Warrantless searches issue

[Smurfette_76]

A poster mentioned in the NC forum that Gov. Perdue has signed a bill changing our current general statute requirement for warrantless searches of persons on probation to include all law enforcement Officers. Under our current requirements Probation Officers can conduct warrantless searches on persons on probation, to include drug testing. She is proposing a change to that.

I have a couple of questions..debate if you will.

Should someone on probation lose their fourth amendment right to privacy? Yes, they do 'agree' to be on probation in lieu of active jail time. In agreeing to that probation, they are agreeing to the warrantless searches. So, would they not then make an active CHOICE to agree to warrantless searches during their time on probation?

BUT, doesn't the reasonableness factor become an issue? Is it reasonable to say that someone on probation for X crime is predisposed to commit Y crime? As it is now, the persons that can search [warrantless] are those charged by the court to enforce the order of the court for that specific defendant with that specific case.

How does your state handle that? What do you think? Does agreeing to probation mean the reasonableness is out the window?

Just curious.

[leesrt]

In Ga there has to be a search clause on their probation. When their CH is brought up it will state that they are under probation and whether they have a search clause. If they do any LE can search them at any time.

The search clause is an extension of being incarcerated. Had they remained in jail/prison they could be searched anytime. The fact that they were allowed to be on probation allows them their freedom to an extent.

Not everyone has a search clause so it depends on the severity of the crime. On the low end selling or trafficking drugs will have a search clause.

[mdrdep]

If a person in Cali has a search condition while on probation any officer that knows of the condition can search. It's considered a probation compliance checks. However, if you search the same guy every day for no good reason they may find that you were just harassing the dirtbag and you may loose the search.

All parolees in Cali are subject to search and seizure at anytime.

[Seventy2002]

WA just amended the law dealing with offenders under the supervision of the Dept. of Corrections. Searches may be performed only by DOC officers when "there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence."

[ateamer]

Probatoin searches are great. Our patrol guys do them all the time, just random compliance checks, including testing, for both probationers with search clauses and parolees. In California, any peace officer can place a probation hold (arrest for violation of probation terms) without a probation officer's approval.

[Iowa #1603]

Smurf

I am not, by far, a constitutional scholar bu t have been around the block in the correctional system for a while.

Some thoughts to ponder...............................

In Iowa a search provision is standard in all probation/parole agreements.

The "client" always has the option of not signing the agreement, but of course he/she is then subject to incarceration. (well in fact he/she WILL be incarcerated if they don't sign).

Probation/Parole Officers are authorized to do probation/parole searches but they also can give permission for any certified LEO to conduct a search if contacted by that LEO. (Call the PPO if you have the idiot stopped and they will give the permission......or respond.)

Each P/P district has a certified LEO/PPO unit that are uniformed, armed, and have arrest powers. Most of them are also part of the Fugitive Apprehension Task Forces-----------so they work CLOSELY with the Local LEO agencies.

The search clause is an extension of being incarcerated. Had they remained in jail/prison they could be searched anytime. The fact that they were allowed to be on probation allows them their freedom to an extent

The most significant point to remember about anyone under Probation or Parole is that they have been convicted and sentenced--------they are under supervision of the Department of Corrections and our rules.

And yes------------in prison they can be and are searched at will----any time, any place, any circumstance we want.

I have a couple of questions..debate if you will.

Should someone on probation lose their fourth amendment right to privacy? Yes, they do 'agree' to be on probation in lieu of active jail time. In agreeing to that probation, they are agreeing to the warrantless searches. So, would they not then make an active CHOICE to agree to warrantless searches during their time on probation?

As I stated above------they are already convicted and sentenced to prison. If on probation, the prison sentence is held in abeyance pending the completion of that probationary period. By definition the probationer has already lost many of their rights due to that conviction.
The granting of a probationary release does not cancel the DOC's duty to protect society. We must still have the ability to enforce the rules of that sentence.

Just as the probationer made a conscious decision to commit a crime.........they have now made a conscious decision to accept probation, and the associated conditions of that release from custody

BUT, doesn't the reasonableness factor become an issue? Is it reasonable to say that someone on probation for X crime is predisposed to commit Y crime? As it is now, the persons that can search [warrantless] are those charged by the court to enforce the order of the court for that specific defendant with that specific case.

