Is It Reasonable? A Legal Review of Warrantless Searches of Probationers and Parolees

Abstract

Probationers and parolees have a reduced expectation of privacy. In most states, they are subject to searches by their supervising probation or parole officer without prior notice or cause. However, for law enforcement officers, their ability to search a probationer or parolee can be constrained by the need to articulate probable cause or a reasonable suspicion. This legal review examines federal and state laws, providing guidance on when law enforcement officers can search probationers/parolees, and whether it requires probable cause, a reasonable suspicion, or the presence of the supervising probation/parole officer. Results of the legal review should prove especially informative for agencies engaged in multiagency partnerships.

Keywords

probation parole probable cause reasonable suspicion

Introduction

According to the Fourth Amendment, all searches conducted by the government must be reasonable. The U.S. Supreme Court has ruled that probable cause is generally necessary for law enforcement to conduct a search. However, there are some exceptions to this rule. One of these exceptions applies to individuals who are on probation or parole (Merrick, 1998). Offenders who are placed on probation or parole are generally required to waive many of their rights, including the right to be free of warrantless searches and/or searches without probable cause.

Warrantless searches by probation/parole officers (P/POs) of probationers/parolees on less than probable cause have been upheld by the Supreme Court in a variety of situations, largely on the grounds that such searches are not investigatory, but instead rehabilitative in nature. But what about a warrantless search conducted by a police officer? The Supreme Court, in Samson v. California (2006), held that a police officer may search a parolee without probable cause or even reasonable suspicion if the officer is aware that the individual is under community supervision.

Further complicating the situation is the changing nature of the police officer–probation officer relationship. Thanks in large part to community-oriented policing initiatives such as Operation Night Light (see Corbett, 1998; Corbett, Fitzgerald, & Jordan, 1998; Minor & Matz, 2012), police and P/POs in many jurisdictions have begun working together to both investigate possible criminal activity and to more closely supervise offenders under community supervision. In particular, police officers may look to probation officers for assistance in investigating crimes. As one of the best ways to do this is to proactively search suspected wrongdoers, including those individuals under community supervision, police officers may attempt to use probation officers’ authority to conduct warrantless, suspicionless searches of offenders as a means of avoiding the requirement that the police officer obtain a search warrant or develop probable cause to conduct a search of an offender. At the most extreme, some have argued law enforcement can easily abuse their relationship with P/POs, using their partnership as a means to harass supervisees, known as the stalking horse strategy (Adelman, 2002). P/POs also face possible role confusion, as they struggle to both help the offender reintegrate into society and help the police fight crime.

In this article, we examine state statutes regarding probationer/parolee searches by law enforcement officers, as well as by P/POs. We focus on state statutes that outline the requirements for such searches in the hopes of providing guidance to practitioners. This is especially pertinent given the revelation that many police–P/PO partnerships still exist as informal social networks between individual police and P/POs (Kim, Gerber, & Beto, 2010; Kim, Gerber, Beto, & Lambert, 2013; Kim, Matz, Gerber, Beto, & Lambert, 2013). Whereas formalized partnerships (e.g., Night Light) may provide clear guidance on permissible search practices, informal partnerships are likely less regulated. Although not a substitute for legal counsel and review, the results of this study should provide the reader with an understanding of the parameters by which police and P/POs can subject probationers/parolees to warrantless searches.

The Goals of Probation and Parole

An offender may be released into the community either on probation, or on parole. Probation is a substitute for incarceration of convicted criminals. Probation has the twin goals of maximizing the liberty of the offender while still protecting the public. It is less expensive, and generally more rehabilitative in nature than incarceration.

Parole is a substitute for, and an extension of incarceration. It is defined as “a conditional release of a prisoner, generally under supervision of a parole officer, who has served part of the term for which he was sentenced to prison” (Garner, 2004). Parole has the goal of reintegrating the offender into the community while maintaining some degree of supervision over the individual, thus protecting the public.

Conditions of Probation and Parole

Courts have consistently upheld the use of probation and parole conditions. There are several justifications for imposing probation and parole conditions, including protecting the public, reducing recidivism through deterrence of criminal conduct by the client, promoting alternatives to incarceration, and rehabilitating offenders through closer supervision.

Surprisingly, few statutes specify the goals to be served by probation and parole conditions, but courts have focused on the twin goals of rehabilitation and community protection. These interests are seen by the courts as being of sufficient importance to meet the “compelling state interest” required for abridgement of “fundamental” constitutional rights (Tribe, 1988). Whereas rehabilitation and public safety often are cited goals, defining these terms with precision is difficult. Rehabilitation generally encompasses conditions that involve treatment, education, and reintegration of the offender; public safety involves conditions such as a ban on association with criminals, possession of weapons, and a requirement to obey the law.

