No. 13918 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

DAVID and ImUREEN MEANS, 

Defefidant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable E. Gardner Brownlee, Judge presiding. 

Counsel of Record: 

For Apppellant : 

Smith, Connor, Van Valkenburg & Larrivee, Missoula, 

Noel Larrivee argued, Missoula, Montana 

.-, 

For Respondent: 

Hon. Mike Freely, Attorney General, Helena, Montana 

Marc ~acikt , Assistant Attorney General, argued, 

Helena, Montana 

Robert Deschamps 111, County Attorney, Missoula, 

Montana 

Submitted: March 8, 1978 

Decided: -MAY J r' -( 1978 r- $-F,-~ , . - 

Filed : hi.. 
Honorable Arnold Olsen, District Judge, delivered the Opinion of 

the Court. 

Defendants appeal the judgment of the District Court, 

Missoula County, convicting them on two counts of criminal possession of dangerous drugs, both felonies, following a trial without 

a jury. 

On September 27, 1976, defendant David Means entered a 

plea of guilty to a charge of criminal possession of dangerous 

drugs. He was subsequently sentenced to serve three years in the 

Montana state prison. Imposition of sentence was suspended and 

David Means was placed on probation. The judgment contained the 

following condition: 

"2. That the Defendant shall submit himself, his 

residence and vehicle to search at any time by 

Probation Officers, Peace Officers or other lawful 

authorities, without a search warrant and without 

the need to show probable cause." 

Counsel for defendant David Means objected to the imposition of 

the condition at the time it was imposed as being violative of 

Fourth Amendment guarantees against unreasonable searches and 

seizures. 

The facts regarding Maureen Keans are the same, except the 

condition in question was imposed as part of a deferred prosecution 

agreement. 

On November 8, 1976, information was received from a confidential informant which indicated to Officer Lambert of the Region 

One Anti-Drug Team that drug trafficking was possibly taking place 

at the residence of defendants. The information was related by a 

neighbor of defendants. The neighbor stated that numerous cars 

were coming to the residence, staying for short periods of time, 

and then leaving. As a result, Officer Lambert, on November 9, 1976, 

began surveillance of defendants' residence. Surveillance for six 

nights revealed that several people, known by the drug team to be 
involved in the drug trade, were continually coming to the residence, 

staying for short periods of time, and leaving. Prior to this 

surveillance, Officer Lambert received information, which he could 

not corroborate, that David Means was selling dangerous drugs at 

the Missoula Vocational Technical School. 

On December 13, 1976, Lambert decided to approach David 

Means and search his residence to see if he was in possession of 

dangerous drugs. Lambert intended to execute the search under the 

warrantless search clause imposed on October 14, 1976. The suppression hearing transcript clearly shows that the officers based 

their search on the probation condition authorizing warrantless 

searches and seizures. On cross-examination, Lambert was asked 

whether defendants requested that a search warrant be produced. The 

officer responded: 

"Yes, Sir. I informed him that we had suspicion 

to believe that there was dangerous drugs in the 

house and that we would search his house, and at 

that point the Defendant asked if we had a search 

warrant. At that point I reminded the Defendant 

that he was under probation and he had accepted 

as part of his probation to allow himself, residence, and vehicle to be searched at any tine by 

a peace officer and at that time we were exercising 

that right." 

As Officers Lambert, Victor and Wicks arrived at defendants' 

residence, David Means was observed walking up to the front door of 

the residence. David Means noticed the officers approaching and 

reacted quickly by going into the house and slamming the door. 

Officer Victor went to the rear of the house while Officers Lambert 

and Wicks went to the front door. Lambert and Wicks detected the 

odor of marijuana emanating from the house. While standing outside 

the door, they also heard what they thought to be a toilet flushing. 

After knocking, Maureen Means opened the door approximately twenty 

seconds thereafter. 
~fter entering the house, Lambert and Wicks immediately 

proceeded to the bathroom where they found David Means standing 

over the toilet and observed marijuana circling in the toilet bowl 

as if it had been flushed. The residence was secured and the accused were informed by Lambert that he had reason to believe there 

were dangerous drugs in the house. The accused were instructed 

to sit down. Prior to taking a seat, David Means was searched by 

Lambert, who found a small paper packet of white powder in the 

shirt pocket of David Means. At that point, David Means was informed that he was under arrest. He reacted to Lambert's discovery 

by slapping the powder out of his hands and resisting Lambert's 

attempts to restrain him. After subduing David Means, the search 

was continued. 

