No. 93-578 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

STATE OF MONTANA, 

Plaintiff and Respondent, NOV 2 1 1994 

v. 

MONTE CHALMERS BOSTON, 

Defendant and Appellant 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable James E. Purcell, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

William I?. Hooks, Appellate Defender Office, 

Helena, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

Kathy Seeley, Assistant Attorney General, 

Helena, Montana 

Robert M. McCarthy, Butte-Silver Bow 

County Attorney, Brad Newman, Deputy 

County Attorney, Butte, Montana 

Filed: 

Submitted on Briefs: August 25, 1994 

Decided: November 21, 1994 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Defendant Monte Chalrners Boston, while a parolee, was charged 

in the Second Judicial ~istrict Court for Silver Bow County with 

the offense of burglary, in violation of 5 45-6-204 (1) , MCA. In a 

related case, also commenced in the ~istrict Court for silver Bow 

County, Boston was charged with three counts of arson in violation 

of § 45-6-103(1), MCA; and eight counts of felony theft and one 

count of misdemeanor theft, in violation of 5 45-6-301 (1) (b) , MCA. 

Pursuant to a written plea agreement, Boston pled guilty to felony 

burglary in one case, and arson and felony theft in the other case, 

but resewed his right to appeal. Boston was sentenced to 35 years 

in prison with 10 years suspended and 227 days credit for time 

served. Boston's sentence includes time for his status as a 

persistent felony offender. Boston appeals the District Court's 

denial of his motions to suppress evidence taken from warrantless 

searches of his home and storage garage. We affirm. 

We find the following issue dispositive on appeal: 

Did the District Court err when it denied defendant's motions 

to suppress evidence taken from warrantless searches of his home 

and storage garage? 

FACTUAL BACKGROUND 

Boston was paroled in 1990 and, as such, was subject to the 

reqyirernents of a parolee as set forth by the Board of Pardons. 

When Boston was paroled, he signed an agreement stating that he 

would abide by the rules and conditions of parole. Paragraph 7 of 

the State of Montana Conditions of Parole states that l'[u]pon 
reasonable cause, you shall, while on parole or probation, submit 

to a search of your person, vehicle or residence by a Probation/ 

Parole officer, at any time, without a warrant." Boston signed 

this form and specifically initialed this particular condition of 

parole, signifying that he would abide by these conditions. 

Boston's parole was supervised by parole officer John Kelly. 

On approximately January 14, 1993, the Union Bus Terminal in 

Butte was burglarized and the locker and luggage area of the 

terminal was ransacked. 

On January 20, 1993, an arson fire occurred in the National 

Center for Appropriate Technology (NCAT). Tire marks found outside 

the NCAT building were consistent with the tread and size of the 

tires on Boston's vehicle. In addition, a federal agent responding 

to the NCAT fire at approximately 4 a.m. noticed that Boston's 

vehicle, which was parked near his residence, had recently been 

used. There was frost on all the vehicles in the area except his. 

Later, in January 1993, Kelly was asked by the FBI to review 

audio tapes. These audio tapes included a recorded phone call in 

which an individual attempted to extort money from the Mormon 

Church by purporting to have information regarding an earlier arson 

fire at the Mormon Church. This individual told church officials 

that there would be another fire and that he wanted to be paid 

$10,000 for exact details concerning the fire. Kelly identified 

the voice on the audio tape as being that of Boston. 

After listening to the audio tapes and reviewing the evidence 

linking Boston to the NCAT fire, probation officer Kelly authorized 
a search warrant of Boston's residence and obtained a warrant for 

his arrest. After his arrest, Boston verbally consented to a 

search of his residence. 

Kelly was present for much of the search of Boston's residence 

but did not actually perform the search. The search of Boston's 

home revealed some articles possibly linking him to arson fires and 

the burglary. 

In February 1993, probation officer Kelly was again contacted 

by law enforcement agencies and informed that Boston was renting a 

garage at a location separate from his residence. Because Boston 

had informed law enforcement officials that he had no other 

property or storage areas, Kelly, suspecting Boston's involvement 

in the arson, authorized a search of the garage. Kelly was present 

at the scene of the storage garage search, but did not actually 

perform the search. 

On February 19, 1993, an information was filed in the Second 

Judicial District Court for Silver Bow County, charging Boston with 

felony burglary. On March 11, 1993, another information was filed 

in the Second Judicial District Court for Silver Bow County, 

charging Boston with three counts of arson, eight counts of felony 

theft, and one count of misdemeanor theft. 

Separate attorneys were appointed to represent Boston on these 

charges. Both attorneys filed motions to suppress all evidence 

obtained fromthe warrantless searches of Boston's home and storage 

garage. The motions to suppress were denied. 
On September 2, 1993, pursuant to a plea agreement, Boston 

pled guilty to burglary in one case, and guilty to arson and felony 

theft in the other. He was sentenced to 35 years in prison with 

10 years suspended, and was given 227 days credit for time served. 

This sentence included time for Boston's status as a persistent 

felony of fender. In each of the two cases, Boston reserved his 

right to appeal the denial of his motions to suppress. 

DISCUSSION 

Did the District Court err when it denied defendant's motions 

to suppress evidence taken from warrantless searches of his home 

and storage garage? 

When we review a district court's denial of a motion to 

suppress, we will uphold the district court if there is substantial 

credible evidence to support the court's findings of fact, and if 

those findings were correctly applied as a matter of law. State v. 

