State v. Fogarty

• Decision Date: 19 May 1980
• Docket Number: No. 14437,14437
• Citation: 610 P.2d 140,187 Mont. 393
• Parties: The STATE of Montana, Plaintiff and Respondent, v. William Edward FOGARTY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 140

610 P.2d 140

187 Mont. 393

The STATE of Montana, Plaintiff and Respondent, v. William Edward FOGARTY, Defendant and Appellant.

No. 14437.

Supreme Court of Montana.

Submitted March 13, 1980.

Decided April 24, 1980.

As Amended May 19, 1980.

Morales, Volinkaty & Harr, Missoula, Bruce Harr, argued, Missoula, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Allen Chronister, argued, Asst. Atty. Gen., Helena, Douglas G. Harkin, County Atty., Hamilton, for plaintiff and respondent.

SHEA, Justice.

Defendant appeals from an order of the Ravalli County District Court revoking a ten-year suspended sentence and ordering him to prison. Defendant remains free on his own recognizance pending this appeal.

Defendant attacks the order revoking his suspended sentence on the grounds that the revocation order was based upon the results obtained from a search of his home and a polygraph examination administered to him. The search was conducted pursuant to an unlimited search provision, and the polygraph examination was performed pursuant to an unlimited polygraph examination provision both of which were placed in the original judgment as conditions of probation. Defendant attacks these provisions on several constitutional grounds.

There is no statutory authority directly authorizing either of the two questioned provisions. Section 46-18-201(b), MCA, however, permits a trial court, when placing a person on probation, to impose any reasonable restrictions on the defendant during the period of probation. These conditions must, of course, be reasonably related to the rehabilitation of the defendant or the protection of society. Section 46-18-201(a)(1), MCA. Furthermore, section 46-18-202, MCA, is a broad grant of authority permitting a trial court to impose additional restrictions which may be considered necessary to carry out the dual objectives of rehabilitation of the defendant and the protection of society. Imposition of conditions under the express or implied authority of the statutes, must, of course, comply with the broad objectives for the laws of punishment contained in our constitution. Article II, Section 28 provides that "(l)aws for the punishment of crime shall be founded on the principles of prevention and reformation . . . ." For two cases interpreting these statutory provisions, see State v. Babbitt (1978), Mont., 574 P.2d 998, 35 St.Rep. 154; and State v. Petko (1978), Mont., 581 P.2d 425, 35 St.Rep. 908.

Balanced against express or implied statutory sentencing powers are federal and state constitutional provisions which must be considered as part of the sentencing process. Needless to say, a sentence imposed under a liberal interpretation of a sentencing statute which in itself grants broad sentencing powers to a trial court does not necessarily pass constitutional muster. Constitutional provisions may well have a countervailing influence on the legality of the sentence imposed.

We have not directly ruled on the constitutionality of a search provision, and we have not ruled upon or even discussed the constitutionality of a polygraph provision. In relation to search provisions however, in State v. Means (1978), Mont., 581 P.2d 406, 35 St.Rep. 673, dicta in the majority opinion would seem to hold that a search provision is not constitutionally offensive. We note, however, that the opinion turned on the conclusion that probable cause to search existed independent of the search provision. To the extent that Means can be interpreted as permitting an unlimited search provision as a condition of probation, it is hereby expressly overruled.

The circumstances underlying the imposition of the questioned provisions shed little light on why the conditions were imposed. The search and polygraph provisions were inserted in the judgment in this case as part of a ten-year suspended sentence given to defendant after he had entered a guilty plea to selling a lid of marijuana to an acquaintance. Also required as part of this sentence was that defendant spend weekends for a year in the county jail.

The presentence investigation report prepared by the probation officer recommended that a warrantless search provision and a polygraph provision be placed in the judgment if the court saw fit to suspend the sentence. The report recommended that law enforcement officers have the right to search defendant's person or his residence or vehicle at any time, and also that the defendant subject himself to a polygraph examination whenever the probation officer made the demand. The challenged provisions in the judgment provide:

"b. That the defendant shall submit to a search of his person, premises or vehicles at any time by lawful authorities, without a search warrant.

