Filed 12/6/18 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2018 ND 266

State of North Dakota, Plaintiff and Appellee

v.

Anquine Lamont White, Defendant and Appellant

No. 20180020

Appeal from the District Court of Williams County, Northwest Judicial

District, the Honorable Kirsten M. Sjue, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Laura C. Ringsak (on brief), Bismarck, ND, for defendant and appellant.

Nathan K. Madden (on brief), Williams County Assistant State’s Attorney,

Williston, ND, for plaintiff and appellee.
State v. White

No. 20180020

Crothers, Justice.

[¶1] Anquine White appeals a district court criminal judgment after a jury found

him guilty of drug, paraphernalia and firearm possession. White argues officers

conducted a warrantless, suspicionless probationary search and violated his

constitutional rights against unreasonable searches and seizures. Reasonable

suspicion of White’s roommate violating probation supported the initial search of the

home, and discovery of evidence in plain view permissibly expanded the search. We

affirm the criminal judgment.

I

[¶2] White was on supervised probation for felony drug charges. He lived in

Williston with another individual on supervised probation. Both men reported to the

probation department that the home’s address was their current residence and both

men were subject to residential probationary searches as a condition of probation. 

White’s roommate was on supervised probation approximately two months before the

search of the residence. The roommate failed to report to probation officers as

directed, even after an encounter with probation officers instructing him to contact the

probation office by the end of the following week. Ten days after the roommate’s

deadline to report, probation officers visited the home to contact the roommate or

White. White had not reported to probation officers for six weeks at the time of the

search. 

[¶3] Upon arrival at the home, a third-party told the officers neither the roommate

nor White were available. Based on the probation violation of White’s roommate in

failing to report, the officers searched the premises for the roommate or White. The

search did not yield White or the roommate, but officers discovered a scale in plain

view in one of the bedrooms. Officers expanded the search after the discovery and

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recovered several items of contraband, including paraphernalia, drugs and a firearm. 

Officers found personal effects linking White to the bedroom, and the State charged

him with possession of drugs, paraphernalia and a firearm.

[¶4] White moved to suppress the evidence gathered during the search, arguing that

failure to report to probation officers is not sufficient to support a probationary search. 

The district court found a totality of the circumstances provided reasonable suspicion

for the search based on the roommate’s failure to report to probation officers. The

district court found the officers permissibly expanded the search after discovering a

scale with suspected drug residue in plain view in one of the bedrooms. The district

court denied the motion to suppress evidence and a jury found White guilty.

II

[¶5] White argues the district court erred in denying his motion to suppress because

actions by the officers amounted to a suspicionless search in violation of his Fourth

Amendment rights against unreasonable searches and seizures. He claims the search

violated Fourth Amendment rights because the officers lacked reasonable suspicion

to initiate the search of the home.

[¶6] When reviewing a district court’s decision regarding a motion to suppress, we

defer to the district court’s findings of fact to resolve conflicts in testimony in favor

of affirmance. State v. Kitchen, 1997 ND 241, ¶ 11, 572 N.W.2d 106. We affirm a

district court decision on a motion to suppress if there is “sufficient competent

evidence fairly capable of supporting the court’s findings, and the decision is not

contrary to the manifest weight of the evidence.” State v. Nickel, 2013 ND 155, ¶ 12,

836 N.W.2d 405 (internal quotation marks and citations omitted). Questions of law

are fully reviewable, and whether a finding of fact meets a legal standard is a question

of law. State v. Schmidt, 2015 ND 134, ¶ 5, 864 N.W.2d 265.

[¶7] The Fourth Amendment to the United States Constitution and art. I, § 8, of the

North Dakota Constitution protect individuals from unreasonable searches and

seizures. When reviewing the constitutionality of probationary searches, we interpret

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the North Dakota Constitution to provide the same protections for probationers as

provided by the United States Constitution. State v. Ballard, 2016 ND 8, ¶ 8,

874 N.W.2d 61. We consider the totality of the circumstances to balance the degree

to which the search intrudes upon an individual’s privacy against the degree to which

the search is needed to promote legitimate government interests. Ballard, at ¶¶ 8, 34. 

[¶8] In United States v. Knights the Supreme Court considered the totality of

circumstances, balanced government and private interests and held a probationary

search was reasonable when it was supported by reasonable suspicion and authorized

by a condition of probation. United States v. Knights, 534 U.S. 112, 122 (2001). The

Court in Knights explained probationers have a lesser expectation of privacy: 

“Probation, like incarceration, is a form of criminal sanction imposed

by a court upon an offender after verdict, finding, or plea of guilty.

