State v. Boston ( 1994 )

No. 93-578
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Respondent,
NOV 21 1994
v.
MONTE CHALMERS BOSTON,
Defendant and Appellant
APPEAL FROM: District Court of t h e Second Judicial District,
In and f o r t h e County of Silver Bow,
The Honorable James E. Purcell, Judge presiding.
COUNSEL O F RECORD:
For Appellant:
William I?. Hooks, Appellate Defender Office,
Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Kathy Seeley, Assistant Attorney General,
Helena, Montana
Robert M. McCarthy, Butte-Silver Bow
County Attorney, Brad Newman, Deputy
County Attorney, Butte, Montana
Submitted on Briefs: August 25, 1994
Decided: November 21, 1 9 9 4
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Defendant Monte Chalrners Boston, while a parolee, was charged
in the Second Judicial ~istrictCourt for Silver Bow County with
,
the offense of burglary, in violation of 5 45-6-204 (1) MCA. In a
related case, also commenced in the ~istrictCourt for s i l v e r Bow
County, Boston was charged with three counts of arson in violation
of § 45-6-103(1), MCA; and eight counts of felony theft and one
count of misdemeanor theft, in violation of 5 45-6-301 (1)(b), MCA.
Pursuant to a written plea agreement, Boston pled guilty to felony
burglary in one case, and arson and felony theft in the other case,
but resewed his right to appeal. Boston was sentenced to 35 years
in prison with 10 years suspended and 227 days credit for time
served. Boston's sentence includes time for his status as a
persistent felony offender. Boston appeals the District Court's
denial of his motions to suppress evidence taken from warrantless
searches of his home and storage garage. We affirm.
We find the following issue dispositive on appeal:
Did the District Court err when it denied defendant's motions
to suppress evidence taken from warrantless searches of his home
and storage garage?
FACTUAL BACKGROUND
Boston was paroled in 1990 and, as such, was subject to the
reqyirernents of a parolee as set forth by the Board of Pardons.
When Boston was paroled, he signed an agreement stating that he
would abide by the rules and conditions of parole. Paragraph 7 of
the State of Montana Conditions of Parole states that l'[u]pon
reasonable cause, you shall, while on parole or probation, submit
to a search of your person, vehicle or residence by a Probation/
Parole officer, at any time, without a warrant." Boston signed
this form and specifically initialed this particular condition of
parole, signifying that he would abide by these conditions.
Boston's parole was supervised by parole officer John Kelly.
On approximately January 14, 1993, the Union Bus Terminal in
Butte was burglarized and the locker and luggage area of the
terminal was ransacked.
On January 20, 1993, an arson fire occurred in the National
Center for Appropriate Technology (NCAT). Tire marks found outside
the NCAT building were consistent with the tread and size of the
tires on Boston's vehicle. In addition, a federal agent responding
to the NCAT fire at approximately 4 a.m. noticed that Boston's
vehicle, which was parked near his residence, had recently been
used. There was frost on all the vehicles in the area except his.
Later, in January 1993, Kelly was asked by the FBI to review
audio tapes. These audio tapes included a recorded phone call in
which an individual attempted to extort money from the Mormon
Church by purporting to have information regarding an earlier arson
fire at the Mormon Church. This individual told church officials
that there would be another fire and that he wanted to be paid
$10,000 for exact details concerning the fire. Kelly identified
the voice on the audio tape as being that of Boston.
After listening to the audio tapes and reviewing the evidence
linking Boston to the NCAT fire, probation officer Kelly authorized
a search warrant of Boston's residence and obtained a warrant for
his arrest. After his arrest, Boston verbally consented to a
search of his residence.
Kelly was present for much of the search of Boston's residence
but did not actually perform the search. The search of Boston's
home revealed some articles possibly linking him to arson fires and
the burglary.
In February 1993, probation officer Kelly was again contacted
by law enforcement agencies and informed that Boston was renting a
garage at a location separate from his residence. Because Boston
had informed law enforcement officials that he had no other
property or storage areas, Kelly, suspecting Boston's involvement
in the arson, authorized a search of the garage. Kelly was present
at the scene of the storage garage search, but did not actually
perform the search.
On February 19, 1993, an information was filed in the Second
Judicial District Court for Silver Bow County, charging Boston with
felony burglary. On March 11, 1993, another information was filed
in the Second Judicial District Court for Silver Bow County,
charging Boston with three counts of arson, eight counts of felony
theft, and one count of misdemeanor theft.
Separate attorneys were appointed to represent Boston on these
charges. Both attorneys filed motions to suppress all evidence
obtained fromthe warrantless searches of Boston's home and storage
garage. The motions to suppress were denied.
On September 2, 1993, pursuant to a plea agreement, Boston
pled guilty to burglary in one case, and guilty to arson and felony
theft in the other. He was sentenced to 35 years in prison with
10 years suspended, and was given 227 days credit for time served.
This sentence included time for Boston's status as a persistent
felony offender. In each of the two cases, Boston reserved his
right to appeal the denial of his motions to suppress.
DISCUSSION
Did the District Court err when it denied defendant's motions
to suppress evidence taken from warrantless searches of his home
and storage garage?
When we review a district court's denial of a motion to
suppress, we will uphold the district court if there is substantial
credible evidence to support the court's findings of fact, and if
those findings were correctly applied as a matter of law. State v.
