State v. Gawron

• Decision Date: 31 March 1987
• Docket Number: No. 16235,16235
• Parties: , 55 USLW 2597 STATE of Idaho, Plaintiff-Respondent, v. Timothy GAWRON, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1295

736 P.2d 1295

112 Idaho 841, 55 USLW 2597

STATE of Idaho, Plaintiff-Respondent, v. Timothy GAWRON, Defendant-Appellant.

No. 16235.

Supreme Court of Idaho.

March 31, 1987.

Rehearing Denied May 28, 1987.

Alan E. Trimming and George M. Parham (argued), Boise, for appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., and David R. Minert, Deputy Atty. Gen. (argued), Boise, for respondent.

SHEPARD, Chief Justice.

This is an appeal by defendant-appellant Gawron, from a conviction of grand theft by possession of stolen property. I.C. §§ 18-2403(4) and 18-2407. The sole question presented is the legality of a warrantless search pursuant to the terms of Gawron's probation. We uphold the legality of the search and affirm the conviction.

In April 1984, Hartgrove, a detective in the Boise Police Department, was investigating recent burglaries in the Boise area in which silver, gold coins and jewelry had been stolen. A routine check of pawn tickets indicated that Gawron's name appeared on several tickets related to pawning of jewelry, coins and melted-down gold bars. These items matched those taken in the burglaries. Further investigation of Gawron revealed that he was on probation and unemployed.

Thereafter, Hartgrove called the Office of Probation and Parole, and since Gawron's probation officer was not working that day, spoke to Senior Probation and Parole Officer Housley, informing him of the investigation of the pawn tickets. Housley confirmed that Gawron was then on probation and had been convicted of receiving and disposing of stolen property, from which conviction he had been placed on probation in October 1981. One of the terms of probation imposed on Gawron stated:

That probationer does hereby agree and consent to the search of his person, automobile, real property, and any other property at any time and at any place by any law enforcement officer, peace officer, or probation officer, and does waive his constitutional right to be free from such searches.

That order indicated that Gawron had certified to a reading and understanding of the terms of the order, and that he accepted those terms and signed the order.

Thereafter, Housley decided that under the circumstances a search of Gawron's residence was warranted, and Housley, accompanied by Hartgrove and two other officers, went to Gawron's residence. Gawron was not home at the time, but Housley conducted a search and found a marijuana bong in the bathroom of the main floor, and thereafter proceeded to search the garage. Housley broke the lock on the garage to enter, and therein found a locked tool box, the lock to which was also broken by Housley. Inside the box were found numerous coins, coin books, stamps, stamp collection books, and jewelry, which were determined to be proceeds of the burglaries that Hartgrove was investigating. Thereafter, a search warrant was obtained and another search was conducted pursuant to the warrant, with additional evidence being seized.

Following a trial to a jury, Gawron was found guilty of grand theft by possession of stolen property, a judgment of conviction was entered, and a sentence imposed of an indeterminate term of seven years.

As heretofore stated, the sole question presented is the validity of the warrantless search, and the admission into evidence of the items seized during those searches.

The order of October 1981, suspending Gawron's then sentence for receiving and disposing of stolen property, unequivocally states and agrees that Gawron waives any constitutional right to be free from such a warrantless search. I.C. § 19-2601(4) provides that conditions may be placed upon a defendant's probation:

(4) Suspend the execution of the judgment at any time during the first 120 days of a sentence to the custody of the state board of correction, during which time the court shall retain jurisdiction over the defendant which jurisdiction shall be entered on the order of the commitment, and place the defendant on probation under such terms and conditions as it deems necessary and expedient, notwithstanding that the term of the court during which such defendant was convicted or sentenced may have expired; upon application of the state board of correction and for good cause shown, the court may extend the period under which it retains jurisdiction of the defendant an additional sixty days.

As stated in People v. Kerns, 71 Cal.Rptr. 105, 264 Cal.App.2d 962 (1968):

The condition of probation that defendant consent to a search of his person by a law enforcement officer without a search warrant, is a supervisorial procedure related to his reformation and rehabilitation in light of the offense of which he was convicted. ... The purpose of an unexpected, unprovoked search of defendant is to ascertain whether he is complying with his terms of probation; to determine not only whether he disobeys a law, but also whether he obeys the law. Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given the defendant and his amenability to rehabilitation.

