No. 05-363 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2006 MT 305 

STATE OF MONTANA, 

 Plaintiff and Respondent, 

 v. 

 KRISTI ANNE MOODY, 

 Defendant and Appellant. 

APPEAL FROM: The District Court of the Thirteenth Judicial District, 

In and For the County Yellowstone, Cause No. DC 2002-478, 

Honorable Ingrid G. Gustafson, Presiding Judge 

COUNSEL OF RECORD: 

For Appellant: 

 Penelope S. Strong, Chief Public Defender; Tanya Dvarishkis, 

 Deputy Public Defender, Billings, Montana 

For Respondent: 

 Honorable Mike McGrath, Attorney General; Joslyn M. Hunt and 

 Mark W. Mattioli, Assistant Attorneys General; Helena, Montana 

 Diana Koch, Chief Legal Counsel, Department of Corrections, 

 Helena, Montana 

 Dennis Paxinos, County Attorney, Billings, Montana 

 Submitted on Briefs: August 11, 2006 

 Decided: November 28, 2006 

Filed: 

__________________________________________ 

Clerk 
Justice W. William Leaphart delivered the Opinion of the Court. 

¶1 Montana’s Thirteenth Judicial District Court, Yellowstone County, sentenced 

Kristin Anne Moody to a two-year deferred sentence based on three separate charges. 

Prior to sentencing, Moody filed objections to several probation conditions recommended 

in the pre-sentence investigation (PSI) report. The District Court nonetheless imposed 

most of the proposed conditions. Moody now appeals. We affirm on the following 

issues: 

¶2 1. Does requiring a probationer to keep her home open and available for the 

probation officer to visit at all times violate the Montana Constitution? 

¶3 2. Did the District Court properly impose a travel restriction as a condition of 

Moody’s probation? 

BACKGROUND 

¶4 In responding to a report on May 7, 2004, Officers Wells and Ostermiller of the 

Laurel Police Department came across a gray van that had reached a complete stop in the 

middle of an intersection. Officers Wells and Ostermiller approached the van and found 

Moody, who appeared to be asleep at the wheel. The officers removed Moody from the 

van and verified that she did not need medical attention. Smelling of alcohol and 

unsteady on her feet, Moody swore at the officers and refused to perform any field 

sobriety tests or provide a breath alcohol sample. Moody could not find the registration 

for the vehicle and stated that she did not have any car insurance. The officers arrested 

Moody, placing her in handcuffs. When they tried to get Moody into the backseat of the 

patrol vehicle, Moody kicked at Officer Wells, striking him in the face with such force 

 2
that she left a visible boot imprint. Eventually the officers restrained Moody and 

transported her to the Yellowstone County Detention Facility. 

¶5 The State charged Moody by information with Count I, assault on a police officer, 

a felony in violation of § 45-5-210(1)(a), MCA; Count II, driving under the influence of 

alcohol or drugs, a misdemeanor in violation of § 61-8-401, MCA; and Count III, driving 

without required motor vehicle insurance, a misdemeanor in violation of § 61-6-302, 

MCA. 

¶6 Moody pled guilty to all three counts pursuant to a plea agreement. Prior to 

sentencing, Probation Officer Barry Ivanoff prepared the PSI with recommendations for 

the conditions of Moody’s probation. Moody filed an objection to several of the 

proposed conditions, including 2 and 3, which read as follows: 

2. The Defendant will not change [her] place of residence without first 

obtaining permission from [her] Probation/Parole Officer. The 

residence must be approved by [her] Probation & Parole Officer. 

The Defendant will make the home open and available for the 

Probation & Parole Officer to visit as required per policy. The 

Defendant will not own dangerous/vicious animals such as guard 

dogs, use perimeter security doors, or refuse to open the door of the 

residence when requested. [Emphasis added.] 

3. The Defendant shall not leave [her] assigned district without first 

obtaining written permission from [her] Probation & Parole Officer. 

¶7 Moody objected to the requirement that she make her home “open and available” 

to her probation officer on the grounds that this condition obviated the reasonable cause 

requirement for searches of probationers’ homes, and thus violated her constitutional 

rights of privacy and protection from unreasonable search and seizure. Moody also 

objected to the travel restriction, arguing that it inhibited her constitutional rights to travel 

 3
and work and her freedom of association; she also argued that the restriction was not 

sufficiently related to her rehabilitative needs and did not protect society. 

¶8 At the sentencing hearing, Moody called Officer Ivanoff to testify regarding the 

probation conditions he recommended. After Moody and the State argued their 

respective positions, the District Court issued the sentence, imposing both the second and 

third probation conditions. Moody appeals. 

STANDARD OF REVIEW

¶9 We review a District Court’s criminal sentence for legality only. State v. Eaton, 

2004 MT 283, ¶ 11, 323 Mont. 287, ¶ 11, 99 P.3d 661, ¶ 11. 

DISCUSSION 

¶10 1. Does requiring a probationer to keep her home open and available for the 

probation officer to visit at all times violate the Montana Constitution? 

¶11 Moody argues that Condition 2 of her probation, which requires that she keep her 

“home open and available for the Probation & Parole Officer to visit,” violates the 

reasonable cause standard applied by this Court to searches of probationers’ residences, 

as well as Admin. R. M. 20.7.1101(7), governing conditions on probation. Because we 

conclude that a “home visit” to a probationer’s residence does not qualify as a “search,” 

we affirm the District Court’s ruling. 

¶12 The search of a person may be conducted pursuant to a valid search warrant or in 

accordance with a judicially recognized exception. Section 46-5-101, MCA. In 

Montana, a probation officer may search a probationer’s residence without a warrant so 

long as the officer has reasonable cause for the search. See State v. Roper, 2001 MT 96, 

 4
¶ 12, 305 Mont. 212, ¶ 12, 26 P.3d 741, ¶ 12; State v. Beaudry, 282 Mont. 225, 228, 937 

P.2d 459, 460-61 (1997); State v. Burchett, 277 Mont. 192, 195, 921 P.2d 854, 856 

(1996); State v. Boston, 269 Mont. 300, 305, 889 P.2d 814, 817 (1995); and State v. 

Burke, 235 Mont. 165, 169, 766 P.2d 254, 256-57 (1988). “The ‘reasonable cause’ 

standard is substantially less than the probable cause standard required by the Fourth 

Amendment because of the probationer’s diminished expectation of privacy . . . .” 

Burchett, 277 Mont. at 195-96, 921 P.2d at 856 (citing Burke, 235 Mont. at 169, 766 P.2d 

at 256-57, and Griffin v. Wisconsin, 483 U.S. 868, 107 S. Ct. 3164 (1987)). Admin. 

R. M. 20.7.1101(7) further underscores our precedent by permitting a warrantless search 

of a probationer’s or parolee’s person, vehicle or residence only “upon reasonable cause.” 

¶13 The State points out that the United States Supreme Court has recently held that a 

suspicionless search, conducted pursuant to a California statute requiring parolees to 

agree in writing to be subject to searches with or without cause was constitutional. 

