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 P ublic Defender; Tanya Dvarishkis, Deputy Public Defender, Billings, Montana For Respondent: Honorable Mike McGrath, Attorn ey 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:

__________________________________________ ClerkJustice W. William Leaphart delive red the Opinion of the Court. ¶1 Montana’s Thirteenth Judicial District Court, Yellowston e County, sentenced Kristin Anne Moody to a two-ye ar deferred sentence based on three separate charges. Prior to sentencing, Moody filed objections to several probation conditions recommended in the pre-sentence investiga tion (PSI) report. The Distri ct Court nonetheless imposed most of the proposed conditions. Moody no w appeals. We affirm on the following issues: ¶2 1. Does requiring a probationer to ke ep her home open and available for the probation officer to visit at all ti mes violate the Montana Constitution? ¶3 2. Did the District Court properly impos e a travel restriction as a condition of Moody’s probation? BACKGROUND ¶4 In responding to a report on May 7, 20 04, 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 an d Ostermiller approach ed 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 me dical attention. Smelling of alcohol and unsteady on her feet, Moody swore at the o fficers and refused to perform any field sobriety tests or provide a breath alcohol sa mple. Moody could not find the registration for the vehicle and stated that she did not have any car insu rance. The officers arrested Moody, placing her in handcuffs. When they tried to get Moo dy into the backseat of the patrol vehicle, Moody kicked at Officer Wells , striking him in the face with such force

2that she left a visible boot imprint. Ev entually the officers restrained Moody and transported her to the Yellows tone County Detention Facility. ¶5 The State charged Moody by information wi th 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 misdemea nor 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 th ree 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. Mood y filed an objection to several of the proposed conditions, including 2 a nd 3, which read as follows: 2. The Defendant will no t change [her] place of residence without first obtaining permission from [her] Probation/Parole Officer. The residence must be approved by [h er] Probation & Parole Officer. The Defendant will ma ke the home open an d available for the Probation & Parole Officer to visit as required per policy. The Defendant will not own dangerous/vicious anim als 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 [h er] Probation & Parole Officer. ¶7 Moody objected to the requirement that she make her home “open and available” to her probation officer on th e grounds that this condition obviated the reasonable cause requirement for searches of probationers’ homes, and thus violat ed her constitutional rights of privacy and protection from unreas onable search and seiz ure. Moody also objected to the travel restrict ion, arguing that it i nhibited her constitutiona l rights to travel

3and work and her freedom of as sociation; she also argued th at 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, imposi ng both the second and third probation conditions. Moody appeals. STANDARD OF REVIEW ¶9 We review a District Court’s crim inal 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 k eep her home open and available for the probation officer to visit at all time s violate the Mont ana 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 proba tioners’ residences, as well as Admin. R. M. 20 .7.1101(7), governing conditions on probation. Because we conclude that a “home visit” to a probatio ner’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 reas onable 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 le ss than the probable cause sta ndard required by the Fourth Amendment because of the prob ationer’s diminished expecta tion 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 th e United States Supreme Cour t 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 caus e was constitutional. Samson v. California , ___ U.S. ___, 126 S. Ct. 2193 (2006). The search in Samson was conducted by a police officer ra ther than a probation officer so the court applied an ordinary Fourth Amendment analys is, 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 hom e; further, since probationers

5such as Moody are much less of a threat than parolees, they have a higher expectation of privacy and freedom from unreasonable sear ches 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 probatio ner’s home to determine whether the individua l is abiding by the conditions of his or her probation— operates as an important check on a proba tioner’s rehabilitation efforts. As the Department of Corrections states in its Probation and Parole Bure au 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 it ems banned by probation rules or court order, conduct a search per P&P 60-4, Searches of Offender’s Person, Vehicle, Residence Confis cation of Offender’s Property);

• observe residence for non-esse ntial items such [as] VCR/ Cable/Computer-Internet capab ilities 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 po tential public safety issues such as high crime area (gang graffiti), schools/parks (sex offenders) or other vulnerable neighbors;

6• assess home environment for officer sa fety (may draft a floor plan of home); and

