Grubbs v. State

• Decision Date: 26 July 1979
• Docket Number: No. 54980,54980
• Citation: 373 So.2d 905
• Parties: Johnny Lee GRUBBS, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 905

373 So.2d 905

Johnny Lee GRUBBS, Petitioner, v. STATE of Florida, Respondent.

No. 54980.

Supreme Court of Florida.

July 26, 1979.

Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for petitioner.

Jim Smith, Atty. Gen., and Kenneth G. Spillias, Asst. Atty. Gen., West Palm Beach, for respondent.

OVERTON, Justice.

This is a petition for writ of certiorari to review a decision of the Fourth District Court of Appeal upon the following certified question:

Is a condition of probation requiring a probationer to consent to a search at any time, by any law enforcement officer, violative of the probationer's rights under the Fourth Amendment of the United States Constitution or Article I, Section 12, of the Florida Constitution?

Grubbs v. State, 362 So.2d 396, 397 (Fla. 4th DCA 1978).

By its nature, this question therefore concerns not only the validity of any special authority of law enforcement officials but also includes the authority of probation supervisors to search probationers without a warrant in the absence of an approved exception to the warrant requirement. There are numerous factors which must be considered in order to ensure a proper interpretation of our answer to this question. Law enforcement officers and probation supervisors have different responsibilities. Consequently, their authority to search a probationer is not the same although many cases treat their actions similarly without regard to these differing responsibilities. In summary we hold: (1) the authority of law enforcement officers and probation supervisors to conduct a warrantless search of a probationer is not dependent upon the presence of an express search condition in an order of probation; (2) a warrantless search of a probationer's person or residence by a probation supervisor is valid to the extent that the evidence discovered is used only in probation violation proceedings; (3) the use of seized evidence in a new criminal proceeding requires compliance with customary fourth amendment requirements although the opportunity to meet those requirements may be easier because the defendant is a probationer; (4) to the extent it intends to grant greater authority to law enforcement officers to conduct a warrantless search, a unilateral search condition set forth in an order of probation requiring a probationer to consent at any time to a warrantless search is a violation of the fourth amendment to the United States Constitution and article I, section 12, of the Florida Constitution. We have not addressed in this opinion the effect of a consent-to-search condition in a probation order which has been expressly and voluntarily agreed to by a probationer.

The record reflects that the petitioner was found guilty by a jury of one count of robbery with a firearm and one count of attempted robbery. The trial judge sentenced him to life imprisonment for the robbery offense with the provision that after serving eighteen years of confinement he would be placed on probation for life. For the conviction of attempted robbery, the petitioner was placed on probation for a period of fifteen years to run consecutively to the imprisonment imposed for the robbery conviction. The order of probation contained the following condition: "The court retains custody of the person of the probationer and authorizes any Probation Supervisor and any law enforcement officer to search, at any time, the probationer and all vehicles and premises concerning which he has legal standing to give consent to search." The district court held the condition proper, citing Isaacs v. State, 351 So.2d 359 (Fla. 4th DCA 1977), and Pace v. State, 350 So.2d 1075 (Fla. 4th DCA 1977).

The question of the validity of warrantless searches of a probationer's person or place of residence has produced varying views in state and federal jurisdictions. Clearly a probationer should not enjoy the same status as an ordinary citizen. A probationer has been convicted of a criminal offense but has been granted the privilege of being free on probation conditioned on his supervision by a probation officer. Under these circumstances, the probationer is entitled to some but not all due process rights.

We recognize that an individual does not absolutely forfeit the protection of the fourth amendment prohibition of unreasonable searches and seizures merely by assuming the status of a probationer, Croteau v. State, 334 So.2d 577 (Fla.1976), nor does the probationer totally lose his fifth amendment privilege against self-incrimination, State v. Heath, 343 So.2d 13 (Fla.), Cert. denied, 434 U.S. 893, 98 S.Ct. 269, 54 L.Ed.2d 179 (1977). By reason of the probationer's status, however, these rights are qualified rights. An illustration is the distinction that has developed in the application of the exclusionary rule in federal proceedings to evidence offered in probation violation proceedings contrasted with its application to evidence used to prosecute a new criminal charge against a probationer.

Because of the apparent confusion in this area of the law, it is important that we clarify the authority of a probation supervisor to search a probationer.

Use of Evidence in Probation Violation Proceedings

All authorities agree that the probation supervisor has the authority to visit the probationer's home or place of employment without the necessity of a warrant. United States v. Workman, 585 F.2d 1205, 1208 (4th Cir. 1978); Croteau v. State, 334 So.2d 577, 580 (Fla.1976); Cf. Wyman v. James, 400 U.S. 309, 317-18, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971) (caseworker's visit to home of welfare recipient is not a search). Chapter 948, Florida Statutes (1977), provides that a defendant placed on probation shall be under the "supervision and control" of the Department of Offender Rehabilitation. It is our view that this statute inherently includes the duty of the probation supervisor to properly supervise the individual on probation to ensure compliance with the probation order. The statute further expressly authorizes the probation supervisor to arrest a probationer without a warrant and to bring the probationer before the court which entered the probation order whenever there is a reasonable ground to believe the probationer has violated his probation. § 948.06, Fla.Stat. (1977).

It would be impossible to properly supervise an individual on probation if the probation supervisor had no authority to enter upon the living quarters of his probationer to observe his lifestyle; to require the probationer to respond to the probation supervisor concerning requests for information including place of residence, employment, identity, to confirm or deny his location at a particular place or at a particular time; to explain his noncriminal conduct; and to permit a reasonable search of his person and quarters by the supervisor. In our view it would be unreasonable to require a probation supervisor to supervise an individual on probation in the absence of such authority.

In Croteau v. State, 334 So.2d 577 (Fla.1976), we held that a probation officer had the authority to enter upon the living quarters of his probationer and to conduct a warrantless search. We further held that any evidence discovered would be admissible in probation revocation proceedings although the same evidence would not be admissible to prove a new criminal offense. In State v. Heath, 343 So.2d 13 (Fla.), Cert. denied, 434 U.S. 893, 98 S.Ct. 269, 54 L.Ed.2d 179 (1977), we held that a probationer, upon a specific request and at periodic intervals, was required to identify himself and provide all information necessary to his supervision. We specifically determined that admissions or statements made by the probationer to his supervisor would be admissible in probation revocation proceedings. In that decision we reiterated the fact that the exclusionary rule for statements obtained in violation of the fifth amendment privilege against self-incrimination would be applicable to statements offered at a trial for a separate criminal offense.

Numerous federal jurisdictions, including the Fifth Circuit Court of Appeals, have considered this issue. In United States ex rel. Lombardino v. Heyd, 318 F.Supp. 648 (E.D.La.1970), Aff'd, 438 F.2d 1027 (5th Cir.), Cert. denied, 404 U.S. 880, 92 S.Ct. 195, 30 L.Ed.2d 160 (1971), the probationer was stopped and frisked without a warrant by a policeman who had been the arresting officer on the burglary charge for which the probationer was on probation. As a result of the search, a tin of marijuana was discovered. The trial judge held that the search was illegal, finding there were neither reasonable grounds for suspicion that the probationer was armed nor probable cause for arrest. After this hearing, the state dropped charges of possession of marijuana. Subsequently, the same trial judge, at a probation revocation proceeding, found that the probationer had violated conditions of his probation because of the possession of marijuana found in the illegal search. The decision of the trial judge was affirmed, in effect recognizing the differences between a new criminal proceeding and a probation revocation hearing...