State v. Ballard

874 N.W.2d 61

STATE of North Dakota, Plaintiff and Appellee

v.Jeremy BALLARD, Defendant and Appellant.

No. 20140333.

Supreme Court of North Dakota.

Jan. 14, 2016.

Seymour R. Jordan, Divide County State's Attorney, Crosby, N.D., for plaintiff and appellee.

Elizabeth L. Pendlay, Crosby, N.D., for defendant and appellant.

Crothers, Justice.

[¶ 1] Jeremy Ballard appeals a district court judgment after he conditionally pled guilty to drug charges, reserving the right to challenge the denial of his motion to suppress evidence. He argues the district court should have suppressed evidence from his residence because the suspicionless probationary search violated his constitutional rights against unreasonable searches and seizures. We reverse because the suspicionless search of an unsupervised probationer's home was unreasonable under the Fourth Amendment of the United States Constitution.

I

[¶ 2] In October 2013 Ballard pleaded guilty to several misdemeanor drug crimes. He was sentenced concurrently on each charge to 30 days incarceration, with 30 days suspended and two years unsupervised probation. One probation condition was that Ballard "submit to a search of his person, place and vehicle at the request of law enforcement without a warrant." Another required him to "submit to random drug-testing without a warrant or probable cause, including but not limited to, urine analysis."

[¶ 3] On March 28, 2014, around 7:30 p.m., a Divide County deputy sheriff saw Ballard driving a car with two passengers in Noonan, North Dakota. The deputy was aware Ballard and a passenger were on unsupervised probation and were subject to random drug test and search clauses as part of their probation. For these reasons alone, the deputy stopped Ballard's car. The deputy testified at the preliminary hearing that he stopped Ballard for the sole reason of performing a probation search and that he did not have any "reasonable articulabl[e] suspicion" of any drug-related or criminal activity when he made the stop. After the deputy activated his emergency lights, Ballard pulled over in front of his residence. The deputy testified he spoke with the individuals briefly before asking Ballard to get out of the vehicle so he could perform a pat-down search. The search did not yield any contraband.

[¶ 4] The deputy next entered Ballard's home without consent or a warrant. The deputy testified he was aware the house where Ballard lived was owned by a third person. After confirming Ballard lived at the residence, the deputy searched Ballard's bedroom and found methamphetamine paraphernalia and a bag of a "clear crystalline substance" which later was confirmed by the state crime lab to be 0.41 grams of methamphetamine. Ballard was arrested and charged with possession of methamphetamine, a class C felony, and possession of paraphernalia, a class C felony.

[¶ 5] In July 2014 Ballard moved to suppress the evidence found in the search of his bedroom and to dismiss the charges against him, arguing the State failed to demonstrate it had reasonable suspicion for a probationary search. At the September 2014 hearing on the motion to suppress, neither party called witnesses; instead, they stipulated to the facts and testimony presented at the preliminary hearing. At the conclusion of the hearing, the district court denied Ballard's suppression motion, stating:

"Well, what I do find factually is the facts are as testified to by Deputy Hubble, as reflected in the brief of the Defendant. And the conclusions that I draw from that testimony, that evidence, is that the search that was being conducted was a suspicionless probationary search done pursuant to the probation that Mr. Ballard was under. And I concluded from also that information that the search was not done in an intimidating or harassing fashion. It was done by a police officer, who I understand under our case law can conduct ... probationary searches.

"And therefore my reading of the Maurstad case and what it said about the U.S. Supreme Court Knights case, is that Maurstad is not precedent for this kind of search. And essentially where our state of the law is in North Dakota, as I understand it, is what the Court had previously said in the Perbix case still applies, other than the Court does not take into consideration the motive for the search which I think was the only thing overruled in Perbix. And therefore I will deny the Suppression Motion."

The district court issued a written order denying Ballard's motion to suppress and dismiss charges. Ballard entered a conditional guilty plea, reserving the right to appeal the district court's denial of his motion to suppress the evidence seized.

