Probationers, parolees, and the fourth amendment.

When individuals are convicted of crimes, they are subject to a number of punishments chosen by the court. These punishments range from benign restrictions, such as community service, to extreme measures, such as solitary confinement in a maximum security prison. Parole and probation are two punishments between these extremes.

Probation is a sentence imposed upon a person after conviction, releasing the person into society in lieu of a prison term. (1) Parole, on the other hand, is the release from prison after actually serving part of a sentence. (2) Both sentences are provisional, depending upon the person's compliance with terms and conditions imposed by the court.

This article explores the extent to which probationers and parolees are protected by the restrictions of the Fourth Amendment to the U.S. Constitution. (3) Some courts have said that probationers and parolees are in different positions regarding constitutional protections. The distinction is made because parolees have been sentenced to prison, served part of their sentences, and then released, indicating a court's decision that parolees merit actual incarceration for their crimes. With probationers, however, courts have decided that their actions do not merit actual incarceration, indicating a decision that probationers pose less danger to the community. As one court put it, "... parole is the stronger medicine; ergo, parolees enjoy even less of the average citizen's absolute liberty than do probationers." (4) While the difference is real, courts tend not to distinguish between parolees and probationers when analyzing their Fourth Amendment protections. (5) The principles discussed in this article apply to both.

LIMITED CONSTITUTIONAL RIGHTS

A logical starting point in this inquiry is to ask whether probationers and parolees are protected by the Constitution at all. The answer to the question is yes, but with limitations. For example, the U.S. Supreme Court has decided that parolees are entitled to limited Fifth Amendment due process rights before having their parole revoked. (6) The Court also has recognized that "[t]o a greater or lesser degree, it is always true of probationers (as we have said it to be true of parolees) that they do not enjoy 'the absolute liberty to which every citizen is entitled, but only ... conditional liberty properly dependent on observation of special [probation] restrictions.'" (7)

The legal basis for denying probationers and parolees full constitutional protections has varied over the years, (8) In the case of parolees, many courts adopted the "constructive custody" theory. This theory holds that parolees remain in the custody of the state while on parole and, therefore, are entitled to only the same limited Fourth Amendment rights as inmates. (9) This legal fiction, however, has been discredited. The Supreme Court hinted at its view of the "constructive custody" theory in a case involving the search of a probationer's home: "Although the parolee is often formally described as being 'in custody,' the argument cannot even be made here that summary treatment is necessary as it may be with respect to controlling a large group of potentially disruptive prisoners in actual custody." (10)

Some courts have adopted the "act of grace" theory. Under this theory, probationers and parolees are viewed as free only through an "act of grace" of the state or, alternatively, through a grant of privilege by the authorities. (11) Because of their status, the theory goes, probationers and parolees cannot complain about the conditions established for their freedom, even a reduction or elimination of certain constitutional rights. This theory too has been discredited in recent years. The Supreme Court observed: "It is hardly useful any longer to try to deal with this problem in terms of whether the parolee's liberty is a 'right' or a 'privilege.' By whatever name, liberty is valuable and must be seen as within the protection of the Fourteenth Amendment." (12)

Another legal theory used to justify the limitation of constitutional rights of probationers and parolees is express waiver, or consent. Commonly, probationers and parolees are required to acknowledge and accept certain conditions prior to their release into the community. Among the conditions is the agreement to submit to searches by various authorities under varying conditions. As with the "constructive custody" and "act of grace" theories, the express waiver, or consent theory, is an unsatisfactory basis for justifying probation and parole searches. (13) This issue will be discussed in more detail below.

