                Filed 6/2/20 by Clerk of Supreme Court

                 IN THE SUPREME COURT
                 STATE OF NORTH DAKOTA

                               2020 ND 124

State of North Dakota,                               Plaintiff and Appellee
     v.
Richard John Jason Powley,                        Defendant and Appellant



                         Nos. 20190323 & 20190324

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Bruce A. Romanick, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Justice.

Joshua A. Amundsom, Assistant State’s Attorney, Bismarck, ND, for plaintiff
and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
                              State v. Powley
                         Nos. 20190323 & 20190324

VandeWalle, Justice.

      Richard Powley appealed from a criminal judgment entered after a jury
found him guilty of three counts of gross sexual imposition (GSI). On appeal,
Powley argues the district court erred by denying his motion to suppress
evidence obtained from a warrantless search of his cell phone. We affirm.

                                       I

     Powley was arrested for aggravated assault on July 17, 2017. Powley was
on parole at the time of his arrest. As a condition of his parole, Powley
consented to the following term:

      I shall allow my person, place of residence and any outbuildings or
      curtilage, vehicle, or property I own, lease or possess; to be
      searched and any contraband and evidence found may be seized at
      any time of the day or night by a parole officer without requiring
      the parole and probation officer to obtain or present a search
      warrant.

On the day after Powley’s arrest, the detective investigating the assault case
seized Powley’s cell phone from his property at the detention center. On July
25, Powley was transferred to the state penitentiary. On July 26, detectives
conducted a warrantless search of Powley’s cell phone as part of the
investigation of the aggravated assault under the condition of Powley’s parole
permitting warrantless searches. The detectives believed there was evidence
of communications between Powley and the victim of the aggravated assault
on Powley’s cell phone. As part of the warrantless search of Powley’s cell phone,
detectives discovered videos of Powley sexually assaulting an adult woman.
These videos led to the GSI charges against Powley. Powley’s parole was
revoked on August 9, 2017.

      After being charged, Powley made a motion to suppress the evidence
extracted from his cell phone. Powley argued that given the totality of the
circumstances, the search of his phone was unreasonable because he was in


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custody at the time of the search. Powley cited State v. White, 2017 ND 51, 890
N.W.2d 825, and State v. Ballard, 2016 ND 8, 874 N.W.2d 61, in support of this
argument. Powley also argued the conditions of his parole became null and
void once he was taken into custody. The district court denied Powley’s motion.
The court found Powley’s parole was not revoked until August 9, 2017, and
therefore Powley was still subject to the conditions of his parole. The district
court additionally found the conditions of Powley’s parole remained in effect
while he was incarcerated under N.D.C.C. § 12-59-15.

                                       II

     Our standard for reviewing a district court’s decision to grant or deny a
motion to suppress evidence is well established:

      A trial court’s disposition of a motion to suppress will not be
      reversed if, after 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. Questions of law
      are fully reviewable. Whether a violation of the constitutional
      prohibition against unreasonable searches and seizures has
      occurred is a question of law.

State v. West, 2020 ND 74, ¶ 7, 941 N.W.2d 533 (quoting State v. Ballard, 2016
ND 8, ¶ 6, 874 N.W.2d 61).

                                      III

        On appeal, Powley argues that because law enforcement detectives
conducted the warrantless search of his phone, instead of a parole or probation
officer, the search was not permitted under Powley’s conditions of parole, and
any evidence obtained from the search should have been suppressed. After
reviewing the entire record, Powley did not raise this argument in the district
court. “We have long held that issues not raised or considered in the district
court cannot be raised for the first time on appeal.” State v. Smith, 2019 ND
239, ¶ 12, 934 N.W.2d 1 (citing State v. Dockter, 2019 ND 203, ¶ 8, 932 N.W.2d
98). We decline to consider Powley’s argument because he is raising it for the
first time on appeal.

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                                       IV

      Powley argues the terms of his parole were suspended because he was
incarcerated. Section 12-59-15(2), N.D.C.C., provides:

      Upon issuance of a warrant of arrest for a parole violation, the
      running of the time period of parole must be suspended until the
      parole board issues a final order under this section. The parolee is
      entitled to credit for time spent in physical custody from the time
      of arrest until the time the parole board issues a final order.

