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

Published date01 November 2016
Date01 November 2016
Subject MatterArticles
Criminal Justice Policy Review
2016, Vol. 27(7) 684 –701
© 2014 SAGE Publications
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DOI: 10.1177/0887403414554996
Is It Reasonable? A Legal
Review of Warrantless
Searches of Probationers and
John R. Turner1, Craig Hemmens1, and Adam K. Matz2
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.
probation, parole, probable cause, reasonable suspicion
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 excep-
tions 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 gener-
ally required to waive many of their rights, including the right to be free of warrantless
searches and/or searches without probable cause.
1Washington State University, Pullman, USA
2American Probation and Parole Association, Lexington, KY, USA
Corresponding Author:
Craig Hemmens, Washington State University, P.O. Box 644872, Pullman, WA 99164-4872, USA.
554996CJPXXX10.1177/0887403414554996Criminal Justice Policy ReviewTurner et al.
Turner et al. 685
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 offi-
cer 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 pro-
bation 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 com-
munity 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 enforce-
ment 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 con-
ditional 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

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