State v. Yule
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MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
STATE OF FLORIDA,
Appellant,
v.
WILLIAM MICHAEL YULE,
Appellee.
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Case No. 2D03-4183
Opinion filed June 29, 2005.
Appeal from the Circuit Court
for Polk County; Wm. Bruce Smith,
Judge.
Charles J. Crist, Jr., Attorney General,
Tallahassee, and Jonathan P. Hurley,
Assistant Attorney General, Tampa,
for Appellant.
James Marion Moorman, Public
Defender, and Kevin Briggs,
Assistant Public Defender, Bartow,
for Appellee.
PER CURIAM.
The State appeals the trial court's order suppressing evidence which
served as the basis for criminal charges against William Michael Yule. The evidence
was obtained during the course of a warrantless probationary search of a residence
shared by Yule and a probationer, Stacy Ellison. We reverse.
The pertinent facts are undisputed. The search of the residence shared
by Yule and Ms. Ellison took place after Ms. Ellison's probation officer was advised by
another probationer–a relative of Ms. Ellison who was concerned about Ms. Ellison's
children–that "Ellison was dealing drugs out of her residence." Subsequently, two
probation officers went to Ms. Ellison's residence. The probation officers were
accompanied for safety by two sheriff's detectives. Upon arriving at Ms. Ellison's
residence, they encountered her "in a car . . . getting ready to leave." One of the
probation officers "stopped" Ms. Ellison and informed her that he "needed to search her
house . . . [b]ecause [he] had gotten word that she was dealing drugs." Ms. Ellison
agreed to the search of the residence. The probation officers, accompanied by the
sheriff's detectives, then entered the residence with Ms. Ellison. The probation officers
went into a bedroom of the residence with Ms. Ellison, while the detectives remained in
the living room where they encountered Yule and a woman. Yule and the woman were
instructed by the detectives to stay put.
One of the detectives asked Yule "if he had any weapons on him." Yule
responded that "he had a knife in his pocket." Yule removed the knife from his pocket.
The detective told Yule to "wait a minute" and took the knife from him. The detective
then asked Yule if he had any more weapons on his person. Yule said that he did not
and "lifted up his shirt and turned around as to display if he had any weapons on him."
When Yule lifted his shirt, the detective observed an "empty pen cartridge sticking out of
the rear of his pocket." The detective further observed that the clear pen cartridge had
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"a white residue in it." Based on his training and experience, the detective concluded
that the pen cartridge "was used to ingest methamphetamine." The detective then
patted Yule down and retrieved "four other tubes and cartridges" from his pocket. Yule
was arrested and read his Miranda1 rights. Yule then told the detective that underneath
the couch there was a tinfoil "boat"–which the detective testified is commonly used to
smoke methamphetamine. Yule further stated that he had smoked methamphetamine
earlier that day with a straw and the tinfoil.
Yule moved to suppress the drug paraphernalia as well as his statements
made to the detective. As grounds for suppression, Yule contended the physical
evidence and his statements were obtained as the result of an illegal warrantless search
and an illegal investigatory detention. In his motion, Yule acknowledged that the
probation officers involved were conducting a warrantless search of the residence
pursuant to a provision of Ms. Ellison's probation. Yule raised an objection concerning
the presence of the sheriff's detectives during the search. He did not dispute the facts
concerning the search to which the officers testified as set forth above.
In its order granting the motion to suppress, the trial court determined that
although the warrantless search of the residence was a valid probationary search, the
search was limited to a search for probation violations. The trial court concluded that
evidence obtained in the search would be admissible in a probation revocation
proceeding but not to prove a new criminal offense, citing Croteau v. State, 334 So. 2d
577 (Fla. 1976), and Grubbs v. State, 373 So. 2d 905 (Fla. 1979).
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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The trial court's reliance on Croteau and Grubbs to support a suppression
of the evidence in regard to the criminal charges against Yule was misplaced. The
Florida Supreme Court, in both Croteau and Grubbs, recognized that a probation officer
has the authority to enter his or her probationer's home and to conduct a warrantless
search. See Grubbs, 373 So. 2d at 908 (discussing the holding in Croteau, 334 So. 2d
577). In both Grubbs, 373 So. 2d at 908, and Croteau, 334 So. 2d at 580, the supreme
court concluded that material evidence discovered during such a probationary search is
admissible in a revocation proceeding.2 The court cautioned, however, that the
authority for a probationary search does not validate an otherwise unreasonable search
in regard to the prosecution of a separate criminal offense. Grubbs, 373 So. 2d at 90810; Croteau, 334 So. 2d at 580; see also Soca v. State, 673 So. 2d 24 (Fla. 1996)
(discussing Grubbs).3 Significant to the present case, both Croteau and Grubbs
2
The Florida Supreme Court has held that evidence obtained through a
probationary search is admissible in a probation revocation proceeding, see Grubbs,
373 So. 2d at 908, and its progeny, and that evidence obtained through an unlawful
search is inadmissible in a probation revocation proceeding, see State v. Scarlet, 800
So. 2d 220 (Fla. 2001).
3
The State argues that under the conformity clause contained in Article I,
Section 12 of the Florida Constitution, Croteau and Grubbs have been superseded, at
least in part, by the U.S. Supreme Court's decision in United States v. Knights, 534 U.S.
112 (2001). Although the State may be correct, we conclude that we have no need to
resolve this issue. The outcome of the present case does not depend on whether the
decisions of the Florida Supreme Court in Croteau, Grubbs, or Soca have been
superseded by the decision of the U.S. Supreme Court in Knights. Under all of the
foregoing decisions as applied to the facts in the present case, the probation officers
had the authority to enter the probationer's residence and conduct a probationary
search of that residence without a warrant.