Rushton (1994), 264 Mont. 248, 254, 870 P.2d 1355 (citing State v. Beach
(1985), 217 Mont. 132, 147, 705 P.2d 94, 103).
The Administrative Rules of Montana in effect at the time of
Boston's parole, and the State of Montana Conditions of Parole,
govern Boston's conditions of parole and authorize warrantless
searches of parolees based upon reasonable cause. The
Administrative Rule in effect at that time, 20.25.702 (11), ARM,
which mirrored Paragraph 7 of Boston's conditions of parole,
provides that:
Search of Person or Property - The parolee, while on
parole, shall submit to a search of his person,
automobile or place of residence by a parole officer, at
any time of the day or night, with or without a warrant,
upon reasonable cause as may be ascertained by a parole
officer.
In addition to this Administrative Rule, Boston's conditions
of parole also authorized warrantless searches of his home or
person based solely upon reasonable cause. Boston signed and
agreed to these conditions of parole on August 14, 1990. These
conditions of parole state, in pertinent part, at Paragraph 7, that
" [ulpon reasonable cause . . . [the parolee] shall, while on parole
. . . submit to a search of . . . [his] person, vehicle or
residence by a Probation/Parole Officer, at any time, without a
warrant. "
The District Court, in its June 11 and 21, 1993, orders
denying Boston's motions to suppress, relied on Kelly's testimony
concerning the circumstances surrounding his decision to authorize
the searches. In its orders, the District Court found that Kelly
had reasonable cause to authorize the searches.
The United States Supreme Court, in Griflinv. Wisconsin (1987), 483
U.S. 868, 107 S. Ct. 3164, 97 L. Ed. 2d 709, held that a
warrantless search of a probationer's [or parolee's] home, pursuant
to a Wisconsin statute providing for such searches on reasonable
grounds, satisfies the Fourth Amendment. Griffin, 483 U.S. at 872.
Although searches usually require probable cause and a warrant,
there are certain exceptions to the warrant requirement. " [W]e
have permitted exceptions when 'special needs, beyond the normal
need for law enforcement, make the warrant and probable-cause
requirement impracticable.'" Grifin, 483 U.S. at 873 (quoting New
Jerseyv. T.L.0. (1985), 469 U.S. 325, 351).
Parolees are still being punished and they do not enjoy
absolute freedom.
It is always true of probationers (as we have said it to
be true of parolees) that they do not enjoy 'the absolute
liberty to which every citizen is entitled, but only
... conditional liberty properly dependent on . . .
special .. . restrictions.'
Griffin, 483 U.S. at 874 (quoting Morrisseyv.Brewer (1972), 408 U.S. 471,
480).
This Court adopted the reasoning in Griffin in State v. Burke (1988),
235 Mont. 165, 766 P.2d 254. In Burke, we held that "[tlhis special
need [of permitting a greater impingement on the rights of
probationers and parolees, as stated in GrifJin] is equally
applicable to the State of Montana." Burke, 766 P.2d at 256. "To
impose a warrant requirement for residential searches . . . would
artificially raise a probationer's [or parolee's] privacy interest
to a level inconsistent with conditional liberty status. Burke,
766 P.2d at 257. A parolee has conditional liberty and has a
reduced privacy interest. In Burke, we stated that due to the large
land mass and mostly rural population of Montana, it would be
impossible for the parole officers to supervise every probationer
and, as such, police officers are needed to assist probation
officers. Burke, 766 P.2d at 257.
Therefore, police in Montana are an extension of the parole
and probation system. In this case, the searches of Boston's home
and storage garage are not facially invalid because they were
actually performed by police officers rather than the parole
officer.
We have held that "[tlhe probation officer must be able to
supervise the probationer [or parolee], and upon his judgment and
expertise, search the probationer's [or parolee's] residence or
cause it to be searched.'' Burke, 766 P. 2d at 257 (emphasis added).
In the case at hand, officer Kelly supervised Boston and caused his
house and storage garage to be searched.
In State v. Hall (1991), 249 Mont. 366, 369, 816 p.2d 438, 440,
this Court reiterated that "[in] State v. Burke . . . this Court,
following GnfJin v Wisconsin
. . . . set forth the standard for
probationary searches. That standard irs the reasonable grounds standard, which is
less strict than the probable cause standard. Hall, 816 P. 2d at 440.
The warrantless search of a parolee's residence or storage
areas, such as Bostonls, does not require probable cause, but only
reasonable grounds. In this case, Boston's probation officer had
evidence, such as audio tapes, Armor All, gloves, a mask, and bolt
cutters, linking Boston to the arson fires and the burglary.
Parole officer Kelly clearly had reasonable grounds to suspect
parole violations which justified the warrantless searches of
Boston's home and storage garage.
There is substantial evidence to support the District Court's
finding that officer Kelly had reasonable grounds to authorize the
searches of Boston's home and storage garage.
We conclude that the District Court did not err when it denied
the motion to suppress evidence gathered during the searches of
Boston's home and storage garage.
The judgment of the District Court is affirmed.
We concur:
November 21, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
William F. Hooks
Appellate Defender
P.O. Box 200145
Helena, MT 59620-0145
Brad Newman
Deputy County Attorney
155 West Granite
Butte, MT 59701
HON. JOSEPH P. MAZUREK, Attorney General
Kathy Seeley, Assistant
Justice Bldg.
Helena, MT 59620
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA