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Administrative Searches – Probation/Parole

State v. Brandon L. Wheat, 2002 WI App 153, PFR 6/14/02
For Wheat: Steven A. Koch, Bradley J. Lochowicz

Issue/Holding: The record shows that the search of defendant’s residence was performed by his probation agent; police officers were present only for protection; therefore, this was a probation and not a law enforcement search. ¶23.

UPDATE: What about where the search of the probationer/parolee’s home is conducted by the police alone? See, e.g., U.S. v. Knights, 534 U.S. 112 (2001) (probationer who had agreed to condition subjecting him to law enforcement searches had significantly diminished expectation of privacy). But the police in that instance knew that Knights was on probation, and for a case saying that the logic of Knights doesn’t apply where the police are unaware of the person’s status as a parolee, see People v. Sanders, 31 Cal.4th 318 (2003), whose holding was extended first to probationers in People v. Bowers, 117 Cal. App.4th 1261 (2004) (“the constitutionality of the search turns on the factual circumstances known to the officer at the time, not the suspect’s implied consent to his probationary search condition”) and Myers v. Superior Court, 4th Dist. No. G033785, 12/14/04 (“for a probation search to be valid pursuant to a search and seizure condition, the officer must know the person is on probation at the time of the search”), then to juvenilesIn Re Jaime P., Cal SCt No. S135263, 11/30/06. Also see Moreno v. Baca, 9th Cir. No. 02-55627, 12/9/05 (police can’t rely on parole status and outstanding parole warrant where they were unaware of same; thus: “police officers cannot retroactively justify a suspicionless search and arrest on the basis of an after-the-fact discovery of an arrest warrant or a parole condition”).

On a separate point: “before conducting a warrantless search pursuant to a properly imposed parole condition, law enforcement officers must have probable cause to believe that the parolee resides at the house to be searched,” Motley v. Parks, 9th Cir. No. 02-56648, en banc 12/31/05 (in other words,Steagald v. U.S., 451 U.S. 204, 213 (1981) applies). As to whether the police must have “paticularized suspicion” of wrongdoing by the parolee or probationer, the answer is, No, at least given a signed parole agreement permitting law enforcement to search the parolee without cause, Samson v. California, 126 S.Ct. 2193 (2006). Thus the Knights-Samson doctrine “rest[s] on the parolee’s diminished expectation of privacy stemming from his own parole agreement and the state regulations applicable to his case,” U.S. v. Freeman, 10th Cir No. 05-3437, 3/8/07 (but this also makes the doctrine limited in the following way: “Samson does not represent a blanket approval for warrantless parolee or probationer searches by general law enforcement officers without reasonable suspicion; rather, the Court approved the constitutionality of such searches only when authorized under state law”).

The knock-and-announce requirement of the 4th amendment is distinct, and survives a Knights consent to search, Michael J. Green v. Butler, 7th Cir No. 04-2993, 8/24/05:

… Nor can it be said that Belter or Mr. Green consented by agreeing to the conditions in the host site agreement. Belter consented to a search at any time; however neither Belter nor the homeowner consented to the activity alleged here: parole agents walking into the house without informing anyone of their identity and purpose….

In sum, a reasonable officer would not believe that a parolee’s consent to submit to search on demand eliminates the need to make such a demand, absent an exigency or demonstrated futility. …

For authority for the idea that a parolee / probationer’s significantly diminished expectation of privacy doesn’t automatically translate into consent to search during a routine, suspicion-less traffic stop, see People v. Moss, Ill App 5th Dist No. 5-03-0210, 10/22/04.

Though it might seem obvious, note authority for the idea that an arrest doesn’t eliminate the diminished expectation of privacy attending probation/parole conditions, U.S. v. Trujillo, 10th Cir No. 04-4074, 4/12/05.

Authority favorably distinguishing pre-trial release on bond (conditioned on consent to random drug test and warrantless search of home) from probation / parole supervision: U.S. v. Scott, 9th Cir No. 04-10090, 9/9/05 (“His privacy and liberty interests were far greater than a probationer’s”; “government’s interests in surveillance and control as to a pre-trial releasee are thus considerably less than in the case of a probationer”). That case also contains a very instructive discussion on “special needs” analysis: the purpose fulfilled by the “special need” must be separate from crime control; although the purported need of assuring pre-trial releasees’ appearance in court is separate in the abstract, the government would have to establish empirically that drug use is a good predictor for absconding (something it made no attempt to do).

The authorities must have probable cause to believe that the person under supervision is a resident of the house to be searched; that he or she spends the night there occasionally isn’t sufficient, U.S. v. Howard, 9th Cir No. 05-10469, 5/25/06.

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