• require offender to submit to brea thalyzer/urinalysis screening for use of alcohol and/or drugs. Chapter 60, “Sign-Up Procedur e/Supervision Standards.” ¶17 As the above list indicates, probationary restrictions are meant to facilitate rehabilitation and ensure that the commun ity 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 onl y enforcing conditions of superv ision, 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 occu rred, 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, intend ed 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 restri ctive than prison, probation is nonetheless a form of punishment. Although a probationer is restored to “full rights” upon successful completion of state supervision, Arti cle II, Section 28(2), Montana Constitution, a probationer who is still subj ect 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 heighten ed expectations of privacy

7afforded 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 pr obation. We conclude that a convicted felon who is granted probation on a clea rly 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 no t have an actual expect ation 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 e xpectation 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 s upervision, home visits serve to ensure that the supervised felon is abidin g by the conditions of her pr obation, thus addressing the problem of recidivism. As the United Stat es Supreme Court has noted, “‘[t]he very assumption of the institu tion of probation’ is th at the probationer ‘is more likely than the ordinary citizen to violate th e 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). Stud ies suggest that “more intensive supervision can re duce recidivism . . . .” Griffin , 483 U.S. at 875, 107 S. Ct. at 3168. Accordingly, society would not re cognize that expectation as objectively reasonable. ¶21 As to the nature of the state’s intrus ion, home visits are a commonly imposed condition of probation which allow the pr obation officer to determine whether the

8individual 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 whet her a home visit constitu tes 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 (4 th 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 Circ uit 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 probabl e cause requirements of the Fourth Amendment do not apply to a federal probation officer conducting a home visit—a far less invasive form of supe rvision than a sear ch—pursuant to a convicted offender’s cond itions of supervised release. Furthermore, we hold that because home visits “at a ny time” are conducted pursuant to a court-imposed condition of federal supervised release of which the supervisee is aware, and because a hom e 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 reasona ble 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 pr obation officer may not open drawers, cabinets, closets or the like; nor may th e officer rummage thro ugh the probationer’s belongings. While a home visit has the potentia l to turn into a se arch pursuant to an officer’s plain view observatio ns, it must remain within the parameters of a home visit unless or until there is reasonable cau se to engage in a search. ¶25 The dissent argues that the Court has gone astray in its analys is by relying on the fact that Moody was granted probation on th e condition that she submit to home visits. In the dissent’s view, this condition of pr obation “plays no meaningful” role in determining whether the intr usion constitutes a search. Secondly, assuming that the Court has adopted a “consent” rationale for circumventing what wo uld otherwise be a search, the dissent proceeds to argue lack of meaningful consent. ¶26 The “condition of probation” focus, ho wever, is separate from a “consent” analysis. The United States Supreme Court made this ab undantly 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 co ndition and that his acceptance of a clear and unambiguous condition significantly dimi nished his reasonabl e expectation of privacy. In Knights , the probationary search which the Court upheld was predicated on both the probation condition a nd 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

10592 n. 6). Clearly, under both Samson and Knights , the condition of probation (or parole) is not only meaningful but, in th e 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 exp ectation of privacy during her period of supervision, like Knights’ and Samson’s, wa s significantly diminished. Although the dissent likens Moody’s plight to that of a pr isoner in a cell, that is not our holding. A prisoner in a cell has no ex pectation 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 probatione r 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 routin e and reasonable element of supervising a convicted person serving a term of supervised release, are not searches and are thus not subject to the reas onable cause standard. The Dist rict Court, in requiring that Moody consent to home visits as a cond ition 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 im pose a travel restriction as a condition of Moody’s probation?

