State v. Moody

No. 05-363

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 305

STATE OF MONTANA,

Plaintiff and Respondent,

v.

KRISTI ANNE MOODY,

Defendant and Appellant.

APPEAL FROM: The District Court of the Thirteenth Judicial District,

In and For the County Yellowstone, Cause No. DC 2002-478,

Honorable Ingrid G. Gustafson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Penelope S. Strong, Chief Public Defender; Tanya Dvarishkis,

Deputy Public Defender, Billings, Montana

For Respondent:

Honorable Mike McGrath, Attorney General; Joslyn M. Hunt and

Mark W. Mattioli, Assistant Attorneys General; Helena, Montana

Diana Koch, Chief Legal Counsel, Department of Corrections,

Helena, Montana

Dennis Paxinos, County Attorney, Billings, Montana

Submitted on Briefs: August 11, 2006

Decided: November 28, 2006

Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Montana’s Thirteenth Judicial District Court, Yellowstone County, sentenced

Kristin Anne Moody to a two-year deferred sentence based on three separate charges.

Prior to sentencing, Moody filed objections to several probation conditions recommended

in the pre-sentence investigation (PSI) report. The District Court nonetheless imposed

most of the proposed conditions. Moody now appeals. We affirm on the following

issues:

¶2 1. Does requiring a probationer to keep her home open and available for the

probation officer to visit at all times violate the Montana Constitution?

¶3 2. Did the District Court properly impose a travel restriction as a condition of

Moody’s probation?

BACKGROUND

¶4 In responding to a report on May 7, 2004, Officers Wells and Ostermiller of the

Laurel Police Department came across a gray van that had reached a complete stop in the

middle of an intersection. Officers Wells and Ostermiller approached the van and found

Moody, who appeared to be asleep at the wheel. The officers removed Moody from the

van and verified that she did not need medical attention. Smelling of alcohol and

unsteady on her feet, Moody swore at the officers and refused to perform any field

sobriety tests or provide a breath alcohol sample. Moody could not find the registration

for the vehicle and stated that she did not have any car insurance. The officers arrested

Moody, placing her in handcuffs. When they tried to get Moody into the backseat of the

patrol vehicle, Moody kicked at Officer Wells, striking him in the face with such force

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that she left a visible boot imprint. Eventually the officers restrained Moody and

transported her to the Yellowstone County Detention Facility.

¶5 The State charged Moody by information with Count I, assault on a police officer,

a felony in violation of § 45-5-210(1)(a), MCA; Count II, driving under the influence of

alcohol or drugs, a misdemeanor in violation of § 61-8-401, MCA; and Count III, driving

without required motor vehicle insurance, a misdemeanor in violation of § 61-6-302,

MCA.

¶6 Moody pled guilty to all three counts pursuant to a plea agreement. Prior to

sentencing, Probation Officer Barry Ivanoff prepared the PSI with recommendations for

the conditions of Moody’s probation. Moody filed an objection to several of the

proposed conditions, including 2 and 3, which read as follows:

2. The Defendant will not change [her] place of residence without first

obtaining permission from [her] Probation/Parole Officer. The

residence must be approved by [her] Probation & Parole Officer.

The Defendant will make the home open and available for the

Probation & Parole Officer to visit as required per policy. The

Defendant will not own dangerous/vicious animals such as guard

dogs, use perimeter security doors, or refuse to open the door of the

residence when requested. [Emphasis added.]

3. The Defendant shall not leave [her] assigned district without first

obtaining written permission from [her] Probation & Parole Officer.

¶7 Moody objected to the requirement that she make her home “open and available”

to her probation officer on the grounds that this condition obviated the reasonable cause

requirement for searches of probationers’ homes, and thus violated her constitutional

rights of privacy and protection from unreasonable search and seizure. Moody also

objected to the travel restriction, arguing that it inhibited her constitutional rights to travel

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and work and her freedom of association; she also argued that the restriction was not

sufficiently related to her rehabilitative needs and did not protect society.

¶8 At the sentencing hearing, Moody called Officer Ivanoff to testify regarding the

probation conditions he recommended. After Moody and the State argued their

respective positions, the District Court issued the sentence, imposing both the second and

third probation conditions. Moody appeals.

STANDARD OF REVIEW

¶9 We review a District Court’s criminal sentence for legality only. State v. Eaton,

2004 MT 283, ¶ 11, 323 Mont. 287, ¶ 11, 99 P.3d 661, ¶ 11.

DISCUSSION

¶10 1. Does requiring a probationer to keep her home open and available for the

probation officer to visit at all times violate the Montana Constitution?

¶11 Moody argues that Condition 2 of her probation, which requires that she keep her

“home open and available for the Probation & Parole Officer to visit,” violates the

reasonable cause standard applied by this Court to searches of probationers’ residences,

as well as Admin. R. M. 20.7.1101(7), governing conditions on probation. Because we

conclude that a “home visit” to a probationer’s residence does not qualify as a “search,”

we affirm the District Court’s ruling.

¶12 The search of a person may be conducted pursuant to a valid search warrant or in

accordance with a judicially recognized exception. Section 46-5-101, MCA. In

Montana, a probation officer may search a probationer’s residence without a warrant so

long as the officer has reasonable cause for the search. See State v. Roper, 2001 MT 96,

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¶ 12, 305 Mont. 212, ¶ 12, 26 P.3d 741, ¶ 12; State v. Beaudry, 282 Mont. 225, 228, 937

P.2d 459, 460-61 (1997); State v. Burchett, 277 Mont. 192, 195, 921 P.2d 854, 856

(1996); State v. Boston, 269 Mont. 300, 305, 889 P.2d 814, 817 (1995); and State v.

Burke, 235 Mont. 165, 169, 766 P.2d 254, 256-57 (1988). “The ‘reasonable cause’

standard is substantially less than the probable cause standard required by the Fourth

Amendment because of the probationer’s diminished expectation of privacy . . . .”

Burchett, 277 Mont. at 195-96, 921 P.2d at 856 (citing Burke, 235 Mont. at 169, 766 P.2d

at 256-57, and Griffin v. Wisconsin, 483 U.S. 868, 107 S. Ct. 3164 (1987)). Admin.

R. M. 20.7.1101(7) further underscores our precedent by permitting a warrantless search

of a probationer’s or parolee’s person, vehicle or residence only “upon reasonable cause.”

¶13 The State points out that the United States Supreme Court has recently held that a

suspicionless search, conducted pursuant to a California statute requiring parolees to

agree in writing to be subject to searches with or without cause was constitutional.

