Drug Testing of Probationers as a Warrantless Search

The principal probation reform bill (S.L. 2009-372 [S 920], summarized here) went into effect on December 1. Since then, I’ve received a number of questions about it, many of them from probation officers. One of their main concerns relates to the way some of the amendments to the law are reflected in the new AOC forms for suspended sentences. A recurring question involves drug testing.

The new law requires probationers, as a default regular condition of supervised probation, to submit to warrantless searches by probation officers – so long as the searches are “for purposes directly related to the probation supervision” – and in certain circumstances, by law enforcement officers. It also makes it a regular condition that probationers may not use, possess, or control illegal drugs or associate with those who do. Under prior law, a nearly identical version of the probation officer search condition and an identical version of the “use, possess, or control” condition were special conditions of probation under G.S. 15A-1343(b1)(7) and -1343(b1)(8), that the judge could add by checking boxes #13 and #14 on old form AOC-CR-604, page 1, side two.

But another related special condition was also available on the old form: #15, “Supply a breath, urine and/or blood specimen for analysis of the possible presence of a prohibited drug or alcohol, when instructed by the defendant’s probation officer.” It’s not on the new form, which has led some officers to ask me whether drug testing can still be added as a special condition.

Unlike special conditions #13 and #14 on the old form, #15 was not one of the statutory special conditions in G.S. 15A-1343(b1). Instead, it was an ad hoc condition (added pursuant to the judge’s authority under G.S. 15A-1343(b1)(10)to add conditions reasonably related to the probationer’s rehabilitation) that was used often enough that it merited a spot on the form. In that sense, the change to the form is not reflective of a change in the law – drug testing wasn’t a statutory condition before December 1, and it still isn’t. With that in mind, I don’t see any reason a drug testing condition can’t be added next to box #20, “Other,” as an ad hoc condition.

The question is, do you really need to do that? Or is the now-regular warrantless search condition broad enough to take care of that on its own? Drug testing is, after all, a kind of search. See Schmerber v. California, 384 U.S. 757 (1966) (blood testing for alcohol); California v. Trombetta, 467 U.S. 479 (1984) (intoxilyzer testing). The new condition (like the old one) even includes the following language: “Whenever the warrantless search consists of testing for the presence of illegal drugs, the probationer may also be required to reimburse [DOC] for the actual cost of drug screening and drug testing, if the results are positive.” G.S. 15A-1343(b)(13). Thus, the condition clearly contemplates drug tests as one kind of search that may be done without a warrant.

I’m not sure, though, whether the warrantless search condition allows an officer to test for drugs randomly, or whether something like reasonable suspicion might be required for the condition to kick in. Jeff considered a version of that question many months ago here, and I discussed it on page 5 of the document available here. To sum up our collective thoughts: it’s not crystal clear as a matter of statutory construction whether the condition is meant to allow fully suspicionless searches, but the Fourth Circuit Court of Appeals recently gave a strong signal in United States v. Midgette, 478 F.3d 616 (4th Cir. 2007), that such searches would pass constitutional muster in light of the “special needs” of probation supervision.

Given this uncertainty, a court that means for a probationer to be subject to random drug testing at a probation officer’s request might do well to say so explicitly in an ad hoc special condition. (Such conditions have, by the way, generally been upheld, see, e.g., State v. McCoy, 45 N.C. App. 686 (1980) (albeit on a questionable rights-waiver rationale), although courts sometimes emphasize the need for a connection between the condition and the crime or the defendant’s prior history of substance abuse, see, e.g., United States v. Cervantes, 420 F.3d 792, 796 (8th Cir. 2005).) I can also imagine cases where the judge might want to strike the now-regular warrantless search conditions (which allow a broad spectrum of searches), and add back a narrower special condition requiring drug testing in box #20.

Finally, two practical concerns. First, keep in mind that you will most likely be using the old forms for at least a little while. The new conditions apply to those on probation for offenses committed on or after December 1, 2009, and it will take some time for the pre–December 1 cases to work their way through the system. The old forms (the “3/09” version) are still available electronically. Second, when it comes time to use the new form, be careful what numbers you reference when adding special conditions — the conditions aren’t numbered the same on the new forms, and you may be inadvertently adding things you don’t mean to add.