STATE OF IOWA, Plaintiff - Appellant , vs. JAMES MAX OCHOA , Defendant - Appell ee .
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IN THE COURT OF APPEALS OF IOWA
No. 8-1034 / 08-0412
Filed February 19, 2009
STATE OF IOWA,
Plaintiff-Appellant,
vs.
JAMES MAX OCHOA,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Christine Dalton,
District Associate Judge.
Following the grant of discretionary review, the State seeks reversal of the
district court‟s ruling that granted the defendant‟s motion to suppress.
REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, Mary Tabor and Cristen Douglass,
Assistant Attorneys General, Michael J. Walton, County Attorney, and Alan
Havercamp, Assistant County Attorney, for appellant.
Mark C. Smith, State Appellate Defender, and Stephan Japuntich,
Assistant Appellate Defender, for appellee.
Considered by Vogel, P.J., and Mahan and Miller, JJ.
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VOGEL, P.J.
While on parole, James Ochoa was charged with possession of a
controlled substance and unlawful possession of a prescription drug. Ochoa filed
a motion to suppress, which alleged the search of his hotel room violated his
state and federal constitutional rights to be free from unreasonable searches and
seizures.
The district court granted Ochoa‟s motion and the State sought
discretionary review, which was granted by our supreme court.
Because
Ochoa‟s parole agreement stated he was subject to search, and thus he did not
have an expectation of privacy, we agree with the State that the search of
Ochoa‟s person and motel room did not violate his constitutional rights. We
reverse and remand for further proceedings.
I. Background Facts and Proceedings
In July 2007, after having served a portion of his sentence for a felony
conviction, Ochoa was notified that he was eligible for parole. However, prior to
the Department of Corrections approving his parole plan, Ochoa was required to
sign a parole agreement setting forth the conditions of his parole. One provision
stated:
“I will submit my person, property, place of residence, vehicle, [and]
personal effects to search at any time with or without a search warrant, warrant
of arrest or reasonable cause by any parole officer or law enforcement officer.”
Ochoa agreed to this and was subsequently released on parole.
On October 15, 2007, Officer Jereme Hatler of the Bettendorf Police
Department stopped by the Traveler Motel to conduct a routine “business check”
due to the motel‟s location in a high crime area. In talking with the desk clerk,
Officer Hatler discovered that Ochoa was staying at the motel and was on parole.
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Following a brief conservation with Ochoa outside Ochoa‟s motel room, Officer
Hatler asked Ochoa for permission to search his room, based on his knowledge
of Ochoa‟s status as a parolee and the terms of the typical parole agreement.
Ochoa responded, “You‟re going to anyway.” With that, Officer Hatler entered
the motel room and found cocaine, drug paraphernalia, and unauthorized
prescription medication.
The State charged Ochoa with possession of a controlled substance in
violation of Iowa Code section 124.401(5) (2007) and unlawful possession of a
prescription drug in violation of Iowa Code section 155A.21. Ochoa moved to
suppress all the evidence obtained from the search. The district court granted
the motion finding the search violated Ochoa‟s state and federal constitutional
rights as there was no reasonable suspicion to support the search, no “voluntary
consent,” and Ochoa‟s parole agreement did not justify the search. See U.S.
Const. amend. IV; Iowa Const. art. 1, § 8. The State was granted discretionary
review by our supreme court and seeks reversal of the district court‟s ruling.
II. Scope of Review
We review claimed violations of constitutional rights de novo in light of the
totality of the circumstances. State v. Brooks, ___ N.W.2d ___, ___ (Iowa 2009);
State v. Lane, 726 N.W.2d 371, 377 (Iowa 2007); see Samson v. California, 547
U.S. 843, 848, 126 S. Ct. 2193, 2197, 165 L. Ed. 2d 250, 256 (2006) (“„[U]nder
our general Fourth Amendment approach‟ we „examine the totality of the
circumstances‟ to determine whether a search is reasonable within the meaning
of the Fourth Amendment.” (quoting United States v. Knights, 534 U.S. 112, 118,
122 S. Ct. 587, 591, 151 L. Ed. 2d 497, 505 (2001))).
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III. Analysis
The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures.1 See Terry v. Ohio, 392 U.S. 1, 20, 88 S.