Probation and parole conditions are usually classified as either general or specific. General conditions are imposed on all; specific conditions are imposed only on some. Commonly imposed general conditions include requiring the individual to (a) make periodic reports to their parole officer, (b) notify the officer about changes in employment or residence, (c) obtain permission for out-of-state travel, (d) refrain from possessing firearms, (e) not associate with known criminals, and (f) obey the law (Hemmens et al., 1999). A special condition is one that is not imposed as a matter of course on all probationers or parolees. Rather, it is applied only to the specific offender. So long as such conditions are reasonable and related to the state’s legitimate interest in rehabilitation and/or protection of society, they are likely to be upheld by the courts.

In general, probation and parole conditions are valid, so long as they (a) do not violate the constitution, (b) are reasonable, (c) are unambiguous, and (d) are intended to promote the rehabilitation of the offender and/or the protection of society.

Probation and Parole Search Conditions

Individuals convicted of crime, whether incarcerated or on probation or parole, do not retain the privacy rights enjoyed by the average citizen. This is particularly true with regard to the Fourth Amendment right to be free from “unreasonable” searches and seizures. What may be an unreasonable search when the target is an ordinary citizen may be reasonable when the target is a probationer or parolee. Courts frequently base this distinction on the rationale that a probationer or parolee has a lessened expectation of privacy than the ordinary citizen (Belbot & Hemmens, 2010). There are several policy reasons that support allowing searches of probationers and parolees. These include protection of the public, reducing recidivism through deterrence of criminal conduct by the client (i.e., accountability), promoting alternatives to incarceration, and rehabilitation through reintegration in the community.

Consent to a search is one of the most common conditions of probation and parole. The condition generally covers searches conducted by P/POs, and often allows searches by police officers, as well. The scope of the search usually includes the offender’s person and property. The terms of the condition may include blanket permission to be searched by either caseworkers or law enforcement personnel, or they may be limited to searches conducted by the probation officer.

The Fourth Amendment controls all searches and seizures conducted by state actors, be they police or probation officers. All searches and seizures must be conducted either (a) based on a warrant, issued on a showing of “probable cause,” or (b) without a warrant, so long as the search is not “unreasonable”—meaning there must be a showing of probable cause and an exigent circumstance or exception, which justifies failure to obtain a warrant. An exigent circumstance that comes into play in probation and parole situations is the “special needs of law enforcement” exception. Under this exception, the requirement of a warrant and probable cause are determined to interfere too greatly on the government’s objective. Courts must balance the degree of intrusion into an individual’s right to privacy with the burden on the government. In Griffin v. Wisconsin (1987), the Supreme Court held that a state regulation allowing “reasonable” searches of all probationers by their probation officers was constitutional, on the grounds that the warrant and probable cause requirements would unduly hamper the state’s probation system. The Court did not find it necessary to address the issue of the validity of the probationers’ consent, since the regulation was upheld under the “special needs” exception.

The Exclusionary Rule and Probation and Parole

For a long time, it was unclear whether the exclusionary rule applied to probation and parole revocation hearings, which are generally considered extrajudicial proceedings. Finally, in a series of rulings, the Supreme Court provided some guidance on the applicability of the exclusionary rule to the probation and parole revocation process.

Pennsylvania Board of Probation and Parole v. Scott

Keith Scott was released on parole in September, 1993, after serving 10 years for third-degree murder. One of the conditions of his parole was that he would neither own nor possess any weapons. Another condition was that he consent in advance to warrantless searches of his person, property, and residence by agents of the Pennsylvania Board of Probation and Parole. Furthermore, he agreed that any evidence seized during such searches could be used in a parole revocation hearing.

About 5 months after Scott was paroled, 3 parole officers obtained an arrest warrant for Scott, based on evidence that he had violated several terms of his parole. After arresting Scott, they went to his residence, where he lived with his parents, and searched it. In a room adjacent to Scott’s bedroom they found several weapons. These were introduced at the revocation hearing. Scott objected to the introduction of the evidence seized during the search of his home, claiming the seizure violated the Fourth Amendment because it was conducted without at least “reasonable suspicion” (as required by Griffin v. Wisconsin). He also claimed that his prior consent to a warrantless search was invalid because it was obtained involuntarily, as a requirement of parole eligibility. The hearing examiner rejected his claims, admitted the seized evidence, and recommitted Scott. On appeal, the Pennsylvania Supreme Court ruled that Scott’s consent to warrantless searches did not extend to searches conducted without at least “reasonable suspicion,” and that the exclusionary rule should apply to parole revocation hearings when parole officers are aware that the subject of their search is a parolee.