Just curious.

I don't really think it is a matter of saying that Probationer A is predisposed to commit Crime Y or even Crime Z.

What is germane is that Probationer A is a convicted felon who has been granted a conditional release from close custody. Society still has an expectation that we as Law Enforcement officials are going protect them from this criminal. The strict supervision provisions of probation assist us in being able to take immediate action when necessary.

The search provisions have been challenged in Iowa courts.................I don't have the cites available but they have been upheld every time.

[Smurfette_76]

Hey, thanks for the information and POVs. Apparently I had my head in the sand somewhere and our governor actually signed this into law at the end of July (SEE...O.com IS informative). My agency hasn't received any training on this..which is disappointing to me...my agency is normally straight up on the legal updates.

Up until now, our SOP has been to contact a P&P Officer and they would come out and do the search while we're there. Local Officers even made case law on that one. We'll also line up several peeps to do that night, grab four or five P&P Officers and start hitting different places.

Since this concept is new to me, I'm rather talking it out here. I'm quite sure this will be tested repeatedly in our system for awhile.

[PhilipCal]

In Alabama, a probationer agrees to searches, period. That would include warrantless searches of any vehicle, or premises under his control.

[nobodyjr]

One of our officers left to an agency in OR. He said the weirdest thing was that in OR they were not allowed warrant less searches of parole and probationers. Ours in CA extend to their property, homes, and cars.

I can't imagine not having them.

[newguync]

smurfette where did you hear about the new law i work in NC also and i never have heard about this change, this sounds great though as most of our problems came from those same people.

[patroldog]

To my knowledge, in Louisiana, Probation and Parole personnel can perform warrantless searches on any of their charged probationers/parolees at any time. Period.

[SPD358]

Disclaimer- I work in Oregon. When we come across someone on probation or parole, they are allowed to say no to a search.

It would work for a probation violation- if the P.O. agrees to violate the offender. This amounts to the P.O. writing a detainer warrant and we take them to the jail.

Basically, the offender has his 4th amendment rights which do not change just because he signed an agreement with DOC or P&P.

[pulicords]

In CA, there's a very limited number of probation/parole officers available to insure felons' compliance with their conditions of release. What's the point of early release (with expressed waivers of search and seizure) unless the felon can expect compliance checks? Neither probation nor parole are rights, they are alternatives (privileges) extended by the court or the department of corrections offered in lieu of time spent in custody.

When any peace officer contacts a parolee or person on probation during the course of his/her day and verifies compliance, they are letting the subject know supervision is a reality and not just a "possibility."

[PhilipCal]

In CA, there's a very limited number of probation/parole officers available to insure felons' compliance with their conditions of release. What's the point of early release (with expressed waivers of search and seizure) unless the felon can expect compliance checks? Neither probation nor parole are rights, they are alternatives (privileges) extended by the court or the department of corrections offered in lieu of time spent in custody.

When any peace officer contacts a parolee or person on probation during the course of his/her day and verifies compliance, they are letting the subject know supervision is a reality and not just a "possibility."

Exactly the point(s) I wanted to make. All too often, the "Hug a Thug" crowd would have us believe that a parolee/probationer enjoys Fourth Ammendment Rights, or should. Evidently in Oregon they do. Fortunately, that's not the case in the majority of states. As puli noted, there's a very limited number of PO's, That's very true in Alabama as well. When an inmate is granted probation or parole, he enters into a written agreement which allows a warrantless search of any vehicles or property under his control. He has a choice here, and it's relatively simple. He can sign the waiver as a condition of release, or he can either go to, or remain in prison. His call. The point to be remembered is,that these people are CONVICTED felons. By virtue of that status, they give up certain rights.

[Narco]

In GA as a condition of your probation you are often asked to sign a 4th Amendment waiver. No one forces them to but if you want to meet the term of probation vs going to jail you sign it. I think it's a great thing.

Here, if you have a probationer with a 4th waiver any LEO who verifies that there is a valid 4th waiver can search them, their car, home, etc. If they are on parole then a state parole officer must conduct the search b/c the perp is still considered under "state custody".