State v. Culbertson

• Decision Date: 09 May 1977
• Citation: 563 P.2d 1224,29 Or.App. 363
• Parties: STATE of Oregon, Appellant, v. Walter Edward CULBERTSON, Jr., Respondent.
• Court: Oregon Court of Appeals

Page 1224

563 P.2d 1224

29 Or.App. 363

STATE of Oregon, Appellant, v. Walter Edward CULBERTSON, Jr., Respondent.

Court of Appeals of Oregon.

Argued and Submitted Dec. 21, 1976.

Decided May 9, 1977.

Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

John Henry Hingson, III, Oregon City, argued the cause and filed the brief for respondent.

Before SCHWAB, C.J., and TANZER and RICHARDSON, JJ.

TANZER, Judge.

This is a consolidated appeal by the state from orders suppressing evidence in two criminal cases arising from the same facts. The home of defendant, a probationer, was searched in his absence, without a warrant, by his probation officer and a deputy sheriff. Observations made during that search were set forth in an affidavit in support of a search warrant, the fruits of which were suppressed. If the initial search was unlawful, then the second search cannot stand. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The issue then is whether the initial warrantless search by the probation officer was lawful.

Defendant was placed on three years probation in April, 1973. On about January 20, 1976, his probation officer, Mr. Heesch, received information from a police officer that defendant had about 50 pounds of marihuana in his house. Heesch testified that it was his impression the police could not obtain a warrant because either the informant or the information was not sufficiently reliable.

On February 11, 1976, Heesch, accompanied by a deputy sheriff, went to defendant's residence. When no one answered their knocking they called out and then opened the unlocked door and entered. No one was present in the residence. Their cursory search disclosed remnants of marihuana cigarettes in the living room and a baggie of marihuana in the kitchen.

An affidavit of the deputy sheriff in support of a search warrant recited the observations made during the first search and the evidence found. Upon execution of the search warrant, law enforcement officers found additional marihuana and some peyote in defendant's house.

There was a probation revocation hearing at which the court heard testimony and suppressed the evidence arising from the search of defendant's home. The parties stipulated in the cases at bar that the same judge could consider the evidence adduced earlier at the probation hearing and the orders of suppression are based thereon.

1. The Record on Appeal

First defendant asserts that we may not consider the assignment of error because the transcript is incomplete and the state, as appellant, has the responsibility for its completeness. State v. Burns/Sundquist, 15 Or.App. 590, 516 P.2d 479 (1973).

The probation revocation hearing commenced on a date not disclosed in the record and was continued to May 18, 1976. The state designated for the record on appeal a transcript only of the proceedings on May 18, 1976, and the hearing on the motion to suppress evidence in the cases at bar. The transcript of the May 18 hearing begins with cross-examination by defendant of Mr. Heesch. Obviously Mr. Heesch had testified during the previous proceedings.

The resolution of this assertion requires an examination of the respective responsibilities of appellant and respondent for completeness of the record. ORS 19.029(1)(d) and (e) ¹ require that appellant designated in the notice of appeal points on appeal and the portion of the record upon which he relies. If the respondent determines that the record as designated by the appellant is inadequate for the resolution of the points on appeal set out in the notice of appeal, then ORS 19.029(2) ² gives to respondent the responsibility and authority to designate additional portions of the record as respondent deems necessary. Only if the appellant does not designate points on appeal in the notice of appeal is appellant required to designate the entire record. In that case, appellant designates the record at appellant's hazard. State v. Burns/Sundquist, supra.

In each of these cases, appellant designated as its sole point on appeal that 'the trial court erred in allowing defendant's motion to suppress evidence.' Under ORS 19.029(2) defendant, as respondent, had the opportunity of and responsibility for designating any additional portions of the record which he felt might be helpful for the resolution of that point. His failure to do so is, in effect, a stipulation that the portion of the record designated by appellant is sufficient for disposition of appellant's point on appeal. Not having supplemented the record prior to the settlement of the transcript, defendant cannot be heard to complain for the first time in his responding brief that appellant's designation of record was insufficient. Therefore, we proceed to the merits.

