Murry v. Commonwealth

• Court: Supreme Court of Virginia
• Decided: September 12, 2014
• Docket: 131137
• Status: Published

Opinion

Present: All the Justices

RONALD STUART MURRY, JR. OPINION BY v. Record No. 131137 CHIEF JUSTICE CYNTHIA D. KINSER SEPTEMBER 12, 2014 COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

The defendant, Ronald Stuart Murry, Jr., is subject to a

probation condition requiring him to submit to warrantless,

suspicionless searches of his person, property, residence, and

vehicle at any time by any probation or law enforcement officer.

The probation condition is not reasonable in light of the

offenses for which Murry was convicted, his background, and the

surrounding circumstances. We will therefore reverse the

judgment of the Court of Appeals of Virginia.

RELEVANT FACTS AND PROCEEDINGS

In a bench trial in the Circuit Court of Hanover County,

Murry was convicted of rape, in violation of Code § 18.2-61; 1

four counts of aggravated sexual battery, in violation of Code

§ 18.2-67.3(A)(1); and one count of aggravated sexual battery,

in violation of Code § 18.2-67.3(A)(3). The victim, B.W., was

Murry's stepdaughter. At trial, she testified about sexual

abuse starting at the age of five and culminating in rape after

she reached the age of 13. Murry denied the allegations of

1 The sentencing order contains a clerical mistake. It lists the Code section for rape as Code § 18.2-261 instead of Code § 18.2-61. sexual battery but admitted to having sexual intercourse with

B.W. when she was 13 years old. He claimed, however, that the

intercourse was not against B.W.'s will and that he did not use

any threats, force, or intimidation against her. The circuit

court rejected Murry's testimony, finding it to be "incredible"

and concluding that the "ongoing relationship and the grooming

behavior . . . he encouraged from the time she was five years

old [was] a much more credible explanation for how [the rape]

occurred when she was thirteen."

At sentencing, the circuit court imposed terms of

incarceration for each of the convictions, totaling 156 years

and 7 months. 2 The court suspended 140 years of the sentences

for the period of Murry's "natural life," leaving a term of

active incarceration of 16 years and 7 months. The court

further ordered that upon release from incarceration, Murry

would be on supervised probation for an indefinite period. As a

condition of Murry's probation, the court ordered, inter alia,

that Murry "shall submit his person, property, place or

residence, vehicle, and personal effects, to search at any time,

with or without a search warrant, warrant of arrest or

2 The sentencing order has an additional clerical mistake. In the sentencing summary, it recites the total sentence imposed as 156 "dollars" and 7 months instead of 156 "years" and 7 months.

2 reasonable cause by any Probation Officer or Law Enforcement

Officer."

Murry objected to this probation condition, arguing that

the Fourth Amendment waiver was "not really necessarily

appropriate" because the convictions did not involve illegal

substances or firearms. The circuit court overruled the

objection, stating:

I agree with the Commonwealth that [Murry] groomed this child from an early age to accept his physical advances and that he manipulated her into this at the same time that he was presenting to everyone in his family and everyone in the community what a good person he would be . . . to have with children. I mean it's classic predatory behavior . . . . And, even at this point . . . , he does not accept responsibility for that, he exhibits distorted behavior about his own role in this . . . . And, in order to protect the community at the time that he's finally released, I want . . . law enforcement to have the ability to go directly into his house at any time to see what he's doing.

On appeal to the Court of Appeals of Virginia, Murry

challenged the probation condition requiring waiver of his

Fourth Amendment rights. Murry v. Commonwealth, 62 Va. App.

179, 181, 743 S.E.2d 302, 303 (2013). The Court of Appeals

affirmed the circuit court's judgment, concluding that the

challenged probation condition "is reasonable under the facts of

this case." Id. at 189, 743 S.E.2d at 307.

We awarded Murry this appeal. As he argued in the Court of

Appeals, Murry asserts that the condition of probation requiring

3 him to submit to searches of his person, property, residence,

and vehicle at any time by any probation or law enforcement

officer with or without a search warrant or reasonable cause

throughout the term of his probation is both unreasonable under

Virginia law and unconstitutional under the Fourth Amendment.