The U.S. Supreme Court reversed, holding that the exclusionary rule did not apply to parole revocation hearings. Writing for the majority, Justice Thomas emphasized the costs associated with the exclusionary rule, and downplayed the benefits of the rule, particularly in parole revocation hearings. He determined that applying the exclusionary rule to parole revocation hearings would significantly alter the revocation process, transforming revocation hearings from a process focused on rehabilitation to a mini-trial.

United States v. Knights

A subsequent case reaffirmed the Supreme Court’s diminished view of the applicability of the Fourth Amendment to probationers and parolees. In United States v. Knights (2001), the Court held that a consent search authorized by a probation condition was reasonable. Knights was placed on probation for a minor drug offense. According to the terms of his probation, he was required to submit to a search at any time, even in the absence of a warrant, probable cause, or even reasonable suspicion, by either a probation or police officer. Shortly after he was placed on probation, Knights became a suspect in an arson investigation. A sheriff’s deputy, aware of the search condition in Knights’ probation order, conducted a warrantless search of Knights’ apartment, where he found material implicating Knights in the arson. The district court conceded that the deputy had “reasonable suspicion” that Knights was involved in the arson, but nonetheless determined that the search of Knights’s residence violated the Fourth Amendment because it was conducted for “investigatory” rather than “probationary” purposes. The district court claimed that the search condition in the probation order allowed warrantless searches on less than probable cause only when the purpose of the search was to see if probation was being complied with, not for the investigation of another crime.

The Supreme Court unanimously reversed the lower court and upheld the search of Knights’s apartment. Rather than trying to sort out whether the search was investigatory or probationary in nature, the opinion by Chief Justice Rehnquist focused on whether the search was “reasonable” under the Fourth Amendment. The Court held that this particular search, based on reasonable suspicion and authorized by a probation condition, was in fact reasonable. The Chief Justice noted that probation serves several purposes, including rehabilitation of the defendant and protection of the public, and that probationers enjoy a lessened expectation of privacy. All this tilted the balance in favor of the government in this case. Although the Court focused on the specific facts of this case several times, some language in the opinion left open the possibility that searches of a probationer might be considered “reasonable” even in the absence of a specific search condition or reasonable suspicion.

Samson v. California

In Samson v. California (2006), the Supreme Court went a step further and ruled that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee. The case originated in California, which had a statute requiring all parolees to agree, as a condition of their release, to warrantless searches by either parole officers or police officers. At issue in this case was the stopping and searching of Donal Samson, a parolee, by police officer Alex Rohleder, who was aware that Samson was on parole. During the search, Officer Rohleder discovered methamphetamine on Samson and arrested him. Samson was eventually convicted of drug possession.

The Supreme Court, in a 6-3 decision authored by Justice Thomas, upheld the state law, noting that parolees have a lower expectation of privacy than free citizens or even probationers. The state, on the contrary, has a strong interest in ensuring that parolees do not endanger public safety. Balancing the parolee’s low expectation of privacy against the state’s interest in public safety, the Court had little difficulty upholding the state suspicionless search statute. Consequently, the Fourth Amendment and the exclusionary rule have little or no application to the rights of parolees.

Probation Officers and Role Confusion

From its inception, probation has faced the oft-competing goals of law enforcement/public safety and rehabilitation/reintegration of the offender. These goals lead to role conflict for probation officers. Probation officers are asked to help their clients, while being charged with ensuring public safety. Although this role conflict has existed since the inception of probation, recent developments have heightened this conflict. As the Supreme Court has lessened the applicability of the Fourth Amendment to offenders under community supervision, law enforcement agencies and probation/parole agencies have begun to work together more closely. Several researchers have noted the tendency for P/POs to be heavily influenced by the enforcement role of law enforcement in their partnerships (; Murphy, 2005). Often, as a result, compliance monitoring takes precedence over any mandate to provide service referrals or rehabilitative measures.

In their study of the statutorily mandated roles of probation officers, Burton, Latessa, and Barker (1992) found that 43 states required probation officers to supervise probationers and 19 states required them to keep probationers under surveillance, whereas less than half (17) of the states mandated the treatment and rehabilitation of probationers. A follow-up study by Purkiss et al. (2003) found that probation officers are more likely to be statutorily mandated to perform law enforcement tasks rather than rehabilitative tasks. The five tasks most prescribed by states are law enforcement–oriented (supervision—46 states, investigate cases—32 states, keep records—27 states, surveillance—26, states, develop/discuss probation conditions—24 states, and arrest—24 states). However, the researchers also found that the roles of probation officers are becoming more heterogeneous, as three of the five statutorily mandated tasks identified as being rehabilitation-oriented in 1992 increased. Assisting in rehabilitation increased from 17 to 22 states, counseling increased from 15 to 19 states, and locating employment increased from 2 to 3 states. Interestingly, possessing the power of a law enforcement/peace officer was the only new legally prescribed function added to the statutes between 1992 and 2002.

