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

• Published date: 01 November 2016
• DOI: 10.1177/0887403414554996
• Date: 01 November 2016
• Subject Matter: Articles

Criminal Justice Policy Review

2016, Vol. 27(7) 684 –701

© 2014 SAGE Publications

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DOI: 10.1177/0887403414554996

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Article

Is It Reasonable? A Legal

Review of Warrantless

Searches of Probationers and

Parolees

John R. Turner1, Craig Hemmens1, and Adam K. Matz2

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 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.

Email: craig.hemmens@wsu.edu

554996CJPXXX10.1177/0887403414554996Criminal Justice Policy ReviewTurner et al.

research-article2014

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