Ct. 1868, 1879, 20 L. Ed 2d 889, 905 (1968) (stating the Forth Amendment
imposes a general reasonableness standard upon all searches and seizures). In
determining whether a search is reasonable, we assess, “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.” Samson, 547 U.S. at 848, 126 S. Ct. at 2197, 165 L. Ed. 2d at 256.
In Iowa, an inmate who is paroled remains under the supervision of the
department of corrections and is required to abide by the terms and conditions of
parole, which are set forth in a parole agreement. Iowa Code §§ 906.1, 906.5(4);
Iowa Admin. Code r. 205.10.2(906), 205-10.3(906). The parole agreement must
be signed by the inmate prior to the commencement of parole and include the
standard conditions of parole and special conditions unique to the inmate, as well
as providing “for a search process and procedure of the parolee.” Iowa Admin.
Code r. 205-10.3(906). If a parolee violates the terms and conditions set forth in
the parole agreement, his parole may be revoked and he would return to prison.
Iowa Admin. Code r. 205.11.4(908), 205.11.5(908); see Larsson v. Iowa Bd. of
Parole, 465 N.W.2d 272, 276 (Iowa 1991) (“Implicit in the grant of conditional
1
Although the defendant has made a parallel claim under Article I,
section 8 of the Iowa Constitution, the defendant has not asserted that the
state constitutional provision should be interpreted differently than the
Fourth Amendment. As a result, for prudential reasons, we assume for
the purposes of this case that the Iowa Constitution should be interpreted
in the same fashion as its federal counterpart.
Brooks, ___ N.W.2d at ___ n.1 (citing State v. Wilkes, 756 N.W.2d 838, 842 n.1 (Iowa
2008)).
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release on parole is the duty resting upon the parolee to abide by those
conditions. The „enforcement leverage‟ given correction officials „derives from
the authority to return the parolee to prison to serve out the balance of his
sentence if he fails to abide by the rules.‟” (quoting Morrissey v. Brewer, 408 U.S.
471, 478-79, 92 S. Ct. 2593, 2599, 33 L. Ed. 2d 484, 493 (1972))). Parole is not
a right, but rather a privilege that allows an inmate to serve the remainder of his
sentence outside of prison walls. See Morrissey, 408 U.S. at 478-79, 92 S. Ct. at
2599, 33 L. Ed. 2d at 493 (“The essence of parole is release from prison, before
the completion of sentence, on the condition that the prisoner abide by certain
rules during the balance of the sentence.”); State v. Wright, 309 N.W.2d 891, 894
(Iowa 1981) (stating a defendant does not have a constitutional right to parole);
State v. Cullison, 173 N.W.2d 533, 542 (Iowa 1970) (Larson, J. dissenting)
(discussing that a parolee is only permitted in good behavior to serve the
remainder of his sentence outside of prison walls).
Prior to being paroled, Ochoa signed a parole agreement that set forth the
terms and conditions of his parole. Ochoa agreed to the standard conditions,
which included requirements that he: report to the District Department of
Correctional Services immediately upon release; reside at a specified residence
and not change his residence without the permission of a supervising officer;
obey all laws and ordinances; notify his supervising officer of an arrest or citation
within twenty-four hours; secure and maintain employment and notify his
supervising officer of any change in employment; maintain contact with his
supervising officer; and use his true name in all dealings. He also agreed to
refrain from: traveling out of his county of residence without permission from his
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parole officer; owning or possessing a firearm or dangerous weapon; and from
associating with persons with criminal records or persons who are engaged in
criminal activities. Ochoa agreed to special conditions, including: refraining from
the use of alcohol or drugs; submitting to alcohol and drug monitoring;
participating in substance abuse counseling; not entering taverns, liquor stores,
or other establishments where the primary activity is the sale of alcoholic
beverages; not associating with drug users or sellers and to avoid places where
drugs are sold; and participating in the intensive parole supervision program.
Additionally, and most pertinent to this appeal, Ochoa agreed to submit to a
suspicionless search at any time by a parole or peace officer, agreeing to the
following language:
“I will submit my person, property, place of residence,
vehicle, [and] personal effects to search at any time with or without a search
warrant, warrant of arrest or reasonable cause by any parole officer or law
enforcement officer.”