Police–Probation/Parole Partnerships

During the mid-1990s and through the mid-2000s, formalized partnerships between police and probation or parole agencies became a widespread phenomenon across the country. The oft-cited Boston Operation Night Light program, born in 1992 on a chance meeting of officers in court, was heavily praised by practitioners (Corbett, 1998; Matz & Kim, 2013). A variety of imitations developed in states across the United States including the Nightlight program in San Bernardino; Project One Voice in New Haven; the Juvenile Intensive Supervision Team (JIST) in Kentucky; the Youth Violence Reduction Partnership (YVRP) in Philadelphia; Accountability Tours in Washington, D.C.; Project Spotlight in Texas; and many more (see Anonymous, 1999; Benekos & Merlo, 2006; Jones & Sigler, 2002; Jordan, 1998; Jucovy & McClanahan, 2008; Kim et al., 2010; McClanahan, 2004).

Although partnership goals and typologies vary (see Parent & Snyder, 1999), many tended to share similar practices. These common practices included joint home visits and searches, joint patrols, and information sharing. Partnerships often targeted youthful gang-affiliated probationers/parolees.

Outcomes for partnerships remain tentative. Many partnerships were not formally evaluated, and for those that were, their methodology was often limited to reviews of aggregate fluctuations in crime rates (Corbett, 1998; International Association of Chiefs of Police [IACP], 2012; Leitenberger, Semenyna, & Spelman, 2003), which have been disputed as unreliable for determining program effectiveness, given crime rates across the country were on decline after the mid-1990s (see Rosenfeld, Fornango, & Baumer, 2005). That said, Worrall and Gaines’s (2006) methodologically rigorous examination of San Bernardino’s Nightlight found a statistically significant reduction in burglary, assault, and theft with no impact on misdemeanor or status offenses. Finally, qualitative research by Alarid, Sims, and Ruiz (2011) confirmed that partnerships were more productive when there was support from leadership on both the law enforcement and probation/parole side. Without support, partnerships tended to deteriorate or stagnate with little productivity.

A variety of negative consequences have been discussed, including mission distortion, mission creep, turfism, organizational lag, and stalking horse incidents (Corbett, 1998; Giacomazzi & Smithey, 2001; Matz & Kim, 2013; Murphy, 2003, 2005; Murphy & Lutze, 2009; Murphy & Worrall, 2007). Mission distortion, primarily a concern for P/POs, concerns the abandoning of one’s social work orientation for that of purely law enforcement (Murphy & Lutze, 2009; Murphy & Worrall, 2007). Mission creep concerns the adoption of roles and responsibilities outside the normal purview of the agency such as officers taking on the role of referral agent or coordinating partnership meetings (Corbett, 1998). Turfism pertains to the tendency of agencies to have distinct territorial tendencies and competition for scarce funding (Giacomazzi & Smithey, 2001). Organizational lag refers to the inability of an agency to proactively engage in partnerships due to a lack of leadership support and rigid organizational structure (Alarid et al., 2011; Corbett, 1998). Stalking horse incidents, most relevant to the analyses of this article, concern the abuse of partnerships by law enforcement to gain access to probationer/parolees and harass them by conducting searches without a warrant, probable cause, or a reasonable suspicion (Adelman, 2002).

Commonly cited benefits include improved officer safety, enhanced resource allocation, improved probationer/parolee accountability, information sharing, mutual respect gained by the respective departments for the other’s role, and in some limited cases evidence of some crime reduction potential (e.g., Worrall & Gaines, 2006). Furthermore, the families of the probationer/parolee have been documented as being supportive of these partnerships (Corbett, 1998). P/POs also contend that the presence of law enforcement during joint visits encourages their supervisee to take the conditions of their supervision more seriously.

Method

For this article, we reviewed the statutes of all 50 states to determine whether warrantless searches by P/POs and law enforcement officers were regulated, and if regulated, in what way. State statutes were accessed via LexisNexis, a commercial legal research database. Statutes were examined via the “word search” function; we sought to locate all statutes dealing with probation and parole that referenced searches.

We searched for the words probation, parole, search, and police, and collected statutes with these words. We then examined the statutes to determine which dealt with the searches of probationers and parolees, by either police officers or P/POs. We found references to probation and parole searches in virtually every state; for the states without statutory references, we contacted state probation and parole agencies directly.

In the end, we were able to obtain information from all 50 states. We also examined relevant court cases in each state to determine if local court rulings provided additional guidance on the rights and responsibilities of P/POs.

