United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-1879

___________ Anthony J. Rowe, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. Brian Lamb, Jail Supervisor; * Brian Ellinger, Jailer, * * Appellants, * * Mike Carlson, in their individual * and official capacities: Chuck * Carson, Lt.; Chris Chernock, Sgt.; * County of Dakota, Nebraska, * * Defendants. *

___________ Submitted: September 11, 1997 Filed: November 28, 1997

___________ Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

___________ BEAM, Circuit Judge.Rowe was convicted of being a minor in possession (second offense), fals e 1 reporting to a peace officer, and contempt for failure to appear at trial. Rowe c ontends that the signature on the document containing the terms an d 2 conditions of his probation is a forgery and that he never consented to its terms. His signat ure is of no consequence because the document is a court order. Row e consente d to the terms imposed by the Court through his act of being released from a jail term. Without accession to such terms, he would have been in jail. -2- Brian Lamb and Brian Ellinger a ppeal the district court's denial of their motions for su mmary judgment based on qualified immunity in this 42 U.S.C. § 1983 actio n brought by a probationer. We reverse.
I. BACKGROUND Anthony Rowe en tered a plea of guilty to various offenses. He was placed on 1 probation. One condition of his probation was that he "submit to a search of his person or property at any time, by any Probation Officer or law enforcement officer, with or without p robable cause, for controlled substances or contraband." Appendix at 99

. 2 While on probation, he was arrested in South Sioux City, Nebraska, for violating his parole for an Iowa burglary conviction.
Da kotaCounty Jail Supervisor Brian Lamb and Dakota County Correction s Officer Brian Ellinger searched Rowe incident to his admission to the jail and found a small quantity of drugs and the keys to Rowe's apartment. Jail reg ulations required that perso nal possessions be inventoried and stored and that only individuals with lega l authority be allo wed access to the property. Rowe's probation officer, Mike Carlson, who had been present at the search, asked f or Rowe's consent to search the apartment, but Rowe refused. After showing the jailers a copy of Rowe's pro bation order, Carlson requested the keys from Elli nger, who gave them to him. Ellinger's supervisor, Lamb, was also present and had no objection. Carlson later searched the apartment.-3-

Rowe filed this action in district court alleging, among other things, that Lamb and Ellinger violated his Fourth Amendment right to be free from unreasonabl e searches and seizures by providing the keys t o Carlson to enable him to search Rowe's residence. Lamb and Ellinger filed a motion for summary judgment based on qualified immunity. The district court denied the motion, findin g a genuine issue of material fact on th e question of whether Rowe's right to be free from an unreasonable search wa s clearly established at the time of the alleged violation. Rowe v. Carson , No. 4:CV95- 3033, Mem. and Order, slip op. at 5 (D. Neb. Feb. 23, 1997).
II. DISCUSSION
In an appeal from the denial of a motion for summary judgment based o n qualified immunity, we review the legal issue of the existence of qualified immunity de novo. See Sisneros v. Nix , 95 F.3d 749, 753 ( 8th Cir. 1996). In order to determine whether a defendant is entitled to qualified immunity, we enga ge in a two-part analysis. See Manzano v. South Dakota Dep't of Social Servs. , 60 F.3d 505, 509 (8th Cir. 1995). The first question is whether the plaintiff has alleged a constitutional violation. Se e Siegert v. Gilley , 500 U.S. 226, 232 (19 91). It is not until we have made that required determ ination that we may analyze whether such right was clearly established at th e time of the alleged violation. Thomas v. Hungerford , 23 F.3d 1450, 1452 (8th Cir

. 1994). Thus, our first consideration is whether Rowe has alleged a violation of any constitutional right at all. Probation, like incarceration, is a form of criminal sanction imposed by a court on an offender after a guilty verdict or plea. See Griffin v. Wisconsin , 483 U.S. 868, 874 (1987) . Probationers do not enjoy the absolute liberty to which every citizen i s en titled, but only conditional liberty properly dependent on observance of specia l probation restrictions. See id. With probationers, there is a heightened need for close supervision of the convicted person's activities to protect society and the probationer himself. See United States v. Kills Enemy , 3 F.3d 1201, 1203 (8th Cir. 1993). I n partic ular, "in cases involving drugs, authorities supervising the convict 'must be able to act upon a lesser degree of certainty that the Fourth Amendment would otherwis e-4-

require in order to intervene before [the person] does damage to himself or society.'" Id. at 1203 (quoting Griffin , 483 U.S. at 879). Thus, a probationer can be subject to a w arrantless search under a statutory scheme or pursuant to the findings of a senten cing court. See United States v. Schoenrock , 868 F.2d 289, 292-93 (8th Cir

. 1989).
Althou gh the permissible degree of impingement is not unlimited, probatio n search schemes similar to that at issue here have been upheld as reasonable. See, e.g. , Griffin , 483 U.S. at 880 (sea rch of probationer's residence was reasonable pursuant to a valid state regulation governing probationers); Kills Enemy , 3 F.3d at 1203 (search was reaso nable under a federal statute); Schoenrock , 868 F.2d at 292-93 (search o f probationer's residence was reasonable under conditions imposed by a sentencin g judge).
Because the terms of his probation order provided that he was subject to a warrantless search of his home at any time by any law enforcement officer, and because that term was reaso nable, Rowe had no Fourth Amendment right to be free from such a se arch. We therefore find that he has not alleged the violation of a constitutiona l right. See Siegert , 500 U.S. at 231-32 . The act of giving Rowe's probation officer the keys to Rowe's apartment merely facilitated that valid search. Whether the actio n viola ted jail procedures is not important to this constitutional inquiry. Accordingly , defendants Lamb and Ellinger are entitled to summary judgment.
III. CONCLUSION
T h e order of the district court is reversed and this action is remanded for entry of an order granting Lamb's and Ellinger's motion for summary judgment.-5-

A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.