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addressed whether evidence obtained during a probationary search could be admitted
in the prosecution of a new and separate criminal offense against a probationer.4
The present case has nothing to do with the use of evidence against a
probationer in a new criminal proceeding. Instead, this case concerns evidence
obtained during the course of a probationary search which implicated someone other
than the probationer–evidence which implicated Yule. In considering whether the
evidence obtained from Yule should be suppressed, two distinct phases of the conduct
of the probation officers and the detectives must be evaluated. The first phase is the
entry of the residence; the second phase is the initial detention and questioning of Yule.
We agree with the State's argument that the sheriff's detectives as well as
the probation officers legally entered the residence shared by Ms. Ellison and Yule. The
probation officers had the authority to enter Ms. Ellison's residence to conduct a
warrantless probationary search to determine whether she was in violation of her
probation under either federal or state constitutional standards. Compare United States
v. Knights, 534 U.S. 112, 122 (2001) (applying a totality of the circumstances test, the
Court held that a warrantless search conducted by a law enforcement officer, supported
by reasonable suspicion and authorized by a consented-to condition of probation which
allowed both law enforcement and probation officers to conduct a warrantless search,
was reasonable within the meaning of the Fourth Amendment of the United States
4
The Florida Supreme Court in Grubbs was not asked to address an actual
search but rather to determine the propriety of a unilateral condition in a probation order
which granted broad search authority to the probation supervisor and any law
enforcement officer. In Grubbs, the supreme court concluded that the condition violated
Article I, Section 12 of the Florida Constitution, as well as the Fourth Amendment to the
United States Constitution.
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Constitution and evidence seized during such a search could properly be admitted in a
prosecution on new criminal charges), with Soca, 673 So. 2d at 28 (explaining that in
order to strike a balance between the state's need to supervise probationers and an
individual's constitutional right to be free from unreasonable searches and seizures
pursuant to Article I, Section 12 of the Florida Constitution, the "Grubbs rule" authorizes
a probation officer to conduct a warrantless probationary search but limits the
admissibility of evidence obtained during the search). Under the Fourth Amendment of
the United States Constitution, as interpreted in Knights, the reasonable suspicion of the
probation officers concerning criminal activities by Ms. Ellison, which stands
unchallenged, provided a sufficient basis for the entry and warrantless search of the
residence.5 Under Article I, Section 12 of the Florida Constitution, as interpreted in
Grubbs and Soca, the authority of the probation officers to monitor and control the
probationer, Ms. Ellison, provided a sufficient basis for them to enter her residence and
conduct a warrantless search. Either way, the probation officers had the authority to
enter and conduct a warrantless search of Ms. Ellison's home.6
The sheriff's detectives accompanied the probation officers during the
probationary search as a safety precaution. Again, such a precautionary measure
5
We note that our record does not establish whether the condition of probation
in the present case was like that in Knights, a condition which allowed both law
enforcement and probation officers to conduct a warrantless search of the probationer's
home. However, under Florida law a condition which permits probation supervisors to
visit a probationer's home is a standard condition of probation which may be included in
a probation order. § 948.03(1)(b), Fla. Stat. (2002).
6
The State has not addressed the issue of whether Ms. Ellison's consent to the
search was voluntary and whether the search was thus independently justified on that
basis.
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violated neither the Fourth Amendment nor Article I, Section 12 under the facts of this
case. Compare United States v. Brown, 346 F.3d 808, 812 (8th Cir. 2003) (holding that
under balancing test set forth in Knights, additional intrusion into the probationer's
privacy resulting from additional law enforcement presence did not violate Fourth
Amendment even where the consented-to condition of probation authorized only
probation officers to conduct warrantless searches of the probationer's home but noting
that, like Knights, the search was supported by reasonable suspicion; the governmental
interest in ensuring probation officer safety outweighs any marginal, additional intrusion
into the probationer's privacy), with Soca, 673 So. 2d at 26 n.2 (addressing the
application of Grubbs, the Florida Supreme Court noted the internal rules of the Florida
Department of Corrections included the preference that probationary searches be
carried out with the assistance of local law enforcement officers).7
Once lawfully inside the residence, the detectives encountered Yule in the
living room of the residence, instructed him to stay in the living room for reasons of
officer safety, and one of the detectives asked him if he had any weapons. We
conclude that the interest in officer safety provided an adequate justification for Yule's
initial detention and the detective's inquiry concerning weapons.
There is no dispute concerning the events that transpired once Yule was
detained. Yule acknowledged that he had a knife and voluntarily lifted his shirt thereby
7
In Soca, the Florida Supreme Court noted the then-applicable internal rules of
the Florida Department of Corrections set forth a procedure to be followed by probation
officers in effecting a search with or without a warrant. Soca, 673 So. 2d at 26 n.2.
That procedure contemplated the assistance of local law enforcement officers where
possible. Id. The record before this court is silent in regard to the internal rules
effective at the time of this probationary search.
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exposing the pen cartridge–with the telltale white residue–to the plain view of the
detective who had asked him if he had any weapons. At that point, the detective had
probable cause to arrest Yule, which further justified the patdown that produced
additional evidence. The detective's subsequent recovery of the tinfoil boat was the
result of Yule's voluntary incriminating statement made after the detective had advised
Yule of his Miranda rights.
The probationary search of the residence was justified and the detectives
properly accompanied the probation officers during the search to provide additional
security. To secure the premises and ensure officer safety, the detectives properly
detained and questioned Yule. At each step along the way, the probation officers and
the detectives acted based on proper legal authority.
Accordingly, we reverse the trial court's suppression order and remand the
case for further proceedings.
Reversed and remanded.
ALTENBERND, C.J., and WHATLEY, J., Concur.
CANADY, J., Concurs with opinion.
