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Search and Seizure for Police and Prosecutors

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V. Searching the Home of a Person on Probation or Parole

 

  1. Searching the home of a person on probation or parole.
    1. A probation and parole officer may conduct a warrantless search of the home of a probationer or parolee.
      1. The terms of probation or parole must include a condition that the probationer or parolee is subject to warrantless searches by a probation or parole officer.
      2. The probation and parole officer must have reasonable suspicion to believe contraband or other evidence of a probation or parole violation will be found.
    2. Police officers may participate in a search of the home of a probationer or parolee.
      1. The police participation must be at the request of the probation or parole officer; the search may not be conducted at the behest or direction of the police.
      2. The probation or parole officer must be acting in his or her capacity as the defendant’s supervising guardian, not as an investigator of criminal activity.
      3. The probation officer must have an independent probationary reason for the search.

When a person is convicted of a crime, the district court has statutory authority to place that person on supervised probation as part of his or her sentence.77 In so doing, the court may “may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law- abiding citizens.”78 One of those conditions is the condition that the probationer submit to a warrantless search upon the request of a probation officer.79 A similar condition may be imposed on persons released from prison on parole.80 Consequently, probationers and parolees have “‘significantly diminished’ expectations of privacy,”81 and “more limited rights” concerning searches than a person not on probation or parole.82 Moreover, the “‘special needs’ of a state’s probation system, beyond normal law enforcement, justifie[s] an exception to the ‘usual warrant and probable-cause requirements.’”83

However, because New Mexico’s probation and parole regulations require reasonable suspicion to search the home of a probationer or parolee, neither a probationer’s diminished expectation of privacy, nor the State’s special needs, can justify a suspicionless search.84 Rather, a search conducted by a probation or parole officer pursuant to a condition of probation or parole authorizing warrantless searches must be supported by reasonable suspicion to believe that contraband or other evidence of a probation or parole violation will be found.85

Cooperation between probation officers and police

Police officers may participate in a search of the home of a probationer or parolee, as long as the police participation is at the request of the probation or parole officer.86 The

probation or parole officer must “be acting as the [probationer’s] ‘supervising guardian,’ and not as an agent of the police.87 In determining whether police involvement rendered a search outside the scope of the “probationer exception to the warrant requirement,” courts consider (1) who initiated the search – police or probation officer, (2) the purpose for the search, (3) the extent to which the police directly participated in the search, or directed the probation officer in his search, and (4) whether the search would have occurred but for the police involvement.88 Ultimately, these factors must establish “an independent probationary reason” for the search.89

 

ENDNOTES

77 State v. Baca, 2004-NMCA-049, ¶ 17, 135 N.M. 490, 90 P.3d 509 (citing NMSA 1978, § 31-20-6(C) (1997)).

78 Id. (quoting United States v. Knights, 534 U.S. 112, 119 (2001).

79 Baca, 2004-NMCA-049, ¶ 18. Such conditions are valid as long as they are “reasonably related” to the probationer’s rehabilitation.” Id. (quoting § 31-20-6). “‘To be reasonably related, the probation condition must be relevant to the offense for which probation was granted.’” Id. (quoting State v. Gardner, 1980-NMCA-122, ¶ 19, 95 N.M. 171, 619 P.2d 847).

80 See State v. Benavidez, 2010-NMCA-035, ¶ 15, 148 N.M. 190, 231 P.3d 1132.

81 Baca, 2004-NMCA-044, ¶ 27 (quoting Knights, 534 U.S. at 121)

82 Id. ¶ 23 (quoting Gardner, 1980-NMCA-122, ¶ 14).

83 Id. ¶ 31 (quoting Griffin, 483 U.S. at 873-74).

84 Benavidez, 2010-NMCA-035, ¶ 20. In Samson v. California, 547 U.S. 843, 846 (2006), the Supreme Court upheld a California law allowing for suspicionless searches of parolees and their homes. In so doing, the Court concluded that “parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.” Id. at 850. Indeed, the Court found that a parolee who agreed to suspicionless searches of his home as a condition of completing his sentence on parole, “did not have an expectation of privacy that society would recognize as legitimate.”  Id. at 852. In Benevidez, our Court of Appeals construed Samson as setting “the constitutional floor for permissible parole and probation searches pursuant to a state’s policy.” 2010-NMCA-035, ¶ 17. In other words, a warrantless search of the home of a probationer or parolee is constitutional as long as it complies with state regulations and policies. Because New Mexico regulations and policies require reasonable suspicion, a search of the home of a probationer or parolee requires reasonable suspicion.

85 Baca, 2004-NMCA-049, ¶ 37-43.

86 State v. Bolin, 2010-NMCA-066, ¶ 14, 148 N.M. 489, 238 P.3d 363 (quoting Gardner, 1980-NMCA-122, ¶ 25)

87 Id. ¶ 15.

88 See id. ¶¶ 16-19.

89 Id. ¶ 20.