Murry v. Commonwealth ( 2014 )

Present: All the Justices
RONALD STUART MURRY, JR.
OPINION BY
v. Record No. 131137 CHIEF JUSTICE CYNTHIA D. KINSER
SEPTEMBER 12, 2014
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
The defendant, Ronald Stuart Murry, Jr., is subject to a
probation condition requiring him to submit to warrantless,
suspicionless searches of his person, property, residence, and
vehicle at any time by any probation or law enforcement officer.
The probation condition is not reasonable in light of the
offenses for which Murry was convicted, his background, and the
surrounding circumstances. We will therefore reverse the
judgment of the Court of Appeals of Virginia.
RELEVANT FACTS AND PROCEEDINGS
In a bench trial in the Circuit Court of Hanover County,
Murry was convicted of rape, in violation of Code § 18.2-61; 1
four counts of aggravated sexual battery, in violation of Code
§ 18.2-67.3(A)(1); and one count of aggravated sexual battery,
in violation of Code § 18.2-67.3(A)(3). The victim, B.W., was
Murry's stepdaughter. At trial, she testified about sexual
abuse starting at the age of five and culminating in rape after
she reached the age of 13. Murry denied the allegations of
1
The sentencing order contains a clerical mistake. It
lists the Code section for rape as Code § 18.2-261 instead of
Code § 18.2-61.
sexual battery but admitted to having sexual intercourse with
B.W. when she was 13 years old. He claimed, however, that the
intercourse was not against B.W.'s will and that he did not use
any threats, force, or intimidation against her. The circuit
court rejected Murry's testimony, finding it to be "incredible"
and concluding that the "ongoing relationship and the grooming
behavior . . . he encouraged from the time she was five years
old [was] a much more credible explanation for how [the rape]
occurred when she was thirteen."
At sentencing, the circuit court imposed terms of
incarceration for each of the convictions, totaling 156 years
and 7 months. 2 The court suspended 140 years of the sentences
for the period of Murry's "natural life," leaving a term of
active incarceration of 16 years and 7 months. The court
further ordered that upon release from incarceration, Murry
would be on supervised probation for an indefinite period. As a
condition of Murry's probation, the court ordered, inter alia,
that Murry "shall submit his person, property, place or
residence, vehicle, and personal effects, to search at any time,
with or without a search warrant, warrant of arrest or
2
The sentencing order has an additional clerical mistake.
In the sentencing summary, it recites the total sentence imposed
as 156 "dollars" and 7 months instead of 156 "years" and 7
months.
2
reasonable cause by any Probation Officer or Law Enforcement
Officer."
Murry objected to this probation condition, arguing that
the Fourth Amendment waiver was "not really necessarily
appropriate" because the convictions did not involve illegal
substances or firearms. The circuit court overruled the
objection, stating:
I agree with the Commonwealth that [Murry]
groomed this child from an early age to accept his
physical advances and that he manipulated her into
this at the same time that he was presenting to
everyone in his family and everyone in the community
what a good person he would be . . . to have with
children. I mean it's classic predatory behavior . .
. . And, even at this point . . . , he does not
accept responsibility for that, he exhibits distorted
behavior about his own role in this . . . . And, in
order to protect the community at the time that he's
finally released, I want . . . law enforcement to have
the ability to go directly into his house at any time
to see what he's doing.
On appeal to the Court of Appeals of Virginia, Murry
challenged the probation condition requiring waiver of his
Fourth Amendment rights. Murry v. Commonwealth, 62 Va. App.
179, 181, 743 S.E.2d 302, 303 (2013). The Court of Appeals
affirmed the circuit court's judgment, concluding that the
challenged probation condition "is reasonable under the facts of
this case." Id. at 189, 743 S.E.2d at 307.
We awarded Murry this appeal. As he argued in the Court of
Appeals, Murry asserts that the condition of probation requiring
3
him to submit to searches of his person, property, residence,
and vehicle at any time by any probation or law enforcement
officer with or without a search warrant or reasonable cause
throughout the term of his probation is both unreasonable under
Virginia law and unconstitutional under the Fourth Amendment.
