State v. Howell ( 1981 )

ARNOLD, Judge.

Assignments of error by defendant on this appeal question the legality of the warrantless search of her residence. She concedes the validity of the condition of her probation that she submit to reasonable searches by her probation officer. However, she contends that G.S. 15A-1343(b)(15) only authorizes a warrantless search of a probationer’s home by a probation officer, and that police officers may not participate, either directly or indirectly, in the warrantless search. The probation officer, according to defendant’s view of G.S. 15A-1343(b)(15), could not request assistance of police officers to conduct the search.

G.S. 15A-1343(b)(15) provides that as a condition of probation the court may require the probationer to:

(15) Submit at reasonable times to warrantless searches by a probation officer of his person, and of his vehicle and premises while he is present, for purposes reasonably related to his probation supervision. The Court may not require as a condition of probation that the probationer submit to any other search that would otherwise be unlawful.

Arguing that the evidence obtained in the search should have been excluded, defendant cites this Court’s opinion in State v. Grant, 40 N.C. App. 58, 252 S.E. 2d 98 (1979), for the proposition that law enforcement officials may not accompany a probation officer in a warrantless search of a probationer’s home. In Grant, no search was ever made, but the probation condition that defendant submit to a warrantless search at the request of any law enforcement officer was struck down as violative of G.S. 15A-1343. The situation in Grant, however, is unlike the case now before us. The probation condition in the case sub judice provided that defendant submit to searches by her probation officer. We do not agree with defendant that the presence of the police officers brings the case within the purview of Grant.

Defendant admits that J oyce Lee and the officers arrived at her home together, and that Lee was present throughout the search of the residence. Joyce Lee testified that she enlisted the aid of the law enforcement officers, and that she actively participated in the search of the basement. The probation officer testified that after defendant failed to respond to her knocking at the door, she and the officers went around to the back of the house seeking entrance, and there discovered in plain view stolen merchandise still in the packing crates. When defendant finally opened the door, she was arrested, and the probation officer, along with the law enforcement officers, searched the house.

We find no merit in defendant’s contention that Joyce Lee’s actions in bringing the four law enforcement officers to help with the search was unreasonable. Joyce Lee stated that she knew defendant was living with a man, and that she would not have gone to the house without police assistance. As the State points out, it would have been difficult for Ms. Lee to conduct a useful search of the house described in the record, and keep watch of two individuals at the same time. A probation officer’s search as authorized by G.S. 15A-1343(b)(15) is not necessarily invalid due to the presence, or even participation of, police officers in the search.

Moreover, we are not persuaded by defendant’s argument that the warrantless search was initiated and accomplished by the police and was therefore unreasonable. Through the testimony of Joyce Lee the evidence is sufficient to support the trial court’s finding that “under the circumstances disclosed by this evidence” the search was reasonable.

The order of the trial court revoking defendant’s probation is

Affirmed.

Judge Martin (Harry C.) concurs. Judge Clark dissents.