A FOURTH AMENDMENT PRIMER

Before examining the Supreme Court's view of searches of probationers and parolees, a brief review of Fourth Amendment law is appropriate. The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches. Unfortunately, the concepts of "unreasonable" and "search" as used in the Fourth Amendment never were defined when it was adopted. The Supreme Court struggled with these constitutional definitions for many years. Finally, in 1967, in the famous case of Katz v. United States, (14) the Supreme Court formulated the modern definitions of "search" and "unreasonable." The Court said that a Fourth Amendment search occurs whenever the government intrudes into an individual's reasonable expectation of privacy. (15) Justice Harlan, in a concurring opinion, established a useful two-prong test to determine if a reasonable expectation of privacy exists: 1) Do individuals have an actual (subjective) expectation that their activities will remain private? and 2) Is their subjective expectation of privacy one that society is willing to accept as reasonable (objectively reasonable)? (16) If the answer to both questions is yes, then a reasonable expectation of privacy exists, and any governmental invasion of that expectation is a search for Fourth Amendment purposes.

However, the Fourth Amendment does not prohibit all government searches, only unreasonable ones. Assuming the government does conduct a search as defined in Katz, is it reasonable or unreasonable? Unlike the question of whether a search has occurred, which can be difficult, the question of the reasonableness of the search usually is straight forward. If the search is conducted with probable cause and under the authority of a search warrant, or one of the recognized exceptions to the warrant requirement, the search is reasonable for Fourth Amendment purposes. (17)

The Supreme Court has recognized, however, that there are circumstances in which its preference for searches based upon probable cause and conducted under the authority of warrants is impracticable. These cases often are referred to as "special needs" cases. For example, police officers' search (frisk) of persons they reasonably suspect to be armed is permissible without a warrant. (18) Likewise, the Court has held that public employers may conduct warrantless work-related searches of public workplaces without probable cause; (19) investigators may conduct regulatory searches in accordance with a regulatory scheme without the usual warrant and probable cause requirements; (20) and school officials may search some student property without a warrant or probable cause. (21)

THE SUPREME COURT'S VIEW

In 1972, the Supreme Court decided the case of Morrissey v. Brewer. (22) While this case involved the application of Fifth Amendment due process to parole revocation hearings (it does apply), several comments made by the Court bear on its later discussion of Fourth Amendment rights of probationers and parolees.

The Court recognized without much discussion that parolees and, by analogy, probationers are different from ordinary citizens. Because of their unique position, states lawfully may impose restrictions upon parolees and probationers that otherwise would be unlawful if applied to ordinary citizens. (23) This is not to say, however, that parolees and probationers have no constitutional rights. The Court stated in Morrissey: "By whatever name, the liberty [of the parolee] is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal." (24)

The Morrissey opinion also recognized the unique character of the parole and probation systems. Conditions of parole have a dual purpose, according to the Court. They prohibit behavior that poses both a danger to the public and to the parolee's completion of the term of parole, as well as provide a mechanism for the parole officer to guide the parolee back into society. The Court recognized the parole officer as part of an "administrative system designed to assist parolees and to offer them guidance." (25) This characterization of the parole system as administrative in nature, rather than penal, set the stage for the Court's later analysis of the reasonableness of parole and probation searches.

In Griffin v. Wisconsin, (26) a 1987 case, the Supreme Court squarely faced the issue of the reasonableness of a search of a probationer's home. Joseph Griffin was convicted of a crime and placed on probation in the custody of the Wisconsin Department of Health and Social Services. A department regulation permits a probation officer to search a probationer's home whenever a supervisor approves and there are "reasonable grounds" to believe contraband is present. (27) While Griffin was on probation, a probation officer received information from the police that there "were or might be" (28) guns in Griffin's apartment. A warrantless search of the apartment, conducted by probation officers in accordance with Wisconsin probation regulations, located a handgun. Griffin was charged with possession of the weapon, a felony under Wisconsin law. He moved to suppress the gun, alleging an illegal search.