2. The Validity of the Search

We have hitherto held in State v. Davis/Travis, 9 Or.App. 412, 496 P.2d 923, Rev. den. (1972), that the Fourth Amendment relationship of probationer and probation officer is controlled by these two principles:

'(A). A search by a parole or probation officer need not satisfy completely the usual test of 'probable cause'; (B). The search must have been actuated by the legitimate operation of the probation supervision process. * * *'

Defendant contends that the dual standards of Davis/Travis are incorrect and should be reconsidered.

The first standard, that intrusions upon the probationer's privacy can be made upon some cause less than probable cause, is insufficiently precise to provide guidance for executive action or judicial application. Probation officers may have legitimate need to intrude upon a probationer's privacy due to information of unestablished reliability, experience in similar cases, or the desire for spot checks. The concept of probable cause does not work well in the context of probation. The concept of diluted probable cause works even less well and is no standard at all.

That leaves the second Davis/Travis standard, whether the search is within the legitimate purposes of probation, to be considered standing alone.

There is little law, even when augmented by analogous parole cases, and no unanimity about the civil liberties relationship of probation officer and probationer. The remaining rule of Davis/Travis that a probation officer may invade the privacy of the probationer in any way if it is for probation--related purposes has support in the much cited parole case of Latta v. Fitzharris, 521 F.2d 246 (9th Cir.), Cert. den. 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975), which divided the United States Court of Appeals three ways. At the other end of the spectrum is the idea that probationers and parolees retain their Fourth Amendment rights without restriction, State v. Cullison, 173 N.W.2d 533, 536 (Iowa 1970); See Note, Fourth Amendment Limitations on Probation and Parole Supervision, 1976 Duke L.J. 71, 94. Neither extreme is satisfactory.

The first, as in Davis/Travis, is so broad as to make just application impossible. Since any act by the probation officer short of outright harassment could be justified under such a broad standard the probation officer would have absolute powers, the probationer would be absolutely denuded of his constitutional protections and, contrary to the intent of the Fourth Amendment, the decision to search would be completely executive rather than judicial. Therefore, both struts of the Davis/Travis doctrine are abandoned and its reasoning is overruled.

The other extreme, however, that Fourth Amendment rights are unaffected by probation, ignores the legitimate needs of the supervisory aspect of probation. A probation officer and probationer stand in a more intricate relationship than do policeman and citizen, and different rules of privacy are reasonable to control each different relationship. We look to the probation officer both as a guidance counselor for his probationer and as a surrogate jailer who must protect the public from a person convicted of crime but allowed conditional liberty. If the probation officer is to perform both functions effectively, his authority to act must be defined more liberally than that of a police officer. The result of a rule restricting a probation officer's supervisory authority to that of a policeman and giving a probationer the same protection of privacy as any other citizen, would be to render probation a less effective penal remedy.

There is a middle way which better satisfies all interests and it begins with basic concepts. The analysis must first determine the extent and nature of the probationer's right under the Fourth Amendment to be free from unreasonable searches and seizures.

The general pattern of Oregon law is that a probationer is a free person possessed of all civil rights except those which are taken away from him for probationary purposes. Probation is a process of imposition of rehabilitative and protective conditions upon a convict in lieu of taking away his liberty by incarceration. His scheme is consistent with the recognition by the United States Supreme Court that prisoners, even while incarcerated, retain those constitutional rights that are not inconsistent with legitimate penological objectives. Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972).

ORS 137.275 ³ provides that a convict does not lose any of his civil liberties solely by virtue of conviction. Upon conviction, however, ORS 137.540 ⁴ gives to the court responsibility and authority to restrict or take away a probationer's liberties by imposing conditions of probation. We are directed to no statutorily required conditions. Rather the generality of ORS 137.540 indicates an intention to grant to the court the broadest possible power to formulate appropriate conditions in each case. Subsection (12) allo...