Powley contends this provision suspended the terms of his parole once he was
incarcerated, and, therefore, law enforcement was not permitted to conduct the
warrantless search of his cell phone pursuant to the terms of his parole.

       In State v. Stenhoff, 2019 ND 106, 925 N.W.2d 429, we considered an
argument similar to Powley’s. Stenhoff was on supervised probation. Id. at ¶
2. As part of the terms of his probation, Stenhoff agreed to submit his person,
place of residence and vehicle, or any other property to which he had access to
warrantless searches. Id. While serving his probationary sentence, Stenhoff
was arrested for allegedly violating the terms of his probation and
incarcerated. Id. at ¶¶ 2-3. After Stenhoff was incarcerated, law enforcement
officers and Stenhoff’s probation officer conducted a probationary search of the
residence where Stenhoff was apprehended and found illegal contraband. Id.
at ¶ 4. Stenhoff filed a motion to suppress the illegal evidence claiming the
warrantless probationary search violated his Fourth Amendment rights. Id. at
¶ 5. The district court granted Stenhoff’s motion. Id. at ¶ 1. We reversed
concluding Stenhoff’s incarceration did not terminate or suspend Stenhoff’s
probation or the conditions of his probation and held “conditions of probation
may apply when a person is incarcerated.” Id. at ¶¶ 13-14. More analogous to
the instant case, we pointed out that “a similar result has been held in regard
to prisoners on parole.” Id. at ¶ 15 (citing U.S. v. Jones, 152 F.3d 680, 686-87
(7th Cir. 1998); U.S. v. Hill, 967 F.2d 902, 911 (3d Cir. 1992); U.S. v. Trujillo,
404 F.3d 1238, 1243-44 (10th Cir. 2005)).

      Nowhere in N.D.C.C. § 12-59-15(2) are a parolee’s conditions of parole
discussed, and nor does § 12-59-15(2) suspend a parolee’s conditions of parole

                                        3
upon the parolee’s incarceration. Moreover, we see no meaningful difference
between Stenhoff and the instant case. Consistent with our decision in Stenhoff
and the cases cited therein, as well as the decisions of other states with similar
statutes, e.g., State v. Ellis, 314 P.3d 639 (Idaho Ct. App. 2013), we extend the
holding pronounced in Stenhoff and conclude a parolee’s conditions of parole
continue to apply when the parolee is incarcerated. Powley remained subject
to the conditions of his parole while he was incarcerated, until his parole is
revoked.

                                       V

      Powley asserts law enforcement detectives conducted a suspicionless
search of his cell phone. Powley contends that because he was incarcerated at
the time of the search, the warrantless search was unreasonable and in
violation of his Fourth Amendment rights. The State urges us to establish a
bright line rule consistent with the United States Supreme Court’s decision in
Samson v. California, 547 U.S. 843 (2006), in which the Court held
suspicionless searches of parolees under California statute were not
unreasonable using a totality-of-the-circumstances approach. We decline both
arguments because law enforcement detectives had reasonable suspicion to
conduct the warrantless search of Powley’s cell phone.

     In State v. Stenhoff, 2019 ND 106, ¶ 9, 925 N.W.2d 429, we expounded
the relationship between the protections provided under the Fourth
Amendment 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.” [State v.] 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


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           circumstances to determine whether a search is
           reasonable within the meaning of the Fourth
           Amendment.” Samson v. California, 547 U.S. 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.” [State v.]
     Ballard, [2016 ND 8, ¶ 30, 874 N.W.2d 61] (quoting U.S. v.
     Knights, 534 U.S. 112, 118-19, 122 S.Ct. 587, 151 L.Ed.2d 497
     (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, 534 U.S. 112, 122 S.Ct. 587, 593, 151 L.Ed.2d 497 (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.”).

      Parole is one point on the “continuum” of state-imposed punishments.
See Ballard, 2016 ND 8, ¶¶ 34-35, 874 N.W.2d 61 (quoting Samson, 547 U.S.
at 850). “On this continuum, parolees have fewer expectations of privacy than
probationers, because parole is more akin to imprisonment than probation is
to imprisonment.” Samson, 547 U.S. at 850. By virtue of their status alone,
parolees have “severely diminished expectations of privacy.” Samson, at 852.

