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Probationers, Parolees, and the Fourth Amendment

NCJ Number
FBI Law Enforcement Bulletin Volume: 72 Issue: 7 Dated: July 2003 Pages: 22-31
Thomas D. Colbridge J.D.
Date Published
July 2003
10 pages
This article explores the extent to which probationers and parolees are protected by the restrictions of the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable searches.
Courts tend not to distinguish between parolees and probationers when analyzing their Fourth Amendment protections, so the principles discussed in this article apply to both. From a review of court cases concerning searches of the person or locations of probationers and parolees, it is clear that probationers and parolees, as well as their residences, vehicles, and personal effects, are granted Fourth Amendment protection. Consequently, any search of probationers and parolees or their property must be reasonable; however, reasonable searches do not include the usual requirement of a search warrant based upon probable cause. Probation and parole officers as well as police officers may search probationers' and parolees' homes and property so long as they have reasonable suspicion to believe that contraband is present or criminal activity is occurring. Whether probationers and parolees may be searched without a specific reason remains an open question. It is likely unwise to attempt to justify searches absent suspicion on the theory of consent. States can argue that "suspicionless" searches of probationers and parolees are reasonable regulations or conditions, because the searches are not a function of law enforcement and are reasonably related to the two goals of rehabilitation and public protection. Also, it is plausible to argue that the inherent nature of probation and parole combined with search conditions imposed as a requirement for release are sufficient to extinguish any reasonable expectation of privacy that probationers and parolees may have. Resolution of the issue of a "suspicionless" search, however, must await clear word from the U.S. Supreme Court. The Supreme Court has made clear that so long as the searches themselves are reasonable, it will not inquire into the actual motivations of officers conducting them. In regulatory or administrative reviews, courts will first determine whether the conditions of the search are reasonably related to the goals of the parole or probation system and then consider whether officers complied with them. 73 notes