One issue is the correctional agency's authority to search the living quarters of probationers and parolees and the subsequent range of the exclusionary rule if they find evidence of wrongdoing.
In June 1998, The U.S. Supreme Court ruled in the Pennsylvania Board of Probation and Parole vs. Scott, DN97-581 that evidence obtained in warrantless searches by parole officers could be considered in a revocation hearing, even though the evidence would not be admissible in a new criminal trial. Justice Clarence Thomas drew a clear distinction between the purpose of search by police and those by parole officers, stating that police search to obtain evidence that can be used to convict the offenders of crimes while parole officers search to obtain evidence that bear on compliance with parole conditions.
He stated that parole officers have a more supervisory than adversarial relationship with parolees.
In June 1995, a lower court ruling (United States vs. James 893F.Supp.649 U.S.D.Tex.,July 1995) also upheld warrantless searches on the grounds that probation and parole officers do not target offenders.
The ruling resulted in probation and parole officers having greater latitude to conduct searches of people and their immediate surroundings that are under their supervision. Many of the programs have begun to rely on the warrantless searches and , in some states, these search powers may be further justified because these agencies require offenders to agree to submit to warrantless searches as a standard condition of their supervision.
For example, in Nassau County, it is stated under their order and condition of probation that the probationer must "submit to a warrantless search of your person, property or residence by the probation officer."
In June 1999, the legality of Operation Nightwatch in Nassasu County was reaffirmed by a New York State Court of Appeals decision (The people vs. Bryan Hale, June 10, 1999). In a unanimous ruling, Judge Albert Rosenblatt wrote, "...a defendant on probation does not stand in the same constitutional shoes as someone entirely free of judicial supervision and control. At one extreme, a person who has just been lawfully placed under arrest for armed robbery has an expectation of privacy vastly inferior to a law- abiding citizen enjoying a quiet evening at home."
It is important to note that the effectiveness of the police- probation and parole partnerships rely heavily on these warrantless searches.
Courts Have Backed the Searches
To date, case laws have supported that fact that these searches are neutral and supervisory in nature. This is in contrast to police searches that may be considered adversarial and geared to uncovering evidence to convict in a criminal trail.
Jurisdictions considering these programs must be careful not to allow these searches to be used as a tool for police to uncover evidence that would result in imprisonment of targeted individuals.
Nassau County, for example, trains their officers to take the role of backup for the probation officers. It is the probation officer who first enters the home, speaks to the probationer or person residing in the house, and makes all the decisions as to who and what will be searched.
The benefits of developing programs such as Nightwatch, are numerous. While probation officers can need police protection in making home visits in high crime areas, police officers can get back important information about subjects in the area who have had a history of violence.
Information from probation officers can help police officials solve new crimes and the sharing of information between agencies can be beneficial to all the agencies involved. Police departments can receive information from confidential informants provided by probation or parole and probation or parole officers can learn if the people they are supervising are adhering to the conditions of their release.
And then, from a law enforcement perspective, there may be the most satisfying benefit at the time: an opportunity to hook someone up and confiscate contraband.
For example, a few months ago in early October, the Nightwatch team made a home visit to a probationer who was originally charged with felony weapons possession. When they entered the home, they patted him down and found a vial of cocaine in his pants pocket. A search of his home then produced 1 ½ ounces of cocaine, a handgun, 17 long guns, including assault weapons, drum magazines for semiautomatic weapons and several hundred rounds of ammunition. Also found were two inert mortar shells and a 40 mm canon shell.
A good take for any shift.
Shelly Feuer Domash, who resides in New York, is a writer specializing in law enforcement issues and a regular contributor to POLICE. Her most recent piece was a May '99 profile of another partnership program involving police and corrections officers, "Investigating gangs on Rikers Island."