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Departments : Point of Law

Parole and Probation Searches

September 01, 2006  |  by Devallis Rutledge - Also by this author

Most of the U.S. Supreme Court's many rulings on Fourth Amendment issues dealing with the justification of warrantless searches and seizures have focused on either suspicion of criminal wrongdoing, or consent or exigency. But in a handful of cases, the court has considered another category of Fourth Amendment justification: basing a search or seizure on the suspect's status as a parolee or probationer. The decision in Samson v. California from the court's most recent term is the latest pronouncement in an evolving set of rulings.

Griffin v. Wisconsin

To assist probation officers and parole officers with their supervision and to aid in the general law enforcement need to curb recidivism, many states require parolees and probationers to agree that their conditional release will be subject to curtailment of their normal Fourth Amendment protections. Typically, the released convict agrees to submit his person, property, and residence to warrantless, suspicionless search and seizure by any correctional or law enforcement officer for the duration of the probationary or parole term.

The state of Wisconsin had a similar provision when officers found felony probationer Joseph Griffin with a handgun in his home, in violation of the conditions of his probation and state law. The state courts denied his motion to suppress the gun, finding that the probation officer had "reasonable grounds" to make a warrantless entry and search.

The U.S. Supreme Court ruled that suppression was properly denied, but rejected the "reasonable grounds" test as a necessary justification for a probation search. The court said it was unnecessary to consider the "reasonable grounds" issue, because the probation regulation was a valid basis for the search: "The search of Griffin's residence was 'reasonable' within the meaning of the Fourth Amendment because it was conducted pursuant to a valid regulation governing probationers."

Pennsylvania Board of Probation and Parole v. Scott

The next probation and parole issue decided by the Supreme Court was whether to apply the exclusionary rule to evidence offered at a parole revocation hearing. Five months after being released from a minimum prison term for murder, parolee Keith Scott was found to have five firearms in his home when it was searched by parole officers. Evidence of this violation of parole was admitted at his revocation hearing, but the appellate court and Pennsylvania Supreme Court reversed this decision. Those courts held that the search of Scott's home violated the Fourth Amendment because the parole officers lacked a "reasonable suspicion" of a violation before making the search.

On appeal, the U.S. Supreme Court reversed the Pennsylvania high court. The court sidestepped the issue of whether any level of suspicion was constitutionally required in order to search someone who had agreed to suspicionless searches. Instead, the court held that even if the search were assumed to be unreasonable, the Fourth Amendment exclusionary rule should have no application at a revocation proceeding: "The federal exclusionary rule does not bar the introduction at parole revocation hearings of evidence seized in violation of parolees' Fourth Amendment rights."

U.S. v. Knights

Mark James Knights was placed on probation in California for a drug conviction. A standard term of his probation provided for warrantless, suspicionless search and seizure by any peace officer. When an officer investigating arson attacks on electric power installations developed a reasonable suspicion that Knights was involved in these acts, he entered and searched Knights' apartment, in reliance on the probation search condition. The officer found explosives, arson equipment, and other incriminating evidence, which was offered in trial against Knights on federal charges of illegal possession of destructive devices and ammunition, and conspiracy to commit arson.

The district court judge suppressed the evidence, ruling that because the officer acted for an investigatory purpose, rather than a probationary purpose, the search was illegal and the evidence inadmissible. The Ninth Circuit Court of Appeals affirmed this ruling, and the government appealed.

The U.S. Supreme Court unanimously reversed the Ninth Circuit and district court rulings. Once again sidestepping the issue of whether officers needed any suspicion to conduct a probation search, the court held that where, as here, there was in fact a reasonable suspicion, a warrantless probation search was not constitutionally unreasonable. The Supreme Court also rejected the Ninth Circuit's view and held that the officer's subjective purpose in searching-investigation, rather than rehabilitation-was irrelevant: "There is no basis for examining official purpose. We have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers."

Samson v. California

Finally, in Samson v. California, the Supreme Court could sidestep the issue of justification for a probation or parole search no longer. The issue was squarely presented after a police officer, aware that Donald Curtis Samson was on parole and subject to a suspicionless search condition, stopped him on the street and searched his clothing, finding methamphetamine.

