[This opinion has been published in Ohio Official Reports at
82 Ohio St.3d 316.]
THE STATE OF OHIO, APPELLANT, v. BENTON, APPELLEE.
[Cite as State v. Benton, 1998-Ohio-386.]
Constitutional law—Search and seizure—Warrantless search of parolee, his motor
vehicle, or place of residence performed by parole officer at any time
pursuant to a condition of parole is constitutional.
A warrantless search performed pursuant to a condition of parole requiring a
parolee to submit to random searches of his or her person, motor vehicle, or
place of residence by a parole officer at any time is constitutional.
(No. 97-897—Submitted March 25, 1998—Decided July 8, 1998.)
APPEAL from the Court of Appeals for Montgomery County, No. 15850.
__________________
{¶ 1} On July 5, 1995, defendant-appellee, Lemuel F. Benton, was paroled
from his sentence for two counts of aggravated trafficking and one count of
engaging in corrupt activity. As one of the conditions of his parole, defendant
signed a “Conditions of Supervision” form provided by the Ohio Adult Parole
Authority. At the time of signing, these conditions were explained to the defendant.
One of the conditions stated: “I agree to a search without warrant of my person,
my motor vehicle, or my place of residence by a parole officer at any time.”
{¶ 2} On January 17, 1996, defendant’s parole officer, Joseph B.
Moorefield, went to defendant’s residence intending to search it. He was
accompanied by Parole Officer Tom Sandy. They had no warrant. When the two
officers arrived, they noticed a woman in an unidentified vehicle in the defendant’s
driveway. The officers knocked on defendant’s door and waited approximately
four minutes before the defendant answered the door.
{¶ 3} When the defendant answered the door, Officer Moorefield advised
the defendant that they were going to conduct a search of his residence. For safety
SUPREME COURT OF OHIO
reasons, Officer Moorefield asked the defendant to sit down so he could observe
him while Officer Sandy conducted the search. Once defendant was seated, Officer
Sandy began searching the residence and Officer Moorefield observed the
defendant. However, Officer Moorefield left defendant alone for a moment while
he checked another room to be sure it was secure. While Officer Moorefield looked
in that room, defendant got up from his seat and went outside.
{¶ 4} The defendant walked out to the unidentified vehicle where, Officer
Moorefield testified, it appeared that the defendant handed something through the
window to the woman in the car. Officer Moorefield then advised the defendant
that he was under arrest because he had violated a parole condition by failing to
comply with the direct order of his parole officer, namely, the order to remain
seated.
{¶ 5} After arresting defendant, Officer Moorefield took defendant back
into the house and searched the car and found some knives. Meanwhile, Officer
Sandy searched the house and found a second parolee, who was also under Officer
Moorefield’s supervision, hiding in the defendant’s basement. The second parolee
admitted to Officer Moorefield that he had been the driver of the unidentified car
and that the knives found in the car were his. Officer Moorefield arrested the
second parolee and the Dayton police transported both parolees to the Montgomery
County Jail.
{¶ 6} After the Dayton officers departed with the two parolees, Officers
Moorefield and Sandy continued their search of defendant’s residence. Officer
Moorefield found a large sum of cash underneath a mattress in one of the bedrooms
and Officer Sandy found a large amount of marijuana in another room.
{¶ 7} Defendant was indicted on one count of trafficking in marijuana
pursuant to R.C. 2925.03(A)(4). On March 8, 1996, defendant’s attorney filed a
motion to suppress the evidence obtained during the search of defendant’s home.
2
January Term, 1998
After the April 5, 1996 hearing, the trial court granted the motion to suppress on
April 8, 1996.
{¶ 8} The Montgomery County Court of Appeals affirmed the judgment of
the trial court, finding that “evidence gained during a search of a parolee by a parole
officer may be admitted in an independent criminal prosecution against the parolee
as long as the parolee’s Fourth Amendment rights were not violated.” However,
the court found that the defendant in this case did not consent to a search of his
home without reasonable cause. The court found that because the search was
random, it violated the Fourth Amendment’s guarantee against unreasonable
searches.
