                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellant,

                                   v.

                     CHRISTIAN ADAIR, Appellee.

                         No. 1 CA-CR 14-0115
                           FILED 9-3-2015


          Appeal from the Superior Court in Maricopa County
                       No. CR2013-111090-001
           The Honorable Robert L. Gottsfield, Retired Judge

                    VACATED AND REMANDED


                              COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Lisa Marie Martin
Counsel for Appellant

Maricopa County Public Defender’s Office, Phoenix
By Spencer D. Heffel
Counsel for Appellee



                              OPINION

Presiding Judge Samuel A. Thumma delivered the decision of the court, in
which Judge Patricia A. Orozco and Judge Michael J. Brown joined.
                             STATE v. ADAIR
                            Opinion of the Court

T H U M M A, Judge:

¶1             The State of Arizona appeals from an order granting Christian
Adair’s motion to suppress the fruits of a probation officer’s warrantless
search of his residence. The State argues the warrantless search did not
violate Adair’s Fourth Amendment rights because it was reasonable under
the totality of the circumstances. Because reasonableness under the totality
of the circumstances satisfies the requirements of the Fourth Amendment
for such a search, the order is vacated and this matter is remanded for
further proceedings consistent with this opinion.

             FACTS1 AND PROCEDURAL BACKGROUND

¶2            In March 2012, the superior court placed Adair on supervised
probation for two felony convictions for solicitation to possess crack cocaine
for sale committed in late 2010. The Uniform Conditions of Supervised
Probation (Probation Conditions) agreed to by Adair and imposed by the
court required him to:

                    “maintain a crime-free lifestyle, by
                     obeying all laws, and not engaging or
                     participating in any criminal activity;”
                    “not possess or control any . . . firearms
                     [or] ammunition;”
                    “submit to search and seizure of person
                     and property by the APD [Adult
                     Probation Department] without a search
                     warrant;”
                    “provide the APD safe, unrestricted
                     access to” his residence; and
                    “not possess or use illegal drugs or
                     controlled substances and [] submit to
                     drug and alcohol testing as directed by
                     the APD.”

Pursuant to these Probation Conditions, the APD conducted warrantless
searches of Adair’s residence without apparent incident before the search
at issue here.



1On appeal, this court views the evidence in the light most favorable to
upholding the superior court’s ruling on a motion to suppress. See State v.
Walker, 215 Ariz. 91, 94 ¶ 16, 158 P.3d 220, 223 (App. 2007).


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                           Opinion of the Court

¶3             In December 2012, an informant told a police officer that
Adair was on probation for selling drugs to an undercover officer and
“thought that [Adair] was still selling crack cocaine.” The informant
provided police his or her name and contact information but did not want
to testify or be listed by name in any police report. Over the next few
months, the informant provided police additional information, with one
officer testifying “there was a conversation that the person thought that
possibly that [Adair’s] young child was going along on these narcotic
sales.” The officer confirmed Adair was on probation for selling drugs to an
undercover officer and had a child with him during that transaction, and
that Adair lived at the address provided by the informant.

¶4            In March 2013, the police relayed this information to a
probation officer, including that the informant said drugs were still being
sold from Adair’s residence, or were “possibly being sold from the
residence.” The probation officer confirmed that Adair’s Probation
Conditions included a warrantless search term, decided to conduct a
warrantless search of Adair’s residence and, pursuant to standard APD
policy, contacted police for assistance. Three probation officers,
accompanied by seven police officers, then went to Adair’s residence and,
when Adair answered the door, a probation officer told him they were
conducting a probation search. Although the record does not reflect any
objection to the search at that time, the State does not claim that Adair
verbally consented to the search. The officers entered, conducted the
warrantless search and seized various contraband, including crack cocaine,
scales, packaging, $450 in cash, a gun and ammunition.

¶5            Adair was charged with felony possession of narcotic drugs
for sale, possession of drug paraphernalia and misconduct involving
weapons. The probation officer also filed a petition to revoke his probation.
Adair moved to suppress the items seized during the search, arguing they
were the fruits of an illegal search and seizure of his residence because it
was a warrantless police search, not a search by probation officers under
the Probation Conditions. After briefing and an evidentiary hearing, the
superior court rejected Adair’s argument that it was a police search, noting
the APD “thought it important to conduct a search of the residence and
participated in all aspects of the search. This was pursuant to the retention
of [APD’s] right to conduct such a search under the terms of defendant’s
probation.”

