Author: Collin L. Ryan, Associate Member, University of Cincinnati Law Review
When convicted felons are released on probation, may officers conduct a warrantless search of their homes without violating any constitutional rights protected under the Fourth Amendment? The Supreme Court, by conducting a balancing test, holds that officers may do so when they have a “reasonable suspicion” that probationers are violating their probation conditions; a standard of protection lower than the “probable cause” standard that protects fully free citizens from warrantless searches.[1] The specific fact-pattern before the Court that prompted this rule, however, involved a probation condition that explicitly stated a probationer will be subject to warrantless searches.[2]
But when the probationary condition is less explicit and merely subjects the probationer to unannounced home visits at any time, does the Court’s balancing test still apply, or does the legal analysis change? A current circuit split exists regarding that precise issue—the Fourth Circuit finds such warrantless searches based on a “reasonable suspicion” categorically unlawful, while the Eleventh Circuit permits them when they satisfy the Court’s balancing test.[3] Although the courts’ different interpretations are sensible, as a public policy matter, the Eleventh Circuit’s interpretation should be adopted because it better promotes the rehabilitative and societal-protective purposes of releasing individuals on probation.
Probationer’s Privacy: The Fourth Amendment and SCOTUS Precedent
The Fourth Amendment of the United States Constitution states, “[t]he right of the people to be secure in their . . . houses . . . against unreasonable searches . . . shall not be violated . . ..”[4] The crux, therefore, is the reasonableness of the search—if a search is reasonable, then it is lawful. Courts determine reasonableness “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.”[5]
In the context of conducting warrantless searches of a probationer’s residence, the Supreme Court in United States v. Knights balanced the intrusion on the privacy of the individual against the government’s interests.[6] For intrusion on privacy, quoting its precedent, the Court stated that “[i]nherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled.”[7] The Court continued, “A court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.”[8] Thus, an individual on probation has “a significantly diminished . . . reasonable expectation of privacy” that may be intruded upon to a greater extent than that of a free citizen.[9]
In regard to the government’s interests in conducting the warrantless searches, the Court recognized that “[t]he recidivism rate of probationers is significantly higher than the general crime rate.”[10] Furthermore, “probationers have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may . . . face revocation of probation, and possible incarceration . . . .”[11] Thus, the government “may therefore justifiably focus on probationers in a way that it does not on the ordinary citizen.”[12] After balancing both elements, the Court declared that these warrantless searches are lawful under the Fourth Amendment, subject to a “reasonable suspicion” standard.[13]
The Circuit Split Between The Fourth and Eleventh Circuits
In cases before the Fourth and Eleventh Circuit Courts of Appeal, a condition of the probationer’s release required the probationer to consent to unannounced home visits from probation officers.[14] In the Eleventh Circuit, the court employed the Knights balancing test to determine whether a warrantless search of the probationer based on reasonable suspicion was reasonable under the Fourth Amendment.[15] The court recognized that although the probationer did not consent to warrantless searches altogether, the probationer still consented to a condition that reduced his privacy interest, if only to a lesser extent.[16] Thus, “[w]hen a probationer has a condition of probation reducing his expectation of privacy, and the government has a higher interest in monitoring the probationer due to the nature of his criminal history, a search can be permissible when supported only by reasonable suspicion.”[17]
The Fourth Circuit Court of Appeals, however, declined to use the Supreme Court’s balancing test and instead found that the warrantless searches are per se unreasonable, that a mere reasonable suspicion a probationer is violating conditions of probation does not justify the warrantless search, and that officers conducting these warrantless searches must either have a probable cause to do so or obtain a warrant even though probationer previously agreed to unannounced visits at home.[18] To the Fourth Circuit, although the probationer consented to unannounced visits at his home, he did not consent to the warrantless searches.[19] The Fourth Circuit refused to interpret the probation condition as consent to warrantless searches supported by an officer’s reasonable suspicion when the condition failed to mention warrantless searches entirely.[20]
The Appropriate Approach
As a public policy matter, the appropriate interpretation courts should exercise is that of the Eleventh Circuit because it better serves the principal purposes of releasing individuals on probation. According to the Supreme Court, the “primary goals” behind probation are “rehabilitation [of the individual] and protecting society from future criminal violations.”[21] Adopting the Eleventh Circuit’s approach furthers these two goals more so than the Fourth Circuit’s; it allows officers to better protect society from a particular violent or dangerous probationer, and rehabilitates probationers by encouraging them to acclimate to society and to refrain from probation-violating conduct.