Findings

Our findings are set forth in Table 1, which focuses on warrantless searches by P/POs, and Table 2, which focuses on warrantless searches by law enforcement officers.

Table 1.

Warrantless Searches by Probation/Parole Officers.

State	Source	Warrantless searches allowed	Special circumstances required
Alabama	Statute: ALA CODE § 15-22-31	Yes	No
Alaska	Statute: Sec. 33.16.150	Yes	No
Arizona	Arizona v. Turner, 688 P.2d 1030 (1984)	Yes	No
Arkansas	Wilson v. Arkansas, 752 S.W.2d 46 (1988)	Yes	No
California	People v. Bravo, 738 P.2d 336 (1987)	Yes	No
Colorado	People v. Anderson, 536 P.2d 302 (1975)	Yes	No
Connecticut	State v. Whitfield, 59 A.2d 21(1991) Administrative Directive 11.4	Yes	No
Delaware	Statute: 11 Del.C 4321 Pendleton v. Delaware, 990 A.2d 417 (2010)	Yes	Reasonable suspicion required
Florida	Statute: Sect. 948.03	Yes	No
Georgia	Brady v. Georgia, 443 S.E.2d 522 (1994) Harrell v. State, 559 S.E.2d 155 (2002)	Yes	No
Hawaii	Hawaii v. Fields, 686 P.2d 1379 (1984)	Yes	No
Idaho	State v. Devore, 2 P.3d 153 (2000) Standard Agreement of Supervision	Yes	No
Illinois	People v. Eiland, 576 N.W.2d 1185 (1991) Statute: Sect. 5/3-3-1	Yes	No
Indiana	Bonner v. State, 776 N.E.2d 1244 (2002) Conditions of Probation	Yes	No
Iowa	State v. Ochoa, 792 N.W.2d 260 (2010) House File 2433	Yes	No
Kansas	State v. Bennett, 200 P.3d 455 (2008)	Yes	No
Kentucky	Colman V. Kentucky, 100 S.W.3d 745 (2002)	Yes	No
Louisiana	Statute: Sect. 30.2.895	Yes	No
Maine	State v. Bernier, 486 A.2d 147 (1985) State v. Nolan, 759 A.2 721(2000) State v. Collins, 681 A.2d 1168 (1996) Statute: Sect. 17A.3.49.1202	Yes	No
Maryland	Md. § 6-109	No	No
Massachusetts	Commonwealth v. Lafrance, 525 N.E.2d 379 (1988)	Yes	No
Michigan	People v. Krusell, Not reported in N.W.2d (2012) People v. Hellenthal, 465 N.W.2d 329 (1990)	Yes	No
Minnesota	State v. Anderson, 733 N.W.2d 128 (2007)	Yes	No
Mississippi	Barlow v. State, 8 So.3d 196 (2005)	Yes	No
Missouri	State v. Williams, 486 S.W.2d 468 (1972)	Yes	No
Montana	Statute: Rule 20.7.1101 State v. Burke, 766 P.2d 254 (1988)	Yes	No
Nebraska	State v. Sievers, 511 N.W.2d 205 (1994)	Yes	No
Nevada	Parole Agreement	Yes	No
New Hampshire	State v. Zeta Chi Fraternity, 696 A.2d 530 (1997) Terms and Conditions of Probation	Yes	No
New Jersey	State v. Bollinger, 405 A.2d 432 (1979) Directive #7-08	Yes	No
New Mexico	State v. Gardner, 619 P.2d 847 (1980)	Yes	No
New York	People v. Fortunato, 50 A.D.2d 38 (1975)	Yes	No
North Carolina	Statute: 15A-1343	Yes	No
North Dakota	State v. Schlosser, 202 N.W.2d 136 (1972)	Yes	No
Ohio	State ex el. Wright v. Ohio Adult Parole Authority, 661 N.W.2d 728 (1996) Conditions of Supervision	Yes	No
Oklahoma	Ott v. State, 967 P.2d 47 (1998)	Yes	Yes
Oregon	State v. Davis, 891 P.2d 1373 (1995)	Yes	No
Pennsylvania	Statute: 42.9912	Yes	No
Rhode Island	Statute: 13-8-32	Yes	No
South Carolina	Statute: 24.21.430	Yes	No
South Dakota	State v. Kottman (19xx)	Yes	Yes
Tennessee	State v. Davis, 191 S.W.3d 118 (2006)	Yes	No
Texas	Townes v. State, 293 S.W.3d 227 (2009)	Yes	No
Utah	State v. Burningham, 10 P.3d 335 (2000)	Yes	No
Vermont	State v. Lockwood, 632 A.2d 655 (1993)	Yes	No
Virginia	Murray v. Commonwealth, 743 S.E.2d 302 (2013) Anderson v. Commonwealth, 495 S.E.2d 547 (1998)	Yes	No
Washington	State v. Winterstein, 166 P.3d 1242 (2007) State v. Campbell, 691 P.2d 929 (1984) Guide for Police Officers and Prosecutors	Yes	No
West Virginia	Hughes v. Gwinn, 290 S.E.2d 5 (1982)	Yes	No
Wisconsin	Griffin v. Wisconsin (state cite)	Yes	No
Wyoming	Pena v. State, 792 P.2d 1352 (1990)	Yes	No

Table 2.