Samson v. California, ___ U.S. ___, 126 S. Ct. 2193 (2006). The search in Samson was 

conducted by a police officer rather than a probation officer so the court applied an 

ordinary Fourth Amendment analysis, rather than engaging in a Griffin “special needs” 

analysis applicable to probationers. Griffin, 483 U.S. at 873, 107 S. Ct. at 3168. The 

State, relying on Samson, contends that if there is no “reasonable cause” requirement for 

a search of a parolee, there should be no such requirement for a less intrusive “home 

visit,” which is not a search. 

¶14 Moody contends that Samson is distinguishable since it involved search of a 

parolee on the street as opposed to a probationer in her home; further, since probationers 

 5
such as Moody are much less of a threat than parolees, they have a higher expectation of 

privacy and freedom from unreasonable searches under the Montana Constitution. 

¶15 The initial inquiry then is whether a “home visit” constitutes a “search” under 

Article II, Section 11, Montana Constitution. 

¶16 A home visit—where the probation officer stops by the probationer’s home to 

determine whether the individual is abiding by the conditions of his or her probation—

operates as an important check on a probationer’s rehabilitation efforts. As the 

Department of Corrections states in its Probation and Parole Bureau Standard Operating 

Procedures, home visits are conducted to address the following: 

• verify offender’s home address; 

• observe and determine lifestyle factors; 

• meet significant others, family members, other residents of home; 

• observe residence for contraband, weapons, illegal or dangerous 

objects (if visual inspection of the residence provides reasonable 

suspicion that the offender has items banned by probation rules or 

court order, conduct a search per P&P 60-4, Searches of Offender’s 

Person, Vehicle, Residence Confiscation of Offender’s Property); 

• observe residence for non-essential items such [as] VCR/ 

Cable/Computer-Internet capabilities if offender’s financial 

obligations to victim, court and bureau are not being met; 

• observe residence for cable/computer/Internet capabilities if offender 

is a sex offender and/or has restrictions; 

• conduct visual inspection of home; 

• observe neighborhood for potential public safety issues such as high 

crime area (gang graffiti), schools/parks (sex offenders) or other 

vulnerable neighbors; 

 6
• assess home environment for officer safety (may draft a floor plan of 

home); and 

• require offender to submit to breathalyzer/urinalysis screening for 

use of alcohol and/or drugs. 

Chapter 60, “Sign-Up Procedure/Supervision Standards.” 

¶17 As the above list indicates, probationary restrictions are meant to facilitate 

rehabilitation and ensure that the community is not harmed by the probationer’s 

conditional liberty status. Burke, 235 Mont. at 169, 766 P.2d at 256. The probation 

officer is charged with not only enforcing conditions of supervision, but also discerning 

any deception by the probationer. United States v. Reyes, 283 F.3d 446, 458 (2d Cir. 

2002). 

¶18 In determining whether a “search” has occurred, we look at three factors: (1) 

whether the person has an actual expectation of privacy; (2) whether society is willing to 

recognize that expectation as objectively reasonable; and (3) the nature of the State’s 

intrusion. State v. Elison, 2000 MT 288, ¶ 48, 302 Mont. 228, ¶ 48, 14 P.3d 456, ¶ 48. 

¶19 “Probation is an act of grace by a sentencing court, intended to give the offender a 

chance to rehabilitate outside the prison setting.” State v. Boulton, 2006 MT 170, ¶ 15, 

332 Mont. 538, ¶ 15, 140 P.3d 482, ¶ 15. Although less restrictive than prison, probation 

is nonetheless a form of punishment. Although a probationer is restored to “full rights” 

upon successful completion of state supervision, Article II, Section 28(2), Montana 

Constitution, a probationer who is still subject to supervision has a diminished 

expectation of privacy. Burchett, 277 Mont. at 195-96, 921 P.2d at 856. Accordingly, 

probationers do not enjoy the absolute liberty and heightened expectations of privacy 

 7
afforded every Montana citizen; rather, they are subject to conditional liberty properly 

dependent upon special restrictions. Beaudry, 282 Mont. at 229, 937 P.2d at 461. Home 

visits are one commonly imposed condition of probation. We conclude that a convicted 

felon who is granted probation on a clearly expressed condition, of which she is 

“unambiguously” aware, that she make her home open and available for the probation 

officer to visit pursuant to state policy does not have an actual expectation of privacy that 

would preclude home visits. United States v. Knights, 534 U.S. 112, 119, 122 S. Ct. 587, 

591-92 (2001). Since there is no actual expectation of privacy, there is no search. 

¶20 Even assuming arguendo that a probationer had an actual expectation that there 

would be no home visits during the period of supervision, home visits serve to ensure that 

the supervised felon is abiding by the conditions of her probation, thus addressing the 

problem of recidivism. As the United States Supreme Court has noted, “‘[t]he very 

assumption of the institution of probation’ is that the probationer ‘is more likely than the 

ordinary citizen to violate the law.’ The recidivism rate of probationers is significantly 

higher than the general crime rate.” Knights, 534 U.S. at 120, 122 S. Ct. at 592 (citing 

studies) (quoting Griffin, 483 U.S. at 880, 107 S. Ct. at 3172). Studies suggest that “more 

intensive supervision can reduce recidivism . . . .” Griffin, 483 U.S. at 875, 107 S. Ct. at 

3168. Accordingly, society would not recognize that expectation as objectively 

reasonable. 

¶21 As to the nature of the state’s intrusion, home visits are a commonly imposed 

condition of probation which allow the probation officer to determine whether the 

 8
individual is abiding by the conditions of probation and thus serve to protect the safety 

and welfare of society. 

¶22 Other courts addressing the issue of whether a home visit constitutes a search have 

concluded that, although such visits can evolve into a search, the initial visit is not a 

search. See United States v. Workman, 585 F.2d 1205, 1208 (4th Cir. 1978) (superseded 

on other grounds); Latta v. Fitzharris, 521 F.2d 246 (9th Cir. 1975), cert. denied 423 U.S. 

897 (1975). The Second Circuit Court of Appeals in Reyes, 283 F.3d at 460-62, upheld a 

plain view discovery of contraband in the context of a home visit of a probationer 

pursuant to a probation condition permitting home visits at any time. The appeals court 

reasoned that such visits are a necessary incident to probationary supervision and 

concluded: 

Accordingly, consonant with the Supreme Court’s holding in Knights that 

“no more than reasonable suspicion” was required to search a state 

probationer’s home when that search was authorized by a condition of 

probation, we hold that the probable cause requirements of the Fourth 

Amendment do not apply to a federal probation officer conducting a home 

visit—a far less invasive form of supervision than a search—pursuant to a 

convicted offender’s conditions of supervised release. Furthermore, we 

hold that because home visits “at any time” are conducted pursuant to a 

court-imposed condition of federal supervised release of which the 

supervisee is aware, and because a home visit is far less intrusive than a 

probation search, probation officers conducting a home visit are not subject 

to the reasonable suspicion standard applicable to probation searches under 

Knights. 