11¶30 Moody also insists that the District Cour t 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 abso lutely limit her travel beyond the multi-county distri ct, 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 en joy 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 sent encing condition “must have some correlation or connection to the underlyi ng offense for which the defe ndant is being sentenced.” State v. Malloy , 2004 MT 377, ¶ 8, 325 Mo nt. 86, ¶ 8, 103 P.3d 1064, ¶ 8. This of course requires analyzing the condition in the context of the charged o ffense. To be legitimate, the condition must both rehabilitate the defenda nt 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 like ly to re-offend. The deferred sentence permitted Moody the opportunity to addre ss her chemical dependency under the supervision of the probation office. This supervision pr operly includes a travel restriction to allow Moody’s probation offi cer to effectively keep track of her whereabouts in order to ensure that she remains on course with tr eatment. The travel restriction does not prohibit Moody from leav ing her assigned district, it merely requires written permission

12from 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 Cour t 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 Issu e 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 th e use of some other means of gathering evidence, which infringes upon a person’s reasonab le 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 Cour t use the term “hom e visit”; thus, for consistency, I also am us ing the term “home visit.”

13instance, in Hulse v. State, Dept. of Justice , 1998 MT 108, 289 Mo nt. 1, 961 P.2d 75, we held that field sobriety tests, which “cre ate a situation in wh ich police officers may observe certain aspects of an individual’s physical and psychol ogical condition which would not otherwise be observable ,” Hulse , ¶ 32 (emphases added), constitute a search “because an individual’s constitu tionally protected privacy in terests are implicated in both the process of conducting the field sobrie ty 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 driv ing under the influence of alcohol.” Hulse , ¶ 32 (emphasis added). ¶36 When determining whether there has be en an unlawful gover nmental 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 ex pectation 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 subj ect of the search is Moody’ s home. That a person has an actual expectation of privac y in his or her home, which so ciety 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 enco mpasses 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:

14At the risk of belaboring the obvious, pr ivate residences are places in which the individual normally expects priv acy free of governmental intrusion not authorized by warrant, and that expect ation is plainly one that society is prepared to recognize as justifiable. The fundamental purpose of the Fourth Amendment’s prohibition against unreasona ble searches and seizures is to protect the privacy and security of i ndividuals and safegu ard the sanctity of the home against arbitrary invasi ons by governmental officials.
McLees , ¶ 25 (citation and internal quotation marks omitted). And in Scheetz , we recited “the long-standing notion thro ughout this country, but espe cially 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, 87 5, 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 probatio ner’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 personall y 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 7 27. 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 a nd extent of this intrusion are to visually “inspect[]” the probationer’s home; “observe” activities therei n, including evidence of

15“contraband, weapons, illegal or dangerous objects”; “assess ” the home environment; and otherwise gather evidence of probation vi olations. (Significantly, nothing in this definition limits the probation of ficer to plain view observa tions.) 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 pe rsonally 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 o fficer’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 br ought 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 whet her a probationer has an actual expectation of privacy in her home, the Court observes that “probationers do not enjoy the absolute liberty and hei ghtened expectations of priv acy afforded every Montana citizen” but, rather, “are subject to conditi onal liberty properly de pendent upon special restrictions” and, thus, have a “diminishe d 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 ,

162005 MT 180, ¶ 41, 328 Mont . 10, ¶ 41, 116 P.3d 800, ¶ 41 (Leaphart, J., dissenting) (“While [a] citizen may not expect as much pr ivacy 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 co nvicted felon whose pr obation includes a “clearly expressed” condition that she make her home open and ava ilable 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 reason able expectation of privacy that would preclude home visits from taking pl ace.”). This reasoning and the Court’s concomitant reliance on the probationer’s “ ‘unambiguous[]’ aware[ness]” of the probation condition, ¶ 19, howe ver, are entirely unavailing. ¶43 For one thing, the Court’s observation totally misses th e point. The issue at hand is whether the probationer has an actual exp ectation of privacy in her home, not whether she has an actual expectation of privacy “tha t 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. Likewi se, 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 duri ng the period of supervision. ” ¶ 20. Obviously, the probationer does expect that there will be home visits, given that this is a condition of her