¶6            Adair filed a motion to reconsider that, unlike his motion to
suppress, argued the evidence should be suppressed because the probation
officers lacked “reasonable suspicion” for the search. After briefing and


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                               STATE v. ADAIR
                              Opinion of the Court

argument, the superior court reconsidered and granted Adair’s motion to
suppress, stating “[a] probation search must be supported by a reasonable
suspicion, or a reasonable basis, or reasonable grounds [terms the court
found synonymous] to believe the probationer has violated the terms of his
probation or is engaging in criminal activity.” The court then found the
search of Adair’s residence “in the court’s view did not have a sufficient
legal basis pursuant to the cases cited and analyzed by the court: United
States v. Knights, 534 U.S. 112 (2001); State v. Walker, 215 Ariz. 91, 158 P.3d
220 (App. 2007); State v. Turner, 142 Ariz. 138, 688 P.2d 1030 (App. 1984),
rev. denied; State v. Hill, 136 Ariz. 347, 666 P.2d 92 (App. 1983), rev. denied; Cf.
Griffin v. Wisconsin, 483 U.S. 868 (1987).”

¶7            The court granted the State’s motion to dismiss without
prejudice.2 This court has jurisdiction over the State’s timely appeal from
the order granting Adair’s motion to suppress pursuant to Arizona Revised
Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and -4032(6) (2015).3

                                 DISCUSSION

I.     The Parties’ Arguments Under The Fourth Amendment.

¶8            The Fourth Amendment of the United States Constitution,
applicable here through the due process clause of the Fourteenth
Amendment, provides “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause.” U.S. Const. amend. IV. Although the Fourth Amendment
generally requires a warrant based on probable cause for a search, there are
exceptions. See Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006). As
applied, the Fourth Amendment does not require a warrant or probable
cause for a probation officer’s search of a probationer’s residence. United




2 The petition to revoke Adair’s probation was dismissed at the State’s
request and his probation terminated based on the passage of time.

3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.




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                             STATE v. ADAIR
                            Opinion of the Court

States v. Knights, 534 U.S. 112, 121 (2001); Griffin v. Wisconsin, 483 U.S. 868,
872 (1987).4

¶9            Adair does not dispute that he was on probation at the time
of the search, or challenge the validity of the Probation Conditions. Nor
does Adair argue the search was contrary to the Probation Conditions or
that this case turns on any Arizona statutory or regulatory provision.
Instead, Adair argues the superior court properly determined that the
Fourth Amendment required the probation officer’s warrantless search of
his residence be based on reasonable suspicion of criminal activity. The
State argues the Fourth Amendment is satisfied if the search was reasonable
under the totality of the circumstances, a lesser standard than reasonable
suspicion. Although not squarely resolving the issue, several United States
Supreme Court and Arizona appellate cases discuss the issue. Because
Arizona decisions discussed the issue before the Supreme Court, the
analysis begins with those Arizona cases.

II.       Arizona Cases Addressing A Probation Officer’s Warrantless
          Search Of A Probationer’s Residence.

¶10           Nearly 40 years ago, the Arizona Supreme Court rejected a
constitutional challenge to a probation condition authorizing a probation
officer’s warrantless search of a probationer’s residence. See State v.
Montgomery, 115 Ariz. 583, 583 & 585, 566 P.2d 1329, 1329, 1331 (1977)
(finding probation condition requiring probationer to “’[s]ubmit to search
and seizure of person or property at any time by any . . . probation officer
without the benefit of a search warrant’” was not “constitutionally over-
broad”). In doing so, Montgomery stated

              the court may require that a defendant comply
              with numerous conditions of probation when,


4Adair also relies on Article 2, § 8, of the Arizona Constitution, which states
that “[n]o person shall be disturbed in his private affairs, or his home
invaded, without authority of law.” Adair, however, has not shown the
search was an “unlawful” warrantless home entry for which Article 2, § 8,
would grant protections broader than those provided by the Fourth
Amendment. See State v. Roberson, 223 Ariz. 580, 583 ¶ 13, 225 P.3d 1156,
1159 (App. 2010) (“‘[E]xcept in cases involving “unlawful” warrantless
home entries, the right of privacy afforded by Article 2, Section 8, has not
been expanded beyond that provided by the Fourth Amendment.’”)
(quoting State v. Juarez, 203 Ariz. 441, 444–45 ¶ 14, 55 P.3d 784, 787–88 (App.
2002)).


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                             STATE v. ADAIR
                            Opinion of the Court

              in the opinion of the court, such conditions aid
              in the rehabilitation process or prove a
              reasonable alternative to incarceration as
              punishment for the crime committed. . . . Unless
              the terms of probation are such as to violate
              basic fundamental rights or bear no relationship
              whatever to the purpose of probation over
              incarceration, we will not disturb the trial court
              in the exercise of its discretion in imposing
              conditions of probation.

                      Of course [the warrantless search
              condition] is a restriction upon the defendant’s
              privacy, but this does not make the condition
              unconstitutional. While defendant is on
              probation his expectations of privacy are less
              than those of other citizens not so categorized.
              It is not an unreasonable or an unconstitutional
              limitation upon his right to be free from
              unreasonable searches and seizures.

Id. at 584, 566 P.2d at 1330. Montgomery then quoted with approval a
California Supreme Court case for the proposition

              that persons conditionally released to society,
              such as parolees, may have a reduced
              expectation of privacy, thereby rendering
              certain intrusions by governmental authorities
              “reasonable” which otherwise would be invalid
              under traditional constitutional concepts, at
              least to the extent that such intrusions are
              necessitated by legitimate governmental
              demands. . . . Thus, a probationer who has been
              granted the privilege of probation on condition
              that he submit at any time to a warrantless
              search may have no reasonable expectation of
              traditional Fourth Amendment protection.

Id. at 584, 566 P.2d at 1330 (quoting People v. Mason, 97 Cal. Rptr. 302, 305,
488 P.2d 630, 633 (1971)); accord State v. Turner, 142 Ariz. 138, 144, 688 P.2d
1030, 1036 (App. 1984) (affirming warrantless search of probationer by
probation officer); State v. Jeffers, 116 Ariz. 192, 195, 568 P.2d 1090, 1093
(App. 1977) (finding similar warrantless search provision was “reasonably


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                              STATE v. ADAIR
                             Opinion of the Court

related to” probationer’s “rehabilitation and the protection of the public;”
“probable cause “is not a constitutional prerequisite . . . it is sufficient if the
probation officer believes that a search is necessary to perform his duties
properly”) (citations omitted).

III.   United States Supreme Court Cases Addressing A Probation
       Officer’s Warrantless Search Of A Probationer’s Residence.

¶11            The cases relied upon by the superior court found that
“reasonable suspicion” for a probation officer’s warrantless search of a
probationer’s residence satisfied the Fourth Amendment, but did not hold
that reasonable suspicion was constitutionally mandated. See Knights, 534
U.S. at 121 (holding search based on “no more than a reasonable suspicion”
of criminal activity was sufficient) (emphasis added); Griffin v. Wisconsin,
483 U.S. 868, 880 n.8 (1987) (holding state court finding that “reasonable
grounds” existed for warrant “meets constitutional minimum standards as
well”); State v. Walker, 215 Ariz. 91, 95 ¶ 19, 158 P.3d 220, 224 (App. 2007)
(noting “search was supported by reasonable suspicion” and, therefore,
complied with Knights); State v. Turner, 142 Ariz. 138, 142, 688 P.2d 1030,
1034 (App. 1984) (noting probable cause “for the initial warrantless seizure
of [probationer’s] luggage” and facts provided “a reasonable basis for the
probation officer’s [warrantless] search to determine whether appellant had
complied with the conditions of his probation”); State v. Hill, 136 Ariz. 347,
349, 666 P.2d 92, 94 (App. 1983) (noting similar warrantless search
provisions “have consistently been recognized by courts as reasonable and
necessary to promote the use of probation as an alternative to incarceration”
and vacating suppression of evidence seized in such a search).

¶12          Knights did “not decide” whether a comparable “probation
condition so diminished, or completely eliminated, [the probationer’s]
reasonable expectation of privacy . . . that search by a law enforcement
officer without any individualized suspicion would have satisfied the
reasonableness requirement of the Fourth Amendment.” 534 U.S. at 120 n.6
(emphasis added). Knights noted the probation condition permitted such a
search but added that “we need not address the constitutionality of a
suspicionless search because the search in this case was supported by
reasonable suspicion.” Id. More recently, Samson v. California went even
further in the parole context, holding that a law enforcement officer’s
warrantless and suspicionless search of a parolee did not violate the Fourth
Amendment. 547 U.S. 843, 846 (2006).

¶13           This court need not address, and does not decide, whether a
probation officer’s suspicionless search of a probationer’s residence satisfies


                                        7
                             STATE v. ADAIR
                            Opinion of the Court

the Fourth Amendment. Nor does this court address the constitutionality of
a police officer’s warrantless search of a probationer’s residence. Rather, the
issue is whether reasonableness under the totality of the circumstances for
a probation officer’s warrantless search of a probationer’s residence satisfies
the requirements of the Fourth Amendment.

IV.    Assessing A Probationer’s Privacy              Interests   And     The
       Governments Legitimate Interests.

¶14           “The touchstone of the Fourth Amendment is reasonableness,
and the reasonableness of a search is determined ‘by assessing, on the one
hand, the degree to which it intrudes upon an individual’s privacy and, on
the other, the degree to which it is needed for the promotion of legitimate
governmental interests.’” Knights, 534 U.S. at 118-19 (quoting Wyoming v.
Houghton, 526 U.S. 295, 300 (1999)). Adair’s “status as a probationer subject
to a search condition informs both sides of that balance.” Id. at 119.

¶15          Because Adair was on probation subject to the Probation
Conditions, his privacy rights were significantly diminished.

              Probation, like incarceration, is “a form of
              criminal sanction imposed by a court upon an
              offender after verdict, finding, or plea of
              guilty.” Probation is “one point . . . on a
              continuum of possible punishments ranging
              from solitary confinement in a maximum-
              security facility to a few hours of mandatory
              community service.” Inherent in the very nature
              of probation is that probationers “do not enjoy
              ‘the absolute liberty to which every citizen is
              entitled.’” Just as other punishments for
              criminal convictions curtail an offender's
              freedoms, a court granting probation may
              impose reasonable conditions that deprive the
              offender of some freedoms enjoyed by law-
              abiding citizens.

Knights, 534 U.S. at 119 (citations omitted). As in Knights, the Probation
Conditions are designed to “further the two primary goals of probation -
rehabilitation and protecting society from future criminals.” Id. The
Probation Conditions “clearly expressed the search condition and [Adair]
was unambiguously informed of it,” meaning the Probation Conditions




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                             STATE v. ADAIR
                            Opinion of the Court

“significantly diminished [Adair’s] reasonable expectation of privacy.” Id.
at 119-120; accord Samson, 547 U.S. at 849 (citing Knights, 534 U.S. at 119-20).

¶16          Turning to the government’s legitimate interests, probation
searches like the one of Adair’s residence here, “are necessary to the
promotion of legitimate governmental interests,” including “the State’s
dual interest in integrating probationers back into the community and
combating recidivism.” Samson, 547 U.S. at 849 (citing Knights, 534 U.S. at
120-21).

              [P]robationers have even more of an incentive
              to conceal their criminal activities and quickly
              dispose of incriminating evidence than the
              ordinary criminal because probationers are
              aware that they may be subject to supervision
              and face revocation of probation, and possible
              incarceration, in proceedings in which the trial
              rights of a jury and proof beyond a reasonable
              doubt, among other things, do not apply.

Id. at 849 (quoting Knights, 534 U.S. at 120). The State’s interest “in
apprehending violators of the criminal law, thereby protecting potential
victims of criminal enterprise, may therefore justifiably focus on
probationers in a way that it does not on the ordinary citizen.” Knights, 534
U.S. at 121. The State is not required “to ignore the reality of recidivism or
suppress its interests in ‘protecting potential victims of criminal enterprise’
for fear of running afoul of the Fourth Amendment.” Samson, 547 U.S. at
849 (quoting Knights, 534 U.S. at 121).

¶17            Recognizing these interests, Samson held “that the Fourth
Amendment does not prohibit a police officer from conducting a
suspicionless search of a parolee.” Samson, 547 U.S. at 857. Samson rejected
“[i]mposing a reasonable suspicion requirement,” noting “[t]he touchstone
of the Fourth Amendment is reasonableness, not individualized suspicion.”
Id. at 854 & 855 n.4. Instead, Samson directs that a reviewing court must
“’examin[e] the totality of the circumstances’ to determine whether [such]
a search is reasonable within the meaning of the Fourth Amendment.” 547
U.S. at 848 (quoting Knights, 534 U.S. at 118).

¶18           Samson involved a police officer’s suspicionless search of a
parolee’s person based on his status as a parolee. 547 U.S. at 846. Adair does
not argue that the search of his residence (as opposed to a search of his
person) distinguishes Samson. Moreover, unlike Samson, the search here


                                       9
                             STATE v. ADAIR
                            Opinion of the Court

was executed by probation officers based on information received that
Adair was involved in criminal activity in violation of his Probation
Conditions, furthering the government’s legitimate interests in protecting
society from criminal activity more directly than the suspicionless search in
Samson. Id. at 849 (citing Knights, 534 U.S. at 120-21). It is true that, in
considering a suspicionless search, Samson stated “parolees have fewer
expectations of privacy than probationers, because parole is more akin to
imprisonment than probation is to imprisonment.” 547 U.S. at 850. Many of
the State’s legitimate interests identified in Samson, however, apply equally
to probationers. 547 U.S. at 853, 854-55; see also id. at 861 (Stevens, J.,
dissenting) (“[I]t is simply not true that a parolee’s status, vis-à-vis either
the State or the Constitution, is tantamount to that of a prisoner or even
materially distinct from that of a probationer.”).

