State v. Fogarty ( 1980 )


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  •                                      No. 14437
    I THE SUPRJ3!lE C O W OF THE STATE OF PDNTANA
    N
    1979
    THE STATE OF ICNTNW,
    Plaintiff and Respondent,
    -vs-
    WILLIAM~FOGAIITY,
    Defendant and Appellant.
    Appeal from:    D i s t r i c t Court of the Fourth Judicial D i s t r i c t ,
    Honorable Jack L. Green, Judge presiding.
    Counsel of Record:
    For Appllant:
    Wrales, Volinkaty & H a r r , Missoula, Wntana
    Bruce Harr argued, Missoula, mntana
    For Respondent :
    Hon. Mike Greely, Attorney General, Helena, Wntana
    Allen B. Chronister argued, A s s i s t a n t Attorney C J a l ,
    Helena, Wntana
    Douglas G. Harkin, County Attorney, Hamilton, mntana
    Mr. Justice Daniel J. Shea delivered the Opinion of the
    Court.
    Defendant appeals from an order of the Ravalli County
    District Court revoking a ten-year suspended sentence and
    ordering him to prison.    Defendant remains free on his own
    recognizance pending this appeal.
    Defendant attacks the order revoking his suspended
    sentence on the grounds that the revocation order was based
    upon the results obtained from a search of his home and a
    polygraph examination administered to him.     The search was
    conducted pursuant to an unlimited search provision, and the
    polygraph examination was performed pursuant to an unlimited
    polygraph examination provision both of which were placed in
    the original judgment as conditions of probation.    Defendant
    attacks these provisions on several constitutional grounds.
    There is no statutory authority directly authorizing
    either of the two questioned provisions.     Section 46-18-201(b),
    MCA, however, permits a trial court, when placing a person on
    probation, to impose any reasonable restrictions on the defendant
    during the period of probation.     These conditions must, of
    course, be reasonably related to the rehabilitation of the
    defendant or the protection of society.     Section 46-18-201
    (a) (l), MCA.   Furthermore, section 46-18-202, MCA, is a broad
    grant of authority permitting a trial court to impose additional
    restrictions which may be considered necessary to carry out
    the dual objectives of rehabilitation of the defendant and
    the protection of society.    Imposition of conditions under
    the express or implied authority of the statutes, must, of
    course, comply with the broad objectives for the laws of
    punishment contained in our constitution.    Article 11, Section
    28 provides that "[llaws for the punishment of crime shall
    be founded on the principles of prevention and reformation
    . . ."   For two cases interpreting these statutory provisions,
    -2-
    see State v. Babbitt (1978),            Mont.      , 
    574 P.2d 998
    , 35 St.Rep. 154; and State v. Petko (1978),             Mont .
    ,   
    581 P.2d 425
    , 35 St.Rep. 908.
    Balanced against express or implied statutory sentencing
    powers are federal and state constitutional provisions which
    must be considered as part of the sentencing process.           Needless
    to say, a sentence imposed under a libbral interpretation of
    a sentencing statute which in itself grants broad sentencing
    powers to a trial court does not necessarily pass constitutional
    muster.      Constitutional provisions may well have a countervailing
    influence on the legality of the sentence imposed.
    We have not directly ruled on the constitutionality of
    a search provision, and we have not ruled upon or even discussed
    the constitutionality of a polygraph provision.         In relation
    to search provisions however, in State v. Means (1978),
    Mont.          ,   
    581 P.2d 406
    , 35 St.Rep. 673, dicta in the majority
    opinion would seem to hold that a search provision is not
    constitutionally offensive.        We note, however, that the
    opinion turned on the conclusion that probable cause to search
    existed independent of the search provision.        To the extent
    that Means can be interpreted as permitting an unlimited search
    provision as a condition of probation, it is hereby expressly
    overruled.
    The circumstances underlying the imposition of the
    questioned provisions shed little light on why the conditions
    were imposed.        The search and polygraph provisions were inserted
    in the judgment in this case as part of a ten-year suspended
    sentence given to defendant after he had entered a guilty plea
    to selling a lid of marijuana to an acquaintance.        Also
    required as part of this sentence was that defendant spend
    weekends for a year in the county jail.
    The presentence investigation report prepared by the
    probation officer recommended that a warrantless search
    provision and a polygraph provision be placed in the judgment
    if the court saw fit to suspend the sentence.   The report
    recommended that law enforcement officers have the right to
    search defendant's person or his residence or vehicle at any
    time, and also that the defendant subject himself to a polygraph
    examination whenever the probation officer made the demand.
    The challenged provisions in the judgment provide:
    "b. That the defendant shall submit to a search
    of his person, premises or vehicles at any time
    by lawful authorities, without a search warrant.
    "c. That the defendant shall submit to a polygraph
    examination by qualified examiners at any time,
    upon the request of any law enforcement officer
    and the results of such examination may be used in
    Court, without objection by the Defendant, against
    the Defendant in any proceeding in which the
    Defendant is involved."
    Defendant raises other issues, but we dispose of this appeal
    by deciding that the unlimited polygraph condition is overly
    broad and thus an invalid condition of probation, and that
    the unlimited warrantless search warrant is an unconstitutional
    condition of probation.
    The record is silent as to why the trial court imposed
    either of the conditions.    It is possible, of course, that it
    relied upon the recommendations of the probation officer but
    even those recommendations provide no insight as to why the
    probation officer considered them to be necessary or desirable.