ANALYSIS

We review conditions of probation imposed by a trial court

as part of its sentencing determination for abuse of

discretion. Martin v. Commonwealth, 274 Va. 733, 735, 652

S.E.2d 109, 111 (2007). A trial court abuses its discretion

"when a relevant factor that should have been given significant

weight is not considered; when an irrelevant or improper factor

is considered and given significant weight; [or] when all proper

factors, and no improper ones, are considered, but the court, in

weighing those factors, commits a clear error of

judgment." Landrum v. Chippenham & Johnston-Willis Hosps.,

Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011) (internal

quotation marks omitted); see also Porter v. Commonwealth, 276

Va. 203, 260, 661 S.E.2d 415, 445 (2008) ("The abuse-of-

discretion standard includes review to determine that the

discretion was not guided by erroneous legal conclusions.")

(internal quotation marks omitted).

Probation is a form of criminal sanction, like

incarceration, imposed by a trial court after a verdict,

4 finding, or plea of guilty. Griffin v. Wisconsin, 483 U.S. 868,

874 (1987). Pursuant to Code § 19.2-303, "[a]fter conviction,

whether with or without jury, the court may suspend imposition

of sentence or suspend the sentence in whole or part and in

addition may place the defendant on probation under such

conditions as the court shall determine." This statute

authorizes a trial court to impose such reasonable terms and

conditions of probation as it deems appropriate. Dyke v.

Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 486 (1952)

(decided under predecessor statute, former Code § 53-272). The

only statutory limitation on the court's exercise of its

discretion is "one of reasonableness." Anderson v.

Commonwealth, 256 Va. 580, 585, 507 S.E.2d 339, 341 (1998).

Probation conditions must be reasonable in light of the nature

of the offense, the defendant's background, and the surrounding

circumstances. Id. at 585, 507 S.E.2d at 342; see also State v.

Allah, 750 S.E.2d 903, 911 (N.C. Ct. App. 2013) (discussing that

probation conditions must bear a reasonable relationship to the

offenses committed by the defendant, tend to reduce the

defendant's exposure to crime, and assist in the defendant's

rehabilitation) (citing State v. Cooper, 282 S.E.2d 436, 438

(N.C. 1981)); Jones v. State, 41 P.3d 1247, 1258 (Wyo. 2002)

(holding that "probation conditions must be reasonably related

to rehabilitation, to the criminal conduct for which the

5 probationer was convicted, and to the deterrence of future

criminal conduct").

Murry argues that the circuit court abused its discretion

because the probation condition is not reasonably related to the

offenses for which he was convicted, his background, or any

surrounding circumstances and amounts to a "lifetime waiver" of

his Fourth Amendment protection against unreasonable searches

and seizures. 3 The Commonwealth responds that the probation

condition is reasonable in light of the circuit court's findings

that Murry groomed his victim from an early age, was able to

conceal his reprehensible conduct from his family and the

community, and never accepted responsibility for his behavior.

According to the Commonwealth, the probation condition is

3 The Court of Appeals concluded that in the circuit court Murry only objected to the reasonableness of the probation condition at issue and did not assert that the condition was unconstitutional. Murry, 62 Va. App. at 181 n.1, 743 S.E.2d at 303-04 n.1. Thus, pursuant to Rule 5A:18, the Court of Appeals did not address the merits of that argument. Id. Murry now also challenges the Court of Appeals' failure to address the constitutionality of the probation condition. In ruling on Murry's objection to the required waiver of his Fourth Amendment rights, the circuit court referenced the decision in United States v. Knights, 534 U.S. 112 (2001). The court thus understood Murry's argument and ruled on it. See Scialdone v. Commonwealth, 279 Va. 422, 442, 689 S.E.2d 716, 727 (2010) (holding that trial court was aware of defendants' arguments and ruled on them). We therefore conclude that the Court of Appeals erred in refusing to address the constitutional challenge to the probation condition. Although we do not need to specifically address whether the probation condition violates Murry's Fourth Amendment rights, Fourth Amendment principles are, nevertheless, relevant to determine if the probation condition is reasonable under our jurisprudence.

