State v. Colby

S tate of N ebraSka , appellee , v .
J aSoN l. C olby , appellaNt .
748 N.W.2d 118
Filed April 22, 2008. 	No. A-07-777.
1. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable
Cause: Appeal and Error. A trial court’s ruling on a motion to suppress based
on the Fourth Amendment, apart from determinations of reasonable suspicion to
conduct investigatory stops and probable cause to perform warrantless searches,
is to be upheld on appeal unless its findings of fact are clearly erroneous. The
ultimate determinations of reasonable suspicion to conduct an investigatory stop
and probable cause to perform a warrantless search are reviewed de novo and
findings of fact are reviewed for clear error, giving due weight to the inferences
drawn from those facts by the trial judge.
2. Search and Seizure: Search Warrants: Probable Cause. Generally, a search
should be undertaken only pursuant to a warrant supported by probable cause.
3. Probation and Parole. Probation, like incarceration, is a form of criminal sanction
imposed by a court upon an offender after verdict, finding, or plea of guilty.
4. Probation and Parole: Search and Seizure: Constitutional Law. Conditions
in probation orders requiring the probationer to submit to warrantless searches,
to the extent that they contribute to the rehabilitation process and are done in a
reasonable manner, are valid and constitutional.
5. Search and Seizure. The reasonableness of a search is determined by assessing,
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.
Appeal from the District Court for Scotts Bluff County:
raNdall l. lippStreu, Judge. Affirmed.
Brian J. Lockwood, Deputy Scotts Bluff County Public
Defender, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
S ieverS, M oore, and C aSSel, Judges.
C aSSel, Judge.
INTRODUCTION
Jason L. Colby was the subject of a warrantless probation
search which led to convictions of drug offenses. On appeal,
he challenges the district court’s order overruling his motion to
suppress evidence discovered as a result of the probation search.
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www.nebraska.gov/apps-courts-epub/
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Because we conclude that the provision of the probation order
authorizing warrantless searches contributes to the rehabilita-
tion process and that the search was reasonable, we affirm.
BACkGROUND
On October 24, 2005, the district court for Scotts Bluff
County sentenced Colby to probation for a period of 3 years for
his conviction of possession of a controlled substance. Daniel J.
Witko, chief probation officer, was assigned as Colby’s supervis-
ing probation officer. The terms of Colby’s probation required
him to report as directed by the court or his probation officer;
“submit to searches of [his] residence, vehicle, or person without
a warrant and without probable cause when a probation officer
has a reasonable suspicion that [he] ha[s] violated terms of [his]
probation”; refrain from using or possessing alcohol or con-
trolled substances; and submit to drug tests.
On January 10, 2007, Witko asked kent ewing, a detec-
tive with the Gering Police Department, to conduct a proba-
tion search of Colby and Colby’s residence. ewing agreed to
perform the search. Witko determined that he would be out of
town on the day ewing would perform the search. Therefore,
ewing performed the search without Witko. Witko expressly
instructed ewing on how to conduct the search, ordering him
to search Colby’s residence for any contraband pertaining to
illegal drugs, and gave ewing the probation order.
ewing decided, based upon information he had regarding
Colby, that it would be best to make contact with Colby out-
side of his residence. Therefore, on the morning of January
17, 2007, he set up surveillance about a block and a half
from Colby’s residence. He then waited for Colby to leave his
residence. Colby left his residence in a vehicle around 7:35
p.m., at which time ewing requested the assistance of another
officer. The other officer conducted a traffic stop of Colby’s
vehicle. ewing arrived after the stop and provided Colby with
the information from Witko, including the probation order. A
probation search of Colby’s person was performed. The search
revealed, among other things, drug paraphernalia and a clear
plastic bag containing what was later determined to be meth-
amphetamine. Colby was placed under arrest and transported to
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jail, where more bags containing methamphetamine were found
in Colby’s mouth.
After Colby’s arrest, ewing searched his vehicle and requested
a search warrant for Colby’s residence. ewing submitted an
affidavit in support of a search warrant to the district judge. He
recited the events of the day, including the arrest and search of
Colby. ewing also stated that as recently as December 31, 2006,
an officer had received an anonymous tip that Colby was sell-
ing methamphetamine out of his residence. Based upon ewing’s
affidavit, a district judge issued a search warrant on January
17, 2007, for the search of Colby’s residence. Officers executed
the warrant on the same day and seized methamphetamine and
drug paraphernalia.
Colby initially faced charges in the county court for Scotts
Bluff County. The case was then bound over to district court.
On February 1, 2007, Colby was charged by information in the
district court with possession of a controlled substance with
intent to deliver and possession of drug paraphernalia.
