State v. Burke

766 P.2d 254, 235 Mont. 165, 1988 Mont. LEXIS 358
CourtMontana Supreme Court
DecidedDecember 15, 1988
Docket88-048
StatusPublished
Cited by52 cases

This text of 766 P.2d 254 (State v. Burke) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Burke, 766 P.2d 254, 235 Mont. 165, 1988 Mont. LEXIS 358 (Mo. 1988).

Opinions

MR. JUSTICE HARRISON

delivered the Opinion of the Court.

[166]*166This case comes on appeal from the District Court of the Twentieth Judicial District, Lake County, Montana, the Honorable C. B. McNeil, presiding. The District Court dismissed revocation proceedings which resulted from a suppression of evidence. At the time of this appeal, defendant Roth had completed his probation period.

Marcella Burke and Corwin Roth pleaded guilty to criminal sale of dangerous drugs on February 4, 1987. Judgments dated March 4, 1987, were entered imposing deferred imposition of sentence under various conditions for six years as to Burke and one year as to Roth. Five probation conditions are germane to this case:

“1. That the Defendant be placed under the jurisdiction of the Adult Probation and Parole Division of the State of Montana Department of Institutions and he [she] comply with all of the terms and conditions established by said Division.

“2. That the Defendant is prohibited from using or possessing any drugs of any kind, unless under the direct supervision of a physician.

“4. That the Defendant submit to blood, breath, or urine tests, without warrant, at the request of his [her] probation officer or law enforcement officers, upon reasonable cause.

“5. That Defendant submit to search of his [her] person, premises or vehicle, without warrant, at the request of his [her] probation officer of law enforcement officers, upon reasonable cause.

“6. That the Defendant obtain such drug and/or alcohol counseling and/or treatment as deemed advisable by his [her] probation officer.”

Neither defendants adhered to the requirements of contacting their respective probation officers nor obtaining alcohol and drug counseling.

On September 3, 1987, at approximately 11:00 p.m., Officer Bruce Phillips of the Lake County Sheriffs Department observed Burke in the parking lot of the Diamond Horseshoe Bar. Phillips watched various persons leave the bar, walk to Burke’s automobile, and then return to the bar. After requesting assistance, Phillips drove toward the Burke vehicle. He exited his car, approached Burke, and requested she exit her car. Phillips detected the smell of marijuana on Burke’s breath and saw Zig-Zag cigarette papers on the vehicle’s front seat. He then leaned into Burke’s vehicle from the driver’s side and opened the ashtray, finding the remnant of a smoked marijuana joint. Phillips contacted Burke’s probation officer, David Weaver, re[167]*167questing permission to continue the vehicle search. In addition to granting permission, Weaver also instructed Phillips to take Burke into custody for a possible probation violation. On further search, Phillips discovered two baggies containing marijuana in a soft-drink carton on the passenger front seat area.

After completion of the vehicle search, Phillips again contacted Weaver, obtaining permission to search Burke’s residence. Residents of the home included Burke, Roth and four children. Phillips and three county officials conducted the search which revealed marijuana and various drug paraphernalia. Roth was arrested for possible probation violations at Weaver’s direction. This third contact between Phillips and Weaver occurred at approximately 12:35 a.m.

On September 4, 1987, Weaver and Ron Alsbury, Roth’s probation officer, issued written authorization to the Lake County Sheriff to arrest and hold Burke and Roth for possible probation condition violations. At this time, Weaver requested a urinalysis of Roth, who indicated his specimen would “come back dirty.” Results revealed both marijuana and cocaine use. Prior to release, a similar test was performed on Burke. Likewise, the results indicated marijuana and cocaine use.

Burke and Roth posted bond and were released September 9, 1987. At the District Court’s direction, each met with their probation officers in the latter’s office. During Burke’s meeting with Weaver, Burke admitted using marijuana. Roth also admitted to his probation officer his use of marijuana. In a follow-up meeting on September 14, 1987, Alsbury advised Roth of his Miranda rights and stated that the urine samples indicated both marijuana and cocaine use. Roth admitted to snorting cocaine, but denied injecting it intravenously. However, on September 28, 1987, Roth told Alsbury he had shot cocaine “a couple of times.” Reports of probation condition violations were filed with respect to Burke and Roth on September 14, 1987.

Burke and Roth filed separate motions to dismiss or alternatively, to suppress evidence, arguing the probationary conditions were invalid under State v. Fogarty (1980), 187 Mont. 393, 610 P.2d 140. Relying on the Fogarty decision, the District Court concluded the searches were unlawful because the vehicle search “was initiated by the arresting officer and not initiated at the special request and direction of the Defendant’s parole officer.” The residence search was held invalid because it was warrantless. Further, the court sup[168]*168pressed admissions and urinalysis results as the “fruits of the poisonous tree.”

The State urges this Court to overrule the Fogarty decision in light of the United States Supreme Court ruling, Griffin v. Wisconsin (1987),_U.S._, 107 S.Ct. 3164, 97 L.Ed.2d 709, holding that the warrantless search of a probationer’s home, pursuant to Wisconsin regulation replacing the standard of probable cause by “reasonable grounds,” satisfied the Fourth Amendment. Alternatively, appellant alleges the good faith exception to the warrant requirement and the inapplicability of the exclusionary rule to probation revocation hearings. We find the reasoning of Griffin persuasive and therefore need not reach the merits of appellant’s alternative arguments.

The Griffin Decision

In Griffin v. Wisconsin, supra, the defendant was convicted of a state law weapons offense. The weapon was discovered by his probation officer’s supervisor during a warrantless residence search. The search was conducted pursuant to a Wisconsin regulation which allowed,

“[A]ny probation officer to search a probationer’s home without a warrant as long as his supervisor approves and as long as there are ‘reasonable grounds’ to believe the presence of contraband — including any item that the probationer cannot possess under the probation conditions.”

Griffin, 107 S.Ct. at 3166. The search was based on information received by the supervisor from a police officer “that there were or might be guns in [the probationer’s] apartment.” Griffin, 107 S.Ct. at 3166.

The Supreme Court concluded the search of Griffin’s home satisfied the demands of the Fourth Amendment because “it was carried out pursuant to a. regulation that itself satisfies the Fourth Amendment’s reasonableness requirement under well established principles.” Griffin, 107 S.Ct. at 3167. Continuing, the Court noted that although a warrant is usually required to carry out a search, “we have permitted exceptions when ‘special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’ ” Griffin, 107 S.Ct. at 3167.

“A State’s operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated [169]

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Bluebook (online)
766 P.2d 254, 235 Mont. 165, 1988 Mont. LEXIS 358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burke-mont-1988.