6 necessary to verify Murry's compliance with other probation

conditions and to protect the public. Because the probation

condition here implicates Murry's Fourth Amendment rights, to

determine whether it is reasonable we must measure Murry's

privacy interests against the Commonwealth's interests in

imposing the condition in light of Murry's offenses, his

background, and the surrounding circumstances. See Carswell v.

State, 721 N.E.2d 1255, 1258 (Ind. Ct. App. 1999) (holding that

when a defendant contends that a probation condition is "unduly

intrusive on a constitutional right," a review of the condition

must balance the constitutional rights enjoyed by the

probationer and the legitimate needs of law enforcement); Jones,

41 P.3d at 1258 (determining the reasonableness of a probation

condition waiving Fourth Amendment rights "requires a balancing

of the interests of the state and the privacy interests of the

probationer").

Probation is "one point . . . on a continuum of possible

punishments ranging from solitary confinement in a maximum-

security facility to a few hours of mandatory community

service." Griffin, 483 U.S. at 874. "Inherent in the very

nature of probation is that probationers 'do not enjoy the

absolute liberty to which every citizen is entitled,'" United

States v. Knights, 534 U.S. 112, 119 (2001) (quoting Griffin,

483 U.S. at 874), "but only . . . conditional liberty properly

7 dependent on observance of special [probation

conditions]." Morrissey v. Brewer, 408 U.S. 471, 480 (1972).

Because "[a] [s]tate's operation of a probation system . . .

presents 'special needs' beyond normal law enforcement" to

ensure that probation restrictions are followed, "departures

from the usual warrant and probable-cause requirements" for

searches may be justified. Griffin, 483 U.S. at 873-74. The

permissible range of departure, however, "is not

unlimited." Id. at 875.

In Knights, the Supreme Court of the United States

determined the reasonableness of a search of a probationer by

balancing "'on the one hand, the degree to which it intrudes

upon an individual's privacy and, on the other, the degree to

which it is needed for the promotion of legitimate governmental

interests.'" 534 U.S. at 119 (quoting Wyoming v. Houghton, 526

U.S. 295, 300 (1999)); see also New Jersey v. T.L.O., 469 U.S.

325, 337 (1985) (determining reasonableness of a search requires

"balancing the need to search against the invasion which the

search entails") (internal quotation marks omitted). There, the

probationer was subject to a probation condition that was

virtually identical to the Fourth Amendment waiver required of

Murry. Knights, 534 U.S. at 114. In addition, the probationer

had signed a probation order that stated the following above his

signature: "I RECEIVED A COPY, READ AND UNDERSTAND THE ABOVE

8 TERMS AND CONDITIONS OF PROBATION AND AGREE TO ABIDE BY

SAME." Id. The defendant subsequently challenged the legality

of a search conducted pursuant to the probation condition. Id.

at 116.

The Court concluded that the probationer's acceptance of

the clear and unambiguous probation condition "significantly

diminished" his reasonable expectation of privacy. Id. at 119-

20. Weighing that fact against the government's legitimate

interests with regard to probation, the Court held that "the

balance of these considerations requires no more than reasonable

suspicion to conduct a search of [the] probationer's

house." Id. at 121. The Court concluded that "the warrantless

search of [the probationer], supported by reasonable suspicion

and authorized by a condition of probation, was reasonable

within the meaning of the Fourth Amendment." 4 Id. at

122; see also United States v. Davis, 932 F.2d 752, 755-58 (9th

Cir. 1991) (holding that, where the defendant "was on probation

and subject to a search condition permitting the warrantless

search of her apartment," law enforcement officers must have, at

a minimum, "reasonable suspicion[] that an item to be searched

is owned, controlled, or possessed by [the] probationer, in

4 The trial court found and the probationer conceded that the law enforcement officer who conducted the search had "reasonable suspicion" that the probationer was engaged in criminal activity. Knights, 534 U.S. at 122.

9 order for the item to fall within the permissible bounds of [a]

probation search"); Carswell, 721 N.E.2d at 1262 (upholding a

probation condition authorizing warrantless searches of the

defendant, provided the searches are "conducted only upon

reasonable cause"); State v. Lockwood, 632 A.2d 655, 662 (Vt.

1993) (holding that, although the probation condition

authorizing warrantless searches without reasonable cause was

flawed, the search at issue was upheld "because the officers had

reasonable suspicion to conduct the search"). But see Samson v.