Samson v. California, ___ U.S. ___, 126 S. Ct. 2193 (2006). The search in Samson was

conducted by a police officer rather than a probation officer so the court applied an

ordinary Fourth Amendment analysis, rather than engaging in a Griffin “special needs”

analysis applicable to probationers. Griffin, 483 U.S. at 873, 107 S. Ct. at 3168. The

State, relying on Samson, contends that if there is no “reasonable cause” requirement for

a search of a parolee, there should be no such requirement for a less intrusive “home

visit,” which is not a search.

¶14 Moody contends that Samson is distinguishable since it involved search of a

parolee on the street as opposed to a probationer in her home; further, since probationers

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such as Moody are much less of a threat than parolees, they have a higher expectation of

privacy and freedom from unreasonable searches under the Montana Constitution.

¶15 The initial inquiry then is whether a “home visit” constitutes a “search” under

Article II, Section 11, Montana Constitution.

¶16 A home visit—where the probation officer stops by the probationer’s home to

determine whether the individual is abiding by the conditions of his or her probation—

operates as an important check on a probationer’s rehabilitation efforts. As the

Department of Corrections states in its Probation and Parole Bureau Standard Operating

Procedures, home visits are conducted to address the following:

• verify offender’s home address;

• observe and determine lifestyle factors;

• meet significant others, family members, other residents of home;

• observe residence for contraband, weapons, illegal or dangerous

objects (if visual inspection of the residence provides reasonable

suspicion that the offender has items banned by probation rules or

court order, conduct a search per P&P 60-4, Searches of Offender’s

Person, Vehicle, Residence Confiscation of Offender’s Property);

• observe residence for non-essential items such [as] VCR/

Cable/Computer-Internet capabilities if offender’s financial

obligations to victim, court and bureau are not being met;

• observe residence for cable/computer/Internet capabilities if offender

is a sex offender and/or has restrictions;

• conduct visual inspection of home;

• observe neighborhood for potential public safety issues such as high

crime area (gang graffiti), schools/parks (sex offenders) or other

vulnerable neighbors;

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• assess home environment for officer safety (may draft a floor plan of

home); and

• require offender to submit to breathalyzer/urinalysis screening for

use of alcohol and/or drugs.

Chapter 60, “Sign-Up Procedure/Supervision Standards.”

¶17 As the above list indicates, probationary restrictions are meant to facilitate

rehabilitation and ensure that the community is not harmed by the probationer’s

conditional liberty status. Burke, 235 Mont. at 169, 766 P.2d at 256. The probation

officer is charged with not only enforcing conditions of supervision, but also discerning

any deception by the probationer. United States v. Reyes, 283 F.3d 446, 458 (2d Cir.

2002).

¶18 In determining whether a “search” has occurred, we look at three factors: (1)

whether the person has an actual expectation of privacy; (2) whether society is willing to

recognize that expectation as objectively reasonable; and (3) the nature of the State’s

intrusion. State v. Elison, 2000 MT 288, ¶ 48, 302 Mont. 228, ¶ 48, 14 P.3d 456, ¶ 48.

¶19 “Probation is an act of grace by a sentencing court, intended to give the offender a

chance to rehabilitate outside the prison setting.” State v. Boulton, 2006 MT 170, ¶ 15,

332 Mont. 538, ¶ 15, 140 P.3d 482, ¶ 15. Although less restrictive than prison, probation

is nonetheless a form of punishment. Although a probationer is restored to “full rights”

upon successful completion of state supervision, Article II, Section 28(2), Montana

Constitution, a probationer who is still subject to supervision has a diminished

expectation of privacy. Burchett, 277 Mont. at 195-96, 921 P.2d at 856. Accordingly,

probationers do not enjoy the absolute liberty and heightened expectations of privacy

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afforded every Montana citizen; rather, they are subject to conditional liberty properly

dependent upon special restrictions. Beaudry, 282 Mont. at 229, 937 P.2d at 461. Home

visits are one commonly imposed condition of probation. We conclude that a convicted

felon who is granted probation on a clearly expressed condition, of which she is

“unambiguously” aware, that she make her home open and available for the probation

officer to visit pursuant to state policy does not have an actual expectation of privacy that

would preclude home visits. United States v. Knights, 534 U.S. 112, 119, 122 S. Ct. 587,

591-92 (2001). Since there is no actual expectation of privacy, there is no search.

¶20 Even assuming arguendo that a probationer had an actual expectation that there

would be no home visits during the period of supervision, home visits serve to ensure that

the supervised felon is abiding by the conditions of her probation, thus addressing the

problem of recidivism. As the United States Supreme Court has noted, “‘[t]he very

assumption of the institution of probation’ is that the probationer ‘is more likely than the

ordinary citizen to violate the law.’ The recidivism rate of probationers is significantly

higher than the general crime rate.” Knights, 534 U.S. at 120, 122 S. Ct. at 592 (citing

studies) (quoting Griffin, 483 U.S. at 880, 107 S. Ct. at 3172). Studies suggest that “more

intensive supervision can reduce recidivism . . . .” Griffin, 483 U.S. at 875, 107 S. Ct. at

3168. Accordingly, society would not recognize that expectation as objectively

reasonable.

¶21 As to the nature of the state’s intrusion, home visits are a commonly imposed

condition of probation which allow the probation officer to determine whether the

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individual is abiding by the conditions of probation and thus serve to protect the safety

and welfare of society.

¶22 Other courts addressing the issue of whether a home visit constitutes a search have

concluded that, although such visits can evolve into a search, the initial visit is not a

search. See United States v. Workman, 585 F.2d 1205, 1208 (4th Cir. 1978) (superseded

on other grounds); Latta v. Fitzharris, 521 F.2d 246 (9th Cir. 1975), cert. denied 423 U.S.

897 (1975). The Second Circuit Court of Appeals in Reyes, 283 F.3d at 460-62, upheld a

plain view discovery of contraband in the context of a home visit of a probationer

pursuant to a probation condition permitting home visits at any time. The appeals court

reasoned that such visits are a necessary incident to probationary supervision and

concluded:

Accordingly, consonant with the Supreme Court’s holding in Knights that

“no more than reasonable suspicion” was required to search a state

probationer’s home when that search was authorized by a condition of

probation, we hold that the probable cause requirements of the Fourth

Amendment do not apply to a federal probation officer conducting a home

visit—a far less invasive form of supervision than a search—pursuant to a

convicted offender’s conditions of supervised release. Furthermore, we

hold that because home visits “at any time” are conducted pursuant to a

court-imposed condition of federal supervised release of which the

supervisee is aware, and because a home visit is far less intrusive than a

probation search, probation officers conducting a home visit are not subject

to the reasonable suspicion standard applicable to probation searches under

Knights.

Reyes, 283 F.3d at 462.