CANADY, Judge, Specially concurring.
Although I concur in the majority's conclusion that the trial court erred in
suppressing the evidence at issue in this case, I write separately because I disagree
with a crucial element of the analysis employed by the majority. In particular, I disagree
with the majority's conclusion that "[t]he outcome of the present case does not depend
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on whether the decisions of the Florida Supreme Court in Croteau, Grubbs, or Soca
have been superseded by the decision of the U.S. Supreme Court in Knights." Since
this issue is of central importance in the analysis of this case, I set forth at length my
understanding of the proper basis for deciding this case after describing the argument
presented on appeal by the parties.
I. ARGUMENT ON APPEAL
The State contends on appeal that Grubbs and Croteau have been
superseded by the U.S. Supreme Court decision in Knights. The State further contends
that the law enforcement officers were properly present for safety reasons during the
probationary search of the residence Ellison shared with Yule and that the questioning
of Yule by the officers was also justified by officer safety. According to the State, the
seizure of the drug paraphernalia flowed from Yule's voluntary disclosure of the pen
cartridge (with its white residue) to the plain view of the detective.
Yule argues that Knights is not controlling because the law enforcement
officers had no reasonable suspicion that Yule himself was engaged in criminal activity.
Yule also relies on the decision in Soca v. State, 673 So. 2d 24 (Fla. 1996), which
reaffirmed the principle on which Grubbs was based that evidence obtained in the
course of a warrantless probationary search is not admissible in the prosecution of a
new criminal charge. Yule contends that his detention by the detectives in the
residence was improper because it was not based on a "founded suspicion of criminal
activity" on his part. According to Yule, the plain view doctrine is inapplicable here both
because the law enforcement officers were not legitimately in the place where the
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contraband was viewed and because the contraband was observed only after the
improper seizure of Yule by the detectives.
II. ANALYSIS
Contrary to the assertion of the majority opinion, the outcome of this case
depends on whether the decisions of the Florida Supreme Court in Croteau, Grubbs,
and Soca have been superseded by the decision of the U.S. Supreme Court in Knights.
Under Article I, Section 12 of the Florida Constitution, evidence is subject to
suppression under the exclusionary rule if that evidence "would be inadmissable under
decisions of the United States Supreme Court construing the 4th Amendment to the
United States Constitution." Under this provision of Florida's constitution–known as the
conformity clause–Florida courts "are bound to follow interpretations of the United
States Supreme Court with respect to the Fourth Amendment and provide to Florida
citizens no greater protection than those interpretations." Soca, 673 So. 2d at 27 (citing
Bernie v. State, 524 So. 2d 988, 990-91 (Fla. 1988)); see also State v. Lavazzoli, 434
So. 2d 321 (Fla. 1983) (discussing history of adoption of conformity clause). Any
evidence that would be admissible under the U.S. Supreme Court's interpretation of the
Fourth Amendment is thus admissible in the courts of Florida. Accordingly, the trial
court's order suppressing the evidence in the instant case must be reversed if–as the
State argues–it is inconsistent with the decision in Knights.
In analyzing the issues presented here, I will (1) review the decisions in
Croteau and Grubbs, and explain why those decisions cannot be distinguished from the
instant case on the ground relied on by the majority opinion; (2) examine the decision of
the U.S. Supreme Court in Griffin v. Wisconsin, 483 U.S. 868 (1987), which upheld the
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use in a criminal proceeding of evidence obtained in the search of a probationer's home
under a Wisconsin regulation permitting warrantless probationary searches based on
reasonable grounds, and discuss the decision in Soca, which distinguished Griffin and
reaffirmed the holding in Grubbs prohibiting the use in criminal prosecutions of evidence
obtained in probationary searches; (3) analyze the decision of the U.S. Supreme Court
in Knights; (4) discuss the impact of Knights on Florida law; and (5) address Yule's
specific arguments challenging the search of the residence and his initial detention and
questioning by the officers.
A. Croteau and Grubbs
The trial court was correct in concluding that Croteau and Grubbs provide
support for the general proposition that evidence discovered in the course of a
warrantless probationary search may not be used to prove a new criminal offense.
Although the rule articulated in Croteau was applied to exclude evidence in the criminal
prosecution of a probationer, that rule necessarily has consequences for
nonprobationers whose Fourth Amendment rights–as defined in Croteau–are violated
by a warrantless probationary search.
In Croteau, the court reversed the trial court's denial in a criminal
prosecution of a probationer's motion to suppress evidence obtained in the course of a
warrantless probationary search of the probationer's residence. 334 So. 2d at 580. The
court stated that "while evidence obtained in violation of the Fourth Amendment may be
admissible against the probationer at a revocation hearing, such evidence cannot
constitutionally be admitted at a criminal trial." Id. at 579. Accordingly, "the
exclusionary rule does not apply to probation revocation hearings . . . which are
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administrative in nature," but it is applicable to "one facing trial for a new and discrete
criminal offense." Id. at 580. The court concluded that although "a probation officer has
authority to enter upon the living quarters of his probationer to observe his life-style and
any material evidence thereby discovered is admissible in proceedings for revocation of
probation," the authority for such probationary searches "does not validate an otherwise
unreasonable search for contraband resulting in prosecution for a separate criminal
offense." Id.
The holding in Croteau can only reasonably be understood as the
statement of a rule based on the requirements of the Fourth Amendment: "[W]e think it
constitutionally required that one facing trial for a new and discrete criminal offense, as
Croteau was in the instant case, be given the full protection of the Fourth Amendment
and the corollary means by which the search and seizure principle is vindicated." Id.
