               Filed 12/6/18 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                     STATE OF NORTH DAKOTA


                                 2018 ND 266


State of North Dakota,                                     Plaintiff and Appellee

      v.

Anquine Lamont White,                                   Defendant and Appellant


                                 No. 20180020


       Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Kirsten M. Sjue, Judge.

      AFFIRMED.

      Opinion of the Court by Crothers, Justice.

      Laura C. Ringsak (on brief), Bismarck, ND, for defendant and appellant.

       Nathan K. Madden (on brief), Williams County Assistant State’s Attorney,
Williston, ND, for plaintiff and appellee.
                                    State v. White
                                    No. 20180020


       Crothers, Justice.
[¶1]   Anquine White appeals a district court criminal judgment after a jury found
him guilty of drug, paraphernalia and firearm possession. White argues officers
conducted a warrantless, suspicionless probationary search and violated his
constitutional rights against unreasonable searches and seizures.          Reasonable
suspicion of White’s roommate violating probation supported the initial search of the
home, and discovery of evidence in plain view permissibly expanded the search. We
affirm the criminal judgment.


                                           I
[¶2]   White was on supervised probation for felony drug charges. He lived in
Williston with another individual on supervised probation. Both men reported to the
probation department that the home’s address was their current residence and both
men were subject to residential probationary searches as a condition of probation.
White’s roommate was on supervised probation approximately two months before the
search of the residence. The roommate failed to report to probation officers as
directed, even after an encounter with probation officers instructing him to contact the
probation office by the end of the following week. Ten days after the roommate’s
deadline to report, probation officers visited the home to contact the roommate or
White. White had not reported to probation officers for six weeks at the time of the
search.
[¶3]   Upon arrival at the home, a third-party told the officers neither the roommate
nor White were available. Based on the probation violation of White’s roommate in
failing to report, the officers searched the premises for the roommate or White. The
search did not yield White or the roommate, but officers discovered a scale in plain
view in one of the bedrooms. Officers expanded the search after the discovery and

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recovered several items of contraband, including paraphernalia, drugs and a firearm.
Officers found personal effects linking White to the bedroom, and the State charged
him with possession of drugs, paraphernalia and a firearm.
[¶4]   White moved to suppress the evidence gathered during the search, arguing that
failure to report to probation officers is not sufficient to support a probationary search.
The district court found a totality of the circumstances provided reasonable suspicion
for the search based on the roommate’s failure to report to probation officers. The
district court found the officers permissibly expanded the search after discovering a
scale with suspected drug residue in plain view in one of the bedrooms. The district
court denied the motion to suppress evidence and a jury found White guilty.


                                            II
[¶5]   White argues the district court erred in denying his motion to suppress because
actions by the officers amounted to a suspicionless search in violation of his Fourth
Amendment rights against unreasonable searches and seizures. He claims the search
violated Fourth Amendment rights because the officers lacked reasonable suspicion
to initiate the search of the home.
[¶6]   When reviewing a district court’s decision regarding a motion to suppress, we
defer to the district court’s findings of fact to resolve conflicts in testimony in favor
of affirmance. State v. Kitchen, 1997 ND 241, ¶ 11, 572 N.W.2d 106. We affirm a
district court decision on a motion to suppress if there is “sufficient competent
evidence fairly capable of supporting the court’s findings, and the decision is not
contrary to the manifest weight of the evidence.” State v. Nickel, 2013 ND 155, ¶ 12,
836 N.W.2d 405 (internal quotation marks and citations omitted). Questions of law
are fully reviewable, and whether a finding of fact meets a legal standard is a question
of law. State v. Schmidt, 2015 ND 134, ¶ 5, 864 N.W.2d 265.
[¶7]   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 interpret