¶23 A probationer has no reasonable expectation of privacy that would preclude home

visits from taking place. See also State v. Guzman, 990 P.2d 370 (Or. App. 1999);

Grubbs v. State, 373 So.2d 905, 908-10 (Fla. 1979).

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¶24 Since a home visit is not a search, a probation officer may not open drawers,

cabinets, closets or the like; nor may the officer rummage through the probationer’s

belongings. While a home visit has the potential to turn into a search pursuant to an

officer’s plain view observations, it must remain within the parameters of a home visit

unless or until there is reasonable cause to engage in a search.

¶25 The dissent argues that the Court has gone astray in its analysis by relying on the

fact that Moody was granted probation on the condition that she submit to home visits.

In the dissent’s view, this condition of probation “plays no meaningful” role in

determining whether the intrusion constitutes a search. Secondly, assuming that the

Court has adopted a “consent” rationale for circumventing what would otherwise be a

search, the dissent proceeds to argue lack of meaningful consent.

¶26 The “condition of probation” focus, however, is separate from a “consent”

analysis. The United States Supreme Court made this abundantly clear in Knights where,

although the Court specifically declined to address the issue of “consent,” it nonetheless

noted that the probation order clearly set out the probation search requirement; that

Knights was “unambiguously” aware of the condition and that his acceptance of a clear

and unambiguous condition significantly diminished his reasonable expectation of

privacy. In Knights, the probationary search which the Court upheld was predicated on

both the probation condition and reasonable suspicion. In 2006, the Court in Samson

addressed the question left unresolved in Knights—whether the search would have been

reasonable under the Fourth Amendment had it been solely predicated upon the condition

of probation. Samson, 126 S. Ct. at 2198 (citing Knights¸ 534 U.S. 120 n. 6, 122 S. Ct. at

10

592 n. 6). Clearly, under both Samson and Knights, the condition of probation (or parole)

is not only meaningful but, in the words of the Court, “salient” (Knights, 534 U.S. at 118,

122 S. Ct. at 491; Samson, 126 S. Ct. at 2199) and can be dispositive of the issue of

whether a probationer has an expectation of privacy that society would recognize as

legitimate.

¶27 In the present case, Moody was granted probation on certain conditions of which

she was “unambiguously” aware. Her expectation of privacy during her period of

supervision, like Knights’ and Samson’s, was significantly diminished. Although the

dissent likens Moody’s plight to that of a prisoner in a cell, that is not our holding. A

prisoner in a cell has no expectation of privacy. See Samson; New Jersey v. T.L.O., 469

U.S. 325, 105 S. Ct. 733 (1985); and Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194

(1984). Under our holding today, a probationer has an expectation of privacy during her

period of supervision, albeit significantly diminished. The enclosed areas of a

probationer’s residence (closets, cabinets, drawers and the like) cannot be searched

without reasonable cause.

¶28 In conclusion, we hold that home visits, as a routine and reasonable element of

supervising a convicted person serving a term of supervised release, are not searches and

are thus not subject to the reasonable cause standard. The District Court, in requiring that

Moody consent to home visits as a condition of probation, did not violate Moody’s

constitutional rights to privacy or right to be free from unreasonable searches.

¶29 2. Did the District Court properly impose a travel restriction as a condition

of Moody’s probation?

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¶30 Moody also insists that the District Court erred by imposing Condition 3, requiring

that she obtain written permission from her probation officer before leaving her assigned

district. Although Moody concedes that this condition does not absolutely limit her travel

beyond the multi-county district, she nonetheless argues that the condition improperly

places her rights at the mercy of the supervising officer. We disagree.

¶31 Since probation is a form of punishment, probationers do not enjoy the absolute

liberty afforded every citizen; rather, they are subject to conditional liberty properly

dependent on special restrictions. Beaudry, 282 Mont. at 229, 937 P.2d at 461. We have

held that for a condition to be reasonably related to the objectives of rehabilitation and

protection of the victim and society, a sentencing condition “must have some correlation

or connection to the underlying offense for which the defendant is being sentenced.”

State v. Malloy, 2004 MT 377, ¶ 8, 325 Mont. 86, ¶ 8, 103 P.3d 1064, ¶ 8. This of course

requires analyzing the condition in the context of the charged offense. To be legitimate,

the condition must both rehabilitate the defendant and help protect society from further

similar conduct. Malloy, ¶ 8.

¶32 In this case, the offense resulted from Moody’s admitted problem with alcohol.

Unless Moody maintains sobriety, she is likely to re-offend. The deferred sentence

permitted Moody the opportunity to address her chemical dependency under the

supervision of the probation office. This supervision properly includes a travel restriction

to allow Moody’s probation officer to effectively keep track of her whereabouts in order

to ensure that she remains on course with treatment. The travel restriction does not

prohibit Moody from leaving her assigned district, it merely requires written permission

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from her probation officer. In light of our mandate that a probation restriction both

rehabilitate the defendant and help protect society from further similar conduct, we

conclude that the District Court properly imposed Condition 3.

¶33 Affirmed.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY

/S/ JOHN WARNER

/S/ BRIAN MORRIS

Justice James C. Nelson, concurring and dissenting.

¶34 I concur in the Court’s resolution of Issue 2, but I dissent from its decision on

Issue 1.

¶35 I cannot agree that a “home visit” 1 is not a search. We have defined a “search” as

“a visual examination, or the use of some other means of gathering evidence, which

infringes upon a person’s reasonable expectation of privacy.” State v. Carlson, 198

Mont. 113, 119, 644 P.2d 498, 501 (1982); accord State v. Scheetz, 286 Mont. 41, 46,

950 P.2d 722, 724-25 (1997); State v. Elison, 2000 MT 288, ¶ 48, 302 Mont. 228, ¶ 48,

14 P.3d 456, ¶ 48; State v. Roper, 2001 MT 96, ¶ 14, 305 Mont. 212, ¶ 14, 26 P.3d 741,

¶ 14; State v. Boyer, 2002 MT 33, ¶ 39, 308 Mont. 276, ¶ 39, 42 P.3d 771, ¶ 39. For

1

The Department of Corrections uses the term “home contact” in its procedures

manual. However, the parties and the Court use the term “home visit”; thus, for

consistency, I also am using the term “home visit.”

13

instance, in Hulse v. State, Dept. of Justice, 1998 MT 108, 289 Mont. 1, 961 P.2d 75, we

held that field sobriety tests, which “create a situation in which police officers may

observe certain aspects of an individual’s physical and psychological condition which

would not otherwise be observable,” Hulse, ¶ 32 (emphases added), constitute a search

“because an individual’s constitutionally protected privacy interests are implicated in

both the process of conducting the field sobriety tests and in the information disclosed by

the tests,” Hulse, ¶ 33. We also based this conclusion on the fact that “law enforcement

officers use field sobriety tests as investigative tools to assist them in discovering and

arresting persons driving under the influence of alcohol.” Hulse, ¶ 32 (emphasis added).