Reyes, 283 F.3d at 462. 

¶23 A probationer has no reasonable expectation of privacy that would preclude home 

visits from taking place. See also State v. Guzman, 990 P.2d 370 (Or. App. 1999); 

Grubbs v. State, 373 So.2d 905, 908-10 (Fla. 1979). 

 9
¶24 Since a home visit is not a search, a probation officer may not open drawers, 

cabinets, closets or the like; nor may the officer rummage through the probationer’s 

belongings. While a home visit has the potential to turn into a search pursuant to an 

officer’s plain view observations, it must remain within the parameters of a home visit 

unless or until there is reasonable cause to engage in a search. 

¶25 The dissent argues that the Court has gone astray in its analysis by relying on the 

fact that Moody was granted probation on the condition that she submit to home visits. 

In the dissent’s view, this condition of probation “plays no meaningful” role in 

determining whether the intrusion constitutes a search. Secondly, assuming that the 

Court has adopted a “consent” rationale for circumventing what would otherwise be a 

search, the dissent proceeds to argue lack of meaningful consent. 

¶26 The “condition of probation” focus, however, is separate from a “consent” 

analysis. The United States Supreme Court made this abundantly clear in Knights where, 

although the Court specifically declined to address the issue of “consent,” it nonetheless 

noted that the probation order clearly set out the probation search requirement; that 

Knights was “unambiguously” aware of the condition and that his acceptance of a clear 

and unambiguous condition significantly diminished his reasonable expectation of 

privacy. In Knights, the probationary search which the Court upheld was predicated on 

both the probation condition and reasonable suspicion. In 2006, the Court in Samson 

addressed the question left unresolved in Knights—whether the search would have been 

reasonable under the Fourth Amendment had it been solely predicated upon the condition 

of probation. Samson, 126 S. Ct. at 2198 (citing Knights ̧ 534 U.S. 120 n. 6, 122 S. Ct. at 

 10
592 n. 6). Clearly, under both Samson and Knights, the condition of probation (or parole) 

is not only meaningful but, in the words of the Court, “salient” (Knights, 534 U.S. at 118, 

122 S. Ct. at 491; Samson, 126 S. Ct. at 2199) and can be dispositive of the issue of 

whether a probationer has an expectation of privacy that society would recognize as 

legitimate. 

¶27 In the present case, Moody was granted probation on certain conditions of which 

she was “unambiguously” aware. Her expectation of privacy during her period of 

supervision, like Knights’ and Samson’s, was significantly diminished. Although the 

dissent likens Moody’s plight to that of a prisoner in a cell, that is not our holding. A 

prisoner in a cell has no expectation of privacy. See Samson; New Jersey v. T.L.O., 469 

U.S. 325, 105 S. Ct. 733 (1985); and Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194 

(1984). Under our holding today, a probationer has an expectation of privacy during her 

period of supervision, albeit significantly diminished. The enclosed areas of a 

probationer’s residence (closets, cabinets, drawers and the like) cannot be searched 

without reasonable cause. 

¶28 In conclusion, we hold that home visits, as a routine and reasonable element of 

supervising a convicted person serving a term of supervised release, are not searches and 

are thus not subject to the reasonable cause standard. The District Court, in requiring that 

Moody consent to home visits as a condition of probation, did not violate Moody’s 

constitutional rights to privacy or right to be free from unreasonable searches. 

¶29 2. Did the District Court properly impose a travel restriction as a condition 

of Moody’s probation? 

 11
¶30 Moody also insists that the District Court erred by imposing Condition 3, requiring 

that she obtain written permission from her probation officer before leaving her assigned 

district. Although Moody concedes that this condition does not absolutely limit her travel 

beyond the multi-county district, she nonetheless argues that the condition improperly 

places her rights at the mercy of the supervising officer. We disagree. 

¶31 Since probation is a form of punishment, probationers do not enjoy the absolute 

liberty afforded every citizen; rather, they are subject to conditional liberty properly 

dependent on special restrictions. Beaudry, 282 Mont. at 229, 937 P.2d at 461. We have 

held that for a condition to be reasonably related to the objectives of rehabilitation and 

protection of the victim and society, a sentencing condition “must have some correlation 

or connection to the underlying offense for which the defendant is being sentenced.” 

State v. Malloy, 2004 MT 377, ¶ 8, 325 Mont. 86, ¶ 8, 103 P.3d 1064, ¶ 8. This of course 

requires analyzing the condition in the context of the charged offense. To be legitimate, 

the condition must both rehabilitate the defendant and help protect society from further 

similar conduct. Malloy, ¶ 8. 

¶32 In this case, the offense resulted from Moody’s admitted problem with alcohol. 

Unless Moody maintains sobriety, she is likely to re-offend. The deferred sentence 

permitted Moody the opportunity to address her chemical dependency under the 

supervision of the probation office. This supervision properly includes a travel restriction 

to allow Moody’s probation officer to effectively keep track of her whereabouts in order 

to ensure that she remains on course with treatment. The travel restriction does not 

prohibit Moody from leaving her assigned district, it merely requires written permission 

 12
from her probation officer. In light of our mandate that a probation restriction both 

rehabilitate the defendant and help protect society from further similar conduct, we 

conclude that the District Court properly imposed Condition 3. 

¶33 Affirmed. 

 /S/ W. WILLIAM LEAPHART 

We concur: 

/S/ KARLA M. GRAY 

/S/ JOHN WARNER 

/S/ BRIAN MORRIS 

Justice James C. Nelson, concurring and dissenting. 

¶34 I concur in the Court’s resolution of Issue 2, but I dissent from its decision on 

Issue 1. 

¶35 I cannot agree that a “home visit”1

 is not a search. We have defined a “search” as 

“a visual examination, or the use of some other means of gathering evidence, which 

infringes upon a person’s reasonable expectation of privacy.” State v. Carlson, 198 

Mont. 113, 119, 644 P.2d 498, 501 (1982); accord State v. Scheetz, 286 Mont. 41, 46, 

950 P.2d 722, 724-25 (1997); State v. Elison, 2000 MT 288, ¶ 48, 302 Mont. 228, ¶ 48, 

14 P.3d 456, ¶ 48; State v. Roper, 2001 MT 96, ¶ 14, 305 Mont. 212, ¶ 14, 26 P.3d 741, 

¶ 14; State v. Boyer, 2002 MT 33, ¶ 39, 308 Mont. 276, ¶ 39, 42 P.3d 771, ¶ 39. For 

 1

 The Department of Corrections uses the term “home contact” in its procedures 

manual. However, the parties and the Court use the term “home visit”; thus, for 

consistency, I also am using the term “home visit.” 