Under the Eleventh Circuit’s approach, probationers who consent to unannounced visits can be subject to warrantless searches based on a reasonable suspicion that they are violating their probation when the government’s heightened interest in protecting society outweighs the probationer’s reduced expectation of privacy created by the probation release. First, the Eleventh Circuit’s interpretation better protects society from dangerous individuals on probation because law enforcement officers under this interpretation have greater authority over individuals that pose a high danger to society. Crucial to this point is that not all probationers, only the probationers in whom the government has a heightened interest, are subject to warrantless searches under this interpretation.[22] In other words, the government has a much higher interest in monitoring probationers convicted of crimes that pose great danger to society than probationers convicted of proverbial “victimless crimes.”[23]
To better understand this key distinction, consider the societal danger posed by probationers who were convicted of felony drug possession versus those convicted of felony drug trafficking. Under the former, the drug possessors will most often pose more of a danger to themselves than to society, and the government’s limited interest in protecting society would therefore not be sufficiently high to outweigh the probationers’ reduced privacy expectations— i.e., this would not allow reasonable suspicion warrantless searches. The individuals on probation for drug trafficking, however, often pose very high danger to society because of the threat that they may recommence their involvement in the drug trade. And in doing so, they would jeopardize the health and safety of society by perpetuating the spread of a cancerous market that has caused great harm to the lives of individuals and family members alike. Here, the government’s interest in protecting society would be sufficiently high to outweigh the probationers’ reduced privacy interest, thus permitting a warrantless search of these probationers when supported by an officer’s reasonable suspicion that they are violating the conditions of their probation.
In this regard, the Fourth Circuit’s interpretation hinders law enforcement from fulfilling their role as society’s protectors because the categorical bar on searches of both classes of probationers is overly broad and prevents reasonable suspicion warrantless searches of certain probationers who pose a real danger to society during their probation. Under the Eleventh Circuit’s interpretation, on the other hand, officers are in a better position to protect society from the harm of future crime because they are authorized to conduct these searches when a particular probationer’s criminal conduct creates a heightened government interest.
Second, the Eleventh Circuit’s interpretation promotes probationers’ rehabilitation by encouraging their re-assimilation into a society via a life free from illicit activity. Under this interpretation, the threat of warrantless searches pursuant to the specific probation condition is omnipresent. Probationers are required to live their daily lives unsure whether their home or person will be searched at any moment without a warrant. The only security they have in knowing that this event will not occur is derived from their own conduct. If probationers completely refrain from activity that violates their probation, then, in theory, officers will not have any “reasonable suspicion” that they are violating probation, and conducting a warrantless search would therefore violate the probationer’s Fourth Amendment rights. Justified by the reduced expectation of privacy inherent in release on probation, this impending uncertainty rehabilitates those on probation by encouraging them to operate in society in a manner that does not violate their probation.
While the Fourth Circuit’s approach may also promote the rehabilitation of the probationer through deterrence, it does so to a lesser extent because it provides the probationer with the unnecessary and potentially destructive opportunity to recidivate. Probationers who know with absolute certainty that they will not be subject to these warrantless searches have a greater opportunity to recidivate because the risk of these searches is eliminated and they know that the “threat of getting caught” is far lower. While the Fourth Circuit’s approach does not outright encourage probationers to violate their probation, it does give them a greater chance to do so. For instance, usually when an individual returns home from a rehabilitation facility, his or her family will take precautionary steps to eliminate the threat of relapse by removing prescription drugs and alcohol from the household. The Fourth Circuit’s approach, however, omits this precautionary step, and instead gives probationers the potentially devastating opportunity to fall back into old their old ways. The Eleventh Circuit’s approach, on the other hand, removes this recidivist opportunity. Therefore, because the Eleventh Circuit’s interpretation better promotes the primary policy motives for releasing an individual on probation—rehabilitating the individual while protecting society—it should be followed by other jurisdictions that might confront this issue in the future.
[1] See United States v. Knights, 534 U.S. 112, 122 (2001).
[2] Id. at 114 (“submit . . . to search at anytime, with or without a search warrant . . .”) (emphasis added).
[3] Compare United States v. Hill, 766 F.3d 243 (4th Cir. 2015) with United States v. Carter, 566 F.3d 970 (11th Cir. 2009).
[4] U.S. Const. amend IV.
[5] Knights, 534 U.S. at 118-19 (citing Wyoming v. Houghton, 526 U.S. 295, 300 (1999)).
[6] Id. at 119-21.
[7] Id. at 119 (quoting Morrisey v. Brewer, 408 U.S. 471, 480 (1972)).
[8] Id.
[9] Id. at 119-20.
[10] Id. at 120 (citing U.S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Recidivism of Felons on Probation, 1986-89, at 1, 6 (Feb. 1992), U.S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Probation and Parole Violators in State Prison, 1991, at 3 (Aug. 1995)).
[11] Id.
[12] Id. at 121.
[13] Id. at 122
[14] See United States v. Hill, 776 F.3d 243, 245 (4th Cir. 2015) (“[Probationer’s] conditions of supervised release required him, among other things, . . . to permit probation officers to visit him at home at any time . . .”); see also United States v. Carter, 566 F.3d 970, 974 (11th Cir. 2009) (“[P]robation [condition] required [probationer] to . . . submit to visits by pronation officer at his home, workplace, or elsewhere”).
[15] Carter, 566 F.3d at 974-75.
[16] See id. at 975.
[17] Id.
[18] See Hill, 776 F.3d at 248 (4th Cir. 2015) (citing United States v. Bradley, 571 F.2d 787, 789 (4th Cir. 1978)).
[19] Id.
[21] Knights, 534 U.S. at 119.
[22] See also Carter, 566 F.3d at 975 (“We conclude that . . . the government had a sufficiently high interest in monitoring [probationer] on account of his drug and violence-related crimes . . .”) (emphasis added).
[23] See id.
