State v. Perbix, Cr. N

• Citation: 331 N.W.2d 14
• Decision Date: 03 March 1983
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Robert PERBIX, Defendant and Appellee. o. 872.
• Court: United States State Supreme Court of North Dakota

Page 14

331 N.W.2d 14

STATE of North Dakota, Plaintiff and Appellant, v. Robert PERBIX, Defendant and Appellee.

Cr. No. 872.

Supreme Court of North Dakota.

March 3, 1983.

Alan Duppler, State's Atty., Stanton, for plaintiff and appellant.

Ralph A. Vinje, Bismarck, for defendant and appellee.

PAULSON, Justice.

This case involves the validity of a search of a probationer's residence conducted by law enforcement officers pursuant to authority granted in a "search clause" which was made a condition of the defendant's probation in a prior judgment of conviction. The State appeals from an order of the District Court of Mercer County, dated June 14, 1982, suppressing evidence discovered during the course of the search. We reverse.

In February of 1980, Robert A. Perbix [Perbix] pled guilty to and was convicted of two charges of possession of a controlled substance. As a result, Perbix was fined $475 on each charge and was sentenced to serve one year at the State Farm, with $250 of the fine on each charge and eight months of the sentence suspended for two years. It was further ordered that Perbix be placed under probation. In addition to the condition that Perbix not violate any laws during the period of his probation, the following condition was imposed:

"3. That the defendant shall allow the search of his person, place of residence and motor vehicle, at any time, day or night, by any police officer or probation officer, with or without a search warrant and with or without probable cause."

On December 2, 1981, Officer Wesley Berg of the Mercer County Sheriff's Department, who was aware of the "search clause" in Perbix's prior judgment of conviction, approached Hazen Police Chief Patrick Foley and suggested that they conduct a search of Perbix's residence because the search provision had not been previously implemented. ¹ Although the state's attorney was consulted about a search and approved it, Perbix's probation officer was not contacted. No attempt was made to obtain a search warrant.

At approximately 1:30 p.m. on December 4, 1981, Police Chief Foley, Officer Berg, and six other officers from the Hazen Police Department and the Mercer County Sheriff's Department arrived at the trailer home in which Perbix had been living for several years, for the purpose of conducting a search of the residence. Foley knocked on the door and when a voice asked who was outside, he answered "police officers". Sharon Farrand, the other occupant of the home, opened the door and Foley advised her that the police were there "to implement the search clause on Bob's probation". The officers then entered and found Scott Galyen and Farrand's young daughter in the living room. Foley asked Farrand where Perbix was and she replied that he was in the bathroom. Foley walked down the hall to the bathroom, knocked on the door, identified himself, and asked Perbix to open the door. When the door opened, Foley informed Perbix that the police were there to implement the search clause. Perbix did not object. The search of the kitchen and living room of the trailer home produced 48.79 grams of marijuana and 4.71 grams of hashish.

In a criminal information dated March 15, 1982, Perbix was charged with two counts of class C felony possession of a controlled substance. ² See Sec. 19-03.1-23(3) of the North Dakota Century Code. On March 25, 1982, Perbix made a motion to suppress the evidence discovered during the course of the search. Following a hearing on the motion, the district court issued its order granting the suppression motion on June 14, 1982. ³ The State has appealed from this order.

The following issues are presented for review:

(1) Whether or not the "search clause" contained in the defendant's prior judgment of conviction is valid in light of Sec. 12.1-32-07(2)(o ), N.D.C.C., which states that such searches may be executed "by a probation officer", but fails to mention police officers; and

(2) Whether or not the "search clause" in the instant case and the manner in which it was executed violated the defendant's Fourth Amendment rights against unreasonable searches and seizures.

Before addressing these issues, we must first consider Perbix's contention that this appeal should be dismissed because the State failed to comply with the requirements of Sec. 29-28-07, N.D.C.C. That section provides, in pertinent part, as follows:

"29-28-07. From what the state may appeal.

An appeal may be taken by the state from:

* * * "5. An order granting the return of property or suppressing evidence, or suppressing a confession or admission, when accompanied by a statement of the prosecuting attorney asserting that the deprivation of the use of the property ordered to be returned or suppressed or of a confession or admission ordered to be suppressed has rendered the proof available to the state with respect to the criminal charge filed with the court, (1) insufficient as a matter of law, or (2) so weak in its entirety that any possibility of prosecuting such charge to a conviction has been effectively destroyed. The statement shall be filed with the clerk of district court and a copy thereof shall accompany the notice of appeal."

The State filed its notice of appeal on June 21, 1982, but the statement of the prosecuting attorney was not filed until September 9, 1982. In the past we have been reluctant to dismiss similar appeals in which the State has failed to file the prosecuting attorney's statement along with the notice of appeal, particularly where an appellee has not challenged the content of the statement, but, rather, only the date of its filing. Compare State v. Borden, 316 N.W.2d 93, 96 (N.D.1982); State v. Fields, 294 N.W.2d 404, 406 (N.D.1980); State v. Harris, 286 N.W.2d 468, 470 (N.D.1979), with State v. Dilger, 322 N.W.2d 461 (N.D.1982). Because of the importance of reaching the merits in this case and because the appellee has not been prejudiced by the State's delay in filing the prosecuting attorney's statement, we decline to dismiss the appeal in the instant case on this ground. However, we add that the procedures governing the State's right to appeal from an order suppressing evidence should not be taken lightly, and once again we express our disapproval of this delay in filing. We also note the following caveat from our opinion in Fields, supra 294 N.W.2d at 406:

"... our decision to allow the appeal should not be read as shifting to a defendant the burden of proving that the State could still reasonably prosecute without the suppressed evidence. Nor does it mean that in the future this court will not consider dismissing appeals for failure to file the prosecutor's statement with the notice of appeal."

I

VALIDITY OF THE SEARCH CLAUSE UNDER Sec. 12.1-32-07, N.D.C.C.

We next consider whether or not the "search clause" in Perbix's prior judgment of conviction is valid in light of the provisions of Sec. 12.1-32-07, N.D.C.C. That section, in part pertinent to the instant case, provides:

"12.1-32-07. Conditions of probation--Revocation.--.1. The conditions of probation shall be such as the court in its discretion deems reasonably necessary to ensure that the defendant will lead a law-abiding life or to assist him to do so. The court shall provide as an explicit condition of every sentence to probation that the defendant not commit another offense during the period for which the sentence remains subject to revocation.

"2. When imposing a sentence to probation, the court may impose such conditions as it deems appropriate, and may include any one or more of the following:

* * *

"o. Submit his person, place of residence, or vehicle to search and seizure by a probation officer at any time of the day or night, with or without a search warrant."

Perbix argues that the search clause involved in the present case is invalid because it allows searches to be conducted by police officers in addition to probation officers, whereas Sec. 12.1-32-07(2)(o ), N.D.C.C., specifically grants authority to conduct such searches to probation officers. The State, on the other hand, contends that Sec. 12.1-32-07(2)(o ), N.D.C.C., only illustrates a condition that may be placed on a defendant's probation and does not limit the condition in any way because Sec. 12.1-32-07(1) gives the court broad latitude in fashioning appropriate probation conditions.

In State v. Bohl, 317 N.W.2d 790 (N.D.1982), our court was faced with a somewhat similar situation. The defendant in Bohl, supra, had been convicted of delivering an alcoholic beverage to a person under the age of 21 years. As part of his sentence, the defendant was placed on probation. One of the conditions of his probation was that he refrain from the use of alcoholic beverages during the period of his probation. The defendant in Bohl claimed that the condition was contrary to state law because Sec. 12.1-32-07(2)(h), N.D.C.C., provides that as a condition of probation a court may only order a defendant to refrain from excessive use of alcohol. We disagreed, concluding that Sec. 12.1-32-07 "allows the court to fashion any probation requirements it deems reasonably necessary to ensure that the defendant will lead a law-abiding life". Bohl, supra 317 N.W.2d at 796.

The legislative history behind the implementation of Sec. 12.1-32-07, N.D.C.C., clearly reveals that the statutory list of conditions is to be deemed inclusive, rather than exclusive, and that the imposition of any one or more of the conditions is purely a matter of judicial discretion so as to allow a judge to tailor conditions to meet particular facts and circumstances in any given case. See Minutes of the Committee on Judiciary "B" of the Legislative Council, August 25, 1972, at pages 61-62. The only statutory limitation on the imposition of conditions of probation is that such conditions must be "reasonably necessary to ensure that the defendant will lead a law-abiding life or to assist him to do so". Sec. 12.1-32-07(1), N.D.C.C. Thus, ...