This post examines an opinion from the Supreme Court of North Dakota: State v. White, 890
N.W.2d 825 (2017). The court begins the opinion by explaining that “Jesse White
appeals from a criminal judgment entered after a jury found he was guilty of
possession of certain materials prohibited.”
State v. White, supra.
The opinion goes on to explain that
[o]n April 15, 2014, a probation officer searched White's residence after police officers received a tip from
White's girlfriend. White's girlfriend told officers that she discovered images
of clothed, young girls in provocative positions and that White was uploading
pictures to a cell phone with no service. The probation officer and police
officers went to White's residence where the probation officer informed White
of the reason for searching his residence and that they were interested in
images on any computers or phones. White pointed out his laptop computer and
cell phones, including a phone that did not have cellular service. An officer
found a folder of papers containing Facebook login information for `Jesse
White’ and `Ashley Black.’ White claimed he did not know `Ashley Black.’
Officers also found pornographic DVDs, including DVDs titled `Barely Legal.’ The
officers looked at the cell phones and found numerous pictures of clothed young
girls and at least one picture of a topless prepubescent girl. A search warrant
was granted. The phones and computer were forensically analyzed and images of
young, unclothed females were found.
White was charged with possession of
certain materials prohibited in violation of North Dakota Code § 12.1–27.2–04.1,
a class C felony. White moved to suppress any evidence seized from his cell
phones, arguing officers were required to obtain a warrant before searching his
cell phones and the search warrant was issued upon illegally seized evidence.
The State opposed the motion and argued the cell phone search did not violate
White's constitutional rights because it was a probationary search and the
officers had reasonable suspicion. Neither party requested a hearing. The
district court denied the motion to suppress, concluding the search was
constitutional because it was a probationary search and the officers had
reasonable suspicion.
A jury trial was held. The jury found
White guilty of possession of certain materials prohibited. White was sentenced
to three years in prison with all but 18 months suspended and three years
parole following release from prison.
State v. White, supra.
The Supreme Court began its analysis of White’s argument by
explaining that
White argues the district court erred
in denying his motion to suppress because the search of his cell phones
violated his Fourth Amendment rights. He claims the search was not a reasonable
probation search because his probation conditions are limited to searching his
`person, vehicle, or residence’ and do not include his cell phone and the
officer did not have reasonable suspicion to justify the search. White does not
challenge the initial entry into his residence or the initial search of his
residence; rather, he only argues the search of his cell phones violated his
constitutional rights.
In reviewing a district court's
decision on a motion to suppress we defer to the district court's findings of
fact, and we resolve conflicts in testimony in favor of affirmance because we
recognize the district court is in a superior position to assess the witnesses'
credibility and weigh the evidence. State
v. Schmidt, 2015 ND 134, ¶ 5, 864 N.W.2d 265. `A district court's findings
of fact on a motion to suppress will not be reversed if there is sufficient
competent evidence fairly capable of supporting the court's findings, and the
decision is not contrary to the manifest weight of the evidence.’ Id. (quoting State v. DeCoteau, 1999 ND 77, ¶ 6, 592
N.W.2d 579). Questions of law are fully reviewable, and whether a finding of
fact meets a legal standard is a question of law. Schmidt, at ¶ 5.
State v. White, supra.
The court then took up the substance of the Fourth Amendment
issue, explaining that
the Fourth Amendment of the United States Constitution and Article I, Section 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.’ State v. Ballard, 2016 ND 8, ¶ 8, 874
N.W.2d 61 (quoting State v.
Maurstad, 2002 ND 121, ¶ 11, 647 N.W.2d 688). To determine the
reasonableness of a search we consider the totality of the circumstances and
balance the degree to which the search intrudes upon an individual's privacy
against the degree to which the search is needed for the promotion of
legitimate governmental interests. Ballard, at ¶¶ 8, 34.
State v. White, supra.
As Wikipedia explains, the Fourth Amendment’s default requirement for searches
and/or seizures is that they should be conducted pursuant to a validly issued
search warrant. As the Wikipedia entry also explains, the Supreme Court has
approved warrantless searches in certain circumstances.
The opinion then took up the Fourth Amendment standards that
apply to warrantless probationary searches:
In United States v. Knights, 534 U.S. 112, 122, (2001), the Supreme Court
considered the totality of the circumstances, balanced governmental and private
interests and held a warrantless probationary search was reasonable when it was
supported by reasonable suspicion and authorized by a condition of probation.
