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Just lost a trial? Good. Now you can . . . .

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by: Ryan • January 23, 2013 • no comments

Hey, sorry you just lost a trial. But there is some benefit. If your client is going to be put on probation, you can help get rid of one of the sillier legislative absurdities.

The standard conditions of probation are listed at ORS 137.540. The conditions shall be imposed, unless specifically deleted by the court. My request is that you move to "delete" sub(h) as unconstitutional and ridiculous.

Which one is sub(h)? I'll get to that. First, though, I would like to present sub(i).

(i) Consent to the search of person, vehicle or premises upon the request of a representative of the supervising officer if the supervising officer has reasonable grounds to believe that evidence of a violation will be found,and submit to fingerprinting or photographing, or both, when requested by the Department of Corrections . . . .

Okay, no problem with sub(i). If the PO has a reasonable belief that evidence of a crime or a violation exists in the place to be searched, he or she can ask to conduct a search, and it is a violation of sub(i) if the probationer refuses. Note that -- by being put on probation -- the probationer has not automatically given consent. Under Article I, section 9, and the 4th Amendment, he can still refuse consent. But if there is that ol' reasonable belief, and he refuses consent, then he's in violation. This is found to be constitutional: the defendant has reduced 4th Amendment rights when he's on probation, but they aren't eliminated entirely, and the requirement of "reasonable grounds to believe" is an essential limitation to the probation officer's authority.

Now let's look at sub(h). It states:

(h) Permit the parole and probation officer to visit the probationer or the probationer’s work site or residence and to conduct a walk-through of the common areas and of the rooms in the residence occupied by or under the control of the probationer.

See the problem? No? Well, sub(h) requires the probationer to submit to a walk-through of his residence, including a walk-through of his bedroom, regardless of whether the PO has a reasonable belief that evidence of a crime will be found. The only way this does not conflict with sub(i) is if a "walk through" is not a search. To believe a walk-through is not a search, a person would have to be constitutionally incapable of admitting to the blatantly obvious if doing so is detrimental to an argument their job compels them to make. Someone going into your bedroom allows them to see things that people on the street can't see. That's a search. Assume you are NOT on probation. If the police want to search your house, and you refuse, how would you feel if the officer said, "okay, no search, but I'm going to do a walk through. The Constitution only protects you from searches, but it doesn't say anything about a walk through. Please step aside." Because, dear reader, you are capable of figuring out that water is wet, the difference between a walk-through and a search would be lost on you. But apparently the Oregon legislature once saw a difference.

The distinction drawn by the legislature can be explained by an appellate ruling. State v. Guzman, 164 Ore. App. 90, 96-97, 990 P2d 370 (1999), rev den, 331 Ore. 191, 18 P.3d 1098 (2000). In Guzman, the court held that a probation requirement of a "home visit" under sub(h) did not include a search of the bedroom of the defendant. It appears -- though I have not directly confirmed with original sources -- that the legislature subsequently amended sub(h) to specifically require the defendant to agree to a "walk through" of the areas under his control, including his bedroom.

To my knowledge, this amendment to sub(h) has never been challenged, though it is in obvious conflict with sub(i) and the constitutional guarantees against unreasonable searches and seizures. There was a case that touched on the distinction between a home visit and search this year, State v. Brock, 254 Ore. App. 273, 275 (2012). It's not particularly helpful on this issue, through no fault of the COA, because it treats "home visit" essentially the same way the Guzman court did, not recognizing -- because it wasn't particularly relevant to the holding -- that "home visits" are much more intrusive than they were when Guzman was decided. Rather, Brock dealt with sub(i) and whether the consent was properly obtained when there was reasonable grounds to belief evidence of a violation would be found.

As a practical matter, it will be hard to get a suppression case up on appeal where the issue hinges on a walk-through that occurred when there wasn't reasonable grounds to request a search. (I came close to sending such an issue up, but it didn't happen.) But we don't need to wait. If the court is imposing probation, and there is no restriction on your ability to object to the conditions of probation (whether because it's an open plea or you lost a trial), then please, object to sub(h), specifically the portion on "walk throughs" as a violation of Article I, section 9, and the 4th Amendment. If you win, that alone will do a lot of good for the cause of privacy.