Present: All the Justices 

RONALD STUART MURRY, JR. 

 OPINION BY 

v. Record No. 131137 CHIEF JUSTICE CYNTHIA D. KINSER 

 SEPTEMBER 12, 2014 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

The defendant, Ronald Stuart Murry, Jr., is subject to a 

probation condition requiring him to submit to warrantless, 

suspicionless searches of his person, property, residence, and 

vehicle at any time by any probation or law enforcement officer. 

The probation condition is not reasonable in light of the 

offenses for which Murry was convicted, his background, and the 

surrounding circumstances. We will therefore reverse the 

judgment of the Court of Appeals of Virginia. 

RELEVANT FACTS AND PROCEEDINGS 

In a bench trial in the Circuit Court of Hanover County, 

Murry was convicted of rape, in violation of Code § 18.2-61;1

four counts of aggravated sexual battery, in violation of Code 

§ 18.2-67.3(A)(1); and one count of aggravated sexual battery, 

in violation of Code § 18.2-67.3(A)(3). The victim, B.W., was 

Murry's stepdaughter. At trial, she testified about sexual 

abuse starting at the age of five and culminating in rape after 

she reached the age of 13. Murry denied the allegations of 

 1

 The sentencing order contains a clerical mistake. It 

lists the Code section for rape as Code § 18.2-261 instead of 

Code § 18.2-61. 
2 

sexual battery but admitted to having sexual intercourse with 

B.W. when she was 13 years old. He claimed, however, that the 

intercourse was not against B.W.'s will and that he did not use 

any threats, force, or intimidation against her. The circuit 

court rejected Murry's testimony, finding it to be "incredible" 

and concluding that the "ongoing relationship and the grooming 

behavior . . . he encouraged from the time she was five years 

old [was] a much more credible explanation for how [the rape] 

occurred when she was thirteen." 

At sentencing, the circuit court imposed terms of 

incarceration for each of the convictions, totaling 156 years 

and 7 months.2 The court suspended 140 years of the sentences 

for the period of Murry's "natural life," leaving a term of 

active incarceration of 16 years and 7 months. The court 

further ordered that upon release from incarceration, Murry 

would be on supervised probation for an indefinite period. As a 

condition of Murry's probation, the court ordered, inter alia, 

that Murry "shall submit his person, property, place or 

residence, vehicle, and personal effects, to search at any time, 

with or without a search warrant, warrant of arrest or 

 2

 The sentencing order has an additional clerical mistake. 

In the sentencing summary, it recites the total sentence imposed 

as 156 "dollars" and 7 months instead of 156 "years" and 7 

months. 
3 

reasonable cause by any Probation Officer or Law Enforcement 

Officer." 

Murry objected to this probation condition, arguing that 

the Fourth Amendment waiver was "not really necessarily 

appropriate" because the convictions did not involve illegal 

substances or firearms. The circuit court overruled the 

objection, stating: 

I agree with the Commonwealth that [Murry] 

groomed this child from an early age to accept his 

physical advances and that he manipulated her into 

this at the same time that he was presenting to 

everyone in his family and everyone in the community 

what a good person he would be . . . to have with 

children. I mean it's classic predatory behavior . . 

. . And, even at this point . . . , he does not 

accept responsibility for that, he exhibits distorted 

behavior about his own role in this . . . . And, in 

order to protect the community at the time that he's 

finally released, I want . . . law enforcement to have 

the ability to go directly into his house at any time 

to see what he's doing. 

On appeal to the Court of Appeals of Virginia, Murry 

challenged the probation condition requiring waiver of his 

Fourth Amendment rights. Murry v. Commonwealth, 62 Va. App. 

179, 181, 743 S.E.2d 302, 303 (2013). The Court of Appeals 

affirmed the circuit court's judgment, concluding that the 

challenged probation condition "is reasonable under the facts of 

this case." Id. at 189, 743 S.E.2d at 307. 

We awarded Murry this appeal. As he argued in the Court of 

Appeals, Murry asserts that the condition of probation requiring 
4 

him to submit to searches of his person, property, residence, 

and vehicle at any time by any probation or law enforcement 

officer with or without a search warrant or reasonable cause 

throughout the term of his probation is both unreasonable under 

Virginia law and unconstitutional under the Fourth Amendment. 

ANALYSIS 

We review conditions of probation imposed by a trial court 

as part of its sentencing determination for abuse of 

discretion. Martin v. Commonwealth, 274 Va. 733, 735, 652 

S.E.2d 109, 111 (2007). A trial court abuses its discretion 

"when a relevant factor that should have been given significant 

weight is not considered; when an irrelevant or improper factor 

is considered and given significant weight; [or] when all proper 

factors, and no improper ones, are considered, but the court, in 

weighing those factors, commits a clear error of 

judgment." Landrum v. Chippenham & Johnston-Willis Hosps., 

Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011) (internal 

quotation marks omitted); see also Porter v. Commonwealth, 276 

Va. 203, 260, 661 S.E.2d 415, 445 (2008) ("The abuse-ofdiscretion standard includes review to determine that the 

discretion was not guided by erroneous legal conclusions.") 

(internal quotation marks omitted). 

Probation is a form of criminal sanction, like 

incarceration, imposed by a trial court after a verdict, 
5 

finding, or plea of guilty. Griffin v. Wisconsin, 483 U.S. 868, 

874 (1987). Pursuant to Code § 19.2-303, "[a]fter conviction, 

whether with or without jury, the court may suspend imposition 

of sentence or suspend the sentence in whole or part and in 

addition may place the defendant on probation under such 

conditions as the court shall determine." This statute 

authorizes a trial court to impose such reasonable terms and 

conditions of probation as it deems appropriate. Dyke v. 

Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 486 (1952) 

(decided under predecessor statute, former Code § 53-272). The 

only statutory limitation on the court's exercise of its 

discretion is "one of reasonableness." Anderson v. 

Commonwealth, 256 Va. 580, 585, 507 S.E.2d 339, 341 (1998). 

Probation conditions must be reasonable in light of the nature 

of the offense, the defendant's background, and the surrounding 

circumstances. Id. at 585, 507 S.E.2d at 342; see also State v. 

Allah, 750 S.E.2d 903, 911 (N.C. Ct. App. 2013) (discussing that 

probation conditions must bear a reasonable relationship to the 

offenses committed by the defendant, tend to reduce the 

defendant's exposure to crime, and assist in the defendant's 

rehabilitation) (citing State v. Cooper, 282 S.E.2d 436, 438 

(N.C. 1981)); Jones v. State, 41 P.3d 1247, 1258 (Wyo. 2002) 

(holding that "probation conditions must be reasonably related 

to rehabilitation, to the criminal conduct for which the 
6 

probationer was convicted, and to the deterrence of future 

criminal conduct"). 

Murry argues that the circuit court abused its discretion 

because the probation condition is not reasonably related to the 

offenses for which he was convicted, his background, or any 

surrounding circumstances and amounts to a "lifetime waiver" of 

his Fourth Amendment protection against unreasonable searches 

and seizures.3

 The Commonwealth responds that the probation 

condition is reasonable in light of the circuit court's findings 

that Murry groomed his victim from an early age, was able to 

conceal his reprehensible conduct from his family and the 

community, and never accepted responsibility for his behavior. 

According to the Commonwealth, the probation condition is 

 3

 The Court of Appeals concluded that in the circuit court 

Murry only objected to the reasonableness of the probation 

condition at issue and did not assert that the condition was 

unconstitutional. Murry, 62 Va. App. at 181 n.1, 743 S.E.2d at 

303-04 n.1. Thus, pursuant to Rule 5A:18, the Court of Appeals 

did not address the merits of that argument. Id. Murry now 

also challenges the Court of Appeals' failure to address the 

constitutionality of the probation condition. 

In ruling on Murry's objection to the required waiver of 

his Fourth Amendment rights, the circuit court referenced the 

decision in United States v. Knights, 534 U.S. 112 (2001). The 

court thus understood Murry's argument and ruled on it. See 

Scialdone v. Commonwealth, 279 Va. 422, 442, 689 S.E.2d 716, 727 

(2010) (holding that trial court was aware of defendants' 

arguments and ruled on them). We therefore conclude that the 

Court of Appeals erred in refusing to address the constitutional 

challenge to the probation condition. Although we do not need 

to specifically address whether the probation condition violates 

Murry's Fourth Amendment rights, Fourth Amendment principles 

are, nevertheless, relevant to determine if the probation 

condition is reasonable under our jurisprudence. 
7 

necessary to verify Murry's compliance with other probation 

conditions and to protect the public. Because the probation 

condition here implicates Murry's Fourth Amendment rights, to 

determine whether it is reasonable we must measure Murry's 

privacy interests against the Commonwealth's interests in 

imposing the condition in light of Murry's offenses, his 

background, and the surrounding circumstances. See Carswell v. 