 13
instance, in Hulse v. State, Dept. of Justice, 1998 MT 108, 289 Mont. 1, 961 P.2d 75, we 

held that field sobriety tests, which “create a situation in which police officers may 

observe certain aspects of an individual’s physical and psychological condition which 

would not otherwise be observable,” Hulse, ¶ 32 (emphases added), constitute a search 

“because an individual’s constitutionally protected privacy interests are implicated in 

both the process of conducting the field sobriety tests and in the information disclosed by 

the tests,” Hulse, ¶ 33. We also based this conclusion on the fact that “law enforcement 

officers use field sobriety tests as investigative tools to assist them in discovering and 

arresting persons driving under the influence of alcohol.” Hulse, ¶ 32 (emphasis added). 

¶36 When determining whether there has been an unlawful governmental intrusion 

into one’s privacy in search and seizure situations, we look at the following factors: 

(1) whether the person has an actual expectation of privacy; (2) whether 

society is willing to recognize that expectation as objectively reasonable; 

and (3) the nature of the State’s intrusion. 

Elison, ¶ 48; see also Hulse, ¶ 22; Scheetz, 286 Mont. at 48, 950 P.2d at 726. 

¶37 In the case at hand, the subject of the search is Moody’s home. That a person has 

an actual expectation of privacy in his or her home, which society is willing to recognize 

as objectively reasonable, is beyond dispute. Indeed, in State v. Graham, 2004 MT 385, 

325 Mont. 110, 103 P.3d 1073, we observed that “[a]lthough the right to be free from 

unreasonable searches and seizures encompasses more than the home, the home, 

nonetheless, is historically the raison d’être for the constitutional protection.” Graham, 

¶ 22. Similarly, in State v. McLees, 2000 MT 6, 298 Mont. 15, 994 P.2d 683, we stated 

as follows: 

 14
At the risk of belaboring the obvious, private residences are places in which 

the individual normally expects privacy free of governmental intrusion not 

authorized by warrant, and that expectation is plainly one that society is 

prepared to recognize as justifiable. The fundamental purpose of the Fourth 

Amendment’s prohibition against unreasonable searches and seizures is to 

protect the privacy and security of individuals and safeguard the sanctity of 

the home against arbitrary invasions by governmental officials. 

McLees, ¶ 25 (citation and internal quotation marks omitted). And in Scheetz, we recited 

“the long-standing notion throughout this country, but especially in Montana, that a 

person’s residence and his homestead are secure from unwarranted government intrusion, 

be it by physical or technological means.” Scheetz, 286 Mont. at 48, 950 P.2d at 726 

(citing State v. Bullock, 272 Mont. 361, 901 P.2d 61 (1995), and State v. Siegal, 281 

Mont. 250, 934 P.2d 176 (1997)). 

¶38 Such an expectation of privacy is legitimately held by probationers. See Griffin v. 

Wisconsin, 483 U.S. 868, 875, 107 S.Ct. 3164, 3169 (1987) (The “permissible degree [of 

impingement upon a probationer’s privacy] is not unlimited.”); Griffin, 483 U.S. at 873, 

107 S.Ct. at 3168 (“A probationer’s home, like anyone else’s, is protected by the Fourth 

Amendment’s requirement that searches be ‘reasonable.’ ”). 

¶39 As for the nature of the State’s intrusion, we consider “whether the state’s method 

of investigation is so personally invasive that we recognize the intrusion as a search that 

requires further justification, such as a warrant or other special circumstances.” Scheetz, 

286 Mont. at 50, 950 P.2d at 727. Here, even a cursory examination of the Department of 

Corrections’ definition of a “home visit” (see the bullet-pointed items in ¶ 16 of the 

Court’s Opinion) discloses that the purpose and extent of this intrusion are to visually 

“inspect[]” the probationer’s home; “observe” activities therein, including evidence of 

 15
“contraband, weapons, illegal or dangerous objects”; “assess” the home environment; and 

otherwise gather evidence of probation violations. (Significantly, nothing in this 

definition limits the probation officer to plain view observations.) Such an intrusion 

certainly qualifies as “a visual examination, or the use of some other means of gathering 

evidence,” Carlson, 198 Mont. at 119, 644 P.2d at 501, which is “so personally invasive” 

as to constitute a search, Scheetz, 286 Mont. at 50, 950 P.2d at 727—particularly since, as 

the Court itself acknowledges, the probation officer’s purpose is to “enforc[e]” conditions 

of supervision and “discern[]” any deception by the probationer. 

¶40 Thus, given that “[t]he home is the most sanctified of all ‘particular places,’ ” 

Graham, ¶ 22, and that the purpose and extent of a probation officer’s “home visit” is to 

inspect the probationer’s home and gather evidence of noncompliance with probation 

conditions, the impingement on privacy brought about by such an intrusion 

unquestionably is a “search.” 

¶41 The Court’s contrary conclusion rests on a fundamentally erroneous application of 

the factors set forth in Elison. First, with respect to whether a probationer has an actual 

expectation of privacy in her home, the Court observes that “probationers do not enjoy 

the absolute liberty and heightened expectations of privacy afforded every Montana 

citizen” but, rather, “are subject to conditional liberty properly dependent upon special 

restrictions” and, thus, have a “diminished expectation of privacy.” ¶ 19. These 

observations, while true, do not establish that a probationer has no actual expectation of 

privacy in her home. Indeed, it goes without saying that a “diminished expectation of 

privacy” is not a nonexistent expectation of privacy. See State v. 1993 Chevrolet Pickup, 

 16
2005 MT 180, ¶ 41, 328 Mont. 10, ¶ 41, 116 P.3d 800, ¶ 41 (Leaphart, J., dissenting) 

(“While [a] citizen may not expect as much privacy in the garbage that she sets out for 

collection as, say, the defendants in Siegal did in their compound, this is not to say that 

she expects none.” (emphasis added, citation omitted)). 

¶42 The Court reasons, in addition, that a convicted felon whose probation includes a 

“clearly expressed” condition that she make her home open and available for a probation 

officer to visit “does not have an actual expectation of privacy that would preclude home 

visits.” ¶ 19; see also ¶ 23 (“A probationer has no reasonable expectation of privacy that 

would preclude home visits from taking place.”). This reasoning and the Court’s 

concomitant reliance on the probationer’s “ ‘unambiguous[]’ aware[ness]” of the 

probation condition, ¶ 19, however, are entirely unavailing. 

¶43 For one thing, the Court’s observation totally misses the point. The issue at hand 

is whether the probationer has an actual expectation of privacy in her home, not whether 

she has an actual expectation of privacy “that would preclude home visits from taking 

place.” No one is arguing that the State is precluded altogether from conducting home 

visits. Rather, the question is whether a home visit constitutes a “search,” which in turn 

would require further justification—such as a warrant or other special circumstances—

not a complete ban. Likewise, no one has suggested that a probationer whose sentence 

includes the home visit condition could possibly have “an actual expectation that there 

would be no home visits during the period of supervision.” ¶ 20. Obviously, the 

probationer does expect that there will be home visits, given that this is a condition of her 

 17
probation. Rather, the question, again, is whether such intrusions are so personally 

invasive that we require further justification for them. 