The trial court denied the suppression motion, and Griffin was convicted. The state supreme court affirmed, reasoning that probation reduced Griffin's reasonable expectation of privacy, permitting probationer officers to search without a warrant and on less than probable cause. It decided that Wisconsin's "reasonable grounds" standard satisfied the Fourth Amendment requirement and that the search was conducted with sufficient information to establish "reasonable grounds." (29)

The Supreme Court affirmed the Wisconsin Supreme Court, but on slightly different grounds. In its opinion, the Supreme Court built on the theoretical groundwork established in Morrissey. The Court first unequivocally stated that probationers' homes are protected by the Fourth Amendment, and, therefore, searches of their homes must be reasonable. (30) However, a state probation system presents "special needs beyond normal law enforcement" (31) that justify an exception to the Court's usual requirements of both a warrant and probable cause for reasonable searches. The Court favorably compared a state's operation of a parole system to the operation of a school, a government office, or a prison or its supervision of a regulated industry, where it has recognized exceptions to the warrant and probable cause requirements in the past.

In the opinion of the Court, requiring probation officers to get warrants before they search probationers' homes would interfere with the operation of the probation system. It would make a magistrate, rather than the probation officer, the judge of how much supervision probationers need and would foreclose quick action by the department when it learns of possible probation violations. The Court also was concerned that requiring a warrant would reduce the deterrent effect of quick searches. (32) A probable cause requirement also would reduce the deterrent effect of the probation program and would interfere with the supervisory relationship between officer and probationer. (33) In summary, the Court concluded that the search of Griffin's apartment was reasonable under the Fourth Amendment, although done without a warrant and based upon less than probable cause (reasonable grounds), because it was made in accordance with a valid state regulation that itself complied with the Fourth Amendment.

Before examining the Supreme Court's most recent case dealing with probation and parole searches, several points made in the Griffin decision should be emphasized. They will bear upon a discussion of recent issues regarding these searches later in this article.

The Court made it clear that it approved of this search on "reasonable grounds," a standard lower than probable cause, because it was conducted pursuant to a regulatory scheme with a nonlaw enforcement purpose that was itself constitutionally valid. In doing so, it deferred to the Wisconsin Supreme Court's decision that officers had sufficient information to constitute "reasonable grounds" as required by the state regulatory scheme and declined to review that determination. That leaves open the question of whether states are free to choose a different, or even lower, standard than reasonable suspicion for probation searches when creating their probation or parole regulatory schemes. (34)

The Griffin holding also makes it clear that the conditions of parole or probation established by a state's regulatory scheme are important. States apparently are free to give probationers and parolees more or less protection so long as the scheme does not offend the Constitution. When judging the reasonableness of any search conducted pursuant to such a regulatory scheme, courts are likely to view officers' compliance with those regulations as part of the reasonableness inquiry.

Despite the fact that three plainclothes police officers were present during the search of Griffin's apartment, the Court noted that the search was conducted entirely by probation officers under the authority of Wisconsin's probation regulation. It emphasized the supervisory relationship between probationers and their probation agents--"one that is not, or at least not entirely, adversarial...." (35) The Court dispensed with its warrant and probable cause requirements because of states' special needs beyond normal law enforcement when administering their probation and parole systems. This distinction between law enforcement and probation (and parole) programs continues to be a subject of legal debate.

Finally, the Court specifically refused to endorse the view that any search of a probationer's home is lawful when justified by reasonable grounds to believe contraband is present. The Griffin holding is limited to searches conducted pursuant to a valid regulatory scheme, leaving unresolved the question of the reasonableness of searches of probationers' homes conducted in the absence of a valid regulatory scheme.

Recently, the Supreme Court again faced the issue of searches of probationers' homes. In United States v. Knights, (36) the defendant was placed on probation for a drug offense. As a condition of probation, he agreed to "[s]ubmit his ... person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest, or reasonable cause by any probation officer or law enforcement officer." (37) Subsequently, a police officer, aware of the search condition in Knights' probation order, developed reasonable suspicion (38) that Knights was involved in an arson. The officer searched Knights' residence without a warrant and found evidence of arson. The search was conducted without the knowledge, authorization, or participation of Knights' probation officer. Knights was indicted on federal charges of conspiracy to commit arson and other crimes. He moved to suppress the evidence found in his residence, alleging the search violated the Fourth Amendment. The trial court granted the motion because it determined that the search was conducted for "investigatory," rather than "probationary" purposes, and the U.S. Court of Appeals for the Ninth Circuit affirmed. (39)

