Opinion
No. C0-97-864.
Filed October 28, 1997.
Appeal from the District Court, Olmsted County, File No. K097661.
Hubert H. Humphrey III, Attorney General, (for appellant)
Raymond F. Schmitz, Olmsted County Attorney, David S. Voigt, Assistant County Attorney, (for appellant)
Mark D. Nyvold, Special Assistant State Public Defender, The Minnesota Building, (for respondent)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
The state appeals a pretrial order granting defendant's motion to suppress evidence and dismissing the charge of felon in possession of semiautomatic military-style assault weapon. We reverse.
FACTS
When respondent William Howard Grever was convicted of a felony offense, he was sentenced to 30 days in jail, required to pay restitution, and placed on probation. In February 1997, Grever signed a probation agreement acknowledging that his home was subject to search by the Minnesota Department of Corrections.
Before Grever met for the first time with Probation Officer Douglas Lambert, Rochester Police Detective Phil George informed Lambert that an informant had indicated that Grever had a gun. Following the first meeting between Lambert and Grever, Lambert decided to search Grever's apartment. Lambert requested assistance in conducting the search from George (who in turn asked for assistance from two Rochester officers). During the search, Lambert discovered an SKS-type assault rifle and three banana clips. Two of the clips were loaded with ammunition.
Grever was charged with felon in possession of semiautomatic military-style assault weapon pursuant to Minn. Stat. § 624.713, subds. 1(b), 2 (1996). At the omnibus hearing, Grever moved to suppress, on Fourth Amendment grounds, the evidence obtained during the search. The district court ruled that the search of Grever's apartment was in violation of defendant's Fourth Amendment rights and granted Grever's motion. The state appeals this ruling and from the pretrial order dismissing the weapon charge against Grever.
ANALYSIS
The state may appeal pretrial orders in felony cases. Minn.R.Crim.P. 28.04, subd. 1(1). In a state's appeal from a pretrial order, we must determine whether the state has demonstrated clearly and unequivocally that the district court erred in its judgment and that, unless reversed, the error will have a critical impact. State v. Kim , 398 N.W.2d 544, 547 (Minn. 1987) (citation omitted).
A probation system presents special needs that render impracticable the Fourth Amendment's usual warrant and probable cause requirements. Therefore, in Griffin v. Wisconsin , 483 U.S. 868, 872, 107 S.Ct. 3164, 3167-68 (1987), the Supreme Court held that probable cause was not required to justify a probation search. The Supreme Court explained:
In some cases — especially those involving drugs or illegal weapons — the probation agency must be able to act based upon a lesser degree of certainty than the Fourth Amendment would otherwise require in order to intervene before a probationer does damage to himself or society. The agency, moreover, must be able to proceed on the basis of its entire experience with the probationer, and to assess probabilities in the light of its knowledge of his life, character, and circumstances.
To allow adequate play for such factors, we think it reasonable to permit information provided by a police officer, whether or not on the basis of firsthand knowledge, to support a probationer search. The same conclusion is suggested by the fact that the police may be unwilling to disclose their confidential sources to probation personnel. For the same reason, and also because it is the very assumption of the institution of probation that the probationer is in need of rehabilitation and is more likely than the ordinary citizen to violate the law, we think it enough if the information provided indicates, as it did here, only the likelihood ("had or might have guns") of facts justifying the search.
Id. at 879-880,107 S.Ct. at 3171-72 (footnotes omitted). Similarly, the Minnesota Supreme Court has recognized that the relationship between probation officers and probationers is a special relationship and that less, specifically a warrant, is required to search a probationer. State v. Earnest , 293 N.W.2d 365, 368-69 (Minn. 1980).
A probation search may not be used, however, as a subterfuge for a criminal investigation. United States v. Richardson , 849 F.2d 439, 441 (9th Cir. 1988). For example, a probation officer may not function as a stalking horse for the police, conducting a probation search "on prior request of and in concert with law enforcement officers." Id. Mere collaboration between a probation officer and police officer does not, however, render a probation search unlawful. United States v. Harper , 928 F.2d 894, 897 (9th Cir. 1991). A probation officer is not a stalking horse for the police if he initiates the search in the performance of his duties as a probation officer. United States v. Butcher , 926 F.2d 811, 815 (9th Cir. 1991). The relevant inquiry is whether the probation officer used the probation search to help police evade the Fourth Amendment's usual warrant and probable cause requirements rather than enlisting the police to assist in carrying out legitimate probation objectives. Harper , 928 F.2d at 897.
The district court dismissed the charge against Grever because the court concluded that the search of Grever's residence was impermissible because Lambert (1) failed to confirm the information he received from Detective George and (2) asked George to participate in the search.
The facts of this case and the facts of Griffin are similar. In Griffin , the supervisor of Griffin's probation officer received information from a police detective "that there were or might be guns in Griffin's apartment." Id. at 871, 107 S.Ct. at 3167. Based on this information, the probation supervisor searched Griffin's apartment, accompanied by another probation officer and three police officers. During the search the probation officers discovered a handgun. Griffin was charged with possession of a firearm by a convicted felon — itself a felony. Id. at 871-72, 107 S.Ct. at 3167.
In upholding the search in Griffin , the Supreme Court noted:
To take the facts of the present case, it is most unlikely that the unauthenticated tip of a police officer — bearing, as far as the record shows, no indication whether its basis was firsthand knowledge or, if not, whether the firsthand source was reliable, and merely stating that Griffin "had or might have" guns in his residence, not that he certainly had them — would meet the ordinary requirement of probable cause.
Id. at 878, 107 S.Ct. at 3171 (emphasis added). The court upheld the search because a probable cause requirement would reduce the "deterrent effect of the supervisory arrangement" and the state regulation itself permitted a search on less than probable cause. Id. In concluding that the police officer's tip satisfied the "reasonable grounds" standard, the court stated, "we think it reasonable to permit information provided by a police officer, whether or not on the basis of firsthand knowledge, to support a probationer search." Id. at 879-80; 107 S.Ct. 3171-72 (footnote omitted).
The district court determined that, because Lambert failed to evaluate the reliability of the information, as required by the Minnesota Department of Corrections Manual, he lacked "reasonable grounds" to conduct the search. The district court's requirement that the probation officer establish the reliability of the tip essentially requires the officer to establish probable cause, rather than "reasonable grounds," a requirement not imposed by the Supreme Court's decision in Griffin . We conclude, therefore, that the district court erred by requiring the probation officer to verify the police officer's tip before conducting the search.
The district court's second justification for concluding that Lambert's search of Grever's apartment did not comply with the "reasonable grounds" standard was the court's conclusion that Detective George's participation in the search was improper. Minnesota courts have not addressed the issue of whether a police officer's involvement in a probationary search renders the search impermissible. But other jurisdictions have upheld searches where police officers accompanied the probation officer in conducting the search. See e.g., United States v. Gordon , 540 F.2d 452, 453 (9th Cir. 1976) (upholding search where narcotics task force agents accompanied probation officer during search). Additionally, some courts have even upheld warrantless probationary searches carried out solely by police officers, so long as the decision to search was made by the probation officer. E.g., Richardson , 849 F.2d at 442. Therefore, in a case such as this, where the district court specifically noted that "Lambert decided to search the defendant's home," the mere fact that police officers accompanied the probation officer in conducting the search does not render the search unconstitutional.