California, 547 U.S. 843, 857 (2006) (holding that "the Fourth

Amendment does not prohibit a police officer from conducting a

suspicionless search of a parolee").

The Court did not address "whether the probation condition

so diminished, or completely eliminated, [the probationer's]

reasonable expectation of privacy . . . that a search by a law

enforcement officer without any individualized suspicion would

have satisfied the reasonableness requirement of the Fourth

Amendment." 534 U.S. at 120 n.6; see also Samson, 547 U.S. at

849 (explaining that "[b]ecause the search at issue in Knights

was predicated on both the probation search condition and

reasonable suspicion, [the Court] did not reach the question

whether the search would have been reasonable under the Fourth

Amendment had it been solely predicated upon the condition of

10 probation"). Neither did the Court address whether the

probation condition itself violated the Fourth Amendment.

Murry, however, is challenging the reasonableness of the

probation condition. In contrast to the defendant in Knights,

he is not challenging the legality of an actual search. As we

already stated, the balancing test used in Knights and other

cases is, nevertheless, the appropriate framework to address the

reasonableness of the probation condition because it affects

Murry's Fourth Amendment rights. See Carswell, 721 N.E.2d at

1258 (when a defendant contends that a probation condition is

"unduly intrusive on a constitutional right," a review of the

condition must balance the constitutional rights enjoyed by the

probationer and the legitimate needs of law enforcement); State

v. Bennett, 200 P.3d 455, 463 (Kan. 2009) (balancing

probationer's expectation of privacy against state's legitimate

interests to decide whether probation condition authorizing

suspicionless searches violated probationer's Fourth Amendment

rights); Jones, 41 P.3d at 1258 (determining the reasonableness

of a probation condition waiving Fourth Amendment rights

"requires a balancing of the interests of the state and the

privacy interests of the probationer"). Murry's future status

as a probationer "informs both sides of that balance." Knights,

534 U.S. at 119.

11 On Murry's side of the balance, it is apparent from the

decision in Knights that probationers retain some expectation of

privacy, albeit diminished. See id. at 121 ("When an officer

has reasonable suspicion that a probationer subject to a search

condition is engaged in criminal activity, there is enough

likelihood that criminal conduct is occurring that an intrusion

on the probationer's significantly diminished privacy interests

is reasonable.") (emphasis added); see also Samson, 547 U.S. at

850-52 & n.2 (explaining that parolees have fewer expectations

of privacy than probationers and that, in Knights, the

probationer's acceptance of the probation condition there

significantly diminished his expectation of privacy); Griffin,

483 U.S. at 875 ("Supervision . . . is a 'special need' of the

[s]tate permitting a degree of impingement upon privacy that

would not be constitutional if applied to the public at large.

That permissible degree is not unlimited, however."); United

States v. Stewart, 468 F.Supp.2d 261, 278 (D. Mass. 2007)

("[T]here must be some privacy rights that a probationer retains

and from which he can exclude the government unless it comes

armed with a warrant or individualized suspicion."); People v.

Johns, 795 N.E.2d 433, 437 (Ill. App. Ct. 2003) (explaining that

a probationer's expectation of privacy is diminished but not

extinguished); Bennett, 200 P.3d at 463 ("[A]lthough

probationers' privacy rights are more limited than are the

12 rights of free citizens, probationers do enjoy some expectation

of privacy in their persons and property."); People v. Hale, 714

N.E.2d 861, 863 (N.Y. 1999) ("[A] probationer loses some privacy

expectations and some of the protections of the Fourth

Amendment, but not all of both.").

The probation condition challenged in this appeal subjects

Murry to searches of his person, property, residence, and

vehicle at any time by any probation or law enforcement officer.

Neither a search warrant nor even reasonable cause is required.

