State v. Morgan

• Decision Date: 29 July 1980
• Docket Number: No. 42974,42974
• Citation: 295 N.W.2d 285,206 Neb. 818
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. Rodney MORGAN, Appellant.

Page 285

295 N.W.2d 285

206 Neb. 818

STATE of Nebraska, Appellee, v. Rodney MORGAN, Appellant.

No. 42974.

Supreme Court of Nebraska.

July 29, 1980.

Syllabus by the Court

Probation: Constitutional Law: Search and Seizure. A condition contained in a probation order issued by the court to one previously convicted of a drug offense to the effect that the probationer shall submit to a search of his person or property at any time, by any law enforcement officer, with or without probable cause, for controlled substances, which condition is accepted by the probationer, is valid, enforceable, and constitutional, if it is applied in a reasonable manner and contributes to the rehabilitation of the offender.

Donald B. Fiedler, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., and Harold Mosher, Asst. Atty. Gen., Lincoln, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

BRODKEY, Justice.

The defendant, Rodney A. Morgan, has appealed to this court from a judgment entered by the District Court for Lincoln County, Nebraska, finding him guilty of violating the terms and conditions of a certain order of probation entered on October 27, 1975, in connection with his conviction for the offense of knowingly and intentionally distributing, delivering, or dispensing a controlled substance, to wit, marijuana, to another person. In its judgment entered on July 9, 1979, the trial court ordered that defendant's probation should be extended for an additional period of 90 days; that the search provision contained in paragraph 14 of the Order of Probation should be deleted; that the defendant should pay a fine in the amount of $100; and that he should pay the costs of the action.

In its Order of Probation, entered on October 27, 1975, the trial court sentenced the defendant to probation for a period of 3 years under certain terms and conditions and subject to the further order of the court. In addition to various statutory conditions, including one that the probationer shall refrain from all unlawful conduct, the court included condition 14 reading as follows: "That he shall submit to a search of his person or property at any time by any Law Enforsement (sic) Officer, with or without probable cause, for controlled substances." (Emphasis supplied.) Involved in this appeal is a determination of the validity and constitutionality of condition 14 set out above, and whether such condition is reasonably related to the rehabilitation of the offender.

There is little if any dispute as to the facts involved in this case. The record reveals that on June 21, 1978, an individual taken into custody for questioning in connection with the possession of marijuana, advised the police that he had purchased a controlled substance from a party named "Rod." In an effort to identify the seller of the substance, the suspect was shown a photograph of the defendant Morgan for identification, but the suspect responded that he could not remember for certain, but that the photograph did not resemble the party who had sold the substance to him. Armed with this information and under the authority contained in condition 14 of the probation order, the probation officer and a police officer went to Morgan's residence, which was the home of his mother with whom he was living at the time, and advised Morgan of their identity, the purpose of the visit, and of condition 14 in the probation order. Morgan then responded: "Okay, you can search my room." It is conceded by the State, and was stipulated by counsel for both parties, that at that time the officers did not have sufficient independent information to justify the search on the basis of "probable cause." It is clear that at the time the officers were relying upon the consent of the defendant to search, contained in condition 14 of the probation order, of which condition he (defendant) was aware and consented to at the time he was placed on probation. During the course of the search, a quantity of a substance later determined to be marijuana, was found in Morgan's bedroom and on his person.

Thereafter, on June 22, 1978, the State filed a motion to revoke Morgan's probation, alleging that he had violated condition 1 of his probation order which required him to refrain from all unlawful conduct. Morgan then moved to suppress the evidence seized in the search by the officers on June 21, 1978, alleging that the search was without probable cause, and that condition 14 of the probation order was a violation of his constitutional rights. The District Court denied defendant's motion to suppress stating:

The Court finds that since the consent to a search in the Probation Order was limited to a search by a law enforcement officer, but only for controlled substances and there were some grounds to search in the instant case, the search was not illegal, but by prior consent, and the Court finds that the motion to suppress should be overruled. The Court further finds that particularly in cases involving controlled substances prior consent to searches could strongly tend to rehabilitate. The Court further adopts the reasoning of the case of People (v.) vs. Mason at (5 Cal.3d 759, 97 Cal.Rptr. 302) 488 P.2d 630.

As previously stated, at a subsequent hearing, the District Court, found that Morgan had violated the terms of the conditions of his probation and entered the judgment previously referred to, extending his probation for an additional 90 days, fining him $100 and the costs of the action, and deleting condition 14 of the probation order. In his appeal from that judgment, Morgan contends that the evidence upon which he was convicted was obtained as the result of an unlawful search and seizure and thus was inadmissible.

Since it is conceded by the parties that "no probable cause" existed for the officers' search of his room and person, the search in which the evidence was obtained must be validated, if at all, upon the consent contained in condition 14 of the probation order.

Morgan contends, first and primarily, that the condition of the probation order allowing searches without probable cause is unconstitutional. He asks us to declare such conditions contained in probation orders authorizing warrantless searches to be invalid in this state. Although the validity of such conditions has apparently not heretofore been decided by this court, the subject matter has been a fruitful field for legal analysis and comment, and many articles have been written upon the subject. For example, see, Note, Fourth Amendment Limitations on Probation and Parole Supervision, 1976 Duke L.J. 71; Note, Search and Seizure Rights of Parolees and Probationers in the Ninth Circuit, 44 Fordham L.Rev. 617 (1975); and, Annot., "Validity of Requirement That as Condition of Probation, Defendant Submit to Warrantless Searches," 79 A.L.R.3d 1083 (1977).

Respectable and well-reasoned authorities exist on both sides of the question. Numerous jurisdictions, which we believe represent the weight of authority, have examined and passed upon the validity of conditions of probation allowing warrantless searches by law enforcement officers and/or probation officers, and have found them to be valid and not in contravention of the fourth amendment of the United States Constitution, particularly when the condition in question is reasonably related to the crime for which the probationer was convicted. See, for example, United States v. Gordon, 540 F.2d 452 (9th Cir. 1976); People v. Mason, 5 Cal.3d 759, 488 P.2d 630, 97 Cal.Rptr. 302 (1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1289, 31 L.Ed.2d 478 (1972); State v. Montgomery, 115 Ariz. 583, 566 P.2d 1329 (1977); State v. Schlosser, 202 N.W.2d 136 (N.D.1972); State v. Mitchell, 22 N.C.App. 663, 207 S.E.2d 263 (1974); People v. Santos, 31 App.Div.2d 508, 298 N.Y.S.2d 526 (1969), cert. denied, 397 U.S. 969, 90 S.Ct. 1010, 25 L.Ed.2d 263 (1970); State v. Cummings, 262 N.W.2d 56 (S.D.1978); People v. Constancio, 42 Cal.App.3d 533, 116 Cal.Rptr. 910 (1974); Roman v. State, 570 P.2d 1235 (Alaska 1977); State v. Bollinger, 169 N.J.Super. 553, 405 A.2d 432 (1979); Seim v. State, 95 Nev. 62, 590 P.2d 1152 (1979).

On the other hand, other jurisdictions, for various reasons, have held such provisions to be invalid, either as violating the fourth amendment of the United States Constitution, or as being vague and overbroad. See, United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975); Tamez v. State, 534 S.W.2d 686 (Tex.Cr.App.1976); People v. Peterson, 62 Mich.App. 258, 233 N.W.2d 250 (1975), leave to appeal denied (but see People v. Richards, 76 Mich.App. 695, 256 N.W.2d 793 (1977)); Grubbs v. State, 373 So.2d 905 (Fla.1979); State v. Age, 38 Or.App. 501, 590 P.2d 759 (1979).

So far as we have been able to ascertain, the Supreme Court of the United States has never passed upon the issue presented.

In an annotation entitled The Validity of Requirement That, as Condition of Probation, Defendant Submit to Warrantless Searches, found at 79 A.L.R.3d 1083 et seq., the author of that annotation states at page 1087 the conclusions reached by him after an analysis of the authorities as follows:

With few exceptions, it has been held that the United States Constitution is not violated by the requirement that a probationer submit to warrantless searches as a condition of probation. It is said that the probationer is free to reject probation if the conditions attached thereto are too onerous, that a warrantless search condition is an extremely valuable aid in rehabilitating the probationer because most crimes involve the possession of incriminating evidence and if a probationer knows he can be searched at any time without warning, he is less likely to engage in such criminal activity, that the purpose of unprovoked searches of the probationer is to determine not only whether he is disobeying the law, but also whether he is obeying the law, and that...