¶44 Moreover, the question of whether an intrusion into a home constitutes a “search” 

is not contingent on whether the State has permitted the homeowner to have a privacy 

interest therein. Under the Court’s flawed reasoning, the State could vitiate every 

citizen’s expectation of privacy by the simple expedient of announcing that, henceforth, 

homes in this State are subject to suspicionless intrusions under the guise of “home 

visits.” However, as the Supreme Court explained in Smith v. Maryland, 442 U.S. 735, 

99 S.Ct. 2577 (1979): 

Situations can be imagined, of course, in which [the] two-pronged 

inquiry [of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967)] would 

provide an inadequate index of Fourth Amendment protection. For 

example, if the Government were suddenly to announce on nationwide 

television that all homes henceforth would be subject to warrantless entry, 

individuals thereafter might not in fact entertain any actual expectation of 

privacy regarding their homes, papers, and effects. . . . In such 

circumstances, where an individual’s subjective expectations had been 

“conditioned” by influences alien to well-recognized Fourth Amendment 

freedoms, those subjective expectations obviously could play no meaningful 

role in ascertaining what the scope of Fourth Amendment protection was. 

In determining whether a “legitimate expectation of privacy” existed in 

such cases, a normative inquiry would be proper. 

Smith, 442 U.S. at 740 n.5, 99 S.Ct. at 2580 n.5 (emphasis added). For this reason, the 

fact that a probationer’s sentence includes a condition that she make her home open for 

“visits” plays “no meaningful role” in ascertaining whether the probation officer’s 

intrusion constitutes a search—particularly when it is the validity of the probation 

condition itself that is at issue. 

 18
¶45 In a similar vein, the Court is also mistaken to suggest that a “home visit” is not a 

search because the probationer had notice of and consented to this condition on her 

sentence. See ¶ 19. To the contrary, the officer’s intrusion may be a “search” 

nonetheless. See Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 650, 652, 115 S.Ct. 

2386, 2389, 2390 (1995) (holding that random urinalysis drug testing of students 

participating in interscholastic athletics constitutes a “search” subject to the demands of 

the Fourth Amendment, even though the students had consented to the testing); Board of 

Ed. of Independent Sch. Dist. v. Earls, 536 U.S. 822, 826, 832, 122 S.Ct. 2559, 2562, 

2566 (2002) (holding that students who consent to drug testing in order to participate in 

any extracurricular activity still have an expectation of privacy, albeit a “limited” 

expectation). 

¶46 Furthermore, it is disingenuous to suggest that the probationer had a meaningful 

choice not to consent to such intrusions on her privacy. As Justice Stevens succinctly 

observed in Samson v. California, ___ U.S. ___, 126 S.Ct. 2193 (2006): 

[T]he State’s argument that a California parolee “consents” to the 

suspicionless search condition is sophistry. Whether or not a prisoner can 

choose to remain in prison rather than be released on parole, he has no 

“choice” concerning the search condition; he may either remain in prison, 

where he will be subjected to suspicionless searches, or he may exit prison 

and still be subject to suspicionless searches. Accordingly, “to speak of 

consent in this context is to resort to a manifest fiction, for the [parolee] 

who purportedly waives his rights by accepting such a condition has little 

genuine option to refuse.” 5 W. LaFave, Search and Seizure: A Treatise on 

the Fourth Amendment § 10.10(b), pp. 440-441 (4th ed. 2004). 

Samson, 126 S.Ct. at 2206 n.4 (Stevens, J., dissenting) (second alteration in original, first 

citation omitted). 

 19
¶47 The same is equally true here. Moody’s “choice” was to accept either 

suspicionless entries into her home or suspicionless entries into her prison cell. Such 

alternatives are hardly the waiver this Court implies. See State v. Olson, 2002 MT 211, 

¶ 20, 311 Mont. 270, ¶ 20, 55 P.3d 935, ¶ 20 (“The knowing and voluntary consent by a 

citizen to a search is a recognized exception to the warrant requirement. The prosecution 

carries the burden of establishing that consent to a warrantless search was freely and 

voluntarily given and uncontaminated by any express or implied duress or coercion.” 

(emphases added, citation omitted)). In any event, the Court’s suggestion that a 

probationer who “consents” to the “home visit” condition on her sentence (because the 

condition was “clearly expressed” and she was “ ‘unambiguously’ aware” of it when she 

was “granted” probation) expects only as much privacy in her home as does a prisoner in 

his cell is, in the final analysis, pure conjecture lacking any foundation. 

¶48 With respect to whether a probationer’s expectation of privacy in her home is one 

society is willing to recognize as objectively reasonable, the Court reasons that home 

visits “ensure that the supervised felon is abiding by the conditions of her probation, thus 

addressing the problem of recidivism” and that “ ‘more intensive supervision can reduce 

recidivism’ ” (citing Griffin, 483 U.S. at 875, 880, 107 S.Ct. at 3168, 3172, and United 

States v. Knights, 534 U.S. 112, 120, 122 S.Ct. 587, 592 (2001)). Yet, these are precisely 

the rationales undergirding the Supreme Court’s approval of the “reasonable grounds” or 

“reasonable suspicion” standard in Griffin and Knights. See Griffin, 483 U.S. at 875, 

878-80, 107 S.Ct. at 3169, 3171-72; Knights, 534 U.S. at 119-21, 122 S.Ct. at 591-93. 

 20
This Court fails to explain why these rationales now, suddenly, justify elimination of the 

standard altogether. 

¶49 Again, the question under the first two Elison factors is whether the probationer 

has an actual expectation of privacy that society is willing to recognize as objectively 

reasonable. As explained above, private residences are “places in which the individual 

normally expects privacy free of governmental intrusion not authorized by warrant, and 

that expectation is plainly one that society is prepared to recognize as justifiable.” 

McLees, ¶ 25 (internal quotation marks omitted). The fact that the probationer’s 

expectation of privacy is “diminished” (¶ 19 of the Court’s Opinion) merely justifies the 

lesser standard of “reasonable grounds” approved by the Supreme Court in Griffin and 

Knights and adopted by this Court in State v. Burke, 235 Mont. 165, 169-71, 766 P.2d 

254, 256-57 (1988). It does not justify an intrusion based on no standard whatsoever. 

¶50 Lastly, with respect to the nature of the State’s intrusion, the Court acknowledges 

that “home visits” enable a probation officer “to determine whether the individual is 

abiding by the conditions of probation.” ¶ 21. In other words, “home visits” serve 

verification and evidence-gathering functions—which, heretofore, we have referred to as 

a “search.” To be sure, verifying the probationer’s home address and observing the 

neighborhood for potential public safety issues do not infringe a probationer’s reasonable 

expectation of privacy. Even meeting the probationer’s family, which does not 

necessarily require an intrusion into the probationer’s home, is comparatively benign. 

