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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. LaFrance, 402
Supreme Judicial Court of Massachusetts,
Argued
Decided
[402
Cynthia A. Vincent, Asst. Dist. Atty., for Com.
Before [402
[402
A judge in
the Superior Court required as a special condition of the defendant's probation
that, while on probation, she submit to a search of herself, her possessions,
and any place where she may be, with or without a search warrant, on request of
a probation officer. The defendant
challenges that special condition on State and Federal constitutional grounds
because it authorizes a blanket search without a warrant.
[1][2][3]
We agree that both art. 14 of the Massachusetts Declaration of Rights and the
Fourth Amendment to the Constitution of the
The
defendant pleaded guilty in 1985 to indictments charging her with burglary and
larceny. She received a suspended
sentence with probation for two years.
The defendant violated the terms of her probation by committing motor
vehicle offenses and by failing to report to her probation officer. (FN1)
The judge revoked the defendant's probation and ordered her to be
confined in a house of correction for one year, of which only three [402 Mass. 791] months would be served and the balance would be suspended with
probation for two years. The judge then
imposed special conditions, including the one challenged here. (FN2)
Defense
counsel objected that the special condition concerning searches authorized
illegal searches and seizures. In the
course of an extended colloquy between defense counsel and the judge concerning
the circumstances in which a probation officer would be entitled to conduct a
search pursuant to the special condition, the judge stated that the probation
officer would be expected to use "some common sense and
discretion." The judge suggested
that, if the defendant would not accept the condition, he could decide not to
suspend any part of the sentence. The
defendant accepted the conditions in order to limit the time she would have to
serve in the house of correction. We
transferred the defendant's appeal here on our own motion. (FN3)
Any
discussion of the requirements of the Fourth Amendment as applied to searches
of probationers and places where they are found must be based largely on the
views recently expressed in Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). In that case the Supreme Court upheld, by a
five‑to‑four vote, the seizure of a weapon in the probationer's
apartment by probation officers acting pursuant to a Wisconsin regulation that
purported to authorize a warrantless search if there
were "reasonable grounds" to believe contraband present. Id.
107 S.Ct. at 3166.
The [402 Mass. 792] Court found it unnecessary to embrace
the apparent position of the Supreme Court of Wisconsin that any search of a
probationer's home by a probation officer satisfies the Fourth Amendment so
long as the information possessed by the officer satisfies a Federal
"reasonable grounds" standard.
The Court preferred to express its view that the demands of the Fourth
Amendment were met because the search "was carried out pursuant to a
regulation that itself satisfies the Fourth Amendment's reasonableness
requirement under well established principles." Id. at 3167.
The
Supreme Court rejected any requirement that such a search be conducted only on
probable cause in its traditional sense and analogized the case to
administrative search cases in which lower standards justifying a search are
applicable. Id. at 3167‑3168. See New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 2643‑2644, 96 L.Ed.2d 601 (1987);
United States v. Biswell, 406 U.S. 311,
316, 92 S.Ct. 1593, 1596, 32 L.Ed.2d 87 (1972); Camara v. Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967). See also New Jersey v. T.L.O.,
469 U.S. 325, 341‑342, 105 S.Ct. 733, 742‑743,
83 L.Ed.2d 720 (1985). It is not easy,
however, to determine from the Court's opinion whether the existence of a
regulation governing searches of probationer's premises was essential to the
Court's conclusion that a probationer may be subjected to a warrantless
search by a probation officer where there are "reasonable grounds" to
believe contraband is present. The
dissent of Justice Blackmun, joined by Justice
Marshall in this respect, without reference to the existence of regulations,
accepts the principle "that special law‑enforcement needs justify a
search by a probation agent of the home of a probationer on the basis of a
reduced level of suspicion." Id. 107 S.Ct.
at 3172 (Blackmun, J., dissenting). We suspect the Supreme Court would approve of
a warrantless search of a probationer's residence
based on a reasonable suspicion that evidence of a probation violation would be
found.
We accept
for art. 14 purposes the principle that a reduced level of suspicion, such as
"reasonable suspicion," will justify a search of a probationer and
her premises. There is a need to
supervise such an offender both to aid in the probationer's rehabilitation and
to ensure her compliance with the conditions [402 Mass. 793] of
probation. The lower standard will
protect the public interest, while it also protects a probationer from
unwarranted intrusions into her privacy.