II

[¶ 6] "A trial court's disposition of a motion to suppress will not be reversed if, after conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence." State v. LaFromboise, 542 N.W.2d 110, 112 (N.D.1996). Questions of law are fully reviewable. State v. Adams, 2010 ND 184, ¶ 7, 788 N.W.2d 619. "Whether a violation of the constitutional prohibition against unreasonable searches and seizures has occurred is a question of law." State v. Maurstad,

2002 ND 121, ¶ 11, 647 N.W.2d 688 (citing LaFromboise, at 112).

A

[¶ 7] Ballard argues the district court erred in denying his motion to suppress the evidence found during the suspicionless probationary search of his residence. Ballard claims the district court's order denying his motion to suppress evidence and the criminal judgment should be reversed and he should be permitted to withdraw his conditional guilty plea. We agree.

[¶ 8] The Fourth Amendment to the United States Constitution and art. I, § 8, of the North Dakota Constitution protect individuals from unreasonable searches and seizures. "When reviewing the constitutionality of probationary searches, we have interpreted the North Dakota Constitution to provide the same protections for probationers as provided by the United States Constitution." Maurstad, 2002 ND 121, ¶ 11, 647 N.W.2d 688, (citations omitted). "[U]nder our general Fourth Amendment approach we examin[e] the totality of the circumstances to determine whether a search is reasonable within the meaning of the Fourth Amendment." Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (citation omitted) (quotation marks omitted).

[¶ 9] Ballard acknowledges probationary search clauses generally are permitted under N.D.C.C. § 12.1–32–07(4)(n). But he claims the suspicionless search of his residence under the statute does not pass Fourth Amendment muster. His argument calls for examination of North Dakota's cases on probationary searches and the traditional Fourth Amendment analysis required by United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), and Samson, 547 U.S. 843, 126 S.Ct. 2193, balancing the State's interest against an unsupervised probationer's liberty interests and expectations of privacy. When we do so, it becomes 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 evidence obtained during a warrantless probationary search should be suppressed because the search was unconstitutional. The underlying facts were that Schlosser plead guilty to possession of marijuana and received a deferred imposition of sentence. Id. at 136–37. One condition of deferring imposition was "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." Id. at 137. Schlosser subsequently was arrested for possession of marijuana and, that same day, his probation officer and two law enforcement officers searched his apartment and seized additional drugs. Id.

[¶ 11] In determining whether Schlosser's status as a probationer affected his Fourth Amendment rights, this Court examined United States Supreme Court and California cases and made two conclusions. First, a "defendant's status as a probationer does affect his rights under the Fourth Amendment. The court has a responsibility to regulate a probationer's activities to help in his rehabilitation and at the same time to guard against continued criminal behavior." Schlosser, 202 N.W.2d at 139. Under this rationale, the North Dakota Supreme Court applied a test of the reasonableness of a search clause, stating:

"The test applied by the court was that laid down in People v. Dominguez, 256 Cal.App.2d 623, 64 Cal.Rptr. 290, 293 (1967) :

‘A condition of probation which (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality does not serve the statutory ends of probation and is invalid.’

"Applying this rule in reverse, [Schlosser's search] clause (3)(g) is a reasonable and valid exercise of the court's authority under Section 12—53–13, N.D.C.C."

Id. at 139.

[¶ 12] The Schlosser Court's second conclusion was that "the search and seizure of the contraband from the defendant's apartment by his parole officer without a search warrant was not unreasonable under the Fourth Amendment to the United States Constitution, and the contraband seized was admissible in a probation violation hearing." 202 N.W.2d at 139. Although the basis for this holding was not fully explained, the Schlosser Court apparently relied on another California holding that "a probationer who has been granted the privilege of probation on condition that he submit at any time to a warrantless search may have no reasonable expectation of traditional Fourth Amendment protection." Id.

[¶ 13] This Court...