State v. Page , 115 Ariz. 131 ( 1976 )

OPINION

DONOFRIO, Presiding Judge.

Appellant, Susan Lynn Page, was charged by information with the crime of possession of a narcotic drug, to wit: heroin, in violation of A.R.S. § 36-1002, Laws 1961. Pursuant to a plea agreement the appellant entered a plea of no contest on February 6,1975 to the charge of possession of dangerous drugs in violation of A.R.S. § 32-1970(C)(1), Laws 1971. On March 6, 1975 she was placed on probation for a period of three years.

On appeal, the following arguments are presented:

1. That appellant’s plea of no contest was entered in violation of Rule 17.3, Rules of Criminal Procedure, 17 A.R.S. in that there was no factual basis for the plea;

2. That the condition of her probation that she submit to a search and seizure of her person at any time by any peace officer or probation officer is overbroad and in violation of her 4th Amendment privilege against unreasonable searches and seizures.

Rule 17.3, Rules of Criminal Procedure, 17 A.R.S. provides that the trial court, before accepting a plea of guilty or no contest, shall determine that there is a factual basis for the plea. Appellant argues that because the trial court relied on evidence that the appellant possessed heroin as a factual basis for the no contest plea to possession of dangerous drugs, the plea was unlawfully accepted in that possession of dangerous drugs is not a lesser included crime of possession of heroin. Arizona, however, has followed the position that if there was a factual basis for the more serious charge, a factual basis for the lesser charge need not be shown. State v. Bates, 22 Ariz.App. 613, 529 P.2d 1207 (1975).

The issue presented by appellant has recently been discussed at length in the Court’s opinion of State v. McGhee, 27 Ariz. App. 119, 551 P.2d 568 (1 CA-CR 948, filed June, 1976). That opinion does not preclude the pleading guilty to an offense for which the record does not show a factual basis if (1) there is a factual basis for a more serious charge originally brought against the defendant, and (2) that the charge to which the defendant pleads guilty is reasonably related to the acts shown by the record. The Court, citing comment to ABA Standards, specifically points out that the reduction must at least be to a charge which bears some categoric similarity to the original charge.

As to the first requirement, appellant admits in her brief that at the February 6, 1975 plea proceedings a factual basis was established for the charge of possession of heroin. This is a more serious charge than possession of dangerous drugs. Turning to the second requirement, we find no difficulty in stating that the crime of possession of dangerous drugs is “reasonably related” and bears “some categoric similarity” to the charge of possession of heroin. Both crimes are drug related and connote the same type of criminal activity. Therefore, we conclude that the trial court has complied with the mandate of Rule 17.3.

Appellant’s second argument relates to condition No. 16 of the terms and conditions of probation imposed by the trial court which states:

“That defendant submit to search and seizure of person or property at any time by any peace officer, or probation officer, without the benefit of a search warrant.”¹

Appellant does not argue that she is entitled to the full panoply of Fourth Amendment rights which extend to non-probationers, but that condition No. 16 is not properly restricted to society’s interest in probation (rehabilitation and prevention of future crimes) and thus is overbroad. She argues that because it gives any peace officer the authority to seize and search her person or property without a warrant at his unfettered whim, it violates her Fourth Amendment rights.

The State answers that appellant ignores the fact that probation is a matter of grace and not of right and therefore is subject to any conditions imposed within the court’s discretion pursuant to A.R.S. § 13-1657, Laws 1970.

Although our search does not disclose previous decisions on point in this jurisdiction, appellant’s position is not novel. Conditions substantively identical to the one at bar have been given consideration by courts of other jurisdictions and by law commentators.² All of the eases recognize that a probationer is entitled to some protection by the Fourth Amendment. The question to be decided is what are the limits of that protection.

The courts which have upheld the condition have done so under one or more of three rationales which have been referred to as the “custody” and “waiver” theories and the “reasonable expectation of privacy” rationale.³ Under the custody theory, the grace concept of probation is maintained with the probationer being conceptionally in a jail without walls. Because it is only through the grace of a trial court that the probationer is not incarcerated, he cannot be heard to complain of any Fourth Amendment restrictions imposed as a condition of probation which would otherwise have been incidental to his imprisonment.

