North Carolina’s Warrantless Search Conditions

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In North Carolina, probationers, post-release supervisees, and parolees are subject to warrantless searches—sometimes by a probation-parole officer, sometimes by law enforcement officers. The statutory conditions that apply to each type of offender and officer are not identical. Today’s post collects them all in one place. Before getting into any of the complicated issues about the constitutionality of a warrantless search of a supervised offender, a sensible starting point is a careful look at the language of the search condition itself.

Probationers. Since 2009, all supervised probationers are subject to two warrantless search conditions, one for searches by a probation officer, and the other for searches by law enforcement officers. These are regular conditions of probation. That means they apply by default in every supervised probation case (felony or misdemeanor; community or intermediate; post-conviction, conditional discharge, or deferred prosecution) unless the judge says otherwise.

The probation officer search condition, G.S. 15A-1343(b)(13), allows for warrantless searches by a probation officer at reasonable times of the probationer’s person and of his or her vehicle and premises while the probationer is present. The search must be “directly related to the probation supervision.” The statutory condition does not say whether the officer must have any particular level of suspicion before conducting the search, although reasonable suspicion would suffice, United States v. Knights, 534 U.S. 112 (2001), and there is some support in the case law for suspicionless searches, see Samson v. California, 547 U.S. 843 (2006) (upholding a suspicionless warrantless search of a parolee); United States v. Midgette, 478 F.3d 616 (4th Cir. 2007) (suggesting that suspicionless probation searches would be constitutional as part of a reasonably tailored program).

The law enforcement officer condition, G.S. 15A-1343(b)(14), allows for searches of the probationer’s person and vehicle (not premises) by a law enforcement officer, but only upon a reasonable suspicion that the probationer is engaged in criminal activity or is in possession of a firearm or deadly weapon without written permission from the court. The statute does not require the probationer (or the probation officer) to be present for the search, and, unlike the probation officer search condition, does not expressly say that the search must be done at reasonable times.

Sex offenders. Sex offender probationers are subject to an additional search condition, G.S. 15A-1343(b2)(9), allowing warrantless searches by a probation officer at reasonable times of the probationer’s person and of his or her vehicle and premises while the probationer is present. The search must be “for purposes specified by the court” (which is why the AOC forms have a check-box for “child pornography” and a space for any other purpose the court might like to specify) and “reasonably related to the probation supervision.” That condition mostly overlaps with the regular probation officer search condition, but it includes additional language authorizing “searches of the probationer’s computer or other electronic mechanism.” Of course, a negative inference of the express statement about computers and electronic devices in this special condition is that the regular search conditions for non–sex offenders do not allow for that kind of search without a warrant.

Post-Release Supervisees. Post-release supervisees are subject to only one statutory search condition: G.S. 15A-1368.4(e)(10), which requires the supervisee to submit at reasonable times to searches by a post-release supervision officer (which is really the same as a probation-parole officer) of the supervisee’s person for purposes reasonably related to PRS. The statutory condition goes on to say that if the search is a drug test, the supervisee may be required to reimburse the Division of Adult Correction for the costs of the test if it is positive.

Though the lone statutory condition mentions only searches of the supervisee’s person, the Post-Release Supervision and Parole Commission routinely adds a discretionary condition (under authority of G.S. 15A-1368.4(c)) requiring the supervisee to “[s]ubmit at reasonable times to searches of my person, premises, or any vehicle under my control by a probation-parole officer for purposes reasonably related to my supervision.”

That discretionary condition used to provide only for searches by “my probation-parole officer.” The Commission recently revised it in response to a federal district judge’s order suppressing the fruits of a search conducted by probation officers other than the offender’s supervising officer. United States v. Irons, No. 7:16-CR-00055-F-1, 2016 WL 7174648 (E.D.N.C. Dec. 7, 2016). Judge Fox concluded in that case that the search was not done for purposes reasonably related to Mr. Irons’ supervision when it was done as part of a joint law enforcement initiative, and was neither conducted nor supervised by his actual supervising officer. The judge also found that the search was not done at a reasonable time when officers entered his residence before sunrise.

No law enforcement officer search condition for PRS. There is no statutory PRS condition allowing searches by a law enforcement officer, and the Commission does not generally add a discretionary condition to that effect.

Sex offenders. Sex offenders on PRS are subject to a statutory condition allowing searches by a post-release supervision officer of the supervisee’s person and of his or her vehicle and premises while the supervisee is present. Like the probationer sex offender search condition, the PRS sex offender condition expressly allows for searches of the supervisee’s computer and other electronic mechanisms.

Parolees. The parole statutes allow for a discretionary condition requiring parolees to submit to warrantless searches by a parole officer of the parolee’s person and of his or her vehicle and premises while the parolee is present. For sex offender parolees, the condition covers computers and electronic mechanisms. G.S. 15A-1374(b). The Commission routinely applies the same search conditions to parolees that it applies to post-release supervisees, as described above. There is not generally any parole condition added requiring the parolee to submit to warrantless searches by a law enforcement officer.

Law enforcement officer assistance with probation officer searches. Reviewing the conditions outlined above, you can see that probation officers can sometimes do searches that law enforcement officers cannot. By policy and training, however, probation officers routinely ask law enforcement officers for assistance with searches. While probation officers should not serve as a “stalking horse” through which law enforcement officers circumvent the Fourth Amendment, it is fine for law enforcement officers to help—as long as the probation officer exercises his or her independent judgment about the ultimate need to conduct a search. Aside from the situation in Irons (which turned at least in part on the language of the condition in question), courts generally uphold those arrangements. That is true even when the initial tip prompting the search came from the law enforcement officers themselves, State v. Robinson, 148 N.C. App. 422 (2002); State v. Howell, 51 N.C. App. 507 (1981), and when law enforcement officers outnumber the probation officer conducting the search, State v. Church, 110 N.C. App. 569 (1993) (nine law enforcement officers to one probation officer).

5 comments on “North Carolina’s Warrantless Search Conditions

  1. I don’t ever see it discussed, so perhaps it is an argument that has already been examined and rejected, but it has always seemed to me that the language requiring probationers to “submit to warrantless searches” could be (or perhaps should be) read as merely setting forth another basis for violation if the probationer failed to so submit. In other words, PO requests submission to warrantless search, probationer refuses, probationer is charged with violation of his probation for failure to submit, but no search occurs without issuance of a search warrant or some other independent grounds for a warrantless search. Has this been specifically addressed? Have the Courts deemed probationers as having irrevocably given up Fourth Amendment protections as a condition precedent to being granted the privilege of probation? I suppose I could do some case law research, but it’s Friday, after all, and I figured you might just know right off the top of your head.

  2. Interesting and informative as always-thank you! I’m interested on your take in a fairly commonly asked question of whether the probationer can deny a probation officer’s entry or request to enter his/her premises to conduct a warrantless search? Is the probation officer justified in searching over objection or must the probation officer refrain from searching and proceed with a violation for refusal to submit to the warrantless search condition? Thanks

  3. “The Commission shall not require as a condition of post-release supervision that the supervisee submit to any other searches that would otherwise be unlawful.”
    Jamie, if that language is in 1368.4(3)(10), then why are they able to routinely add and expand another search condition in their discretion? I think there’s an argument that the commission isn’t exercising its discretion if they add it as a matter of course. But this language directly in the statute sounds to me like it was specifically restricting them from doing exactly what they’re accomplishing through the discretionary condition.

  4. (e)(10, sorry.

  5. An issue that has arisen, but not been resolved that I have seen is the validity of these searches as against another person not on probation. For example: A vehicle occupied by a probationer and a non-probationer is searched pursuant to the probationer’s status. Evidence is found that the State seeks to get admitted against the non-probationer. From what I have seen, this is not going to be a rare occurrence.

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