See also In re Bushman, 1 Cal.3d 767, 83 Cal.Rptr. 375, 463 P.2d 727 (1970) and Pierson v. Grant, 527 F.2d 161 (8th Cir.1975), where it is held that courts have broad discretion when granting probation in the imposition of restrictive conditions to foster rehabilitation and protect public safety. It is also noted that if a defendant considers the conditions of probation too harsh, he has the right to refuse probation and undergo the sentence. If such a defendant desires to challenge the legality of any proposed conditions of probation, he may do so on appeal from the judgment, or on habeas corpus. See In re Allen, 71 Cal.2d 388, 78 Cal.Rptr. 207, 455 P.2d 143 (1969); In re Osslo, 51 Cal.2d 371, 334 P.2d 1 (1958).

Gawron contends that the probation condition which requires submission to warrantless searches constitutes an unreasonable invasion of his fourth amendment rights. However, we hold that such persons conditionally released to societies have a reduced expectation of privacy, thereby rendering intrusions by government authorities "reasonable" which otherwise would be unreasonable or invalid under traditional constitutional concepts. See State v. Lingle, 209 Neb. 492, 308 N.W.2d 531 (1981); State v. Montgomery, 115 Ariz. 583, 566 P.2d 1329 (1977).

The scope of the search in the instant case well may have exceeded the permissible limits announced in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). However, that decision acknowledged the existence of "well recognized exceptions" to the general rule requiring a warrant in order to conduct a house search. One of those exceptions set forth in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), is "a search to which an individual consents.... Zap v. United States, 328 U.S. 624 [66 S.Ct. 1277, 90 L.Ed. 1477] (1946)."

We hold the decision in Zap v. United States, supra, analogous in the case at bar, for it upheld the validity of an advance waiver of fourth amendment rights which are akin to the provisions of the probation agreement in the instant case. In Zap, a government contractor agreed to a contract provision allowing agents of the government to review accounts and records of the contractor which the court held that the government agents would otherwise not have had absent the advance waiver. Evidence discovered pursuant to such an audit, in the absence of the contractor, was held to be legally obtained and admissible in the trial leading to his conviction.

In State v. Blevins, 108 Idaho 239, 697 P.2d 1253 (Ct.App.1985), it was held that the issue of voluntary knowing and intelligent waivers is essentially a factual issue turning on the accused's state of mind, and lending itself to resolution by the trial court. Here, Gawron has made no allegation that his signature and acceptance of the order and conditions of probation were involuntary or done unintelligently.

Gawron argues that the lower court, and this Court, were required to apply the three-prong test enunciated by the Court of Appeals in State v. Vega, 110 Idaho 685, 718 P.2d 598 (Ct.App.1986). The Court of Appeals, in Vega, relied upon State v. Pinson, 104 Idaho 227, 657 P.2d 1095 (Ct.App.1983). We note that in neither Vega or Pinson did the Court of Appeals discuss the validity of a warrantless search when a probationer, as a condition of his probation, had expressly waived his constitutional right to be free from warrantless searches. Since we base our determination in the instant case upon Gawron's consent to warrantless searches, both Vega and Pinson are inapplicable to the instant case, and we need not discuss the continued validity of the three-prong test enunciated by the Court of Appeals in Vega.

The judgment of conviction is affirmed.

DONALDSON, BAKES and HUNTLEY, JJ., concur.

BISTLINE, Justice, dissenting.

The majority would affirm the conviction of Gawron and uphold his probation condition by the expediency of embarking upon a discussion of the validity of his "voluntary and intelligent" waiver. Left with only a cursory discussion is the probation condition itself and the question of its "reasonable" intrusion upon Gawron's Fourth Amendment rights. The provision of probation here at issue goes far beyond being a reasonable intrusion of Gawron's rights.

Strangely, the majority has chosen a path in a direction opposite to the recent well-reasoned opinion of the supreme court of our neighboring state to the east in State v. Fogarty, 187 Mont. 393, 610 P.2d 140 (1980), where that court had before it a similar probationer search condition. The court noted that a waiver theory is an improper justification for the probation conditions:

Regardless of the condition imposed, if that is the sentencing court's decision, the probationer has little or no say in the matter. He can refuse to accept the conditions imposed and go to...