Although not explicitly stated, the underpinning of the decision in Croteau evidently is
the concept that the use of evidence obtained in a warrantless probationary search is
limited by the probationary purpose of the search. Under this line of reasoning, the
scope of the lawfulness of the search is circumscribed by the purpose of the search and
the fruit of the search may therefore be used only in probation revocation proceedings.
In Grubbs, 373 So. 2d at 907, the court addressed a certified question
related to a defendant's challenge to a probation condition authorizing " 'any Probation
Supervisor and any law enforcement officer to search, at any time, the [defendant]
probationer and all vehicles and premises concerning which he has legal standing to
give consent to search.' " The question concerned whether a probation condition
"requiring a probationer to consent to a search at any time, by any law enforcement
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officer" violates the Fourth Amendment and the parallel provision found in Article I,
Section 12 of the Florida Constitution. Id. at 906. In response to this issue, the court
concluded that a "search condition set forth unilaterally by the judge in [a] probation
order which requires a probationer to consent at any time to a warrantless search by a
law enforcement officer is a violation of [A]rticle I, [S]ection 12 of the Florida
Constitution, and the [F]ourth [A]mendment to the United States Constitution."8 Id. at
910.
The court also specifically stated that it was holding that "a warrantless
search of a probationer's person or residence by a probation supervisor is valid to the
extent that the evidence discovered is used only in probation violation proceedings" but
that "the use of seized evidence in a new criminal proceeding requires compliance with
customary [F]ourth [A]mendment requirements although the opportunity to meet those
requirements may be easier because the defendant is a probationer." Id. at 907. In
referring to customary Fourth Amendment requirements, the Grubbs court had in mind
the general requirement that searches of a dwelling be based on a warrant issued on a
showing of probable cause unless a warrantless search is justified by sufficient exigent
circumstances. Following the Croteau decision, Grubbs rejects the possibility that a
person's status as a probationer is in itself sufficient to justify a warrantless search
under the requirements of the Fourth Amendment with respect to evidence to be used in
a criminal prosecution.
8
The court specifically refrained from addressing "the effect of the express
consent of a probationer given in open court at the time he or she is placed on
probation." 373 So. 2d at 910.
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The Grubbs court also drew a distinction between searches of
probationers conducted by probation officers and such searches conducted by law
enforcement officers:
The search of a probationer's person or residence by a
probation supervisor without a warrant is, in our view, a
reasonable search and absolutely necessary for the proper
supervision of probationers. However, granting such general
authority to law enforcement officials is not permissible
under the search and seizure provisions of the Florida or
United States Constitutions.
Id. at 909. Of course, in the context of the full opinion this reference to the authority of
probation officers addresses their authority to obtain evidence of probation
violations–not evidence that can be used in a criminal prosecution.
In its discussion of Croteau and its progeny, the majority here states that
"[t]he court cautioned . . . that the authority for a probationary search does not validate
an otherwise unreasonable search in regard to the prosecution of a separate criminal
offense." (Emphasis added.) But what the Florida Supreme Court has said about the
exclusion of evidence obtained in warrantless probationary searches–articulated first in
Croteau and then repeated in Grubbs and Soca–amounts to more than a cautionary
observation. It amounts to a holding based on an interpretation of the Fourth
Amendment. And that holding is inconsistent with the conclusion of the majority here
that Croteau, Grubbs, and Soca have no bearing on the question of whether the Fourth
Amendment permits the use of evidence obtained in a warrantless probationary search
in a criminal proceeding against a nonprobationer in whose home the warrantless
probationary search was conducted. The distinction the majority draws between the
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use of evidence against a probationer and the use of evidence against a nonprobationer
cannot be reconciled with the Fourth Amendment rationale of Croteau and its progeny.
The requirements of the Fourth Amendment exist, of course, to protect not
only probationers. So the rule stated in Croteau and its progeny concerning the
requirements of the Fourth Amendment cannot reasonably be understood as being
limited to the protection of probationers. A nonprobationer resident of a dwelling–such
as Yule–would have as much of a legitimate expectation of privacy in the dwelling and
accordingly would have as much standing to assert the Fourth Amendment right
identified in Croteau as would a probationer resident. See Minnesota v. Carter, 525
U.S. 83, 88 (1998) ("We have held that 'capacity to claim the protection of the Fourth
Amendment depends . . . upon whether the person who claims the protection of the
Amendment has a legitimate expectation of privacy in the invaded place.' ") (quoting
Rakas v. Illinois, 439 U.S. 128, 143 (1978)).
The majority fails to address the obvious question: If the Fourth
Amendment–as interpreted by Croteau and its progeny–protects probationers against
the use in criminal prosecutions of evidence obtained in warrantless probationary
searches, why does the Fourth Amendment not protect nonprobationers against the like
use of such evidence? To put the question more pointedly: Why is the Fourth
Amendment more protective of probationers than nonprobationers? To distinguish the
decisions in the Croteau line of cases from the instant case it is necessary to come to
terms with why, as a matter of Fourth Amendment doctrine, evidence obtained in a
warrantless probationary search must be suppressed in the criminal prosecution of a
probationer but not in the prosecution of a nonprobationer. This the majority fails to do.
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Pointing out that Yule is not a probationer does not suffice. Without providing any
explanation for doing so, the majority effectively treats what Croteau and its progeny
say about the protections of the Fourth Amendment as pure dicta and thus jettisons the
rationale of those decisions.9
The doctrine of stare decisis, of course, does not require that we treat
every broad statement of principle made in a prior decision as establishing a binding
rule. Courts often deliver statements of legal principle that are not material to the
determination of the issues actually presented and decided. We unquestionably should
avoid the tendency of latching on to each and every statement of legal principle in
judicial opinions and treating them as binding holdings.10 But the very legitimate
concern to avoid defining the scope of the holdings in prior decisions in an unduly
expansive manner does not justify the majority's conclusion that Croteau and its
progeny should be interpreted as having no bearing on the Fourth Amendment rights of
9
Following the logic of the majority here would also lead to the conclusion that
Knights' requirement that warrantless probationary searches be justified by reasonable
suspicion has no application in criminal prosecutions of nonprobationers against whom
evidence has been obtained in such a search. If the rule articulated in Croteau and its
progeny does not extend to protect nonprobationers, why should Knights protect
nonprobationers? After all, Knights–like Croteau–dealt with the suppression of evidence
against a probationer not a nonprobationer.