On February 27, 2007, Colby filed a motion to suppress evi-
dence and statements. He requested an order suppressing any
evidence and statements he made to police officers on January
17, together with any fruits of such evidence. He asserted that
the warrantless search of his vehicle was made “without legal
justification and was a violation of [his] right to be free of
unreasonable searches and seizures.”
The court held a hearing on the motion to suppress. Witko
testified that he ordered the probation search of Colby because
in the early part of January 2007, he received an anonymous
telephone call informing him that Colby was using drugs
and “beating his drug tests by using a fake rubber penis of
that nature.” Witko also had concerns regarding Colby prior
to that telephone call. He testified that Colby “hadn’t been
in to report for quite a time.” Witko testified that Colby was
required to report to him in person once a month while on
probation. According to Witko, Colby was compliant with
his probation orders the first 30 days, reported the first 2 or
3 months, and “then we just lost track, he did not come in.”
Witko’s last contact with Colby was on February 28, 2006, and
Colby last submitted to a drug test on March 3. Witko testified
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that Colby’s actions “raise[d] a red flag . . . that either [he]
absconded supervision or [he did] not want to report for some
reason.” Witko testified that he was not present when Colby or
his residence was searched. He further testified that the terms
of Colby’s probation were based on statutes and standards for
the State of Nebraska.
ewing testified that he searched Colby’s residence pursuant
to the probation order and that he obtained the search warrant
“to make sure of the application for the search.” He testified
that the only reason he pursued Colby to search Colby’s person
and residence was to comply with Witko’s request.
At the conclusion of the hearing, the court stated that when
Colby discontinued contact with his probation officer and dis-
continued drug testing, there was reasonable suspicion for his
probation officer to direct a search of his person, residence, or
vehicle. The court also determined that the probation officer did
not need to be present for the search. With regard to the search
of Colby’s residence, the court stated, “[O]nce the search was
done of . . . Colby and they found the narcotics on him, that
was included in the affidavit and that was probabl[e] cause to
get the search warrant.” The court concluded that the searches
were valid and overruled the motion to suppress.
A jury trial was held on the charge of possession of metham-
phetamine with intent to deliver or distribute. On June 13, 2007,
the jury found Colby guilty of that charge. Colby was also found
guilty by the court of possession of drug parahernalia and fined
$100. On July 12, the court sentenced Colby to 5 to 8 years’
imprisonment, with credit for 66 days served, for his conviction
of possession of methamphetamine with intent to distribute or
deliver, and also ordered him to pay court costs of $141.
Colby timely appeals.
ASSIGNMeNT OF eRROR
Colby assigns that the district court erred in failing to sup-
press evidence obtained during an unlawful search and seizure.
STANDARD OF ReVIeW
[1] A trial court’s ruling on a motion to suppress based on
the Fourth Amendment, apart from determinations of reasonable
suspicion to conduct investigatory stops and probable cause to
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perform warrantless searches, is to be upheld on appeal unless
its findings of fact are clearly erroneous. The ultimate deter-
minations of reasonable suspicion to conduct an investigatory
stop and probable cause to perform a warrantless search are
reviewed de novo and findings of fact are reviewed for clear
error, giving due weight to the inferences drawn from those
facts by the trial judge. State v. Allen, 269 Neb. 69, 690 N.W.2d
582 (2005), disapproved on other grounds, State v. McCulloch,
274 Neb. 636, 742 N.W.2d 727 (2007).
ANALySIS
According to Colby, if the probation search had not been
performed, the warrant for the search of his residence would
not have been issued. Therefore, if the probation search was
unlawful, the residence search was also unlawful. He asserts
that the probation search was an unlawful warrantless search
because the condition of his probation permitting warrantless
searches did not contribute to the rehabilitation process and
because the probation search was not performed in a reason-
able manner. In support of his argument that the search was
unreasonable, Colby emphasizes the fact that Witko was not
present for the probation search, the remoteness in time of the
search to any suspected wrongdoing by Colby, and the lack of
wrongdoing by Colby at the time of the search.
[2,3] The Fourth Amendment to the U.S. Constitution pro-
tects against unreasonable searches and seizures. Generally, a
search should be undertaken only pursuant to a warrant sup-
ported by probable cause. State v. Davis, 6 Neb. App. 790,
577 N.W.2d 763 (1998). There are, however, exceptions to the
warrant requirement when “special needs,” beyond the normal
need for law enforcement, make the warrant and probable
cause requirement impracticable. See Griffin v. Wisconsin, 483
U.S. 868, 107 S. Ct. 3164, 97 L. ed. 2d 709 (1987). The U.S.
