STATE v. WARNER (2026)

[¶1] Daniel Warner appeals from a criminal judgment revoking his probation and imposing a new sentence. Warner argues the district court erred by finding he violated the conditions of his probation and abused its discretion by revoking his probation. We affirm.

I

[¶2] In 2023, the State petitioned to revoke Warner's probation. The only alleged violation in the 2023 petition to revoke probation was that “[a]s of 10/24/2023, Warner has not reported to the Probation Office.” The district court granted the State's oral motion to dismiss the petition at a revocation hearing, and the court entered an amended judgment eliminating a no-contact provision as a condition of probation.

[¶3] In 2024, the State filed a second petition for probation revocation alleging 16 violations, and subsequently amended the petition to include an additional allegation. At an evidentiary hearing on the petition, Warner denied all allegations, and the State withdrew an allegation. Two of the alleged violations in the 2024 petition included that “[f]rom approximately August 2023 to January 2024, Warner did not report as instructed” and “on or around 11/16/2024, Warner refused to provide the passcode to his phone.” The district court found the State proved allegations 1–10, 12–14, and 16–17, revoked Warner's probation, and resentenced Warner. Warner appeals.

II

[¶4] This Court reviews probation revocations under a two-step analysis:

First, we review the district court's factual findings on whether the defendant violated probation conditions under a clearly erroneous standard. The State must prove probation violations by a preponderance of the evidence. A district court's findings of fact are adequate if they provide an understanding of the factual basis used in reaching its determination. A finding of fact is clearly erroneous if, although there may be some evidence to support it, the reviewing court on the entire evidence, is left with a definite and firm conviction a mistake has been made. Second, we review the court's decision to revoke probation under an abuse of discretion standard. A court abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner, or if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law.

State v. Miller, 2025 ND 188, ¶ 7, 27 N.W.3d 428 (cleaned up); State v. Jemal, 2025 ND 167, ¶ 5, 26 N.W.3d 667.

III

[¶5] Allegation 1 in the State's second petition asserted Warner failed to report to his probation officer between specific dates. Warner argues the district court clearly erred in finding the State proved allegation 1 because the court previously considered this conduct when it entered an amended judgment following a revocation hearing on the initial 2023 petition in which the State alleged failure to contact his probation officer. The State argues the allegation is for different conduct, based on different time frames. In addition, the State argues Warner was not punished for the prior conduct because the 2023 petition was dismissed and the district court has continuing power to modify the conditions of probation.

[¶6] We agree with the State that allegation 1 of the 2024 petition for failure to report to his probation officer is for a different time period than the allegation for failure to report in the 2023 petition. Warner's argument that the district court had previously considered the conduct alleged is without merit.

[¶7] Warner concedes the district court dismissed the 2023 petition, but argues the district court considered this allegation in issuing an amended judgment modifying his probation conditions. The State responds that Warner's probation was not revoked on the 2023 allegation and the only modification to the amended judgment was to remove some conditions of probation.

[¶8] We are not persuaded by Warner's argument that he was already resentenced for failure to report to his probation officer. As argued by the State, “[a] sentencing court has continuing power to modify the conditions of probation.” State v. Gates, 540 N.W.2d 134, 138 (N.D. 1995); N.D.C.C. § 12.1-32-07(6). There is no evidence in the record that Warner's probation was revoked based on the 2023 petition or that any amendments to his conditions of probation in any way increased his sentence. Rather, the amended judgment following dismissal of the 2023 petition reflects that a no-contact provision was eliminated from his conditions of probation. The district court's finding the State proved allegation 1 is not clearly erroneous.

IV

[¶9] Warner argues the district court clearly erred in finding the State proved allegation 16, which asserted Warner refused to provide a passcode to his phone. A condition of probation required Warner to allow search of his “person, place of residence, vehicle, or other property [he has] control over at any time of the day or night even if the probation officer does not have a search warrant.” Warner argues he borrowed the phone from his mother and the evidence does not demonstrate he possessed the phone. At the revocation hearing, Warner's probation officer testified law enforcement found a phone on Warner's person while detaining him for an unrelated crime, the personal number Warner had recently provided matched the number assigned to that phone, and Warner refused to provide the passcode for a search of the phone. Because the phone was found on Warner's person, the phone was under Warner's control and subject to the probation condition allowing property in his control to be searched. Search of a password-protected cell phone typically requires a search warrant, State v. Valles, 2019 ND 108, ¶ 14, 925 N.W.2d 404; however, when Warner consented to his probation conditions, he consented to warrantless searches of property in his control. See State v. Krous, 2004 ND 136, ¶¶ 2, 4, 12-19, 681 N.W.2d 822 (concluding defendant consented to reasonable warrantless search of residence by consenting to probation condition that she “shall submit to search of her person, vehicle, or place of residence by any probation officer at any time of the day or night, with or without a search warrant”). The district court's finding the State proved allegation 16 is not clearly erroneous.

V

[¶10] Warner argues the district court abused its discretion in revoking his probation by relying on its findings regarding allegations 1 and 16. The court may rely on its findings the defendant violated probation conditions when deciding whether revocation is warranted. Jemal, 2025 ND 167, ¶ 9, 26 N.W.3d 667. Because the court's findings that the State proved a number of allegations in the petition—including allegations 1 and 16—were not clearly erroneous, the court did not abuse its discretion in revoking Warner's probation.

VI

[¶11] The criminal judgment is affirmed.

Fair McEvers, Chief Justice.

[¶12] Lisa Fair McEvers, C.J. Jerod E. Tufte Jon J. Jensen Douglas A. Bahr Mark A. Friese