Probationers still have Fourth Amendment rights

Theresa Barr (former ADO) won in State v. Montgomery, No. 97,340 (Kan. App. Jan. 25, 2008)(unpublished), reversing a Riley County possession of mephedrine conviction. The COA summarized the facts as follows:

Montgomery agreed to enter a detoxification program as part of her probation program with Riley County Community Corrections (RCCC). When probation officers arrived to transport her, they directed her to the back of their car and told her they were going to search her before she could get in. As one officer stood on either side of Montgomery, she was asked if there was anything on her or in her purse that was going to poke the officers or hurt them. She was also asked if wshe had anything she should not have.

When Montgomery indicated that she did have something that could poke the officers, they inquired further. Montgomery explained that there was a syringe in yher purse. An officer then opened Montgomery's purse and Montgomery directed her to the zipper compartment where a syringe was found. when officers asked her what was in the syringe, she revealed that it contained cocaine or Demerol.

The COA agreed with the state that the interaction in this case was a voluntary encounter. But the COA went on to find that the consent to search the purse was not voluntary:

The State argues that because Montgomery did not indicate she was unhappy with the search and because she did not tell the officers not to look in her purse, she consented to the search. This assertion is contrary to established Kansas law which requires consent to be "unequivocal and specific" and "freely and intelligently" given. The record shows that Montgomery never told the officers they could search her or her purse. Instead, she was told she was going to be searched before she could be transported. We cannot agree that Montgomery voluntarily consented.

Well, it seems clearly correct to me that failure to object cannot establish affirmative consent. I'm glad the COA agreed.

The COA also rejected the state's claim that because Ms. Montgomery was on probation, any search was reasonable under the "special needs" doctrine, particularly as it relates to probationers and parolees. The COA reviewed some recent SCOTUS cases and a Tenth Circuit case (previously blogged about here) that were related, but distinguished them on several grounds:

In [United States v. Knights, 534 U.S. 112 (2001) and Samson v. California, 126 S.Ct. 2193 (2006)], the Court emphasized that a balancing test was necessary to determine the overall reasonableness of a warrantless search of a probationer or parolee. In both cases, the Court gave significant weight to the probationer's or parolee's knowledge of a special search condition. that knowledge, not the mere fact that the defendant was on probation or parole, is what diminished each defendant's expectation of privacy and, therefore, tipped the scale toward finding the searches were reasonable.

In the present case, Montgomery was not subject to any special search conditions as a part of her probation. And while the need for officer safety is a legitimate government interest, it does not outweigh the privacy interests of a private citizen who has no knowledge that she is subject to search at any time and who has never signed a waiver giving up her Fourth Amendment rights. Further, the officers admitted that they could address their safety concerns by allowing Montgomery to place her belongings in the trunk before being transported.

Because the warrantless search was not justified by any exception, the drugs are suppressed and the conviction reversed.

[Update: the state did not file a PR and the mandate issued on February 28, 2008].