    At the hearing on the petition to revoke the suspended sentence,
    we are provided a glimpse as to why the probation officer
    recommended the polygraph condition, but nothing in relation
    to the search provision.    While being cross-examined by defense
    counsel the following exchange appears:
    "A. What was the purpose of having the polygraph
    condition?
    - 4-
    "B. Well, it's a condition that we have
    recently imposed, for, well, I don't know,
    just to go along with the system, I guess."
    The reference to the "system" is left unexplained.
    The same hearing transcript provides a little insight
    as to the trial court's attitude toward a polygraph condition,
    but nothing as to why he thought such condition to be
    necessary in this case.   During an exchange with defense
    counsel after the trial court had denied all of defendant's
    motions and ruled that defendant was in violation of his
    probation, the trial court stated:
    "THE COURT: Well, I understand your position,
    and you may have that in the Supreme Court.
    If I couldn't have put a condition like this
    on this man, he would be in the prison today,
    and if the Supreme Court says we can't do it,
    there will be a lot more going to prison."
    The search provision in the judgment substantially
    follows the probation officer's recommendation; but the
    polygraph provision in the judgment extended the recommendation
    that the probation officer have the right to demand a polygraph
    examination to permit "any law enforcement officer" to demand
    a polygraph examination at any time.   The transcript of the
    original sentencing is not before this Court, and thus we cannot
    tell whether the local prosecutor or the sheriff recommended
    the expanded language in the polygraph provision, or whether
    it was simply inserted in the judgment at a later time.     The
    clerk of court's minutes reflect only that a search provision
    and polygraph provision were to be imposed as conditions of
    probation.   It is customary, however, for the county attorney
    to prepare the judgment of conviction after the formal
    sentencing, and it appears that he expanded upon the recommenda-
    tion of the probation officer by making himself as well as
    other law enforcement officers the beneficiaries of the
    right to demand that defendant take a polygraph examination.
    With this background of the search and polygraph
    provisions, we proceed next to a summary of the events
    occurring between the time of original imposition of the
    search and polygraph conditions and the time defendant's
    probation was revoked.
    One of the conditions of the ten-year suspended prison
    sentence was that defendant spend weekends in jail for one
    year.     Weekends were ordered so that defendant could have
    regular employment during the week.    But shortly after he
    was sentenced, defendant was offered employment as an outfitter
    during big game hunting season, which required that he also
    be gone on weekends.     He approached the local sheriff and
    they agreed that defendant would spend no time in jail during
    the hunting season, but at the termination of his employment,
    defendant would make up the lost weekends by serving a con-
    tinuous period in the county jail.
    During the time defendant was out on probation, the
    sheriff or his deputies came to defendant's home and place
    of employment more than 20 times to check on his activities.
    The record does not reflect whether they conducted any
    searches of his home during his absence.    But they were ready
    for him when he returned home at the termination of his out-
    fitting employment.
    While defendant was working as an outfitter, a friend of
    his was living in and taking care of defendant's home.     Defendant
    had, while employed as an outfitter, returned home once or
    twice a month.     Defendant returned homeat approximately 6:30
    a.m. on October 22, 1977, after having worked all night, and
    the same day at approximately 1:00 p.m., the sheriff and his
    deputy came to the defendant's home and, pursuant to the
    authority conferred by the warrantless search provision searched
    the defendant's home.
    -6-
    The search uncovered some marijuana, but defendant's
    friend immediately assumed responsibility for it and claimed
    it was his.    The officers apparently accepted this claim of
    ownership for they did nothing to implicate defendant at
    this time.    On this same day defendant, in compliance with
    the agreement with the sheriff, turned himself in to the
    Ravalli County jail to commence serving a continuous 26-day
    jail sentence.    It was while defendant was in jail that the
    county attorney invoked the polygraph examination provision
    and demanded that defendant take the examination.
    Defendant received an out of state employment offer while
    he was serving the 26 days, and he therefore filed a motion
    in District Court asking the court to reduce the suspended
    sentence and modify the condition as to jail time.   This
    motion started the wheels spinning in relation to the former
    search which the sheriff had made of the defendant's home.
    The county attorney invoked the polygraph provision and
    demanded that before the trial court take any action on defen-
    dant's motion to change the sentence, that defendant take
    a polygraph examination in relation to the marijuana which
    had been seized by the sheriff pursuant to the warrantless
    search provision.    Defendant was sent to Columbia Falls to
    be examined by Richard Walch, a former law enforcement officer.
    The examiner ran two tests on defendant.    Between the
    first and second test he accused the defendant of not telling
    the truth in relation to his personal use of marijuana while
    on probation.    In response to this accusation defendant
    admitted that while on probation he had occasionally used
    marijuana.    The examiner then ran the second test and the
    results, he concluded, were consistent with defendant's
    assertion that although he had occasionally used marijuana,
    he had nothing to do with the marijuana found in his home
    -7-
    pursuant to the sheriff's warrantless search.   The examiner
    then sent the test results to the county attorney.
    Based on the admissions by defendant that he occasionally
    used marijuana while on probation the county attorney filed
    a petition to revoke defendant's probation and send him to
    prison.   Before the hearing, however, defense counsel filed
    a motion to suppress the testimony to be offered in relation
    to finding the marijuana in defendant's home and the testimony
    of the polygraph examiner as to the defendant's admission to
    him while in the course of conducting the polygraph examinations.