The California courts admitted the evidence against Samson, ruling that no suspicion was necessary to conduct a parole search in a reasonable manner. Samson appealed to the U.S. Supreme Court, which conceded that the issue at last had to be decided, suggesting that the same standard would apply to both probation and parole searches: "[In Knights], we did not reach the question whether the search would have been reasonable under the Fourth Amendment had it been solely predicated upon the condition of probation. Our attention is directed to that question today, albeit in the context of a parolee search."

The Supreme Court examined the nature of the conditional release of prisoners on parole, noted the high rate of recidivism (70 percent of California's parolees re-offend within 18 months of parole), and decided that the state's need for close supervision of those who are released from prison is a significant factor. At the same time, where a parolee accepts a term of warrantless, suspicionless search as a condition of early release from prison, he has temporarily forfeited the right to require a search warrant or some level of objective suspicion for police searches and seizures.

The court concluded by saying, "Examining the totality of the circumstances pertaining to petitioner's status as a parolee...including the plain terms of the parole search condition, we conclude that petitioner did not have an expectation of privacy that society is prepared to recognize as legitimate...Thus, we conclude that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee."

Expanding Parole and Probation Searches

Not all states impose search conditions on parolees and probationers. But given the Supreme Court's deference to the states in designing systems that meet the objectives of reintegrating offenders into society while protecting public safety, states would be free to adopt plans that, like those in Wisconsin, California, and other states, allow all law enforcement officers-not just parole and probation officers-to conduct warrantless, suspicionless searches of the person, vehicle, property, and residence of a parolee or probationer at any time of the day or night, in a reasonable manner.

As permitted by state law and the Supreme Court, parole and probation search conditions can provide police officers with a legitimate tool to detect and interdict criminal behavior.

Devallis Rutledge, a former police officer and veteran prosecutor, is Special Counsel to the Los Angeles County District Attorney.

Tags: Parolees, U.S. Supreme Court Cases, Civil Rights Cases, Search and Seizure, Point of Law


Comments (28)

Displaying 1 - 28 of 28

jmanley @ 10/30/2011 6:10 PM

ProbationIn Griffin v. Wisconsin, the court found a warrant or probable cause is not required to search the home of a person on probation provided “reasonable grounds” for a search exists. The court explained, “A State's operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated industry, . . . presents 'special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements” “Probation, like incarceration, is a form of criminal sanction”. The Court also noted a requirement of a warrant or probable cause would interfere with the proper functioning of the ongoing [non- adversarial] supervisory relationship.[4]

this being a relationship between the po and the probationee not just for LEO's to conduct searches whenever they want to.

jmanley @ 10/30/2011 6:15 PM

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As a general rule, your home can be searched without a search warrant while on parole or probation. The search can include your home, car, and person. The search must be conducted, however, by the appropriate state agency.

Rules for Home Searches

If you are on probation, the probation officer must be the one to conduct the search of your house. A police officer or child welfare worker does not have the same authority, even though you're on probation. If the probation officer has concerns for their safety, they may request that a law enforcement officer be present and on “stand-by” for security purposes only.

The law enforcement officer is not authorized to assist in the warrantless search of your home. Only their presence is authorized. The only time they are allowed to act is if the probation or parole officer finds illegal contraband, such as drugs or firearms. The illegal materials, whatever they may be, can then be turned over to the police officer who can make an on-site arrest.

How and when your home can be searched without a warrant will depend on the criminal rules of your state. Some states authorize probation officers or parole officers to search your home at any time without prior authorization. Other states require the warrantless search requirement to be included in an order as part of your conditions of probation. Meaning, if the order that presented your conditions of supervision does not require you to consent to a warrantless search, they cannot compel you to do so.

As a general requirement under federal law for either situation, the probation of

Greg @ 7/10/2012 11:04 PM

I am a reisdent of Texas and onprobation. I just had my probation officer come to my house with another officer who is a deputy county sheriff officer. He is dating my daughters mother. She told him she had left a gun in my home that she wanted back. He went to my Probation officer and informed her that it had been hidden in my house by her and that I had no knowledge of it. I informed my probation officer that he was her boyfriend. I immediatley told my PO I did not want him in my house. I told her there was no gun in my house. I told her to please come to my house: I informed the deputy that he could tell her where it was and that she could come in. He entered myhome regardless after I specifically told him not to. There was no reason other than heresay. There was no gun in this so called "secret place". Is this not unethical behavior on his part as a police officer? Was this not a conflict of interest? Should my PO have done something to stop this?