In the bathroom Wicks located marijuana in the toilet bowl 

weighing approximately 20.0 grams, as well as underneath the bathtub 

in a hole in the floor, which weighed 25.7 grams. Wicks also found 

hashish weighing 1.8 grams wrapped in a plastic bag between two 

mattresses on a bed in the bedroom. Victor found another paper bag 

of marijuana, weighing approximately 25 grams, in the back room of 

the house. 

The marijuana and hashish were sent to the Montana State 

Crime Laboratory, where analyses revealed that the suspected substances were what the officers had surmised them to be. The marijuana was found to weigh 70.0 grams in total, and the hashish, 1.8 

grams. 

On April 27, 1977, defendants were convicted of two counts 

of criminal possession of dangerous drugs, following a trial without 

a jury. From this conviction, defendants appeal. 

Defendants contend that in the instant case, the police had 

no probable cause, nor exigent circumstances, which would justify 

the warrantless search. They argue that the law enforcement offi- 
cials accomplished the search and seizure strictly on the basis 

of the probation condition heretofore noted. Defendants maintain 

such a condition is unreasonable and violative of a probationer's 

constitutional rights, for the following reasons: 

1. The consent given by a probationer to such a clause 

is not voluntary; 

2. The condition is not reasonably related to rehabilitation; and 

3. The condition is violative of a probationer's Fourth 

and Fifth Amendment rights. 

Plaintiff contends the law enforcement officers had probable 

cause to believe an offense was being committed in defendants' residence and, because of the presence of exigent circumstances, were 

justified in entering and arresting defendants and searching defendants and their premises immediately under their control. Plaintiff thus argues that, under the facts of this case, the constitutionality of the warrantless search and seizure condition of parole 

and probation status is irrelevant. We agree. 

Section 95-608, R.C.M. 1947, states: 

"A peace officer may arrest a person when: 

"(d) He believes on reasonable grounds, that the 

person is committing an offense or that the person 

has committed an offense and the existing circumstances require his immediate arrest." 

In addition section 95-702(c) and (d), R.C.M. 1947, state: 

"* * *a peace officer may search the person arrested and the area within such person's immediate 

presence for the purpose of: 

"(c) Discovering and seizing the fruits of the 

crime, or 

"(d) Discovering and seizing any persons, instruments, articles or things which may have 

been used in the commission of, or which may 

constitute evidence of, the offense." 
Although no definitive rulings of this Court have been 

made involving these specific facts, this Court has previously 

dealt with cases considering whether the odor of marijuana is a 

factor contributing to probable cause for search and arrest, in 

State v. Hull, (1972), 158 Mont. 6, 487 P.2d 1314 and State v. 

Bennett, (1972), 158 Mont. 496, 493 P.2d 1077. 

In Hull this Court determined defendant's arrest was based 

on reasonable grounds, in compliance with section 95-603(d), R.C.M. 

1947, where prior to their entry arresting officers had received 

information that a "pot party" was in progress, the defendant was 

a guest at the party and the aroma of burning or burnt marijuana 

was emanating from the residence. The officers entered the residence and arrested several persons, one of whom was defendant, even 

though no marijuana was observed visually by the officers at the 

time of their entry. A search of defendant yielded an amphetamine 

tablet. The entry into the house, the arrest of the occupants, and 

the search of their persons and the premises was conducted without 

either an arrest or search warrant. Yet the Court determined the 

entry into the residence for purposes of effecting an arrest and 

searching defendant incident to that arrest constitutionally and 

statutorily permissible. 

In Bennett officers had received information indicating 

drug activity was taking place at defendant's apartment. They had 

also received information that one of the defendants was a drug 

dealer. Based upon this information, the officers went to the 

apartment to investigate. When they arrived, they observed one 

defendant, a suspected drug dealer, enter the apartment. When the 

officers approached the apartment, they noticed the odor of burning 

marijuana emanating from the open door of the apartment. The officers entered the apartment, walked up a short flight of stairs, and 

observed the defendants sitting around a table upon which was mari- 
juana. The defendants were immediately arrested and the marijuana 

seized. The Court held the entry into the apartment to arrest and 

the search incident thereto constitutionally permissible. 

It is clear that Hull and Bennett stand for the proposition 

that the odor of burning or burnt marijuana, together with other 

facts tending to establish probable cause, is sufficient justification for an officer to enter the residence for the purpose of effecting an arrest and searching incident thereto. 

There are additional cases from other jurisdictions, particularly cogent to our inquiry herein. 

In People v. Bock Leung Chew, (1956), 142 Cal.App.2d 400, 

298 P.2d 118, two officers had entered an apartment building, and 

were proceeding to a certain apartment when, walking by the door to 

the defendant's apartment, they smelled opium. The officers were 

admitted to the apartment by the defendant's wife, the sole person 

present. The officers searched the premises and, under the kitchen 

cupboard, found smoking opium. The officers searched the premises 

from 9:15 p.m. until 11:OO p.m., having neither a search warrant 

nor a warrant of arrest. The California Court held that where 

officers detect the odor of a substance, the possession of which 

constitutes a felony, they are justified in believing an offense 

is being committed in their presence and can make immediate entry 

into the residence from which the odor emanates and search such 

residence without first procuring a warrant. 298 P.2d 119. 

Similarly, in Vaillancourt v. Superior Court for County of 

Placer, (1969), 273 Cal.App.2d 791, 78 Cal.Rptr. 615, the Court held 

that police officers had probable cause to enter a hotel room and 

effect an arrest when walking down the hotel hallway, they detected 

the smell of burning marijuana. The Court further stated that the 

smell indicated the contraband was, in fact, being destroyed. 
Relying specifically on People v. Bock Leung Chew, supra, 

is State v. McGuire, (1971), 13 Ariz.App. 539, 479 P.2d 187. In 

McGuire an officer was informed that the smell of burning marijuana 

was coming from an apartment. The officer, upon approaching the 

apartment door, also detected the odor. He further noted a commotion in the apartment before the door was opened, and heard the 

flushing of a toilet. The officer ran into the apartment bathroom 

after admittance, where he found a marijuana cigarette floating in 

the toilet. In holding that the officer had probable cause to enter 

and arrest, the Arizona court stated: 

"The weight of authority, and we believe the better 

rule, holds that the offense is committed in the 

presence of an officer 'when the officer received 

knowledge of the commission of an offense in his 

presence through any of his senses.' * * * 

"The evidence amply demonstrates probable cause 

for the arrest, namely: Schmale's complaint 

verified by the strong odor of burning marijuana 

detected by Wingfield. The prompt police action, 

frustrating the attempted destruction of contraband, was reasonable and incidental to a lawful 

arrest." 479 P.2d 189. 

The identical rationale appears in current cases, as well. 

In State v. Zamora, (1977), 114 Ariz. 75, 559 P.2d 195, the defendant 

on appeal, contested the validity of the search of the trunk of his 

automobile based upon the "very faint" odor of marijuana detected by 

the arresting officer, who had initially stopped the vehicle for a 

speeding violation. The court affirmed the validity of the search. 

Under the facts of the instant case, in addition to the odor 

of marijuana and the flushing of the toilet, which contributed to 

the evidence of probable cause to arrest, there existed the furtive 

conduct of David Means observed by Officers Lambert and Wicks. A 

furtive movement or gesture, in combination with other suspicious 

circumstances, can provide legal justification for a search by the 

officer observing the conduct. People v. Powell, (1974), 40 Cal.App.3d 

107, 115 Cal.Rptr. 109; People v. Conley (1971), 21 Cal.App.3d 894, 
We answer in the affirmative the question of whether 

probable cause to believe an offense was being committed existed, 

thus permitting a warrantless entry into defendants' residence 

to search and arrest. The prior knowledge of defendants' illicit 

drug involvement, the informant's reports concerning David Means' 

drug enterprise at the Missoula Vocational Technical School, the 

surveillance of defendants' residence, the observance of the unusual 

strategy of Maureen Means noted during the surveillance, the furtive 

conduct of David Means when confronted by the police on December 13, 

1976, the recognition of the odor of marijuana by Officers Lambert 

and Wicks, the delay in opening the door, and hearing the flushing 

of the toilet, when considered together, can leave no doubt that 

probable cause existed to enter defendants' residence to search 

and arrest. 

Defendants rely heavily upon the case of Johnson v. United 

States, (1948), 333 U.S. 10, 68 S.Ct. 367, 92 L.ed. 436, to support their contention that a warrant to search should have been 

obtained by Officer Lambert. The facts of Johnson are substantially 

similar to those of the instant case. The reliance by defendants 

upon Johnson, however, is somewhat misplaced. The United States 

Supreme Court did suppress the evidence seized in Johnson, but did 

not indicate that a warrant must be procured to enter a dwelling in 

every event. The Court stated: 

"There are exceptional circumstances in which, 

on balancing the need for effective law enforcement against the right of privacy, it may be 

contended that a magistrate's warrant for search 

may be dispensed with. But this is not such a 

case. No reason is offered for not obtaining 

a search warrant except the inconvenience to the 

officers and some slight delay necessary to prepare papers and present the evidence to a magistrate. * * * No suspect was fleeing or likely to 

take flight. The search was of permanent premises, not of a movable vehicle. No evidence or 

contraband was threatened with removal or destruction, except perhaps the furnes which we 

suppose in time would disappear. * * *" 92 L.ed. 