Furthermore, the probation condition not only authorizes

suspicionless searches but also allows such searches for both

probation and investigative purposes. 5 See Hale, 714 N.E.2d at

862, 865 (upholding search conducted pursuant to a probation

condition that allowed only searches for specific items by

probation officers). There is no question that the degree of

intrusion on Murry's expectation of privacy as a probationer is

5 In determining the reasonableness of suspicionless searches authorized by probation conditions, courts have distinguished between searches conducted for probationary purposes and those conducted for investigative purposes. The former "must be related to the rehabilitation or supervision of the defendant," State v. Zeta Chi Fraternity, 696 A.2d 530, 541 (N.H. 1997), and "should advance the goals of probation, the overriding aim of which is to give the [probationer] a chance to further and to demonstrate his rehabilitation while serving a part of his sentence outside the prison walls." United States v. Ooley, 116 F.3d 370, 372 (9th Cir. 1997) (internal quotation marks omitted). The latter serves as "a mere subterfuge enabling the police to avoid having to obtain a search warrant." Id. (internal quotation marks omitted).

13 significant. In reality, it extinguishes any Fourth Amendment

rights Murry may have as a probationer.

On the other side of the balance, the Commonwealth has the

expectation that a probationer will successfully complete the

term of probation and be integrated back into society as a

productive, law-abiding person. See Knights, 534 U.S. at 120-

21; see also Wilborn v. Saunders, 170 Va. 153, 160, 195 S.E.

723, 726 (1938) ("The Commonwealth is interested not only in the

preservation of peace and good order, but in reformation of the

criminal, so that he may be restored to a useful place in

society and be self-sustaining thereafter."). At the same time,

the Commonwealth has the legitimate concern that a probationer

is more likely to engage in criminal activities than an ordinary

citizen. Knights, 534 U.S. at 121. This concern is heightened

when, as here, a probationer is a sex offender. See United

States v. Yuknavich, 419 F.3d 1302, 1310 (11th Cir. 2005)

(recognizing that sex offenders are a serious threat and that

states have a vital interest in rehabilitating them); Carswell,

721 N.E.2d at 1263 (recognizing elevated public safety concerns

with "the crime of child molestation," which all too often goes

unreported). "[T]he very assumption of the institution of

probation [is] that the probationer is in need of rehabilitation

and is more likely than the ordinary citizen to violate the

law." Griffin, 483 U.S. at 880. Thus, probation conditions and

14 supervision are necessary to ensure both that probation "serves

as a period of genuine rehabilitation and that the community is

not harmed by the probationer's being at large." Id. at 875.

The circuit court convicted Murry of rape and several

counts of aggravated sexual battery. The victim, a family

member, was between the ages of five and 13 at the time of the

offenses. Although Murry had no prior convictions, the circuit

court imposed the probation condition because it concluded that

Murry had groomed his victim from an early age and had

successfully concealed his behavior from his family and the

community for many years. As a result, the court wanted "law

enforcement to have the ability to go directly into [Murry's]

house at any time to see what he's doing."

Although the Commonwealth has a legitimate interest in

ensuring that Murry completes a meaningful period of

rehabilitation and that society not be harmed by Murry's being

at large as a sex offender, we conclude that those interests do

not justify the total surrender of Murry's Fourth Amendment

rights. See State v. Fields, 686 P.2d 1379, 1387-88 (Haw. 1984)

("[A] near-total surrender of privacy could [not] be reasonably

related to rehabilitation, and . . . the deprivation would be

inconsistent with even the limited freedom afforded someone who

but for the grace of the sentencing court would be in

prison."); Bennett, 200 P.3d at 463 (holding that a probation

15 condition requiring defendant to submit to nonconsensual,

suspicionless searches violated his Fourth Amendment rights).

Nothing in the record establishes that a complete waiver of

Murry's Fourth Amendment rights is necessary to facilitate his

rehabilitation and protect the public.

Furthermore, the probation condition authorizes any law

enforcement officer, even one without knowledge of the

condition, to search Murry's person, property, residence, and

vehicle at any time and for any reason. In other words, the

condition enables a law enforcement officer to avoid the warrant

requirement, or even having reasonable suspicion, for a purely

investigative search. Law enforcement officers, however, do not

have the same responsibility as probation officers with respect

to rehabilitating probationers. Compare Code § 53.1-145 (powers

and duties of probation and parole officers) with Code § 15.2-

1704 (powers and duties of police officers); see also State v.