The Supreme Court reversed the holding of the Ninth Circuit, ruling that the officer's search was reasonable under the Fourth Amendment. The Court used the Fourth Amendment balancing test to determine the reasonableness of this search: "... the reasonableness of a search is determined 'by assessing on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.'" (40) The Court concluded that Knights' probation condition regarding searches significantly reduced his reasonable expectation of privacy. On the state's side of the balance, the search condition reasonably furthered Knights' rehabilitation and protected the public from his possible future criminal activity. (41) Given that balance, the Court concluded that this search, based upon reasonable suspicion and conducted without a warrant, was reasonable. (42)

It is important to note that the Knights case differs markedly from the Griffin case in several important respects. In Griffin, the Court reviewed a state regulatory scheme that set out specific procedural rules for probation officers to follow when conducting searches of probationers' homes and even established what factors they may consider when developing reasonable grounds for searches. In Knights, the Court was not reviewing such a scheme, but simply applying general Fourth Amendment principles to a situation where a court had imposed search conditions on a probationer's release.

In Griffin, the Court was considering a state regulation that provides for searches of probationers' homes so long as reasonable grounds exist to believe that contraband is present. Knights, on the other hand, was released after agreeing to a condition permitting both probation and law enforcement officers to search for any, or no, reason. The government argued that the facts indicated that Knights consented to the search in question by accepting the broadly worded condition. In Knights, the Court declined to consider whether the search condition amounted to consent or even if the search condition reduced or eliminated Knights' expectation of privacy so that a suspicionless search would be permissible. (43)

Finally, Griffin involved a search conducted by probation officers as part of their probation duties. Knights involved a search by a police officer as part of a criminal investigation, but knowing that Knights was subject to a search condition as part of his probation.

SEARCHES OF THE PERSON

The Supreme Court cases reviewed earlier deal with searches of probationers' and parolees' homes. The Court has not spoken directly on the issue of searches of their persons, and federal case law is sparse. However, the application of the general principles established by the Court point to the same conclusion: searches of the persons of probationers and parolees may be done without a warrant and on less than probable cause in appropriate circumstances. As part of a regulatory or administrative scheme with a nonlaw enforcement purpose (the Griffin view), the government can argue that drug testing is necessary to assure the rehabilitation of probationers and parolees and to protect the public. Under general Fourth Amendment balance of interests principles (the Knights view), states can argue that probationers and parolees released with search conditions have a reduced expectation of privacy.

Courts generally have no problem enforcing drug testing for probationers and parolees. It is especially reasonable in cases where the underlying conviction is drug related. (44) Even where probationers and parolees have no history of drug use, courts are willing to enforce drug-testing conditions to ensure compliance with a general prohibition against violating the law (45) or a general prohibition against drug use. (46)

More intrusive warrantless body searches also can be justified under the same rationales. For example, in United States v. Thomas, (47) the U.S. Court of Appeals for the Second Circuit upheld a warrantless search of a parolee's person and clothing. Upon discovering that Thomas had a 14-year-old narcotics conviction, during an office visit, his parole officer asked him to remove his jacket, roll up his shirt sleeves, and extend his arms. Seeing recent puncture marks, the officer had Thomas stand and face the wall while he frisked him and searched his trouser pockets. The parole officer then searched Thomas' jacket and found narcotics paraphernalia and several U.S. Treasury checks.