State, 721 N.E.2d 1255, 1258 (Ind. Ct. App. 1999) (holding that 

when a defendant contends that a probation condition is "unduly 

intrusive on a constitutional right," a review of the condition 

must balance the constitutional rights enjoyed by the 

probationer and the legitimate needs of law enforcement); Jones, 

41 P.3d at 1258 (determining the reasonableness of a probation 

condition waiving Fourth Amendment rights "requires a balancing 

of the interests of the state and the privacy interests of the 

probationer"). 

Probation is "one point . . . on a continuum of possible 

punishments ranging from solitary confinement in a maximumsecurity facility to a few hours of mandatory community 

service." Griffin, 483 U.S. at 874. "Inherent in the very 

nature of probation is that probationers 'do not enjoy the 

absolute liberty to which every citizen is entitled,'" United 

States v. Knights, 534 U.S. 112, 119 (2001) (quoting Griffin, 

483 U.S. at 874), "but only . . . conditional liberty properly 
8 

dependent on observance of special [probation 

conditions]." Morrissey v. Brewer, 408 U.S. 471, 480 (1972). 

Because "[a] [s]tate's operation of a probation system . . . 

presents 'special needs' beyond normal law enforcement" to 

ensure that probation restrictions are followed, "departures 

from the usual warrant and probable-cause requirements" for 

searches may be justified. Griffin, 483 U.S. at 873-74. The 

permissible range of departure, however, "is not 

unlimited." Id. at 875. 

In Knights, the Supreme Court of the United States 

determined the reasonableness of a search of a probationer by 

balancing "'on the one hand, the degree to which it intrudes 

upon an individual's privacy and, on the other, the degree to 

which it is needed for the promotion of legitimate governmental 

interests.'" 534 U.S. at 119 (quoting Wyoming v. Houghton, 526 

U.S. 295, 300 (1999)); see also New Jersey v. T.L.O., 469 U.S. 

325, 337 (1985) (determining reasonableness of a search requires 

"balancing the need to search against the invasion which the 

search entails") (internal quotation marks omitted). There, the 

probationer was subject to a probation condition that was 

virtually identical to the Fourth Amendment waiver required of 

Murry. Knights, 534 U.S. at 114. In addition, the probationer 

had signed a probation order that stated the following above his 

signature: "I RECEIVED A COPY, READ AND UNDERSTAND THE ABOVE 
9 

TERMS AND CONDITIONS OF PROBATION AND AGREE TO ABIDE BY 

SAME." Id. The defendant subsequently challenged the legality 

of a search conducted pursuant to the probation condition. Id.

at 116. 

The Court concluded that the probationer's acceptance of 

the clear and unambiguous probation condition "significantly 

diminished" his reasonable expectation of privacy. Id. at 119-

20. Weighing that fact against the government's legitimate 

interests with regard to probation, the Court held that "the 

balance of these considerations requires no more than reasonable 

suspicion to conduct a search of [the] probationer's 

house." Id. at 121. The Court concluded that "the warrantless 

search of [the probationer], supported by reasonable suspicion 

and authorized by a condition of probation, was reasonable 

within the meaning of the Fourth Amendment."4 Id. at 

122; see also United States v. Davis, 932 F.2d 752, 755-58 (9th 

Cir. 1991) (holding that, where the defendant "was on probation 

and subject to a search condition permitting the warrantless 

search of her apartment," law enforcement officers must have, at 

a minimum, "reasonable suspicion[] that an item to be searched 

is owned, controlled, or possessed by [the] probationer, in 

 4

 The trial court found and the probationer conceded that 

the law enforcement officer who conducted the search had 

"reasonable suspicion" that the probationer was engaged in 

criminal activity. Knights, 534 U.S. at 122. 
10 

order for the item to fall within the permissible bounds of [a] 

probation search"); Carswell, 721 N.E.2d at 1262 (upholding a 

probation condition authorizing warrantless searches of the 

defendant, provided the searches are "conducted only upon 

reasonable cause"); State v. Lockwood, 632 A.2d 655, 662 (Vt. 

1993) (holding that, although the probation condition 

authorizing warrantless searches without reasonable cause was 

flawed, the search at issue was upheld "because the officers had 

reasonable suspicion to conduct the search"). But see Samson v. 