    Defendant urged several constitutional grounds, but the trial
    court, without ever addressing the defendant's contentions,
    overruled them and ruled that defendant had violated the
    conditions of his probation.
    We are provided no insight as to what evidence the trial
    court relied upon in determining that defendant had violated
    his conditions of probation.   It simply declared that defendant
    had violated his conditions of probation, and upon that basis
    revoked the suspended sentence and ordered him to prison.     The
    trial court did, however, change the sentence to a degree.
    After revoking the ten-year suspended sentence, it suspended
    two of the ten years.   Defendant then orally announced his
    intention to appeal, and the trial court released him on his
    own recognizance pending the outcome of this appeal.
    Defendant first contends that the unlimited warrantless
    search clause provision violates his Fourth Amendment rights
    under the United States Constitution and also violates the
    right of privacy and search and seizure provisions of the
    1972 Mont. Const., Art. 11, 5510 and 11.   He takes an absolutist
    position that these constitutional provisions absolutely
    forbid any kind of warrantless search provision as a condition
    - 8-
    of probation.    Most of the cases he cites, however, at
    lease impliedly uphold the constitutionality of a warrantless
    search provision, but have struck down the particular clauses
    involved as being overly broad and thus in violation of the
    probationer's Fourth Amendment rights.   We recognize, however,
    that these cases were not decided on particular search and
    seizure provisions of state constitutions, and neither did the
    cases face an express "right of privacy" provision as set
    forth in our own constitution.
    In relation to the warrantless search provision, the
    State presents an equally absolutist contention that any
    warrantless search provision, no matter how broad, is per
    se constitutional.    The State argues that a person laboring
    under a conviction and not yet released from State supervision,
    even though not in actual physical custody, has no constitutional
    rights at all.    This absurd position is unworthy of further
    discussion.   The real thrust of the State's argument, however,
    is a recognition that the warrantless search clause imposed
    in this case is unconstitutional, but that one which is
    properly framed and properly limited, can and should pass
    constitutional muster.
    The State suggests five factors which can be considered
    and added into the tailoring of a warrantless search clause
    to-satisfy constitutional objections.    First, the right
    to search should be limited to parole or probation officers
    or law enforcement officers searching at the request of
    the parole or probation officer; second, that any search must
    be reasonable as to time, place and manner of execution; third,
    that searches should be permitted only if there is an under-
    lying factual foundation justifying the search (a type of
    probable cause); fourth, that the uses to which the products
    -9-
    of a search can be put should be strictly limited; and
    fifth, that no search provision can be used as an instrument
    of harassment or intimidation.     Unfortunately, however, the
    State fails to apply this criteria to the search clause
    imposed here, for such application would require a determination
    that it is unconstitutional.
    First, the search warrant was not limited to a parole
    or probation officer; rather, it permitted any law enforcement
    officer to conduct the search.     Second, the provision did
    not limit searches to reasonableness in terms of time, place
    and manner of conducting the search; rather, it permitted
    a search at any time the mood should strike.    Third, the pro-
    vision did not contain some form of underlying probable cause
    before one could conduct a search; rather, it permitted a search
    with no cause whatsoever.     Fourth, the provision did not
    limit the uses to which the products of a warrantless search
    could be put; rather, it was silent as to the extent of use
    of the products of a search.    Fifth, it did not specify that
    a search could not be used for purposes of harassment or
    intimidation.    Clearly, by the State's suggested standards,
    the warrantless search clause imposed here struck out on all
    counts.   As we shall later explain our holding, the search
    provision imposed here is patently unconstitutional.
    The thrust of defendant's attack on the polygraph
    examination provision is that it constitutes both an illegal
    search and seizure and a violation of his rights against self-
    incrimination.    He contends that both the federal and state
    constitutions are violated.    As to the illegal search and
    seizure contention, defendant has provided no authority.       Nor
    do we believe, as we understand those terms, that a search
    and seizure in the constitutional sense, is involved.     But
    -10-
    requirement that defendant provide answers to questions
    asked of a polygraph examiner certainly has the potential
    of requiring the probationer to incriminate himself.   The
    question however, is whether the probationer has the same
    rights as a person not laboring under such a disability.
    The right of the State to impose a search provision or
    polygraph provision on a probationer exists only to the extent
    that a probationer can legitimately be denied   his full con-
    stitutional protections and guarantees as a result of his
    status as a probationer.    The argument most often advanced
    in the face of a claim that a probationer's constitutional
    rights were abridged, is that a defendant standing before a
    court for sentencing and having accepted the probationary
    conditions without objection, has waived his rights to later
    assert that any of the conditions imposed may be unconstitutional.
    But a waiver theory ignores the realities of the situation.
    Regardless of the condition imposed, if that is the
    sentencing court's decision, the probationer has little or
    no say in the matter.    He can refuse to accept the conditions
    imposed and go to prison, or he can accept the conditions and
    remain in society subject to the State's supervision for the
    probationary period.    A waiver theory however, does not
    comport with the requirements of Johnson v. Zerbst (19381,
    
    304 U.S. 458
    , 
    58 S. Ct. 1019
    , 
    82 L. Ed. 1461
    , that a waiver is
    invalid unless it be made knowingly, intelligently, and
    voluntarily.   A choice cannot be termed voluntary where the
    alternative is prison and even more restrictions.   As the Court
    stated in State v. Page (1976), 
    115 Ariz. App. 131
    , 
    564 P.2d 82
    , a defendant does not choose whether he is going to prison
    or will be placed on probation; that choice is primarily that
    of the sentencing court.
