Search and Seizure - Probationer / Parolee / Pretrial Release

Samson v. California, 126 S.Ct. 2193 (2006)

A California law that permits a warrantless search of a parolee at any time, with or without cause is constitutional. A parolee has substantially diminished rights to privacy, given his voluntary decision to serve his sentence outside the confines of a prison.

United States v. Knights, 534 U.S. 112, 122 S.Ct. 587 (2001)

The Supreme Court held that the police may invoke a search warrant waiver clause in a probationer’s, or parolee’s sentence to conduct a warrantless search, even if the search is based simply on reasonable suspicion and is motivated by a concern with the investigation of other criminal activity, not just a possible parole, or probation violation. See also Griffin v. Wisconsin, 483 U.S. 868 (1987).

Griffin v. Wisconsin, 483 U.S. 868 (1987)

The Supreme Court holds that a search of a probationer’s house does not have to be predicated on a search warrant or probable cause. Rather, the Wisconsin regulation in this case which requires “reasonable grounds” to believe the presence of contraband and the approval of a probationer officer’s supervisor, is a valid exception to the Fourth Amendment’s search warrant requirement. Dispensing with the search warrant requirement is reasonable in order to avoid interfering with the probation system and the right of a probation officer rather than a magistrate to make decisions about the probationer’s conduct.

United States v. Hill, 776 F.3d 243 (4th Cir. 2015)

The defendant was on supervised release. Nothing in the conditions of his supervised release amounted to a waiver of his Fourth Amendment rights. He was required to allow a probation officer to visit him in his home, and was required to alert the probation officer if he moved. The defendant failed to notify his probation officer when he moved. The officer went to his new house with law enforcement officers and after arresting him for moving without notifying the probation department, the officers brought in a drug-detecting dog. This was an illegal search and the evidence should have been suppressed (unless, on remand, the government could make a showing that the independent source rule applied). Moreover, the good faith exception to the exclusionary rule did not apply.

United States v. Grandberry, 730 F.3d 968 (9th Cir. 2013)

Though Samson determined that a parolee’s reduced expectation of privacy allows for warrantless searches of a parolee, a law enforcement officer may not conduct a warrantless search of premises without probable cause to believe that the parolee does, in fact, live at that location. The information known to the police in this case was insufficient to meet this burden.

United States v. King, 687 F.3d 1189 (9th Cir. 2012) (en banc)

The Ninth Circuit summarily declared (without further explanation) that the Fourth Amendment is not the same for probationers and for parolees. The court overruled several Ninth Circuit precedents and wrote, “These cases conflict with the Supreme Court's holding that ‘parolees have fewer expectations of privacy than probationers.’ Samson v. California, 547 U.S. 843, 850 (2006).”

United States v. Freeman, 479 F.3d 743 (10th Cir. 2007)

The search of defendant’s house was not conducted by any parole officers and no parole officer instructed the police to conduct the search. This does not qualify as a “special needs” search according to Griffin v. Wisconsin and unlike the California law at issue in Knights and Samson, the Kansas law that applied in this case did not authorize any law enforcement officer to conduct a warrantless search; it only authorized probation and parole officers to conduct such searches.

United States v. Howard, 447 F.3d 1257 (9th Cir. 2006)

The defendant was a parolee whose condition of parole empowered the police to make warrantless searches of his residence. In order to invoke this provision, the police had to have probable cause to believe that the place being searched was, in fact, the defendant’s residence. The place that was searched in this case was not known to the police to be the residence of the defendant. The defendant was seen exiting the apartment and was stopped; thereafter the apartment was searched. The Ninth Circuit held that because the police had insufficient information to believe that the apartment was defendant’s residence, the warrantless search was improper.

United States v. Henry, 429 F.3d 603 (6th Cir. 2005)

A probation officer visited the defendant’s house and went in for a probationary (not an investigatory) purpose – that is, to ensure that the defendant actually lived there, as he had reported. The Sixth Circuit held that the entry into the house was not reasonable, because there was no reasonable suspicion to support the belief that the defendant did not live there, as he reported and therefore there was no reasonable basis to believe that he had violated a condition of his probation.

United States v. Scott, 450 F.3d 863 (9th Cir. 2006)

A defendant had been released on bail in state court, subject to the condition that he be subject to warrantless searches of his home, even without probable cause. The state police invoked this provision, searched his home and found a gun that was then used as the basis for a federal prosecution. The Ninth Circuit held that releasing a person on bond subject to his willingness to be searched without probable cause violated the Fourth Amendment. The same applies to a drug test that was taken as a result of being released on bail. Because there was no probable cause to test the defendant for drugs, the warrantless testing of his blood was also unconstitutional.

United States v. Crawford, 323 F.3d 700 (9th Cir. 2003)

Even when acting pursuant to a “fourth amendment waiver” that was executed pursuant to a defendant’s parole, the police require at least reasonable suspicion before they may enter a defendant’s house. On rehearing en banc, 372 F.3d 1048 (2004), the court assumed that this holding was true, without deciding whether it was, but held that the resulting confession was the not subject to suppression.

United States v. Carnes, 309 F.3d 950 (6th Cir. 2002)

The Michigan defendant in this case was subject to a condition of parole that provided that parole officers could conduct a warrantless search based on reasonable cause to believe a violation of parole occurred. This only authorizes a warrantless search where the police are motivated by a concern with a violation of parole, not some other purpose. The parole condition was different than the condition that was the subject of United States v. Knights, 534 U.S. 112, 122 S.Ct. 587 (2001). In Knights, the police were authorized by the parole condition to search “without suspicion” while the defendant was on parole. As in limited other situations, in this area of the Fourth Amendment, the police officer’s motivation is relevant to the lawfulness of the search.

United States v. Baker, 221 F.3d 438 (3rd Cir. 2000)

A consent form signed by Pennsylvania parolees provides that they will consent to any search of their person, property or residence, without a warrant. State precedents suggested a condition that the parole officer must have reasonable suspicion to justify any search of the parolee’s person, property, or residence. The Third Circuit concludes that the Pennsylvania courts would, if called upon to decide this question, hold that there is a state law requirement that there be reasonable suspicion prior to any such search. Because there was no reasonable suspicion, the fruits of the search in this case had to be suppressed. Note that this decision pre-dates United States v. Knights, 534 U.S. 112, 122 S.Ct. 587 (2001), which held that a search warrant waiver was permissible regardless of whether a search is related to the conditions of probation, or the investigation of a new offense by the probationer.