                Filed 4/11/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                   2019 ND 106


State of North Dakota,                                       Plaintiff and Appellant

       v.

Shannon David Keola Stenhoff,                               Defendant and Appellee


                                   No. 20180300


       Appeal from the District Court of McKenzie County, Northwest Judicial
District, the Honorable Robin A. Schmidt, Judge.

       REVERSED AND REMANDED.

       Opinion of the Court by McEvers, Justice.

      Stephenie L. Davis, Assistant State’s Attorney, Watford City, ND, for plaintiff
and appellant.

       Jared W. Gietzen, Dickinson, ND, for defendant and appellee.
                                    State v. Stenhoff
                                      No. 20180300


          McEvers, Justice.
[¶1]      The State appeals from a district court order granting Shannon Stenhoff’s
motion to suppress evidence. We reverse and remand for further proceedings.


                                             I
[¶2]      In November 2017, Shannon Stenhoff was sentenced to two years of
supervised probation, the terms of which included a search clause. The search clause
provided:
          You shall submit your person, place of residence and vehicle, or any
          other property to which you may have access, to search and seizure at
          any time of day or night by a parole/probation officer, with or without
          a search warrant.
After allegedly violating the conditions of his probation, a petition to revoke
Stenhoff’s probation was filed on January 30, 2018 and an order to apprehend was
issued.
[¶3]      On February 5, 2018, law enforcement officers executed a “fugitive
apprehension search warrant” for Stenhoff at the location they believed Stenhoff was
living and arrested him sometime between 9:20 p.m. and 1:12 a.m., February 6, 2018.
According to Stenhoff’s probation officer, it was believed to be Stenhoff’s residence
because it was Stenhoff’s last reported address. While at that location, a cursory
officer safety search of the residence was conducted. According to testimony of a
deputy, while the officers were in the residence, a child residing there questioned if
the officers were there for “the drugs and [alluded] to the presence of the illegal
narcotics in the residence.” A deputy who conducted the search testified the child’s
statement caused him to attempt to contact Stenhoff’s probation officer to notify him
of the search for Stenhoff, but the probation officer did not answer the call. The
deputy testified there were no narcotics in plain view.
                                            1
[¶4]   Later on February 6, 2018, Stenhoff’s probation officer was notified.
Approximately 14 hours after Stenhoff’s arrest, law enforcement officers and
Stenhoff’s probation officer visited the residence where Stenhoff was apprehended
to conduct a probationary search. During the course of that search, several items of
drug paraphernalia, drugs, and a rifle were found.
[¶5]   Based on the evidence seized during the probationary search, the State filed
charges in February 2018. In May 2018, Stenhoff moved to suppress the evidence
against him, claiming the warrantless probationary search violated his Fourth
Amendment rights. The State opposed the motion. Following a suppression hearing,
where testimony from various law enforcement officers and a probation officer was
heard, the district court granted Stenhoff’s motion to suppress, concluding the search
was unreasonable and violated the Fourth Amendment’s prohibition against
unreasonable searches, because law enforcement should have sought a warrant to
search the residence.
[¶6]   On appeal, the State argues the search at the residence where Stenhoff was
arrested was reasonable because probationers have a lesser expectation of privacy
under the Fourth Amendment, and the statements made to law enforcement by the
child living at the residence regarding drugs provided reasonable suspicion of
criminal activity at the residence.


                                           II
[¶7]   The prosecution’s right to appeal in a criminal case is strictly limited by
N.D.C.C. § 29-28-07. State v. Boehm, 2014 ND 154, ¶ 6, 849 N.W.2d 239. The State
may appeal from an order suppressing evidence if the notice of appeal is accompanied
by a statement of the prosecuting attorney asserting the appeal is not taken for the
purpose of delay and the evidence is a substantial proof of a fact material in the
proceeding. N.D.C.C. § 29-28-07(5). Here, the State included such a statement along
with the notice of appeal, arguing the district court’s decision to grant the suppression
eviscerated the State’s evidence of the alleged offenses. A review of the suppressed
                                           2
evidence demonstrates it was necessary to prove elements of the offenses charged,
because the charges were based on items found at the residence. See Boehm, at ¶ 7.
Therefore, the order granting the motion to suppress is appealable.