Supreme Court found it reasonable to dispense with the warrant
and probable cause requirements in a probation setting. See
id. Probation, like incarceration, is a form of criminal sanction
imposed by a court upon an offender after verdict, finding, or
plea of guilty. Id.
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The stop and search of Colby’s vehicle and search of his
person were conducted pursuant to an order by his probation
officer and not pursuant to a warrant or a finding of probable
cause. The Nebraska Supreme Court has considered the valid-
ity of similar searches. In State v. Morgan, 206 Neb. 818, 819,
295 N.W.2d 285, 286 (1980), the Nebraska Supreme Court
found that a search pursuant to a condition of a probation order,
requiring the probationer to “‘submit to a search of his person
or property at any time by any [l]aw [e]nfor[c]ement [o]fficer,
with or without probable cause, for controlled substances,’”
was valid. (emphasis omitted.)
[4] The court held in State v. Morgan that “conditions in pro-
bation orders requiring the probationer to submit to warrantless
searches, to the extent that they contribute to the rehabilitation
process and are done in a reasonable manner, are valid and
constitutional.” 206 Neb. at 826-27, 295 N.W.2d at 289. The
probationer in State v. Morgan, supra, had been convicted of
a drug offense and placed on probation. The court determined
that criminal activities in the field of drug offenses or on the
part of drug offenders are frequently uncovered only through
searches of the personal property of the defendant or of the
defendant himself. See id. To the extent that the possibility of
such searches restrains previously convicted drug offenders
from further activity in that field, it clearly aids in the rehabili-
tation process. Id.
In State v. Lingle, 209 Neb. 492, 501, 308 N.W.2d 531, 537
(1981), the Nebraska Supreme Court upheld a probation condi-
tion stating that the probationer could be “‘subject to the search
of his personal and real property at any time, day or night, by
any law enforcement or probation officer without the issuance
of a search warrant.’” The court observed that the county court
included other conditions in the probation order, including that
the probationer refrain from the use of alcoholic beverages and
narcotics. See State v. Lingle, supra. The court found that the
warrantless search condition was reasonably related to enforce-
ment of the other conditions of the probation order and found
that the conditions were reasonably related to the rehabilitation
of the probationer. See id.
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In the instant case, Colby was sentenced to probation for a
drug offense. In addition to requiring him to submit to war-
rantless searches, the terms of his probation order required
him to report to his probation officer and refrain from using or
possessing alcohol or controlled substances. The warrantless
search condition was reasonably related to the enforcement
of the other conditions of Colby’s probation. In addition, the
warrantless search condition contributes to the rehabilitation
process. See U.S. v. Knights, 534 U.S. 112, 122 S. Ct. 587, 151
L. ed. 2d 497 (2001) (warrantless search condition furthered
two primary goals of probation—rehabilitation and protecting
society from further criminal violations). See, also, State v.
Lingle, supra; State v. Morgan, supra.
[5] We also conclude that the probation search was reason-
able. The standards for a reasonable search of a probationer
are much less than those of an ordinary citizen. See State v.
Morgan, 206 Neb. 818, 295 N.W.2d 285 (1980). The reason-
ableness of a search is determined by assessing, on the one
hand, the degree to which it intrudes upon an individual’s pri-
vacy and, on the other, the degree to which it is needed for the
promotion of legitimate governmental interests. U.S. v. Knights,
supra. The warrantless search condition of Colby’s probation
significantly diminished his expectation of privacy. See id.
Colby clearly violated the terms of his probation. He had not
reported to Witko or submitted to drug tests for “quite a time.”
Witko had received a tip that Colby was using drugs. Witko
had more than a reasonable suspicion that Colby violated the
terms of his probation. We conclude that the probation search
was reasonable.
The fact that Witko was not present during the search does
not make the search of Colby unreasonable. We are persuaded
by the decision of the U.S. Court of Appeals for the Ninth
Circuit in U.S. v. Richardson, 849 F.2d 439 (9th Cir. 1988), in
which the court of appeals found that a probation search that
was conducted by police officers, but with the permission of
the probationer’s probation officers, was reasonable. The court
observed that given the large caseloads of most probation offi-
cers, requiring the probation officer’s physical presence during
every probation search or requiring close supervision of all
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probation searches would unnecessarily interfere with the twin
goals of probation: rehabilitation of the probationer and protec-
tion of society. See id.
We conclude that the stop and search of Colby’s vehicle
and person were valid and lawful. We further conclude that
the search of Colby’s residence was lawful because it was
done pursuant to a search warrant that was supported by prob-
able cause. We therefore find no merit in Colby’s assignment
of error.
CONCLUSION
We conclude that the probation search was lawful and that
the search of Colby’s residence was also a lawful search. We
therefore affirm the district court’s judgment overruling the
motion to suppress.
affirMed .
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