In approving the searches, the court used a combination of the two theories discussed earlier. The court first noted that Thomas' expectation of privacy was lowered because he had acknowledged a search condition as part of his parole agreement. (48) In addition, the court concluded that Thomas' expectation of privacy was diminished even further by the fact that he was in his parole officer's office at the time of the search. (49) Citing Morrissey v. Brewer, the court then said that a parole officer is charged with both guiding the parolee into constructive development and protecting the public. To do that, the court recognized that parole officers must have investigative powers, such as the search in this case, to gather information regarding their clients. (50)

SEARCHES OF VEHICLES

Federal courts and most state courts. (51) have long treated motor vehicles differently from persons and residences. The way in which vehicles are used and the comprehensive way in which states regulate them have led to the recognition that people have reduced expectations of privacy in their motor vehicles. Consequently, the general rule in federal courts is that officers may search a motor vehicle without a search warrant if they have probable cause to believe evidence or contraband is inside. (52) Given this reduced expectation of privacy generally, courts have little problem justifying warrantless searches of probationers' and parolee' vehicles on less than probable cause under either the regulatory/administrative search theory or the Fourth Amendment balance of interest test. (53)

CURRENT ISSUES

In keeping with its usual practice, the Supreme Court has decided probation and parole cases on the narrowest grounds possible. As a result, it has left open some important questions regarding searches of probationers and parolees.

Suspicionless Searches

The Supreme Court has declined to decide whether there are circumstances in which probationers and parolees may be subject to searches with no factual basis whatever. (54) There are three legal theories that can be advanced to support such suspicionless searches.

1) Consent

Some argue that probationers and parolees consent to suspicionless searches as a condition of their release. Unfortunately, the Supreme Court has declined to decide the issue on two separate occasions, (55) and predicting how the Court will decide an issue always is risky business. However, it seems unlikely that the Court would condone suspicionless searches on this consent theory.

Consent must be freely and voluntarily given. (56) It is difficult to argue with a straight face that someone given a choice between freedom, even severely restricted freedom, and incarceration would freely and voluntarily choose incarceration. A prominent legal commentator agrees and has criticized the consent theory as justification for suspicionless parole and probation searches. (57) The U.S. Court of Appeals for the Ninth Circuit also recently dismissed the theory: "To call this choice--either waiver or certain incarceration--'free and voluntary' would be to misconceive the concept of meaningful consent." (58)

2) Special Needs

A second theory that might be used to justify suspicionless searches of probationers and parolees is the "special needs" theory as set out by the Supreme Court in Griffin v. Wisconsin. To review, in that case the Court recognized that state parole or probation systems represent special needs that are not primarily a law enforcement function. The function of those systems is to reintegrate criminals into society while, at the same time, ensuring that the public is protected from the real possibility that probationers and parolees could reenter a life of crime. Under these circumstances, the Court said that the Fourth Amendment probable cause and warrant requirements may be dispensed with and may even hinder the goals of probation and parole. Consequently, so long as probation or parole searches are conducted in accordance with the requirements of probation and parole regulations, meet constitutional requirements, and are reasonably related to the goals of probation or parole, no warrants are required, and searches may be conducted on less than probable cause. In the Griffin case, the Wisconsin regulation authorized warrantless searches of probationers' homes upon reasonable grounds to believe that contraband is present. The Court ruled that regulation passes constitutional muster.

As noted previously, the Griffin opinion seems to leave open the question of how low a standard state parole or probation regulations may establish to justify searches of participants. (59) Arguably, a state could decide that such searches may be conducted at anytime and for any or no reason. However, this issue is still in doubt.

In Griffin, the Supreme Court recognized that the supervision of parolees is a special need of the states permitting a "degree of impingement upon privacy that would not be constitutional if applied to the public at large. That permissible degree is not unlimited, however ..." (60) That language implies that states' regulatory schemes may not authorize unlimited invasions into their probationers' and parolees' privacy rights. The Court refused to consider the issue in the Knights case.