17probation. Rather, the question, again, is whether such intrusions are so personally invasive that we require fu rther justification for them. ¶44 Moreover, the question of wh ether an intrusion into a home constitutes a “search” is not contingent on whether the State has pe rmitted the homeowner to have a privacy interest therein. Under the Court’s flaw ed reasoning, the State could vitiate every citizen’s expectation of privacy by the simp le expedient of announcing that, henceforth, homes in this State are subject to suspicio nless 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 c ourse, 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 Fo urth Amendment protection. For example, if the Government were su ddenly to announce on nationwide television that all homes henceforth w ould 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 obvi ously 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 as certaining 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 th is 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 studen ts had consented to the testing); Board of Ed. of Independent Sch. Dist. v. Earls , 536 U.S. 822, 826, 83 2, 122 S.Ct. 2559, 2562, 2566 (2002) (holding that students who consen t to drug testing in or der to participate in any extracurricular activity still have an expectation of privacy, albeit a “limited” expectation). ¶46 Furthermore, it is disingenu ous to suggest that the probationer had a meaningful choice not to consent to such intrusions on her privacy. As Justi ce Stevens succinctly observed in Samson v. California , ___ U.S. ___, 12 6 S.Ct. 2193 (2006): [T]he State’s argument that a Calif ornia parolee “consents” to the suspicionless search conditio n is sophistry. Whethe r or not a prisoner can choose to remain in prison rather th an be released on parole, he has no “choice” concerning the search condition; he may either remain in prison, where he will be subjected to suspicionl ess searches, or he may exit prison and still be subject to suspicionless se arches. Accordingl y, “to speak of consent in this context is to resort to a manifest fiction, for the [parolee] who purportedly waives hi s rights by accepting su ch a condition has little genuine option to refuse.” 5 W. LaFa ve, 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., dissen ting) (second alteration in original, first citation omitted).

19¶47 The same is equally true here. M oody’s “choice” was to accept either suspicionless entries into her home or suspicionless entries in to her prison cell. Such alternatives are hardly the wa iver 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 reco gnized 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 a ny event, the Court’s suggestion that a probationer who “consents” to the “home vis it” condition on her sent ence (because the condition was “clearly expressed” and she wa s “ ‘unambiguously’ aware” of it when she was “granted” probation) expect s only as much privacy in he r 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 e xpectation of privacy in her home is one society is willing to recognize as objectivel y reasonable, the Court reasons that home visits “ensure that the supervised felon is ab iding by the conditions of her probation, thus addressing the problem of recidivism” and th at “ ‘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, 1 20, 122 S.Ct. 587, 592 (2001)). Yet, these are precisely the rationales undergirding the Supreme Cour t’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.

20This Court fails to explain why these rationa les 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 so ciety is willing to recognize as objectively reasonable. As explained above, private re sidences are “places in which the individual normally expects privacy free of governmental intrusion not authorized by warrant, and that expectation is plainly on e that society is prepared to recognize as justifiable.”
McLees , ¶ 25 (internal quotation marks omitte d). 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 office r “to determine whether the individual is abiding by the conditions of pr obation.” ¶ 21. In other words, “home visits” serve verification and evidence-gathering functions—w hich, heretofore, we have referred to as a “search.” To be sure, verifying the pr obationer’s home address and observing the neighborhood for potential public safety issu es 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 pr obationer’s home, is comparatively benign. However, observing the proba tioner’s residence for contra band, weapons, and illegal objects, conducting a visual inspection of th e home, and requiring the probationer to

21submit to breathalyzer or urinalysis screen ing for use of alcohol and drugs certainly constitute an intrusion in to 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 bolste r the result it reaches here w ith 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 (9 th 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 thos e 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 a nd statutory provisions afford persuasive authority on the issue at ha nd, the cases cited by this Court at ¶¶ 22-23 are readily distinguishable, in that the “visits” mentione d in those cases either are undefined (in other words, the contours of a “visit” are not stat ed) or are far less intr usive than the “home visits” under our review. See Workman , 585 F.2d at 1207, 12 08 (referring generically,

22and as dictum, to “warrantless visits to th e probationer’s home or place of employment,” while the dispositive issue wa s “whether a probation offi cer can conduct warrantless searches of his probationer’s premises whenever he has probable cause ” (emphases added)); Reyes , 283 F.3d at 451, 457 (addressing “w hether Reyes, a convicted person serving a term of federal supervised release, had a legitimate expecta tion of privacy in his driveway,” given that a condition on his sent ence 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 officer 2 ); 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 word s, without defining the term 3 ). ¶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 conclu sory 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, discover ed 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 proba tioner’s home may be us ed only in probation violation proceedings; the seiz ed evidence is not admissibl e to prove a new criminal offense. Grubbs , 373 So.2d at 907, 909-10.

