State v. Moody

• Decision Date: 28 November 2006
• Docket Number: No. 05-363.,05-363.
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Respondent, v. Kristi Anne MOODY, Defendant and Appellant.

148 P.3d 662

2006 MT 305

STATE of Montana, Plaintiff and Respondent, v. Kristi Anne MOODY, Defendant and Appellant.

No. 05-363.

Supreme Court of Montana.

Submitted on Briefs August 11, 2006.

Decided November 28, 2006.

For Appellant: Penelope S. Strong, Chief Public Defender; Tanya Dvarishkis, Deputy Public Defender, Billings, Montana.

For Respondent: Mike McGrath, Attorney General; Joslyn M. Hunt and Mark W. Mattioli, Assistant Attorneys General; Helena, Montana, Diana Koch, Chief Legal Counsel, Department of Corrections, Helena, Montana, Dennis Paxinos, County Attorney, Billings, Montana.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Montana's Thirteenth Judicial District Court, Yellowstone County, sentenced Kristin Anne Moody to a two-year deferred sentence based on three separate charges. Prior to sentencing, Moody filed objections to several probation conditions recommended in the pre-sentence investigation (PSI) report. The District Court nonetheless imposed most of the proposed conditions. Moody now appeals. We affirm on the following issues:

¶ 2 1. Does requiring a probationer to keep her home open and available for the probation officer to visit at all times violate the Montana Constitution?

¶ 3 2. Did the District Court properly impose a travel restriction as a condition of Moody's probation?

BACKGROUND

¶ 4 In responding to a report on May 7, 2004, Officers Wells and Ostermiller of the Laurel Police Department came across a gray van that had reached a complete stop in the middle of an intersection. Officers Wells and Ostermiller approached the van and found Moody, who appeared to be asleep at the wheel. The officers removed Moody from the van and verified that she did not need medical attention. Smelling of alcohol and unsteady on her feet, Moody swore at the officers and refused to perform any field sobriety tests or provide a breath alcohol sample. Moody could not find the registration for the vehicle and stated that she did not have any car insurance. The officers arrested Moody, placing her in handcuffs. When they tried to get Moody into the backseat of the patrol vehicle, Moody kicked at Officer Wells, striking him in the face with such force that she left a visible boot imprint. Eventually the officers restrained Moody and transported her to the Yellowstone County Detention Facility.

¶ 5 The State charged Moody by information with Count I, assault on a police officer, a felony in violation of § 45-5-210(1)(a), MCA; Count II, driving under the influence of alcohol or drugs, a misdemeanor in violation of § 61-8-401, MCA; and Count III, driving without required motor vehicle insurance, a misdemeanor in violation of § 61-6-302, MCA.

¶ 6 Moody pled guilty to all three counts pursuant to a plea agreement. Prior to sentencing, Probation Officer Barry Ivanoff prepared the PSI with recommendations for the conditions of Moody's probation. Moody filed an objection to several of the proposed conditions, including 2 and 3, which read as follows:

2. The Defendant will not change [her] place of residence without first obtaining permission from [her] Probation/Parole Officer. The residence must be approved by [her] Probation & Parole Officer. The Defendant will make the home open and available for the Probation & Parole Officer to visit as required per policy. The Defendant will not own dangerous/vicious animals such as guard dogs, use perimeter security doors, or refuse to open the door of the residence when requested. [Emphasis added.]

3. The Defendant shall not leave [her] assigned district without first obtaining written permission from [her] Probation & Parole Officer.

¶ 7 Moody objected to the requirement that she make her home "open and available" to her probation officer on the grounds that this condition obviated the reasonable cause requirement for searches of probationers' homes, and thus violated her constitutional rights of privacy and protection from unreasonable search and seizure. Moody also objected to the travel restriction, arguing that it inhibited her constitutional rights to travel and work and her freedom of association; she also argued that the restriction was not sufficiently related to her rehabilitative needs and did not protect society.

¶ 8 At the sentencing hearing, Moody called Officer Ivanoff to testify regarding the probation conditions he recommended. After Moody and the State argued their respective positions, the District Court issued the sentence, imposing both the second and third probation conditions. Moody appeals.

STANDARD OF REVIEW

¶ 9 We review a District Court's criminal sentence for legality only. State v. Eaton, 2004 MT 283, ¶ 11, 323 Mont. 287, ¶ 11, 99 P.3d 661, ¶ 11.

DISCUSSION

¶ 10 1. Does requiring a probationer to keep her home open and available for the probation officer to visit at all times violate the Montana Constitution?

¶ 11 Moody argues that Condition 2 of her probation, which requires that she keep her "home open and available for the Probation & Parole Officer to visit," violates the reasonable cause standard applied by this Court to searches of probationers' residences, as well as Admin. R.M. 20.7.1101(7), governing conditions on probation. Because we conclude that a "home visit" to a probationer's residence does not qualify as a "search," we affirm the District Court's ruling.

¶ 12 The search of a person may be conducted pursuant to a valid search warrant or in accordance with a judicially recognized exception. Section 46-5-101, MCA. In Montana, a probation officer may search a probationer's residence without a warrant so long as the officer has reasonable cause for the search. See State v. Roper, 2001 MT 96, ¶ 12, 305 Mont. 212, ¶ 12, 26 P.3d 741, ¶ 12; State v. Beaudry, 282 Mont. 225, 228, 937 P.2d 459, 460-61 (1997); State v. Burchett, 277 Mont. 192, 195, 921 P.2d 854, 856 (1996); State v. Boston, 269 Mont. 300, 305, 889 P.2d 814, 817 (1995); and State v. Burke, 235 Mont. 165, 169, 766 P.2d 254, 256-57 (1988). "The `reasonable cause' standard is substantially less than the probable cause standard required by the Fourth Amendment because of the probationer's diminished expectation of privacy . . . ." Burchett, 277 Mont. at 195-96, 921 P.2d at 856 (citing Burke, 235 Mont. at 169, 766 P.2d at 256-57, and Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)). Admin. R.M. 20.7.1101(7) further underscores our precedent by permitting a warrantless search of a probationer's or parolee's person, vehicle or residence only "upon reasonable cause."

¶ 13 The State points out that the United States Supreme Court has recently held that a suspicionless search, conducted pursuant to a California statute requiring parolees to agree in writing to be subject to searches with or without cause was constitutional. Samson v. California, ___ U.S. ___, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). The search in Samson was conducted by a police officer rather than a probation officer so the court applied an ordinary Fourth Amendment analysis, rather than engaging in a Griffin "special needs" analysis applicable to probationers. Griffin, 483 U.S. at 873, 107 S.Ct. at 3168. The State, relying on Samson, contends that if there is no "reasonable cause" requirement for a search of a parolee, there should be no such requirement for a less intrusive "home visit," which is not a search.

¶ 14 Moody contends that Samson is distinguishable since it involved search of a parolee on the street as opposed to a probationer in her home; further, since probationers such as Moody are much less of a threat than parolees, they have a higher expectation of privacy and freedom from unreasonable searches under the Montana Constitution.

¶ 15 The initial inquiry then is whether a "home visit" constitutes a "search" under Article II, Section 11, Montana Constitution.

¶ 16 A home visit — where the probation officer stops by the probationer's home to determine whether the individual is abiding by the conditions of his or her probation — operates as an important check on a probationer's rehabilitation efforts. As the Department of Corrections states in its Probation and Parole Bureau Standard Operating Procedures, home visits are conducted to address the following:

• verify offender's home address;

• observe and determine lifestyle factors;

• meet significant others, family members, other residents of home;

• observe residence for contraband, weapons, illegal or dangerous objects (if visual inspection of the residence provides reasonable suspicion that the offender has items banned by probation rules or court order, conduct a search per P & P 60-4, Searches of Offender's Person, Vehicle, Residence Confiscation of Offender's Property);

• observe residence for non-essential items such [as] VCR/Cable/Computer-Internet capabilities if offender's financial obligations to victim, court and bureau are not being met;

• observe residence for cable/computer/Internet capabilities if offender is a sex offender and/or has restrictions;

• conduct visual inspection of home • observe neighborhood for potential public safety issues such as high crime area (gang graffiti), schools/parks (sex offenders) or other vulnerable neighbors;

• assess home environment for officer safety (may draft a floor plan of home); and

• require offender to submit to breathalyzer/urinalysis screening for use of alcohol and/or drugs.

Chapter 60, "Sign-Up Procedure/Supervision Standards."

¶ 17 As the above list indicates, probationary restrictions are meant to facilitate rehabilitation and ensure that the community is not harmed by the probationer's conditional liberty status. Burke, 235 Mont. at 169, 766 P.2d at 256. The probation officer is charged with not only enforcing conditions of supervision, but also discerning any deception by the probationer. United States v. Reyes, 283 F.3d 446, 458 (2d Cir.2002).

¶ 18 In determining whether a "search" has occurred, we...