¶1dissenting:
¶2I respectfully dissent and would affirm the trial court. Eiland clearly found a search pursuant to the probationer’s fourth amendment waiver is a justified departure from the usual warrant and probable cause requirements.
“Additionally, a search conducted pursuant to a valid consent does not violate the fourth amendment. Washington v. Chrisman (1982), 455 U.S. 1, 9-10, 70 L. Ed. 2d 778, 787, 102 S. Ct. 812, 818; see also People v. Kelley (1979), 76 Ill. App. 3d 80, 86, 394 N.E.2d 739, 744.) While defendant acknowledges that he signed a form consenting to warrantless searches in order to obtain probation, defendant argues that under such ‘coercive’ circumstances, his consent was not voluntary. However, a probationer’s waiver of his fourth amendment rights is no less voluntary than the waiver of rights by a defendant who pleads guilty to gain the benefits of a plea bargain. See Bordenkircher v. Hayes (1978), 434 U.S. 357, 360-64, 54 L. Ed. 2d 604, 609-11, 98 S. Ct. 663, 666-68; People v. Bravo (1987) , 43 Cal. 3d 600, 738 P.2d 336, 238 Cal. Rptr. 282, cert. denied (1988) , 485 U.S. 904, 99 L. Ed. 2d 234, 108 S. Ct. 1074.” Eiland, 217 Ill. App. 3d at 258, 576 N.E.2d at 1191.
¶3This waiver is no less onerous than the waiver that requires defendant to refrain from possessing firearms, to forfeit good-time credits, and to submit to drug and alcohol screening. No reasonable suspicion is required prior to testing. Paragraphs 4, 15, and 18 state the probationer shall:
“Refrain from possessing a firearm or other dangerous weapon. If the defendant has a firearm owner’s identification card and this order is entered for a felony offense, the card shall be surrendered to the probation office as required by 430 ILCS 65/8.
Serve 7 days in the Clark County Jail with credit for 0 days served. Defendant is not eligible for good[-]behavior credits. Defendant shall not consume any alcoholic beverage, cannabis or controlled substances (without valid prescription) within 24 hours prior to reporting to the jail. Further, upon request defendant shall submit specimen of breath, hlood[,] and urine for testing at prisoner’s expense.
Refrain from having in your body the presence of any drugs prohibited by law. Whenever directed by a law enforcement officer or probation officer]!,] you shall submit samples of blood, breath[,] and urine to be tested, at defendant’s expense, for the presence of alcohol and drugs.”
¶4These provisions have never been considered unconstitutional. Further, probation orders containing a still harsher banishment provision have been upheld. See In re J.W., 204 Ill. 2d 50, 80, 787 N.E.2d 747, 764-65 (2003). The court stated:
“Although the banishment condition of probation is not expressly provided for by statute, it may, nonetheless, be a constitutionally valid condition of probation. It has been recognized that courts have broad discretion to impose probation conditions, whether expressly allowed by statute or not, to achieve the goals of fostering rehabilitation and protecting the public. See People v. Meyer, 176 Ill. 2d 372, 378[, 680 N.E.2d 315, 318] (1997); People v. Harris, 238 Ill. App. 3d 575, 581[, 606 N.E.2d 392, 396] (1992).” J.W., 204 Ill. 2d at 77, 787 N.E.2d at 763.
¶5The waiver here is clearly reasonable. “[W]hen deciding the propriety of a condition of probation imposed in a particular case, whether explicitly statutory or not, the overriding concern is reasonableness. [Citations.] To be reasonable, a condition of probation must not be overly broad when viewed in the light of the desired goal or the means to that end.” J.W., 204 Ill. 2d at 78, 787 N.E.2d at 763-64. Moreover:
“When assessing the reasonableness of a condition of probation it is appropriate to consider whether the restriction is related to the nature of the offense or the rehabilitation of the probationer. [Citations.] Other considerations are: (1) whether the condition of probation reasonably relates to the rehabilitative purpose of the legislation, (2) whether the value to the public in imposing this condition of probation manifestly outweighs the impairment to the probationer’s constitutional rights, and (3) whether there are any alternative means that are less subversive to the probationer’s constitutional rights, but still comport with the purposes of conferring the benefit of probation.” J.W., 204 Ill. 2d at 79, 787 N.E.2d at 764.
¶6Here the condition of probation, “warrantless searches,” relates to rehabilitation (keeping the substance abuser clean); has value to the public (keeping the substance abuser clean and not driving); and there are no alternative means to conduct surprise probation checks.
¶7Further, “ ‘[probation is not a right, but a privilege.’ [Citations.] If defendant had refused to agree to abide by the conditions of probation, the court would have had a basis to deny probation on the ground that the defendant was unwilling to accept and abide by its proposed terms. [Citation.]” Eiland, 217 Ill. App. 3d at 258, 576 N.E.2d at 1191.
¶8The court went on to say:
“We therefore see no reason for denying a defendant the right to waive his fourth amendment rights in order to accept the benefits of probation. However, unlike the California court, which held that a search condition of probation that permits a search without a warrant also permits a search without reasonable cause (Bravo, 43 Cal. 3d at 611, 738 P.2d at 342-43, 238 Cal. Rptr. at 289), we believe a probationer’s waiver of fourth amendment rights extends only to searches conducted upon a reasonableness standard, as any probation condition imposed must be ‘reasonable’ under the language of section 5 — 6—3(b). Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—3(b).
In the instant case, defendant had agreed to allow a search pursuant to what we have determined to be a reasonable condition of his intensive probation.” Eiland, 217 Ill. App. 3d at 258, 576 N.E.2d at 1191.
¶9While the Eiland court did not require the search to be independently reasonable, the court stated in dicta that the probation officers possessed additional information, which itself made this search reasonable without the waiver.
“As in Griffin, the probation officers had information from a police officer, Captain Terry Delaney, that defendant was committing a criminal offense and were entitled to rely upon that information. [Citation.] Additionally, the probation officers knew that two of defendant’s urinalysis tests were positive for cocaine and cannabis. The search itself was therefore reasonable in that the information the probation officers possessed indicated the likelihood of facts justifying the search. Thus, given defendant’s consent and the additional facts known to the probation officers, the justification for the instant search was even greater than in Griffin.” Eiland, 217 Ill. App. 3d at 258-59, 576 N.E.2d at 1191-92.
¶10Further, I disagree with the special concurrence that probation or law enforcement must request that defendant consent to search his home or that defendant must be present at the time of the search. Either probation or law enforcement may conduct the search. Here, probation requested law enforcement to search defendant’s home. Law enforcement is armed and better equipped to conduct these searches.
¶11Moreover, the language “[sjubmit to warrantless searches … at the request of probation” means at the direction of probation. To require consent is ludicrous. To hold otherwise, the order would have to state “submit to consensual searches.” A warrantless search means without a warrant and without consent. Nothing requires notice of the search be given to defendant. That is the purpose of the waiver — so probation can condu.ct a surprise search to make sure defendant is not violating the law or terms of her probation. Notice would simply allow defendant to refuse to answer the door, escape, or dispose of the evidence of drug use. This majority will render probation officers ineffectual and useless. With no ability to conduct surprise searches, courts will be loath to sentence defendants to probation given the potential danger to the public, and the consequential cost to our legal system will be astronomical. For these reasons, I would affirm the trial court.