440-441. 
Thus, the Court inferred, and in fact it has been so held by other 

courts, that had any one of those exceptional circumstances been 

present, no need for a magistrate's warrant would have existed. In 

the case presently before us, there did exist a suspect who was 

fleeing, and contraband or evidence which was threatened with 

removal or destruction. It was proper, then, even under the rationale of Johnson, to proceed without a warrant in this case. 

Further, the prosecution in Johnson conceded the arresting 

officer did not have probable cause to arrest until he entered the 

defendant's apartment, thereby precluding the Court from considering 

the threshold question of whether the officer was justified in 

entering without a warrant to arrest, and the corollary question 

of whether the search was incident to that arrest. 

The State makes no such concession here. Rather the State 

contends probable cause to arrest existed before the police ever 

set one foot inside defendants' residence. Johnson is therefore 

inapplicable here, except insofar as the facts of this case fall 

within the "execptional circumstances" rule. As this Court stated 

in State v. Bennett: 

"Since Johnson in 1948, courts have recognized 

exceptional circumstances which permit entry and 

arrest and expand the narrow view adopted in 

Johnson. * * * " 158 Mont. 502. 

If probable cause to arrest exists before the search takes 

place, it is immaterial that the search preceded the actual arrest, 

provided that the search and arrest are part of one continuous transaction. This rule is grounded on the common sense principles that 

it is often difficult to pinpoint the precise moment of arrest, and 

that it is often necessary, because of exigent circumstances, to 

search first, in order to safeguard evidence, and then make the 

formal arrest. State v. Barnes, (1976), 220 Kan. 25, 551 P.2d 815; 

People v. Wright, (1969), 273 Cal.App.2d 325, 78 Cal.Rptr. 75. 
In addition to verbalizing the rule in the manner described 

above, the court in Barnes explained the rationale behind the rule 

as follows: 

"* * * Under these circumstances a search of 

defendant's person was held valid and evidence 

obtained from the search was admissible at 

trial. The justification for such an intrusion 

is the probable cause to believe that the individual has committed a crime and the need for 

immediate action to prevent the use of weapons 

against the arresting officer or destruction of 

evidence of the crime. (Citing cases.) Postponement of the further intrusion of arrest does 

not remove the justification for the search and 

in no way prejudices the individual's Fourth 

Amendment rights." 551 P.2d 819. 

Such is precisely what occurred in the instant case. Officer 

Lambert had probable cause to believe defendants had committed or 

were committing a crime in his presence. He also had a reason to 

believe that evidence or contraband was threatened with removal or 

d~estruction,tnereby mandating immediate action to prevent such removal or destruction. As a result, Officer Lambert did not arrest 

defendants until after the search had begun, choosing instead to 

preserve the evidence or contraband first, and then to effect an 

arrest. As the cases above indicate, this method of proceeding in 

no way taints the evidence seized prior to the actual arrest. 

We further conclude the search of defendants' residence 

was within the scope of a search incident to an arrest. 

The case of State v. Callaghan, (1964), 144 Mont. 401, 396 

P.2d 821, settled the law in Montana relating to the scope of the 

area to be searched incident to an arrest. This Court, in Callaghan, 

stated: 

"* * * A search nay be made pursuant to a valid 

arrest without a search warrant. United States 

v. Lefkowitz, 285 U.S. 452 (1932); Agnello v. 

United States, 296 U.S. 20 (1925) ; 51 A.L.R. 409. 

It is permissible to search a dwelling where a 

valid arrest had been made there. Harris v. 

United States, 331 U.S. 145 (1947). The objects 

of such a search are the fruits and instrumentalities of the crime. However, the arresting 
officer may not indiscriminately root through 

the dwelling just because there has been an 

arrest there. Carlo v. United States, (2nd 

Cir. C.A. 1961), 286 F.2d 841, cert. denied, 

366 U.S. 944. The search must be reasonable 

in scope." 144 Mont. 407. 

This Court found the search of the dwelling in Callaghan reasonable 

where two men had been arrested in the premises, and the search was 

one of the most likely places where the fruits and instrumentalities 

of the crime might be hidden. 

Here, the scope of the search was for fruits and instrumentalities of the crime, as provided for by section 95-702, R.C.M. 

1947, and was reasonable as mandated by Callaghan. The officers 

did not root through the dwelling simply because of the arrest, but 

rather searched the most likely places of hiding. 

