State v. Kinsella, 970361
| Decision Date | 18 August 1998 |
| Docket Number | No. 970361,970361 |
| Citation | 583 N.W.2d 376 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Ricky Allen KINSELLA, Defendant and Appellant. Criminal |
| Court | North Dakota Supreme Court |
Ladd R. Erickson, Assistant State's Attorney, Mandan, for plaintiff and appellee. Submitted on brief.
Ralph A. Vinje, of Vinje Law Firm, Bismarck, for defendant and appellant. Submitted on brief.
¶1 Ricky Allen Kinsella appealed from a criminal judgment of conviction for possession of a controlled substance with intent to deliver. We conclude the trial court properly refused to suppress evidence obtained in a search of Kinsella's residence, and we therefore affirm the judgment.
¶2 Kinsella was convicted of felony drug possession in Montana in 1995. He was given a suspended sentence and placed on probation. To accommodate Kinsella's desire to move to North Dakota, supervisory authority was transferred to the North Dakota Department of Corrections and Rehabilitation under the provisions of the Interstate Compact for Supervision of Parolees and Probationers, N.D.C.C. ch. 12-56. Upon his arrival in North Dakota, Kinsella met with his North Dakota probation officer and signed a probation agreement in which he consented to warrantless searches by probation officers:
I will submit to search of my person, vehicle, or place of residence by any probation officer at any time of the day or night, with or without a search warrant.
¶3 In January 1997, probation authorities received information Kinsella had controlled substances in his home. They conducted a warrantless search of Kinsella's home and found thirteen pounds of marijuana.
¶4 Kinsella was charged with possession with intent to deliver. He moved to suppress the evidence from the search of his home, arguing it was an unconstitutional warrantless search. The trial court denied the motion to suppress, and Kinsella entered a conditional plea of guilty under N.D.R.Crim.P. 11(a)(2), reserving the right to challenge on appeal the denial of his suppression motion.
¶5 On appeal, Kinsella raises issues challenging the authority of a Montana judge to "order a search of a North Dakota home" and asserting the search in this case was not authorized by the conditions of probation outlined in the Montana sentencing order. 1 Kinsella's arguments ignore the dispositive factor in this case: Kinsella signed a probation agreement consenting to a warrantless search of his home as a condition of his transfer to and probation in this state. The State does not rely upon the Montana court order to justify this search, but argues it was a valid consent search.
¶6 The Interstate Compact is an agreement among the states which provides standards for supervision of out-of-state parolees and probationers. Jacobs v. North Dakota State Personnel Board, 551 N.W.2d 779, 780 n. 1 (N.D.1996). It provides, in part:
[The] receiving state will assume the duties of visitation of and supervision over probationers or parolees of any sending state and in the exercise of those duties will be governed by the same standards that prevail for its own...
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People v. Frye, 97CA1207.
...governing defendant's transfer to Texas did not contain any special conditions agreed upon by the three parties. Cf. State v. Kinsella, 583 N.W.2d 376 (N.D.1998); State v. Martinez, 198 Wis.2d 222, 542 N.W.2d 215 Upon remand, therefore, the trial court should first consider the extent to wh......