23the 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 hom e visit) “may not ope n drawers, cabinets, closets or the like; nor may the officer rumm age through the probationer’s belongings.” ¶ 24. Yet, such restrictions do not appear anywhere in the Department’s policies and procedures concerning supervis ion of probationers. Rather, the Court has simply inserted its own language, unfortunately created from whole cloth and cont rary to the actual record, into the definition of a “home visit.” In point of fact, th e 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) actua lly supports the c onclusion 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 pa rolees under their supervision. In order to fulfill hi s 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 u nderstanding 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

24information can be obtain ed by methods which nece ssitate little or no invasion of the parolee’s privacy, su ch 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 usi ng alcohol or narcotics, whether he is keeping weapons or ot her 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 ma king 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, c itations 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 al cohol or narcotics, whether she is keeping weapons or other contra band in her home, whether she is using or preparing to use her home as a base for improper or unlaw ful 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 abidin g by the conditions of her probation”; to “address[] the problem of reci divism”; and to “pro tect 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 enfor cement is to ensure that the homeowner is abiding by the la w or to protect the safety an d 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 un important impingement upon an individual’s privacy. Rather, as explained earlier, the question of whether an in trusion constitutes a “search” depends on whether the person has an actual (subjective) expe ctation of privacy, whether

25society is willing to recognize that expe ctation 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 probatione r’s rehabilitation efforts, this fact does not determine the nature of the officer’s entry. ¶57 This is not to say that the goals a nd purposes served by “home visits” are irrelevant. To the contrary, this factor be ars 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 Ame ndment ordinarily requires the degree of probability embodied in the term ‘proba ble cause,’ a lesser degree satisfies the Constitution when the balance of government al and private interests makes such a standard reasonable.”). We previously re cognized that the State’s operation of a probation system, like its operation of a scho ol, government office, or prison, or its supervision of a regulated industry, “ ‘p resents “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 theref ore approved a warrantless probationary search conducted upon “reas onable 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 judgm ent 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

26probationer 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 so ciety. The agency, moreover, must be able to proceed on th e basis of its entire experience with the probationer, and to asse ss probabilities in the light of its knowledge of his life, character and circumstances. Griffin , [483 U.S. at 879,] 107 S.Ct. at 31 71. 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 modify ing this balance—inde ed, 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 prob ation officer may enter a probationer’s home— under the guise of a “home visit”—with no gr ounds whatsoever, on any basis the officer deems sufficient (or on no ba sis at all), and in the ab sence 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 supervis ing probationers. See Burke , 235 Mont. at 169, 766 P. 2d at 256 (The probation offi cer’s “continued experience

27with the probationer,” “knowledge of the orig inal offense,” and ju dgment as to “the degree of supervision necessary in each cas e” “strongly militate toward the ‘reasonable grounds’ standard.”). Moreover, reasonabl e grounds may be supplied by this very expertise—i.e., individual-specific know ledge, gained through the supervisory relationship, concerning the probationer’s crim inal history and projec ted likelihood of reoffending. See Griffin , 483 U.S. at 871, 107 S.Ct. at 31 67 (noting that the regulation at issue, which the Court upheld, required the o fficer to consider a variety of factors in determining whether “reasonable grounds” exist, including “the offi cer’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 experi ence with the probationer, and to assess probabilities in the light of its knowledge of his lif e, character, and circumstances”). ¶61 It is counterintuitive that, under this Co urt’s decision today, a probation “search” must be based on “reasonable cause,” since probationers have cond itioned 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 insp ect the home of a person who has conditioned liberty and, therefore, a reduced pr ivacy interest and gath er 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, du ring the visit, the probation officer, as a