                                         III
[¶8]   This Court’s review of a district court’s decision to grant or deny a motion to
suppress is well established:
               A trial court’s findings of fact in preliminary proceedings
               of a criminal case will not be reversed if, after the
               conflicts in the testimony are resolved in favor of
               affirmance, there is sufficient competent evidence fairly
               capable of supporting the trial court’s findings, and the
               decision is not contrary to the manifest weight of the
               evidence. We do not conduct a de novo review. We
               evaluate the evidence presented to see, based on the
               standard of review, if it supports the findings of fact.
       State v. Whitman, 2013 ND 183, ¶ 20, 838 N.W.2d 401. “Questions of
       law are fully reviewable on appeal, and whether a finding of fact meets
       a legal standard is a question of law.” State v. Graf, 2006 ND 196, ¶ 7,
       721 N.W.2d 381.
Boehm, 2014 ND 154, ¶ 8, 849 N.W.2d 239.              “Whether a violation of the
constitutional prohibition against unreasonable searches and seizures has occurred is
a question of law.” State v. Ballard, 2016 ND 8, ¶ 6, 874 N.W.2d 61.
[¶9]   In Ballard, this Court reiterated the link between Fourth Amendment
protections and probationary searches:
                The Fourth Amendment to the United States Constitution and
       art. I, § 8, of the North Dakota Constitution protect individuals from
       unreasonable searches and seizures.           “When reviewing the
       constitutionality of probationary searches, we have interpreted the
       North Dakota Constitution to provide the same protections for
       probationers as provided by the United States Constitution.” Maurstad,
       2002 ND 121, ¶ 11, 647 N.W.2d 688 (citations omitted). “[U]nder our
       general Fourth Amendment approach we examin[e] the totality of the
       circumstances to determine whether a search is reasonable within the
       meaning of the Fourth Amendment.” Samson v. California, 547 U.S.


                                          3
       843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (citation omitted)
       (quotation marks omitted).
2016 ND 8, ¶ 8, 874 N.W.2d 61 (emphasis added). “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.” Ballard, at ¶ 30 (quoting U.S. v. Knights, 534
U.S. 112, 118-19 (2001)). “We consider the totality of the circumstances to balance
the degree to which the search intrudes upon an individual’s privacy against the
degree to which the search is needed to promote legitimate government interests.”
State v. White, 2018 ND 266, ¶ 7, 920 N.W.2d 742. A probationary search based on
reasonable suspicion meets constitutional muster. State v. Maurstad, 2002 ND 121,
¶ 37, 647 N.W.2d 688; see also U.S. v. Knights, 122 S.Ct. 587, 593 (2001) (“When
an officer has reasonable suspicion that a probationer subject to a search condition is
engaged in criminal activity, there is enough likelihood that criminal conduct is
occurring that an intrusion on the probationer’s significantly diminished privacy
interests is reasonable.”).
[¶10] In White, we stated “a supervised probationer has a lower expectation of
privacy than an unsupervised probationer, and the State has a greater interest in
monitoring probationers on supervised probation.” 2018 ND 266, ¶ 11, 920 N.W.2d
742. We held a probationary search was constitutionally reasonable because law
enforcement had reasonable suspicion unlawful activity was afoot when an individual
on supervised probation failed to fulfill a condition of his probation. Id. at ¶ 13. The
defendant in White was on supervised probation for felony drug charges, was subject
to residential probationary searches as a condition of probation, and was living with
another individual also on supervised probation. Id. at ¶ 2.
[¶11] Here, Stenhoff’s supervised probation conditions also included a search clause.
The child’s statement alluding to the presence of drugs in the residence to officers



                                           4
during the initial officer safety sweep provided reasonable suspicion that unlawful
activity was afoot. Stenhoff does not dispute this point.
[¶12] The district court’s order stated:
             Approximately fourteen hours after Stenhoff’s arrest, a
       warrantless probation search was conducted of the residence in which
       he was found. There is no exigency or indication that the officer was
       under any time constraints in obtaining a warrant. In this court’s
       opinion, the warrantless search was unreasonable and a violation of the
       Fourth Amendment’s prohibition against unreasonable searches.
The court’s analysis that because there may have been time to obtain a search warrant,
it was unreasonable not to seek a warrant, while noble, is legally flawed.
[¶13] No argument has been made that the information relied upon for reasonable
suspicion 14 hours later is stale. Relying on U.S. v. Knights, 534 U.S. 112 (2001),
Stenhoff argues that once a probationer is arrested and is in custody, they are no
longer subject to the conditions of probation. In Knights, the United States Supreme
Court stated: “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.”’ Id. at 119 (citing Griffin v. Wisconsin, 483 U.S. 868,
874 (1987) (citation omitted)). While we agree that probation is a point on the
continuum of punishments, we disagree that being in custody for a probation violation
somehow terminates or suspends Stenhoff’s probation or the conditions of probation.
[¶14] A similar argument was made in a post-conviction case, where the defendant
argued he could not willfully violate a condition of probation because he did not think
the condition applied while he was in prison. Davis v. State, 2001 ND 85, ¶ 6, 625
N.W.2d. 855. We stated in Davis, that the district court may impose prior conditions
of probation under N.D.C.C. § 12.1-32-07 while a defendant is in prison. Id. at ¶ 7.
While that is not the case here, it shows that conditions of probation may apply when
a person is incarcerated, rather than incarceration and probation being two mutually
exclusive points on the continuum. Stenhoff remained on probation and subject to
conditions of probation while in custody until such time as his probation was

                                           5
terminated or revoked. See N.D.C.C. § 12.1-32-07(6) (stating the court, upon notice
to the probationer and with good cause, may modify or enlarge the conditions of
probation prior to the expiration or termination of the probation period, and upon
violation of a condition of probation, the court may continue probation or revoke
probation); see also N.D.R.Crim.P. 32(f)(1) (discussing process for taking probationer
into custody upon showing of probable cause for a probation violation, but noting
probationer may be admitted to bail pending the hearing).
[¶15] In U.S. v. Ickes, a probationer argued the fact that he was in custody during the
search militates against the government’s right to conduct a probation search of his
property. 2017 WL 1017120. In Ickes, the United States District Court for the
Western District of Kentucy rejected his argument relying on U.S. v. Martin, 25 F.3d
293 (6th Cir. 1994), where the Sixth Circuit held it was reasonable for the probation
officer to search the defendant’s car despite the fact that the defendant was already
in custody. Id. at *2. While not directly on point, a similar result has been held in
regard to prisoners on parole. See U.S. v. Jones, 152 F.3d 680, 686-87 (7th Cir. 1998)
(discussing post-arrest search of parolee’s residence indicating defendant’s arrest did
not eliminate his diminished expectation of privacy or risk to society posed by
contraband in his residence); U.S. v. Hill, 967 F.2d 902, 911 (3d Cir. 1992)
(determining warrantless search of a parolee’s business one day after his arrest and
incarceration did not violate the Fourth Amendment); U.S. v. Trujillo, 404 F.3d 1238,
1243-44 (10th Cir. 2005) (holding that search of a parolee’s residence subsequent to
arrest did not affect the validity of the parole agreement’s search condition).
[¶16] In Knights, the United States Supreme Court held a warrantless search of a
probationer’s residence is reasonable under the Fourth Amendment if an officer has
reasonable suspicion that a probationer subject to a search condition is engaged in
criminal activity. 534 U.S. at 120-21. This Court relied on Knights in holding a
person on supervised probation has a lower expectation of privacy, and under the
totality of the circumstances, no more than reasonable suspicion is required to conduct


                                          6
a search. White, 2018 ND 266, ¶ 11, 920 N.W.2d 742. The district court erred in
concluding the search here was not reasonable.


                                         IV
[¶17] Under the totality of the circumstances, a reasonable suspicion that drugs were
in Stenhoff’s residence was supported by the child’s statement at the time Stenhoff
was apprehended for a probation violation. The district court’s order granting
Stenhoff’s motion to suppress evidence is reversed and remanded for further
proceedings.
[¶18] Lisa Fair McEvers
      Jon J. Jensen
      Jerod E. Tufte
      Daniel J. Crothers
      Gerald W. VandeWalle, C.J.




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