No. 88-48 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsMARCELLA BURKE, CORWIN ROTH, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C.B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Clay R. Smith argued, Asst. Atty. General, Helena 

Larry J. Nistler, County Attorney, Polson, Montana 

For Respondent : 

James E. Handley argued for Roth, Polson, Montana 

Rebecca T. Dupuis, (Burke) Polson, Montana 

Submitted: September 20, 1988 

Decided: December 15, 1988 

c-J -. f .L .A.d' Clerk 

~7 !r - 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This case comes on appeal from the District Court of 

the Twentieth Judicial District, Lake County, Montana, the 

Honorable C. B. McNeil, presiding. The District Court 

dismissed revocation proceedings which resulted from a 

suppression of evidence. At the time of this appeal, 

defendant Roth had completed his probation period. 

Marcella Burke and Corwin Roth pleaded guilty to 

criminal sale of dangerous drugs on February 4, 1987. 

Judgments dated March 4, 1987 were entered imposing deferred 

imposition of sentence under various conditions for six years 

as to Burke and one year as to Roth. Five probation 

conditions are germane to this case: 

1. That the Defendant be placed under 

the jurisdiction of the Adult Probation 

and Parole Division of the State of 

Montana Department of Institutions and 

that he [she] comply with all of the 

terms and conditions established by said 

Division. 

2. That the Defendant is prohibited from 

using or possessing any drugs of any 

kind, unless under the direct supervision 

of a physician. 

4. That the Defendant submit to blood, 

breath, or urine tests, without warrant, 

at the request of his [her] probation 

officer or law enforcement officers, upon 

reasonable cause. 

5. That Defendant submit to search of 

his [her] person, premises or vehicle, 

without warrant, at the request of his 

[her] probation officer or law 

enforcement officers, upon reasonable 

cause. 

6. That the Defendant obtain such drug 

and/or alcohol counseling and/or 
treatment as deemed advisable by his 

[her] probation officer. 

Neither defendants adhered to the requirements of 

contacting their respective probation officers nor obtaining 

alcohol and drug counseling. 

On September 3, 1987, at approximately 11:OO p.m., 

Officer Bruce Phillips of the Lake County Sheriff's 

Department observed Burke in the parking lot of the Diamond 

Horseshoe Bar. Phillips watched various persons leave the 

bar, walk to Burke's automobile, and then return to the bar. 

After requesting assistance, Phillips drove toward the Burke 

vehicle. He exited his car, approached Burke, and requested 

she exit her car. Phillips detected the smell of marijuana 

on Burke's breath and saw Zig-Zag cigarette papers on the 

vehicle's front seat. He then leaned into Burke's vehicle 

from the driver's side and opened the ashtray, finding the 

remnant of a smoked marijuana joint. Phillips contacted 

Burke's probation officer, David Weaver, requesting 

permission to continue the vehicle search. In addition to 

granting permission, Weaver also instructed Phillips to take 

Burke into custody for a possible probation violation. On 

further search, Phillips discovered two baggies containing 

marijuana in a soft-drink carton on the passenger front seat 

area. 

After completion of the vehicle search, Phillips again 

contacted Weaver, obtaining permission to search Burke's 

residence. Residents of the home included Burke, Roth and 

four children. Phillips and three county officials conducted 

the search which revealed marijuana and various drug 

paraphernalia. Roth was arrested for possible probation 

violations at Weaver's direction. This third contact between 

Phil-lips and Weaver occurred at approxi-mately 12 : 35 a.m. 
On September 4, 1987, Weaver and Ron Alsbury, Roth's 

probation officer, issued written authorization to the Lake 

County Sheriff to arrest and hold Burke and Roth for possible 

probation condition violations. At this time, Weaver 

requested a urinalysis of Roth, who indicated his specimen 

would "come hack dirty." Results revealed both marijuana and 

cocaine use. Prior to release, a similar test was performed 

on Burke. Likewise, the results indicated marijuana and. 

cocaine use. 

Burke and Roth posted bond and were released September 

9, 1987. At the District Court's direction, each met with 

their probation officers in the latter's office . Durincj 

Burke's meeting with Weaver, Burke admitted using marijuana. 

Roth also admitted to his probation officer his use of 

marijuana. In a follow-up meeting on September 14, 1987, 

Alsbury advised Roth of his Miranda rights and stated that 

the urine samples indicated both marijuana and cocaine use. 