Zeta Chi Fraternity, 696 A.2d 530, 541 (N.H. 1997) (probation

officers, unlike law enforcement officers, are charged with

assisting probationers "in establishing law-abiding lives while

monitoring their behavior"). The probation condition,

therefore, could sanction intimidating and harassing searches

that are unrelated to Murry's rehabilitation or public safety,

thus undermining the purpose of probation conditions.

16 Relying on this Court's decision in Anderson, the

Commonwealth, however, questions how Murry can contend that the

probation condition is unreasonable under the Fourth Amendment

when he accepted the circuit court's suspension of part of his

sentence. The Commonwealth's argument overlooks significant

factual differences between Anderson and the present case.

The defendant in Anderson pled guilty pursuant to a written

plea agreement. 256 Va. at 582, 507 S.E.2d at 340. The plea

agreement provided that the defendant's sentence would be

suspended upon certain terms and conditions, including a waiver

of the defendant's Fourth Amendment right against unreasonable

searches and seizures for one year from the date of

sentencing. Id. The plea agreement stated:

BY HIS SIGNATURE BELOW, [THE DEFENDANT] ACKNOWLEDGES THAT, IF THIS AGREEMENT IS ACCEPTED BY THE COURT, HE UNDERSTANDS HE IS WAIVING HIS FOURTH AMENDMENT RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES DURING THE PERIOD SPECIFIED ABOVE.

Id. at 582-83, 507 S.E.2d at 340. The trial court found that

the defendant had entered his plea freely and voluntarily and

incorporated the terms of the plea agreement into the sentencing

order. Id. at 583, 507 S.E.2d at 340.

Approximately five months after sentencing, police officers

searched the defendant and found cocaine, marijuana, and a

handgun. Id. at 583-84, 507 S.E.2d at 340-41. After being

charged with various felonies, the defendant moved to suppress

17 the evidence recovered from the search, contending that the

Fourth Amendment waiver in his plea agreement was invalid and

that the officers had no grounds otherwise to support a

warrantless search. Id. at 584, 507 S.E.2d at 341. On appeal,

the defendant asserted, inter alia, that conditioning the

suspended sentence upon a waiver of Fourth Amendment rights was

unreasonable. We disagreed, stating "it is difficult to

understand how [the defendant] can now contend that this

condition of his suspended sentence was unreasonable when he

knowingly and voluntarily agreed to it." Id. at 585, 507 S.E.2d

at 342.

The waiver of constitutional rights in a plea agreement is

not an uncommon practice. See United States v. Keele, ___ F.3d

___, 2014 U.S. App. LEXIS 10183, at *10 (5th Cir. June 2, 2014)

("Generally, constitutional rights can be waived as part of a

plea agreement."); Jones v. United States, 167 F.3d 1142, 1145

(7th Cir. 1999) (same). "[I]t is well settled that plea

bargaining does not violate the Constitution even though a

guilty plea waives important constitutional rights." Town of

Newton v. Rumery, 480 U.S. 386, 393 (1987); Johnson v. Zerbst,

304 U.S. 458, 464 (1938) (discussing standards for waiver of

such constitutional rights as the privilege against compulsory

self-incrimination, the right to trial by jury, and the right to

confront accusers). Nor is it uncommon for defendants to agree

18 to search conditions of probation in exchange for a more lenient

term of incarceration, as in Anderson. See United States v.

King, 711 F.3d 986, 990-91 (9th Cir. 2013) (upholding a search

where "the probationer agreed to a search condition that permits

warrantless, suspicionless searches of the probationer's

'person, property, premises and vehicle[] [at] any time of the

day or night'"). However, unlike the defendant in Anderson,

Murry did not agree to a waiver of his Fourth Amendment rights

pursuant to a signed plea agreement. Murry pled not guilty, and

the circuit court imposed the probation condition, sua sponte,

after finding Murry guilty. Murry objected to the probation

condition in the circuit court and is likewise doing so on

appeal. Furthermore, Murry is not yet on probation and has not

signed any document agreeing to terms of

probation. But see King, 711 F.3d at 990-91. Murry clearly has

not consented to the probation condition at issue here.