{¶ 9} The cause is now before this court upon the allowance of a
discretionary appeal.
__________________
Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, Carley J.
Ingram and Cheryl A. Ross, Assistant Prosecuting Attorneys, for appellant.
John H. Rion & Associates, John H. Rion and Jon Paul Rion, for appellee.
__________________
Lundberg Stratton, J.
{¶ 10} The issue presented in this case is whether the Fourth Amendment’s
proscription of unreasonable searches and seizures is violated by a random search
of the residence of a parolee who, as a condition of parole, consented to warrantless
searches by parole officers at any time. For the reasons stated below, we conclude
that such searches are constitutional.
APPLICATION OF FOURTH AMENDMENT
{¶ 11} The Fourth Amendment to the United States Constitution guarantees
“[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” See, also, Section 14, Article I, Ohio
Constitution.
3
SUPREME COURT OF OHIO
{¶ 12} We must start with the basic principle that prisoners have forfeited
many of their rights and privileges upon incarceration. Some of these privileges
are regained upon parole, but the defendant is still subject to limitations because a
convicted criminal has no inherent or constitutional right to be conditionally
released before the expiration of a validly imposed sentence. Greenholtz v. Inmates
of Nebraska Penal & Correctional Complex (1979), 442 U.S. 1, 7,
99 S.Ct. 2100,
2104,
60 L.Ed.2d 668, 675; State ex rel. Hattie v. Goldhardt (1994),
69 Ohio St.3d
123, 125,
630 N.E.2d 696, 698; State ex rel. Carrion v. Ohio Adult Parole Auth.
(1998),
80 Ohio St.3d 637,
687 N.E.2d 759. Nonetheless, because the state has an
interest in rehabilitation and reintegration of the prisoner into society, prisoners are
often offered an opportunity for parole. The government is “offering to allow the
prisoner to regain his or her freedom in return for a promise to abide by rules which,
to a greater or lesser extent, limit the exercise of fundamental rights.” Carchedi v.
Rhodes (S.D.Ohio 1982),
560 F.Supp. 1010, 1016.
{¶ 13} The presence of the offender in the community creates the need for
special supervision. Griffin v. Wisconsin (1987), 483 U.S. 868,
107 S.Ct. 3164,
97
L.Ed.2d 709. Supervision “is a ‘special need’ of the State permitting a degree of
impingement upon privacy that would not be constitutional if applied to the public
at large.”
Id. at 875,
107 S.Ct. at 3169,
97 L.Ed.2d at 718. “Revocation deprives
an individual, not of the absolute liberty to which every citizen is entitled, but only
of the conditional liberty properly dependent on observance of special parole
restrictions.” Morrissey v. Brewer (1972),
408 U.S. 471, 480,
92 S.Ct. 2593, 2600,
33 L.Ed.2d 484, 494. “These restrictions are meant to assure that the probation
serves as a period of genuine rehabilitation and that the community is not harmed
by the probationer’s being at large. … These same goals require and justify the
exercise of supervision to assure that the restrictions are in fact observed.” Griffin,
483 U.S. at 875,
107 S.Ct. at 3169,
97 L.Ed.2d at 718. See, also, Carchedi,
560
F.Supp. at 1015.
4
January Term, 1998
{¶ 14} In this case, the defendant, a parolee, as part of the conditions of his
parole, read and signed an Ohio Adult Parole Authority form entitled “Conditions
of Supervision.” One of the conditions enumerated in the form required the
defendant, if he chose to sign the form and be paroled, to “agree to a search without
warrant of [his] person, [his] motor vehicle, or [his] place of residence by a parole
officer at any time.” Defendant concedes that by signing the form, he waived his
right to have searches conducted pursuant to a warrant.
{¶ 15} The United States Supreme Court has already held that warrantless
searches of parolees1 without probable cause do not violate the Fourth Amendment.
Griffin, 483 U.S. 868,
107 S.Ct. 3164,
97 L.Ed.2d 709. However, the defendant
contends that the Fourth Amendment still imposes a requirement that those searches
be “reasonable.” The defendant cites Griffin as support for that proposition.
However, Griffin dealt with the narrow issue of whether a state regulation was
constitutional. In upholding the regulation, the Griffin court found that requiring
“reasonable grounds” pursuant to a valid state regulation was constitutionally
permissible in a search of a probationer’s home.2 In rejecting “probable cause” as
the standard, the Supreme Court stated, “[W]e think it enough if the information
provided indicates, as it did here, only the likelihood … of facts justifying the
search.” Griffin,
483 U.S. at 880,
107 S.Ct. at 3172,
97 L.Ed.2d at 722.
{¶ 16} However, Griffin did not deal with a search conducted subject to the
parolee’s consent to be searched without a warrant “at any time.” Therefore, we
1. This court has already found that there is no material difference between probationers and
parolees in the context of constitutional guarantees. State v. Roberts (1987), 32 Ohio St.3d 225,
229,
513 N.E.2d 720, 723.
2. The Wisconsin regulations made it a violation of probation to refuse to consent to a home search,
but the opinion never dealt with the effect of this regulation on a search.
5
SUPREME COURT OF OHIO
must examine whether, as a condition of parole, a parolee can consent to random
searches.3
CONSENT TO SEARCH
{¶ 17} Conditions of parole must be reasonably and necessarily related to
the government’s interest in rehabilitating the parolee and in protecting society
from recidivism. Carchedi, 560 F.Supp. 1010. We find that the consent-to-search
condition at issue meets those twin goals. Consent searches are part of the standard
investigatory techniques of law enforcement. Schneckloth v. Bustamonte (1973),
412 U.S. 218, 231,
93 S.Ct. 2041, 2050,
36 L.Ed.2d 854, 865. “The primary
purpose of [searches of parolees’ residences] is to deter the commission of crime
and to provide supervisors with information on the progress of their rehabilitative
efforts. It is clear that a requirement that searches only be conducted when officers
have ‘reasonable suspicion’ or probable cause that a crime has been committed or
that a condition of probation has been violated could completely undermine the
purpose of the search condition.” Owens v. Kelley (C.A.11, 1982),
681 F.2d 1362,
1368.
{¶ 18} Being on parole with a consent-to-search condition is “akin to sitting
under the Sword of Damocles: ‘ “ With knowledge he may be subject to a search
by law enforcement officers at any time, [the parolee] will be less inclined to have
narcotics or dangerous drugs in his possession. The purpose of an unexpected,
unproved search of defendant is to ascertain whether he is complying with the terms
of probation; to determine not only whether he disobeys the law, but also whether
3. In Ohio, there was no statutory authority for a search of a parolee’s residence until November 9,
1995, four months after the defendant agreed to the conditions of his supervision. After the
defendant signed the Conditions of Supervision form, but while he was on parole and before the
search in question was conducted, the General Assembly enacted R.C. 2967.131(B). 146 Ohio
Laws, Part I, 125. This statute requires field officers conducting a search to have reasonable grounds
to believe that the releasee is not abiding by the law or otherwise is not complying with the terms
and conditions of his or her conditional release. However, this statute did not exist when the
defendant signed the Conditions of Supervision form. Accordingly, this statute cannot create a right
that the defendant had already waived.