10
For a comprehensive discussion of issues involved in establishing the
boundary between holding and dicta, see Michael Abramowicz and Maxwell Stearns,
Defining Dicta, 57 Stan. L. Rev. 953 (2005). Abramowicz and Stearns offer this
definition: "A holding consists of those propositions along the chosen decisional path or
paths of reasoning that (1) are actually decided, (2) are based upon the facts of the
case, and (3) lead to the judgment. If not a holding, a proposition stated in a case
counts as dicta." Id. at 1065.
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nonprobationers such as Yule. We should avoid unduly restrictive readings of the
holdings of prior decisions, just as we should avoid unduly expansive readings.
This point is critical to the legitimacy of judicial decision making. One
commentator, in discussing how to determine the scope of judicial holdings, has
observed:
Legal and judicial culture play a critical role in
checking abuses of the judge's countermajoritarian power.
Central to that culture is the notion that any judicial decision
must be justified by the giving of reasons. . . . For the
judiciary, giving reasons justifies the exercise of
governmental authority . . . .
Viewed from this perspective, the reasons a court
gives for a decision constitute a critical part of the decision
itself . . . . When a court discards the reasoning of a prior
opinion as merely dictum, unless it suggests an alternative
basis for the outcome of the precedent case, it essentially
relegates the prior decision to the position of an unjustifiable,
arbitrary exercise of judicial power. . . .
....
[J]udicial accountability and legitimacy derive from
judicial rationality, which in turn will be found in the rationales
offered by courts to justify their decisions. To discard the
rationale of an earlier decision without the kind of compelling
reasons that justify any departure from precedent does more
than merely reinterpret a past case. It delegitimizes that
case, and in the process, delegitimizes the decision in the
case before the court. In sum, a commitment to the rule of
law and a proper understanding of the source of legitimate
authority in our constitutional order will result in a
holding/dictum distinction that turns on rationales, not just
facts and outcomes.
Michael C. Dorf, Dicta and Article III, 142 U. Pa. L. Rev. 1997, 2029, 2040 (1994). See
also Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1180,
1185 (1989) (stating that "[o]nly by announcing rules do we hedge ourselves in" and
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arguing "that the establishment of broadly applicable general principles is an essential
component of the judicial process").
A judicial decision-making process in which the stated rationales of prior
decisions are set aside on the basis of immaterial factual distinctions is a decisionmaking process that will inevitably be characterized by ad hoc determinations and ipse
dixit deliverances. Such a process is, of course, at odds with the stability, predictability,
and rationality that are hallmarks of the rule of law. And such a process is no less at
odds with the requirement of our constitutional structure that judges exercise judgment
and not will. See The Federalist No. 78, at 520 (Alexander Hamilton) (The Easton
Press ed., 1979) ("[The judiciary] may truly be said to have neither FORCE nor WILL
but merely judgment.").
Accordingly, I conclude that we must pay attention to the rule articulated
by the Florida Supreme Court in Croteau and Grubbs. Once that is done, the analysis
must proceed to an examination of Griffin, Soca, and Knights.
B. Griffin and Soca
Griffin considered a Fourth Amendment challenge to evidence seized in
the warrantless search of a probationer's home by probation officers. The seized
evidence–a handgun–"served as the basis of Griffin's conviction of a state-law weapons
offense." 483 U.S. at 870-71. The search of Griffin's residence was conducted by the
supervisor of Griffin's probation officer–accompanied by another probation officer and
three policemen–after the supervisor "received information from a detective . . . that
there were or might be guns in Griffin's apartment." Id. at 871.
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In deciding the case, the Court focused on the existence of a Wisconsin
regulation governing probationary searches and the needs of the state in administering
its probation system. Id. at 875-76. The Wisconsin regulation permitted "any probation
officer to search a probationer's home without a warrant as long as his supervisor
approves and as long as there are 'reasonable grounds' to believe the presence of
contraband–including any item that the probationer cannot possess under the [pertinent]
probation conditions." Id. at 870-71. The Court recognized that "[a] State's operation of
a probation system . . . presents 'special needs' beyond normal law enforcement that
may justify departures from the usual warrant and probable-cause requirements"
applicable to searches of dwellings. Id. at 873-74.
The Court concluded that a warrant requirement and a probable cause
requirement would be inconsistent with the legitimate needs of the State in
administering its probation system. Id. at 875-76. "A warrant requirement would
interfere to an appreciable degree with the probation system" by "setting up a
magistrate rather than the probation officer as the judge of how close a supervision the
probationer requires." Id. at 876. "[T]he delay inherent in obtaining a warrant would
make it more difficult for probation officials to respond quickly to evidence of
misconduct." Id. Similarly, the administration of probation would "be unduly disrupted
by a requirement of probable cause." Id. at 878. Given the nature of the relationship
between a probationer and the supervising authority, "it is both unrealistic and
destructive of the whole object of the continuing probation relationship to insist upon the
same degree of demonstrable reliability of particular items of supporting data, and upon
the same degree of certainty of violation, as is required in other contexts" to justify a
-19-
search. Id. at 879. Instead, the supervising authority "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." Id. Thus it is "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.
