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Here, defendant was the subject of a warrantless probation search which led to convictions of drug offenses. On appeal, he challenged the district court’s order overruling his motion to suppress evidence discovered as a result of the probation search. Because the Nebraska Court of Appeals concluded that the provision of the probation order authorizing warrantless searches contributed to the rehabilitation process and that the search was reasonable, they affirmed.
State v. Colby, 16 Neb. App. 644 (2008)
Court of Appeals Headnotes
Motions to Suppress:
1. Investigative Stops: Warrantless Searches: Probable Cause: Appeal and Error. A trial court’s ruling on a motion to suppress based on the Fourth Amendment, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. The ultimate determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search are reviewed de novo and findings of fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge.
Search and Seizure:
1. 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.’
2. Search Warrants: Probable Cause. Generally, a search should be undertaken only pursuant to a warrant supported by probable cause.
Probation and Parole.
1. Probation, like incarceration, is a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.
2. Search and Seizure: Constitutional Law. Conditions in probation orders requiring the probationer to submit to warrantless searches, to the extent that they contribute to the rehabilitation process and are done in a reasonable manner, are valid and constitutional.
Date Filed and Case No.: April 22, 2008. No. A-07-777.
Internet Address: http://www.supremecourt.ne.gov/opinions/2008/april/apr22/a07-777.pdf
Court Appealed From: District Court for Scotts Bluff County: Randall L. Lippstreu, Judge.
Attorneys for the Appeal: Brian J. Lockwood for Jason L. Colby, appellant. Jon Bruning and Stacy M. Foust for State of Nebraska, appellee.
Judges: Severs, Moore, and Cassel, Judges.
Authored By: Cassel, Judge.
Summary: On October 24, 2005, the district court for Scotts Bluff County sentenced Jason L. Colby to probation for a period of 3 years for his conviction of possession of a controlled substance. The terms which required him to report as directed by the court or his probation officer to submit to searches without a warrant and without probable cause when a probation officer has a reasonable suspicion that he has violated terms of his probation. The probation further required him to refrain from using or possessing alcohol or controlled substances and submit to drug tests. On January 10, 2007, Colby’s probation officer asked law enforcement officials to conduct a probation search of Colby and Colby’s residence, but would be out of town when the searches were to take place.
Law enforcement decided that it would be best to make contact with Colby outside of his residence. Therefore, surveillance was set up about a block and a half from Colby’s residence. A traffic stop of Colby’s vehicle was made and a probation search of Colby’s person was performed. The search revealed, among other things, drug paraphernalia and a clear plastic bag containing what was later determined to be methamphetamine. Colby was placed under arrest and transported to jail, where more bags containing methamphetamine were found in Colby’s mouth. After Colby’s arrest, his vehicle was searched and officers requested a search warrant for Colby’s residence. An affidavit in support of a search warrant was submitted to the district judge, reciting the events of the day, including the arrest and search of Colby. The affidavit also stated that as recently as December 31, 2006, an officer had received an anonymous tip that Colby was selling methamphetamine out of his residence. Based upon the affidavit a search warrant on for the search of Colby’s residence was issued. Officers executed the warrant on the same day and seized methamphetamine and drug paraphernalia.
Colby was charged by information in the district court with possession of a controlled substance with intent to deliver and possession of drug paraphernalia. After his motion to suppress was denied, a jury trial was held and the jury found Colby guilty. Colby appealed to the Nebraska Court of Appeals.
Did the district court err in not granting the motion to suppress because the warrant for the search was based on the probation search, and the probation search was unlawful? According to Colby, if the probation search had not been performed, the warrant for the search of his residence would not have been issued. Therefore, if the probation search was unlawful, the residence search was also unlawful. He asserts that the probation search was an unlawful warrantless search because the condition of his probation permitting warrantless searches did not contribute to the rehabilitation process and because the probation search was not performed in a reasonable manner. In support of his argument that the search was unreasonable, Colby emphasized the fact that his probation officer was not present for the probation search, the remoteness in time of the search to any suspected wrongdoing by Colby, and the lack of wrongdoing by Colby at the time of the search.
The Court said that the stop and search of Colby’s vehicle and search of his person were conducted pursuant to an order by his probation officer and not pursuant to a warrant or a finding of probable cause. Here, Colby’s probation was or a drug offense so requiring him to submit to warrantless searches, to report to his probation officer and refrain from using or possessing alcohol or controlled substances were reasonably related to the enforcement of the other conditions of Colby’s probation. In addition, the warrantless search condition contributed to the rehabilitation process. They concluded that the probation search was reasonable. The warrantless search condition of Colby’s probation significantly diminished his expectation of privacy. Here, Colby clearly violated the terms of his probation as evidence showed he had not reported to his probation officer or submitted to drug tests for “quite a time.” The probation officer had more than a reasonable suspicion that Colby violated the terms of his probation. The Court concluded that the probation search was reasonable. Furthermore, the fact Colby’s probation officer was not present during the search did not make the search of Colby unreasonable.
Conclusion: The Court concluded that the stop and search of Colby’s vehicle and person were valid and lawful. They further concluded that the search of Colby’s residence was lawful because it was done pursuant to a search warrant that was supported by probable cause. The Court therefore affirmed the district court’s judgment overruling the motion to suppress. AFFIRMED.
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