State v. Vermilya

• Decision Date: 28 October 1986
• Docket Number: No. 1173,1173
• Citation: 395 N.W.2d 151
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Mitchell J. VERMILYA, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 151

395 N.W.2d 151

STATE of North Dakota, Plaintiff and Appellee, v. Mitchell J. VERMILYA, Defendant and Appellant.

Crim. No. 1173.

Supreme Court of North Dakota.

Oct. 28, 1986.

Jo Louise Bullis, Asst. State's Atty., Watford City, for plaintiff and appellee.

Thomas K. Schoppert, New Town, for defendant and appellant.

MESCHKE, Justice.

Mitchell Vermilya pled guilty to the charge of possession of a firearm by a felon in violation of Section 62.1-02-01, N.D.C.C. The plea was conditional under Rule 11(a)(2), N.D.R.Crim.P., reserving Vermilya's right to appeal from the judgment of conviction to review the trial court's denial of his motion to suppress evidence. We affirm.

During October 1985, Vermilya was convicted in the State of Montana on felony and misdemeanor charges of criminal possession of dangerous drugs. Vermilya's sentences on the convictions were deferred, and one of the conditions of probation was:

"That Defendant shall submit to a search of his person, vehicle or place of residence by a parole or probation officer, at any time of the day or night, with or without a warrant, upon reasonable cause as may be ascertainable by a parole or probation officer."

Vermilya's probation commenced under the direction of the Department of Institution Bureau of Probation and Parole in the State of Montana. However, as a North Dakota resident, Vermilya was eligible for an interstate transfer of probation under Chapter 12-56, N.D.C.C., and his transfer was accepted by North Dakota authorities.

On December 17, 1985, Vermilya's residence was searched by a North Dakota probation officer without Vermilya's consent and without a search warrant. Two rifles and one handgun were found during the search resulting in charges against Vermilya under Section 62.1-02-01, N.D.C.C. for possession of firearms. Vermilya moved to suppress the firearms as evidence. His motion was denied.

On appeal Vermilya asserts that the probation officer's search violated his Fourth Amendment right against unreasonable search and seizure, because the search was not based upon reasonable cause. The state asserts that the probation officer did not need reasonable cause to search Vermilya's residence and that in any event the officer did have reasonable cause to conduct the search.

In State v. Perbix, 331 N.W.2d 14 (N.D.1983), we held that a "search clause," as a condition of probation, which provided that the probationer must allow a search of his person, place of residence, or motor vehicle without a search warrant and without probable cause, did not violate the probationer's Fourth Amendment right against unreasonable searches and seizures. We did not hold in Perbix, supra, that a search clause so restricting the probationer's Fourth Amendment rights must be included by a trial court as a condition of probation, nor did we hold that a search of the probationer's residence could be conducted without warrant or probable cause in the absence of such a clause.

Vermilya's condition of probation clearly stated that a probation officer may search Vermilya's residence without a warrant only "upon reasonable cause." The terms "reasonable cause" and "probable cause" are synonymous. State v. Page, 277 N.W.2d 112, 115 (N.D.1979). Although it eliminated the warrant requirement, this search clause did not annul Vermilya's Fourth Amendment right to probable cause for searches of his person or premises. ¹ This Montana search clause was a valid probation condition, and it required...