ANALYSIS
We review conditions of probation imposed by a trial court
as part of its sentencing determination for abuse of
discretion. Martin v. Commonwealth, 274 Va. 733, 735, 652
S.E.2d 109, 111 (2007). A trial court abuses its discretion
"when a relevant factor that should have been given significant
weight is not considered; when an irrelevant or improper factor
is considered and given significant weight; [or] when all proper
factors, and no improper ones, are considered, but the court, in
weighing those factors, commits a clear error of
judgment." Landrum v. Chippenham & Johnston-Willis Hosps.,
Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011) (internal
quotation marks omitted); see also Porter v. Commonwealth, 276
Va. 203, 260, 661 S.E.2d 415, 445 (2008) ("The abuse-of-
discretion standard includes review to determine that the
discretion was not guided by erroneous legal conclusions.")
(internal quotation marks omitted).
Probation is a form of criminal sanction, like
incarceration, imposed by a trial court after a verdict,
4
finding, or plea of guilty. Griffin v. Wisconsin, 483 U.S. 868,
874 (1987). Pursuant to Code § 19.2-303, "[a]fter conviction,
whether with or without jury, the court may suspend imposition
of sentence or suspend the sentence in whole or part and in
addition may place the defendant on probation under such
conditions as the court shall determine." This statute
authorizes a trial court to impose such reasonable terms and
conditions of probation as it deems appropriate. Dyke v.
Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 486 (1952)
(decided under predecessor statute, former Code § 53-272). The
only statutory limitation on the court's exercise of its
discretion is "one of reasonableness." Anderson v.
Commonwealth, 256 Va. 580, 585, 507 S.E.2d 339, 341 (1998).
Probation conditions must be reasonable in light of the nature
of the offense, the defendant's background, and the surrounding
circumstances. Id. at 585, 507 S.E.2d at 342; see also State v.
Allah, 750 S.E.2d 903, 911 (N.C. Ct. App. 2013) (discussing that
probation conditions must bear a reasonable relationship to the
offenses committed by the defendant, tend to reduce the
defendant's exposure to crime, and assist in the defendant's
rehabilitation) (citing State v. Cooper, 282 S.E.2d 436, 438
(N.C. 1981)); Jones v. State, 41 P.3d 1247, 1258 (Wyo. 2002)
(holding that "probation conditions must be reasonably related
to rehabilitation, to the criminal conduct for which the
5
probationer was convicted, and to the deterrence of future
criminal conduct").
Murry argues that the circuit court abused its discretion
because the probation condition is not reasonably related to the
offenses for which he was convicted, his background, or any
surrounding circumstances and amounts to a "lifetime waiver" of
his Fourth Amendment protection against unreasonable searches
and seizures. 3 The Commonwealth responds that the probation
condition is reasonable in light of the circuit court's findings
that Murry groomed his victim from an early age, was able to
conceal his reprehensible conduct from his family and the
community, and never accepted responsibility for his behavior.
According to the Commonwealth, the probation condition is
3
The Court of Appeals concluded that in the circuit court
Murry only objected to the reasonableness of the probation
condition at issue and did not assert that the condition was
unconstitutional. Murry, 62 Va. App. at 181 n.1, 743 S.E.2d at
303-04 n.1. Thus, pursuant to Rule 5A:18, the Court of Appeals
did not address the merits of that argument. Id. Murry now
also challenges the Court of Appeals' failure to address the
constitutionality of the probation condition.
In ruling on Murry's objection to the required waiver of
his Fourth Amendment rights, the circuit court referenced the
decision in United States v. Knights, 534 U.S. 112 (2001). The
court thus understood Murry's argument and ruled on it. See
Scialdone v. Commonwealth, 279 Va. 422, 442, 689 S.E.2d 716, 727
(2010) (holding that trial court was aware of defendants'
arguments and ruled on them). We therefore conclude that the
Court of Appeals erred in refusing to address the constitutional
challenge to the probation condition. Although we do not need
to specifically address whether the probation condition violates
Murry's Fourth Amendment rights, Fourth Amendment principles
are, nevertheless, relevant to determine if the probation
condition is reasonable under our jurisprudence.