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the North Dakota Constitution to provide the same protections for probationers as
provided by the United States Constitution. State v. Ballard, 2016 ND 8, ¶ 8,
874 N.W.2d 61. 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. Ballard, at ¶¶ 8, 34.
[¶8]   In United States v. Knights the Supreme Court considered the totality of
circumstances, balanced government and private interests and held a probationary
search was reasonable when it was supported by reasonable suspicion and authorized
by a condition of probation. United States v. Knights, 534 U.S. 112, 122 (2001). The
Court in Knights explained probationers have a lesser expectation of privacy:
       “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.”
Id. at 119 (internal citations and quotation marks omitted). The Court further stated
a probationer may be more likely than ordinary members of society to engage in
future criminal conduct, and therefore the State may justifiably focus on probationers
in a way that it does not focus on ordinary citizens to stop potential criminal conduct
and protect potential victims. Id. at 120-21. The Court did not address whether a
suspicionless search authorized by a condition of probation was reasonable. Id. at
120 n. 6.
[¶9]   The Supreme Court considered a parolee’s diminished rights and privacy
interests in Samson v. California and held the suspicionless search of a parolee does
not violate the Fourth Amendment. Samson v. California, 547 U.S. 843, 846 (2006).
Under the totality of the circumstances the Court explained a parolee or prisoner has



                                          3
a lesser expectation of privacy than a probationer and the government interests are
substantial. Id. at 850-53.
[¶10] This Court considered the constitutionality of probationary searches in Ballard.
2016 ND 8, 874 N.W.2d 61. Using the totality of the circumstances test, a majority
of this Court held a suspicionless search of an unsupervised probationer was
constitutionally unreasonable and violated the Fourth Amendment. Id. at ¶¶ 41-42.
The State’s interest in restraining the liberty of unsupervised probationers is less than
the interest in supervising parolees. Id. at ¶ 41. On the continuum of privacy rights
the unsupervised probationer with minimal probation conditions has a greater
expectation of privacy, and the governmental interests did not outweigh the
unsupervised probationer’s expectation of privacy. Id. Thus, a suspicionless search
was unreasonable under the Fourth Amendment. Id.
[¶11] The decision in Ballard turned on the suspicionless search of an unsupervised
probationer. Here, White and his roommate were supervised probationers and the
State claimed the failure of the roommate to report to probation officers as directed
created reasonable suspicion to search the home. This case is similar to Knights
because 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. See Ballard, 2016 ND 8, ¶¶ 35, 37. Under the
totality of the circumstances, no more than reasonable suspicion was required to
conduct a probationary search. See Knights, 534 U.S. at 121, 122 S. Ct. 587.
[¶12] The imposition of conditions of probation is a matter of judicial discretion, and
the trial court is authorized to tailor conditions to meet the particular facts and
circumstances of each case. Davis v. State, 2001 ND 85, ¶ 7, 625 N.W.2d 855. When
imposing probation conditions a court may require individuals to report to probation
officers at reasonable times and as directed by the court or the probation officer.
N.D.C.C. § 12.1-32-07(4)(k). Those probation conditions may subject a probationer’s
residence to a warrantless search. N.D.C.C. § 12.1-32-07(4)(n).



                                           4
[¶13] The conditions of supervised probation for both White and the roommate
included requirements to report to probation officers as instructed, inform the
probation department of changes of address and submit to personal and property
searches conducted by law enforcement. While the roommate reported to probation
officers upon his release from incarceration, he did not make further contact as
directed. On March 1, 2017, probation officers spoke to the roommate while on-duty
for an unrelated matter. Probation officers directed the roommate to report to the
probation office the following week. Ten days after the roommate’s deadline to
report the officers initiated a probationary search in an attempt to locate the roommate
at the home he shared with White. The search was supported by reasonable suspicion
of unlawful activity by the roommate for failing to report to probation officers and
authorized by a condition of probation subjecting the home to a warrantless search.
The search was constitutionally reasonable, and the district court did not err in
denying the motion to suppress.


                                          III
[¶14] After examining the record we conclude, under the totality of the
circumstances, reasonable suspicion of the roommate’s probation violation supported
the search of White’s home. The evidence supports the district court’s findings and
its decision is not contrary to the manifest weight of the evidence. We affirm the
criminal judgment.
[¶15] Daniel J. Crothers
      Lisa Fair McEvers
      Jon J. Jensen
      Jerod E. Tufte
      Gerald W. VandeWalle, C.J.




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