The Court explained that probationers have a lesser expectation of privacy:
`Probation, like incarceration, is a
form of criminal sanction imposed by a court upon an offender after verdict,
finding, or plea of guilty. 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. Inherent in the very nature of
probation is that probationers do not enjoy the absolute liberty to which every
citizen is entitled. Just as other punishments for criminal convictions 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. at
119 (citations and quotations omitted). The Court also said a probationer may
be more likely to engage in criminal conduct than an ordinary member of the
community, the State has an interest in stopping criminal conduct and
protecting potential victims and, therefore, the State may justifiably focus on
probationers in a way that it does not focus on ordinary citizens. Id. at 120–21. The Court said, `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.’ Id. at 121. The Court did not
address whether a suspicionless probationary search authorized by a condition
of probation was reasonable. Id. at
120 n. 6.
In Samson v. California, 547 U.S. 843, 846 (2006), the United States
Supreme Court considered whether suspicionless searches of parolees violated
the Fourth Amendment. The Court applied the totality of the circumstances
analysis, explaining that a parolee or a prisoner has a lesser expectation of
privacy than a probationer and that the government's interests are
substantial. Id. at 850–5..
The Court held the suspicionless search of a parolee does not violate the
Fourth Amendment. Id. at
857.
State v. White, supra.
The Supreme Court went on to explain that
[t]his Court has most recently
considered the constitutionality of a probation search in Ballard, 2016 ND 8, 874 N.W.2d 61. We
applied the totality of the circumstances balancing test and held a
suspicionless search of an unsupervised probationer was constitutionally
unreasonable and violated the Fourth Amendment. Id. at ¶¶ 41–42. We
noted the State's interest in restraining the liberty of an unsupervised probationer
was much less than its `overwhelming’ interest in supervising parolees upon
release from prison, and an unsupervised probationer with minimal probation
conditions had a greater expectation of privacy. Id. at ¶¶ 37, 40. We
held the governmental interests did not outweigh the probationer's expectation
of privacy and a suspicionless search was not reasonable under the Fourth
Amendment. Id. at ¶ 41.
This case is different
from Ballard. The issue in Ballard was whether a
suspicionless search of an unsupervised probationer was constitutional. In this
case White was on supervised probation and the State claims the officers had
reasonable suspicion to search White's cell phones. This case is similar
to Knights. A supervised probationer has a lower expectation of
privacy than an unsupervised probationer. See Ballard, 2016 ND 8, ¶ 35, 874 N.W.2d 61. The State has a
greater interest in supervising a supervised probationer than an unsupervised
probationer. See Ballard,
at ¶ 37 (discussing the continuum of possible punishments and its effect
on the defendant's privacy interests and state's interests). Balancing the
totality of the circumstances, no more than reasonable suspicion was required
to conduct a search under the conditions of White's probation. See Knights, 534 U.S. at 121, 122 S.Ct.
587.
State v. White, supra
The Supreme Court then began the process of enunciating its
“holding,” i.e., its decision and the rationale for that decision:
The conditions of White's probation
included allowing officers to search his person, vehicle or residence. The
conditions of White's probation allowed officers to search the cell phones
located inside White's residence as part of the probation search. See State v. Gonzalez, 2015 ND 106, ¶¶ 16–17, 862 N.W.2d
535 (holding the search of probationer's cell phones was within scope of
valid probationary search when condition of probation authorizing search of
person, place of residence or vehicle and the cell phones were located inside
the residence and vehicle); State v.
Adams, 2010 ND 184, ¶ 17, 788 N.W.2d 619 (search of a locked safe
inside probationer's residence was within the scope of a valid probationary
search). The search was authorized by a condition of White's probation.
Reasonable suspicion exists when a
reasonable person would be justified by some objective reason to
suspect the defendant was, or was about to be, engaged in unlawful
activity. State v. Franzen, 2010
ND 244, ¶ 12, 792 N.W.2d 533. The district court found White's girlfriend
informed officers that she had discovered images of clothed, young girls in
provocative positions and that White was uploading pictures to a cell phone
that did not have service. There also was evidence officers searched White's
residence before searching his cell phones and found a folder containing Facebook
login information for `Jesse White’ and `Ashley Black’ and pornographic DVDs
entitled `Barely Legal.’ White told officers he did not know `Ashley Black.’
White does not argue the officers' initial entry and search of his residence
violated his Fourth Amendment rights. Under the facts and circumstances of this
case, the officers had reasonable suspicion to search White's cell phones.
The warrantless search of White's cell
phones, authorized by the conditions of White's probation and supported by
reasonable suspicion, was constitutionally reasonable. The district court did
not err in denying White's motion to suppress.
State v. White, supra.
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