### 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 Ju dicial 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 af ter a jury found him guilty of drug, paraphernalia and firearm possession. Whit e argues officers conducted a warrantless, suspicionless probationary search and violated his constitutional rights against unreasonable searches and seizure s. Reasonable suspicion of White’s roommate violating probation supported the initial search of the home, and discovery of evidence in plain view permissibly expan ded 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 prob ation officers as directed, even after an encounter with probation officers instr ucting him to contact the probation office by the end of the following week. Ten days af ter the roommate’s deadline to report, probation officers visited the home to cont act the roommate or White. White had not reported to probation officers for six we eks at the time of the search. [¶3] Upon arrival at the home, a third-party told the officers n either 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 r oommate or White. The search did not yield White or the roommate, but officers discov ered a scale in plain view in one of the bedrooms. Officers expanded the search afte r the discovery and

1recovered 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 se arch, arguing that failure to report to probation officers is not sufficient to su pport a probationary search. The district court found a totality of the circumstances provid ed reasonable suspicion for the search based on the roommate’s failure to report to pro bation officers. The district court found the officers permissibly expanded the sear ch after discovering a scale with suspected drug residue in plain view in one of the b edrooms. 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 motionto suppress because actions by the officers amounted to a suspicionless search in v iolation of his Fourth Amendment rights against unreasonable searches and seizures. H e claims the search violated Fourth Amendment rights because the officers lacked re asonable suspicion to initiate the search of the home. [¶6] When reviewing a district court’s decision regarding a moti on to suppress, we defer to the district court’s findings of fact to resolve confl icts 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 “su fficient 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 leg al 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 probationarysearches, we interpret

2the North Dakota Constitution to provide the same protections f or 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 t o balance the degree to which the search intrudes upon an individual’s privacy again st the degree to which the search is needed to promote legitimate government interests

. Ballard , at ¶¶ 8 , 34

. [¶8] In United States v. Knightsthe Supreme Court considered the totality of circumstances, balanced government and private interests and he ld a probationary search was reasonable when it was supported by reasonable suspi cion 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 punishm ents ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service. Inherent in the verynature of probation is that probationers do not enjoy the absolute lib erty to which every citizen is entitled. Just as other punishments for criminal convictions curtail an offender’s freedoms, a court granting pr obation may impose reasonable conditions that deprive the offender of s ome 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 socie ty 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 po tential 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 p arolee or prisoner has

3a lesser expectation of privacy than a probationer and the gove rnment interests are substantial. Id . at 850-53. [¶10] This Court considered the constitutionality of probationar y searches in Ballard

. 2016 ND 8, 874 N.W.2d 61. Using the totality of the circumstan ces test, a majority of this Court held a suspicionless search of an unsupervised pr obationer 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 prob ationers and the State claimed the failure of the roommate to report to probatio n 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 pri vacy 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 suspicio n 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 j udicial 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 t o report to probation officers at reasonable times and as directed by the court or th e probation officer. N.D.C.C. § 12.1-32-07(4)(k). Those probation conditions may su bject a probationer’s residence to a warrantless search. N.D.C.C. § 12.1-32-07(4)(n)

.

4[¶13] The conditions of supervised probation for both White and the roommate included requirements to report to probation officers as instru cted, inform the probation department of changes of address and submit to person al and property searches conducted by law enforcement. While the roommate repo rted to probation officers upon his release from incarceration, he did not make f urther contact as directed. On March 1, 2017, probation officers spoke to the ro ommate while on-duty for an unrelated matter. Probation officers directed the roomm ate 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 attem pt 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 p robation officers and authorized by a condition of pr obation subjecting the home to a warrantless search. The search was constitutionally reasonable, and the district co urt did not err in denying the motion to suppress.

III [¶14] After examining the record we conclude, under the totalityof the circumstances, reasonable suspicion of the roommate’s probationviolation 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 evid ence. We affirm the criminal judgment. [¶15] Daniel J. Crothers Lisa Fair McEvers Jon J. Jensen Jerod E. Tufte Gerald W. VandeWalle, C.J.

5