ND: Living with a probationer assumes the risk of a bedroom search; breaking into a safe was reasonable

Under a probation search condition, officers could search a safe located in a bedroom she shared with her boyfriend. The officers could reasonably assume that the bedroom’s occupants shared the safe as well, and living with a probationer is, essentially, assumption of the risk of loss of some privacy rights in the home. Destruction of the safe to open it did not make it an unreasonable search. State v. Adams, 2010 ND 184, 788 N.W.2d 619 (2010):

[*P13] Here, prior to the search, the police officers did not ask to whom the safe belonged. The safe was located in the bedroom, which Adams does not dispute was a common area to which the probationer had access. Adams does, however, dispute that the probationer had access to the safe itself. The stipulated facts state that Adams did not state the safe belonged to him at the time of the search, although he did state the items found inside were his after the safe was opened. The record does not reflect that the probationer at any point told the officers that she either did or did not have access to the safe. The district court’s decision that the safe was searched on the basis of Adams’ roommate’s probationary status is not contrary to the manifest weight of the evidence. A reasonable officer could believe both residents of a household have access to a safe located in a shared bedroom. Under the probationer’s warrantless search condition, officers could, without a warrant or probable cause, search areas used exclusively by the probationer, areas within the “common authority” of the probationer and Adams, and areas to which the probationer “normally had access.” See Hurt, 2007 ND 192, P 19, 743 N.W.2d 102 (quoting People v. Pleasant, 123 Cal. App. 4th 194, 19 Cal. Rptr. 3d 796, 798 (Cal. Ct. App. 2004)).

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[*P17] Adams voluntarily chose to live with a probationer, and he assumed the risk that he too would have diminished Fourth Amendment rights in areas shared with her. See Hurt, 2007 ND 192, P 19, 743 N.W.2d 102. Because of the terms of her probation, the probationer and Adams had a lessened expectation of privacy in their dwelling and shared possessions. Breaking open the safe may have been outside the scope of general consent and thus unreasonable in a consent search. See Odom, 2006 ND 209, P 16, 722 N.W.2d 370 (“General consent ‘to search does not include permission to inflict intentional damage to the places or things to be searched.’”). The standards for a reasonable probation search under a court-ordered warrantless search condition, however, are less than those for an ordinary consent search. The consent for the search in this case arose by operation of law, through the probation order. We hold that searching locked boxes reasonably accessible by law enforcement is within the scope of this statutory consent. The safe was opened within ten to fifteen minutes using common household tools. To conclude the search was unreasonable would give probationers the ability to effectively render warrantless probation searches meaningless, because probationers could avoid warrantless searches merely by securing items in a locked box.