6
necessary to verify Murry's compliance with other probation
conditions and to protect the public. Because the probation
condition here implicates Murry's Fourth Amendment rights, to
determine whether it is reasonable we must measure Murry's
privacy interests against the Commonwealth's interests in
imposing the condition in light of Murry's offenses, his
background, and the surrounding circumstances. See Carswell v.
State, 721 N.E.2d 1255, 1258 (Ind. Ct. App. 1999) (holding that
when a defendant contends that a probation condition is "unduly
intrusive on a constitutional right," a review of the condition
must balance the constitutional rights enjoyed by the
probationer and the legitimate needs of law enforcement); Jones,
41 P.3d at 1258 (determining the reasonableness of a probation
condition waiving Fourth Amendment rights "requires a balancing
of the interests of the state and the privacy interests of the
probationer").
Probation is "one point . . . on a continuum of possible
punishments ranging from solitary confinement in a maximum-
security facility to a few hours of mandatory community
service." Griffin, 483 U.S. at 874. "Inherent in the very
nature of probation is that probationers 'do not enjoy the
absolute liberty to which every citizen is entitled,'" United
States v. Knights, 534 U.S. 112, 119 (2001) (quoting Griffin,
483 U.S. at 874), "but only . . . conditional liberty properly
7
dependent on observance of special [probation
conditions]." Morrissey v. Brewer, 408 U.S. 471, 480 (1972).
Because "[a] [s]tate's operation of a probation system . . .
presents 'special needs' beyond normal law enforcement" to
ensure that probation restrictions are followed, "departures
from the usual warrant and probable-cause requirements" for
searches may be justified. Griffin, 483 U.S. at 873-74. The
permissible range of departure, however, "is not
unlimited." Id. at 875.
In Knights, the Supreme Court of the United States
determined the reasonableness of a search of a probationer by
balancing "'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.'" 534 U.S. at 119 (quoting Wyoming v. Houghton, 526
U.S. 295, 300 (1999)); see also New Jersey v. T.L.O., 469 U.S.
325, 337 (1985) (determining reasonableness of a search requires
"balancing the need to search against the invasion which the
search entails") (internal quotation marks omitted). There, the
probationer was subject to a probation condition that was
virtually identical to the Fourth Amendment waiver required of
Murry. Knights, 534 U.S. at 114. In addition, the probationer
had signed a probation order that stated the following above his
signature: "I RECEIVED A COPY, READ AND UNDERSTAND THE ABOVE
8
TERMS AND CONDITIONS OF PROBATION AND AGREE TO ABIDE BY
SAME." Id. The defendant subsequently challenged the legality
of a search conducted pursuant to the probation condition. Id.
at 116.
The Court concluded that the probationer's acceptance of
the clear and unambiguous probation condition "significantly
diminished" his reasonable expectation of privacy. Id. at 119-
20. Weighing that fact against the government's legitimate
interests with regard to probation, the Court held that "the
balance of these considerations requires no more than reasonable
suspicion to conduct a search of [the] probationer's
house." Id. at 121. The Court concluded that "the warrantless
search of [the probationer], supported by reasonable suspicion
and authorized by a condition of probation, was reasonable
within the meaning of the Fourth Amendment." 4 Id. at
122; see also United States v. Davis, 932 F.2d 752, 755-58 (9th
Cir. 1991) (holding that, where the defendant "was on probation
and subject to a search condition permitting the warrantless
search of her apartment," law enforcement officers must have, at
a minimum, "reasonable suspicion[] that an item to be searched
is owned, controlled, or possessed by [the] probationer, in
4
The trial court found and the probationer conceded that
the law enforcement officer who conducted the search had
"reasonable suspicion" that the probationer was engaged in
criminal activity. Knights, 534 U.S. at 122.
9
order for the item to fall within the permissible bounds of [a]
probation search"); Carswell, 721 N.E.2d at 1262 (upholding a
probation condition authorizing warrantless searches of the
defendant, provided the searches are "conducted only upon
reasonable cause"); State v. Lockwood, 632 A.2d 655, 662 (Vt.
1993) (holding that, although the probation condition
authorizing warrantless searches without reasonable cause was
flawed, the search at issue was upheld "because the officers had
reasonable suspicion to conduct the search"). But see Samson v.
California, 547 U.S. 843, 857 (2006) (holding that "the Fourth
Amendment does not prohibit a police officer from conducting a
suspicionless search of a parolee").