¶36 When determining whether there has been an unlawful governmental intrusion

into one’s privacy in search and seizure situations, we look at the following factors:

(1) whether the person has an actual expectation of privacy; (2) whether

society is willing to recognize that expectation as objectively reasonable;

and (3) the nature of the State’s intrusion.

Elison, ¶ 48; see also Hulse, ¶ 22; Scheetz, 286 Mont. at 48, 950 P.2d at 726.

¶37 In the case at hand, the subject of the search is Moody’s home. That a person has

an actual expectation of privacy in his or her home, which society is willing to recognize

as objectively reasonable, is beyond dispute. Indeed, in State v. Graham, 2004 MT 385,

325 Mont. 110, 103 P.3d 1073, we observed that “[a]lthough the right to be free from

unreasonable searches and seizures encompasses more than the home, the home,

nonetheless, is historically the raison d’être for the constitutional protection.” Graham,

¶ 22. Similarly, in State v. McLees, 2000 MT 6, 298 Mont. 15, 994 P.2d 683, we stated

as follows:

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At the risk of belaboring the obvious, private residences are places in which

the individual normally expects privacy free of governmental intrusion not

authorized by warrant, and that expectation is plainly one that society is

prepared to recognize as justifiable. The fundamental purpose of the Fourth

Amendment’s prohibition against unreasonable searches and seizures is to

protect the privacy and security of individuals and safeguard the sanctity of

the home against arbitrary invasions by governmental officials.

McLees, ¶ 25 (citation and internal quotation marks omitted). And in Scheetz, we recited

“the long-standing notion throughout this country, but especially in Montana, that a

person’s residence and his homestead are secure from unwarranted government intrusion,

be it by physical or technological means.” Scheetz, 286 Mont. at 48, 950 P.2d at 726

(citing State v. Bullock, 272 Mont. 361, 901 P.2d 61 (1995), and State v. Siegal, 281

Mont. 250, 934 P.2d 176 (1997)).

¶38 Such an expectation of privacy is legitimately held by probationers. See Griffin v.

Wisconsin, 483 U.S. 868, 875, 107 S.Ct. 3164, 3169 (1987) (The “permissible degree [of

impingement upon a probationer’s privacy] is not unlimited.”); Griffin, 483 U.S. at 873,

107 S.Ct. at 3168 (“A probationer’s home, like anyone else’s, is protected by the Fourth

Amendment’s requirement that searches be ‘reasonable.’ ”).

¶39 As for the nature of the State’s intrusion, we consider “whether the state’s method

of investigation is so personally invasive that we recognize the intrusion as a search that

requires further justification, such as a warrant or other special circumstances.” Scheetz,

286 Mont. at 50, 950 P.2d at 727. Here, even a cursory examination of the Department of

Corrections’ definition of a “home visit” (see the bullet-pointed items in ¶ 16 of the

Court’s Opinion) discloses that the purpose and extent of this intrusion are to visually

“inspect[]” the probationer’s home; “observe” activities therein, including evidence of

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“contraband, weapons, illegal or dangerous objects”; “assess” the home environment; and

otherwise gather evidence of probation violations. (Significantly, nothing in this

definition limits the probation officer to plain view observations.) Such an intrusion

certainly qualifies as “a visual examination, or the use of some other means of gathering

evidence,” Carlson, 198 Mont. at 119, 644 P.2d at 501, which is “so personally invasive”

as to constitute a search, Scheetz, 286 Mont. at 50, 950 P.2d at 727—particularly since, as

the Court itself acknowledges, the probation officer’s purpose is to “enforc[e]” conditions

of supervision and “discern[]” any deception by the probationer.

¶40 Thus, given that “[t]he home is the most sanctified of all ‘particular places,’ ”

Graham, ¶ 22, and that the purpose and extent of a probation officer’s “home visit” is to

inspect the probationer’s home and gather evidence of noncompliance with probation

conditions, the impingement on privacy brought about by such an intrusion

unquestionably is a “search.”

¶41 The Court’s contrary conclusion rests on a fundamentally erroneous application of

the factors set forth in Elison. First, with respect to whether a probationer has an actual

expectation of privacy in her home, the Court observes that “probationers do not enjoy

the absolute liberty and heightened expectations of privacy afforded every Montana

citizen” but, rather, “are subject to conditional liberty properly dependent upon special

restrictions” and, thus, have a “diminished expectation of privacy.” ¶ 19. These

observations, while true, do not establish that a probationer has no actual expectation of

privacy in her home. Indeed, it goes without saying that a “diminished expectation of

privacy” is not a nonexistent expectation of privacy. See State v. 1993 Chevrolet Pickup,

16

2005 MT 180, ¶ 41, 328 Mont. 10, ¶ 41, 116 P.3d 800, ¶ 41 (Leaphart, J., dissenting)

(“While [a] citizen may not expect as much privacy in the garbage that she sets out for

collection as, say, the defendants in Siegal did in their compound, this is not to say that

she expects none.” (emphasis added, citation omitted)).

¶42 The Court reasons, in addition, that a convicted felon whose probation includes a

“clearly expressed” condition that she make her home open and available for a probation

officer to visit “does not have an actual expectation of privacy that would preclude home

visits.” ¶ 19; see also ¶ 23 (“A probationer has no reasonable expectation of privacy that

would preclude home visits from taking place.”). This reasoning and the Court’s

concomitant reliance on the probationer’s “ ‘unambiguous[]’ aware[ness]” of the

probation condition, ¶ 19, however, are entirely unavailing.

¶43 For one thing, the Court’s observation totally misses the point. The issue at hand

is whether the probationer has an actual expectation of privacy in her home, not whether

she has an actual expectation of privacy “that would preclude home visits from taking

place.” No one is arguing that the State is precluded altogether from conducting home

visits. Rather, the question is whether a home visit constitutes a “search,” which in turn

would require further justification—such as a warrant or other special circumstances—

not a complete ban. Likewise, no one has suggested that a probationer whose sentence

includes the home visit condition could possibly have “an actual expectation that there

would be no home visits during the period of supervision.” ¶ 20. Obviously, the

probationer does expect that there will be home visits, given that this is a condition of her

17

probation. Rather, the question, again, is whether such intrusions are so personally

invasive that we require further justification for them.