Rushton (1994), 264 Mont. 248, 254, 870 P.2d 1355 (citing State v. Beach 

(1985), 217 Mont. 132, 147, 705 P.2d 94, 103). 

The Administrative Rules of Montana in effect at the time of 

Boston's parole, and the State of Montana Conditions of Parole, 

govern Boston's conditions of parole and authorize warrantless 

searches of parolees based upon reasonable cause. The 

Administrative Rule in effect at that time, 20.25.702 (11) , ARM, 

which mirrored Paragraph 7 of Boston's conditions of parole, 

provides that: 

Search of Person or Property - The parolee, while on 

parole, shall submit to a search of his person, 
automobile or place of residence by a parole officer, at 

any time of the day or night, with or without a warrant, 

upon reasonable cause as may be ascertained by a parole 

officer. 

In addition to this Administrative Rule, Boston's conditions 

of parole also authorized warrantless searches of his home or 

person based solely upon reasonable cause. Boston signed and 

agreed to these conditions of parole on August 14, 1990. These 

conditions of parole state, in pertinent part, at Paragraph 7, that 

" [ulpon reasonable cause . . . [the parolee] shall, while on parole 

. . . submit to a search of . . . [his] person, vehicle or 

residence by a Probation/Parole Officer, at any time, without a 

warrant. " 

The District Court, in its June 11 and 21, 1993, orders 

denying Boston's motions to suppress, relied on Kelly's testimony 

concerning the circumstances surrounding his decision to authorize 

the searches. In its orders, the District Court found that Kelly 

had reasonable cause to authorize the searches. 

The United States Supreme Court, in Griflinv. Wisconsin (1987), 483 

U.S. 868, 107 S. Ct. 3164, 97 L. Ed. 2d 709, held that a 

warrantless search of a probationer's [or parolee's] home, pursuant 

to a Wisconsin statute providing for such searches on reasonable 

grounds, satisfies the Fourth Amendment. Griffin, 483 U.S. at 872. 

Although searches usually require probable cause and a warrant, 

there are certain exceptions to the warrant requirement. " [W] e 

have permitted exceptions when 'special needs, beyond the normal 

need for law enforcement, make the warrant and probable-cause 
requirement impracticable.'" Grifin, 483 U.S. at 873 (quoting New 

Jerseyv. T.L.0. (1985), 469 U.S. 325, 351). 

Parolees are still being punished and they do not enjoy 

absolute freedom. 

It is always true of probationers (as we have said it to 

be true of parolees) that they do not enjoy 'the absolute 

liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on . . . special . . . restrictions.' 

Griffin, 483 U.S. at 874 (quoting Morrisseyv.Brewer (1972), 408 U.S. 471, 

480). 

This Court adopted the reasoning in Griffin in State v. Burke (1988), 

235 Mont. 165, 766 P.2d 254. In Burke, we held that "[tlhis special 

need [of permitting a greater impingement on the rights of 

probationers and parolees, as stated in GrifJin] is equally 

applicable to the State of Montana." Burke, 766 P.2d at 256. "To 

impose a warrant requirement for residential searches . . . would 

artificially raise a probationer's [or parolee's] privacy interest 

to a level inconsistent with conditional liberty status. Burke, 

766 P.2d at 257. A parolee has conditional liberty and has a 

reduced privacy interest. In Burke, we stated that due to the large 

land mass and mostly rural population of Montana, it would be 

impossible for the parole officers to supervise every probationer 

and, as such, police officers are needed to assist probation 

officers. Burke, 766 P.2d at 257. 
Therefore, police in Montana are an extension of the parole 

and probation system. In this case, the searches of Boston's home 

and storage garage are not facially invalid because they were 

actually performed by police officers rather than the parole 

officer. 

We have held that "[tlhe probation officer must be able to 

supervise the probationer [or parolee], and upon his judgment and 

expertise, search the probationer's [or parolee's] residence or 

cause it to be searched.'' Burke, 766 P. 2d at 257 (emphasis added). 

In the case at hand, officer Kelly supervised Boston and caused his 

house and storage garage to be searched. 

In State v. Hall (1991), 249 Mont. 366, 369, 816 p.2d 438, 440, 

this Court reiterated that "[in] State v. Burke . . . this Court, 

following GnfJin v. Wisconsin . . . set forth the standard for 

probationary searches. That standard irs the reasonable grounds standard, which is 

less strict than the probable cause standard. Hall, 8 16 P. 2d at 4 4 0. 

The warrantless search of a parolee's residence or storage 

areas, such as Bostonls, does not require probable cause, but only 

reasonable grounds. In this case, Boston's probation officer had 

evidence, such as audio tapes, Armor All, gloves, a mask, and bolt 

cutters, linking Boston to the arson fires and the burglary. 

Parole officer Kelly clearly had reasonable grounds to suspect 

parole violations which justified the warrantless searches of 

Boston's home and storage garage. 
There is substantial evidence to support the District Court's 

finding that officer Kelly had reasonable grounds to authorize the 

searches of Boston's home and storage garage. 

We conclude that the District Court did not err when it denied 

the motion to suppress evidence gathered during the searches of 

Boston's home and storage garage. 

The judgment of the District Court is affirmed. 

We concur: 
November 21, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

William F. Hooks 

Appellate Defender 

P.O. Box 200145 

Helena, MT 59620-0145 

Brad Newman 

Deputy County Attorney 

155 West Granite 

Butte, MT 59701 

HON. JOSEPH P. MAZUREK, Attorney General 

Kathy Seeley, Assistant 

Justice Bldg. 

Helena, MT 59620 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA