Probation search of roommate led to evidence against defendant, which was lawfully seized

A probationer’s roommate has a reduced expectation of privacy in his own premises because the roommate is subject to probation searches. Here, the probation search of defendant’s roommate led to evidence against defendant, and the judgment was affirmed. State v. Hurt, 2007 ND 192, 743 N.W.2d 102 (2007):

[*P19] We find no authority that would create an exception for third-party co-occupant consent derived from probation clauses. See State v. Yule, 905 So. 2d 251, 264 (Fla. App. 2d 2005) (Canady, J., concurring) (“The fact that a probationer shares a residence with another does not nullify the authority of probation and law enforcement officers to conduct a properly justified warrantless search of the probationer’s shared residence. A person choosing to live in the same home with another who is subject as a probationer to warrantless searches has a corresponding diminished expectation of privacy.”); People v. Pleasant, 19 Cal. Rptr. 3d 796, 798 (Cal. App. 4th 2004) (“Persons who live with probationers cannot reasonably expect privacy in areas of a residence that they share with probationers. … Since [co-occupant] gave a search waiver as a condition of probation, law enforcement authorities could, without a warrant or probable cause, search areas used exclusively by [the probationer], areas within ‘common authority'[] of the probationer and fellow occupants and areas which she ‘normally had access.'”); United States v. Crew, 345 F. Supp. 2d 1264, 1266 (D. Utah 2004) (“When the parolee, as a cohabitant of premises, gives consent to enter and to search, that consent is valid as to his personal space and all common space.”); State v. West, 517 N.W.2d 482, 491 (Wis. 1994) (stating that a “parole search may extend to all parts of the premises to which the probationer or parolee has common authority, just as if it were a consent search”); State v. Johnson, 748 P.2d 1069, 1073 (Utah 1987), abrogated on other grounds by State v. Doporto, 935 P.2d 484 (Utah 1997) (“A warrantless search of a parolee may result in an invasion of privacy, at least to some extent, for those living with the parolee.”). Those who voluntarily choose to live with probationers, like any other voluntary co-occupant living arrangement, assume the risk they will have diminished their Fourth Amendment rights. See, e.g., Randolph, 547 U.S. at 110 (quoting Matlock, 415 at 171, n.7) (“[T]hird-party consent … rests [] on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.”); Yule, 905 So. 2d at 264 (Canady, J., concurring) (“A person choosing to live in the same home with another who is subject as a probationer to warrantless searches has a corresponding diminished expectation of privacy.”).

[*P20] Hurt voluntarily chose to live with Bickler. We see no reason to treat Bickler’s consent, albeit in the form of a probation term, differently from the verbal consent that could be given by any other co-occupant. The co-occupant consent-to-search exception to the warrant requirement applies in this case, and as such, the district court properly found the search of the common areas of Hurt’s apartment was not unconstitutional.