Liberty and self-determination were the cornerstones of the foundation of the United States.
The founding fathers enshrined the value of freedom on July 4, 1776, — when they wrote the Declaration of Independence — proclaiming that the Creator endowed human beings with unalienable rights, notably “life, liberty, and the pursuit of happiness.”
This foundational document served as the basis for subsequent amendments guaranteeing fundamental liberties, not the least of which is the right to privacy.
The Fourth Amendment protects your privacy by ensuring that you — and your property — remain free from government surveillance without probable cause or proper warrant.
Generally, government agents must follow due process to search or investigate you.
That said, the amendment does not guarantee protection from all search and seizure. This exception particularly applies to convicted individuals, including probationers.
Suppose you are serving on probation. In that case, you may wonder regarding your rights and responsibilities during probation searches.
This article aims to provide crucial information regarding what to expect during a probation search, your rights during the process, and how to comply with the requirements set by your parole or probation officer.
Read on to learn more about how to navigate the terms of community supervision, including reasonable searches.
What You Need to Know About Probation Searches
Here are five essential things to understand regarding probation searches:
- Generally, under the Fourth Amendment, U.S. citizens are protected from warrantless investigations.
- The right to privacy is not absolute. For example, a warrant or probable cause may not be necessary for an administrative search of a probationer’s house.
- As law enforcement officers, probation officers perform searches.
- States and other jurisdictions may vary regarding the specific guidelines for a probation search.
- Probation searches have a limited scope and should correspond to the conditions set by the court.
Can My Probation Officer Search My House Without a Warrant?
In most cases, yes. Probation officers can search your place for contraband without a warrant.
That said, the nature and extent of the search may vary depending on various factors discussed below.
The Right to Search Without a Warrant Depends on the Type of Probation
There are two kinds of probation: formal and informal. Each situation varies depending on whether warrantless search applies to the probationer.
A typical requirement of formal probation is waiving the right to refuse a car or home search while on probation.
Suppose a probation officer visits a probationer’s house. In that case, the government agent has the legal authority to search their house or vehicle without a warrant.
However, the officer can usually only search the parts of the house the probationer uses. These areas include the bathroom, bedroom, and other shared living spaces.
Probation officers typically need a warrant to search rooms the probationer does not use.
On the other hand, informal probation doesn’t compel the probationer to give up their rights against warrantless searches and seizures.
Informal probation is a program designed primarily for first-time or low-risk offenders.
Probation Officers May Conduct Limited Home Visits
Again, the probationer may be legally required to show the officer around their residence.
The probation officer may use anything incriminating found on sight to charge the probationer with a new crime.
Evidence may include drugs, guns, or other contraband that may confirm charges of violating supervision terms.
Probation Officers Do Not Need to Get a Search Warrant, But They Do Need to Establish Reasonable Suspicion
In normal circumstances, probable cause and a warrant are necessary for searching and seizing an individual and their property.
However, traditional reasonableness inquiry aims to find the balance between these two things:
- The degree to which a search invades an individual’s privacy
- The degree to which an investigation is necessary to promote legitimate governmental interests.
In United States v. Knights, 534 U.S. 112 (2001), the Court held that the balance of these considerations only requires reasonable suspicion to search a probationer’s house.
Recent Caselaw on Probation and Parole Searches in the U.S.
Here’s a recent caselaw detailing how probation and parole searches work in the U.S.:
The Pennsylvania Superior Court recently considered exceptions to the Fourth Amendment in the case of Commonwealth v. Parker (2016).
The state’s Superior Court upheld the probation officers’ legal authority to search a probationer’s home based on reasonable suspicion.
The ruling reversed the trial court’s order approving the motion to suppress further proceedings based on the following factors:
- Failure to report to supervisors
- Hiding from agents during a home visit
- Observed drug paraphernalia in plain view
Dayquan E. Parker, the appellee, had already agreed to the standard probation terms and conditions that Pennsylvania counties require of most defendants.
He consented to let the probation officer visit his house anytime during the supervision period.
He also agreed to avoid possessing contraband and consented to the officer searching his home and car if the officer had reasonable suspicion that contraband was present.
The case started when probation officers visited Parker’s home to check on him.
Upon entering the house, they noticed the following in plain view:
- Clear, empty, corner-cut baggies
- Cigar packages
- Small rubber bands
The officers learned from past experiences that these items often serve as tools for drug distribution. In addition, the law enforcement agents also saw a shotgun in the kitchen’s open closet.
The officers then went to Parker’s bedroom, where they found bullets, knives, and a marijuana pipe in plain view.
Afterward, the probation officers contacted local police officers. The police then responded to the scene but decided not to obtain a warrant.
On October 7, 2015, Parker filed a motion to suppress, leading to the trial court granting his motion to suppress.
Grounds for the Motion to Suppress the Results of the Probation Search
A motion to suppress is a motion to keep out specific evidence from the trial. In the U.S., the criminal defendant motions to suppress during the prosecution, asking the court to dismiss particular evidence for the subsequent proceedings.
