Dearth v. State
| Decision Date | 05 November 1980 |
| Docket Number | No. 79-1933,79-1933 |
| Parties | Michael Doran DEARTH II, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Martin H. Colin, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
In this appeal, Michael Dearth II challenges the validity of a condition of his probation that requires him to voluntarily submit to reasonable searches of his person, home or vehicle by his probation officer or authorized police officers.
Dearth entered a plea of no contest to the charge of grand theft. He admitted to participating in the theft of some $300 worth of carpeting by accepting the sum of $20 to "look the other way" while the carpeting was removed from premises where he worked as a night watchman. The trial court adjudicated Dearth guilty and placed him on probation for five years. The record reflects that Dearth has no prior criminal record but is an admitted alcoholic. Prior to accepting Dearth's plea, the following colloquy between the court and defense counsel took place:
I would ask the Court to allow me to enter a plea of no contest in Mr. Dearth's behalf, allowing me to specifically appeal that point. If the Court doesn't allow me to do that, I think I can do it anyway.
The state contends that Dearth is precluded from challenging the condition of probation because he expressly consented to its imposition. Dearth maintains that his consent should not be viewed as a free and voluntary waiver of his constitutional guarantee against unreasonable searches because the court required him to consent in order for him to be placed on probation.
In Grubbs v. State, 373 So.2d 905 (Fla.1979), the Florida Supreme Court held that a unilaterally imposed condition of probation requiring a probationer to consent at any time to a warrantless search by law enforcement officers is violative of the Fourth Amendment to the United States Constitution and Article I, Section 12, of the Florida Constitution. The court specifically reserved determination of the issue here raised, namely, the effect of an express consent by a probationer to such a condition.
The issue to be resolved, then, is whether a probationer, by expressly agreeing to a search condition in order to receive probation in lieu of incarceration, should be deemed to have waived the right he would otherwise have under Grubbs to be protected from warrantless searches by law enforcement officers.
Initially we note that while Grubbs did not address the issue of express consent, it did address the issue of the reasonableness of extending the authority to search probationers to police officers and found such action unreasonable and unconstitutional. That is, while substantial and compelling reasons were found to authorize searches by probation officers, no such reasons were found to justify such searches by other law enforcement officers. So, we reject, on the authority of Grubbs, the contention that it is necessary to extend the search authority to police officers in order to properly supervise probationers.
Further, we do not believe it is reasonable to conclude that a probationer's consent to such a condition is voluntary when his only other alternative is incarceration. 1 We are aware of authority to the effect that a probationer voluntarily waives his Fourth Amendment rights as a condition to receiving probation instead of immediate incarceration. 2 The apparent rationale of these holdings is that the waiver is voluntary because a defendant has the "free choice" to refuse probation and undergo incarceration if he considers the conditions of probation more harsh than the sentence the court would otherwise impose. 3 We cannot agree with this reasoning.
In reality a defendant has little say in determining the terms of his probation. Under Florida law, the trial court is vested with broad discretionary authority to grant probation and to set the terms thereof. Section 948.01(3), Florida Statutes (1979), provides that the trial court may place a defendant upon probation if it appears to the court "that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law." Section 948.03 vests authority in the trial court to determine the terms and conditions of probation. To be valid the conditions should be reasonably related to the offense involved, the rehabilitation of the defendant or the protection of the public. Grubbs v. State, supra. Under this scheme of probation there is no requirement that the defendant consent to the conditions that are imposed. The defendant may have some voice in determining the terms of probation by appealing to the court's discretion, but in essence the trial court's determination is subject only to the test of reasonableness set out, supra, and the defendant's consent to such terms, if they are otherwise reasonable, is not material to their legality. Of course, if the defendant rejects valid conditions of probation or refuses to comply therewith the trial court may sentence the defendant to a term of incarceration.
In our view the proper test of voluntariness to be applied to the consent obtained in the instant case is the test set out in Schneckloth v. Bustamente, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) where the court applied the traditional standards of voluntariness developed in coerced-confession cases to determine whether a defendant's purported consent to a police search was voluntary. Two comments from the court's opinion are especially pertinent to a resolution of the issue involved herein:
As with police questioning, two competing concerns must be accommodated in determining the meaning of a "voluntary" consent-the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.
But the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force.
Schneckloth 93 S.Ct. at p. 2048.
As noted above, the Florida Supreme Court in Grubbs, supra, has already rejected the view that there is a legitimate need for police officers other than probation officers to be granted authority to search probationers. And the state has neither argued nor does the record demonstrate any reasons peculiar to this case necessitating that Dearth be subjected to warrantless searches by anyone other than his probation officer. So, one of the competing concerns discussed in Schneckloth, the legitimate need for such searches, is not of great weight here.
On the other hand, the requirement under Schneckloth that there be an absence of coercion is of great concern to us. As noted by one commentator:
Given the long established rule that a confession is not voluntary when given in response to an assurance by the maker "that, by so doing, he might at least obtain a mitigation of the punishment for the crime which otherwise would assuredly follow," it would seem doubtful that any waiver of Fourth Amendment rights obtained as the quid pro quo of a grant of probation or parole could pass muster under Schneckloth. 4
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