California, 547 U.S. 843, 857 (2006) (holding that "the Fourth 

Amendment does not prohibit a police officer from conducting a 

suspicionless search of a parolee"). 

The Court did not address "whether the probation condition 

so diminished, or completely eliminated, [the probationer's] 

reasonable expectation of privacy . . . that a search by a law 

enforcement officer without any individualized suspicion would 

have satisfied the reasonableness requirement of the Fourth 

Amendment." 534 U.S. at 120 n.6; see also Samson, 547 U.S. at 

849 (explaining that "[b]ecause the search at issue in Knights

was predicated on both the probation search condition and 

reasonable suspicion, [the Court] did not reach the question 

whether the search would have been reasonable under the Fourth 

Amendment had it been solely predicated upon the condition of 
11 

probation"). Neither did the Court address whether the 

probation condition itself violated the Fourth Amendment. 

Murry, however, is challenging the reasonableness of the 

probation condition. In contrast to the defendant in Knights, 

he is not challenging the legality of an actual search. As we 

already stated, the balancing test used in Knights and other 

cases is, nevertheless, the appropriate framework to address the 

reasonableness of the probation condition because it affects 

Murry's Fourth Amendment rights. See Carswell, 721 N.E.2d at 

1258 (when a defendant contends that a probation condition is 

"unduly intrusive on a constitutional right," a review of the 

condition must balance the constitutional rights enjoyed by the 

probationer and the legitimate needs of law enforcement); State 

v. Bennett, 200 P.3d 455, 463 (Kan. 2009) (balancing 

probationer's expectation of privacy against state's legitimate 

interests to decide whether probation condition authorizing 

suspicionless searches violated probationer's Fourth Amendment 

rights); Jones, 41 P.3d at 1258 (determining the reasonableness 

of a probation condition waiving Fourth Amendment rights 

"requires a balancing of the interests of the state and the 

privacy interests of the probationer"). Murry's future status 

as a probationer "informs both sides of that balance." Knights, 

534 U.S. at 119. 
12 

On Murry's side of the balance, it is apparent from the 

decision in Knights that probationers retain some expectation of 

privacy, albeit diminished. See id. at 121 ("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.") (emphasis added); see also Samson, 547 U.S. at 

850-52 & n.2 (explaining that parolees have fewer expectations 

of privacy than probationers and that, in Knights, the 

probationer's acceptance of the probation condition there 

significantly diminished his expectation of privacy); Griffin, 

483 U.S. at 875 ("Supervision . . . is a 'special need' of the 

[s]tate permitting a degree of impingement upon privacy that 

would not be constitutional if applied to the public at large. 

That permissible degree is not unlimited, however."); United 

States v. Stewart, 468 F.Supp.2d 261, 278 (D. Mass. 2007) 

("[T]here must be some privacy rights that a probationer retains 

and from which he can exclude the government unless it comes 

armed with a warrant or individualized suspicion."); People v. 

Johns, 795 N.E.2d 433, 437 (Ill. App. Ct. 2003) (explaining that 

a probationer's expectation of privacy is diminished but not 

extinguished); Bennett, 200 P.3d at 463 ("[A]lthough 

probationers' privacy rights are more limited than are the 
13 

rights of free citizens, probationers do enjoy some expectation 

of privacy in their persons and property."); People v. Hale, 714 

N.E.2d 861, 863 (N.Y. 1999) ("[A] probationer loses some privacy 

expectations and some of the protections of the Fourth 

Amendment, but not all of both."). 

The probation condition challenged in this appeal subjects 

Murry to searches of his person, property, residence, and 

vehicle at any time by any probation or law enforcement officer. 

Neither a search warrant nor even reasonable cause is required. 

Furthermore, the probation condition not only authorizes 

suspicionless searches but also allows such searches for both 

probation and investigative purposes.5 See Hale, 714 N.E.2d at 

862, 865 (upholding search conducted pursuant to a probation 

condition that allowed only searches for specific items by 

probation officers). There is no question that the degree of 

intrusion on Murry's expectation of privacy as a probationer is 

 5

 In determining the reasonableness of suspicionless 

searches authorized by probation conditions, courts have 

distinguished between searches conducted for probationary 

purposes and those conducted for investigative purposes. The 

former "must be related to the rehabilitation or supervision of 

the defendant," State v. Zeta Chi Fraternity, 696 A.2d 530, 541 

(N.H. 1997), and "should advance the goals of probation, the 

overriding aim of which is to give the [probationer] a chance to 

further and to demonstrate his rehabilitation while serving a 

part of his sentence outside the prison walls." United States 

v. Ooley, 116 F.3d 370, 372 (9th Cir. 1997) (internal quotation 

marks omitted). The latter serves as "a mere subterfuge 

enabling the police to avoid having to obtain a search warrant." 