"c. That the defendant shall submit to a polygraph examination by qualified examiners at any time, upon the request of any law enforcement officer and the results of such examination may be used in Court, without objection by the Defendant, against the Defendant in any proceeding in which the Defendant is involved."

Defendant raises other issues, but we dispose of this appeal by deciding that the unlimited polygraph condition is overly broad and thus an invalid condition of probation, and that the unlimited warrantless search warrant is an unconstitutional condition of probation.

The record is silent as to why the trial court imposed either of the conditions. It is possible, of course, that it relied upon the recommendations of the probation officer but even those recommendations provide no insight as to why the probation officer considered them to be necessary or desirable. At the hearing on the petition to revoke the suspended sentence, we are provided a glimpse as to why the probation officer recommended the polygraph condition, but nothing in relation to the search provision. While being cross-examined by defense counsel the following exchange appears:

"A. What was the purpose of having the polygraph condition?

"B. Well, it's a condition that we have recently imposed, for, well, I don't know, just to go along with the system, I guess."

The reference to the "system" is left unexplained.

The same hearing transcript provides little insight as to the trial court's attitude toward a polygraph condition, but nothing as to why he thought such condition to be necessary in this case. During an exchange with defense counsel after the trial court had denied all of defendant's motions and ruled that defendant was in violation of his probation, the trial court stated:

"THE COURT: Well, I understand your position, and you may have that in the Supreme Court. If I couldn't have put a condition like this on this man, he would be in the prison today, and if the Supreme Court says we can't do it, there will be a lot more going to prison."

The search provision in the judgment substantially follows the probation officer's recommendation; but the polygraph provision in the judgment extended the recommendation that the probation officer have the right to demand a polygraph examination to permit "any law enforcement officer" to demand a polygraph examination at any time. The transcript of the original sentencing is not before this Court, and thus we cannot tell whether the local prosecutor or the sheriff recommended the expanded language in the polygraph provision, or whether it was simply inserted in the judgment at a later time. The clerk of court's minutes reflect only that a search provision and polygraph provision were to be imposed as conditions of probation. It is customary, however, for the county attorney to prepare the judgment of conviction after the formal sentencing, and it appears that he expanded upon the recommendation of the probation officer by making himself as well as other law enforcement officers the beneficiaries of the right to demand that defendant take a polygraph examination.

With this background of the search and polygraph provisions, we proceed next to a summary of the events occurring between the time of original imposition of the search and polygraph conditions and the time defendant's probation was revoked.

One of the conditions of the ten-year suspended prison sentence was that defendant spend weekends in jail for one year. Weekends were ordered so that defendant could have regular employment during the week. But shortly after he was sentenced, defendant was offered employment as an outfitter during big game hunting season, which required that he also be gone on weekends. He approached the local sheriff and they agreed that defendant would spend no time in jail during the hunting season, but at the termination of his employment, defendant would make up the lost weekends by serving a continuous period in the county jail.

During the time defendant was out on probation, the sheriff or his deputies came to defendant's home and place of employment more than 20 times to check on his activities. The record does not reflect whether they conducted any searches of his home during his absence. But they were ready for him when he returned home at the termination of his outfitting employment.

While defendant was working as an outfitter, a friend of his was living in and taking care of defendant's home. Defendant had, while employed as an outfitter, returned home once or twice a month. Defendant returned home at approximately 6:30 a. m. on October 22, 1977, after having worked all night, and the same day at approximately 1:00 p. m., the sheriff and his deputy came to the defendant's home and, pursuant to the authority conferred by the warrantless search provision searched the defendant's home.

The search uncovered some marijuana, but defendant's friend immediately assumed responsibility for it and claimed it was his. The officers apparently accepted this claim of ownership for they did nothing to implicate defendant at this time. On this same day defendant, in compliance with the agreement with the sheriff, turned himself in to the ...