CONCLUSION

In summary, the probation condition subjecting Murry, his

property, residence, and vehicle to warrantless, suspicionless

searches at any time by any probation or law enforcement officer

is not reasonable in light of Murry's offenses, his background,

and the surrounding circumstances. The degree to which the

probation condition is needed to promote the Commonwealth's

legitimate interests with regard to Murry's rehabilitation and

19 the protection of society does not outweigh the degree of

intrusion on Murry's diminished yet legitimate expectation of

privacy as a probationer. Therefore, the circuit court abused

its discretion because in weighing the relevant factors, it

committed "a clear error of judgment." Landrum, 282 Va. at 352,

717 S.E.2d at 137 (internal quotation marks omitted). We will

reverse the judgment of the Court of Appeals and remand the case

to the Court of Appeals with directions that it remand the case

to the circuit court to conduct a new sentencing hearing.

Reversed and remanded.

JUSTICE MIMS, concurring.

The circuit court was motivated by a genuine concern that

Murry will pose a danger to public safety upon release. It

therefore imposed several probation conditions to ameliorate

that concern. I concur that the circuit court abused its

discretion by requiring Murry to “submit his person, property,

place or residence, vehicle, and personal effects, to search at

any time, with or without . . . reasonable cause by any

Probation Officer or Law Enforcement Officer.” Although the

underlying concern is justified, this condition is too broad. I

write separately to consider this condition in context with the

others, rather than in isolation.

The circuit court found that Murry raped his stepdaughter

when she was 13. It found that he had committed repeated

20 aggravated sexual batteries upon her since she was five years

old. It found the aggravated sexual batteries constituted

“grooming behavior” and facilitated the rape. It found that

Murry successfully concealed this sexual abuse for many years.

It found that he failed to accept responsibility for his crimes

upon conviction.

Based on these offenses, background, and surrounding

circumstances, Anderson v. Commonwealth, 256 Va. 580, 585, 507

S.E.2d 339, 341 (1998), the court imposed a probation condition

prohibiting Murry from having “contact with any minors under the

age of eighteen without adult supervision.” Murry does not

challenge the reasonableness of this condition.

Probation conditions “are meant to assure that the

probation serves as a period of genuine rehabilitation and that

the community is not harmed by the probationer’s being at large.

These same goals require and justify the exercise of supervision

to assure that” a probationer complies with the conditions after

release. Griffin v. Wisconsin, 483 U.S. 868, 875 (1987)

(citation omitted). Accordingly, Virginia probation officers

have a duty to ensure that probationers comply with their

probation conditions. See Code § 53.1-145 (requiring probation

officers to “furnish every such person with a written statement

of the conditions of his probation and instruct him therein” and

21 to “[a]rrest [probationers] for violation of the terms of

probation”).

While probation officers may attempt to ascertain whether a

probationer is complying with his probation conditions after

release by questioning him and his family, friends, neighbors,

co-workers, and other associates, “[i]nvestigation of [his]

home, possessions, and body may also be required. In such

situations, . . . probation officers believe that they need to

be able to make unannounced home visits and searches.” Neil P.

Cohen, The Law of Probation and Parole § 17:7 (2d ed. 1999).

Accordingly, the authority to do so is often included as a

separate condition of release. Id.

In this case, the circuit court could reasonably fear that

the customary investigative technique of interviewing Murry and

his associates would be insufficient to reveal any violation of

the condition prohibiting him from unsupervised contact with

minors. Probationers in general have a propensity to “to

conceal their criminal activities and quickly dispose of

incriminating evidence.” United States v. Knights, 534 U.S.

112, 120 (2001). The court’s findings suggest that Murry could

be particularly adept at doing so. It found that he concealed

his repeated aggravated sexual batteries for years. It was

especially disturbed by his ability to persuade his family and

others in the community who knew him that he was “a good person

22 . . . to have with children” at the same time he was sexually

abusing his stepdaughter. Consequently, the circuit court’s

findings are sufficient to establish the need for a separate

search condition in this case.

Nevertheless, such a condition must be reasonable not only

in its justification but in its scope. For example, former N.C.