The Court did not address "whether the probation condition
so diminished, or completely eliminated, [the probationer's]
reasonable expectation of privacy . . . that a search by a law
enforcement officer without any individualized suspicion would
have satisfied the reasonableness requirement of the Fourth
Amendment." 534 U.S. at 120 n.6; see also Samson, 547 U.S. at
849 (explaining that "[b]ecause the search at issue in Knights
was predicated on both the probation search condition and
reasonable suspicion, [the Court] did not reach the question
whether the search would have been reasonable under the Fourth
Amendment had it been solely predicated upon the condition of
10
probation"). Neither did the Court address whether the
probation condition itself violated the Fourth Amendment.
Murry, however, is challenging the reasonableness of the
probation condition. In contrast to the defendant in Knights,
he is not challenging the legality of an actual search. As we
already stated, the balancing test used in Knights and other
cases is, nevertheless, the appropriate framework to address the
reasonableness of the probation condition because it affects
Murry's Fourth Amendment rights. See Carswell, 721 N.E.2d at
1258 (when a defendant contends that a probation condition is
"unduly intrusive on a constitutional right," a review of the
condition must balance the constitutional rights enjoyed by the
probationer and the legitimate needs of law enforcement); State
v. Bennett, 200 P.3d 455, 463 (Kan. 2009) (balancing
probationer's expectation of privacy against state's legitimate
interests to decide whether probation condition authorizing
suspicionless searches violated probationer's Fourth Amendment
rights); Jones, 41 P.3d at 1258 (determining the reasonableness
of a probation condition waiving Fourth Amendment rights
"requires a balancing of the interests of the state and the
privacy interests of the probationer"). Murry's future status
as a probationer "informs both sides of that balance." Knights,
534 U.S. at 119.
11
On Murry's side of the balance, it is apparent from the
decision in Knights that probationers retain some expectation of
privacy, albeit diminished. See id. at 121 ("When an officer
has reasonable suspicion that a probationer subject to a search
condition is engaged in criminal activity, there is enough
likelihood that criminal conduct is occurring that an intrusion
on the probationer's significantly diminished privacy interests
is reasonable.") (emphasis added); see also Samson, 547 U.S. at
850-52 & n.2 (explaining that parolees have fewer expectations
of privacy than probationers and that, in Knights, the
probationer's acceptance of the probation condition there
significantly diminished his expectation of privacy); Griffin,
483 U.S. at 875 ("Supervision . . . is a 'special need' of the
[s]tate permitting a degree of impingement upon privacy that
would not be constitutional if applied to the public at large.
That permissible degree is not unlimited, however."); United
States v. Stewart, 468 F. Supp. 2d 261, 278 (D. Mass. 2007)
("[T]here must be some privacy rights that a probationer retains
and from which he can exclude the government unless it comes
armed with a warrant or individualized suspicion."); People v.
Johns, 795 N.E.2d 433, 437 (Ill. App. Ct. 2003) (explaining that
a probationer's expectation of privacy is diminished but not
extinguished); Bennett, 200 P.3d at 463 ("[A]lthough
probationers' privacy rights are more limited than are the
12
rights of free citizens, probationers do enjoy some expectation
of privacy in their persons and property."); People v. Hale, 714
N.E.2d 861, 863 (N.Y. 1999) ("[A] probationer loses some privacy
expectations and some of the protections of the Fourth
Amendment, but not all of both.").
The probation condition challenged in this appeal subjects
Murry to searches of his person, property, residence, and
vehicle at any time by any probation or law enforcement officer.
Neither a search warrant nor even reasonable cause is required.
Furthermore, the probation condition not only authorizes
suspicionless searches but also allows such searches for both
probation and investigative purposes. 5 See Hale, 714 N.E.2d at
862, 865 (upholding search conducted pursuant to a probation
condition that allowed only searches for specific items by
probation officers). There is no question that the degree of
intrusion on Murry's expectation of privacy as a probationer is
5
In determining the reasonableness of suspicionless
searches authorized by probation conditions, courts have
distinguished between searches conducted for probationary
purposes and those conducted for investigative purposes. The
former "must be related to the rehabilitation or supervision of
the defendant," State v. Zeta Chi Fraternity, 696 A.2d 530, 541
(N.H. 1997), and "should advance the goals of probation, the
overriding aim of which is to give the [probationer] a chance to
further and to demonstrate his rehabilitation while serving a
part of his sentence outside the prison walls." United States
v. Ooley, 116 F.3d 370, 372 (9th Cir. 1997) (internal quotation
marks omitted). The latter serves as "a mere subterfuge
enabling the police to avoid having to obtain a search warrant."