¶44 Moreover, the question of whether an intrusion into a home constitutes a “search”

is not contingent on whether the State has permitted the homeowner to have a privacy

interest therein. Under the Court’s flawed reasoning, the State could vitiate every

citizen’s expectation of privacy by the simple expedient of announcing that, henceforth,

homes in this State are subject to suspicionless intrusions under the guise of “home

visits.” However, as the Supreme Court explained in Smith v. Maryland, 442 U.S. 735,

99 S.Ct. 2577 (1979):

Situations can be imagined, of course, in which [the] two-pronged

inquiry [of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967)] would

provide an inadequate index of Fourth Amendment protection. For

example, if the Government were suddenly to announce on nationwide

television that all homes henceforth would be subject to warrantless entry,

individuals thereafter might not in fact entertain any actual expectation of

privacy regarding their homes, papers, and effects. . . . In such

circumstances, where an individual’s subjective expectations had been

“conditioned” by influences alien to well-recognized Fourth Amendment

freedoms, those subjective expectations obviously could play no meaningful

role in ascertaining what the scope of Fourth Amendment protection was.

In determining whether a “legitimate expectation of privacy” existed in

such cases, a normative inquiry would be proper.

Smith, 442 U.S. at 740 n.5, 99 S.Ct. at 2580 n.5 (emphasis added). For this reason, the

fact that a probationer’s sentence includes a condition that she make her home open for

“visits” plays “no meaningful role” in ascertaining whether the probation officer’s

intrusion constitutes a search—particularly when it is the validity of the probation

condition itself that is at issue.

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¶45 In a similar vein, the Court is also mistaken to suggest that a “home visit” is not a

search because the probationer had notice of and consented to this condition on her

sentence. See ¶ 19. To the contrary, the officer’s intrusion may be a “search”

nonetheless. See Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 650, 652, 115 S.Ct.

2386, 2389, 2390 (1995) (holding that random urinalysis drug testing of students

participating in interscholastic athletics constitutes a “search” subject to the demands of

the Fourth Amendment, even though the students had consented to the testing); Board of

Ed. of Independent Sch. Dist. v. Earls, 536 U.S. 822, 826, 832, 122 S.Ct. 2559, 2562,

2566 (2002) (holding that students who consent to drug testing in order to participate in

any extracurricular activity still have an expectation of privacy, albeit a “limited”

expectation).

¶46 Furthermore, it is disingenuous to suggest that the probationer had a meaningful

choice not to consent to such intrusions on her privacy. As Justice Stevens succinctly

observed in Samson v. California, ___ U.S. ___, 126 S.Ct. 2193 (2006):

[T]he State’s argument that a California parolee “consents” to the

suspicionless search condition is sophistry. Whether or not a prisoner can

choose to remain in prison rather than be released on parole, he has no

“choice” concerning the search condition; he may either remain in prison,

where he will be subjected to suspicionless searches, or he may exit prison

and still be subject to suspicionless searches. Accordingly, “to speak of

consent in this context is to resort to a manifest fiction, for the [parolee]

who purportedly waives his rights by accepting such a condition has little

genuine option to refuse.” 5 W. LaFave, Search and Seizure: A Treatise on

the Fourth Amendment § 10.10(b), pp. 440-441 (4th ed. 2004).

Samson, 126 S.Ct. at 2206 n.4 (Stevens, J., dissenting) (second alteration in original, first

citation omitted).

19

¶47 The same is equally true here. Moody’s “choice” was to accept either

suspicionless entries into her home or suspicionless entries into her prison cell. Such

alternatives are hardly the waiver this Court implies. See State v. Olson, 2002 MT 211,

¶ 20, 311 Mont. 270, ¶ 20, 55 P.3d 935, ¶ 20 (“The knowing and voluntary consent by a

citizen to a search is a recognized exception to the warrant requirement. The prosecution

carries the burden of establishing that consent to a warrantless search was freely and

voluntarily given and uncontaminated by any express or implied duress or coercion.”

(emphases added, citation omitted)). In any event, the Court’s suggestion that a

probationer who “consents” to the “home visit” condition on her sentence (because the

condition was “clearly expressed” and she was “ ‘unambiguously’ aware” of it when she

was “granted” probation) expects only as much privacy in her home as does a prisoner in

his cell is, in the final analysis, pure conjecture lacking any foundation.

¶48 With respect to whether a probationer’s expectation of privacy in her home is one

society is willing to recognize as objectively reasonable, the Court reasons that home

visits “ensure that the supervised felon is abiding by the conditions of her probation, thus

addressing the problem of recidivism” and that “ ‘more intensive supervision can reduce

recidivism’ ” (citing Griffin, 483 U.S. at 875, 880, 107 S.Ct. at 3168, 3172, and United

States v. Knights, 534 U.S. 112, 120, 122 S.Ct. 587, 592 (2001)). Yet, these are precisely

the rationales undergirding the Supreme Court’s approval of the “reasonable grounds” or

“reasonable suspicion” standard in Griffin and Knights. See Griffin, 483 U.S. at 875,

878-80, 107 S.Ct. at 3169, 3171-72; Knights, 534 U.S. at 119-21, 122 S.Ct. at 591-93.

20

This Court fails to explain why these rationales now, suddenly, justify elimination of the

standard altogether.

¶49 Again, the question under the first two Elison factors is whether the probationer

has an actual expectation of privacy that society is willing to recognize as objectively

reasonable. As explained above, private residences are “places in which the individual

normally expects privacy free of governmental intrusion not authorized by warrant, and

that expectation is plainly one that society is prepared to recognize as justifiable.”

McLees, ¶ 25 (internal quotation marks omitted). The fact that the probationer’s

expectation of privacy is “diminished” (¶ 19 of the Court’s Opinion) merely justifies the

lesser standard of “reasonable grounds” approved by the Supreme Court in Griffin and

Knights and adopted by this Court in State v. Burke, 235 Mont. 165, 169-71, 766 P.2d

254, 256-57 (1988). It does not justify an intrusion based on no standard whatsoever.

¶50 Lastly, with respect to the nature of the State’s intrusion, the Court acknowledges

that “home visits” enable a probation officer “to determine whether the individual is

abiding by the conditions of probation.” ¶ 21. In other words, “home visits” serve

verification and evidence-gathering functions—which, heretofore, we have referred to as

a “search.” To be sure, verifying the probationer’s home address and observing the

neighborhood for potential public safety issues do not infringe a probationer’s reasonable

expectation of privacy. Even meeting the probationer’s family, which does not

necessarily require an intrusion into the probationer’s home, is comparatively benign.