However, observing the probationer’s residence for contraband, weapons, and illegal 

objects, conducting a visual inspection of the home, and requiring the probationer to 

 21
submit to breathalyzer or urinalysis screening for use of alcohol and drugs certainly 

constitute an intrusion into the home by the State which infringes a reasonable 

expectation of privacy and which should be made only upon “reasonable grounds.” 

¶51 The Court attempts to bolster the result it reaches here with citations to the same 

five cases cited in the State’s brief for the proposition that a home visit is not a search—

namely, United States v. Workman, 585 F.2d 1205 (4th Cir. 1978), Latta v. Fitzharris, 

521 F.2d 246 (9th Cir. 1975), United States v. Reyes, 283 F.3d 446 (2nd Cir. 2002), State 

v. Guzman, 990 P.2d 370 (Or.App. 1999), and Grubbs v. State, 373 So.2d 905 (Fla. 

1979). See ¶¶ 22-23. However, the courts in those cases were interpreting the Fourth 

Amendment (Workman, Latta, Reyes, and Grubbs), Oregon statutes (Guzman), and the 

Florida Constitution (Grubbs), whereas the issue with which we have been presented, 

according to this Court, is whether “requiring a probationer to keep her home open and 

available for the probation officer to visit at all times violate[s] the Montana 

Constitution” (emphasis added). It is axiomatic that we, not the United States Courts of 

Appeals, the Court of Appeals of Oregon, and the Supreme Court of Florida, are the 

authoritative expositors of the Montana Constitution. 

¶52 But, at a more fundamental level, even if the decisions of courts in other 

jurisdictions based on other constitutional and statutory provisions afford persuasive 

authority on the issue at hand, the cases cited by this Court at ¶¶ 22-23 are readily 

distinguishable, in that the “visits” mentioned in those cases either are undefined (in other 

words, the contours of a “visit” are not stated) or are far less intrusive than the “home 

visits” under our review. See Workman, 585 F.2d at 1207, 1208 (referring generically, 

 22
and as dictum, to “warrantless visits to the probationer’s home or place of employment,” 

while the dispositive issue was “whether a probation officer can conduct warrantless 

searches of his probationer’s premises whenever he has probable cause” (emphases 

added)); Reyes, 283 F.3d at 451, 457 (addressing “whether Reyes, a convicted person 

serving a term of federal supervised release, had a legitimate expectation of privacy in his 

driveway,” given that a condition on his sentence was that he permit a probation officer 

to “visit” him at any time at home or elsewhere and permit confiscation of any 

contraband observed “in plain view” by the probation officer2

); Guzman, 990 P.2d at 374 

(“[T]he authority to conduct a home visit does not carry with it the authority to inspect 

private areas of the residence.”); Grubbs, 373 So.2d at 908, 909-10 (also referring to 

“visit” generically—in other words, without defining the term3

). 

¶53 Simply labeling something a “home visit” does not afford an answer. Because the 

intrusions at issue in the foregoing cases were, in substance, not as invasive as the “home 

visit” at issue here, the Court’s reliance on those cases is, therefore, misplaced. 

¶54 The same is true of the State’s conclusory assurance that the Department of 

Corrections “distinguishes between home visits and probationary searches.” The State 

fails to point to any such distinction in the Department’s policies and procedures. Indeed, 

 2

 In Reyes, the probation officers “walk[ed] on the driveway toward the backyard 

to determine whether anyone was at home” and, in so doing, discovered marijuana plants 

in plain view in Reyes’s yard. Reyes, 283 F.3d at 450. 

3

 Notably, the Grubbs court held that evidence discovered in plain view by a 

probation officer during a “visit” to a probationer’s home may be used only in probation 

violation proceedings; the seized evidence is not admissible to prove a new criminal 

offense. Grubbs, 373 So.2d at 907, 909-10. 

 23
the State provides no explanation whatsoever of what a probation officer may do in a 

probationary search that the officer may not do in the course of a home visit. The Court 

assumes that the probation officer (during a home visit) “may not open drawers, cabinets, 

closets or the like; nor may the officer rummage through the probationer’s belongings.” 

¶ 24. Yet, such restrictions do not appear anywhere in the Department’s policies and 

procedures concerning supervision of probationers. Rather, the Court has simply inserted 

its own language, unfortunately created from whole cloth and contrary to the actual 

record, into the definition of a “home visit.” In point of fact, the home visits under our 

review instruct probation officers, without qualification, to “inspect[]” the probationer’s 

home and, during that inspection, to “observe” for evidence of contraband, weapons, and 

illegal or dangerous objects and “require” the probationer to submit to breathalyzer and 

urinalysis screening for use of alcohol or drugs—all of which, in substance, constitutes a 

search. 

¶55 Notably, Latta (cited by the Court at ¶ 22) actually supports the conclusion that a 

“home visit” is a search. In Latta, the Ninth Circuit, in the context of addressing whether 

a parole officer’s “warrantless search of [a parolee’s] home violated the Fourth 

Amendment,” Latta, 521 F.2d at 248, observed as follows: 

The purposes of the parole system give the parole authorities a 

special and unique interest in invading the privacy of parolees under their 

supervision. In order to fulfill his dual responsibilities for helping the 

parolee to reintegrate into society and evaluating his progress, and for 

preventing possible further antisocial or criminal conduct by the parolee, it 

is essential that the parole officer have a thorough understanding of the 

parolee and his environment, including his personal habits, his relationships 

with other persons, and what he is doing, both at home and outside it. It is 

equally important that this information be kept up to date. Much of this 

 24
information can be obtained by methods which necessitate little or no 

invasion of the parolee’s privacy, such as interviews with the parolee 

himself or with his employer, family, or friends and visits to his house. 

However, these techniques have inherent limitations. For example, it may 

be impossible to determine whether a parolee is using alcohol or narcotics, 

whether he is keeping weapons or other contraband in his home, whether 

he is using or preparing to use his home as a base for improper or unlawful 

activities, whether he is making a real effort to obtain employment, or the 

general nature of his home environment, without conducting some type of 

search. 

Latta, 521 F.2d at 249-50 (emphases added, citations omitted). It is this same 

information that the probation officers conducting the “home visits” under our 

consideration seek to obtain: whether the probationer is using alcohol or narcotics, 

whether she is keeping weapons or other contraband in her home, whether she is using or 

preparing to use her home as a base for improper or unlawful activities, and the general 

nature of her home environment—all of which involve “some type of search.” 

¶56 The Court points out that “home visits” serve important goals and purposes—

namely, to “ensure that the supervised felon is abiding by the conditions of her 

probation”; to “address[] the problem of recidivism”; and to “protect the safety and 

welfare of society.” ¶¶ 20, 21. These observations, however, miss the mark. The 

purpose of virtually every entry into a home by law enforcement is to ensure that the 

homeowner is abiding by the law or to protect the safety and welfare of society. This 

does not mean that the entries, therefore, are not searches. Article II, Section 11, does not 

define a “search” as a mere unimportant impingement upon an individual’s privacy. 

Rather, as explained earlier, the question of whether an intrusion constitutes a “search” 

depends on whether the person has an actual (subjective) expectation of privacy, whether 

 25
society is willing to recognize that expectation as objectively reasonable, and the 

nature—not importance—of the State’s intrusion. Thus, while home visits may indeed 

operate as an important check on a probationer’s rehabilitation efforts, this fact does not 

determine the nature of the officer’s entry. 

¶57 This is not to say that the goals and purposes served by “home visits” are 

irrelevant. To the contrary, this factor bears on the degree of certainty or suspicion 

required to support the officer’s decision to intrude. See Knights, 534 U.S. at 121, 122 

S.Ct. at 592 (“Although the Fourth Amendment ordinarily requires the degree of 

probability embodied in the term ‘probable cause,’ a lesser degree satisfies the 

Constitution when the balance of governmental and private interests makes such a 

standard reasonable.”). We previously recognized that the State’s operation of a 

probation system, like its operation of a school, government office, or prison, or its 

supervision of a regulated industry, “ ‘presents “special needs” beyond normal law 

enforcement that may justify departures from the usual warrant and probable cause 

requirements.’ ” Burke, 235 Mont. at 168-69, 766 P.2d at 256 (quoting Griffin, 483 U.S. 

at 873-74, 107 S.Ct. at 3168). We therefore approved a warrantless probationary search 

conducted upon “reasonable grounds.” Burke, 235 Mont. at 169-71, 766 P.2d at 256-57. 

In so doing, we reasoned that a probation officer “must be able to supervise the 

probationer, and upon his judgment and expertise, search the probationer’s residence or 

cause it to be searched.” Burke, 235 Mont. at 171, 766 P.2d at 257. 

¶58 The “reasonable grounds” standard was sufficient, we held in Burke, to 

accommodate two often opposing interests: the probation officer’s duty to supervise the 

 26
probationer and the probationer’s reduced, but nevertheless existent, privacy interest. 

Quoting Griffin, we reasoned as follows: 

[T]he probation agency must be able to act based upon a 

lesser degree of certainty than the Fourth Amendment would 

otherwise require in order to intervene before a probationer 

does damage to himself or society. The agency, moreover, 

must be able to proceed on the basis of its entire experience 

with the probationer, and to assess probabilities in the light of 

its knowledge of his life, character and circumstances. 

Griffin, [483 U.S. at 879,] 107 S.Ct. at 3171. Thus, the special needs of the 

probation system strongly militate toward the “reasonable grounds” 

standard. 

Burke, 235 Mont. at 169, 766 P.2d at 256 (first alteration in original). 

¶59 With no apparent justification for modifying this balance—indeed, as noted above, 

the Court merely reiterates the exact rationales by which we approved the “reasonable 

grounds” standard in the first place, compare Burke, 235 Mont. at 169-71, 766 P.2d at 

256-57, with ¶¶ 17, 20, 21 of the Court’s Opinion—the Court today lowers the bar in 

favor of no standard at all. Now, a probation officer may enter a probationer’s home—

under the guise of a “home visit”—with no grounds whatsoever, on any basis the officer 

deems sufficient (or on no basis at all), and in the absence of any programmatic 

safeguards to ensure evenhandedness. 

¶60 Yet, nothing in the record supports the notion that the “reasonable grounds” 

standard inhibits a probation officer from supervising the probationer or renders the 

officer’s expertise meaningless. Indeed, we adopted the reasonable grounds standard 

precisely to accommodate probation officers’ expertise in supervising probationers. See 

Burke, 235 Mont. at 169, 766 P.2d at 256 (The probation officer’s “continued experience 

 27
with the probationer,” “knowledge of the original offense,” and judgment as to “the 

degree of supervision necessary in each case” “strongly militate toward the ‘reasonable 

grounds’ standard.”). Moreover, reasonable grounds may be supplied by this very 

expertise—i.e., individual-specific knowledge, gained through the supervisory 

relationship, concerning the probationer’s criminal history and projected likelihood of reoffending. See Griffin, 483 U.S. at 871, 107 S.Ct. at 3167 (noting that the regulation at 

issue, which the Court upheld, required the officer to consider a variety of factors in 

determining whether “reasonable grounds” exist, including “the officer’s own experience 

with the probationer”); Griffin, 483 U.S. at 879-80, 107 S.Ct. at 3171-72 (suggesting that 

the reasonable grounds standard accommodates a probation agency’s need “to proceed on 

the basis of its entire experience with the probationer, and to assess probabilities in the 

light of its knowledge of his life, character, and circumstances”). 

¶61 It is counterintuitive that, under this Court’s decision today, a probation “search” 

must be based on “reasonable cause,” since probationers have conditioned liberty and, 

therefore, a reduced privacy interest (see ¶ 24 of the Court’s Opinion; see also Roper, 

¶ 12); yet, by the simple expedient of calling a “search” a “visit,” we do away with the 

reasonable cause requirement altogether, even though the object of the exercise is 

precisely the same: to inspect the home of a person who has conditioned liberty and, 

therefore, a reduced privacy interest and gather evidence of probation violations. The 

fact that the probation officer may rummage through drawers and personal belongings in 

a “search,” but may not do so in a “visit” (see ¶ 24 of the Court’s Opinion), seems a 

slender reed of distinction indeed when, during the visit, the probation officer, as a 

 28
“visitor,” may, nevertheless, observe and visually inspect everyone and everything in the 

home—with no restriction whatsoever in the Department of Corrections’ definition of a 

“home visit” that the officer is limited to “plain view” observations—and require the 

probationer to give breath and urine samples. 

¶62 In sum, I cannot agree that calling something which is, for all intents and 

purposes, a search a “home visit” necessarily changes what probation officers are actually 

doing: seeking and gathering evidence. Nor can I agree that by the simple expedient of 

renaming a search a “home visit,” the privacy of a presumably innocent probationer 

becomes subject to greater infringement (given that the Court requires no cause for a 

“home visit”) than is the privacy of a probationer of whom the probation officer actually 

has a reasonable suspicion of wrongdoing. 

¶63 Before concluding, it is appropriate to address the extensive arguments presented 

to us by Moody and the State based on Samson v. California, ___ U.S. ___, 126 S.Ct. 

2193 (2006), which the Supreme Court decided on June 19, 2006, shortly after we 

handed down our original Opinion in the case at hand. In Samson, the Supreme Court 

held that the Fourth Amendment does not prohibit a police officer from conducting a 

suspicionless search of a parolee. Samson, 126 S.Ct. at 2202. In other words, the Court 

upheld a search that was based solely on the subject’s status as a parolee. Samson, 126 

S.Ct. at 2196. The State argues that in light of this holding, probation officers may 

conduct “home visits” of probationers without having “reasonable cause” for doing so. 

However, neither Samson’s holding nor the reasoning behind it sustains the State’s 

position. 

 29
¶64 First, Samson involved the search of a parolee, not a probationer. Notably, the 

Samson majority went to great lengths to characterize parolees as having “fewer 

expectations of privacy than probationers, because parole is more akin to imprisonment 

than probation is to imprisonment.” Samson, 126 S.Ct. at 2198. See, e.g., Samson, 126 

S.Ct. at 2198 (“ ‘[O]n the Court’s continuum of possible punishments, parole is the 

stronger medicine; ergo, parolees enjoy even less of the average citizen’s absolute liberty 

than do probationers.’ ” (alteration in original) (quoting United States v. Cardona, 903 

F.2d 60, 63 (1st Cir. 1990))); Samson, 126 S.Ct. at 2201 (“[P]arolees, in contrast to 

probationers, ‘have been sentenced to prison for felonies and released before the end of 

their prison terms’ and are ‘deemed to have acted more harmfully than anyone except 

those felons not released on parole.’ ” (quoting United States v. Crawford, 372 F.3d 

1048, 1077 (9th Cir. 2004) (en banc) (Kleinfeld, J., concurring))). 

¶65 Thus, the Court in Samson did not broaden the holding of Knights, supra, that 

“[w]hen 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.” Knights, 534 U.S. at 121, 122 S.Ct. at 593 (emphases added). 

Indeed, the question of whether a probation search is reasonable under the Fourth 

Amendment absent “reasonable suspicion” was not before the Court in Samson. See 

Samson, 126 S.Ct. at 2198. 

¶66 Second, Samson involved a search of Samson’s person on a street, not a search of 

his house. As explained above, one’s expectation of privacy is at its pinnacle in the 

 30
home. See McLees, ¶ 25 (The fundamental purpose of the prohibitions against 

unreasonable searches and seizures “is to protect the privacy and security of individuals 

and safeguard the sanctity of the home against arbitrary invasions by governmental 

officials.” (internal quotation marks omitted)); Graham, ¶ 22 (“[T]he home . . . is 

historically the raison d’être for the constitutional protection.”). To say that a probation 

officer may enter a probationer’s home without reasonable cause because a police officer 

may conduct a suspicionless search of a parolee on the street is to disregard entirely the 

fundamental and crucial difference between these two contexts: the heightened 

expectation of privacy in the former. 

¶67 Third, the suspicionless search system approved by the Supreme Court in Samson

did not, in the Court’s view, give officers “unbridled discretion to conduct searches.” 

Samson, 126 S.Ct. at 2202; see also Samson, 126 S.Ct. at 2204 (Stevens, J., dissenting) 

(“[I]f individualized suspicion is to be jettisoned, it must be replaced with measures to 

protect against the state actor’s unfettered discretion.”). In particular, the Court was 

satisfied that California prohibited “arbitrary, capricious or harassing” searches. Samson, 

126 S.Ct. at 2202 (internal quotation marks omitted). Thus, the Court rejected the 

argument that California’s parole search law permits “a blanket grant of discretion 

untethered by any procedural safeguards.” Samson, 126 S.Ct. at 2202 (internal quotation 

marks omitted). 

¶68 Unfortunately, the same cannot be said about the “home visits” at issue here, the 

implementation of which is not constrained by any standards, guidelines, or procedures at 

all. Indeed, the only parameters imposed on a probation officer’s otherwise unfettered 

 31
ability to enter and inspect a probationer’s home under the guise of a “home visit” are set 

forth in this Court’s Opinion; namely, the officer “may not open drawers, cabinets, 

closets or the like” or “rummage through the probationer’s belongings”—at least not until 

the inspection made possible by the officer’s suspicionless intrusion into the house has 

given him or her reasonable cause to begin rummaging (see ¶ 24 of the Court’s Opinion). 

¶69 Finally—and perhaps most fundamentally—Samson was decided under the Fourth 

Amendment, whereas we are bound, in addition, by the provisions of the Montana 

Constitution. See State v. Tackitt, 2003 MT 81, ¶ 17, 315 Mont. 59, ¶ 17, 67 P.3d 295, 

¶ 17 (“[S]earch analysis to determine proper constitutional criminal procedure in 

Montana is typically conducted under Article II, Sections 10 and 11 of the Montana 

Constitution, in addition to the Fourth Amendment to the United States Constitution.”). 

In this regard, we have frequently stated in the search and seizure context that Montanans 

are afforded a broader privacy protection under Article II, Sections 10 and 11 of the 

Montana Constitution than under the Fourth Amendment to the United States 

Constitution. See Hulse, ¶ 25; State v. Siegal, 281 Mont. 250, 263, 264, 934 P.2d 176, 

183, 184 (1997), overruled in part on other grounds, State v. Kuneff, 1998 MT 287, ¶ 19, 

291 Mont. 474, ¶ 19, 970 P.2d 556, ¶ 19; State v. Bullock, 272 Mont. 361, 384, 901 P.2d 

61, 75 (1995); State v. Sawyer, 174 Mont. 512, 515, 571 P.2d 1131, 1133 (1977), 

overruled in part on other grounds, State v. Long, 216 Mont. 65, 67, 71, 700 P.2d 153, 

155, 157 (1985). This increased protection is even more closely guarded when the search 

is conducted in one’s home. Graham, ¶¶ 19-22. Accordingly, Samson does not afford an 

answer to the question of whether, in this State, probation officers may conduct “home 

 32
visits” without reasonable cause for doing so. See Scheetz, 286 Mont. at 47, 950 P.2d at 

725 (holding that United States v. Place, 462 U.S. 696, 103 S.Ct. 2637 (1983), “is not 

determinative” of whether the government’s use of a drug-detecting canine violates the 

Montana Constitution, since “we have chosen not to ‘march lock-step’ with the United 

States Supreme Court, even when applying nearly identical language”). 

¶70 In conclusion, a probation officer’s entry into a probationer’s home to conduct a 

“home visit,” as that term is presently defined by the Department of Corrections, 

constitutes a search. The Court decides otherwise on the grounds that the probationer 

was “granted” this condition on her sentence and that home visits are one “commonly 

imposed” condition of probation. However, neither of these considerations establishes 

that the probationer does not have a legitimate expectation of privacy in her home that is 

infringed by suspicionless intrusions to “inspect[]” and “observe” for evidence of 

“contraband, weapons, illegal or dangerous objects.” The Court also reasons that home 

visits “serve to protect the safety and welfare of society.” However, the importance of 

the goal served by an officer’s intrusion into a home does not determine the nature of that 

intrusion and, thus, is not a factor by which we determine whether the intrusion 

constitutes a search. Otherwise, the citizens of this State are protected only from 

unimportant intrusions, and the constitutional protections against unreasonable searches 

and seizures are meaningless. 

¶71 I would require reasonable grounds to conduct the “home visits” at issue here. I 

dissent from the Court’s contrary conclusion. 

/S/ JAMES C. NELSON 

 33