Id. (internal quotation marks omitted).
14 

significant. In reality, it extinguishes any Fourth Amendment 

rights Murry may have as a probationer. 

On the other side of the balance, the Commonwealth has the 

expectation that a probationer will successfully complete the 

term of probation and be integrated back into society as a 

productive, law-abiding person. See Knights, 534 U.S. at 120-

21; see also Wilborn v. Saunders, 170 Va. 153, 160, 195 S.E. 

723, 726 (1938) ("The Commonwealth is interested not only in the 

preservation of peace and good order, but in reformation of the 

criminal, so that he may be restored to a useful place in 

society and be self-sustaining thereafter."). At the same time, 

the Commonwealth has the legitimate concern that a probationer 

is more likely to engage in criminal activities than an ordinary 

citizen. Knights, 534 U.S. at 121. This concern is heightened 

when, as here, a probationer is a sex offender. See United 

States v. Yuknavich, 419 F.3d 1302, 1310 (11th Cir. 2005) 

(recognizing that sex offenders are a serious threat and that 

states have a vital interest in rehabilitating them); Carswell, 

721 N.E.2d at 1263 (recognizing elevated public safety concerns 

with "the crime of child molestation," which all too often goes 

unreported). "[T]he very assumption of the institution of 

probation [is] that the probationer is in need of rehabilitation 

and is more likely than the ordinary citizen to violate the 

law." Griffin, 483 U.S. at 880. Thus, probation conditions and 
15 

supervision are necessary to ensure both that probation "serves 

as a period of genuine rehabilitation and that the community is 

not harmed by the probationer's being at large." Id. at 875. 

The circuit court convicted Murry of rape and several 

counts of aggravated sexual battery. The victim, a family 

member, was between the ages of five and 13 at the time of the 

offenses. Although Murry had no prior convictions, the circuit 

court imposed the probation condition because it concluded that 

Murry had groomed his victim from an early age and had 

successfully concealed his behavior from his family and the 

community for many years. As a result, the court wanted "law 

enforcement to have the ability to go directly into [Murry's] 

house at any time to see what he's doing." 

Although the Commonwealth has a legitimate interest in 

ensuring that Murry completes a meaningful period of 

rehabilitation and that society not be harmed by Murry's being 

at large as a sex offender, we conclude that those interests do 

not justify the total surrender of Murry's Fourth Amendment 

rights. See State v. Fields, 686 P.2d 1379, 1387-88 (Haw. 1984) 

("[A] near-total surrender of privacy could [not] be reasonably 

related to rehabilitation, and . . . the deprivation would be 

inconsistent with even the limited freedom afforded someone who 

but for the grace of the sentencing court would be in 

prison."); Bennett, 200 P.3d at 463 (holding that a probation 
16 

condition requiring defendant to submit to nonconsensual, 

suspicionless searches violated his Fourth Amendment rights). 

Nothing in the record establishes that a complete waiver of 

Murry's Fourth Amendment rights is necessary to facilitate his 

rehabilitation and protect the public. 

Furthermore, the probation condition authorizes any law 

enforcement officer, even one without knowledge of the 

condition, to search Murry's person, property, residence, and 

vehicle at any time and for any reason. In other words, the 

condition enables a law enforcement officer to avoid the warrant 

requirement, or even having reasonable suspicion, for a purely 

investigative search. Law enforcement officers, however, do not 

have the same responsibility as probation officers with respect 

to rehabilitating probationers. Compare Code § 53.1-145 (powers 

and duties of probation and parole officers) with Code § 15.2-

1704 (powers and duties of police officers); see also State v. 

Zeta Chi Fraternity, 696 A.2d 530, 541 (N.H. 1997) (probation 

officers, unlike law enforcement officers, are charged with 

assisting probationers "in establishing law-abiding lives while 

monitoring their behavior"). The probation condition, 

therefore, could sanction intimidating and harassing searches 

that are unrelated to Murry's rehabilitation or public safety, 

thus undermining the purpose of probation conditions. 
17 

Relying on this Court's decision in Anderson, the 

Commonwealth, however, questions how Murry can contend that the 

probation condition is unreasonable under the Fourth Amendment 

when he accepted the circuit court's suspension of part of his 

sentence. The Commonwealth's argument overlooks significant 

factual differences between Anderson and the present case. 

The defendant in Anderson pled guilty pursuant to a written 

plea agreement. 256 Va. at 582, 507 S.E.2d at 340. The plea 

agreement provided that the defendant's sentence would be 

suspended upon certain terms and conditions, including a waiver 

of the defendant's Fourth Amendment right against unreasonable 

searches and seizures for one year from the date of 

sentencing. Id. The plea agreement stated: 

BY HIS SIGNATURE BELOW, [THE DEFENDANT] ACKNOWLEDGES 

THAT, IF THIS AGREEMENT IS ACCEPTED BY THE COURT, HE 

UNDERSTANDS HE IS WAIVING HIS FOURTH AMENDMENT RIGHT 

AGAINST UNREASONABLE SEARCHES AND SEIZURES DURING THE 

PERIOD SPECIFIED ABOVE. 

Id. at 582-83, 507 S.E.2d at 340. The trial court found that 

the defendant had entered his plea freely and voluntarily and 

incorporated the terms of the plea agreement into the sentencing 

order. Id. at 583, 507 S.E.2d at 340. 

Approximately five months after sentencing, police officers 

searched the defendant and found cocaine, marijuana, and a 

handgun. Id. at 583-84, 507 S.E.2d at 340-41. After being 

charged with various felonies, the defendant moved to suppress 
18 

the evidence recovered from the search, contending that the 

Fourth Amendment waiver in his plea agreement was invalid and 

that the officers had no grounds otherwise to support a 

warrantless search. Id. at 584, 507 S.E.2d at 341. On appeal, 

the defendant asserted, inter alia, that conditioning the 

suspended sentence upon a waiver of Fourth Amendment rights was 

unreasonable. We disagreed, stating "it is difficult to 

understand how [the defendant] can now contend that this 

condition of his suspended sentence was unreasonable when he 

knowingly and voluntarily agreed to it." Id. at 585, 507 S.E.2d 

at 342. 

The waiver of constitutional rights in a plea agreement is 

not an uncommon practice. See United States v. Keele, 755 F.3d 

752, 756 (5th Cir. 2014) ("Generally, constitutional rights can 

be waived as part of a plea agreement."); Jones v. United 

States, 167 F.3d 1142, 1145 (7th Cir. 1999) (same). "[I]t is 

well settled that plea bargaining does not violate the 

Constitution even though a guilty plea waives important 

constitutional rights." Town of Newton v. Rumery, 480 U.S. 386, 

393 (1987); Johnson v. Zerbst, 304 U.S. 458, 464 (1938) 

(discussing standards for waiver of such constitutional rights 

as the privilege against compulsory self-incrimination, the 

right to trial by jury, and the right to confront accusers). 

Nor is it uncommon for defendants to agree to search conditions 
19 

of probation in exchange for a more lenient term of 

incarceration, as in Anderson. See United States v. King, 711 

F.3d 986, 990-91 (9th Cir. 2013) (upholding a search where "the 

probationer agreed to a search condition that permits 

warrantless, suspicionless searches of the probationer's 

'person, property, premises and vehicle[] [at] any time of the 

day or night'"). However, unlike the defendant in Anderson, 

Murry did not agree to a waiver of his Fourth Amendment rights 

pursuant to a signed plea agreement. Murry pled not guilty, and 

the circuit court imposed the probation condition, sua sponte, 

after finding Murry guilty. Murry objected to the probation 

condition in the circuit court and is likewise doing so on 

appeal. Furthermore, Murry is not yet on probation and has not 

signed any document agreeing to terms of 

probation. But see King, 711 F.3d at 990-91. Murry clearly has 

not consented to the probation condition at issue here. 