However, observing the probationer’s residence for contraband, weapons, and illegal

objects, conducting a visual inspection of the home, and requiring the probationer to

21

submit to breathalyzer or urinalysis screening for use of alcohol and drugs certainly

constitute an intrusion into the home by the State which infringes a reasonable

expectation of privacy and which should be made only upon “reasonable grounds.”

¶51 The Court attempts to bolster the result it reaches here with citations to the same

five cases cited in the State’s brief for the proposition that a home visit is not a search—

namely, United States v. Workman, 585 F.2d 1205 (4th Cir. 1978), Latta v. Fitzharris,

521 F.2d 246 (9th Cir. 1975), United States v. Reyes, 283 F.3d 446 (2nd Cir. 2002), State

v. Guzman, 990 P.2d 370 (Or.App. 1999), and Grubbs v. State, 373 So.2d 905 (Fla.

1979). See ¶¶ 22-23. However, the courts in those cases were interpreting the Fourth

Amendment (Workman, Latta, Reyes, and Grubbs), Oregon statutes (Guzman), and the

Florida Constitution (Grubbs), whereas the issue with which we have been presented,

according to this Court, is whether “requiring a probationer to keep her home open and

available for the probation officer to visit at all times violate[s] the Montana

Constitution” (emphasis added). It is axiomatic that we, not the United States Courts of

Appeals, the Court of Appeals of Oregon, and the Supreme Court of Florida, are the

authoritative expositors of the Montana Constitution.

¶52 But, at a more fundamental level, even if the decisions of courts in other

jurisdictions based on other constitutional and statutory provisions afford persuasive

authority on the issue at hand, the cases cited by this Court at ¶¶ 22-23 are readily

distinguishable, in that the “visits” mentioned in those cases either are undefined (in other

words, the contours of a “visit” are not stated) or are far less intrusive than the “home

visits” under our review. See Workman, 585 F.2d at 1207, 1208 (referring generically,

22

and as dictum, to “warrantless visits to the probationer’s home or place of employment,”

while the dispositive issue was “whether a probation officer can conduct warrantless

searches of his probationer’s premises whenever he has probable cause” (emphases

added)); Reyes, 283 F.3d at 451, 457 (addressing “whether Reyes, a convicted person

serving a term of federal supervised release, had a legitimate expectation of privacy in his

driveway,” given that a condition on his sentence was that he permit a probation officer

to “visit” him at any time at home or elsewhere and permit confiscation of any

contraband observed “in plain view” by the probation officer 2 ); Guzman, 990 P.2d at 374

(“[T]he authority to conduct a home visit does not carry with it the authority to inspect

private areas of the residence.”); Grubbs, 373 So.2d at 908, 909-10 (also referring to

“visit” generically—in other words, without defining the term 3 ).

¶53 Simply labeling something a “home visit” does not afford an answer. Because the

intrusions at issue in the foregoing cases were, in substance, not as invasive as the “home

visit” at issue here, the Court’s reliance on those cases is, therefore, misplaced.

¶54 The same is true of the State’s conclusory assurance that the Department of

Corrections “distinguishes between home visits and probationary searches.” The State

fails to point to any such distinction in the Department’s policies and procedures. Indeed,

2

In Reyes, the probation officers “walk[ed] on the driveway toward the backyard

to determine whether anyone was at home” and, in so doing, discovered marijuana plants

in plain view in Reyes’s yard. Reyes, 283 F.3d at 450.

3

Notably, the Grubbs court held that evidence discovered in plain view by a

probation officer during a “visit” to a probationer’s home may be used only in probation

violation proceedings; the seized evidence is not admissible to prove a new criminal

offense. Grubbs, 373 So.2d at 907, 909-10.

23

the State provides no explanation whatsoever of what a probation officer may do in a

probationary search that the officer may not do in the course of a home visit. The Court

assumes that the probation officer (during a home visit) “may not open drawers, cabinets,

closets or the like; nor may the officer rummage through the probationer’s belongings.”

¶ 24. Yet, such restrictions do not appear anywhere in the Department’s policies and

procedures concerning supervision of probationers. Rather, the Court has simply inserted

its own language, unfortunately created from whole cloth and contrary to the actual

record, into the definition of a “home visit.” In point of fact, the home visits under our

review instruct probation officers, without qualification, to “inspect[]” the probationer’s

home and, during that inspection, to “observe” for evidence of contraband, weapons, and

illegal or dangerous objects and “require” the probationer to submit to breathalyzer and

urinalysis screening for use of alcohol or drugs—all of which, in substance, constitutes a

search.

¶55 Notably, Latta (cited by the Court at ¶ 22) actually supports the conclusion that a

“home visit” is a search. In Latta, the Ninth Circuit, in the context of addressing whether

a parole officer’s “warrantless search of [a parolee’s] home violated the Fourth

Amendment,” Latta, 521 F.2d at 248, observed as follows:

The purposes of the parole system give the parole authorities a

special and unique interest in invading the privacy of parolees under their

supervision. In order to fulfill his dual responsibilities for helping the

parolee to reintegrate into society and evaluating his progress, and for

preventing possible further antisocial or criminal conduct by the parolee, it

is essential that the parole officer have a thorough understanding of the

parolee and his environment, including his personal habits, his relationships

with other persons, and what he is doing, both at home and outside it. It is

equally important that this information be kept up to date. Much of this

24

information can be obtained by methods which necessitate little or no

invasion of the parolee’s privacy, such as interviews with the parolee

himself or with his employer, family, or friends and visits to his house.

However, these techniques have inherent limitations. For example, it may

be impossible to determine whether a parolee is using alcohol or narcotics,

whether he is keeping weapons or other contraband in his home, whether

he is using or preparing to use his home as a base for improper or unlawful

activities, whether he is making a real effort to obtain employment, or the

general nature of his home environment, without conducting some type of

search.

Latta, 521 F.2d at 249-50 (emphases added, citations omitted). It is this same

information that the probation officers conducting the “home visits” under our

consideration seek to obtain: whether the probationer is using alcohol or narcotics,

whether she is keeping weapons or other contraband in her home, whether she is using or

preparing to use her home as a base for improper or unlawful activities, and the general

nature of her home environment—all of which involve “some type of search.”

¶56 The Court points out that “home visits” serve important goals and purposes—

namely, to “ensure that the supervised felon is abiding by the conditions of her

probation”; to “address[] the problem of recidivism”; and to “protect the safety and

welfare of society.” ¶¶ 20, 21. These observations, however, miss the mark. The

purpose of virtually every entry into a home by law enforcement is to ensure that the

homeowner is abiding by the law or to protect the safety and welfare of society. This

does not mean that the entries, therefore, are not searches. Article II, Section 11, does not

define a “search” as a mere unimportant impingement upon an individual’s privacy.

Rather, as explained earlier, the question of whether an intrusion constitutes a “search”

depends on whether the person has an actual (subjective) expectation of privacy, whether

25

society is willing to recognize that expectation as objectively reasonable, and the

nature—not importance—of the State’s intrusion. Thus, while home visits may indeed

operate as an important check on a probationer’s rehabilitation efforts, this fact does not

determine the nature of the officer’s entry.

¶57 This is not to say that the goals and purposes served by “home visits” are

irrelevant. To the contrary, this factor bears on the degree of certainty or suspicion

required to support the officer’s decision to intrude. See Knights, 534 U.S. at 121, 122

S.Ct. at 592 (“Although the Fourth Amendment ordinarily requires the degree of

probability embodied in the term ‘probable cause,’ a lesser degree satisfies the

Constitution when the balance of governmental and private interests makes such a

standard reasonable.”). We previously recognized that the State’s operation of a

probation system, like its operation of a school, government office, or prison, or its

supervision of a regulated industry, “ ‘presents “special needs” beyond normal law

enforcement that may justify departures from the usual warrant and probable cause

requirements.’ ” Burke, 235 Mont. at 168-69, 766 P.2d at 256 (quoting Griffin, 483 U.S.

at 873-74, 107 S.Ct. at 3168). We therefore approved a warrantless probationary search

conducted upon “reasonable grounds.” Burke, 235 Mont. at 169-71, 766 P.2d at 256-57.

In so doing, we reasoned that a probation officer “must be able to supervise the

probationer, and upon his judgment and expertise, search the probationer’s residence or

cause it to be searched.” Burke, 235 Mont. at 171, 766 P.2d at 257.

¶58 The “reasonable grounds” standard was sufficient, we held in Burke, to

accommodate two often opposing interests: the probation officer’s duty to supervise the

26

probationer and the probationer’s reduced, but nevertheless existent, privacy interest.

Quoting Griffin, we reasoned as follows:

[T]he probation agency must be able to act based upon a

lesser degree of certainty than the Fourth Amendment would

otherwise require in order to intervene before a probationer

does damage to himself or society. The agency, moreover,

must be able to proceed on the basis of its entire experience

with the probationer, and to assess probabilities in the light of

its knowledge of his life, character and circumstances.

Griffin, [483 U.S. at 879,] 107 S.Ct. at 3171. Thus, the special needs of the

probation system strongly militate toward the “reasonable grounds”

standard.

Burke, 235 Mont. at 169, 766 P.2d at 256 (first alteration in original).

¶59 With no apparent justification for modifying this balance—indeed, as noted above,

the Court merely reiterates the exact rationales by which we approved the “reasonable

grounds” standard in the first place, compare Burke, 235 Mont. at 169-71, 766 P.2d at

256-57, with ¶¶ 17, 20, 21 of the Court’s Opinion—the Court today lowers the bar in

favor of no standard at all. Now, a probation officer may enter a probationer’s home—

under the guise of a “home visit”—with no grounds whatsoever, on any basis the officer

deems sufficient (or on no basis at all), and in the absence of any programmatic

safeguards to ensure evenhandedness.

¶60 Yet, nothing in the record supports the notion that the “reasonable grounds”

standard inhibits a probation officer from supervising the probationer or renders the

officer’s expertise meaningless. Indeed, we adopted the reasonable grounds standard

precisely to accommodate probation officers’ expertise in supervising probationers. See

Burke, 235 Mont. at 169, 766 P.2d at 256 (The probation officer’s “continued experience

27

with the probationer,” “knowledge of the original offense,” and judgment as to “the

degree of supervision necessary in each case” “strongly militate toward the ‘reasonable

grounds’ standard.”). Moreover, reasonable grounds may be supplied by this very

expertise—i.e., individual-specific knowledge, gained through the supervisory

relationship, concerning the probationer’s criminal history and projected likelihood of re-

offending. See Griffin, 483 U.S. at 871, 107 S.Ct. at 3167 (noting that the regulation at

issue, which the Court upheld, required the officer to consider a variety of factors in

determining whether “reasonable grounds” exist, including “the officer’s own experience

with the probationer”); Griffin, 483 U.S. at 879-80, 107 S.Ct. at 3171-72 (suggesting that

the reasonable grounds standard accommodates a probation agency’s need “to proceed on

the basis of its entire experience with the probationer, and to assess probabilities in the

light of its knowledge of his life, character, and circumstances”).

¶61 It is counterintuitive that, under this Court’s decision today, a probation “search”

must be based on “reasonable cause,” since probationers have conditioned liberty and,

therefore, a reduced privacy interest (see ¶ 24 of the Court’s Opinion; see also Roper,

¶ 12); yet, by the simple expedient of calling a “search” a “visit,” we do away with the

reasonable cause requirement altogether, even though the object of the exercise is

precisely the same: to inspect the home of a person who has conditioned liberty and,

therefore, a reduced privacy interest and gather evidence of probation violations. The

fact that the probation officer may rummage through drawers and personal belongings in

a “search,” but may not do so in a “visit” (see ¶ 24 of the Court’s Opinion), seems a

slender reed of distinction indeed when, during the visit, the probation officer, as a

28

“visitor,” may, nevertheless, observe and visually inspect everyone and everything in the

home—with no restriction whatsoever in the Department of Corrections’ definition of a

“home visit” that the officer is limited to “plain view” observations—and require the

probationer to give breath and urine samples.

¶62 In sum, I cannot agree that calling something which is, for all intents and

purposes, a search a “home visit” necessarily changes what probation officers are actually

doing: seeking and gathering evidence. Nor can I agree that by the simple expedient of

renaming a search a “home visit,” the privacy of a presumably innocent probationer

becomes subject to greater infringement (given that the Court requires no cause for a

“home visit”) than is the privacy of a probationer of whom the probation officer actually

has a reasonable suspicion of wrongdoing.

¶63 Before concluding, it is appropriate to address the extensive arguments presented

to us by Moody and the State based on Samson v. California, ___ U.S. ___, 126 S.Ct.

2193 (2006), which the Supreme Court decided on June 19, 2006, shortly after we

handed down our original Opinion in the case at hand. In Samson, the Supreme Court

held that the Fourth Amendment does not prohibit a police officer from conducting a

suspicionless search of a parolee. Samson, 126 S.Ct. at 2202. In other words, the Court

upheld a search that was based solely on the subject’s status as a parolee. Samson, 126

S.Ct. at 2196. The State argues that in light of this holding, probation officers may

conduct “home visits” of probationers without having “reasonable cause” for doing so.

However, neither Samson’s holding nor the reasoning behind it sustains the State’s

position.

29

¶64 First, Samson involved the search of a parolee, not a probationer. Notably, the

Samson majority went to great lengths to characterize parolees as having “fewer

expectations of privacy than probationers, because parole is more akin to imprisonment

than probation is to imprisonment.” Samson, 126 S.Ct. at 2198. See, e.g., Samson, 126

S.Ct. at 2198 (“ ‘[O]n the Court’s continuum of possible punishments, parole is the

stronger medicine; ergo, parolees enjoy even less of the average citizen’s absolute liberty

than do probationers.’ ” (alteration in original) (quoting United States v. Cardona, 903

F.2d 60, 63 (1st Cir. 1990))); Samson, 126 S.Ct. at 2201 (“[P]arolees, in contrast to

probationers, ‘have been sentenced to prison for felonies and released before the end of

their prison terms’ and are ‘deemed to have acted more harmfully than anyone except

those felons not released on parole.’ ” (quoting United States v. Crawford, 372 F.3d

1048, 1077 (9th Cir. 2004) (en banc) (Kleinfeld, J., concurring))).

¶65 Thus, the Court in Samson did not broaden the holding of Knights, supra, that

“[w]hen 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.” Knights, 534 U.S. at 121, 122 S.Ct. at 593 (emphases added).

Indeed, the question of whether a probation search is reasonable under the Fourth

Amendment absent “reasonable suspicion” was not before the Court in Samson. See

Samson, 126 S.Ct. at 2198.

¶66 Second, Samson involved a search of Samson’s person on a street, not a search of

his house. As explained above, one’s expectation of privacy is at its pinnacle in the

30

home. See McLees, ¶ 25 (The fundamental purpose of the prohibitions against

unreasonable searches and seizures “is to protect the privacy and security of individuals

and safeguard the sanctity of the home against arbitrary invasions by governmental

officials.” (internal quotation marks omitted)); Graham, ¶ 22 (“[T]he home . . . is

historically the raison d’être for the constitutional protection.”). To say that a probation

officer may enter a probationer’s home without reasonable cause because a police officer

may conduct a suspicionless search of a parolee on the street is to disregard entirely the

fundamental and crucial difference between these two contexts: the heightened

expectation of privacy in the former.

¶67 Third, the suspicionless search system approved by the Supreme Court in Samson

did not, in the Court’s view, give officers “unbridled discretion to conduct searches.”

Samson, 126 S.Ct. at 2202; see also Samson, 126 S.Ct. at 2204 (Stevens, J., dissenting)

(“[I]f individualized suspicion is to be jettisoned, it must be replaced with measures to

protect against the state actor’s unfettered discretion.”). In particular, the Court was

satisfied that California prohibited “arbitrary, capricious or harassing” searches. Samson,

126 S.Ct. at 2202 (internal quotation marks omitted). Thus, the Court rejected the

argument that California’s parole search law permits “a blanket grant of discretion

untethered by any procedural safeguards.” Samson, 126 S.Ct. at 2202 (internal quotation

marks omitted).

¶68 Unfortunately, the same cannot be said about the “home visits” at issue here, the

implementation of which is not constrained by any standards, guidelines, or procedures at

all. Indeed, the only parameters imposed on a probation officer’s otherwise unfettered

31

ability to enter and inspect a probationer’s home under the guise of a “home visit” are set

forth in this Court’s Opinion; namely, the officer “may not open drawers, cabinets,

closets or the like” or “rummage through the probationer’s belongings”—at least not until

the inspection made possible by the officer’s suspicionless intrusion into the house has

given him or her reasonable cause to begin rummaging (see ¶ 24 of the Court’s Opinion).

¶69 Finally—and perhaps most fundamentally—Samson was decided under the Fourth

Amendment, whereas we are bound, in addition, by the provisions of the Montana

Constitution. See State v. Tackitt, 2003 MT 81, ¶ 17, 315 Mont. 59, ¶ 17, 67 P.3d 295,

¶ 17 (“[S]earch analysis to determine proper constitutional criminal procedure in

Montana is typically conducted under Article II, Sections 10 and 11 of the Montana

Constitution, in addition to the Fourth Amendment to the United States Constitution.”).

In this regard, we have frequently stated in the search and seizure context that Montanans

are afforded a broader privacy protection under Article II, Sections 10 and 11 of the

Montana Constitution than under the Fourth Amendment to the United States

Constitution. See Hulse, ¶ 25; State v. Siegal, 281 Mont. 250, 263, 264, 934 P.2d 176,

183, 184 (1997), overruled in part on other grounds, State v. Kuneff, 1998 MT 287, ¶ 19,

291 Mont. 474, ¶ 19, 970 P.2d 556, ¶ 19; State v. Bullock, 272 Mont. 361, 384, 901 P.2d

61, 75 (1995); State v. Sawyer, 174 Mont. 512, 515, 571 P.2d 1131, 1133 (1977),

overruled in part on other grounds, State v. Long, 216 Mont. 65, 67, 71, 700 P.2d 153,

155, 157 (1985). This increased protection is even more closely guarded when the search

is conducted in one’s home. Graham, ¶¶ 19-22. Accordingly, Samson does not afford an

answer to the question of whether, in this State, probation officers may conduct “home

32

visits” without reasonable cause for doing so. See Scheetz, 286 Mont. at 47, 950 P.2d at

725 (holding that United States v. Place, 462 U.S. 696, 103 S.Ct. 2637 (1983), “is not

determinative” of whether the government’s use of a drug-detecting canine violates the

Montana Constitution, since “we have chosen not to ‘march lock-step’ with the United

States Supreme Court, even when applying nearly identical language”).

¶70 In conclusion, a probation officer’s entry into a probationer’s home to conduct a

“home visit,” as that term is presently defined by the Department of Corrections,

constitutes a search. The Court decides otherwise on the grounds that the probationer

was “granted” this condition on her sentence and that home visits are one “commonly

imposed” condition of probation. However, neither of these considerations establishes

that the probationer does not have a legitimate expectation of privacy in her home that is

infringed by suspicionless intrusions to “inspect[]” and “observe” for evidence of

“contraband, weapons, illegal or dangerous objects.” The Court also reasons that home

visits “serve to protect the safety and welfare of society.” However, the importance of

the goal served by an officer’s intrusion into a home does not determine the nature of that

intrusion and, thus, is not a factor by which we determine whether the intrusion

constitutes a search. Otherwise, the citizens of this State are protected only from

unimportant intrusions, and the constitutional protections against unreasonable searches

and seizures are meaningless.

¶71 I would require reasonable grounds to conduct the “home visits” at issue here. I

dissent from the Court’s contrary conclusion.

/S/ JAMES C. NELSON

33