Callaghan defines the arrestee's dwelling, under the circumstances present there, as that within his immediate presence, 

which in turn is referred to in section 95-702 as the permissible 

scope of such a search. Likewise, the search here of defendants' 

dwelling, because of the circumstances, was a search of an area 

within their immediate presence. We find the search as conducted 

here did not infringe upon defendants' constitutional or statutory 

rights. Based upon the foregoing, the search of defendants' residence was not unreasonable, nor overly broad in scope. 

As both the search and arrest were conducted in a constitutionally permissible manner, we affirm the judgment convicting defendants on both counts of criminal possession of dangerous drugs. 

We note there was much emphasis in argument by counsel for 

the parties, and in questions from this Court concerning the validity 

of a condition of probation authorizing a warrantless search of probationers. As our holding above disposes of this case, this issue 

need not be reached in this opinion. However, we determine that 

limited discussion of a central facet of this issue is necessary. 
Defendants contend that execution of a probationer search 

clause by law enforcement officers can never be a proper condition 

of probation. In so arguing, defendants rely primarily upon the 

decision in United States v. Consuelo-Gonzalez, (9th Cir. 1975), 

521 F.2d 259, wherein it was held that execution of a search clause 

by law enforcement personnel was not in keeping with the Federal 

Probation Act, 18 U.S.C. 51351, as amended, although execution of 

such a clause by a probation officer is in keeping with the Act. 

The distinction between probation and police officers is 

attributable to the fact that the Federal Probation Act has been 

interpreted by the federal courts as emphasizing reformation and 

rehabilitation, rather than contemplating the dual objectives of 

rehabilitation and protection of the public. 

The Montana sentencing statute, section 95-2206, R.C.M. 1947, 

states that any reasonable conditions deemed necessary for rehabilitation or for the protection of society may be imposed. Either or both 

of these objectives may be considered when imposing sentence. This 

statute has at no time been interpreted to emphasize rehabilitation 

alone, as has the Federal Probation Act. Thus, we conclude a search 

clause as a condition of probation need not relate solely to the 

objective of rehabilitation. The court, in Consuelo-Gonzalez, admitted as much in stating: 

"* * * It is obvious, however, that opinions 

differ as to what controls are improper, and 

we express no opinion here regarding the extent 

to which the states constitutionally may impose 

conditions more intrusive on the probationer's 

privacy than those we here have indicated are 

proper under the Federal Probation Act. * * *I1 

521 F.2d 266. 

Nonetheless, the distinction drawn by the court in ConsueloGonzalez does nothing but encourage law enforcement personnel to go 

to the probation officer, who can then search the probationer pursuant to the search clause. In our view, such a procedure is nothing 

more than an unnecessary game of obstruction. There is no doubt that 
inquiry into the private life of a probationer is a necessary prerequisite to rehabilitation. As stated by the court in ConsueloGonzalez, "Probation authorities also have a special and unique 

interest in invading the privacy of probationers." 521 F.2d 266. 

The more rational approach is that outlined in People v. 

Bremmer, (1973), 30 Cal.App.3d 1058, 106 Cal.Rptr. 797: 

"* * * A condition of probation that subjects a 

convicted person to search and seizure at any 

time may serve a useful purpose by providing a 

workable alternative to imprisonment of the convicted person. Patently, the constitutional 

rights of a probationer--like the rights of 

those convicts who have been imprisoned--are 

circumscribed by the judgment of conviction and 

are not coterminous with those possessed by persons whose status remains unimpaired by conditions of probation imposed by court order. The 

probationer, like the parolee, has what is euphemistically known as a reduced expectation 

of privacy. (Citing cases.) * * *" 106 Cal.Rptr. 

800. 

In addressing the situation involving execution of a search clause 

by a police officer, the court in Bremmer noted: 

"Since a peace officer's primary concern lies with 

enforcement of the law and not with rehabilitation 

of a probationer, the officer's exercise of authority 

is ordinarily activated by violations, or seeming 

violations, of public order and safety. When a 

known probationer subject to warrantless search is 

discovered conducting himself in a manner that suggests a resumption of the misconduct that brought 

about the condition of probation, a peace officer 

may exercise the authority of a general search order 

to search. The officer's search is a search on suspicion only, but a suspicion grounded on present 

activity as related to past performance. * * *" 106 

Cal. Rptr. 802. 

Under the rationale of Bremmer it is plain that the search 

of defendants in this case was reasonable. The search conducted 

here not only protected the public, but promoted the rehabilitation 

of defendants as well. All have agreed that defendants have benefited-. considerably from the experience of this case. 