In light of these considerations, the Court concluded that "[t]he search of
Griffin's home satisfied the demands of the Fourth Amendment because it was carried
out pursuant to a regulation that itself satisfies the Fourth Amendment's reasonableness
requirement under well-established principles." Id. at 873. The Court specifically stated
that it was not addressing the State of Wisconsin's argument that "any search of a
probationer's home by a probation officer is lawful when there are 'reasonable grounds'
to believe contraband is present." Id. at 880.
Soca, 673 So. 2d at 27-28, presented the question of whether Griffin was
controlling precedent where the warrantless search of a probationer's residence yielded
contraband that was the basis for a criminal prosecution. The Third District had
concluded that Griffin was controlling. Soca v. State, 656 So. 2d 536 (Fla. 3d DCA
1995). The Florida Supreme Court disagreed. Specifically, the court concluded that
"Florida's statutory scheme regulating probation supervision" was not "sufficiently
analogous to the Wisconsin regulation at issue in Griffin . . . so as to make the holding
in Griffin controlling." 673 So. 2d at 27. The critical difference between the Florida and
Wisconsin probation systems was the absence from the Florida system of a provision
"expressly authorizing or regulating the authority of probation officers or supervisors to
conduct a probationary search when it is supported by 'reasonable grounds.' " Id. at 27-20-
28. Based on that difference, the court concluded that the facts presented by the
search of Soca's dwelling were "clearly distinguishable from Griffin, and under Grubbs
the evidence obtained in the probationary search of Soca's [dwelling] is not admissible
against him in a new criminal proceeding." Id. at 28.
C. Knights
In Knights, the U.S. Supreme Court firmly rejected a claim that "a
warrantless search of a probationer satisfies the Fourth Amendment only if it is just like
the search at issue in Griffin–i.e., a 'special needs' search conducted by a probation
officer monitoring whether the probationer is complying with probation restrictions." 534
U.S. at 117. Knights shifts the starting point for the Fourth Amendment analysis from
the details of the State's system for supervising probationers to the reasonableness of
the particular search carried out pursuant to a probation condition.
Knights was subject to a probation order–to which he had agreed–with a
condition that he submit to searches by any probation officer or law enforcement officer
at any time without a warrant or reasonable cause. Id. at 114. A law enforcement
officer investigating an arson who "observed a number of suspicious objects" in a
vehicle that had come from Knights' apartment as well as other suspicious activities
around the apartment "decided to conduct a search of Knights' apartment." Id. at 115.
The officer "was aware of the search condition in Knights' probation order and thus
believed that a warrant was not necessary." Id. The Supreme Court was presented the
question of whether evidence obtained in the warrantless search could be used in the
criminal prosecution of Knights.
-21-
Basing its holding "on ordinary Fourth Amendment analysis that considers
all the circumstances of a search," the Court rejected the distinction–which had been
adopted by both the district and circuit courts as a basis for suppression–between
searches conducted for investigatory–i.e., law enforcement–purposes and those
conducted for probationary purposes. Id. at 122. Noting that "nothing in the condition of
probation suggests that it was confined to searches bearing upon probationary status
and nothing more," id. at 116, the Court concluded that "the search of Knights was
reasonable under our general Fourth Amendment approach of 'examining the totality of
the circumstances,' with the probation search condition being a salient circumstance,"
id. at 118 (quoting Ohio v. Robinette, 519 U.S. 33, 39 (1996)). Accordingly, the Court
reversed the order suppressing the evidence in the criminal prosecution of Knights.
In evaluating the "reasonableness of a search," the Court looked to " 'the
degree to which it intrudes upon an individual's privacy' " balanced against " 'the degree
to which it is needed for the promotion of legitimate governmental interests.' " Id. at 11819 (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). With respect to the factor
of "an individual's privacy," the Court concluded that "[t]he probation condition . . .
significantly diminished Knights' reasonable expectation of privacy." Id. at 119-20. With
respect to the factor of "legitimate governmental interests," the Court recognized the
State's "dual concern with a probationer." Id. at 120. One concern centers on the
probationer's successful completion of probation; the other concern centers on the
heightened potential–compared to the community in general–for criminal conduct by the
probationer. Id. at 120-21. The Court recognized that the state's "interest in
apprehending violators of the criminal law, thereby protecting potential victims of criminal
-22-
enterprise, may therefore justifiably focus on probationers in a way that it does not on the
ordinary citizen." Id. at 121.
Balancing these considerations, the Court concluded that a "reasonable
suspicion"11 was sufficient to justify "a search of this probationer's house." Id. "When
an officer has reasonable suspicion that a probationer subject to a search condition is
engaged in criminal activity, there is enough likelihood that criminal conduct is occurring
that an intrusion on the probationer's significantly diminished privacy interests is
reasonable." Id. Based on the same considerations, the Court concluded that a
warrant requirement was unnecessary. Id. The Court therefore held that "the
warrantless search of Knights, supported by reasonable suspicion and authorized by a
condition of probation, was reasonable within the meaning of the Fourth Amendment."
Id. at 122.
D. The Impact of Knights on Florida Law
Under the conformity clause of Article I, Section 12 of the Florida
Constitution, Knights is controlling precedent which supersedes the holdings of Croteau,
Grubbs, and Soca that evidence seized in a warrantless probationary search is
inadmissible in a criminal prosecution. Unlike Griffin, Knights is not based on the
special needs of a probation system operating under a regulation authorizing searches
by probation officers based on reasonable grounds. Under Knights, the basis on which
Soca distinguished Griffin is consequently no longer pertinent. The critical question is
not whether the state has specifically established a system authorizing warrantless
11
The existence of reasonable suspicion for the search of Knights' apartment
was conceded by Knights. United States v. Knights, 534 U.S. 112, 122 (2001).