It appears doubtful that any standard below reasonable grounds or
reasonable suspicion would meet Fourth Amendment
requirements. It would not, in any
event, meet art. 14 requirements.
Consequently,
the order containing the challenged special condition of probation should be
revised to authorize a search only on reasonable suspicion. We need not define here the limits of
reasonable suspicion. Each case will
depend on the circumstances, including the terms of probation, the nature of
the supervision required, and, of course, the nature of the information on
which the probation officer relied in deciding that a probation violation was
reasonably suspected. (FN4) It may be that Terry v. Ohio, 392 U.S. 1,
30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968), and
subsequent cases (see New Jersey v. T.L.O.,
469 U.S. 325, 341, 105 S.Ct. 733, 742, 83 L.Ed.2d 720
(1985), and cases cited) will provide guidance in defining reasonable
suspicion. See United States v. Scott, 678
F.2d 32, 35 (5th Cir.1982) (expressly adopting Terry v. Ohio standard as governing probationer searches);
United States v. Bradley, 571 F.2d 787, 790 n. 4 (4th Cir.1978)
("articulable grounds" must be
advanced). (FN5)
[402 Mass. 794] The Supreme Court divided in the Griffin case over the question whether under the Fourth Amendment
a warrant was required in support of the search of the probationer's home. The Court held that no warrant was
required. It may have reached that
result because there was a State regulation governing the conduct of such
searches and because that regulation provided that a probation officer must
obtain his superior's approval of a warrantless
search. Such a regulation would tend to
discourage arbitrary conduct and to lend support to the reasonableness of any
search. See Commonwealth v. Bishop, 402
Mass. 449, 451, 523 N.E.2d 779 (1988), and cases cited. We suspect that a search warrant authorizing
a search of a probationer's premises, issued on the basis of reasonable
suspicion, would satisfy the Fourth Amendment, even if the search was not
conducted pursuant to an administrative regulation. Quite apart, however, from the question
whether the Fourth Amendment would impose a warrant requirement in the
circumstances of our case (barring the applicability of one of the established
exceptions to that requirement, such as exigent circumstances), we must
consider whether there is any sound reason to eliminate the usual requirement
imposed by art. 14 that a search warrant be obtained.
We are
persuaded that a warrantless search of a
probationer's home, barring the appropriate application of a traditional
exception to the warrant requirement, cannot be justified under art. 14. Mr. Justice Blackmun's
dissent in the Griffin case (joined
on this point by Justices Brennan and Marshall) has the better of the argument
concerning the propriety of a warrantless search of a
probationer's home. Griffin v. Wisconsin, supra 107 S.Ct. at 3174‑3175.
The Court's analogy to cases allowing warrantless
administrative searches of regulated businesses is not persuasive. Id.
at 3173‑3174. We agree with
Justice Abrahamson of the Supreme Court of Wisconsin, dissenting in State v. Griffin, that the issuance of
a search warrant on a proper showing of reasonable cause "is not an undue
burden on the probation officer and provides the protection for the probationer
guaranteed by the constitutions [State and Federal]. Requiring an officer to articulate reasons
for the search is a deterrent to impulsive or arbitrary governmental conduct‑‑and
that is what [402 Mass. 795] the fourth amendment is about. Upholding the warrant requirements for
searches of the probationer's home does not impede the dual goals of probation,
protecting the public and rehabilitation." State v. Griffin, 131
Wis.2d 41, 65, 388 N.W.2d 535 (1986) (Abrahamson, J., dissenting). See Latta v. Fitzharris, 521 F.2d 246, 257 (9th Cir.1975) (Hufstedler, J., dissenting) ("The requirement that [a
probation] officer articulate his reasons for making a search before he
searches is a substantial deterrent to impulsive and arbitrary official conduct
and a real safeguard against after‑the‑fact justification"),
cert. denied, 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d
130 (1975); 4 W.R. LaFave,
Search and Seizure § 10.10(d), at 147‑148 (2d ed. 1987) & at 8‑9
(1988 Supp.) describing as "unconvincing" the Griffin Court's reasoning that the special needs of Wisconsin's
probation system make the warrant requirement impracticable as to the search of
a probationer's home on reasonable suspicion).
We express no view on whether the adoption of statutorily authorized
regulations, governing warrantless searches of
probationers and providing for approval of a supervisor, would meet the
requirements of art. 14 and make a search warrant unnecessary. See Roman v. State, 570 P.2d 1235, 1243‑1244
(Alaska 1977).
We
conclude that art. 14 bars the imposition on probationers of a blanket threat
of warrantless searches. Certain warrantless
searches, based on reasonable suspicion, will be proper if they are conducted
in circumstances in which a search warrant traditionally has not been
required. In addition, probation
officers have their traditional right to visit and meet with probationers. It is searches, not visits, with which we are
concerned in this case. The reference in
the special condition to the defendant's obligation to submit to warrantless searches should be deleted.
We suggest
that an appropriate condition of probation, reflecting conclusions stated in
this opinion, could read as follows:
"On the basis of a reasonable suspicion that a condition of the
probationer's probation has been violated, a probation officer, or any law enforcement
officer acting on the request of the probation office, may search the
probationer, her property, her residence, and any place where she may be
living, [402 Mass. 796] and may do so with or without a
search warrant depending on the requirements of law."
In this
case, the judge had no intention of imposing an unconstitutional condition of
probation. We see no need to reopen the
question whether the defendant should be on probation at all if she would not
agree to the condition purporting to give a right to blanket, warrantless searches.
The Commonwealth does not argue that we should. The conditions of probation must be revised
in accordance with this opinion, and the case is remanded to the Superior Court
for that purpose.
So ordered.
(FN1.) There also was evidence that the
defendant had failed to comply with a special condition of her probation that
she receive methadone treatment, but the court order requiring that treatment
apparently had been entered in the absence of counsel. The judge disavowed consideration of that
evidence in making his decision whether to revoke probation.
(FN2.)
The challenged condition of her probation provides that the defendant must
"[s]ubmit to any search of herself, her
properties or any place where she then resides or is situate, with or without a
search warrant, by a probation officer or by any law enforcement officer at the
direction or by the request of the probation officer."
(FN3.)
The Commonwealth properly does not argue that, because no search has yet been
made, the issue is not appropriate for decision at this time. An unlawful condition of probation may itself
justify relief, even though no other action has been taken against the
probationer. The threat of an unlawful
search at any time and place should be enough to warrant an immediate judicial
challenge to such a condition of probation.
Also, the
Commonwealth properly does not argue that the petitioner assented to any
unconstitutional condition of her probation.
The coercive quality of the circumstance in which a defendant seeks to
avoid incarceration by obtaining probation on certain conditions makes
principles of voluntary waiver and consent generally inapplicable.
(FN4.) Other factors may be relevant, such as
the extent to which persons other than the probationer would have their privacy
invaded and the extent to which less intrusive means than a search would fulfil the needs of the probation officer. If drug tests would show whether a
probationer had violated the condition of her probation that she not unlawfully
use drugs, a warrantless search of her home for drugs
on less than probable cause may not be necessary.
(FN5.) We would not necessarily accept for
State law purposes the Supreme Court's conclusion in the Griffin case that information that a probationer may have had a
gun in his possession justifies a reasonable suspicion of a probation violation
and that a search based on such a suspicion would meet the constitutional test
of reasonableness. See
Griffin v. Wisconsin, supra, 107 S.Ct. at
3175 (Blackmun, J., dissenting); id. at 3177 (Stevens, J.,
dissenting); State v. Griffin, 131 Wis.2d 41, 64, 388
N.W.2d 535 (1986) (Abrahamson, J., dissenting); id. at 67, 388 N.W.2d 535
(Bablitch, J., dissenting).
Of
course, the police may not properly use the probation office as a subterfuge to
conduct a search of a probationer or her premises. See Commonwealth v. Eagleton,
402 Mass. 199, 207 n. 13, 521 N.E.2d 1363 (1988); Commonwealth v. Frodyma, 386 Mass. 434, 445, 436 N.E.2d 925 (1982).