A motion to suppress evidence rests on the “exclusionary rule.” This rule, derived from the Fourth Amendment, excludes from trial evidence acquired in violation of a defendant’s constitutional protections and prevents the unlawful search and seizure of citizens.
Standards for Probation Searches
Laws allow warrantless probation searches based on reasonableness and special needs. Here are three standards for probation searches:
- Probation officers can legally conduct a home visit and seize any contraband, including drugs and firearms, in plain sight.
- Suppose a probation officer found contraband. In that case, they have a “reasonable suspicion” that other prohibited items are in the area and can lawfully search the rest of the house.
- Police and probation officers work for different departments. Say there’s no evidence at the motion to suppress that the former ordered the latter to search a probationer’s house. In that case, the court will likely rule that the warrantless search was lawful.
There Are Limits on Probation and Parole Officers
Prosecutorial searches of released inmates remain subject to the same Fourth Amendment limitations applicable to ordinary citizens. Still, safeguards are necessary to prevent officers from abusing their special powers.
For example, the California Supreme Court stresses that the condition for a “submission to search” must be reasonably related to the offense for which the probationer was initially convicted.
Probation Search Conditions
A typical probation search condition allows probation officers to search a probationer’s residence at any time, with or without a warrant, to ensure compliance with community control requirements and to locate prohibited items or contraband.
Another probation search condition requires the probationer to submit to a drug test when the probation officer requests to track their substance use and maintain any substance-related supervision requirements.
Are Search Conditions Legal?
Yes. A probation sentence is an alternative sanction to a prison or jail sentence. As such, probationers should expect reduced privacy privileges.
This condition means that courts can require probationers to submit to warrantless searches that lack probable cause.
Some states require officers to have reasonable suspicion before performing a probation search.
However, in some cases, officers may be excused for searching, even if they have no reason to believe the probationer has committed a crime.
Additionally, some search conditions permit only probation officers to search. Others authorize the police and probation officers to do searches.
Lastly, although search conditions appear punitive, they aim to rehabilitate the probationer and protect public safety.
Types of Probation Search Conditions
Here are three kinds of probation search conditions:
- Any time, any place: The most stringent probation search condition requires probationers to submit to any search by a probation or police officer.
This condition allows the officer to search the probationer without suspicion of a crime.
- Reasonable suspicion: This standard search condition requires probationers to consent to reasonable (as defined by law) searches.
In this case, the officer should have “reasonable suspicion” that the probationer is guilty of a probation violation.
- Contraband: This search condition allows an officer to search a probationer only when the officer suspects the probationer possesses weapons, drugs, or both.
This requirement is sometimes called a “drug search condition” or “contraband search condition” as it only allows officers to search for illegal items, not evidence of other crimes.
What Is Reasonable Suspicion?
Reasonable suspicion is a common sense conclusion regarding human behavior on which officers, as government representatives, are entitled to rely.
Here are specific examples of reasonable suspicion that may justify searching a probationer’s home:
- A credible tip linking a probationer to drug sales
- The smell of marijuana emanating from the probationer’s house
- Having unexplained amounts of cash
- Not answering inquiries about identification
- Living at a place the probation officer disapproved
When Are Search Conditions Valid?
Search conditions can be valid when they aim to rehabilitate the probationer.
For example, the judge can almost always impose a search condition as part of probation for an individual convicted of a drug crime or someone with a history of substance abuse.
Courts may argue that search conditions can help prevent further substance abuse. That said, courts routinely consider search conditions valid in non-drug-related cases.
Can a Defendant Object to Search Conditions?
Defendants may refuse a probation search condition by objecting at the sentencing hearing when the judge determines the conditions of probation.
For this reason, you should seek experienced legal counsel. Your lawyer can tell you whether opposing the search condition is a good idea.
If the case calls for a guilty plea, a criminal defense lawyer must discuss probation conditions with the prosecutor before you plead guilty.
The prosecutor may agree to change or eliminate a search condition depending on the situation.
It is difficult, if not impossible, to appeal a probation search condition once the defendant has consented.
Search and Seizure (Probation and Supervised Release Conditions)
Search and seizure are crucial in probation and supervised release to ensure compliance.
Probation officers have specific legal authority to conduct searches and seizures, ensuring public safety and enforcing probation terms.
Here are some federal statutes establishing probation and supervised release conditions:
- Title 18 of the United States Code (U.S.C.), Section 3563(b)(22): The court may require that the defendant satisfy court-imposed release conditions.
- Title 18 of the U.S.C., Section 3583 (d): The court may require defendants obligated to enlist under the Sex Offender Registration and Notification Act to submit to searches of their person, property, vehicle, papers, computer, electronic or data storage devices or media, and other belongings at any time.
These searches can be done with or without a warrant by any law enforcer or probation officer, provided they have reasonable suspicion regarding probation violations or any unlawful activity.
Additionally, probation officers may perform these searches legally, exercising their supervisory responsibility over the individual.