-23-
searches of probationers based on reasonable suspicion but whether a particular
search of a probationer pursuant to a probation search condition is in fact supported by
reasonable suspicion. Knights holds that warrantless searches pursuant to a search
condition in a probation order are not limited to searches for probationary purposes but
may also include searches for law enforcement purposes. Knights therefore also holds
that evidence obtained in such warrantless searches may be used in a criminal
prosecution. Croteau, Grubbs, and Soca cannot be reconciled with Knights.12
E. Yule's Claims Regarding the Search and His Detention and Questioning
Yule acknowledges that the search of the residence he shared with Ellison
was pursuant to a provision of Ellison's probation. Yule does not challenge the
existence of the probation officers' reasonable suspicion that Ellison had violated her
probation by selling illicit drugs from the residence. Instead, Yule challenges the search
based on the argument that Knights is not controlling because the law enforcement
officers had no reasonable suspicion that Yule was engaged in criminal activity. Yule
also challenges the presence of the detectives during the probationary search. Yule
further argues that his detention in the residence was improper because it was not
justified by a "founded suspicion" concerning his conduct.
As the majority opinion recognizes, in determining whether the evidence
obtained from Yule should be suppressed, two phases of the conduct of the probation
12
The distinction in Grubbs between searches conducted by probation officers
and searches conducted by law enforcement officers similarly is inconsistent with the
holding in Knights. Under Knights, a warrantless search by a law enforcement officer
pursuant to a probation condition meets the requirements of the Fourth Amendment if
the search is based on reasonable suspicion–at least where the probation condition
authorizes warrantless searches by law enforcement officers.
-24-
officers and the detectives must be considered. The first phase is the entry of the
residence to perform a warrantless probationary search; the second phase is the initial
detention and questioning of Yule when the officers encountered him in the living room
of the dwelling.
As to the first phase–entry of the residence–under the standard
established in Knights, the requirements of the Fourth Amendment were satisfied. The
reasonable suspicion of the probation officers concerning criminal activities by Ellison
stands unchallenged. That reasonable suspicion provided a sufficient basis for the
entry of the residence. The absence of reasonable suspicion with respect to Yule is
irrelevant to the propriety of the entry of the residence to conduct a search with respect
to Ellison.
The fact that a probationer shares a residence with another does not
nullify the authority of probation and law enforcement officers to conduct a properly
justified warrantless search of the probationer's shared residence. A person choosing
to live in the same home with another who is subject as a probationer to warrantless
searches has a corresponding diminished expectation of privacy. See State v.
Johnson, 748 P.2d 1069, 1073 (Utah 1987), abrogated on other grounds by State v.
Doporto, 935 P.2d 484 (Utah 1997) ("A warrantless search of a parolee may result in an
invasion of privacy, at least to some extent, for those living with the parolee. If the
Fourth Amendment rights of nonparolees living with parolees were not reduced, a
parolee could avoid all warrantless parole searches by living with a nonparolee and
asserting the nonparolee's constitutional rights, and thus emasculate one significant
feature of the parole system."). The nonprobationer's diminished expectation of privacy
-25-
extends to those portions of the shared residence over which the probationer and
nonprobationer have joint dominion. "Persons who live with probationers cannot
reasonably expect privacy in areas of a residence that they share with probationers."
People v. Pleasant, 19 Cal. Rptr. 3d 796, 798 (App. 2004). Accordingly, "a warrantless
search, justified by a probation search condition, may extend to common areas, shared
by nonprobationers, over which the probationer has 'common authority.' " People v.
Smith, 116 Cal. Rptr. 2d 694, 697 (App. 2002) (quoting United States v. Matlock, 415
U.S. 164, 171 (1974) (holding that consent to warrantless search by person with
common authority over residential premises was valid against nonconsenting person
who shared that common authority)); see also State v. West, 517 N.W.2d 482, 491
(Wis. 1994) (stating that a "parole search may extend to all parts of the premises to
which the probationer or parolee has common authority, just as if it were a consent
search").
Here, the detectives encountered Yule in the living room of the residence.
The living room of a dwelling will–except in unusual circumstances–be an area of the
dwelling over which all the residents of the dwelling share common authority. And here
there is no suggestion that Yule and Ellison did not share common authority over the
living room. The scope of the search with respect to the probationer thus without
question extended to the portion of the residence where the detectives encountered
Yule.13
13
Even areas of a dwelling not under the common control of the probationer
might be subjected to the limited intrusion involved in a protective sweep if necessary to
find individuals potentially threatening the safety of the officers. See People v.
Ledesma, 131 Cal. Rptr. 2d 249 (App. 2003) (holding that protective sweep may be
-26-
The State correctly argued that the detectives properly accompanied the
probation officers during the probationary search. Considerations of safety fully justify
the presence of law enforcement officers during the course of a warrantless search by
probation officers based on a reasonable suspicion of criminal activity–particularly
where the suspicion relates to the sale of illicit drugs. The additional security afforded
by the presence of law enforcement officers during a search by probation officers is a
reasonable and prudent measure calculated to forestall violent resistance to the search.
"[T]he Fourth Amendment does not require probation officers to choose between
endangering themselves by searching alone and foregoing the search because they
lacked the resources and expertise necessary to search alone safely." United States v.
