On appeal from Superior Court of New Jersey, Law Division, Ocean County, 99-2-241-I.
Before Judges King, Cuff and Wecker.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2001
This appeal addresses the constitutionality of a parole officer's warrantless seizure of contraband from a parolee's bedroom on less than probable cause, in the course of a routine home visit pursuant to an administrative regulation that permits a search "on reasonable suspicion." We find no constitutional violation and affirm.
After her motion to suppress was denied, defendant Lisa Maples entered a guilty plea to fourth degree possession of marijuana with intent to distribute. N.J.S.A. 2C:35-5a(1) and 2C:35-5b(12). Based upon her prior convictions under N.J.S.A. 2C:35-5, she was sentenced to the presumptive extended term of four years along with a mandatory eighteen-month parole ineligibility term. Appropriate fines and penalties also were imposed. Defendant's only argument on appeal is that her motion to suppress should have been granted because her parole officer did not have reasonable suspicion to justify a warrantless search.
Defendant was on parole as a result of a prior sentence on a school zone drug offense, and her parole officer made a routine home visit. While they were discussing defendant's next court appearance, a question arose as to the scheduled date of that appearance. Defendant volunteered to go into her bedroom to get the paperwork that would confirm the date. The parole officer began to follow defendant to her bedroom and noticed that defendant appeared nervous. The officer inquired about the whereabouts of defendant's sister's baby, who apparently lived in the same home. When defendant denied that the baby was in her bedroom, despite the fact that the officer could see the child there, the officer's suspicions were aroused. She then noticed a crumpled brown paper bag, open at the top. Recognizing that such a bag frequently was used as a container for drugs, and knowing defendant's history, the parole officer picked up the bag, looked inside, and saw nineteen baggies of suspected marijuana. A laboratory test confirmed that the baggies contained marijuana.
N.J.A.C. 10A:26-6.3(a) permits a parole officer to conduct a search of a parolee's residence when
1. There is a reasonable suspicion to believe that evidence of a violation of a condition of parole would be found in the residence or contraband which includes any item that the parolee cannot possess under the conditions of parole is located in the residence; and
2. The search is approved by the parole officer's supervisor or circumstances exist which require immediate action without prior approval from the supervisor.
"Reasonable suspicion" has been defined by N.J.A.C. 10A:26-1.3:
"Reasonable suspicion" means a belief that an action is necessary based upon specific and articulable facts that, taken together with rational inferences from those facts, reasonably support a conclusion such as that a condition of parole has been or is being violated by a parolee.
A parolee is required to sign a promise "to abide by specific conditions of parole . . . [which] shall include . . . a requirement that the parolee . . . [comply] with all laws and refrain from committing any crime . . . ." N.J.S.A. 30:4- 123.59b. The record does not include a copy of defendant's signed agreement to the conditions of parole. However, we infer that she would not have been released on parole had she not agreed to those conditions. There can be no dispute that possession of marijuana, like all criminal conduct, constitutes a violation of the conditions of parole.
In Griffin v. Wisconsin, 483 U.S. 868, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987), the Supreme Court held that probation officers' warrantless search of a probationer's home, based upon a tip from police, and pursuant to a Wisconsin administrative regulation allowing a warrantless search where "reasonable grounds" exist to believe in the presence of contraband, satisfied the Fourth Amendment. In reaching its decision, the Court compared "[a] State's operation of a probation system [to] its operation of a school, government office or prison, or its supervision of a regulated industry [in that] 'special needs' beyond normal law enforcement . . . may justify departures from the usual warrant and probable-cause requirements." Id. at 873- 74, 107 S. Ct. at 3168, 97 L. Ed. 2d at 717. Such "special needs" ...