      In Ballard, 2016 ND 8, 874 N.W.2d 61, a deputy sheriff conducted a
suspicionless search of Ballard’s home while he was on unsupervised
probation. Id. at ¶¶ 2, 4. Ballard argued the suspicionless search of his home
while he was on unsupervised probation was unreasonable. Id. at ¶ 1. The


                                      5
majority opinion discussed, at length, the continuum of state-imposed
punishments and the expectation of privacy at various points on the
continuum. The majority posited that probationers are afforded an expectation
of privacy greater than parolees or prisoners because a defendant’s loss of
liberty is proportional to the punishment received on the continuum. See id. at
¶¶ 34-41. Comparing the terms and conditions of Samson’s parole to “Ballard’s
modest conditions of unsupervised probation,” the majority held suspicionless
searches of unsupervised probationers are unreasonable under the Fourth
Amendment. Id. at ¶¶ 39-41.

       Shortly after Ballard, we decided White, 2017 ND 51, 890 N.W.2d 825.
White argued a probation search of his cell phones while he was on supervised
probation was unreasonable because the terms of his probation limited a
search to his person, vehicle, or residence. Id. at ¶ 6. We held that “[a]
supervised probationer has a lower expectation of privacy than an
unsupervised probationer,” and “[b]alancing the totality of the circumstances,
no more than reasonable suspicion was required to conduct a search under the
conditions of White’s probation.” Id. at ¶ 12. Additionally, we concluded the
“conditions of White’s probation allowed officers to search the cell phones
located inside White’s residence as part of the probation search.” Id. at ¶ 13
(citing State v. Gonzalez, 2015 ND 106, ¶¶ 16-17, 862 N.W.2d 535 (holding
search of probationer’s cell phones located inside probationer’s residence and
vehicle was within scope of valid probationary search when condition of
probation authorized search of person, place of residence or vehicle)).

       “Reasonable suspicion exists when a reasonable person would be
justified by some objective reason to suspect the defendant was, or was about
to be, engaged in unlawful activity.” Id. at ¶ 14 (citing State v. Franzen, 2010
ND 244, ¶ 12, 792 N.W.2d 533). “Whether the facts in a particular case support
a reasonable and articulable suspicion is a question of law which is fully
reviewable on appeal.” State v. Ashby, 2017 ND 74, ¶ 9, 892 N.W.2d 185 (citing
City of Dickinson v. Hewson, 2011 ND 187, ¶ 6, 803 N.W.2d 814). Powley was
arrested for aggravated assault while he was on parole. As part of the
investigation into the aggravated assault, law enforcement officers conducted
a warrantless search of Powley’s cell phone, as was authorized under the

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conditions of Powley’s parole. The detective who conducted the search of
Powley’s phone believed there may have been evidence of communications
between Powley and the victim in the aggravated assault case. Under the facts
of this case, the search of Powley’s cell phone was not a suspicionless search.
The detectives who conducted the search had a basis for doing so as part of the
investigation into the aggravated assault. And consistent with our decision in
White, Powley agreed to the warrantless search of his cell phone under the
conditions of his parole.

       Powley’s expectation of privacy was diminished by virtue of his parolee
status alone. On the continuum of state-imposed punishments, parolees have
fewer expectations of privacy than probationers. We have held that
warrantless searches of supervised probationers based on reasonable suspicion
are not unreasonable under the Fourth Amendment. Therefore, a warrantless
search of a parolee based on reasonable suspicion passes constitutional muster.
Under the totality of the circumstances, the search of Powley’s cell phone was
not constitutionally unreasonable because law enforcement had reasonable
suspicion to conduct the search. Because the search of Powley’s cell phone was
based on reasonable suspicion, we do not reach the issue of whether
suspicionless searches of parolees are permitted under our jurisprudence. The
district court did not err in denying Powley’s motion to suppress the evidence
obtained from the warrantless search of his cell phone because the search of
Powley’s cell phone was not in violation of his Fourth Amendment rights.

                                     VI

      The criminal judgment is affirmed.

      Gerald W. VandeWalle
      Jerod E. Tufte
      Lisa Fair McEvers
      Daniel J. Crothers
      Jon J. Jensen, C.J.




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