Warrantless Searches by Law Enforcement Officers.

State	Source	Waive for police officers	Special circumstances
Alabama	Al Code 15-22-29	No	No
Alaska	Statute: Sec 33.16.150	Supervision	No
Arizona	Case law: Arizona v. Turner 688 P.2d 1030(1984)/Statute: 6:2:207	Yes	No
Arkansas	Wilson v. State, 752 S.W.2d 46 (1988)	Yes	No
California	People v. Bravo, 738 P.2d 336 (1987)	Yes	No
Colorado	People v. Anderson, 536 P.2d 302 (1975)	No	No
Connecticut	State v. Whitfield, 599 A.2d 21 (1991)	No	No
Delaware	Pendleton v. State, 990 A.2d 417 (2010) Statute: Sect. 11.4321	No	No
Florida	Statute: Sect. 948.03	Supervision	No
Georgia	Harrell v. State, 559 S.E.2d 155 (2002)	No	No
Hawaii	State v. Fields, 686 P.2d 1379 (1984)	No	No
Idaho	Standard Agreement of Supervision	Yes	No
Illinois	People v. Eiland, 576 N.W.2d 1185 (1991)	No	No
Indiana	Bonner v. Indiana, 776 N.E.2d 1244 (2002)	Supervision	No
Iowa	State v. Ochoa, 792 N.W.2d 260 (2010) House File 2433	Yes	No
Kansas	State v. Bennett, 200 P.3d 455 (2008)	Yes	No
Kentucky	Coleman v. Kentucky, 100 S.W.3d 745 (2002)	No	No
Louisiana	Statute: Sect. 30.2.895	No	Yes, if the offender is a sex offender
Maine	No response	No response
Maryland	Md. § 6-109	No	No
Massachusetts	Commonwealth v. Lafrance, 525 N.E.2d 379 (1988)	Supervision	Must be at the direction/request of P/PO
Michigan	People v. Krusell, Not reported in N.W.2d (2012)	Supervision
Minnesota	State v. Brambrink, Not reported in N.W.2d (2010)	Yes	No
Mississippi	Barlow v. State, 8 So.3d 196 (2005)	Supervision	No
Missouri	N/A	No	No
Montana	Statute: Rule 20.7.1101	Supervision	Must be authorized by P/PO and be backed by reasonable suspicion
Nebraska	State v. Sievers, 511 N.W.2d 205 (1994)	Yes	No
Nevada	Parole Agreement	No	No
New Hampshire	State v. Zeta Chi Fraternity, 696 A.2d 530 (1997)	Supervision	No
New Jersey	State v. Bollinger, 405 A.2d 432 (1979)	No	No
New Mexico	State v. Gardner, 619 P.2d 847 (1980)	No	No
New York	People v. Fortunato, 50 A.D.2d 38 (1975)	Supervision	No
North Carolina	Statute: 15A-1343	Yes	Police restricted to searching person and vehicle
North Dakota	State v. Schlosser, 202 N.W.2d 136 (1972)	Yes	No
Ohio	State ex rel. Wright v. Ohio Adult Parole Authority, 661 N.W.2d 728 (1996)	No	No
Oklahoma	Ott v. State, 967 P.2d 472 (1998)	No	Case law does not specifically prohibit searches but rather specifically identifies P/POs as searching party
Oregon	State v. Davis, 891 P.2d 1373 (1995)	Supervision	No
Pennsylvania	Commonwealth v. Altadonna, 817 A.2d 1145 (2003)	No	No
Rhode Island	Statute: 13-8-32	No	No
South Carolina	Statute: 24-21-430	Yes	Law enforcement must first verify that probationer is still on probation prior to search
South Dakota	State v. Kottman	Yes	Reasonable Suspicion
Tennessee	State v. Davis, 191 S.W.3d 118 (2006)	Yes	Searches and seizures must be reasonable in relation to sentence
Texas	Townes v. State, 293 S.W.3d 227 (2009)	No	No
Utah	Utah v. Burningham, 10 P.3d 335 (2000)	No	No
Vermont	State v. Lockwood, 632 A.2d 655 (1993)	No	Case law does not specifically prohibit searches but rather specifically identifies P/POs as searching party
Virginia	Murray v. Commonwealth, 743 S.E.2d 302 (2013)	Yes	No
Washington	State v. Winterstein, 166 P.3d 1242 (2007)	No	No
West Virginia	Hughes v. Gwinn, 290 S.E.2d 5 (1982)	No	Case law does not specifically prohibit searches but rather specifically identifies P/POs as searching party
Wisconsin	Griffin v. Wisconsin, 97 L.Ed.2d 709 (1987)	No	Case law does not specifically prohibit searches but rather specifically identifies P/POs as searching party
Wyoming	Pena v. Wyoming, 792 P.2d 1352 (1990)	No	Case law does not specifically prohibit searches but rather specifically identifies P/POs as searching party