    -11-
    Nor can it be reasonably argued that for purposes
    of probation, a probationer is in constructive custody
    and therefore he can be subjected to the same impositions
    on his freedoms as can one actually in jail or prison.    The
    simple fact is, as the Page court noted, a probationer is for
    the most part existing in the mainstream of society and he
    may well be living with family or friends whose rights also
    must be respected.
    On the other hand, if probation is to be successful,
    the rights of the probationer must be balanced with those
    of society.   In this context, a probationer must expect that
    his constitutional rights may be justifiably limited during
    the probationary period for he cannot reasonably expect that
    he will be as free as a citizen not suffering such a disability.
    We agree with the Page court, therefore, that a search pro-
    vision can be appropriately tailored to and "reasonably
    related to the prevention of future criminal activity."    And
    the same is true of a polygraph provision.   A probationer has
    no right to expect that he is entitled to the same self-
    incrimination protections as is a person not operating under
    such disability.
    In State v. Age (1979), 
    38 Or. App. 501
    , 
    590 P.2d 759
    ,
    the court rejected a probationer's argument that a polygraph
    provision violated her rights against self-incrimination.     In
    holding that a probationer had a statutory duty to "answer all
    reasonable inquiries of the probation officer" the Court plugged
    this duty into the requirement that the probationer take a
    polygraph examination:
    .
    ". . Since the probationer must answer all
    reasonable inquiries of the probation officer
    or risk revocation, we see no impermissible
    extension of that condition in requiring that
    the probationer submit to polygraph tests.
    The intrusion into the area of self-incrim-
    ination is no greater; its main function
    appears to be the added psychological factor
    that if the probationer fails to tell the
    truth, he will be detected. Such purpose would
    be in furtherance of a successful probation."
    590 P.2d at 763.
    The reference in Age, to the duty of the probationer
    to answer "all reasonable inquiries of the probation
    officer or risk revocation,.   . ."   has a statutory basis
    in Oregon (Ors 137.540(1) (e) cited in Age, 590 P.2d at 763.)
    No statute in this State directly imposes such a duty on a
    probationer.   Nonetheless, a probation program could hardly
    be successful if it did not require a probationer to answer
    all reasonable inquiries of his probation officer.    The added
    factor that a polygraph examination may occasionally be used
    while in the process of requiring these reasonable inquiries,
    does not offend the self-incrimination provisions of the
    federal or state constitution.
    The vital questions in relation to search provisions
    or polygraph examination provisions, compel this Court to
    subject the provisions to "special scrutiny" to determine
    whether or not they are tailored to and fall within the ambit
    of a reasonable limitation on the probationer's "otherwise
    inviolable constitutional rights."     In recognizing this duty,
    the court in United States v. Consuelo-Gonzalez (9th Cir.
    1975), 
    521 F.2d 259
    , stated:
    ". . .  it must be recognized that probationers,
    like parolees and prisoners, properly are subject
    to limitations from which ordinary persons are
    free, it is also true that these limitations in
    the aggregate must serve the ends of probation.
    Conditions that unquestionably restrict otherwise
    inviolable constitutional rights may properly be
    subject to special scrutiny to determine whether
    the limitation does in fact serve the dual objectives
    of rehabilitation and public safety." 521 F.2d
    at 265.
    Indeed, when asked to rule on particular polygraph
    provisions or search provisions, most courts have subjected
    these provisions to "special scrutiny."
    Implicit in the search and polygraph provisions imposed
    in this case is an assumption that the prosecuting attorney
    and law enforcement officials are an integral part of the
    probation process and thus have the duty to guard and guide
    the probationer through the probationary process until state
    supervision has terminated.     But neither the prosecuting
    attorney nor the police are part of the probationary process.
    One of the primary focal points in subjecting these provisions
    to "special scrutiny" is an examination of the provisions to
    determine who is given the right to demand a polygraph examin-
    ation or to conduct a search.    Many decisions have determined
    that the probation officer must be the person about whom the
    rights to conduct a polygraph examination, or to conduct a
    search, must revolve.
    In State v. Hovater (Or. App. 1978), 
    37 Or. App. 557
    , 
    588 P.2d 56
    , as part of a plea bargain defendant agreed to take a
    polygraph examination either upon the demand of the district
    attorney or the state police.    This agreement was incorporated
    into the judgment and later the district attorney invoked its
    provision and demanded a polygraph examination.    The probationer
    attacked the provision itself, claiming that it violated her
    rights against self-incrimination.    Although the appellate
    court rejected this claim, it declared in effect that neither
    the district attorney nor the state police are part of the
    probation process and thus have no right to demand that a
    probationer take a polygraph examination:
    "The district attorney and the police are not
    part of the probation process. They have no
    direct responsibility to supervise probation
    or to facilitate rehabilitation of the defendant.
    Their primary responsibility is to ferret
    out crime and to prosecute the offender. In
    the give and take of plea negotiations the
    district attorney does not necessarily have
    rehabilitation in mind when negotiating the
    terms of probation. He may simply be attempting
    to facilitate future investigation of crimes.
    .
    . ." 588 P.2d at 59.