Id. (internal quotation marks omitted).
13
significant. In reality, it extinguishes any Fourth Amendment
rights Murry may have as a probationer.
On the other side of the balance, the Commonwealth has the
expectation that a probationer will successfully complete the
term of probation and be integrated back into society as a
productive, law-abiding person. See Knights, 534 U.S. at 120-
21; see also Wilborn v. Saunders, 170 Va. 153, 160, 195 S.E.
723, 726 (1938) ("The Commonwealth is interested not only in the
preservation of peace and good order, but in reformation of the
criminal, so that he may be restored to a useful place in
society and be self-sustaining thereafter."). At the same time,
the Commonwealth has the legitimate concern that a probationer
is more likely to engage in criminal activities than an ordinary
citizen. Knights, 534 U.S. at 121. This concern is heightened
when, as here, a probationer is a sex offender. See United
States v. Yuknavich, 419 F.3d 1302, 1310 (11th Cir. 2005)
(recognizing that sex offenders are a serious threat and that
states have a vital interest in rehabilitating them); Carswell,
721 N.E.2d at 1263 (recognizing elevated public safety concerns
with "the crime of child molestation," which all too often goes
unreported). "[T]he very assumption of the institution of
probation [is] that the probationer is in need of rehabilitation
and is more likely than the ordinary citizen to violate the
law." Griffin, 483 U.S. at 880. Thus, probation conditions and
14
supervision are necessary to ensure both that probation "serves
as a period of genuine rehabilitation and that the community is
not harmed by the probationer's being at large." Id. at 875.
The circuit court convicted Murry of rape and several
counts of aggravated sexual battery. The victim, a family
member, was between the ages of five and 13 at the time of the
offenses. Although Murry had no prior convictions, the circuit
court imposed the probation condition because it concluded that
Murry had groomed his victim from an early age and had
successfully concealed his behavior from his family and the
community for many years. As a result, the court wanted "law
enforcement to have the ability to go directly into [Murry's]
house at any time to see what he's doing."
Although the Commonwealth has a legitimate interest in
ensuring that Murry completes a meaningful period of
rehabilitation and that society not be harmed by Murry's being
at large as a sex offender, we conclude that those interests do
not justify the total surrender of Murry's Fourth Amendment
rights. See State v. Fields, 686 P.2d 1379, 1387-88 (Haw. 1984)
("[A] near-total surrender of privacy could [not] be reasonably
related to rehabilitation, and . . . the deprivation would be
inconsistent with even the limited freedom afforded someone who
but for the grace of the sentencing court would be in
prison."); Bennett, 200 P.3d at 463 (holding that a probation
15
condition requiring defendant to submit to nonconsensual,
suspicionless searches violated his Fourth Amendment rights).
Nothing in the record establishes that a complete waiver of
Murry's Fourth Amendment rights is necessary to facilitate his
rehabilitation and protect the public.
Furthermore, the probation condition authorizes any law
enforcement officer, even one without knowledge of the
condition, to search Murry's person, property, residence, and
vehicle at any time and for any reason. In other words, the
condition enables a law enforcement officer to avoid the warrant
requirement, or even having reasonable suspicion, for a purely
investigative search. Law enforcement officers, however, do not
have the same responsibility as probation officers with respect
to rehabilitating probationers. Compare Code § 53.1-145 (powers
and duties of probation and parole officers) with Code § 15.2-
1704 (powers and duties of police officers); see also State v.
Zeta Chi Fraternity, 696 A.2d 530, 541 (N.H. 1997) (probation
officers, unlike law enforcement officers, are charged with
assisting probationers "in establishing law-abiding lives while
monitoring their behavior"). The probation condition,
therefore, could sanction intimidating and harassing searches
that are unrelated to Murry's rehabilitation or public safety,
thus undermining the purpose of probation conditions.
