State v. Schlosser, Cr. N
| Decision Date | 31 October 1972 |
| Docket Number | Cr. N |
| Citation | 202 N.W.2d 136 |
| Parties | STATE of North Dakota, Plaintiff and Respondent, v. Kenneth SCHLOSSER, Defendant and Appellant. o. 422. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
The admission in evidence at a parole revocation hearing of marijuana and hashish seized from probationer's apartment by his parole officer in a warrantless search, authorized as a condition of probation after conviction for possession of marijuana, held proper as, under the circumstances, the search was reasonable and not violative of probationer's Fourth Amendment rights.
Kent Higgins, Public Defender, Bismarck, for defendant and appellant.
Helgi Johanneson, Atty. Gen., and Thomas F. Kelsch, State's Atty., Bismarck, for plaintiff and respondent.
Defendant is appealing from an order revoking a prior order deferring imposition of sentence and from the judgment entered after the revocation. All of the proceedings took place in the Burleigh County District Court.
On August 11, 1971, the defendant pleaded guilty to a charge of possession of marijuana. The court deferred and suspended imposition of sentence and placed the defendant on probation in accordance with the provisions of Section 12--53--13, N.D.C.C. One of the conditions of the order suspending the imposition of sentence (clause (3)(g)) reads as follows:
'That the defendant not use illegal drugs or marijuana, nor have them in possession at any time, and that he consent to his parole officer or other law enforcement officers to search his home, property or person at any time without a search warrant.'
On October 6, 1971, the defendant was arrested on a charge of possession of marijuana and was placed in the Burleigh County jail. Later that day he was taken from the jail by his probation officer and two law enforcement officers and was taken to his apartment in Mandan which was then searched without a warrant in his presence, resulting in the discovery and seizure of marijuana and hashish.
Thereafter, at a probation revocation hearing the trial court admitted the products of the search in evidence over the objection of defense counsel that it was obtained in violation of the defendant's Fourth Amendment rights and, on October 18, 1971, it revoked the order of August 11, 1971, suspending the imposition of sentence and sentenced the defendant, upon his original plea of guilty, to imprisonment in the state penitentiary for one year.
Defendant then took this appeal, contending that the evidence introduced at the probation revocation hearing was obtained in violation of his rights under the Fourth Amendment to the United States Constitution and therefore should not have been admitted.
It is clear that the court has the power to impose conditions which must be complied with during the period of the suspension of imposition of sentence.
The defendant does not attack the validity of this statute but contends that the condition imposed by clause (3)(g) and the resulting search violated his rights under the Fourth Amendment.
To answer this contention we must decide whether this clause is a reasonable exercise of the court's discretion under the authority granted by Section 12--53--13, N.D.C.C., but before this question can be answered we must determine whether a person's status as a probationer affects the protection afforded by the first provision of the Fourth Amendment that 'the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.'
Discussing probation generally, the United States Supreme Court in Burns v. United States, 287 U.S. 216, 220, 53 S.Ct. 154, 155, 77 L.Ed. 266 (1932), an appeal from the revocation of the petitioner's probation, stated as follows:
'The Federal Probation Act (citation) confers an authority commensurate with its object. It was designed to provide a period of grace in order to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable. (Citation) Probation is thus conferred as a privilege and cannot be demanded as a right. It is a matter of favor, not of contract. There is no requirement that it must be granted on a specified showing. The defendant stands convicted; he faces punishment and cannot insist on terms or strike a bargain. To accomplish the purpose of the statute, an exceptional degree of flexibility in administration is essential. It is necessary to individualize each case to give that careful, humane and comprehensive consideration to the particular situation of each offender which would be possible only in the exercise of a broad discretion. The provisions of the act are adapted to this end. It authorizes courts of original jurisdiction, when satisfied 'that the ends of justice and the best interest of the public, as well as the defendant, will be subserved,' to suspend the imposition or execution of sentence and 'to place the defendant upon probation for such period and upon such terms and conditons as they may deem best.'
A further statement of the purpose of probation is found in Roberts v. United States, 320 U.S. 264, 272, 64 S.Ct. 113, 117, 88 L.Ed. 41 (1943):
'* * * the basic purpose of probation, namely (is) to provide an individualized program offering a young or unhardened offender an opportunity to rehabilitate himself without institutional confinement under the tutelage of a probation official and under the continuing power of the court to impose institutional punishment for his original offense in the event that he abuse this opportunity.'
Defendant cites two cases in support of the proposition that a person on probation has the same Fourth Amendment rights as an ordinary citizen. In the first of these, United States ex rel. Lombardino v. Heyd, 318 F.Supp. 648, 650 (E.D.La.1970), the court said:
'I have no hesitation in stating that...
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State v. Short, 12–1150.
...714 N.E.2d 861, 862, 865 (1999) (upholding search of a probationer's home under a court-ordered probation condition); State v. Schlosser, 202 N.W.2d 136, 139 (N.D.1972) (upholding a warrantless search of a probationer); State v. Turner, 297 S.W.3d 155, 169 (Tenn.2009) (upholding under the T......
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...probationer's signed acceptance therefore was in legal effect coerced and thus rendered nugatory” (footnote omitted)); State v. Schlosser, 202 N.W.2d 136, 139 (N.D.1972) (holding search provision in probation order “constitute[d] a reasonable and necessary element of [the court's regulation......
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...apparent that our precedent relies on a formulation of a legal test from the 1970's that is no longer good law.[¶ 10] In State v. Schlosser, 202 N.W.2d 136 (N.D.1972), the defendant was a supervised probationer who appealed revocation of his deferred imposition of sentence. He claimed evide......
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...time of the day or night, with or without a search warrant.”). See State v. Krous, 2004 ND 136, ¶ 19, 681 N.W.2d 822; State v. Schlosser, 202 N.W.2d 136, 139 (N.D.1972). A probationer's Fourth Amendment rights are limited by his status as a probationer. See Krous, at ¶ 16; Schlosser, at 139......
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