We therefore conclude that execution of a probationer 

search clause by law enforcement personnel, being instrumental in 
achieving the objectives of probation, is a proper condition of 

probation. 

The judgment of conviction is therefore affirmed. 

- 4 / // L/LtC LC L c ;'- 2 c <_ 

HWorable Arnold Olsk, District 

Judge, sitting in the vacant seat 

on the Court. 

We Concur: 

- - 

Chief Justice 

Justices 
Mr. Justice Gene B. Daly dissenting: 

I cannot disagree that the majority had the option to 

resolve this case on nonconstitutional grounds, if the same 

existed, and avoid ruling on the constitutional grounds presented 

by defendants. However, the majority involves itself in a long 

discussion of probable cause and at the conclusion makes a 

sweeping all inclusive ruling on the constitutional questions 

presented without discussion or authority, except for a Ninth 

Circuit case which is against the majority's views, United 

States v. Consuelo-Gonzalez, 521 F.2d 259, and a California 

case which is not strong authority inasmuch in State v. 

Merlin T. Battit, Mont . , 574 P.2d 998, 35 St. Rep. 

154 (1978), this Court rejected the California approach to 

this problem and followed more rational jurisdictions . 

The foundation questions presented to this Court for 

review are: 

I. Whether a condition of probation authorizing unlimited 

search and seizure by law enforcement officers violates constitutional guarantees against unreasonable searches and seizures. 

A. ~efendant's consent to unlimited .sear.ch and 

seizure by law enforcement officers was not freely and 

voluntarily. given. 

B. A condition of probation authorizing unlimited 

search and seizure by law enforcement officers is contrary to the purpose of probation as a rehabilitative and 

reformative process. 

C. The warrantless search of the defendant's 

residence was unreasonable because it was unsupported by 

exigent circumstances. 
11. A condition of probation authorizing unlimited search 

and seizure by law enforcement officers violates constitutional 

guarantees against self-incrimination. 

The problem is presently in the early stages of development and definition by the courts. As an example neither the 

United States Supreme Courtmr this Court has studied the 

matter or expressed an opinion. There exists a general split 

of authority among the courts that have treated the issue and 

the trend seems to be toward erpanding a probationer's sphere 

of Fourth Amendment protection. In any event the legal problems 

involved are serious and many. They concern basic human rights 

that are too fragile to be summarily disposed of in the 

cavalier manner engaged by the majority here. 

Mr. Justice Frankfurter stated in Wolf v. Colorado, (1949), 

338 U.S. 25,27, 69 S.Ct. 1359, 93 L ed 2d 1782, 1785, that 

the Fourth Amendment protects the "security of one's privacy 

against arbitrary intrusion by the police." A more recent 

case, Tehan v. Shott, (1966), 382 U.S. 406, 416, 86 S.Ct. 459, 

15 L ed 2d 453,460, reiterated: 

"* * * the guarantees of the Fourth Amendment, stands 

as a protection of quite different constitutional 

values -- values reflecting the concern of our society 

for the right of each individual to be let alone. To 

recognize this is no more than to accord those values 

undiluted respect .I' 

The California courts have taken the position that a 

probationer enjoys only a limited expectation of traditional 

Fourth Amendment protection, and have endorsed the use of the 

warrantless search clause as a condition of probation. People 

v. Brernmer, (1973), 30 Cal.App.3d 1058, 106 Cal.Rptr. 797; 

People v. Mason, (1971), 97 Cal.Rptr. 302, 488 P.2d 630. 
However, the Ninth Circuit Court of Appeals recently 

stated in United States v. Consuelo-Gonzalez, 521 F.2d 259, 265, 

(9th Cir. 1975), that "A probationer, like the-parolee, has the 

right to enjoy a significant degree of privacy.'' Further, that 

a defendant ' s submission to warrantless searches "should not be 

the price of probation." (Emphasis added.) 

More recent state court decisions have adopted the position 

that warrantless search clauses as a condition of probation 

represent an undue infringement upon the probationer's constitutional rights. State v. Page, (1976), 115 Ariz. 131, 564 

P.2d 82; Tamez v. State, (Tex.Cr.App. 1976), 534 S.W.2d 686, 692; 

People v. Peterson, (1975), 62 Mich.App. 258, 233 N.W.2d 250; 

State v. Gansz, (Fla.App. 1974), 297 S.2d 614. 