California has adopted this broad approach. It requires that its parolees accept a parole condition requiring them to submit to search or seizure by law enforcement officers "at any time of the day or night, with or without a search warrant, and with or without cause." (61) In reviewing this condition in a recent appeal, a majority of a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled that a warrantless search of a parolee's home on less than reasonable suspicion violated the Constitution. (62) In a dissenting opinion, one judge forcefully argued that this search was reasonable under California's parole scheme. (63)

3) Fourth Amendment Law

Another way to analyze the question of suspicionless parole or probation searches is under basic Fourth Amendment principles. This is the approach the Supreme Court used in the Knights case.

In Knights, the Supreme Court applied this general Fourth Amendment balancing test to a police officer's search of a probationer's apartment. It decided that upon a review of the "totality of the circumstances," (64) Knights' expectation of privacy in his residence was greatly diminished by virtue of his probation status, as well as his acceptance of California's parole search condition. On the other side of the equation, the state had a very high interest in attempting to rehabilitate Knights and protecting the public from the very real possibility that he could slip back into a life of crime. The Court decided that in these circumstances, it is reasonable to permit police officers to search probationers' homes without a warrant, based upon a reasonable suspicion to believe evidence of criminal activity will be round. While the Court in Knights had the opportunity to decide whether a parole or probation condition can totally extinguish an expectation of privacy, thereby permitting suspicionless searches, it did not do so.

Conclusion

Can probationers and parolees be searched for no reason? Unfortunately, there is no final answer to the question because the Supreme Court has not spoken on the issue. However, the weight of the current case law is against suspicionless searches, requiring some factual justification to search probationers and parolees. (65)

The "Stalking Horse" Problem

When dealing with the issue of parole or probation searches, courts often face questions regarding the motivation of the officers conducting them. The allegation is that probation and parole officers, when conducting searches, are not acting in their capacities as officers of the parole or probation systems, but as surrogates for police. In other words, the searches are being conducted not to further the goals of probation or parole, but for law enforcement purposes, as a way to avoid the requirements of probable cause and warrants. In these situations, defendants allege that probation and parole officers are acting as "stalking horses" for the police.

Prior to the Knights case in the Supreme Court, many federal circuit courts of appeal recognized this argument and looked at the motivation behind parole and probation searches. (66) However, the "stalking horse" theory may have suffered a fatal blow in the Knights case.

Knights involved a warrantless search of a probationer's apartment by a police officer (not a probation officer) based upon the officer's reasonable suspicion that Knights was involved in arson. The officer was aware of Knights' probation status from prior investigation. The district court found that the officer had reasonable suspicion to believe Knights was involved in criminal activity, but suppressed the evidence found because the search was investigative in nature, rather than probationary. The Ninth Circuit affirmed. (67)

The Supreme Court reversed. It concluded that the search of Knights' apartment was reasonable under an ordinary Fourth Amendment analysis: "When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly reduced privacy interests is reasonable. The same circumstances that lead us to conclude that reasonable suspicion is sufficient also render a warrant requirement unnecessary." (68) The Court declined to consider the question of the officer's motivation for conducting the search, noting that except in some "special needs" cases and administrative search cases, (69) the Court is unwilling to "entertain Fourth Amendment challenges based upon the actual motivations of individual officers." (70)

Citing Knights, the U.S. Court of Appeals for the Tenth Circuit recently held that even assuming a search by probation officers is a subterfuge for law enforcement, it is still reasonable under the Fourth Amendment if the officers possess the requisite reasonable suspicion that contraband is present or that a crime is occurring. (71) In addition, the U.S. Court of Appeals for the Second Circuit recently said that the "stalking horse" theory is not a valid defense in that circuit, (72) and the U.S. Court of Appeals for the Ninth Circuit held that Knights overruled its prior holdings that probation searches done for law enforcement reasons violated the Fourth Amendment. (73)

CONCLUSION

From a review of the cases concerning parole and probation searches, certain conclusions can be drawn. It is clear that probationers and parolees do have constitutional protections. However, because of their unique status, those protections do not rise to the level given ordinary citizens.

Regarding searches, 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. In the probation and parole context, 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 afoot.