28“visitor,” may, nevertheless, obs erve and visually inspect ever yone and everything in the home—with no restriction what soever 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 th at calling something which is, for all intents and purposes, a search a “home vis it” 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 priv acy 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 proba tioner 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 deci ded on June 19, 2006, shortly after we handed down our original Opin ion 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 proba tioners without having “reas onable cause” for doing so. However, neither Samson ’s holding nor the reasoning be hind 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 ch aracterize parolees as having “fewer expectations of privacy than probationers, be cause 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 continuu m of possible punishments, parole is the stronger medicine; ergo, parolees enjoy even le ss of the average citizen ’s absolute liberty than do probationers.’ ” (alter ation in original) (quoting United States v. Cardona , 903 F.2d 60, 63 (1st Cir. 1990))); Samson , 126 S.Ct. at 2201 (“[P]a rolees, in contrast to probationers, ‘have been senten ced 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. 20 04) (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, ther e is enough likelihood th at criminal conduct is occurring that an intrusion on the prob ationer’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 suspicio n” was not before the Court in Samson

. See
Samson , 126 S.Ct. at 2198. ¶66 Second, Samson involved a search of Samson’s pers on on a street, not a search of his house. As explained above, one’s expecta tion of privacy is at its pinnacle in the

30home. See McLees , ¶ 25 (The fundamental purpose of the prohibitions against unreasonable searches and seizures “is to prot ect 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 betwee n these two contexts: the heightened expectation of privacy in the former. ¶67 Third, the suspicionless search syst em 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 jettis oned, it must be replaced with measures to protect against the state actor’s unfettered di scretion.”). In particular, the Court was satisfied that California prohibited “arbitrar y, capricious or harassing” searches. Samson , 126 S.Ct. at 2202 (internal quotation marks omitted). T hus, the Court rejected the argument that California’s parole search law permits “a blanket grant of discretion untethered by any proce dural safeguards.” Samson , 126 S.Ct. at 2202 (internal quotation marks omitted). ¶68 Unfortunately, the same cannot be said ab out 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

31ability to enter and inspect a probationer’s home under the guise of a “home visit” are set forth in this Court’s Opinio n; 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 intrusi on 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 add ition, by the provisi ons of the Montana Constitution. See State v. Tackitt , 2003 MT 81, ¶ 17, 315 Mo nt. 59, ¶ 17, 67 P.3d 295, ¶ 17 (“[S]earch analysis to determine pr oper constitutional criminal procedure in Montana is typically conducted under Arti cle II, Sections 10 and 11 of the Montana Constitution, in addition to th e Fourth Amendment to the Un ited States Constitution.”). In this regard, we have frequen tly stated in the search and seizure context that Montanans are afforded a broader privac y protection under Article II, S ections 10 and 11 of the Montana Constitution than under the Four th 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, 57 1 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 gu arded when the search is conducted in one’s home. Graham , ¶¶ 19-22. Accordingly, Samson does not afford an answer to the question of wh ether, in this State, probati on officers may conduct “home

32visits” 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 us e 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 proba tioner’s home to conduct a “home visit,” as that term is presently defined by the Depart ment of Corrections, constitutes a search. The Court decides ot herwise on the grounds that the probationer was “granted” this condition on her sentence and that hom e visits are one “commonly imposed” condition of probation. However, neither of thes e considerations establishes that the probationer does not ha ve a legitimate expectation of privacy in her home that is infringed by suspicionless intrusions to “i nspect[]” and “observe” for evidence of “contraband, weapons, illegal or dangerous obj ects.” The Court also reasons that home visits “serve to protect the safety and welf are of society.” However, the importance of the goal served by an offi cer’s intrusion into a hom e 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 citi zens of this State are protected only from

un important intrusions, and th e constitutional protections ag ainst unreasonable searches and seizures are meaningless. ¶71 I would require reasonable grounds to con duct the “home visits” at issue here. I dissent from the Court’s contrary conclusion.
/S/ JAMES C. NELSON

33