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

ranging from solitary confinement in a maximum-security facility to a

few hours of mandatory community service. Inherent in the very nature

of probation is that probationers do not enjoy the absolute liberty to

which every citizen is entitled. Just as other punishments for criminal

convictions curtail an offender’s freedoms, a court granting probation

may impose reasonable conditions that deprive the offender of some

freedoms enjoyed by law-abiding citizens.”

Id. at 119 (internal citations and quotation marks omitted). The Court further stated

a probationer may be more likely than ordinary members of society to engage in

future criminal conduct, and therefore the State may justifiably focus on probationers

in a way that it does not focus on ordinary citizens to stop potential criminal conduct

and protect potential victims. Id. at 120-21. The Court did not address whether a

suspicionless search authorized by a condition of probation was reasonable. Id. at

120 n. 6.

[¶9] The Supreme Court considered a parolee’s diminished rights and privacy

interests in Samson v. California and held the suspicionless search of a parolee does

not violate the Fourth Amendment. Samson v. California, 547 U.S. 843, 846 (2006). 

Under the totality of the circumstances the Court explained a parolee or prisoner has

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a lesser expectation of privacy than a probationer and the government interests are

substantial. Id. at 850-53.

[¶10] This Court considered the constitutionality of probationary searches in Ballard.

2016 ND 8, 874 N.W.2d 61. Using the totality of the circumstances test, a majority

of this Court held a suspicionless search of an unsupervised probationer was

constitutionally unreasonable and violated the Fourth Amendment. Id. at ¶¶ 41-42. 

The State’s interest in restraining the liberty of unsupervised probationers is less than

the interest in supervising parolees. Id. at ¶ 41. On the continuum of privacy rights

the unsupervised probationer with minimal probation conditions has a greater

expectation of privacy, and the governmental interests did not outweigh the

unsupervised probationer’s expectation of privacy. Id. Thus, a suspicionless search

was unreasonable under the Fourth Amendment. Id. 

[¶11] The decision in Ballard turned on the suspicionless search of an unsupervised

probationer. Here, White and his roommate were supervised probationers and the

State claimed the failure of the roommate to report to probation officers as directed

created reasonable suspicion to search the home. This case is similar to Knights

because a supervised probationer has a lower expectation of privacy than an

unsupervised probationer, and the State has a greater interest in monitoring

probationers on supervised probation. See Ballard, 2016 ND 8, ¶¶ 35, 37. Under the

totality of the circumstances, no more than reasonable suspicion was required to

conduct a probationary search. See Knights, 534 U.S. at 121, 122 S. Ct. 587.

[¶12] The imposition of conditions of probation is a matter of judicial discretion, and

the trial court is authorized to tailor conditions to meet the particular facts and

circumstances of each case. Davis v. State, 2001 ND 85, ¶ 7, 625 N.W.2d 855. When

imposing probation conditions a court may require individuals to report to probation

officers at reasonable times and as directed by the court or the probation officer. 

N.D.C.C. § 12.1-32-07(4)(k). Those probation conditions may subject a probationer’s

residence to a warrantless search. N.D.C.C. § 12.1-32-07(4)(n).

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[¶13] The conditions of supervised probation for both White and the roommate

included requirements to report to probation officers as instructed, inform the

probation department of changes of address and submit to personal and property

searches conducted by law enforcement. While the roommate reported to probation

officers upon his release from incarceration, he did not make further contact as

directed. On March 1, 2017, probation officers spoke to the roommate while on-duty

for an unrelated matter. Probation officers directed the roommate to report to the

probation office the following week. Ten days after the roommate’s deadline to

report the officers initiated a probationary search in an attempt to locate the roommate

at the home he shared with White. The search was supported by reasonable suspicion

of unlawful activity by the roommate for failing to report to probation officers and

authorized by a condition of probation subjecting the home to a warrantless search. 

The search was constitutionally reasonable, and the district court did not err in

denying the motion to suppress.

III

[¶14] After examining the record we conclude, under the totality of the

circumstances, reasonable suspicion of the roommate’s probation violation supported

the search of White’s home. The evidence supports the district court’s findings and

its decision is not contrary to the manifest weight of the evidence. We affirm the

criminal judgment.

[¶15] Daniel J. Crothers

Lisa Fair McEvers

Jon J. Jensen

Jerod E. Tufte

Gerald W. VandeWalle, C.J.

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