16
Relying on this Court's decision in Anderson, the
Commonwealth, however, questions how Murry can contend that the
probation condition is unreasonable under the Fourth Amendment
when he accepted the circuit court's suspension of part of his
sentence. The Commonwealth's argument overlooks significant
factual differences between Anderson and the present case.
The defendant in Anderson pled guilty pursuant to a written
plea agreement. 256 Va. at 582, 507 S.E.2d at 340. The plea
agreement provided that the defendant's sentence would be
suspended upon certain terms and conditions, including a waiver
of the defendant's Fourth Amendment right against unreasonable
searches and seizures for one year from the date of
sentencing. Id. The plea agreement stated:
BY HIS SIGNATURE BELOW, [THE DEFENDANT] ACKNOWLEDGES
THAT, IF THIS AGREEMENT IS ACCEPTED BY THE COURT, HE
UNDERSTANDS HE IS WAIVING HIS FOURTH AMENDMENT RIGHT
AGAINST UNREASONABLE SEARCHES AND SEIZURES DURING THE
PERIOD SPECIFIED ABOVE.
Id. at 582-83, 507 S.E.2d at 340. The trial court found that
the defendant had entered his plea freely and voluntarily and
incorporated the terms of the plea agreement into the sentencing
order. Id. at 583, 507 S.E.2d at 340.
Approximately five months after sentencing, police officers
searched the defendant and found cocaine, marijuana, and a
handgun. Id. at 583-84, 507 S.E.2d at 340-41. After being
charged with various felonies, the defendant moved to suppress
17
the evidence recovered from the search, contending that the
Fourth Amendment waiver in his plea agreement was invalid and
that the officers had no grounds otherwise to support a
warrantless search. Id. at 584, 507 S.E.2d at 341. On appeal,
the defendant asserted, inter alia, that conditioning the
suspended sentence upon a waiver of Fourth Amendment rights was
unreasonable. We disagreed, stating "it is difficult to
understand how [the defendant] can now contend that this
condition of his suspended sentence was unreasonable when he
knowingly and voluntarily agreed to it." Id. at 585, 507 S.E.2d
at 342.
The waiver of constitutional rights in a plea agreement is
not an uncommon practice. See United States v. Keele, ___ F.3d
___, 2014 U.S. App. LEXIS 10183, at *10 (5th Cir. June 2, 2014)
("Generally, constitutional rights can be waived as part of a
plea agreement."); Jones v. United States, 167 F.3d 1142, 1145
(7th Cir. 1999) (same). "[I]t is well settled that plea
bargaining does not violate the Constitution even though a
guilty plea waives important constitutional rights." Town of
Newton v. Rumery, 480 U.S. 386, 393 (1987); Johnson v. Zerbst,
304 U.S. 458, 464 (1938) (discussing standards for waiver of
such constitutional rights as the privilege against compulsory
self-incrimination, the right to trial by jury, and the right to
confront accusers). Nor is it uncommon for defendants to agree
18
to search conditions of probation in exchange for a more lenient
term of incarceration, as in Anderson. See United States v.
King, 711 F.3d 986, 990-91 (9th Cir. 2013) (upholding a search
where "the probationer agreed to a search condition that permits
warrantless, suspicionless searches of the probationer's
'person, property, premises and vehicle[] [at] any time of the
day or night'"). However, unlike the defendant in Anderson,
Murry did not agree to a waiver of his Fourth Amendment rights
pursuant to a signed plea agreement. Murry pled not guilty, and
the circuit court imposed the probation condition, sua sponte,
after finding Murry guilty. Murry objected to the probation
condition in the circuit court and is likewise doing so on
appeal. Furthermore, Murry is not yet on probation and has not
signed any document agreeing to terms of
probation. But see King, 711 F.3d at 990-91. Murry clearly has
not consented to the probation condition at issue here.
CONCLUSION
In summary, the probation condition subjecting Murry, his
property, residence, and vehicle to warrantless, suspicionless
searches at any time by any probation or law enforcement officer
is not reasonable in light of Murry's offenses, his background,
and the surrounding circumstances. The degree to which the
probation condition is needed to promote the Commonwealth's
legitimate interests with regard to Murry's rehabilitation and
19
the protection of society does not outweigh the degree of
intrusion on Murry's diminished yet legitimate expectation of
privacy as a probationer. Therefore, the circuit court abused
its discretion because in weighing the relevant factors, it
committed "a clear error of judgment." Landrum, 282 Va. at 352,
717 S.E.2d at 137 (internal quotation marks omitted). We will
reverse the judgment of the Court of Appeals and remand the case
to the Court of Appeals with directions that it remand the case
to the circuit court to conduct a new sentencing hearing.
Reversed and remanded.
JUSTICE MIMS, concurring.
The circuit court was motivated by a genuine concern that
Murry will pose a danger to public safety upon release. It
therefore imposed several probation conditions to ameliorate
that concern. I concur that the circuit court abused its
discretion by requiring Murry to “submit his person, property,
place or residence, vehicle, and personal effects, to search at
any time, with or without . . . reasonable cause by any
Probation Officer or Law Enforcement Officer.” Although the
underlying concern is justified, this condition is too broad. I
write separately to consider this condition in context with the
others, rather than in isolation.
The circuit court found that Murry raped his stepdaughter
when she was 13. It found that he had committed repeated
20
aggravated sexual batteries upon her since she was five years
old. It found the aggravated sexual batteries constituted
“grooming behavior” and facilitated the rape. It found that
Murry successfully concealed this sexual abuse for many years.
It found that he failed to accept responsibility for his crimes
upon conviction.
Based on these offenses, background, and surrounding
circumstances, Anderson v. Commonwealth, 256 Va. 580, 585, 507
S.E.2d 339, 341 (1998), the court imposed a probation condition
prohibiting Murry from having “contact with any minors under the
age of eighteen without adult supervision.” Murry does not
challenge the reasonableness of this condition.
Probation conditions “are meant to assure that the
probation serves as a period of genuine rehabilitation and that
the community is not harmed by the probationer’s being at large.
These same goals require and justify the exercise of supervision
to assure that” a probationer complies with the conditions after
release. Griffin v. Wisconsin, 483 U.S. 868, 875 (1987)
(citation omitted). Accordingly, Virginia probation officers
have a duty to ensure that probationers comply with their
probation conditions. See Code § 53.1-145 (requiring probation
officers to “furnish every such person with a written statement
of the conditions of his probation and instruct him therein” and
21
to “[a]rrest [probationers] for violation of the terms of
probation”).
While probation officers may attempt to ascertain whether a
probationer is complying with his probation conditions after
release by questioning him and his family, friends, neighbors,
co-workers, and other associates, “[i]nvestigation of [his]
home, possessions, and body may also be required. In such
situations, . . . probation officers believe that they need to
be able to make unannounced home visits and searches.” Neil P.
Cohen, The Law of Probation and Parole § 17:7 (2d ed. 1999).
Accordingly, the authority to do so is often included as a
separate condition of release. Id.
In this case, the circuit court could reasonably fear that
the customary investigative technique of interviewing Murry and
his associates would be insufficient to reveal any violation of
the condition prohibiting him from unsupervised contact with
minors. Probationers in general have a propensity to “to
conceal their criminal activities and quickly dispose of
incriminating evidence.” United States v. Knights, 534 U.S.
112, 120 (2001). The court’s findings suggest that Murry could
be particularly adept at doing so. It found that he concealed
his repeated aggravated sexual batteries for years. It was
especially disturbed by his ability to persuade his family and
others in the community who knew him that he was “a good person
22
. . . to have with children” at the same time he was sexually
abusing his stepdaughter. Consequently, the circuit court’s
findings are sufficient to establish the need for a separate
search condition in this case.
Nevertheless, such a condition must be reasonable not only
in its justification but in its scope. For example, former N.C.
