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Search of probationer ruled illegal

Utah Appeals Court says drug test not warranted

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Warrantless police searches of individuals on probation are unconstitutional, the Utah Court of Appeals has ruled.

In a unanimous decision filed Friday, the court reversed the case of a man charged with drug possession after a urine sample showed he had used several drugs. Because the Garfield County deputy sheriff who obtained the urine sample had acted without a search warrant, the court ruled that sample could not be admitted into evidence.

While "probationers have a lesser degree of constitutional protection against searches and seizures than do ordinary citizens" and "a probation officer's search need only be supported by reasonable suspicion, police officers are required to abide by the usual warrant and probable cause requirements of the Fourth Amendment," the opinion states.

In October 1997, deputy James Perkins received a tip that Clayton Burningham, who was on bench probation for a prior drug-related charge, allegedly had been using marijuana and methamphetamine, the opinion states. The terms of the bench probation, which remains under the jurisdiction of the court and not the Department of Corrections, required Burningham "to submit to drug testing at the request of any peace officer."

Aware of Burningham's probation requirements, Perkins located Burningham and requested a urine sample that "allegedly tested positive for three controlled substances." Burningham also "allegedly admitted to the deputy that he had recently used a controlled substance," the opinion states.

As a result, Burningham was charged with three counts of possession of a controlled substance. At trial, Burningham argued the sample should not be allowed into evidence because "both the random search provision of his probation and the deputy's search violated the Fourth Amendment."

Sixth District Judge David Mower determined the random search provision for the bench probation was illegal but upheld the search because Burningham "was a probationer and the search was supported by reasonable suspicion." The appellate court disagreed.

"Deputy Perkins acted solely as a police officer when his search, supported only by reasonable suspicion, allegedly uncovered evidence of illegal drug activity," the opinion states.

The fact that the state's judiciary does not have investigative officers to ensure compliance with bench probation and that some counties may have very few probation officers "may justify a judge's request for help from the police to investigate a possible probation violation," the opinion adds.

"In this case, however, there is no indication that the judge was aware of (Burningham's) possible probation violation and requested deputy Perkins' investigation." Thus, Burningham's "Fourth Amendment rights were violated when deputy Perkins, acting as a police officer, seized evidence from (Burningham) without probable cause," the court concluded.

Defense attorney Robert Breeze said his client will be happy with the decision but declined to comment further.

Assistant Attorney General Catherine Johnson pointed out the decision could "make judges more reluctant to impose bench probation," which could result in more jail time in some cases.

"Our position was that the trial court needed to have a mechanism by which to verify that the conditions of probation were being complied with," she said. Since "there was no probation officer supervising the defendant, (Perkins) should have been allowed to search the defendant. He had reason to believe the defendant was using drugs, and in fact the urinalysis confirmed that."

Johnson said an appeal to the Utah Supreme Court has not been ruled out.

E-mail: hans@desnews.com