holding that consent-search provision of a probation agreement was voluntary even though defendant would have been sent to prison if he rejected it
How later courts described this case
- holding that consent-search provision of a probation agreement was voluntary even though defendant would have been sent to prison if he rejected it
- holding warrantless search provision in probation agreement is constitutionally valid when it contributes to rehabilitation process and search is conducted in a reasonable manner
- holding warrantless search provision in probation order is constitutionally valid when it contributes to rehabilitation process and search is conducted in a reasonable manner
- where drugs found in search pursuant to provision ordering probationer to submit to search of his person or property at any time by any law enforcement officer, with or without probable cause, were held to support determination that probationer violated probation
Written by the judges who cited it.
The opinion
*828 Krivosha, C.J.,
dissenting.
I must respectfully dissent from the majority in this case. The majority has held that a condition contained in a probation order issued by the court to one previously convicted of a drug offense to the effect that the probationer shall submit to a search of his personal property, at any time, by any law enforcement officer, with or without probable cause, for controlled substances, which condition is accepted by the probationer, is valid, enforceable, and constitutional if it is applied in a reasonable manner and contributes to the rehabilitation of the offender. In my view, the language of the majority opinion is much too broad. It is difficult for me to conceive how a search may be made in a reasonable and constitutional manner if it is also authorized to be made by any law enforcement officer, with or without probable cause. It appears to me that we have simply removed from one on probation all of his fourth amendment rights. While I recognize that one who is placed on probation is not entitled to all of the rights of a free citizen, nevertheless, I am persuaded by those authorities which have held provisions such as the one included in this case to be invalid, either as violating the fourth amendment of the United States Constitution or as being vague and overbroad. See, United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975); Tamez v. State, 534 S.W.2d 686 (Tex. Crim. App. 1976); Grubbs v. State, 373 So. 2d 905 (Fla. 1979); State v. Age, 39 Or. App. 501 , 590 P.2d 759 (1979). While it may be true that one convicted has a free choice of either accepting the condition or going to jail, it seems to me that, in such a case, the convicted is given a Hobson’s choice. Accordingly, I would have reversed and dismissed.