                                                                                             April 29 2014


                                          DA 13-0423

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2014 MT 112



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

ANGELA MARIE FISCHER,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Nineteenth Judicial District,
                       In and For the County of Lincoln, Cause No. DC 11-52
                       Honorable James B. Wheelis, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Paul Sullivan; Measure, Sampsel, Sullivan & O’Brien, P.C.;
                       Kalispell, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; Mardell Ployhar, Assistant
                       Attorney General; Helena, Montana

                       Bernard G. Cassidy, Lincoln County Attorney; Robert Slomski, Deputy
                       County Attorney; Libby, Montana



                                                   Submitted on Briefs: March 12, 2014
                                                              Decided: April 29, 2014


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1        Angela Marie Fischer appeals the Nineteenth Judicial District Court’s denial of

her motion to suppress evidence in her probation revocation hearing. The sole issue on

appeal is whether the District Court erred by denying Fischer’s motion to suppress. We

affirm.

                    PROCEDURAL AND FACTUAL BACKGROUND

¶2        In December 2011, pursuant to a plea agreement, Fischer pleaded guilty to two

counts of criminal distribution of dangerous drugs. The District Court sentenced her to

two concurrent three-year sentences, but deferred imposition of the sentences subject to

the terms and conditions of her probation.         The conditions included seeking and

maintaining employment or maintaining a program approved by the Board of Pardons

and Parole or the supervising officer, personally contacting her supervising officer or

designee when directed by the officer, and reporting any contact with law enforcement to

her supervising officer or designee within 72 hours. She was required to make her

residence open and available to an officer for a home visit or for a search upon reasonable

suspicion. She also was required to submit to bodily fluid testing for drugs or alcohol on

a random or routine basis.

¶3        On June 25, 2012, Fischer reported to a probation officer technician named Penny

Ray that she had recently lost her job. Fischer’s probation officer, Steve Watson, called

to discuss her loss of employment, but Fischer did not answer her phone. When Fischer




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did not promptly return his call, Officer Watson conducted a home visit at Fischer’s

residence. Ray accompanied him on the visit.

¶4     Officer Watson found Fischer at home. He authorized Ray to obtain a urine

sample from Fischer. The test came back negative. Because Fischer had prescriptions

for drugs that were not detectable using a urine sample, Officer Watson informed Fischer

that he needed to inspect her medications to ensure that she was complying with

condition seventeen. Condition seventeen required:

      The Defendant shall inform her Probation & Parole Officer of all
      prescriptions obtained from medical personnel prior to filling them. The
      Defendant shall take all prescription medications as prescribed and in the
      manner in which they were prescribed.

¶5    Officer Watson testified, “I just said I’m going to check your medication to see

that you are taking them as prescribed, she immediately got nervous and said well, my

employer—I’m going to be off on my pill count because my employer threw my pills out,

and then she reported to me that she had reported it to Lincoln County Dispatch.”

Although she did not provide a specific date, Fischer apparently had not reported the

alleged contact with Lincoln County Dispatch to Officer Watson within 72 hours as

required by the conditions of her probation. Officer Watson later contacted Lincoln

County Dispatch and learned that the County had no record of the call.

¶6    Based on Fischer’s history with pills, Officer Watson concluded that Fischer’s

behavior was reasonably suspicious and decided to search her purse for other

medications. Fischer dumped out the contents of her purse, including a green pill bottle.

Fischer explained that the bottle contained her brother’s oxycodone pills and that she was
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keeping track of them for him. She then told Officer Watson that more pills were hidden

behind her microwave. Officer Watson found two more pill bottles there—one unmarked

and one bearing a prescription label for Fischer’s brother.

¶7     Officer Watson called and requested that Lincoln County Dispatch send an officer

to arrest Fischer. He issued a probation hold based on her possession of pills without a

proper prescription and the failure to timely report contact with law enforcement. The

State filed a petition to revoke Fischer’s deferred sentence based on her possession of

oxycodone in violation of the conditions of her probation. Fischer subsequently filed a

motion to suppress the evidence. The District Court denied the motion and later revoked

Fischer’s deferred sentences. Fischer filed this appeal.

                               STANDARD OF REVIEW

 ¶8     This Court’s standard of review of the denial of a motion to suppress is whether

the court’s findings of fact are clearly erroneous and whether the findings were correctly

applied as a matter of law. State v. Kriesel, 2000 MT 144, ¶ 7, 300 Mont. 44, 2 P.3d 831.

                                      DISCUSSION

¶9     This Court has held that a home visit by a probation officer is not a search. State

v. Moody, 2006 MT 305, ¶¶ 23-24, 334 Mont. 517, 148 P.3d 662. A probation officer

conducting a home visit “may not open drawers, cabinets, closets or the like; nor may the

officer rummage through the probationer’s belongings.”        Moody, ¶ 24.     We stated,

however, that a home visit has the potential to turn into a search once the officer has

reasonable cause to engage in a search. Moody, ¶ 24.

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¶10   Both the Fourth Amendment to the United States Constitution and Article II,

Section 11 of the Montana Constitution protect individuals from unreasonable searches

and seizures. Generally, a nonconsensual search violates the Fourth Amendment unless it

is conducted pursuant to a validly issued warrant supported by probable cause. The

United States Supreme Court has concluded, however, that probation searches do not

necessarily violate the Fourth Amendment when conducted pursuant to state law and

supported by reasonable suspicion to believe contraband would be found. Griffin v. Wis.,

483 U.S. 868, 878, 107 S. Ct. 3164, 3171 (1987) (holding that the need for flexibility

within the probation system and the special relationship existing between a probationer

and his probation officer justified departing from the usual warrant requirement). A

number of the federal circuit courts have held that reasonable suspicion also may be

established by narrowly tailored restrictions included within a probation agreement. U.S.

v. Wryn, 952 F.2d 1122, 1124 (9th Cir. 1991) (citing U.S. v. Giannetta, 909 F.2d 571, 575

(1st Cir. 1990); U.S. v. Schoenrock, 868 F.2d 289, 292 (8th Cir. 1989)).

¶11   In Montana, there must be a factual foundation justifying a probationary search

and the search must not be used as an instrument of harassment or intimidation. State v.

Burke, 235 Mont. 165, 171, 766 P.2d 254, 257 (1988). This Court has stated that a

probationer who is still subject to supervision has a diminished expectation of privacy

and that the probation officer is in the best position to determine what level of

supervision is necessary to provide both rehabilitation of the probationer and safety for

society. State v. Burchett, 277 Mont. 192, 195-96, 921 P.2d 854, 856 (1996). The

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reasonable suspicion standard for warrantless probation searches is substantially less than

the probable cause standard, because of the probationer’s diminished expectation of

privacy. Moody, ¶ 12. Whether reasonable grounds exist to conduct a probationary

search is a factual inquiry determined by the totality of the circumstances. State v.

Stucker, 1999 MT 14, ¶ 32, 293 Mont. 123, 973 P.2d 835.

¶12    In State v. Small, this Court held that a warrantless search initiated by a

defendant’s probation officer pursuant to the terms of her probation did not violate her

constitutional rights. State v. Small, 235 Mont. 309, 310, 767 P.2d 316, 317 (1989). The

defendant was convicted of felony sale of dangerous drugs and received a deferred

three-year sentence with probation conditions. Small, 235 Mont. at 310, 767 P.2d at 317.

The conditions of Small’s probation were similar to Fischer’s—one prohibited the

possession or use of dangerous drugs except by prescription and another allowed searches

and seizures upon reasonable suspicion at any time without a warrant.

¶13    At Small’s revocation hearing, the district court denied the defendant’s motion to

suppress evidence obtained during a search of her home. This Court affirmed, observing

that the case turned on the conduct of the probation officer and that “[t]he 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.” Small, 235 Mont. at 312,

767 P.2d at 318 (quoting Burke, 235 Mont. at 171, 766 P.2d at 257).

¶14    Here, Officer Watson’s initial decision to conduct a pill count to determine

whether Fischer was in compliance with condition seventeen did not constitute a search.

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Under the authority provided by the probation conditions, Officer Watson could visit

Fischer’s home, obtain a sample of her bodily fluids, and monitor Fischer’s medications

without a warrant. That Fischer had lost her job and did not promptly return Officer

Watson’s phone calls justified a home visit to confirm whether Fischer was complying

with the conditions of her probation.

¶15    Condition seventeen required Fischer to take all prescription medication as

prescribed and inform Officer Watson of all her prescriptions. Although the condition

did not explicitly describe how Officer Watson was to monitor Fischer’s medications, his

decision to conduct a pill count was necessary to ensure compliance with condition

seventeen. Given that Fischer’s conviction was drug-related and that Officer Watson

knew some of Fischer’s medications would not show up in a urine sample, a pill count

was far less intrusive than obtaining a blood sample for drug analysis.

¶16    Fischer did not have a reasonable expectation of privacy in her medications given

the nature of her offense and the requirements of condition seventeen. The condition was

a directive that reasonably implied the authority to confirm whether Fischer was in

compliance in this circumstance, as long as Officer Watson did not harass or intimidate

her or otherwise infringe on her diminished privacy rights. Importantly, Officer Watson

did not immediately conduct a search of Fischer’s purse—he initially asked only to see

her pills. He did not “rummage through the probationer’s belongings” or otherwise

violate Fischer’s diminished privacy interests. Under these circumstances, we conclude




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that the decision to conduct a pill count did not infringe upon Fischer’s constitutional

rights.

¶17       Like in Small, Officer Watson “must be able to supervise the probationer, and

upon his judgment and expertise, search the probationer’s residence or cause it to be

searched.” Small, 235 Mont. at 312, 767 P.2d at 318. By the time Officer Watson

actually conducted the search of her purse, Fischer had informed him that she likely

violated condition eight of her probation by failing to timely inform him that she had

contacted law enforcement, and she had aroused suspicion that she had violated condition

seventeen by explaining that she possessed a quantity of pills that did not match her

prescription.    At that point, Officer Watson had reasonable suspicion to search for

additional medications.

                                     CONCLUSION

¶18       We hold that the District Court’s conclusion that Officer Watson conducted a

legitimate probation search based on reasonable suspicion was correct. We affirm the

District Court’s denial of Fischer’s motion to suppress evidence seized during the search.



                                                /S/ BETH BAKER

We concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ LAURIE McKINNON


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