6
January Term, 1998
he obeys the law. Information obtained under such circumstances would afford a
valuable measure of the effectiveness of the supervision given the defendant and
his amenability to rehabilitation.” ’ ” (Emphasis added.) In re Anthony (1992), 4
Cal.App.4th 1000, 1002,
6 Cal.Rptr.2d 214, 215, fn. 1, quoting People v. Kern
(1968),
264 Cal.App.2d 962, 965,
71 Cal.Rptr. 105, 107, and People v. Bravo
(1987),
43 Cal.3d 600, 610,
238 Cal.Rptr. 282, 288,
738 P.2d 336, 342.
{¶ 19} To require a warrant would decrease the deterrent effect of the
supervisory relationship. Griffin, 483 U.S. at 878,
107 S.Ct. at 3171,
97 L.Ed.2d at
720. As the United States Supreme Court pointed out, “[t]he [parolee] would be
assured that so long as his illegal (and perhaps socially dangerous) activities were
sufficiently concealed as to give rise to no more than reasonable suspicion, they
would go undetected and uncorrected.”
Id. at 878,
107 S.Ct. at 3171,
97 L.Ed.2d
at 720.
{¶ 20} In State ex rel. Wright v. Ohio Adult Parole Auth. (1996), 75 Ohio
St.3d 82,
661 N.E.2d 728, the defendant signed a similar condition of parole stating
that his parole officer could search his person, vehicle, or residence at any time.
The defendant cites a footnote in Wright stating that “a state parolee may be
searched, pursuant to a consent provision in his parole terms, if his parole officer
reasonably believes a search is appropriate.”
Id. at 93,
661 N.E.2d at 737, fn. 1.
The defendant construes this to mean that the search, though consented to, must
still have a reasonable basis. However, we interpret the footnote to refer only to
the officer’s subjective belief that a search was appropriate. The search issue in
Wright was never appealed and not at issue. At issue was whether the fruits of that
illegal search could nevertheless be used in a parole revocation hearing—and this
court clearly held that they could. Wright,
75 Ohio St.3d 82,
661 N.E.2d 728,
paragraph two of the syllabus.
{¶ 21} In this case, the defendant was paroled after a drug conviction. To
aid in the goal of rehabilitation, parole officers must be able to monitor the progress
7
SUPREME COURT OF OHIO
of parolees. Of course, the terms of the conditions of parole “do not authorize any
‘intimidating and harassing search to serve law enforcement ends totally unrelated’
to either [the parolee’s] conviction or rehabilitation.” Owens, 681 F.2d at 1369,
quoting United States v. Consuelo-Gonzalez (C.A.9, 1975),
521 F.2d 259, 265.
Absent some evidence of a motive of ill will or intent to harass, we must trust a
parole officer’s judgment as to when a search may be appropriate, as sometimes
only very subtle signs may lead a parole officer to suspect that the parolee is
engaging once again in illegal activities. To that end, random searches serve as an
important tool in rehabilitation.
{¶ 22} Because the defendant agreed to the condition of supervision by
signing it, thereby consenting to warrantless searches of his place of residence by a
parole officer at any time, the defendant waived his Fourth Amendment protection
against random searches. Therefore, evidence from that search is admissible.
{¶ 23} The defendant testified at the suppression hearing that he had no
choice but to sign a waiver as a condition of his parole, thereby implying that the
waiver was not voluntary. We recognize that “[w]aivers of constitutional rights not
only must be voluntary, but must be knowing, intelligent acts done with sufficient
awareness of the relevant circumstances and likely consequences.” Brady v. United
States (1970), 397 U.S. 742, 748,
90 S.Ct. 1463, 1469,
25 L.Ed.2d 747, 756.
{¶ 24} The defendant in this case voluntarily waived his Fourth
Amendment rights when he signed the consent-to-search term allowing his parole
officer to search his residence, vehicle, and person without a warrant at any time.
The record reveals that the defendant received an explanation of what conditions
would be imposed. In addition, the defendant testified that he read the form before
he signed it. He testified that his signing the consent-to-search condition was not a
free choice. While it is true that the defendant was presented with choosing either
to consent to warrantless searches at any time or to remain incarcerated, the fact
8
January Term, 1998
that the defendant must decide between two unattractive choices does not invalidate
the waiver.