Sample Condition Language
Probationers must submit their person, property, vehicle, papers, computers, digital storage, communication devices, media, or office to a U.S. probation officer search.
Failure to comply with a search may result in revocation of release. Defendants must inform other occupants that the premises may be subject to searches under this agreement.
The probation officer can only search for this condition when reasonable suspicion suggests that the probationer has violated a condition of supervision, and the search area contains evidence of this violation.
The time and manner of any search must be reasonable.
Below are three purposes for a probation search:
1. The search condition contributes to the statutory sentencing purposes of crime prevention, public safety, and rehabilitation.
This condition enables the probation officer to foster public safety by effectively monitoring higher-risk defendants and supporting rehabilitation efforts.
The condition can also help deter criminal activity and permit a probation officer to intervene immediately if reasonable suspicion exists that a defendant has violated a probationary condition.
2. This condition allows the probation officer to inform the defendant about their conduct, aid their recovery efforts, and improve their reentry prospects.
Method of Implementation
Methods may vary per state, but here’s a general guideline for probation searches:
1. Probation officers can propose search and seizure conditions based on the defendant’s criminal background, recidivism risk, or public safety risk.
A detailed discussion of these conditions occurs during the supervision consultation with possible occupants of the defendant’s home.
2. The supervision planning process begins with an initial investigation where probation officers examine documents, meet with defendants, and inspect the defendants’ residences.
During the home visit, the officers will then explain the search condition to the defendant and other occupants. This process helps ensure the defendant and their loved ones understand the procedures.
3. Probation officers advise defendants and other residents regarding search conditions and procedures at the start of supervision. The officer will only search the premises if reasonable suspicion of violation exists.
4. When deciding whether to search, the probation officer weighs minimal interventions and the implications for rapport, the risk posed to others by the defendant, the severity of the suspected violation, and the efficient use of resources.
The supervisory and probation officer‘s approval is generally necessary for a search.
5. During the search, the probation officer considers the supervision objectives, relationship with the defendant, and appropriate intrusion levels.
6. After the quest, the probation officer files a post-search report providing an overview of the search and any planned follow-up measures.
Information or evidence collected during the search may help manage noncompliance or communicate criminal activity to other law enforcement agencies.
Can a Probation Officer Search My House While I Am on Probation or Parole?
When arguing motions to suppress during weapon and drug cases, the question that often arises regards whether the police or probation department requires a warrant to enter an individual’s house.
As shown above, the U.S. Constitution requires law enforcement agents to secure a search warrant before inspecting a private residence.
However, probationers and parolees are two of the exceptions to this rule. Designated authorities can search their houses for rehabilitative reasons.
1. How do you check my probation status? How do you find out if someone is on probation?
You can check your or other individuals’ probation status in two ways:
- Go to a probation office and ask whether it is responsible for supervising you or another probationer. You can start by asking the office in the county where you or that other probationer lives.
- You can access information regarding individuals serving on probation by browsing the public database. In many cases, the state’s inmate locator system can help you know whether someone is serving on probation.
2. How do you find out who someone’s probation officer is?
The name of an individual’s probation officer is public information in many states. So, you can know who someone’s supervisor is via an internet search or a phone call to a particular community corrections office.
3. How do you find a facility?
4. Can you send money to an offender?
Generally, yes. Note that options for transferring money to offenders in state and local prisons differ.
It will help to contact the local or state department of corrections for details regarding money transfers to inmates.
Meanwhile, individuals serving in federal prisons have bank-type accounts for purchasing goods from the prison commissary.
You can send money to a federal inmate’s account via electronic transfer or mail-order postal money order.
5. Can you get an offender’s status and the date of a transfer? How do I inquire about a loved one?
In many cases, yes. States and local jurisdictions usually have a service where crime victims can use their internet and telephones to get information from participating agencies regarding their offender’s custody status.
Some regions even allow eligible individuals to register for phone or email notifications whenever an offender’s custody status changes.
6. How do you find out an offender’s state identification (or “EF”) number, crime, tentative parole month, and where they are incarcerated?
In most cases, states operate a system through which certain people can access this information.
You must have the inmate’s EF number to obtain information about their case.
7. Can you get an offender moved closer to me or farther away from my community?
Some jurisdictions have contact information for concerns regarding the proximity of an offender’s location.
State and federal laws exist to restrict where offenders may live upon reentry into society. Meanwhile, Megan’s Law requires sex offenders to register in the sex offender registry.
- Life, Liberty, and the Pursuit of Happiness, by U.S. Ambassador Kenn S. George
- Violation of Privacy
- Amdt126.96.36.199 Searches of Prisoners, Parolees, and Probationers
- Com. v. Parker, D. (opinion)
- Motion to Suppress
- The Fourth Amendment: Searches of Probationers
- Fourth Amendment Limitations on Probation and Parole Supervision
- Chapter 3: Search and Seizure (Probation and Supervised Release Conditions)
- How to Visit or Send Money to a Prisoner
- Parole Handbook
- Megan’s Law