¶19            Although not squarely answering the issue, Arizona appellate
courts have suggested that reasonableness under the totality of the
circumstances satisfies the Fourth Amendment for warrantless searches of
a probationer as well as a parolee. In dicta, the Arizona Supreme Court
stated Samson “employed a ‘totality of the circumstances test’ in finding the
search reasonable” and Knights “had earlier employed a totality of the
circumstances analysis to uphold the suspicionless search of a probationer.”
Mario v. Kaipio, 230 Ariz. 122, 126 ¶ 14, 281 P.3d 476, 480 (2012). This court
has made similar statements. See State v. Allen, 216 Ariz. 320, 326 ¶ 24 & n.5,
166 P.3d 111, 117 & n.5 (App. 2007) (citing Samson and Knights for
proposition that Supreme Court “has applied a reasonableness standard in
reviewing warrantless searches or seizures in a variety of circumstances”);
Walker, 215 Ariz. at 94, 158 P.3d at 224 (noting, in dicta, Samson rationale “is
likely applicable to probationers”). The Ninth Circuit Court of Appeals, in
a case involving a probation condition authorizing a suspicionless search,
held that a search of a probationer’s residence based on “less than
reasonable suspicion” did not violate the Fourth Amendment. See United
States v. King, 736 F.3d 805, 806 & n.1 (9th Cir. 2013) (on denial of petition
for rehearing en banc).

¶20           This authority demonstrates that reasonableness under the
totality of the circumstances satisfies the Fourth Amendment when
analyzing the probation officer’s warrantless search of a probationer’s
residence undertaken pursuant to the Probation Conditions. See, e.g.,
Samson, 547 U.S. at 848; Knights, 534 U.S. at 118. Accordingly, the superior
court’s order granting the motion to suppress based on an understanding
that the Fourth Amendment required a higher standard of reasonable
suspicion is vacated. This court cannot, as a matter of law, conclude that the
search was unreasonable under the totality of the circumstances on this


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                              STATE v. ADAIR
                             Opinion of the Court

record; that issue, by definition, is fact intensive and best left to the superior
court in the first instance. Accord State v. Woods, 210 Ariz. 199, 200 ¶ 7, 109
P.3d 94, 95 (App. 2014) (noting appellate courts “defer to the superior
court’s factual findings” in addressing ruling on motion to suppress).
Therefore, this matter is remanded to the superior court to determine
whether the probation officer’s warrantless search of Adair’s residence and
resulting seizure of contraband was reasonable under the totality of the
circumstances.5

V.     Relevant Factors In Determining Whether A Probation Officer’s
       Warrantless Search Of A Probationer’s Residence Is Reasonable
       Under The Totality Of The Circumstances.

¶21            Assessing whether conduct is reasonable under the totality of
the circumstances is not a formulaic task. Although not providing definitive
elements or factors, and recognizing resolution of the issue depends upon
the specific facts of a given case, caselaw does provide some guidance for
making that assessment. The target of the search must be a known
probationer subject to a valid, enforceable probation condition allowing a
warrantless search. The search must be conducted by a probation officer in
a proper manner and for the proper purpose of determining whether the
probationer was complying with probation obligations. See Turner, 142
Ariz. at 143, 688 P.2d at 1035. And the search must not be arbitrary,
capricious or harassing. See King 736 F.3d at 810; cf. Ariz. R. Crim. P. 27.3
cmt. (noting provision governing modification and clarification of
probation “is included to protect the probationer from arbitrary conditions
or regulations”).




5 Given this conclusion, this court need not address the parties’ arguments
about whether the search was authorized on a consent theory or by the
“special needs” of the probation system. See Knights, 534 U.S. at 119 (noting,
after concluding search was reasonable under the totality of the
circumstances, “[w]e need not decide whether Knights’ acceptance of the
search condition constituted consent in the Schneckloth [v. Bustamonte, 412
U.S. 218 (1973)] sense of a complete waiver of his Fourth Amendment
rights”); Samson, 547 U.S. at 852 n.3 (expressly not reaching whether search
was proper under consent theory or “special need” justification); Griffin,
483 U.S. at 875 (addressing “whether the ‘special needs’ of its probation
system justify Wisconsin’s search regulation”); Arizona Code of Judicial
Administration § 6-101 et seq. (“Probation”).


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                           STATE v. ADAIR
                          Opinion of the Court

                            CONCLUSION

¶22          The order granting Adair’s motion to suppress is vacated and
this matter is remanded for further proceedings consistent with this
opinion.




                               :ama




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