By Jane Rydholm
The Fourth Amendment to the U.S. Constitution and the constitutions of many states protect people from unreasonable searches and seizures. These constitutional rules mean that a police officers typically need a specific indication of criminal activity or evidence before conducting a search. Often, they need a warrant.
But when people get out of prison on parole, they agree to comply with certain conditions. State laws often specify the conditions. And a common condition is that the parolee has to submit to searches by law enforcement.
Very few cases in the federal system involve parole—in its place now is supervised release, which also carries conditions. Federal statutes give courts discretion to create special conditions for people on supervised release, and submitting to warrantless searches can be one such condition. (U.S. v. Hanrahan, 508 F.3d 962 (10th Cir. 2007); 18 U.S.C. § 3583(d).)
Courts often consider parolees to be in “constructive custody” of the government. In other words, courts have the view that the government has control over parolees even though the former prisoners are out in society. And courts believe that the government has a valid interest in keeping tabs on its parolees. So, warrantless searches that would have been illegal had ordinary citizens been involved are often lawful where parolees are the subjects.
Another rationale for allowing warrantless, suspicionless searches of parolees is the perspective that parole is a privilege rather than a right. Parole doesn’t come automatically: Inmates typically become eligible for it and then have to be granted it. Along these lines, most courts find that parolees have less of a right to privacy than other members of society. (U.S. v. Massey, 461 F.3d 177 (2nd Cir. 2006); Samson v. California, 547 U.S. 843 (2006).)
Search conditions typically say that former offenders agree to submit to searches of themselves, their residences, and their vehicles or property. Courts might find that searchable “property” includes electronic possessions, like an email account. (Sullivan v. Bunting, 975 N.E.2d 999 (Ohio 2012).)
Sometimes a parole search must be based on “reasonable cause” or “reasonable suspicion” of unlawful activity. Often, though, the search doesn’t require that kind of basis. Law enforcement generally can’t, however, perform searches just to harass.
While search conditions often list the supervising officer as the one who may conduct searches, other law enforcement officers may also be allowed to perform them. Even when an agreement doesn’t specifically authorize searches by other members of law enforcement, a court might determine that police officers may conduct searches that supervising officers could. (For example, see U.S. v. Woodland, 607 F.Supp.2d 904 (C.D. Ill. 2009).)
Example: Sam is a parolee. His state's law says that every parolee “shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” An officer sees Sam on the street. The officer knows Sam is on parole, but asks him whether he has an outstanding warrant. Sam says “no,” and the officer makes a call. The officer confirms that there is no warrant. The officer then searches Sam anyway. During the search, he finds a bag of methamphetamine. The search doesn’t violate Sam’s constitutional rights: The officer was allowed to search him because of his parole condition. (Samson v. California, 547 U.S. 843 (2006).)
If you are on parole or supervised release, you might be wondering about the contents of your release agreement and the laws regarding searches in your jurisdiction. Especially if you’ve been accused of violating parole or the law, an experienced attorney is a good bet for an explanation of the rules, your rights, and your options.