State v. Adams

2010 ND 184, 788 N.W.2d 619, 2010 N.D. LEXIS 182, 2010 WL 3633728

Opinions

SANDSTROM, Justice.

[¶ 1] Stephen Adams appeals a district court order denying his motion to suppress evidence and a criminal judgment convicting him of possession of drug paraphernalia and possession of marijuana with intent to deliver or manufacture. We affirm.

I

[¶ 2] In July 2008, after receiving a tip about drugs at a Fargo apartment, police officers conducted a probation search at the apartment, which was occupied by the probationer and Adams. One of the probationer’s conditions of probation was that she would “submit [her] person, place of residence and vehicle, or any other property to which [she] may have access, to search and seizure at any time of day or night by a parole/probation officer, with or without a search warrant.” The officers entered the apartment, spoke with the probationer in the living room, and then entered the bedroom, where they saw Adams. Adams told the officers he had just smoked a “blunt” in the bathroom. One of the officers handcuffed Adams and brought him into the living room. The officer read the probationer and Adams their rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and questioned them. Adams told the officers there was marijuana in a dresser in the bedroom. The officers found nineteen grams of marijuana and $667 cash in the dresser and also saw a locked safe in the bedroom. The officers asked for the combination. They did not ask to whom the safe belonged. Adams softly stated some numbers, but he would not repeat them. The officers told Adams that if he did not repeat the numbers, they would forcibly open the safe. The officers pried open the safe with a screwdriver and hammer, which took ten to fifteen minutes to accomplish. The officers found three bags of marijuana (each weighing over an ounce), title to a vehicle belonging to Adams, a gun box, $1200 cash, and ammunition. Adams stated the items were his.

[¶ 3] Adams was charged with possession of drug paraphernalia and possession of marijuana with intent to deliver or manufacture. He moved to suppress the evidence found in the safe, arguing the search of the safe was conducted in an unreasonable manner. The district court denied Adams’ motion, concluding the search was a valid search incident to arrest and, in the alternative, a reasonable probation search with the probationer’s consent.

[¶ 4] Adams entered a conditional plea of guilty, but he was not sentenced and no judgment of conviction was entered. He appealed from the order of conditional plea. We dismissed the appeal because no judgment of conviction or final order had been entered. See State v. Adams, 2009 ND 168, 772 N.W.2d 878.

[¶ 5] A change of plea and sentencing hearing was held. Adams entered a conditional plea of guilty and was sentenced. A criminal judgment and commitment was entered. Adams appeals the order denying his motion to suppress and the criminal judgment.

[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.

II

[¶ 7] When reviewing a district court’s decision on a suppression motion, we apply a deferential standard of review and defer to the district court’s findings of fact. State v. Olson, 2007 ND 40, ¶ 7, 729 N.W.2d 132. Conflicts in testimony are resolved in favor of affirmance, because the district court is in a superior position to assess credibility of witnesses and to weigh the evidence. City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994). Generally, a district court’s decision to deny a suppression motion will not be reversed if there is sufficient competent evidence capable of supporting the district court’s findings and if its decision is not contrary to the manifest weight of the evidence. Id. Questions of law are fully renewable on appeal. Olson, 2007 ND 40, ¶ 7, 729 N.W.2d 132.

[¶ 8] Adams and the State stipulated to the basic facts before the district court. The district court had to analyze the facts to determine whether the search under those circumstances was reasonable. In State v. LaFromboise, 542 N.W.2d 110 (N.D.1996), we reviewed the district’s court’s determination of the reasonableness of the manner of a probation search under a deferential standard. 542 N.W.2d at 114 (“The trial court found nothing unreasonable about the length or extent of the search under the circumstances, and neither do we.... We conclude there is sufficient competent evidence to support the trial court’s findings. The manner, intensity, and scope of the search were not unreasonable.”).

[¶ 9] On appeal, Adams argues: 1) the district court erred in concluding the search of the residence was a reasonable probation search; and 2) the district court erred in concluding the search of the safe was a proper search incident to arrest.

A

[¶ 10] Adams argues the district court erred in concluding the search of the safe was a reasonable probation search.

[¶ 11] The Fourth Amendment to the U.S. Constitution, enforceable against the States by the Fourteenth Amendment, protects the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV; U.S. Const, amend. XIV; see also State v. Hurt, 2007 ND 192, ¶ 6, 743 N.W.2d 102. Generally, a search by law enforcement must be accompanied by a warrant. Hurt, at ¶ 6. “If, however, the entry and search fall within a recognized exception to the warrant rule, the search may be constitutionally permissible.” Id.

[¶ 12] This Court has upheld warrantless probationary searches when the conditions of probation include a condition such as that in N.D.C.C. § 12.1-32-07(4)(n) (“Submit the defendant’s 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.”). 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; Schlos-ser, at 139. “Inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled.” U.S. v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (quotations omitted). “Just as other punishments ... curtail an offender’s freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.” Id. We have held that those, such as Adams, who voluntarily choose to live with probationers assume the risk that they too will have diminished Fourth Amendment rights in areas shared with the probationer. Hurt, 2007 ND 192, ¶ 19, 743 N.W.2d 102. The fact that a probationer shares a residence does not nullify the authority to conduct a warrantless search of the probationer’s property. Id.