{¶ 25} As the Carchedi court stated: “In deciding to accept the terms of a
commutation and parole, a prisoner is forced to choose between the prospect of
continued incarceration and the prospect of an agreement which may somehow
restrict his or her constitutional rights. The government, in effect, is offering to
allow the prisoner to regain his or her freedom in return for a promise to abide by
rules which, to a greater or lesser extent, limit the exercise of fundamental rights.
In this respect the transaction is no different from other agreements in which the
government conditions its grant of a substantial benefit on the relinquishment of a
known constitutional right.” Id.,560 F.Supp. at 1016.
{¶ 26} In fact, as Griffin pointed out, warrantless searches have been upheld
in situations with less compelling public policy reasons than those involving a
convicted criminal out on parole. For example, the United States Supreme Court
has held that “government employers and supervisors may conduct warrantless,
work-related searches of employees’ desks and offices without probable cause,
O’Connor v. Ortega [(1987)], 480 U.S. 709 [
107 S.Ct. 1492,
94 L.Ed.2d 714], and
that school officials may conduct warrantless searches of some student property,
also without probable cause, New Jersey v. T.L.O. [(1985)],
469 U.S. 325 [
105 S.Ct.
733,
83 L.Ed.2d 720]. We have also held, for similar reasons, that in certain
circumstances government investigators conducting searches pursuant to a
regulatory scheme need not adhere to the usual warrant or probable-cause
requirements as long as their searches meet ‘reasonable legislative or administrative
standards.’ Camara v. Municipal Court [(1967)],
387 U.S. 523, 538 [
87 S.Ct. 1727,
1736,
18 L.Ed.2d 930, 941]. See New York v. Burger [(1987)],
482 U.S. 691, 702-
703 [
107 S.Ct. 2636, 2644,
96 L.Ed.2d 601, 614]; Donovan v. Dewey [(1981)],
452
U.S. 594, 602 [
101 S.Ct. 2534, 2539,
69 L.Ed.2d 262, 271]; United States v.
9
SUPREME COURT OF OHIO
Biswell [(1972)], 406 U.S. 311, 316 [
92 S.Ct. 1593, 1596,
32 L.Ed.2d 87, 92].”
Griffin,
483 U.S. at 873,
107 S.Ct. at 3168,
97 L.Ed.2d at 717.
{¶ 27} Further, the defendant’s decision to sign the waiver was sufficiently
knowing and intelligent. The terms of the condition are readily understandable. A
commonsense reading of the condition is sufficient to provide the defendant with
fair notice of what conduct is prohibited and what actions should be expected. See
State v. Jones (1990), 49 Ohio St.3d 51, 53,
550 N.E.2d 469, 471. The plain
language of the phrase “at any time” means just that: a parole officer may conduct
random searches of the defendant’s person, vehicle, or residence without a warrant.
Therefore, we find that the defendant’s decision to sign the Conditions of
Supervision form was sufficiently voluntary, knowing, and intelligent.
Brady,
supra.
{¶ 28} Therefore, we hold that a warrantless search performed pursuant to
a condition of parole requiring a parolee to submit to random searches of his or her
person, motor vehicle, or place of residence by a parole officer at any time is
constitutional. We find that the trial court improperly excluded the evidence from
the defendant’s criminal prosecution. Accordingly, we reverse the judgment of the
court of appeals and remand the cause for further proceedings consistent with this
opinion.
Judgment reversed
and cause remanded.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and COOK, JJ., concur.
PFEIFER, J., dissents.
__________________
Pfeifer, J., dissenting.
{¶ 29} I am thankful that the enactment of R.C. 2967.13(B) limits the scope
of this decision. Under the statute, a parole officer may conduct a warrantless
10
January Term, 1998
search of a parolee or his property if the officer has reasonable grounds to believe
that the parolee is not abiding by the law or complying with the terms of his parole.
{¶ 30} R.C. 2967.131(B) strikes a reasonable middle ground between
random searches and searches made only upon probable cause. The statute
recognizes the protections the Fourth Amendment gives to all citizens as well as
the necessity of placing some restriction upon a parolee’s freedom. This court
should have done the same.
__________________
11