Whether probationers and parolees may be searched for no reason at all remains an open question. It is likely unwise to attempt to justify suspicionless searches on the theory of consent. Two other theories offer more hope. States can argue that suspicionless searches of their probationers and parolees are reasonable regulations or conditions because the searches are not a function of law enforcement and are reasonably related to the dual goals of rehabilitation and public protection. In addition, 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 entirely extinguish any reasonable expectation that probationers and parolees may have.

Resolution of this suspicionless search question will have to await definite word from the Supreme Court. To date, the weight of legal authority favors the position that searches of probationers and parolees must be grounded upon reasonable suspicion of a parole violation, the presence of contraband, or criminal activity.

The "stalking horse" problem appears to be resolved. While not directly addressing the issue, the Supreme Court reminded courts that so long as the searches themselves are reasonable, it will not inquire into the actual motivations of officers conducting them.

Officers conducting warrantless searches of the persons or property of probationers or parolees must comply with all search conditions imposed. Whether the searches are justified as reasonable regulatory or administrative conditions, or simple reasonable Fourth Amendment searches, the conditions are important. In regulatory or administrative reviews, courts will first judge whether the conditions themselves are reasonably related to the goals of the parole or probation system and then consider whether officers complied with them. In straightforward Fourth Amendment cases, the search conditions are an important guide to the degree to which probationers' and parolees' expectations of privacy are diminished.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

Endnotes

(1) Black's Law Dictionary, 6th ed. (1990) 1202.

(2) Id. at 1116.

(3) "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV.

(4) United States v. Cardona, 903 F.2d 60 at 63 (CA1 1990); see also Fahem-El v. Klincar, 841 F.2d 712 (CA7 1988) (en banc), finding a rational basis for regulations giving probationers more rights than parolees; United States v. Hill, 967 F.2d 902 at 909 (CA3 1992), finding that restrictions on a parolee may be stricter than on a probationer "because the parolee has already been adjudged in need of incarceration."

(5) Griffin v. Wisconsin, 483 U.S. 868 (1987).

(6) Morrissey v. Brewer, 408 U.S. 471 (1972).

(7) Supra note 5 at 874, citing Morrissey v. Brewer, supra note 6, at 480.

(8) For a good examination of the development of these legal theories, see Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (St. Paul, MN: West Publishing Co., 1996), Section 10.10.

(9) State v. Hernandez, 229 Cal.App.2d 143 (1964).

(10) Supra note 6 at 483.

(11) People v. Chinnici, 50 Misc.2d 570 (N.Y. 1966); State v. Williams, 486 S.W.2d 468 (Mo. 1972).

(12) Supra note 6 at 482.

(13) Supra note 8.

(14) 389 U.S. 347 (1967).

(15) Id.

(16) Supra note 14 at 361 (J. Harlan, concurring.)

(17) Supra note 14 at 357. The exceptions to the search warrant requirement recognized by the Supreme Court are the consent search (Schneckloth v. Bustamonte, 412 U.S. 218 [1973]); the search incident to arrest (United States v. Robinson, 414 U.S. 218 [1973]); the emergency search or exigent circumstances search (Warden v. Hayden, 387 U.S. 394 [1967]); the motor vehicle search (Carroll v. United States, 267 U.S. 132 [1925]); the inventory search (South Dakota v. Opperman, 428 U.S. 364 [1976]); certain administrative searches of regulated businesses (New York v. Berger, 482 U.S. 691 [1987]); and "special needs" searches (Veronia School District 47J v. Acton, 515 U.S. 646 [1995]).

(18) Terry v. Ohio, 392 U.S. 1 (1968).

(19) O'Connor v. Ortega, 480 U.S. 709 (1987).

(20) Camara v. Municipal Court, 387 U.S. 523 (1967).

(21) New Jersey v. T.L.O., 469 U.S. 325 (1980).

(22) Supra note 6.

(23) Supra note 6 at 477 and 478.

(24) Supra note 6 at 482.