[¶ 13] Here, prior to the search, the police officers did not ask to whom the safe belonged. The safe was located in the bedroom, which Adams does not dispute was a common area to which the probationer had access. Adams does, however, dispute that the probationer had access to the safe itself. The stipulated facts state that Adams did not state the safe belonged to him at the time of the search, although he did state the items found inside were his after the safe was opened. The record does not reflect that the probationer at any point told the officers that she either did or did not have access to the safe. The district court’s decision that the safe was searched on the basis of Adams’ roommate’s probationary status is not contrary to the manifest weight of the evidence. A reasonable officer could believe both residents of a household have access to a safe located in a shared bedroom. Under the probationer’s warrantless search condition, officers could, without a warrant or probable cause, search areas used exclusively by the probationer, areas within the “common authority” of the probationer and Adams, and areas to which the probationer “normally had access.” See Hurt, 2007 ND 192, ¶ 19, 743 N.W.2d 102 (quoting People v. Pleasant, 123 Cal.App.4th 194, 19 Cal.Rptr.3d 796, 798 (2004)).

[¶ 14] Adams next contends the search of the safe was unreasonable because the safe was destroyed in the process of being opened. “Any search conducted under a condition of probation must be conducted in a reasonable manner.” Krous, 2004 ND 136, ¶ 21, 681 N.W.2d 822. “The terms of the condition do not authorize searches conducted in an unreasonable manner.” Id. In State v. Odom, 2006 ND 209, ¶ 16, 722 N.W.2d 370, we noted general consent to a search does not include permission to inflict intentional damage to the places or things searched. Similarly, the U.S. Supreme Court, in Florida v. Jimeno, 500 U.S. 248, 251-52, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), stated, “It is very likely unreasonable to think that a suspect, by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase -within the trunk, but it is otherwise with respect to a closed paper bag.” Odom and Jimeno, however, involved verbal consent searches, not probation searches. A voluntary consent analysis does not apply here. The search of the apartment was not authorized by the defendant’s free will, nor was it subject to his limits and approval.

[¶ 15] The consent to search the apartment and its permissible limits were established by law through the probation terms. This entails analysis different from an ordinary consent search. While we stated in Hurt that we saw no reason to treat a co-occupant’s “consent, albeit in the form of a probation term, differently from the verbal consent that could be given by any other co-occupant,” see Hurt, 2007 ND 192, ¶ 20, 743 N.W.2d 102, verbal consent searches and probation searches differ. What may be considered outside the scope of general consent and thus an unreasonable search may be considered reasonable under the terms of a court-ordered condition allowing for the warrantless search of a probationer. See, e.g., 21A Am.Jur.2d Criminal Law § 849 (2008) (“[T]he standards for a reasonable search of a probationer are much less than those of an ordinary citizen.”). In other states, courts have upheld probation searches that involved the warrantless opening of locked items. See, e.g., Anderson v. State, 292 Ga.App. 826, 666 S.E.2d 70 (2008) (upholding probation search during which officers brought a locked safe to the sheriffs department and opened it without a warrant, because the safe was part of the appellant’s residence and effects and thus subject to search under the terms of his probation); State v. Walker, 215 Ariz. 91, 158 P.3d 220 (2007) (upholding warrantless search, during which officers cut off the lock on a trunk found in an area defendant shared with probationer, as a valid probation search). The touchstone of the Fourth Amendment is reasonableness, which is assessed by balancing the degree to which a search intrudes on an individual’s privacy with the degree to which a search is needed for the promotion of legitimate governmental interests. U.S. v. Knights, 534 U.S. 112, 118-19, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). An individual’s status as a probationer subject to a search condition informs both sides of that balance. Id.

[¶ 16] Border searches provide some guidance as to the reasonableness of the search here. This is another area that carries a lessened expectation of privacy under the Fourth Amendment,, and courts have upheld some interference with property as reasonable. See U.S. v. Flores-Montano, 541 U.S. 149, 155-56, 124 S.Ct. 1582, 158 L.Ed.2d 311 (2004) (while some searches of property are so destructive as to require more than sus-picionless inspection, the fifteen- to twenty-minute procedure of removal, disas-sembly, and reassembly of a vehicle’s gas tank at the border was not) (border searches carried out in a “particularly offensive manner” might be deemed unreasonable); U.S. v. Lawson, 374 F.Supp.2d 513, 521 (E.D.Ky.2005) (search during which customs officer cut three-inch slit in suitcase’s inner lining and drilled small hole in its rail was not particularly offensive or destructive so as to be unreasonable), aff'd, 461 F.3d 697 (6th Cir.2006).

[¶ 17] Adams voluntarily chose to live with a probationer, and he assumed the risk that he too would have diminished Fourth Amendment rights in areas shared with her. See Hurt, 2007 ND 192, ¶ 19, 743 N.W.2d 102. Because of the terms of her probation, the probationer and Adams had a lessened expectation of privacy in their dwelling and shared possessions. Breaking open the safe may have been outside the scope of general consent and thus unreasonable in a consent search. See Odom, 2006 ND 209, ¶ 16, 722 N.W.2d 370 (“General consent ‘to search does not include permission to inflict intentional damage to the places or things to be searched.’ ”). The standards for a reasonable probation search under a court-ordered warrantless search condition, however, are less than those for an ordinary consent search. The consent for the search in this case arose by operation of law, through the probation order. We hold that searching locked boxes reasonably accessible by law enforcement is within the scope of this statutory consent. The safe was opened within ten to fifteen minutes using common household tools. To conclude the search was unreasonable would give probationers the ability to effectively render warrantless probation searches meaningless, because probationers could avoid warrantless searches merely by securing items in a locked box.

B

[¶ 18] Because the district court did not err in concluding the search was reasonable under the terms of Adams’ roommate’s probation, it is unnecessary to reach Adams’ argument that the district court erred in concluding the search of the safe was a proper search incident to arrest.

Ill

[¶ 19] The district court order denying Adams’ motion to suppress evidence and the criminal judgment convicting him of possession of drug paraphernalia and possession of marijuana with intent to deliver or manufacture are affirmed.

[¶ 20] GERALD W. VANDE WALLE, C.J., and DANIEL J. CROTHERS, J., concur.