CONCLUSION 

In summary, the probation condition subjecting Murry, his 

property, residence, and vehicle to warrantless, suspicionless 

searches at any time by any probation or law enforcement officer 

is not reasonable in light of Murry's offenses, his background, 

and the surrounding circumstances. The degree to which the 

probation condition is needed to promote the Commonwealth's 

legitimate interests with regard to Murry's rehabilitation and 
20 

the protection of society does not outweigh the degree of 

intrusion on Murry's diminished yet legitimate expectation of 

privacy as a probationer. Therefore, the circuit court abused 

its discretion because in weighing the relevant factors, it 

committed "a clear error of judgment." Landrum, 282 Va. at 352, 

717 S.E.2d at 137 (internal quotation marks omitted). We will 

reverse the judgment of the Court of Appeals and remand the case 

to the Court of Appeals with directions that it remand the case 

to the circuit court to conduct a new sentencing hearing. 

Reversed and remanded. 

JUSTICE MIMS, concurring. 

The circuit court was motivated by a genuine concern that 

Murry will pose a danger to public safety upon release. It 

therefore imposed several probation conditions to ameliorate 

that concern. I concur that the circuit court abused its 

discretion by requiring Murry to “submit his person, property, 

place or residence, vehicle, and personal effects, to search at 

any time, with or without . . . reasonable cause by any 

Probation Officer or Law Enforcement Officer.” Although the 

underlying concern is justified, this condition is too broad. I 

write separately to consider this condition in context with the 

others, rather than in isolation. 

The circuit court found that Murry raped his stepdaughter 

when she was 13. It found that he had committed repeated 
21 

aggravated sexual batteries upon her since she was five years 

old. It found the aggravated sexual batteries constituted 

“grooming behavior” and facilitated the rape. It found that 

Murry successfully concealed this sexual abuse for many years. 

It found that he failed to accept responsibility for his crimes 

upon conviction. 

Based on these offenses, background, and surrounding 

circumstances, Anderson v. Commonwealth, 256 Va. 580, 585, 507 

S.E.2d 339, 341 (1998), the court imposed a probation condition 

prohibiting Murry from having “contact with any minors under the 

age of eighteen without adult supervision.” Murry does not 

challenge the reasonableness of this condition. 

Probation conditions “are meant to assure that the 

probation serves as a period of genuine rehabilitation and that 

the community is not harmed by the probationer’s being at large. 

These same goals require and justify the exercise of supervision 

to assure that” a probationer complies with the conditions after 

release. Griffin v. Wisconsin, 483 U.S. 868, 875 (1987) 

(citation omitted). Accordingly, Virginia probation officers 

have a duty to ensure that probationers comply with their 

probation conditions. See Code § 53.1-145 (requiring probation 

officers to “furnish every such person with a written statement 

of the conditions of his probation and instruct him therein” and 
22 

to “[a]rrest [probationers] for violation of the terms of 

probation”). 

While probation officers may attempt to ascertain whether a 

probationer is complying with his probation conditions after 

release by questioning him and his family, friends, neighbors, 

co-workers, and other associates, “[i]nvestigation of [his] 

home, possessions, and body may also be required. In such 

situations, . . . probation officers believe that they need to 

be able to make unannounced home visits and searches.” Neil P. 

Cohen, The Law of Probation and Parole § 17:7 (2d ed. 1999). 

Accordingly, the authority to do so is often included as a 

separate condition of release. Id. 

In this case, the circuit court could reasonably fear that 

the customary investigative technique of interviewing Murry and 

his associates would be insufficient to reveal any violation of 

the condition prohibiting him from unsupervised contact with 

minors. Probationers in general have a propensity to “to 

conceal their criminal activities and quickly dispose of 

incriminating evidence.” United States v. Knights, 534 U.S. 

112, 120 (2001). The court’s findings suggest that Murry could 

be particularly adept at doing so. It found that he concealed 

his repeated aggravated sexual batteries for years. It was 

especially disturbed by his ability to persuade his family and 

others in the community who knew him that he was “a good person 
23 

. . . to have with children” at the same time he was sexually 

abusing his stepdaughter. Consequently, the circuit court’s 

findings are sufficient to establish the need for a separate 

search condition in this case. 

Nevertheless, such a condition must be reasonable not only 

in its justification but in its scope. For example, former N.C. 

Gen. Stat. § 15A-1343(b1)(7) permitted North Carolina courts to 

require a probationer to submit to warrantless searches by a 

probation officer of his home, vehicle, and person “at 

reasonable times . . . while the probationer is present, for 

purposes specified by the court and reasonably related to his or 

her probation supervision, but the probationer may not be 

required to submit to any other search that would otherwise be 

unlawful.”1

 The United States Court of Appeals for the Fourth 

Circuit upheld this condition, ruling that “[t]hese criteria 

impose meaningful restrictions, guaranteeing that the searches 

are justified by the State’s ‘special needs,’ not merely its 

interest in law enforcement.” United States v. Midgette, 478 

F.3d 616, 624 (4th Cir.), cert. denied, 551 U.S. 1157 (2007). 