In Tamez the Texas Court of Criminal Appeals stated: 

'I* * * We conclude that the probationary condition 

in the instant case is too broad, too sweeping and 

infringes upon the probationer's rights under the 

Fourth and Fourteenth Amendments to the United States 

Constitution * * *. The condition imposed would 

literally permit searches, without probable cause or 

even suspicion, of the probationer's person, vehicle 

or home at any time, day or night, by any peace officer, 

which could not possibly serve the ends of probation. 

For example, an intimidating and harassing search to 

serve law enforcement ends totally unrelated to 

either his prior conviction or his rehabilitation is 

authorized by the probationary condition. A probationer, like a parolee, has the right to enjoy a 

significant degree of privacy." (Emphasis added.) 

534 S.W.2d 692. 

In holding a similar probationary condition invalid in 

Gansz, the Florida Appellate court reasoned: 

"The Fourth Amendment puts a restraint on 

the arm of the government and prevents it from 

invading the sanctity of a man's home or his 

private quarters except under safeguards calculated 

to prevent oppression and abuse of authority. It 

297 S.2d 616. 

Striking down a search clause imposed upon a probationer 

the Michigan Court of Appeals in Peterson, stated emphatically: 
"Our research has uncovered many cases from other 

jurisdictions which sustained the same imposition 

of consent to warrantless searches and seizures as 

were here imposed. However, the waiver of protection 

sainst unreasonable searches and seizures is so 

repugnant to the whole spirit of the Bill of Rights 

as to make it alien to the essence of our form of 

jgovernment." (Emphasis added.) 233 N.W.2d 255. 

In Page the Arizona Supreme Court agreed with the defendant's contention that because the search clause imposed 

upon her as a condition of probation gave any peace officer 

the authority to seize and search her person or property without 

a warrant at his unfettered whim, it held the condition overbroad 

and invalid. The court noted: 

"Although the record does not reflect that 

any search has yet been conducted * * * we nevertheless 

decide the issue presented because of the fact that 

defendant's Fourth and Fourteenth Amendment rights have 

been and are being reduced by the Court's existing 

provision." 564 P.2d 83, Footnote 1. 

A probationer does have a right to privacy. Tamez v. 

State, supra. In addition, the United States Supreme Court has 

recognized a right of personal privacy does exist under the 

Constitution. Griswold v. Connecticut, (1965), 381 U.S. 479, 

Montana expressly recongized the right to privacy. It is 

found in its 1972 Constitution, Article 11, Section 10: 

"The right of individual privacy is essential 

to the well-being of a free society and shall not be 

infringed without the showing of a compelling state 

interest .I' 

Speaking on the importance of having this right incorporated into the 1972 Montana Constitution, the Convention's Bill 

of Rights Committee stated: 
"* * * the right of privacy is a right that is 

not expressly stated in either the United States or 

the Montana Constitutions. It is our feeling on the 

Bill of Rights Committee that the times have changed 

sufficiently that this important right should now be 

recognized. * * * In our early history, of course, there 

was no need to expressly state that an individual 

should have a right of privacy. Certainly, back in 

1776, 1789, when they developed our bill of rights, the 

search and seizure provisions were enough, when a man's 

home was his castle and the state could not intrude 

upon this home without the procuring of a search 

warrant with probable cause being stated before a 

magistrate and a search warrant being issued. No other 

protection was necessary and this certainly was the 

greatest amount of protection that any free society 

had given its individuals. In that type of a society, 

of course, the neighbor was maybe three or four miles 

away. There was no real infringement upon the individual and his right of privacy. However, today we 

have observed an increasingly complex society and we 

know our area of privacy has decreased, decreased and 

decreased. * * * as a participating member of society, 

we all recognize that the state must come into our 

private lives at some point, but what it Says is, don't 

come into our private lives unless you have a good reason 

for being there. We feel that this, as a mandate to our 

government, would cause a complete re-examination and 

guarantee our individual citizens of Montana this very 

important right -- the right to be let alone, and 

this has been called the most important right of them 

all. Montana Constitutional Convention, Transcript 

of Proceedings, Vol. 7, 5179-5182 (1972). 

Courts holding that a probationary condition allowing 

unlimited search and seizure by law enforcement officers as valid 

have generally justified their decisions on the rationale that 

a defendant waives Fourth Amendment protection by consenting 

to the terms of probation. See: People v. Mason, supra. The 

crucial issue regarding such a waiver of Fourth Amendment 

rights is whether a defendant's consent to such terms and under 

such conditions can be characterized as free and voluntary, that 

is, free from any coercive influence. 

A study of recent cases ~utIising'the~lfe~~uirenments of a 

consent search should begin with State v. LaFlamme, (1976), 

Mont . , 551 P.2d 1011, 33 St.Rep. 632. The Court cited 

Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L ed 2d 
797, as controlling and restated the rule handed down in Channel 

v. United States, (9th Cir. 1960), 285 F.2d 217, 219: 

"A search and seizure may be made without a 

search warrant if the individual freely and intelligently gives his unequivocal and specific 

consent to the search, uncontaminated by any 

duress or coercion, actual or implied. The Government has the burden of proving by clear and positive evidence that such consent was given." 

285 F.2d 219. 

In Schneckloth v. Bustamonte, (1973), 412 U.S. 218, 93 S. 

Ct. 2041, 36 L ed 2d 854, 863, the Court stated: 

"* * * the Fourth and Fourteenth Amendments require 

that a consent not be coerced, by explicit or implicit 

means, by implied threat or covert force. For, no 

matter how subtly the coercion were applied; the resulting ' consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth 

Amendment is directed." 36 L ed 2d 863. 

The common law has always recognized a man's house as his 

castle, impregnable even to its own officers engaged in the execution of its commands. Warren and Brandeis, The Right to Privacy, 

4 Harvard Law Review 192, 220 (1890). The dissent in United States 

v. Consuelo-Gonzalez, (9th Cir. 1975), 521 F. 2d 259, 274, made 

this astute observation: 

"Consent by the defendant, however, is more 

likely to be nominal than real. A convicted defendant 

will often accept almost any alternative to imprison- 

- ment * * *." (Emphasis added.) 521 F.2d 274. 

In People v. Peterson,(l975),-62 Mich. App. 258, 233 N.W.2d 

250,255, the court held that the blanket search and seizure provisions in the order of probation were invalid. The court stated: 

"* * * But when the waiver is conditioned on the 

surrender of so hallowed a right, the so-called 

choice amounts to no choice at all. We hold the 

probationer's signed acceptance thereof was in 

legal effect coerced and thus rendered nugatory." 

At this point we confront authorities theorizing that 

parole is an act of grace, acceptance of which entails the 
voluntary surrender of curtailment of constitutional rights. 

This rationale is not particularly appealing. It makes constitutional rights dependent upon a kind of "contract" in which one 

side has all the bargaining power. A better doctrine is that the 

state may not attach unconstitutional conditions to the grant of 

state privileges, [probation] . 

A probationer faces a drastic choice. His alternative to 

giving up the constitutional right against unreasonable search 

and seizure is imprisonment. Choosing between the lesser of the 

two evils does not amount to a real choice however, it is 

theref ore coercive. 

A court's allawing a defendant to return to his own abode 

implies that he does not pose an immediate threat to society 

and is sufficiently reliable to not require daily, unlimited 

supervision. A probation condition allowing warrantless search 

"at any time of day or night1' condones such arbitrary supervision. 

Montana's statutes express the dominant purpose of 

rehabilitation through sentences. Under section 95-2206, R.C.M. 

1947, a court upon sentencing may impose "any reasonable 

restrictions", including: 

"* * * 

" (iii) conditions for probation; "*** 

"(v) any other reasonable conditions considered 

necessary for rehabilitation or for the protection 

of society * * *.I1 

A wise judge once said and it applies here, that such 

searches measure the effectiveness of rehabilitation in the 

same manner that one fells a tree to measure its age. It is 

high time that we reocgnize that a person must have the freedom 

to be responsible, if he is to become responsibly free. 
I conclude with the admonition that in addition to the 

brief recital here, there are many more problems related to 

those mentioned herein that necessarily need consideration 

before Montana can assume a respectable position in the matter. 

We must also consider the rights of those who reside with a 

probationer -- his wife, children, mother and others. These 

problems do not go away by just ignoring them. 

I conclude that the judgment of the District Court be 

reversed and the search clause, at least in its present form 

and application be rendered void and unenforceable for the 

reasons given here. 
Mr. Justice Daniel J. . Shea dissenting: 

I concur in the dissent of Justice Daly. 

It is unfortunate that the majority grounds a part 

of its decision on probable cause when it recognizes that 

the police were not proceeding to search the home pursuant 

to a belief that they had probable cause. Rather, they searched 

the home pursuant to the search clause in the conditions of 

probation. 

I do not believe that the police should be permitted 

to buttress their justification of the search by their after 

the fact determination that they had probable cause. If the 

police searched the home pursuant'to the search clause, it 

should not matter that incidentally and in hindsight they 

decide that they had probable cause to search without a search 

warrant and without the search clause provision. The only 

issue this Court should have decided is the validity of the 

search clause provision in the conditions of probation.