Officer Hatler conducted the search of Ochoa‟s motel room based upon
his knowledge of Ochoa‟s status as a parolee and the terms and conditions of
parole. In Samson v. California, the United States Supreme Court examined a
similar case, in which a parolee had agreed “to be subject to search or seizure by
a parole officer or other peace officer at any time of the day or night, with or
without a search warrant and with or without cause” and subsequently, a police
officer conducted a suspicionless search of the parolee. Samson, 547 U.S. at
846, 126 S. Ct. at 2196, 165 L. Ed. 2d at 255. The court noted that a parolee
remains in the legal custody of the Department of Corrections and must comply
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with all of the terms and conditions of parole.2 Id. at 850-51, 126 S. Ct. at 219899, 165 L. Ed. at 258-59; See Morrissey, 408 U.S. at 478-79, 92 S. Ct. at 2599,
33 L. Ed. 2d at 493 (discussing typical terms and conditions of parole, which are
substantial restrictions on a parolee‟s activities). “The extent and reach of these
conditions clearly demonstrate that parolees . . . have severely diminished
expectations of privacy by virtue of their status alone.” Samson, 547 U.S. at 852,
126 S. Ct. at 2199, 165 L. Ed. 2d at 259. However, the “salient” factor was that
“the parole search condition required inmates who opt for parole to submit to
suspicionless searches by a parole officer „at any time.‟” Id. (quoting Knights,
534 U.S. at 119, 122 S. Ct. at 591-92, 151 L. Ed. 2d at 505). The parolee had
signed a written agreement; thus, the parolee was “unambiguously” aware of the
condition and had accepted the condition. Id. The court concluded that under
the totality of the circumstances, specifically that parole is “an established
variation of imprisonment” and the plain terms of the parole search condition, the
parolee “did not have an expectation of privacy that society would recognize as
legitimate.” Id. In contrast, the State had a substantial interest in supervising
2
The terms and conditions of parole under California law are nearly identical to the
terms and conditions of Ochoa‟s parole agreement. The Supreme Court stated that the
terms and conditions of parole included:
mandatory drug tests, restrictions on association with felons or gang
members, mandatory meetings with parole officers. General conditions of
parole also require a parolee to report to his assigned parole officer
immediately upon release, inform the parole officer within 72 hours of any
change in employment status, request permission to travel a distance of
more than 50 miles from the parolee‟s home, and refrain from criminal
conduct and possession of firearms, specified weapons, or knives
unrelated to employment. Parolees may also be subject to special
conditions, including psychiatric treatment programs, mandatory
abstinence from alcohol, residence approval, and “[a]ny other condition
deemed necessary by the Board [of Parole Hearings] or the Department
[of Corrections and Rehabilitation] due to unusual circumstances.”
Samson, 547 U.S. at 851-52, 126 S. Ct. at 2199, 165 L. Ed. 2d at 259 (citations omitted).
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parolees. Id. at 853, 126 S. Ct. at 2200, 165 L. Ed. 2d at 259-60. Thus, the
Supreme Court held “that the Fourth Amendment does not prohibit a police
officer from conducting a suspicionless search of a parolee.” Id. at 857, 126 S.
Ct. at 2202, 165 L. Ed. 2d at 262.
Ochoa asserts that reasonable suspicion is required for a search and
relies, as the district court did, on State v. Cullison, 173 N.W.2d 533 (Iowa 1970).
However, Cullison involved a defendant who was on parole and had signed a
parole agreement, in which “he agreed to conduct himself honestly, obey the law,
keep reasonable hours, refrain from excessive use of intoxicants, and remain at
all times in Montgomery County.” Cullison, 173 N.W.2d at 534. The parole
agreement was devoid of any provision requiring a parolee to submit to a
suspicionless search.
As the Supreme Court found in Samson, the “salient”
factor is a parole condition that requires a parolee to agree to suspicionless
searches, which was not a condition of parole in Cullison. Samson, 547 U.S. at
852, 126 S. Ct. at 2199, 165 L. Ed. 2d at 259. In contrast, Ochoa, as a condition
of his parole, accepted and was unambiguously aware that he and his effects
were subject to search at any time, with or without reasonable cause. As held in
Samson, because Ochoa agreed to submit to suspicionless searches as a
condition of parole, he “did not have an expectation of privacy.” Id. Therefore,
Ochoa suffered no constitutional violation.
The district court erred in granting Ochoa‟s motion to suppress.
therefore reverse and remand for further proceedings.
REVERSED AND REMANDED.
We
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