Gen. Stat. § 15A-1343(b1)(7) permitted North Carolina courts to

require a probationer to submit to warrantless searches by a

probation officer of his home, vehicle, and person “at

reasonable times . . . while the probationer is present, for

purposes specified by the court and reasonably related to his or

her probation supervision, but the probationer may not be

required to submit to any other search that would otherwise be

unlawful.” 1 The United States Court of Appeals for the Fourth

Circuit upheld this condition, ruling that “[t]hese criteria

impose meaningful restrictions, guaranteeing that the searches

are justified by the State’s ‘special needs,’ not merely its

interest in law enforcement.” United States v. Midgette, 478

F.3d 616, 624 (4th Cir.), cert. denied, 551 U.S. 1157 (2007).

The court also rejected the argument that the condition was

defective because it did not require individualized suspicion

that the probationer possessed contraband. The court noted that

1 The North Carolina General Assembly amended the statute in 2009, making this condition mandatory for all probationers rather than discretionary. 2009 N.C. Sess. Laws 372.

23 the Supreme Court of the United States has upheld suspicionless

searches in furtherance of a special need when the search was

reasonably tailored. Id. (citing Board of Educ. v. Earls, 536

U.S. 822 (2001) (upholding suspicionless drug testing of

students involved in extracurricular activities); Michigan Dep’t

of State Police v. Sitz, 496 U.S. 444 (1990) (affirming

suspicionless sobriety checks of motorists in order to reduce

the safety hazards posed by drunk drivers); Skinner v. Railway

Labor Executives' Ass'n, 489 U.S. 602 (1989) (upholding

suspicionless urine and blood tests of certain railroad

employees); Bell v. Wolfish, 441 U.S. 520 (1979) (upholding

suspicionless visual body-cavity searches of detainees following

contact visits)). Thus, a search condition need not be

predicated on individualized suspicion when a special need

“justifie[s] the ‘degree of impingement upon privacy’ authorized

by” the condition. Id.

As noted above, the circuit court’s particularized findings

in this case (specifically Murry’s ability to conceal his sexual

crimes against his stepdaughter from his family and associates

for several years) could lead the court reasonably to conclude

that suspicionless searches are necessary to ensure Murry’s

compliance with the unchallenged condition prohibiting his

unsupervised contact with minors. If it were to do so on

remand, it might determine that former N.C. Gen. Stat. § 15A-

24 1343(b1)(7) provided a roadmap for imposing a constitutionally

tailored search condition. 2

Finally, I emphasize that a criminal defendant has no right

to suspension of any part of the sentence imposed by the trial

court. As the majority notes, Code § 19.2-303 permits that

“[a]fter conviction, whether with or without jury, the court may

suspend imposition of sentence or suspend the sentence in whole

or part and in addition may place the defendant on probation

under such conditions as the court shall determine.” (Emphasis

added.)

Accordingly, while a defendant may appeal a probation

condition on the grounds that it is unreasonable, Anderson, 256

Va. at 585, 507 S.E.2d at 341, nothing prevents a trial court

from declining to suspend any part of a valid sentence in the

first place (thereby requiring the defendant to serve the entire

2 The probation condition set out in former N.C. Gen. Stat. § 15A-1343(b1)(7) did not require probationers to submit to searches of their personal effects. However, predatory adults often use mobile phones for illicit contact with minors. E.g., Klewer v. Commonwealth, Record No. 0791-11-3, 2012 Va. App. LEXIS 315, at *5-6 (Oct. 9, 2012) (unpublished) (upholding the conviction for electronic solicitation of a minor, in violation of Code § 18.2-374.3(C), of teacher who exchanged text messages, photographs, and videos with a minor former student by mobile phone). Following the Supreme Court’s holding in Riley v. California, 573 U.S. ___, ___, 134 S.Ct. 2473, 2485 (2014), that officers must generally secure a warrant before conducting such a search of mobile phone data, it may not be unreasonable to require that a probationer subject to a condition prohibiting unsupervised contact with minors submit to searches of mobile phones and similar devices to ensure that they have not been used to facilitate the proscribed contact.

25 term in confinement) if it determines that no reasonable

conditions would make suspension “compatible with the public

interest.” See Griffin v. Cunningham, 205 Va. 349, 354, 136

S.E.2d 840, 844 (1964).

JUSTICE McCLANAHAN, dissenting.

I dissent for the reasons stated in the Court of Appeals

opinion, Murry v. Commonwealth, 62 Va. App. 179, 743 S.E.2d 302

(2013).