    The courts have applied the same kind of "special
    scrutiny" to search provisions in holding that only the
    probation officer or a police officer at his special request
    and direction, should be entitled to conduct a search imposed
    against a defendant as a condition of probation.
    The search provision imposed here would permit not just
    the probation officer but any "lawful authorities" to search
    the probationer's home, his person, or his vehicle, at any
    time, and in any place and manner, and for no other reason than
    the mere whim or caprice of whomever decided to conduct a
    search.       In Tamez v. State (Tex. Ct. of Crim. App. 1976), 5 3 
    4 S.W.2d 686
    , the Court struck down a warrantless search pro-
    vision in all essentials similar to the one under attack in
    this case.       In holding the search provision too broad in scope
    and thus in violation of the probationer's Fourth Amendment
    rights (as well as a violation of the Texas Constitution) the
    court aptly characterized its effect:
    "The condition imposed would literally permit
    searches, without probable cause, or even
    suspicion, of the probationer's person, vehicle
    or home at any time, day or night, by any peace
    officer, which could not possibly serve the ends
    of probation. For example, an intimidating and
    harassing search to serve law enforcement ends
    totally unrelated to either his prior conviction
    or his rehabilitation is authorized by the
    probationary condition." 534 S.W.2d at 692.
    We can say no less about the effectfof the warrantless search
    provision imposed in this case; it permitted any law enforce-
    ment official to search the defendant, his home, or his
    vehicle, whenever the mood struck.        Such a provision is too
    great an infringement upon the probationer's rights under
    the federal and state constitutions.
    Unlimited searches as a condition of probation or parole
    have received the unequivocal condemnation of many courts.
    For example, federal decisions include:     United States v.
    Jeffers (9th Cir. 1978), 
    573 F.2d 1074
    ; United States v. Bradley
    (4th Cir. 1978), 
    571 F.2d 787
     (holding by implication); and
    United States v. Consuelo-Gonzalez (9th Cir. 1975), 
    521 F.2d 259
    .   And, state courts have done ?ikewise. For example:
    Tamez v. State, supra; State v Fisher (1978), 
    32 Or. App. 465
    ,
    .
    
    574 P.2d 354
    , rev. den. 
    283 Or. 99
     (1978); State v. Holm (1978),
    
    34 Or. App. 503
    , 
    579 P.2d 860
    ; State v. Batson (1978), 
    35 Or. App. 175
    , 
    580 P.2d 1066
    ; State v. McGivney (1978), 36 Or.
    App. 885, 
    585 P.2d 767
    ; People v. Jackson (1978), 
    46 N.Y.2d 171
    , 
    385 N.E.2d 621
    ; Basaldua v. State (Tex. 1977), 
    558 S.W.2d 2
    ; and People v. Huntley (1977), 
    43 N.Y.2d 175
    , 
    371 N.E.2d 794
    .
    Several of the above cases have also discussed the situation
    where a parole or probation officer searches when a search
    provision has not been imposed by the sentencing court as
    a condition of probation.     Needless to say, unlimited searches
    under this situation have also been held to be constitutionally
    offensive.
    One primary focal point of the special scrutiny to which
    search provisions are subjected is to examine who are named
    as beneficiaries in the condition of probation as having the
    right to search.    Several courts have directly or indirectly
    held that law enforcement officers have no place in the probation
    process and thus cannot be primary beneficiaries of a search
    provision.    The sentencing court cannot provide this connection
    by thus naming law enforcement officers as having the right
    to search pursuant to the search provision.     Federal decisions
    include:     United States v. Consuelo-Gonzalez, supra (implied
    ruling); United States v. Bradley, supra (implied ruling); and
    -16-
    U n i t e d S t a t e s v . Workman ( 4 t h C i r .          1 9 7 8 ) , 
    585 F.2d 1205
    (implied ruling)            .    S t a t e decisions include:                 Tamez v . S t a t e ,
    s u p r a ( i m p l i e d r u l i n g ) ; S t a t e v. F i s h e r , s u p r a ( i m p l i e d
    r u l i n g ) ; Roman v. S t a t e ( A l a s k a 1 9 7 7 ) , 
    570 P.2d 1
     2 3 5 ( d i r e c t
    r u l i n g ) ; and P e o p l e v. Anderson ( C o l o . 1 9 7 5 ) , 
    536 P.2d 302
    (direct ruling).
    A s w e have p r e v i o u s l y s t a t e d , p r o s e c u t i n g a t t o r n e y s and
    law enforcement o f f i c e r s a r e n o t involved i n t h e p r o b a t i o n
    p r o c e s s , a n d t h e r e f o r e a s e n t e n c i n g c o u r t may n o t p e r m i t
    them t o s e a r c h p u r s u a n t t o e i t h e r a w a r r a n t r e q u i r e m e n t o r a
    w a r r a n t l e s s s e a r c h p r o v i s i o n imposed a s a c o n d i t i o n o f p r o -
    bation.        To d o s o c o n s t i t u t e s a n i n f r i n g e m e n t o f o n e ' s r i g h t s
    u n d e r t h e F o u r t h Amendment o f t h e U n i t e d S t a t e s C o n s t i t u t i o n
    and A r t .    11, S B l O a n d 1 o f o u r own c o n s t i t u t i o n .