Roth admitted to snorting cocaine, but denied injecting it 

intravenously. However, on September 28, 1987, Roth told 

Alsbury he had shot cocaine "a couple of times." Reports of 

probation condition violations were filed with respect to 

Burke and Roth on September 14, 1987. 

Burke and Roth filed separate motions to dismiss or 

alternatively, to suppress evidence, arguing the probationary 

conditions were invalid under State v. Fogerty (1980), 187 

Mont. 393, 610 P.2d 140. Relying on the Fogerty decision, 

the District Court concluded the searches were unlawful 

because the vehicle search "was initiated by the arresting 

officer and not initiated at the special request and 

direction of the Defendant's parole officer." The residence 

search was held invalid because it was warrantless. Further, 

the court suppressed admissions and urinalysis results as the 

"fruits of the poisonous tree." 
The State urges this Court to overrule the Fogerty 

decision in light of the United States Supreme Court ruling, 

Griffin v. Wisconsin (1987) , U.S. , 107 S.Ct. 3164, 

97 L.Ed.2d 709, holding that the warrantless search of a 

probationer's home, pursuant to Wisconsin regulation 

replacing the standard of probable cause by "reasonable 

grounds," satisfied the Fourth Amendment. Alternatively, 

appellant alleges the good faith exception to the warrant 

requirement and the inapplicability of the exclusionary rule 

to probation revocation hearings. We find the reasoning of 

Griffin persuasive and therefore need not reach the merits of 

appellant's alternative arguments. 

The Griffin Decision 

In Griffin v. Wisconsin, supra, the defendant was 

convicted of a state law weapons offense. The weapon was 

discovered by his probation officer's supervisor during a 

warrantless residence search. The search was conducted 

pursuant to a Wisconsin regulation which allowed, 

[Alny probation officer to search a 

probationer's home without a warrant as 

long as his supervisor approves and as 

long as there are "reasonable grounds" to 

believe the presence of contraband 

--including any item that the probationer 

cannot possess under the probation 

conditions. 

Griffin, 107 S.Ct. at 3166. The search was based on 

information received by the supervisor from a police officer 

"that there were or might be guns in [the probationer's] 

apartment." Griffin, 107 S.Ct. at 3166. 

The Supreme Court concluded the search of Griffin's 

home satisfied the demands of the Fourth Amendment because 

"it was carried out pursuant to a regulation that itself 

satisfies the Fourth Amendment's reasonableness requirement 
under well established principles." Griffin, 107 S.Ct. at 

3167. Continuing, the Court noted that although a warrant is 

usually required to carry out a search, "we have permitted 

exceptions when 'special needs, beyond the normal need for 

law enforcement, make the warrant and probable-cause 

requirement impracticable.'" Griffin, 107 S.Ct. at 3167. 

A State's operation of a probation 

system, like its operation of a school, 

government office or prison, or its 

supervision of a regulated industry, 

likewise presents "special needs" beyond 

normal law enforcement that may justify 

departures from the usual warrant and 

probable cause requirements. 

Griffin, 107 S.Ct. at 3168. Restrictions on a probationer 

are meant to assure that the probation serves as a period of 

genuine rehabilitation and that the community is not harmed 

by the probationer's conditional liberty status. 

These same goals require and justify the 

exercise of supervison to assure that the 

restrictions are in fact observed . . . Supervision, then, is a "special need" of 

the State permitting a degree of 

impingement upon privacy that would not 

be constitutional if applied to the 

public at large. 

Griffin, 107 S.Ct. at 3168. 

This special need is equally applicable to the State of 

Montana. In conjunction with the need for supervision, a 

degree of flexibility must also be accorded the probation 

officer . The probation officer acts upon a continued 

experience with the probationer, with knowledge of the 

original offense, and with the probationer's welfare in mind. 

Because of his expertise, we view the probation officer in a 

far superior position to determine the degree of supervision 

necessary in each case. 
This expertise would be rendered meaningless if a 

warrant requirement were imposed prior to a probationary 

search. The independent magistrate, rather than the 

probation officer, would ultimately make supervisory 

decisions. In addition, the delay associated with obtaining 

a warrant plus the greater evidentiary burden would, we 

believe, substantially inhibit the effectiveness of the 

probation system. 

