State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0434

State of Minnesota,
Respondent,

vs.

Tara Marie Cournoyer,
Appellant.

Filed January 7, 2019
Reversed in part and remanded
Jesson, Judge

Crow Wing County District Court
File No. 18-CR-16-4795

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Donald F. Ryan, Crow Wing County Attorney, Stephanie Shook, Ass istant County
Attorney, Brainerd, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appella te Public Defender, Jennifer Lauermann, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbro oks, Presiding Judge; Jesson, Judge; and
Bratvold, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Tara Marie Cournoyer challenges probation conditions imposed by the
district court when sentencing her on a controlled-substance crime conviction. She argues

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that her Fourth Amendment rights were violated by the district court’s conditions allowing
(1) random chemical testing initiated by law enforcement and (2) suspicionless searches of
her person, property and residence. Because the district court erred by imposing a
condition that allowed police o fficers to initiate warrantless chemical testing, we reverse
the portion of the district cour t’s order imposing that conditi on. And because reasonable
suspicion is required to conduct other warrantless searches of a probationer’s person,
property, workplace, or home, we remand to the district court t o clarify its order relating
to those searches.
FACTS
Police stopped a vehicle in Crow Wing County after noticing that the vehicle’s brake
light was out. Appellant Tara Marie Cournoyer was a passenger in the vehicle. An officer
gave the vehicle’s occupants a ri de to a gas station but as the y were gathering their
belongings, the officer noticed multiple baggies containing controlled substances. Officers
ultimately searched Cournoyer’s purse and found baggies containing drug residue,1 which
Cournoyer admitted belonged to her.
Cournoyer pleaded guilty to one count of fifth-degree controlle d-substance crime.
See Minn. Stat. § 152.025, subd. 2(1) (2016). At the plea hearing, defense counsel advised
the district court that he would be submitting a sentencing memorandum arguing that law
enforcement officers cannot conduct warrantless searches of probationers. He submitted a
memorandum contending that only probation officers, not law enforcement officers, may

1 Additional drugs were found in the vehicle near where Cournoyer was sitting.

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conduct warrantless searches of probationers because no statute a u t h o r i z e s a s e a r c h
overseen by police officers. The m emorandum also contended tha t applying “blanket”
conditions of probation was not supported by research in reducing recidivism.
A different judge sentenced Courno yer to a stay of imposition f or five years and
supervised probation with terms and conditions. One of those c onditions required that
Cournoyer submit to “[r]andom testing at her own expense, at th e request of any licensed
peace officer, probation agent or correctional officer.” Another condition required that she
“[s]ubmit to [r]andom [s]earches at the request of any licensed peace officer, probation
agent or correctional officer.” In pronouncing these conditions at the sentencing hearing,
the district court characterized them as “random spot check tes ting” and searches of
“anything that [Cournoyer has] control over.” The district court also imposed the general
condition of probation that she was to “[c]ooperate with the se arch of [her] person,
residence, vehicle, workplace, property and things as directed by [her] probation officer.”
Defense counsel inquired of the court:
Q.: When the court says random spot check testing, are they
saying suspicion-less searches or are they requiring at least
reasonable suspicion?

A.: Random.

Q.: Can the court specify as to what random means?

A.: If they want to test her they can test her.

Defense counsel then renewed a constitutional objection to the search conditions, citing
State v. Anderson, 733 N.W.2d 128 (Minn. 2007). This appeal follows.

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D E C I S I O N
Cournoyer challenges the distri ct court’s imposition of probati on conditions that
required her to submit to (1) random chemical testing that was not initiated by probation
agents and (2) suspicionless searches of her person or property at the request of law
enforcement, probation, or corrections officers. She contends that these conditions violated
her Fourth Amendment rights. To address this argument, we firs t examine general
authority for conditions of pr obation, as well as how probation conditions related to
searches are scrutinized under t he Fourth Amendment. We then d etermine whether each
of the challenged conditions viola ted Cournoyer’s right to be f ree from unreasonable
searches and seizures.
General probation conditions
Under Minnesota law, with certain exceptions, when a district c ourt stays the
imposition of sentence, it may pl ace the defendant on probation subject to terms and
conditions. Minn. Stat. § 609.135, subd. 1(a)(2) (2016). Prob ation conditions reflect the
penal objectives of deterring further criminal conduct, punishi ng the offender,
rehabilitating the offender, and protecting the public against continued criminal behavior.
Minn. Stat. § 609.02, subd. 15 (2016); see also M i n n . S e n t . G u i d e l i n e s 3 . A . 2 ( 2 0 1 6 )
(stating similar objectives of probation).
In addition, the Minnesota Judicial Branch Policy articulates standard conditions of
probation, which are imposed in all felony convictions and to w hich Cournoyer was
subject. See Minn. Judicial Council, Minnesota Judicial Branch Policy 522 , Standard
Conditions of Probation (Mar. 1, 2015). Those conditions , among other requirements,