    1                                                     The s e n -
    t e n c i n g c o u r t c a n n o t i n j e c t p r o s e c u t i n g a t t o r n e y s o r law en-
    f o r c e m e n t o f f i c i a l s i n t o t h e p r o b a t i o n p r o c e s s by g r a n t i n g
    them d i r e c t r i g h t s t o s e a r c h t h e p r o b a t i o n e r , h i s home, o r
    h i s vehicle.
    Nor i s t h e m e r e whim o r c a p r i c e o f t h e p r o b a t i o n o f f i -
    cer s u f f i c i e n t t o t r i g g e r t h e d e c i s i o n t o s e a r c h u n d e r a
    search provision.               S e v e r a l c o u r t s have d i r e c t l y o r i n d i r e c t l y
    -
    r u l e d t h a t some k i n d o f c a u s e r e q u i r e m e n t m u s t f i r s t b e m e t
    b e f o r e a s e a r c h can be v a l i d l y conducted.                 Federal cases in-
    c l u d e : U n i t e d S t a t e s v . Consuelo-Gonzalez,                supra ( d i r e c t r u l -
    i n g ) ; L a t t a v. F i t z h a r r i s ( 9 t h C i r .    1 9 7 5 ) , 
    521 F.2d 246
    ( d i r e c t r u l i n g ) ; United S t a t e s v. Bradley, supra ( d i r e c t r u l -
    i n g ) ; U n i t e d S t a t e s v . Workman, s u p r a ( d i r e c t r u l i n g ) ; a n d
    U n i t e d S t a t e s v . Gordon ( 9 t h C i r .        1 3 7 6 ) , 
    540 F.2d 452
     ( d i r e c t
    ruling).         S t a t e decisions include:                 People v. Jackson, supra
    ( d i r e c t r u l i n g ) ; People v. Huntley, supra (implied r u l i n g ) ;
    S t a t e v. F i s h e r , supra ( d i r e c t r u l i n g ) ; Hunter v. S t a t e
    ( 1 9 7 6 ) , 139 Ga.App.         676, 
    229 S.E.2d 505
     ( i m p l i e d r u l i n g ) ;
    P e o p l e v . Anderson, s u p r a ( i m p l i e d r u l i n g ) ; and S t a c e *v
    c-
    -,- ,_,-.,   .,   -.
    MAY 2 0 1980
    The problem, of course, is in arriving at an appropriate
    standard.
    In its brief, the State suggests that "the Court should
    require that the probation officer have some articulable
    grounds for determining that a search is necessary."    Without
    arriving at its own conclusions as to standards, the State
    accurately sums up the state of the existing law:
    ". . . Although the courts have been vague in
    formulating standards, the probation officer
    should have some identifiable reason that
    prompted him to conclude that the authority
    of the search clause should be exercised. This
    could be information received from an informant,
    the police or the probation officer's own
    observation that the probationer has resumed
    criminal conduct or has violated conditions of
    probation."
    Beyond this, the State adds nothing.
    Two federal cases have traveled the additional step of
    imposing a search warrant requirement as a condition to
    searching a probationer.   United States v. Bradley, supra;
    United States v. Workman, supra.   In relating a search
    warrant requirement to a probationer, the court in Workman
    stated:
    ". .
    . the special relationship between a
    parolee and his parole officer and society's
    interest in close supervision of the parolee
    serve to lower the standard for determining
    probable cause to obtain a search warrant but
    that they do not eliminate the warrant require-
    ment." 585 F.2d at 1207.
    In New York, the legislature has set forth statutory
    guidelines for searching probationers and parolees.    N.Y.
    Crim. Proc. Law 8410.50 (McKinney, 1971).   Section 410.50(3)
    allows the court to issue a search order upon a showing of
    reasonable cause that the probationer has violated a condition
    of the sentence during the period of probation.   The order
    must be directed to the probation officer, and he may search
    defendant's person or any premises in which he resides or any
    real or personal property which he owns or which is in his
    possession.    The necessary condition is that a judicial
    officer must grant the permission to search.
    Polygraph examinations as a condition of probation can
    be effectively containedw&        constitutional limits by con-
    fining the right to demand a polygraph examination to the
    probation officer.   This will significantly reduce the
    potential for abuse.   But confining the right to search to
    a probation officer only resolves part of the problem.      Still
    unresolved are the questions of the cause requirement to
    conduct a search, the time, place and manner of conducting
    the search, and whether different standards should apply to
    searches of the probationer's person, the probationer's vehicle,
    or the probationer's home.
    We recognize that probationary status can and should
    carry with it a reduced expectation of privacy.     But a
    probationer is living within society, not confined to a penal
    institution.    If the trial courts do not and will not recognize
    this fundamental fact of life, it then devolves upon this
    Court to do so.   We must fashion a formula, however imperfect,
    which reasonably balances the competing rights of society and
    of the individual probationer and his family and friends.     A
    search of a probationer's home cannot avoid invading the
    privacy of those with whom he may be living, whether they be
    immediate family, other relatives, or friends.     Probationary
    status does not convert a probationer's family, relatives
    and friends into "second class" citizens.
    In State v. Means, supra, Justice Daly in his dissent,
    raised the flag to a problem which the courts must face and
    hopefully satisfactorily resolve:
    -19-
    "I conclude with the admonition that  ...
    there are many more problems related to those
    mentioned herein that necessarily need con-
    sideration before Montana can assume a
    respectable position in the matter. We must
    also consider the rights of those who reside
    with a probationer--his wife, children, mother
    and others. These problems do not go away by
    just ignoring them." 581 P.2d at 417.