[Tlhe 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, 107 S.Ct. at 3171. Thus, the special needs of the 

probation system strongly militate toward the "reasonable 

grounds" standard. 

Under the Department of Institutions administrative 

rules, a probationary search may be conducted without a 

warrant upon reasonable cause: 

20.7.1101(11): Search a person or 

property. The probationer/parolee while 

on probation or parole if so ordered b57 

the sentencing court, shall submit to a 

search of his person, automobile, or 

place of residence by a probation or 

parole officer, at any time of the day 

or niqht, with or without a warrant upon 

reasonable cause as may be ascertained 

by a probation/parole officer. 

(Emphasis added. ) 

The critical language reflects the recognition that the 

court, viewing the circumstances individually, may see a need 

tc? impose a condition otherwise invalid to the public at 
large. Such a condition was believed to be necessary in the 

instant case. 

The facts involved in Griffin are distinguishable from 

those in the present case in one notable respect: namely, the 

intervention of police officers. This particular aspect, 

respondent argues, should render the United States Supreme 

Court decision inapplicable. However, the unique 

circumstances of probation enforcement in Montana counsel 

against such result. Montana is primarily a rural state. 

Because of its size and small population, probation officers 

are often responsible for a number of counties within their 

districts. It would be an untenable position, therefore, to 

require constant and individual supervision of every 

probationer. Our probation system would be unworkable, 

absolutely crippled, if police were not available to assist 

probation officers. 

Nor can we demand police officers to be deaf, dumb, and 

blind in their observations of probationers. We see 

situations where the probation officer, for one reason or 

another, is not available to direct the actions of the 

police. Such lack of direction should not amount to a 

fortuitous event for the probationer, enabling him to escape 

punishment for probation violations. Instead, we encourage 

cooperation and communication between police and probation 

officers. Police cooperation with probation officers is to 

be encouraged as an important aid to effective administration 

of the probation system. Cooperation will not interfere with 

the final determination as to whether or not a revocation 

petition is to be presented to the district court. This 

discretion remains with the probation officer. 

While acknowledging the State's interest in supervising 

probationers, respondents contend a greater interest exists 
in protecting the privacy rights of innocent third parties 

who are involved in the life of the probationer. 

A search of a probationer's home cannot 

avoid invading the privacy of those with 

whom he may be living, whether they be 

immediate family, other relatives, or 

friends. Probationary status does not 

convert a probationer's family , relatives and friends into "second 

class" citizens. 

State v. Fogerty (1980), 187 Mont. 393, 411, 610 P.2d 140, 

151. Upon this language, respondents urge this Court to 

uphold the warrant requirements for residence searches. The 

assertion ignores the situation surrounding conditional 

liberty status. 

It is undisputed that a probationer has a reduced 

privacy interest. Morrissey v. Brewer (1972), 408 U.S. 471, 

92 S.Ct. 2593, 33 L.Ed.2d 484. Indeed, the judgment imposing 

a deferred sentence is a form of contract between the court 

and the probationer, eliminating privacy expectations: the 

probationer is aware that his activities will be scrutinized. 

To impose a warrant requirement for residential searches, on 

the basis of rights enjoyed by persons not on probation, 

would artificially raise a probationer's privacy interest to 

a level inconsistent with conditional liberty status. The 

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. 

We do not ignore the interests of third parties 

involved in a residential search. The search should be 

permitted only if there is an underlying factual foundation 

justifying the search; and the search should not be used as 

an instrument of harassment or intimidation. 
Remand Instructions 

We expressly overrule State v. Fogerty (1980), 187 

Mont. 393, 610 P.2d 140. The District Court's order of 

December 14, 1987, is reversed. 

This case is remanded to the District Court for further 

proceedings consistent with this opinion. 

We concur: 1 

Justices 
Mr. Justice John C. Sheehy, dissenting: 

As the only remaining Justice from the majority in State 

v. Fogarty, supra, I dissent to overruling that case. 

Fogarty is a balanced decision which, contra to the position 

of the state, preserved the state's interest in supervision 

of parolees and yet looked at the rights of others who might 

be involved. This decision is absolutist, something we 

avoided in Fogarty. 

Mr. Justice William E. Hunt, Sr.: 

I concur in the foregoing dissent of Mr. Justice Sheehy.