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state that a probationer must inform his or her probation offic er of any contact with law
enforcement or criminal charges, and “[c]ooperate with the sear ch of [his or her] person,
residence, vehicle, workplace, property, and things as directed by your probation officer.”
Id.
The determination of probation conditions generally rests within the district court’s
broad discretion over sentencing matters. State v. Friberg, 435 N.W.2d 509, 515 (Minn.
1989). But the conditions of probation imposed by the district court must be reasonably
related to the purposes of sentencing and probation without bei ng unduly restrictive. Id.
Although the rights of probationers are subject to certain limi tations, this court will
carefully review the district court’s discretion in establishing probation conditions “when
[those] conditions restrict fundamental rights.” Id. at 516.
Fourth Amendment requirements for probation searches
When probation conditions involve searches, we examine constitu tional
requirements as well as statute s and policies. Both the United States and Minnesota
Constitutions prohibit unreasonable searches and seizures. U.S. Const. amend. IV; Minn.
Const. art I, § 10. Therefore, to address Cournoyer’s argument relating to illegal searches,
we must examine Fourth Amendment principles as applied to proba tionary searches.
Probationers “do not enjoy the abs olute liberty to which every citizen is entitled.”
Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S. Ct. 3164, 3169 (1987) (quotation omitted).
But “probation searches fall within the ambit of the Fourth Amendment, and must therefore
comport with a standard of reasonableness.” State v. Earnest, 293 N.W.2d 365, 368 (Minn.
1980).

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“The touchstone of the Fourth Amendment is reasonableness.” United States v.
Knights, 534 U.S. 112, 118, 122 S. Ct. 587, 591 (2001). In Knights, the United States
Supreme Court articulated a tot ality-of-the-circumstances test for probationary searches,
holding that the reasonableness of such a search is determined by balancing the degree to
which it intrudes on a person’s privacy versus the degree to which the search is needed to
promote legitimate governmental interests. Id. at 118-19, 122 S. Ct. at 591. The Court
concluded that “[t]he degree of individualized suspicion requir ed of a search is a
determination of when there is a sufficiently high probability that criminal conduct is
occurring to make the intrusion on the individual’s privacy interest reasonable.” Id. at 121,
122 S. Ct. at 592. Thus, the Court held that, balancing governmental and private interests,
reasonable suspicion was constitutionally required to conduct a search of a probationer’s
home. Id. at 121, 122 S. Ct. at 592-93.
Following Knights, the Minnesota Supreme Court also concluded that a
reasonable-suspicion standard satisfied the Fourth Amendment wi th respect to the search
of a probationer’s home. State v. Anderson , 733 N.W.2d 128, 140 (Minn. 2007). The
relevant probation condition in Anderson, which the supreme court presumed was validly
imposed, required the probationer, “when ordered by [his] Agent, [to] submit to search of
[his] person, residence, or any other property under [his] cont rol.” Id. at 131, 139. The
condition in Anderson did not mention searches ordered by law enforcement.
We now turn to the searches challenged by Cournoyer within the parameters
established under Knights and Anderson.

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Condition allowing random drug testing by police officers
Cournoyer argues that the distr ict court’s probation condition of warrantless drug
testing by law enforcement without the supervision of probation agents violates her Fourth
Amendment right to be free from unreasonable searches and seizu res. The parties agree
that in this context, Cournoyer’s condition of random testing r efers to testing for illegal
substances, which is most often urine testing. A urine test is a search subject to the Fourth
Amendment. State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013); see State v. Thompson,
886 N.W.2d 224, 230-31 (Minn. 2016) (holding in a related context that a urine test given
under Minnesota’s implied-consen t law implicates a driver’s pri vacy rights under the
Fourth Amendment).
With this understanding, Cournoyer contends that the district c ourt’s probation
condition allowing not only probation agents, but also law-enforcement officers, to initiate
random testing, is unreasonable and does not comport with the F ourth Amendment
standards governing probationary searches articulated in Knights and Anderson.2 Defense
counsel argued to the district court that, to pass muster under the Fourth Amendment,
random testing was required to be performed at the direction of probation, not law

2 At oral argument, defense couns el advanced the additional argu ment that random
suspicionless testing, when requested by either law enforcement or a probation agent,
violated Cournoyer’s Fourth Amendment rights. We note, however , that Cournoyer did
not raise this issue before the district court and mentions it only in passing in her brief to
this court. We therefore decline to address this argument. See State v. Sorenson , 441
N.W.2d 455, 457 (Minn. 1989) (declining to consider an issue th at was not adequately
briefed or litigated).