margie r. @ 7/12/2012 1:13 AM

When it states in the above paragraph under "Expanding Parole and Probation Searches", that police, not just parole and probation officers can conduct these searches in a "reasonable manner" what exactly is that defining? Whose idea of reasonable? I live in Calif.

margie r. @ 7/12/2012 1:35 AM

Also may I ask...should not the searching officers make sure that whomever is on probation and subject to the search is home before they bust down the door and search? If subject never had a violent arrest or conviction, is it reasonable to come in armed with rifles that shoot bullets big enough to drop a 500lb bear? They shot and killed my dog. There was paperwork concerning my dog, with this county, I was permitted to have him. They then lied to the news and said they used non lethal methods first. When I came on scene and realized what had just occured and screamed why didn't they just taze him they said it doesn't work on pitbulls. Ok. But they didn't mention they had tried the bean bags they told the new they had.

Brandon Waters @ 7/13/2012 5:59 PM

Is there anyone who may be able to lead me in the right direction? Im trying to look up a few cases to help a friend. Can someone point me in the right direction

circumstantial victim @ 9/12/2012 12:19 AM

I am currently dealing with 2 felony marijuana charges and an D.O.J asset forfeiture as a result of being at a friends house on the day that undercover officers decided to conduct a probation search and was found to have < half ounce of marijuana (for which i have a doctors recommendation for) which was present at the time and a large sum of cash ($15520 to be exact) in my belongings. Because my friend is on felony probation with search terms and I was at his residence at the time of the search, what rights do I have in this case? Don't I still have my civil rights, or was the search of my persons and personal belongings without my consent even legal?

circumstantial victim @ 9/12/2012 12:20 AM

i forgot to mention that this took place in san bernardino county california

Lillian @ 11/11/2012 5:01 PM

a girl, my son knew, ran into his house when she was recognized by local police from prior arrests by them for drugs. They followed her into the home. She was on probation and they did a search after my son denied approval to cops. They pulled out a safe and tore it open to find a gun. He is not on probation or parole but an ex-felon for a non-violent crime and no firearm crime or drugs. Both we're arrested. She plead out to drug charges and his was put on hold until furthur investigation. Now they want to charge him. Any one know to of similar case of a probationary searches can be wherever a probationee is and is searched with no probationer.??

margie r @ 12/1/2012 7:48 AM

To jmanley,
What state do you live in and how did you come by your information about say, that a PO must be the one to search at a probation search and seizure raid or that police are not authorized to do so? Does it matter if the probation is informal court? We had our dog excuted while no one was home, no PO present or even notified. What is a reasonable?

sryan @ 12/20/2012 8:05 PM

If you're on parole in california and get pulled over for a traffic violation, after they search you and your car and don't find anything; are they allowed to handcuff you, put you in the back of their car and drive you back to your house so they can search?

Scared Female In Cali @ 3/1/2013 9:32 PM

I live in the bay area (northern Cali) and im on court probation- Do the Police have the right to come and search my room -? Can they search my car-? Can they search other rooms-? I am a single Mother and I really feel like the cops are stalking me, can anyone answer these questions..... Please help TY :)

troberts @ 5/13/2013 7:11 AM

scenario involves 2 people on probation- deputies arrive at residence for so called probation search...individual on probation for petty theft..non narcotic coviction...deputies immediately seize cell phone and look through info as well as parade private items (personal sex toys) amongst each other. deputy then sends a text on cell phone to number found in contacts reading "hey you at home, just checking to see if your alright." receipiant of text is on summary probation for narcotics paraphenalia and replies that she is ok. texting deputy then has another deputy hold the cell phone and instructs him to not let her use it while he drives over to the residence in which he had sent the message. texting deputy arrives at residence and repeats so called probation search resulting in an arrest for paraphanalia...and also discovering and parading females private items (sex toys) this all began at aprox. 10:30 pm on a monday night, I stongly believe that there are unjust tactics being executed here along with privacy vilolations and humiliation. please help us find a crack in the road that will give direction. thank you

MandaLee @ 5/31/2013 3:21 PM

My fiancee is on probation. They pulled him over for 'drugs' and found nothing on his person. They arrested him anyway and then came to our home and looked around. They found nothing in our home but had our bmw towed, took my flat screen, and took money I'd been saving for a year (1800) . They towed the vehicle he was driving (which isn't his) and had a dog sniff the vehicle at the police building. The dog 'smelled' drugs. They then issued a warrant after they had already done all of that. Is that even legal !?!?