    We can only assume a "respectable position" if we can
    give fair consideration to the rights of innocent third parties
    who may be caught up in the web of the probationary system or
    probationary process.   These people are not sapped of their
    right of privacy because they may be living with a probationer
    or he may be living with them.   While a probationer's right of
    privacy may be justifably diminished while on probation, the
    rights of these people are not so diminished.   We, as well as
    the trial courts, would be derelict in our duties if we failed
    to consider the rights of these innocent others so that they are
    not swept away by the probationary process.
    The potential harmful effects of unlimited sweeping
    warrantless search provisions are underscored in a note entitled:
    Striking the Balance Between Privacy And Supervision:   -
    The
    Fourth Amendment and Parole - Probation Officers Searches of
    and                           -
    Parolees and Probationers (1976), 51 N.Y.U.L.Rev.     The intrusion
    into the lives of family and friends as well as the probationer,
    is particularly stressed:
    "Fourth amendment protection will be diminished
    not only for parolees, but also for the family
    and friends with whom the parolee might be living.
    Those bystanders may find themselves subject to
    warrantless searches only because they are good
    enough to shelter the parolee, and they may
    therefore be less willing to help him--a sadly
    ironic result in a system designed to encourage
    reintegration into society. Moreover, the
    demeaning effect of arbitrary intrusions into
    the parolee's privacy will be reflected in the
    attitudes of his relatives and friends. As a
    result, the parolee will suffer diminished feelings
    of self-worth, making his rehabilitation more
    difficult. In addition, warrantless parole officer
    searches may reinforce patterns of resentment to
    authority, and excessive external controls
    may inhibit the development of necessary
    internal controls: 'a person must have the
    freedom to be responsible if he is to become
    responsibly free.'" (Footnotes omitted.) 51
    N.Y.U.L. Rev. at 816-817.
    in the
    These privacy considerations are inextricably interwoven/
    relationships between a probationer and his family and friends
    no less than in the relationships between a nonprobationer
    and his family and friends.   The search of a probationer's
    home will inevitably affect the privacy of those with whom he
    is living.
    One of the most important reasons for requiring a search
    warrant as a condition to a search is a recognition that
    reasonable restrairks must be placed upon law enforcement
    officials before a search is conducted rather than simply to
    measure the validity of a search by a postsearch inquiry into
    its reasonableness.   If abuses are to be discouraged, it
    does little good to provide postsearch judicial review,
    for this neither deters unreasonable searches nor remedies
    those which have occurred.    Indeed, in all but the most
    blatant violations, the searching officers will be able
    to retrospectively point to specific facts which justified
    the search.   Beck v. Ohio (1964), 
    379 U.S. 89
    , 96, 
    85 S. Ct. 223
    , 228, 
    13 L. Ed. 2d 142
    , 147.   Such is human nature, whether
    motivated by good or bad intentions.    And that is precisely
    why it is considered wise if individual rights are to be
    valued, to place a neutral judge between the law enforcement
    authorities and the subject of the search.    Just as the
    Fourth Amendment is aimed at preventing abuses, so our own
    constitution setting forth the ground rules for searches and
    seizures only upon probable cause set forth in writing has
    the same objective.   (Art. 1 1 1   .    Added to this protection
    is the "right of privacy" expressly guaranteed by Art. 11, 510
    of our own constitution.    If protection of these rights is
    to have substantive meaning, restraints must be imposed
    before the search is conducted.
    Postsearch review of the reasonableness of a search
    is hardly an effective deterrent where the rights of third
    persons are concerned.   A determination that a warrantless
    search of a probationer's home was unreasonable provides no
    protection for third persons whose    privacy has already been
    invaded by the search itself.     The invasion has occurred;
    the damage has been done.     Recognition of this fundamental
    problem is one of the reasons the court in Latta v. Fitzharris
    (9th Cir. 1975), 
    521 F.2d 246
    , imposed a search warrant
    requirement.   Clearly, therefore, so that the legal interests
    of innocent third persons can be adequately protected and
    considered in the probationary process, we require that a
    search warrant must first be obtained, and it must be based
    on probable cause.
    It is not neces ary that the probable cause consist
    prokction c&teeC
    of the -zrtp         personal knowledge. He may rely on
    information received from law enforcement personnel or from
    reliable citizens.   But if he has relied on such information
    received from law enforcement personnel or reliable citizens,
    he must state in his affidavit precisely what information
    has been provided him.   In the case of the private citizen,
    the probation officer must set forth reasons why he considers
    such person to be reliable.
    The probation officer must, on application for a search
    warrant, have a reasonable basis to conclude that the pro-
    bationer has violated his condition or conditions of probation,
    and that a search of the named place will lead to the proof
    needed to show that a violation had in fact occurred.     This
    -22-
    information must be presented in affidavit to a judge qualified
    to issue search warrants, and if he is satisfied that there
    are reasonable grounds to issue a search warrant, he may,
    in his discretion, issue a search warrant to the probation
    officer.     In such event the probation officer may enlist the
    aid of law enforcement officers to assist him in the search.