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enforcement. The state, on the other hand, argued that based o n Cournoyer’s past history
of drug use, it was reasonable for police officers, as well as probation agents, to monitor
her probation.
In this case, we conclude that the condition of random testing a t t h e r e q u e s t o f
police, rather than probation officers, did not meet Fourth Amendment requirements for a
reasonable search. The statuto ry authority governing probation , caselaw, and policy all
support our conclusion.
The statutory scheme for probati on provides that the district c ourt “may place the
defendant on probation with or without supervision” and “may order the supervision to be
under the probation officer of the court.” Minn. Stat. § 609.1 35, subd. 1(a)(2). It also
provides that the district court may order supervision “by some other suitable and
consenting person.” Id. But the statute does not refer to supervision by police offi cers.
See id.
Further, in Anderson, the supreme court recognized that a “special relationship”
exists between probation officers and probationers. Anderson, 733 N.W.2d at 137 (citing
Earnest, 293 N.W.2d at 368). Based on this relationship, the probation officer is required
to work toward the probatione r’s rehabilitation, as well as pro tecting the public interest.
Earnest, 293 N.W.2d at 368. To accomplish the goals of probation, the probation officer
“must have thorough up-to-date knowledge of the probationer’s p ersonal habits,

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relationships, and activities.” Id.3 Conversely, police officers do not have such a
responsibility to balance goals of rehabilitation and protecting the public.
Additional Minnesota law and po licy recognize the unique role o f the probation
agent in monitoring court-impose d conditions. Referring to ana logous intensive-
supervised release conditions, th e legislature has provided tha t the Minnesota
Commissioner of Corrections “may impose appropriate conditions of release . . . including
but not limited to unannounced searches of the inmate’s person, vehicle, premises,
computer, or other electronic devices . . . by an intensive supervision agent . ” M i n n .
Stat. § 244.05, subd. 6(b) (2016) (emphasis added). And the st andard conditions of
probation, which were incorporated in Cournoyer’s sentence, likewise required Cournoyer
to cooperate with searches “as directed by [her] probation officer .” See Policy 522,
Standard Conditions of Probation (emphasis added).
Here, the state has cited no authority to counter the statutes and policies that
delineate the special role that p robation officers play in moni toring court-imposed
conditions. We discern neither l egal authority nor exceptional f a c t s t o s u p p o r t a
proposition that in this case, random testing by law enforcemen t, without the input of
probation, constitutes a reasonable search under the Fourth Amendment.4 The state argues

3 The supreme court decided Earnest under the former standard, which required probable
cause to search a probationer’s residence. Anderson, 7 3 3 N . W . 2 d a t 1 3 7 . B u t i t s
observations on the relationship between a probationer and prob ation officer remain
relevant under the current reas onable-suspicion standard articulated in Anderson. See id.
(noting that Earnest did not address the issue of “whether a warrantless probation s earch
supported by less than probable cause would be reasonable”).
4 We recognize that in Knights, the supreme court upheld a search of the probationer’s
home conducted by a police officer. See Knights, 534 U.S. at 115, 122 S. Ct. at 589.

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that the probation officer who wrote the presentence investigat ion believed that
Cournoyer’s risk level and prior long-term chemical use support ed random testing by
police officers because law enfor cement would be most likely to encounter Cournoyer in
day-to-day activities. But this argument does not recognize th e special relationship
between the probationer and the pr obation agent and the agent’s role in monitoring the
probationer’s activities, which l aw enforcement does not share. And it disregards the
standard conditions of probation, which specify cooperating with searches “as directed by
[the] probation officer,” not law enforcement. See id. Therefore, we conclude that the
district court abused its discretion by imposing a condition that permitted random chemical
testing initiated by police officers, and we reverse the portio n of the district court’s order
imposing this condition.
Conditions allowing other searches without reasonable suspicion
The district court also imposed probation conditions allowing random searches of
Cournoyer’s home, person, vehicle, workplace, or property, and requiring her to cooperate
with these searches as directed by probation. The parties agree that these conditions apply
to searches that do not involve c hemical testing. Cournoyer ar gues that the district court
erred by imposing these probation conditions without articulating that reasonable suspicion
is required to conduct such sear ches. The state acknowledges t hat under Knights a n d

However, that decision did not i nvolve a condition of random ch emical testing and
therefore does not resolve the issue before us relating to random chemical testing initiated
by police without the assistance of probation officers. Although we do not address whether
such testing is ever permissible, in this case, we cannot concl ude that it was necessary to
go beyond the requirements of probation as generally laid out in law and policy.

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Anderson, reasonable suspicion is required for such searches. See Knights, 534 U.S. at
121, 122 S. Ct. at 593; Anderson, 733 N.W.2d at 140. We agree as well.
When sentencing an offender, the district court must “[s]tate precisely the terms of
the sentence.” Minn. R. Crim. P. 27.03, subd. 4(A). Here, in sentencing Cournoyer, the
district court made no findings on the reasonableness of the co ndition allowing random
searches of her home, person, or property. It did not articula te the reasonable-suspicion
standard required to in itiate those searches. See Anderson, 733 N.W.2d at 140. Rather,
the court specifically stated that random searches were permissible. We conclude that the
district court abused its discre tion in sentencing Cournoyer wi th conditions of “random”
searches of her home, person, property, and “everything she has control over.” Therefore,
a remand is required to clarify these conditions imposed by the district court.
Because the district court abused its discretion by imposing a probation condition
that required Cournoyer to submit to random spot check chemical testing by police that
was not initiated by probation, we reverse that portion of the district court’s order. We
remand the portions of the district court’s order dealing with random searches of
Cournoyer’s home, person, vehic les, workplace, and property, an d the general condition
requiring her to submit to such searches, to clarify that the d istrict court correctly applied
the reasonable-suspicion standard in ordering those conditions.
Reversed in part and remanded.