Brown, 346 F.3d 808, 812 (8th Cir. 2003). "[T]he governmental interest in ensuring
probation officer safety outweighs any marginal, additional intrusion into [a
probationer's] privacy resulting from the [law enforcement officers'] presence." Id.; see
People v. Kanos, 92 Cal. Rptr. 614, 617 (App. 1971) ("Police assistance properly may
be requested by parole agents for providing protection and for aiding in the
apprehension and investigation of a parole violator."); see also Griffin, 483 U.S. at 871
(referring to presence of law enforcement officers during warrantless search by
probation officers for evidence of weapons offense).
executed in connection with probation search if justified by pertinent circumstances);
see also Maryland v. Buie, 494 U.S. 325, 334 (1990) (holding that to justify protective
sweep of premises in which arrest is made "there must be articulable facts which, taken
together with the rational inferences from those facts, would warrant a reasonably
prudent officer in believing that the area to be swept harbors an individual posing a
danger to those on the arrest scene").
-27-
As to the second phase of the officers' conduct–the detention and
questioning of Yule–the interest in officer safety provided an adequate justification for
the detectives' actions. When a properly justified search of a residence is being
conducted for evidence of criminal activities involving illicit drugs, persons present in the
residence may be at least briefly detained and questioned in order to protect officer
safety.
In Michigan v. Summers, 452 U.S. 692, 702 (1981), the U.S. Supreme
Court recognized that "the execution of a warrant to search for narcotics is the kind of
transaction that may give rise to sudden violence or frantic efforts to conceal or destroy
evidence." In such circumstances, "[t]he risk of harm to both the police and the
occupants is minimized if the officers routinely exercise unquestioned command of the
situation." Id. at 702-03. Although the Summers' holding that the detention of an
occupant was justified dealt with the particular circumstances involved in detention of a
person whose residence was subject to a warrant authorizing a search for contraband
issued on the basis of a probable cause determination made by a magistrate, the Court
specifically noted that its holding did not "preclude the possibility that comparable police
conduct may be justified by exigent circumstances in the absence of a warrant." Id. at
702 n.17.
The lawful warrantless search of the residence of a probationer suspected
of dealing drugs raises identical concerns regarding the potential for violence which
justify the officers in exercising "unquestioned command of the situation." Id. at 703.
The issue of officer safety is thus no less compelling in the instant case than it was in
-28-
Summers. Here the officers were confronted with Yule and another person in addition
to Ellison when they entered the residence. In Summers, the authorities encountered
the defendant as he was descending the front steps of his residence. Id. at 693. Yule
potentially posed as great a threat to the officers within the confines of the residence as
the defendant in Summers–who had departed the residence–posed to the searching
officers there. In both Summers and the instant case, the detention did not constitute
an unreasonable seizure. See also Muehler v. Mena, 125 S. Ct. 1465, 1469-70 (2005)
(discussing Summers and stating that "[a]n officer's authority to detain incident to a
search is categorical"); DeLeon v. State, 700 So. 2d 718, 720 (Fla. 2d DCA 1997)
(stating that where "police obtained consent to enter [a] residence for the purpose of
searching for" a criminal fugitive, it was "reasonable and justifiable" in order "to ensure
officer safety" to "temporarily detain[ ] all the occupants of the house long enough to
investigate the presence of the armed felon").
Once Yule was detained, he voluntarily lifted his shirt and exposed the pen
cartridge–with the methamphetamine residue–to the plain view of the detective who was
questioning him. This gave the detective probable cause to arrest Yule. That probable
cause justified the patdown that produced additional evidence.14 The ensuing recovery
14
The detective did not perform a patdown and search of Yule's person until the
detective had probable cause to arrest Yule. See United States v. Robinson, 414 U.S.
218 (1973) (holding that probable cause for arrest is sufficient justification for search of
individual's person incident to that individual's arrest). We thus have no occasion to
address whether officer safety would have justified a patdown in connection with the
initial detention of Yule. Compare Ybarra v. Illinois, 444 U.S. 85 (1979) (holding that
where officers were searching public tavern pursuant to warrant, patdown of patron of
tavern was impermissible in the absence of a reasonable belief that patron was involved
in criminal activity or was armed or dangerous), and Sosa-Leon v. State, 848 So. 2d
342, 343 (Fla. 2d DCA 2003) ("The mere presence of a visitor in a residence being
-29-
of the tinfoil boat resulted from Yule's voluntary incriminating statement.
The fact that the search of the residence was constitutionally justified by
reasonable suspicion that Ellison was engaged in criminal activities in violation of a
condition of her probation–rather than by suspicion regarding Yule–does not mean that
the detectives were required to ignore the criminal conduct of Yule which came to their
attention as they properly performed their duties during the search. "Once the veil of
the home has been legally pierced, [there is] no need for police officers to turn a blind
eye to crime." Sheik-Abdi v. McClellan, 37 F.3d 1240, 1245 (7th Cir. 1994); see also
Coolidge v. New Hampshire, 403 U.S. 443, 467-68 (1971) ("Where, once an otherwise
lawful search is in progress, the police inadvertently come upon a piece of evidence, it
would often be a needless inconvenience, and sometimes dangerous–to the evidence
or to the police themselves–to require them to ignore it until they have obtained a
warrant particularly describing it.").
The search of the residence was justified by the reasonable suspicion that
a probationer resident there was engaged in criminal activities. The detectives properly
accompanied the probation officers during the search to provide additional security. To
secure the premises and protect officer safety, the detectives properly detained and
questioned Yule. There was no violation of the Fourth Amendment in the conduct of the
probation officers and the detectives.
searched pursuant to a legal search warrant is insufficient to connect him with criminal
conduct justifying a search of his person."), with State v. Alamont, 577 A.2d 665 (R.I.
1990) (holding that due to inherent dangerousness of circumstances where
officers–acting pursuant to search warrant–were searching private residence for illegal
drugs officer safety justified patdown search for weapons of any occupants present
while the search was in progress).
-30-
III. Conclusion
Because I conclude that there was no violation of Yule's Fourth
Amendment rights, I concur with the reversal of the trial court's order suppressing the
evidence against Yule.
-31-
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