Gen. Stat. § 15A-1343(b1)(7) permitted North Carolina courts to
require a probationer to submit to warrantless searches by a
probation officer of his home, vehicle, and person “at
reasonable times . . . while the probationer is present, for
purposes specified by the court and reasonably related to his or
her probation supervision, but the probationer may not be
required to submit to any other search that would otherwise be
unlawful.” 1 The United States Court of Appeals for the Fourth
Circuit upheld this condition, ruling that “[t]hese criteria
impose meaningful restrictions, guaranteeing that the searches
are justified by the State’s ‘special needs,’ not merely its
interest in law enforcement.” United States v. Midgette, 478
F.3d 616, 624 (4th Cir.), cert. denied, 551 U.S. 1157 (2007).
The court also rejected the argument that the condition was
defective because it did not require individualized suspicion
that the probationer possessed contraband. The court noted that
1
The North Carolina General Assembly amended the statute in
2009, making this condition mandatory for all probationers
rather than discretionary. 2009 N.C. Sess. Laws 372.
23
the Supreme Court of the United States has upheld suspicionless
searches in furtherance of a special need when the search was
reasonably tailored. Id. (citing Board of Educ. v. Earls, 536
U.S. 822 (2001) (upholding suspicionless drug testing of
students involved in extracurricular activities); Michigan Dep’t
of State Police v. Sitz, 496 U.S. 444 (1990) (affirming
suspicionless sobriety checks of motorists in order to reduce
the safety hazards posed by drunk drivers); Skinner v. Railway
Labor Executives' Ass'n, 489 U.S. 602 (1989) (upholding
suspicionless urine and blood tests of certain railroad
employees); Bell v. Wolfish, 441 U.S. 520 (1979) (upholding
suspicionless visual body-cavity searches of detainees following
contact visits)). Thus, a search condition need not be
predicated on individualized suspicion when a special need
“justifie[s] the ‘degree of impingement upon privacy’ authorized
by” the condition. Id.
As noted above, the circuit court’s particularized findings
in this case (specifically Murry’s ability to conceal his sexual
crimes against his stepdaughter from his family and associates
for several years) could lead the court reasonably to conclude
that suspicionless searches are necessary to ensure Murry’s
compliance with the unchallenged condition prohibiting his
unsupervised contact with minors. If it were to do so on
remand, it might determine that former N.C. Gen. Stat. § 15A-
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1343(b1)(7) provided a roadmap for imposing a constitutionally
tailored search condition. 2
Finally, I emphasize that a criminal defendant has no right
to suspension of any part of the sentence imposed by the trial
court. As the majority notes, Code § 19.2-303 permits that
“[a]fter conviction, whether with or without jury, the court may
suspend imposition of sentence or suspend the sentence in whole
or part and in addition may place the defendant on probation
under such conditions as the court shall determine.” (Emphasis
added.)
Accordingly, while a defendant may appeal a probation
condition on the grounds that it is unreasonable, Anderson, 256
Va. at 585, 507 S.E.2d at 341, nothing prevents a trial court
from declining to suspend any part of a valid sentence in the
first place (thereby requiring the defendant to serve the entire
2
The probation condition set out in former N.C. Gen. Stat.
§ 15A-1343(b1)(7) did not require probationers to submit to
searches of their personal effects. However, predatory adults
often use mobile phones for illicit contact with minors. E.g.,
Klewer v. Commonwealth, Record No. 0791-11-3, 2012 Va. App.
LEXIS 315, at *5-6 (Oct. 9, 2012) (unpublished) (upholding the
conviction for electronic solicitation of a minor, in violation
of Code § 18.2-374.3(C), of teacher who exchanged text messages,
photographs, and videos with a minor former student by mobile
phone). Following the Supreme Court’s holding in Riley v.
California, 573 U.S. ___, ___, 134 S. Ct. 2473, 2485 (2014), that
officers must generally secure a warrant before conducting such
a search of mobile phone data, it may not be unreasonable to
require that a probationer subject to a condition prohibiting
unsupervised contact with minors submit to searches of mobile
phones and similar devices to ensure that they have not been
used to facilitate the proscribed contact.
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term in confinement) if it determines that no reasonable
conditions would make suspension “compatible with the public
interest.” See Griffin v. Cunningham, 205 Va. 349, 354, 136
S.E.2d 840, 844 (1964).
JUSTICE McCLANAHAN, dissenting.
I dissent for the reasons stated in the Court of Appeals
opinion, Murry v. Commonwealth, 62 Va. App. 179, 743 S.E.2d 302
(2013).
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