The waiver theory proceeds from the premise that a defendant at the time of sentencing has the alternative of rejecting the terms of probation and proceeding with sentencing or accepting the conditions thereby waiving any objections thereto. Both of these theories have patent fallacies. The custody theory fails to recognize that the severe limitations on Fourth Amendment privileges imposed in a custodial situation are commanded by the necessity of orderly administration of the custodial environment and therefore are not necessarily coterminous to a probationary status. A spot check of a jail cell is a far cry from a similar intrusion into a probationer’s home where he may be living with his family.

The waiver theory, which presumes consent to the terms of probation by the defendant, presents consent in more of a nominal than real sense. The damoclean choice of imprisonment would rarely be chosen over probation, even if the probationer must accept severe inroads on protections afforded by the Bill of Rights. In addition, this theory also fails to recognize that the decision to impose probation versus imprisonment is primarily the responsibility of the trial judge.

The “reasonable expectation of privacy” approach was relied upon in People v. Mason, supra, and in our opinion is the most cogent. Under this approach a probationer would have no reasonable expectation of privacy as to those search conditions which are reasonably related to the proper administration of his probation or to the prevention of future criminal activity.

We disagree, however, with the majority’s opinion in Mason that a condition such as the one at bar meets the criteria established. We believe that the condition fails to meet the standard in two respects. First, we agree with the holding in United States v. Consuelo-Gonzalez, supra, that the condition is overbroad in that it does not limit the authority to search to the probation officer or to a peace officer at the probation officer’s direction. We recognize that information leading to the search may originate from peace officers in their normal course of investigation of other crimes. However, we fail to see how a carte blanche authority for any peace officer to search the appellant, whether the search is related to the probation or not, meets this standard. Second, we believe that the condition is overbroad in that it does not require any factual basis that a breach of probation is occurring or is about to occur prior to the search. In our opinion, the probation officer must have some reasonable basis to suspect a violation prior to a search which is not regulatory in nature.⁴

We believe that the following condition would properly reflect the views expressed herein.

That the defendant submit to a search of her person or property conducted in a reasonable manner at a reasonable time by a probation officer or peace officer at his direction where the probation officer has reasonable grounds to believe that a violation of probation has occurred or is about to occur.

The judgment is affirmed. However, for the reasons stated, this case is remanded to the trial court to permit the trial court to modify the conditions of probation to be consistent with this opinion.

OGG, J., concurs.

1 . Although the record does not reflect that any search has yet been conducted pursuant to condition 16, we nevertheless decide the issue presented because of the fact that defendant’s Fourth and Fourteenth Amendment rights have been and are being reduced by the Court’s existing provision.

2 . See People v. Peterson, 62 Mich.App. 258, 233 N.W.2d 250 (1975); United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975); State v. Schlosser, 202 N.W.2d 136 (S.Ct. N.D. 1972); People v. Mason, 5 Cal.3d 759, 97 Cal. Rptr. 302, 488 P.2d 630 (1971), cert. den. 405 U.S. 1016, 92 S.Ct. 1289, 31 L.Ed.2d 478 (1972) and W. White, the Fourth Amendment Rights of Parolees and Probationers, 31 U.Pitt.L.Rev. 167 (1969). See also recent case of Tamez v. State, Tex.Cr.App., 534 S.W.2d 686 (1976).

3 . For a full discussion of these rationales see the dissenting opinion of Judge Wright in United States v. Consuelo-Gonzalez, 521 F.2d 259, 273-275 (1975).

4 . Regulatory searches are those such as are required by condition No. 9 of appellant’s conditions and regulations of probation which state:

“Defendant shall submit to urinalysis testing as directed by probation officer.”

This type of search is at the direction of the probation officer pursuant to this authority under A.R.S. § 13-1657(A)(1) to supervise the probation and is directly related to preventing or discovering the type of proscribed behaviour for which the defendant was convicted. As such, it is related to society’s interest in the probationary process and is reasonable under the Fourth Amendment standards.