MandaLee @ 5/31/2013 3:26 PM

I ask because now they want to forfeit the items they removed from my home. I was informed that they can search wherever because he is on probation but to find nothing and then seize items that you now don't want to give back !?!? I'm looking for a small sign so I can get my stuff back and being him home.

Brody b @ 10/11/2013 8:41 PM

I'm in N. Calif and my question is.... If i'm not on porbation, parole, or court ordered anything, never been arrested only have traffic issues do the police have the right to keep my shot gun shells (8 shells)after searching my car and finding nothing illeagle

glenn sims @ 11/13/2013 12:58 PM

my parole agent stopped me in front of a bar. i ran and was caught and arrested by him and law enforcement, for resisting arrest& admin of law. while hand cuffed and detained he search my vehicle. there was crack cocaine found in the back within my reach i guess but i had other passengers with me. what do you think should others have been charged as well. is he still allowed to search after im already arrested

Desiree Blakey @ 12/27/2013 10:17 AM

The police were at my door and wanted to search for my daughters boyfriend w/o search warrant. I allowed them to come in to see that he was not there. They went into my daughters roomwere they did not find him, They began searching, and carried out small white bag apparently containg marijuana. I was on section 8 lease and they told me that they would make sure that I lost my section 8. Shortly after this incident section 8 contacted me about a report the police department filed with them. I feel as if my rights were violated and I am being harrased by law enforcement because of my daughters boyfriend being on parolle.

Desiree Blakey @ 12/27/2013 10:24 AM

Can police conduct a parole search if the parollee is not present? and can police conduct this search in the absence of parole officer, or without contacting the parole officer under the guise of a parole search?

bobbie sue @ 1/16/2014 12:23 PM

can the police search without the probation officer presesnt or parole officer present and also if they came to arrest a parolee and they did immediately when they came in the house can they search after then shouldnt they have just left. they found a lil bit of meth on his person. and can a person be on parole and probation at the same time please give me some answers we live in terre haute indiana and these law inforcement officers act above the law.xpecially for the ones they have it out for. how do you get help here for their addictions? all they want to do is lock them up when it is apparent that they have severe addiction problems prison is not the answer obviously

bobbie sue @ 1/16/2014 12:29 PM

please tell me how to get my husband help for his addiction i cant afford any high class attorney but i know what they are doing is not right but if i dont have a really good attorney my husband will rot in prison for the rest of his life. all they want to do here in terre haute, indiana is put them in prison when that is not the answer. please there has got to be an attorney that has a heart and compassion that can give me advise without charging me. please

bobbie sue @ 1/16/2014 12:33 PM

in indiana can a person be put on parole and probation at the same time
and where can i find the answers to my comments on here

Orange County Ca @ 1/19/2014 3:32 AM

When the report filed by police officers is grossly manipulated as to enhance the severity of charges and to allow more charges to be added, if I have clear evidence proving the officer lied on some portions the report, will this fact affect the entire report.

Judith @ 1/28/2014 4:52 PM

Can a West Virginia Parole Officer check a cell phone and send the same cell phone for total analysis without consent? Do they need a court order and is there any recourse? The cell phone belongs to a parolee.

Samantha Higgins @ 3/7/2014 1:32 PM

my friend's probation officer got a no contact order for me without my consent against him. how do i get rid of it? the po wants it there but i am 18 and he is 24... please help!

Antwon Pinero @ 3/19/2014 1:25 PM

Police searched my grand mothers house and I have not been paroled there since over two years! Is that legal? My grand mother wants to sue, can she?

JEREMY @ 7/7/2014 8:38 PM

Can you tell me who is allowed to search my room while I am on probation? I live with my Sister and her husband. Do they need to give consent for authorities to enter and search? We live in Illinois.

john @ 7/24/2014 2:59 AM

If the driver is on probation does that give the cops the right to search the passanger ? the reason for stopping the car is for turn signal didnt work . but it did it was there reason to pull us over . bogus stop!

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