Note. P/POs = probation/parole officers.

All but 1 of the 50 states allow P/POs to carry out warrantless searches. Only Maryland prohibits P/POs from conducting such searches. This finding is not surprising, as P/POs have long been afforded the ability to conduct warrantless searches of the individuals they supervise. Being able to conduct a warrantless search of an offender under community supervision has long been seen as essential to both ensuring public safety and promoting rehabilitation and reintegration, the primary goals of community supervision.

What is perhaps a bit surprising is that of the 49 states that allow P/POs to conduct warrantless searches, only 3 (Delaware, Oklahoma, and South Dakota) provide specific statutory limitations on such searches. For instance, in Delaware P/POs may conduct searches of probationers only if they have reasonable suspicion that criminal activity exists prior to the search. The statute goes on to state that P/POs can also execute arrest and search warrants and other orders that are directed by the court. In addition to the state statute, the Supreme Court of Delaware, in Pendleton v. Delaware (2010), allowed evidence to be admitted in a trial that was seized in a warrantless search of a probationer because the probation officer complied with the necessary guidelines for conducting the search as required by statute.

Michigan is another state that grants P/POs the authority to conduct warrantless searches of probationers. Its courts have gone a step further in defining the parameters of permissible warrantless searches by P/POs. The Michigan Court of Appeals ruled in People v. Hellenthal (1990) that a condition of an offender’s probation agreement that allowed the warrantless search of his home, property, or person to be searched for controlled substances was not a Fourth Amendment violation. More recently, in People v. Krusell (2012), the Court of Appeals held that probation officers can search a probationer’s person, vehicle, home, or computer without a warrant if there is reasonable cause that they are in possession of anything that violates the conditions of their probation.

Whereas virtually every state allows P/POs to conduct warrantless searches of offenders under community supervision, and generally allow such searches without probable cause or even reasonable suspicion, such is not the case for police officers. Only 13 states have statutes authorizing police officers to conduct warrantless searches of offenders under community supervision. Of these, 9 states include specific statutory language requiring these warrantless searches be carried out either under the supervision of or at the request of the P/PO.

Several states allow police officers to conduct warrantless searches under special circumstances. For example, Louisiana allows police officers to conduct a warrantless search of an offender on probation or parole, but only if the offender has been convicted of a sex offense, and only if the officer has reasonable suspicion to believe that the individual has committed a new crime.

Although Louisiana is the only state that specifically targets sex offenders and allows police officers to search them while on probation without a warrant or probable cause, other states allow law enforcement to randomly search probationers or parolees for other reasons. According to North Carolina Statute § 15A-1343, community corrections officers and law enforcement officers can search a probationer’s vehicle or person on reasonable suspicion that the probationer is engaged in criminal activity or is in possession of a firearm. However, this statute does not give police officers the authority to search the probationer’s home without a warrant. To search the residence of an individual who is on probation or parole in North Carolina, police officers must obtain a search warrant.

South Dakota also allows both police officers and probation officers to search without a warrant those individuals who are on community supervision. South Dakota’s statutory requirements for probation are written in a manner that gives the court a great deal of discretion. As a condition of probation or parole, individuals often are required to sign a waiver allowing warrantless searches by law enforcement or probation officers without probable cause or reasonable suspicion. This was challenged in State v. Kottman (2005), when Michael Kottman was arrested for possession of a controlled substance after police searched his residence without a warrant. In his appeal, Kottman argued that the warrantless search was illegal. He also contended that the officers did not have reasonable suspicion to conduct the search. The court found that Kottman surrendered many of his Fourth Amendment rights when he signed the waiver agreeing to the conditions of his parole and that individuals who are on probation or parole are not entitled to the same Fourth Amendment rights as ordinary citizens. They also concluded that reasonable suspicion existed and that the warrantless search was legal.

