The News and Observer ran a story today about a piece of proposed legislation that would allow any law enforcement officer to search any probationer, for any reason, at any time. The story is here, and the proposed legislation itself is available here. In essence, it would remove G.S. 15A-1343(b1)(7), which gives judges the option of imposing, as a special condition of probation, a requirement that the probationer submit to warrantless searches by a probation officer “for purposes . . . reasonably related to [the probationer's] probation,” and it would add a new standard condition of probation that would require all probationers to submit to warrantless searches by any law enforcement officer, without any limit as to the purpose of the searches. A professor quoted in the newspaper article questioned the constitutionality of the proposal, which got me thinking that this would be a good time to review the law regarding searches of probationers.
There are two Supreme Court cases in this area. Griffin v. Wisconsin, 483 U.S. 868 (1987), upheld the constitutionality of a Wisconsin regulation that permitted probation officers to search probationers’ homes for supervisory purposes without a warrant and based only on reasonable suspicion. In the Court’s view, requiring a warrant would be too cumbersome and would undermine probation officers’ ability, and “special need,” to supervise offenders. United States v. Knights, 534 U.S. 112 (2001), upheld a warrantless search of a probationer’s residence that was supported only by reasonable suspicion, even though the search was conducted for investigative, rather than supervisory, purposes. The Court held that probationers have a reduced expectation of privacy, and that society has an unusually strong interest in searching probationers; together, it said, these two factors permit probationers to be searched based only on reasonable suspicion and without a warrant, even for investigative purposes.
Because current G.S. 15A-1343(b1)(7) allows searches only by probation officers and only for supervisory purposes, it is somewhat similar to the regulation at issue in Griffin, and its constitutionality hasn’t been challenged much. The main difference is that the Wisconsin regulation required reasonable suspicion, while our statute appears to allow totally suspicionless searches. In United States v. Midgette, 478 F.3d 616 (4th Cir. 2007), the Fourth Circuit held that this difference was immaterial, because the “special needs” rationale articulated in Griffin allows completely suspicionless searches. To my surprise, this issue doesn’t seem to have been decided by our appellate courts. It might draw renewed attention if the proposed legislation passes, because the legislation allows people who aren’t probation officers, and so arguably don’t have a “special needs” basis for searching probationers, to do so without reasonable suspicion. The Court in Knights explicitly declined to rule on whether suspicionless investigative searches of probationers violate the Fourth Amendment, so it is an open question.
The Court in Knights also declined to address whether a probationer, by agreeing to the probation contract, has effectively waived his Fourth Amendment rights to the extent described in the probation conditions. It was able to resolve the case without reaching that issue, and it is a thorny one. Certainly such rights are waivable, and if the proposed legislation passes, one can easily imagine the state relying on a waiver theory to defend it. But there’s a serious question about whether a waiver as part of a probation contract is voluntary under the circumstances; a leading commentator thinks not, though most courts to consider it have so far said that it is. See generally Wayne R. LaFave, Search and Seizure s. 10.10(b).