    In addition to the information constituting the probable
    cause, the probation officer shall provide information within
    the affidavit as to probationer's living arrangements, that
    is, whether the probationer is living alone, with family,
    with other relatives, or with friends.    Upon consideration
    of these factors, the judge shall impose reasonable limitations
    as to the time, place and manner of search.    Since privacy
    rights of third persons may be affected by the issuance and
    execution of a search warrant, the issuing judge shall impose
    such conditions of the search which are designed to protect as
    much as is reasonably possible, the rights of these third
    persons.    For instance, in most instances, late night searches
    would not be permitted.    But this, too, can vary from case to
    case.
    The State has suggested that a search clause be imposed
    in such a manner that a probationer cannot be harassed or
    intimidated.     This, of course, goes without saying.   We believe,
    however, that by imposing a search warrant requirement and
    limiting the right to obtain a search warrant to a probation
    officer, there will be little if any    harassment or intimida-
    tion.     Only the probation officer is in a position to make
    the decision, in the context of the particular case, of what
    is best for the probation process, considering both the
    probationer and the legitimate interests of the public.     He
    should, therefore, be the person who makes the decision as
    -23-
    to whether or not to seek a search warrant.   Indeed, a
    decision to do so may well rupture the working relationship
    he has with a probationer, and law enforcement officers
    should not be making that decision for the probation officer.
    We have primarily focused on a search of a probationer's
    home in setting forther the essential guidelines.   Obviously,
    if the privacy of third persons is to be invaded, the search
    4-vGt-
    of a probationer's homis laet likely to be the scene of those
    invasions.   On the other hand, the privacy of third persons is
    not as intimately involved where a probationer's vehicle is
    searched or where the probationer is personally searched.      The
    probation officer obviously has no right to search third persons
    in any event.   Because we have limited the right to search to
    a probation officer or a police officer at his direction, we do
    not feel that there will be significant abuses in searching
    either the probationer's vehicle or the probationer personally.
    For this reason we do not impose a search warrant requirement
    on the probation officer to search either the probationer's
    vehicle or the probationer personally.   The probation officer
    must, however, have some articulable reason for conducting either
    search.    It is not sufficient that he make a decision to search
    based only on his unfettered discretion.
    We note, however, that a probation officer obviously has
    the right to protect himself, and therefore we do not require
    that he have any articulable grounds to conduct a pat-down
    search to assure his own safety.
    We emphasize that imposition of these search clause
    and polygraph clause limitations does not interfere with
    the traditional rights of law enforcement officers to use the
    tools at their disposal if they have the requisite probable
    cause to believe that probationer has committed a criminal
    offense.     We hold only that law enforcement officers have
    no business directly injecting themselves into the probationary
    process, nor should the trial courts directly inject these
    law enforcement officials into the probationary process by
    permitting them to make decisions that are best left to the
    probation officers.
    There is an additional question as to whether state
    prosecutors, as a condition to agreeing to a deferred sentence
    or suspended sentence, should be permitted to condition such
    agreement upon the willingness of the defendant to agree to
    a search clause condition or polygraph condition.    Good policy,
    requires, we believe, that they not be permitted to do so.
    Rather, that question in each case should be left to the
    sentencing court.     If a prosecutor could demand either or
    both of these conditions as part of a plea bargain the
    defendant is placed in an untenable position.    Either he
    agrees to the conditions or he will not receive a deferred
    or suspended sentence.    This kind of plea bargaining leverage
    should not belong to a prosecutor.
    This is not to say that a prosecutor cannot inform a
    defendant that at the sentencing hearing he will request either
    a search clause or polygraph clause.    He may have some good
    reasons to present to the sentencing court to ask for either or
    both conditions in a particular case, and he has a right
    of course, to present his case.    But so does the defendant
    or his counsel have the right to present his case in opposition
    to the imposition of such conditions.    In the event the pro-
    secutor does ask for either or both conditions he must state
    with particularity his reasons for such request.
    If, upon a consideration of the special circumstances
    of the case, the sentencing court determines that either or
    both conditions should be imposed, he shall state for the
    record, with particularity, the reasons for his decision.
    Another question underlying the use of a polygraph
    clause is the use to which the test results are put.    Test
    -25-
    results adverse to the probationer should not be sufficient
    in and of themselves to cause the revocation of probation.
    We do not believe these tests to be sufficiently trustworthy
    that one could be jailed or imprisoned solely as the result
    of a polygraph examination.       This is not to say that we
    believe polygraph examinations have no merit.         We hold that
    in addition to the adverse results of a polygraph examination,
    there must be independent corroboration that a violation of
    a condition of probation has occurred.         It is conceivable that
    a probationer may be subjected to repeated polygraph examin-
    ations with relation to different events and different periods
    of time, and that he has repeatedly failed the tests administered.
    We express no opinion here as to whether this would be
    sufficient reason to revoke a probationer's probation.
    For the foregoing reasons, the order of revocation and
    imprisonment is vacated and the defendant is ordered placed
    back on probationary status.          Should the court desire to
    impose either or both of the conditions again, it shall do
    so in a manner consistent with
    We Concur:
    ...................................
    Chief Justice
    Justices
    Mr. Chief Justice Frank I. Haswell and Mr. Justice John Conway
    Harrison dissenting.
    We dissent.   We do not agree that the condition of
    defendant's sentence requiring him to submit to a search without
    a warrant is unconstitutional as applied to the facts of this
    case.   Neither do we agree that the provision requiring defen-
    dant to submit to a polygraph examination is unconstitutionally
    overbroad under the circumstances here.
    We would affirm the order of the District Court revok-
    ing defendant's suspended sentence and ordering him to prison.
    Chief Justice
    1