some common sense and discretion." The judge suggested that, if the defendant would not accept the condition, he could decide not to suspend any part of the sentence. The defendant accepted the conditions in order to limit the time she would have to serve in the house of correction. We transferred the defendant's appeal here on our own motion. 3

Any discussion of the requirements of the Fourth Amendment as applied to searches of probationers and places where they are found must be based largely on the views recently expressed in Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). In that case the Supreme Court upheld, by a five-to-four vote, the seizure of a weapon in the probationer's apartment by probation officers acting pursuant to a Wisconsin regulation that purported to authorize a warrantless search if there were "reasonable grounds" to believe contraband present. Id. 107 S.Ct. at 3166. The Court found it unnecessary to embrace the apparent position of the Supreme Court of Wisconsin that any search of a probationer's home by a probation officer satisfies the Fourth Amendment so long as the information possessed by the officer satisfies a Federal "reasonable grounds" standard. The Court preferred to express its view that the demands of the Fourth Amendment were met because the search "was carried out pursuant to a regulation that itself satisfies the Fourth Amendment's reasonableness requirement under well established principles." Id. at 3167.

The Supreme Court rejected any requirement that such a search be conducted only on probable cause in its traditional sense and analogized the case to administrative search cases in which lower standards justifying a search are applicable. Id. at 3167-3168. See New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 2643-2644, 96 L.Ed.2d 601 (1987); United States v. Biswell, 406 U.S. 311, 316, 92 S.Ct. 1593, 1596, 32 L.Ed.2d 87 (1972); Camara v. Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967). See also New Jersey v. T.L.O., 469 U.S. 325, 341-342, 105 S.Ct. 733, 742-743, 83 L.Ed.2d 720 (1985). It is not easy, however, to determine from the Court's opinion whether the existence of a regulation governing searches of probationer's premises was essential to the Court's conclusion that a probationer may be subjected to a warrantless search by a probation officer where there are "reasonable grounds" to believe contraband is present. The dissent of Justice Blackmun, joined by Justice Marshall in this respect, without reference to the existence of regulations, accepts the principle "that special law-enforcement needs justify a search by a probation agent of the home of a probationer on the basis of a reduced level of suspicion." Id. 107 S.Ct. at 3172 (Blackmun, J., dissenting). We suspect the Supreme Court would approve of a warrantless search of a probationer's residence based on a reasonable suspicion that evidence of a probation violation would be found.

We accept for art. 14 purposes the principle that a reduced level of suspicion, such as "reasonable suspicion," will justify a search of a probationer and her premises. There is a need to supervise such an offender both to aid in the probationer's rehabilitation and to ensure her compliance with the conditions of probation. The lower standard will protect the public interest, while it also protects a probationer from unwarranted intrusions into her privacy. It appears doubtful that any standard below reasonable grounds or reasonable suspicion would meet Fourth Amendment requirements. It would not, in any event, meet art. 14 requirements.

Consequently, the order containing the challenged special condition of probation should be revised to authorize a search only on reasonable suspicion. We need not define here the limits of reasonable suspicion. Each case will depend on the circumstances, including the terms of probation, the nature of the supervision required, and, of course, the nature of the information on which the probation officer relied in deciding that a probation violation was reasonably suspected. 4 It may be that Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968), and subsequent cases (see New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 742, 83 L.Ed.2d 720 (1985), and cases cited) will provide guidance in defining reasonable suspicion. See United States v. Scott, 678 F.2d 32, 35 (5th Cir.1982) (expressly adopting Terry v. Ohio standard as governing probationer searches); United States v. Bradley, 571 F.2d 787, 790 n. 4 (4th Cir.1978) ("articulable grounds" must be advanced). 5

The Supreme Court divided in the Griffin case over the question whether under the Fourth Amendment a warrant was required in support of the search of the probationer's home. The Court held that no warrant was required. It may have reached that result because there was a State regulation governing the conduct of such searches and because that regulation provided that a probation officer must obtain his superior's approval of a warrantless search. Such a regulation would tend to discourage arbitrary conduct and to lend support to the reasonableness of any search. See Commonwealth v. Bishop, 402 Mass. 449, 451, 523 N.E.2d 779 (1988), and cases cited. We suspect that a search warrant authorizing a search of a probationer's premises, issued on the basis of reasonable suspicion, would satisfy the Fourth Amendment, even if the search was not conducted pursuant to an administrative regulation. Quite apart, however, from the question whether the Fourth Amendment would impose a warrant requirement in the circumstances of our case (barring the applicability of one of the established exceptions to that requirement, such as exigent circumstances), we must consider whether there is any sound reason to eliminate the usual requirement imposed by art. 14 that a search warrant be obtained.

We are persuaded that a warrantless search of a probationer's home, barring the appropriate application of a traditional exception to the warrant requirement, cannot be justified under art. 14. Mr. Justice Blackmun's dissent in the Griffin case (joined on this point by Justices Brennan and Marshall) has the better of the argument concerning the propriety of a warrantless search of a probationer's home. Griffin v. Wisconsin, supra 107 S.Ct. at 3174-3175. The Court's...

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  • Commonwealth v. Feliz
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 23, 2020
    ...searches under art. 14 because "a search of a probationer must be based upon reasonable suspicion." See Commonwealth v. LaFrance, 402 Mass. 789, 790, 525 N.E.2d 379 (1988) ; Commonwealth v. Waller, 90 Mass. App. Ct. 295, 304, 58 N.E.3d 1070 (2016). After a hearing in July 2018, a Superior C......
  • Horsemen's Benev. and Protective Ass'n, Inc. v. State Racing Com'n
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 9, 1989
    ...to serve safety or deterrence values which are merely speculative, and have no basis in the record. Compare Commonwealth v. LaFrance, 402 Mass. 789, 792-793, 525 N.E.2d 379 (1988) (upholding search of probationer and her premises on basis of "reasonable suspicion" because of public need to ......
  • Commonwealth v. Norman
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 17, 2020
    ...voluntary waiver and consent generally inapplicable." See Feliz, 481 Mass. at 702, 119 N.E.3d 700, quoting Commonwealth v. LaFrance, 402 Mass. 789, 791 n.3, 525 N.E.2d 379 (1988). Here, the only evidence of consent is the fact that the defendant signed the form. If he had not, the consequen......
  • Com. v. Olsen
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • August 7, 1989
    ...377, 380, 339 N.E.2d 740 (1975).5 Both Rea and Workman involved warrantless searches by probation officers. See Commonwealth v. LaFrance, 402 Mass. 789, 525 N.E.2d 379 (1988). ...
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1 books & journal articles
  • Is It Reasonable? A Legal Review of Warrantless Searches of Probationers and Parolees
    • United States
    • Criminal Justice Policy Review No. 27-7, November 2016
    • November 1, 2016
    ...No Yes, if the offender is a sex offenderMaine No response No response Maryland Md. § 6-109 No NoMassachusetts Commonwealth v. Lafrance, 525 N.E.2d 379 (1988)Supervision Must be at the direction/request of P/POMichigan People v. Krusell, Not reported in N.W.2d (2012)Supervision Minnesota St......

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