Posted 1/19/16 (Tue)
By Cecile Krimm
The decision on a North Dakota Supreme Court appeal that put two Crosby attorneys on opposing sides could have a wide impact.
According to Liz Pendlay, the split decision Thursday will protect against unreasonable searches for offenders on unsupervised probation and overturn her client’s conviction.
But, Chief Justice Gerald VandeWalle warned the ruling could also make “worthless” the use of probation searches intended to prevent illegal activity.
Divide County State’s Attorney Seymour Jordan said he is consulting with colleagues on whether to pursue the case further.
The appeal stemmed from a case in which Jeremy Ballard entered a conditional plea to drug charges after District Judge Paul Jacobson denied a motion to suppress evidence obtained in what Pendlay called a “suspicionless” search.
Ballard was on unsupervised probation for misdemeanor drug charges when, in March 2014, his car was stopped in Noonan for the sole purpose of conducting a probation search. Nothing was found in Ballard’s car or on his person. But when a deputy searched Ballard’s rented room he found .41 grams of meth and meth paraphernalia. Ballard was charged with two Class C felonies.
The Supreme Court said the district judge erred in denying the motion to suppress.
Review of case law
The justices determined the state’s basis for such searches dates back to a 1970s legal test that is no longer “good law,” because it is no longer consistent with U.S. Supreme Court findings.
Pendlay said the ruling is important because it upholds the 4th Amendment rights of unsupervised probationers who are convicted of less serious crimes.
The ruling recognizes that such searches should occur on a continuum, based in part on the severity of the offense for which the person was originally convicted. In other words, the threshhold for searching someone on probation for felony crimes should be different than for someone on probation for misdemeanor crimes.
The ruling, said Jordan, is bound to have a ripple effect.
“It’s not a matter of win, lose or draw,” he said, but a matter of what effect the ruling could have on other pending cases and law enforcement in general.
Pendlay said the ruling is unusual because it resulted in a split decision, with one judge writing a concurrent opinion and two others writing in dissent.
“I know it will have play in the legal world for sure,” said Pendlay, since such searches are fairly commonplace.
Justices Daniel J. Crothers, Carol Ronning Kapsner and Lisa Fair McEvers made the majority ruling. In her concurring opinion, McEvers said the search of Ballard’s home was unreasonable, especially in light of the fact the officer’s suspicion should have “dissipated when the search of the vehicle and his person turned up nothing.”
“It’s kind of a win for the citizens,” said Pendlay, since it protects the liberties of people who haven’t been in “appreciable” trouble with the law.
In his dissenting opinion, Justice Dale Sandstrom warned the ruling “needlessly ties the hands of law enforcement.” He found the search of Ballard’s home to be conducted in a reasonable and non-harassing manner. Further, Sandstrom said “reasonableness” of a search and “reasonable grounds” for a search are different issues under the law.
Sandstrom found the fact Ballard was in the car with another unsupervised probationer reason enough to create suspicion of a possible probation violation, in any case.
Justice VandeWalle wrote to concur with much of Sandstrom’s argument, adding, “The unfortunate result is that without more specific guidance the effectiveness of probationary searches intended as a tool to prevent the probationer from further illegal activity is greatly reduced or even worthless.”
Jordan has until Feb. 3 to petition for a rehearing.