(25) Supra note 6 at 478.

(26) Supra note 5.

(27)Wis.Admin. Code HSS, Sections 328.21(4) and 328.16(1) (1981).

(28) Supra note 5 at 871.

(29) 388 N.W. 2d 535, at 539-544 (1986).

(30) Supra note 5 at 873.

(31) Supra note 5 at 875.

(32) Supra note 5 at 876.

(33) Supra note 5 at 878-879.

(34) See United States v. Payne, 181 F.3d 781, at 786 (CA6 1999).

(35) Griffin v. Wisconsin, 483 U.S. at 879.

(36) 534 U.S. 112 (2001).

(37) Id. at 114.

(38) The lower court found, and Knights agreed, that the officer was acting on reasonable suspicion. See United States v. Knights, 534 U.S. at 122.

(39) 219 F.3d 1139 (CA9 2000).

(40) Supra note 36 at 118-119, quoting Wyoming v. Houghton, 526 U.S. 295, at 300.

(41) United States v. Knights, 534 U.S. at 119-120.

(42) Id. at 121-122.

(43) United States v. Knights, 534 U.S. at 120, footnote 6.

(44) See United States v. Leonard, 931 F.2d 463 (CA8 1991): Drug testing condition reasonable where crime of stealing mail was motivated in part by drug use.

(45) United States v. Duff, 831 F.2d 176 (CA9 1987).

(46) United States v. Wright, 86 F.3d 64 (CA5 1996).

(47) 729 F.2d 120 (CA2 1984), cert. denied Thomas v. United States, 496 U.S. 864 (1984).

(48) Id. at 122-123.

(49) Supra note 47 at 123-124.

(50) Supra note 47 at 123.

(51) Some states have declined to interpret their state constitutions in a fashion that recognizes a reduced expectation of privacy in a motor vehicle. Readers should consult their legal advisers regarding the treatment of motor vehicles in their local jurisdictions.

(52) Carroll v. United States, 267 U.S. 132 (1925); Ornelas v. United States, 116 S. Ct. 1657 (1996).

(53) See United States v. Payne, 181 F.3d 781 (CA6 1999); United States v. Baker, 221 F.3d 438 (CA3 2000); and United States v. Stokes, 292 F.3d 964 (CA9 2002), cert. denied 123 S. Ct. 398 (2002).

(54) See also Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357 at 362 (1998), footnote 3.

(55) See Pennsylvania Board of Probation and Parole v. Scott, and United States v. Knights.

(56) Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

(57) Supra note 8.

(58) United States v. Crawford,--F.3d--, 2003 WL 735531 (CA9 2003).

(59) Supra note 34 at 786.

(60) Supra note 5 at 875.

(61) Supra note 58.

(62) Supra note 58.

(63) Supra note 58, Judge Trott dissenting.

(64) Supra note 36 at 118, citing Ohio v. Robinette, 519 U.S. 33, at 39.

(65) Supra note 58, footnote 23.

(66) Owens v. Kelley, 681 F.2d 1362 (CA11 1982); United States v. Cardona, 903 F.2d 60 (CA1 1990); Shea v. Smith, 966 F.2d 127 (CA3 1992); United States v. Martin, 25 F.3d 293 (CA6 1994); United States v. Watts, 67 F.3d 790 (CA9 1995); United States v. McCarthy, 82 F.3d 943 (CA10 1996); United States v. Replogle, 301 F.3d 937 (CA8 2002).

(67) 219 F.3d 1138 (CA9 2000).

(68) Supra note 36 at 121.

(69) See United States v. Edmonds, 531 U.S. 32 (2000).

(70) Supra note 36 at 122, quoting Whren v. United States, 517 U.S. 806, at 813 (1996).

(71) United States v. Tucker, 305 F.3d 1193 (CA10 2002).

(72) United States v. Reyes, 283 F.3d 466 (CA2 2002).

(73) United States v. Stokes, 292 F.3d 964 at 967 (CA9 2002).