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State in Interest of R.H.

August 3, 1979

STATE OF NEW JERSEY IN THE INTEREST OF R.H., A JUVENILE


Ferrante, P.J.J.D.R.C.

Ferrante

[170 NJSuper Page 520] At issue in this case is the extent of a probationer's 4th Amendment rights. This matter raises the following issue of first impression in New Jersey: does the 4th Amendment to the United States Constitution prohibit the admission in a criminal juvenile delinquency complaint of evidence seized from a probationer by her probation officer without a search warrant or probable cause justifying a warrantless search. The prosecutor

contends that R.H. lost her 4th Amendment right against illegal searches and seizures as a probationer.

There has been no evidentiary hearing, the parties have stipulated to the pertinent facts.

The facts as stipulated are as follows. On June 30, 1978 R.H.'s probation officer received an anonymous telephone call that R.H. was coming to the Passaic County Probation Department with a dangerous weapon. On arrival, and at her officer's request, R.H. emptied her purse, causing a knife to fall into view. The probation officer then caused a criminal juvenile delinquency complaint to be sworn out against R.H. for illegal possession of a dangerous weapon. To date no charge of violation of probation has been brought against R.H. pursuant to this incident.

The State argues the validity of the search. It contends that when defendant signed a statement acknowledging the rules and conditions of probation, she thereby waived certain constitutional rights possessed by one charged with a crime. The state specifically relies on four probation conditions as constituting such waiver: No. 1, refrain from crimes; No. 6, avoid injurious habits; No. 9, answer all reasonable inquiries, and No. 10, cooperate with the probation department in its efforts to help the probationer maintain a satisfactory standard of conduct. Nowhere does the State cite a condition which is a specific waiver of constitutional rights. The State also contends that defendant consented to the search.

Defendant argues that standard New Jersey conditions of probation do not clearly and positively inform a probationer that he waives his constitutional right against illegal searches and seizures. Defendant also contends that the State has not proven unequivocal, intelligent and voluntary consent to the search.

Moreover, defendant contends that the receipt of an anonymous telephone call, without more, does not give rise to probable cause sufficient to justify a warrantless search.

I agree with defendant's position.

The court disagrees that mere acknowledgment of the standard conditions of probation implies a waiver of constitutional rights.

A basic tenet of constitutional law is that a waiver of constitutional rights is not easily upheld. "[The] 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights, and 'do not presume acquiescence in the loss of fundamental rights'." Johnson v. ...


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