Defendant comes before the court on a motion to suppress evidence obtained during a search of his home and automobile on July 24, 1978.
Defendant was convicted on May 16, 1978 for a controlled dangerous substance offense, and placed on probation, under the supervision of the Passaic County Probation Department. As part of the terms of his probation defendant signed the "Standard Conditions of Probation for Adult Offenders" and also the "Special Conditions of Probation for Drug and Alcoholic Dependency." These conditions of probation were fully explained to defendant on May 16, 1978 by a Passaic County Probation Officer, and after reading the two documents defendant signed both forms, indicating his acceptance into probation.
Pursuant to Condition Six of the Drug and Alcoholic Dependency probation Form, three officers of the Passaic County Probation Department went to defendant's home on July 24, 1978 at about 9:15 P.M. Condition Six of the Drug and Alcoholic Dependency probation form states:
The probationer shall submit at any time to a search by a representative of the probation department of his person and any places or things under his immediate control.
While approaching the front door of the defendant's home the probation officers saw the defendant, through a window, place a substance in his mouth while standing in his living
room. One of the probation officer's told the defendant to open the door and let them in, and defendant complied with the officer's request. The officer asked defendant to place the substance he had put in his mouth into the officer's hand, which defendant then proceeded to do. The officer asked defendant what the substance was, and defendant replied that it was marijuana. Defendant was told by a probation officer that he was under arrest, while the other two probation officers proceeded to search the house for approximately 15 to 20 minutes. The search revealed no contraband. The probation officers then called the West Milford Police in order to transport defendant to jail.
The West Milford police arrived approximately 20 minutes later, and while the probation officers were escorting defendant to the patrol car, two probation officers decided to search defendant's automobile which was parked in the driveway on his property. One of the probation officers knew it was defendant's automobile because he had searched the automobile on a previous occasion. The search of the car yielded a plastic bag under the driver's seat containing a quantity of vegetation later tested and found to be marijuana.
Defendant in oral argument raises two points: (1) there was a lack of consent to the search of the automobile at the given time, since defendant was handcuffed at the time and so the automobile was not under his immediate control; (2) the fruits of search can only be used for a charge of violation of probation and not as the basis of a new indictable offense.
The State argues that the search of the house and the automobile falls within the acceptable purview of Condition Six of the Drug and Alcohol Dependency rules, and that by agreeing to the rules defendant waived his Fourth Amendment rights in this regard.
The question then before the court is: Are the Drug Dependency rules, specifically Condition Six, as applied to probationers convicted of controlled dangerous substances
offenses, violative of the probationers' Fourth Amendment rights?
At present the courts of New Jersey have not construed Condition Six of the Drug Dependency rules as applied to probationers. Fortunately, however, other jurisdictions have dealt with the status of a probationer with respect to the Fourth Amendment and have examined the permissible scope of the conditions that may be imposed upon a probationer. Unfortunately, however, the cases decided in the other jurisdictions are not uniform in result.
The federal courts have dealt with searches and seizures involving probationers and or parolees on many occasions. In Latta v. Fitzharris , 521 F.2d 246 (9th Cir. 1975), cert. den. 423 U.S. 897, 96 S. Ct. 200, 46 L. Ed. 2d 130 (1975), the Court of Appeals for the Ninth Circuit held that where a parolee is arrested by his parole officer with a pipe of marijuana in his hand, a warrantless search of the parolee's home by the parole officer was reasonable and the use of evidence obtained therein was not limited to the parole revocation proceedings. While it is realized that the instant case involves a probationer and not a parolee, various courts have treated parolees and probationers in the same way with regard to their rights. See United States v. Consuelo-Gonzalez , 521 F.2d 259 (9 Cir. 1975); State v. Generoso , 156 N.J. Super. 540 (App. Div. 1978). The court in Latta, supra , said that a parolee and his home are subject to search by a parole officer if he believes the search is necessary in the performance of his duties. The court warned however, that full-blown searches of parolees' homes whenever and as often as the parole officer feels like it, are impermissible. The court said that the warrant requirement could be dispensed with because of the special relationship ...