Some states make it very clear in the statute which agencies are allowed to conduct warrantless searches and which agencies are not. Other states have vague statutes and it is necessary to review the case law to determine who is permitted to conduct warrantless searches and when they can be carried out. Alaska, for example, has very clear statutes regarding conditions of parole. Individuals who are on parole in Alaska are required to submit to searches by their parole officer. Police officers are only permitted to conduct warrantless searches of probationers if they are doing so under the direction of a parole officer.

Other states have ambiguous, unclear statutes, making it is necessary to review case law to understand the parole and probation process. For instance, the Oklahoma Court of Criminal Appeals held in Andrew v. Oklahoma (1998) that individuals who are on parole and all of their property are subject to search at any time without a warrant. However, the court only provided community corrections officers with this authority, not law enforcement officers.

The majority of states require warrantless searches to be conducted by probation or parole officers, or at least require special circumstances for law enforcement officers to be able to conduct warrantless searches without the presence of a probation officer. However, Arizona, Arkansas, California, Iowa, Kansas, Minnesota, Nebraska, North Dakota, South Carolina, and Virginia allow either probation officers or law enforcement officers to conduct warrantless searches of probationers at any time, without probable cause.

Louisiana, North Carolina, South Dakota, and Tennessee allow probation officers to conduct warrantless searches of individuals who are on probation and also allow law enforcement officers to conduct warrantless searches under certain circumstances. Every other state only allows warrantless searches of offenders who are on probation to be conducted by probation officers, or at a minimum, under the supervision of a parole or probation officer.

In an effort to determine whether there were any geographic factors that might have influenced which states permit police officers to conduct warrantless searches of offenders under community supervision, we categorized our findings by region.

An examination of the map in Figure 1 indicates that Midwestern states are likely to allow warrantless searches by police officers—six Midwestern states permit such searches. Four states in the Southeast allow warrantless searches by police officers, as do four Western states. Interestingly, there are no Northeastern states that permit warrantless searches by police officers. Although it is impossible to draw firm conclusions from these findings, it does suggest that there are regional differences in the level of legislative support for authorizing police to conduct warrantless searches of offenders under community supervision.

Figure 1.

States that allow police officers to conduct warrantless searches.

Conclusion

With few exceptions, P/POs are granted the ability to search offenders under community supervision at will. This authority is justified by the twin goals of promoting public safety and supporting the rehabilitation and reintegration of the offender into the community. Extending this broad search authority to police officers, either on their own or working in partnership with P/POs, raises some important issues. Police officers are tasked with protecting the public and investigating crime. Offender rehabilitation is not their job. Allowing police officers to operate under the umbrella of P/POs both increases the police officers’ ability to interfere in the lives of citizens and places P/POs in a difficult position.

There is evidence that in those states that allow both police officers and P/POs to conduct warrantless searches of offenders who are on probation or parole, police officers have taken advantage of this authority and worked with probation officers so that they could search individuals who were on probation (Matz & Kim, 2010). In 11 states, law enforcement officers are permitted to search individuals who are on probation without a search warrant and without the offender’s probation officer being present. The majority of states, however, require these warrantless searches to either be carried out in the presence of a probation officer or by the probation officers themselves.

Agency partnerships between law enforcement and probation/parole have increased in popularity due to the fact that many believe that this relationship will increase public safety (Matz & Kim, 2010; Murphy & Worrall, 2007). Although these collaborations can have some benefit, it is important to also be aware of the numerous consequences and implications regarding Fourth Amendment rights. According to Murphy and Worrall (2007), “mission distortion” is one of the potential implications that can arise when police officers work too closely with probation officers. This can result in the objectives and legal authority of each agency becoming confused. Both agencies have separate goals, missions, and agendas specific to their position. When the two agencies work collaboratively and combine their legal authority, they have an imbalanced advantage over the offender and threaten their civil liberties.

The results of this legal review demonstrate the need for agencies to be sensitive to the statutory restrictions on their authority to search offenders under community supervision. Furthermore, it is also worth noting the variety of court-imposed conditions placed on probationers/parolees and how those conditions affect, limit or delimit the ability of officers to search these individuals. Although this study does not absolve an agency of its responsibilities to seek legal counsel and advice, it is hoped the results prove informative by dispelling any misconceived myths as well as enabling greater dialogue between law enforcement and community supervision agencies. As David Kennedy (1997) has emphasized, it is imperative that justice agencies continue to find ways to work together to improve public safety.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Author Biographies

Craig Hemmens is chair & professor of the Department of Criminal Justice and Criminology at Washington State University. He has published 19 books and over 150 articles, many of them dealing with legal issue sin criminal justice.

John Turner is a doctoral student in the Department of Criminal Justice and Criminology at Washington State University.

Adam K. Matz is a research associate with the American Probation and Parole Association (APPA) and a doctoral candidate at the Department of Criminology at Indiana University of Pennsylvania.

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