The court also rejected the argument that the condition was 

defective because it did not require individualized suspicion 

that the probationer possessed contraband. The court noted that 

 1

 The North Carolina General Assembly amended the statute in 

2009, making this condition mandatory for all probationers 

rather than discretionary. 2009 N.C. Sess. Laws 372. 
24 

the Supreme Court of the United States has upheld suspicionless 

searches in furtherance of a special need when the search was 

reasonably tailored. Id. (citing Board of Educ. v. Earls, 536 

U.S. 822 (2001) (upholding suspicionless drug testing of 

students involved in extracurricular activities); Michigan Dep’t 

of State Police v. Sitz, 496 U.S. 444 (1990) (affirming 

suspicionless sobriety checks of motorists in order to reduce 

the safety hazards posed by drunk drivers); Skinner v. Railway 

Labor Executives' Ass'n, 489 U.S. 602 (1989) (upholding 

suspicionless urine and blood tests of certain railroad 

employees); Bell v. Wolfish, 441 U.S. 520 (1979) (upholding 

suspicionless visual body-cavity searches of detainees following 

contact visits)). Thus, a search condition need not be 

predicated on individualized suspicion when a special need 

“justifie[s] the ‘degree of impingement upon privacy’ authorized 

by” the condition. Id. 

As noted above, the circuit court’s particularized findings 

in this case (specifically Murry’s ability to conceal his sexual 

crimes against his stepdaughter from his family and associates 

for several years) could lead the court reasonably to conclude 

that suspicionless searches are necessary to ensure Murry’s 

compliance with the unchallenged condition prohibiting his 

unsupervised contact with minors. If it were to do so on 

remand, it might determine that former N.C. Gen. Stat. § 15A-
25 

1343(b1)(7) provided a roadmap for imposing a constitutionally 

tailored search condition.2

Finally, I emphasize that a criminal defendant has no right 

to suspension of any part of the sentence imposed by the trial 

court. As the majority notes, Code § 19.2-303 permits that 

“[a]fter conviction, whether with or without jury, the court may

suspend imposition of sentence or suspend the sentence in whole 

or part and in addition may place the defendant on probation 

under such conditions as the court shall determine.” (Emphasis 

added.) 

Accordingly, while a defendant may appeal a probation 

condition on the grounds that it is unreasonable, Anderson, 256 

Va. at 585, 507 S.E.2d at 341, nothing prevents a trial court 

from declining to suspend any part of a valid sentence in the 

first place (thereby requiring the defendant to serve the entire 

 2

 The probation condition set out in former N.C. Gen. Stat. 

§ 15A-1343(b1)(7) did not require probationers to submit to 

searches of their personal effects. However, predatory adults 

often use mobile phones for illicit contact with minors. E.g., 

Klewer v. Commonwealth, Record No. 0791-11-3, 2012 Va. App. 

LEXIS 315, at *5-6 (Oct. 9, 2012) (unpublished) (upholding the 

conviction for electronic solicitation of a minor, in violation 

of Code § 18.2-374.3(C), of teacher who exchanged text messages, 

photographs, and videos with a minor former student by mobile 

phone). Following the Supreme Court’s holding in Riley v. 

California, 573 U.S. ___, ___, 134 S.Ct. 2473, 2485 (2014), that 

officers must generally secure a warrant before conducting such 

a search of mobile phone data, it may not be unreasonable to 

require that a probationer subject to a condition prohibiting 

unsupervised contact with minors submit to searches of mobile 

phones and similar devices to ensure that they have not been 

used to facilitate the proscribed contact. 
26 

term in confinement) if it determines that no reasonable 

conditions would make suspension “compatible with the public 

interest.” See Griffin v. Cunningham, 205 Va. 349, 354, 136 

S.E.2d 840, 844 (1964). 

JUSTICE McCLANAHAN, dissenting. 

I dissent for the reasons stated in the Court of Appeals 

opinion, Murry v. Commonwealth, 62 Va. App. 179, 743 S.E.2d 302 

(2013).