Search and Seizure Enacted 8/24/12 Revised

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1 Position Statement Minnesota Association of Community Corrections Act Counties 125 Charles Avenue, St. Paul, MN Phone: Fax: Search and Seizure Enacted 8/24/12 Revised Position: MACCAC believes that Search and Seizure is a necessary tool for enhancing public safety by ensuring offenders under supervision of a granting authority are following conditions and remain law abiding. Search is not arbitrary, capricious, or harassing, but based on reasonable suspicion and the offender is provided notice of searches in the probation agreement. Lastly, the intent of the search is for ensuring compliance with granting authority conditions, not for the purpose of law enforcement conducting an investigation or bypassing the requirement of a search warrant. Suspicionless or random searches shall only be conducted if there is a valid court order that permits random searches. For this position paper, search is not defined as a reasonable sweep of a residence to ensure officer safety when conducting a field visit. Search and seizure is defined as the initial examination of a person's premises (residence, business or vehicle) by probation officers looking for evidence that supports reasonable suspicion of a probation violation, and then taking of evidence. Background: All search and seizures practices are reviewed against the Fourth Amendment of the U.S. Constitution and article 1, section 10, of the Minnesota Constitution. The wording for both is identical and it states, Unreasonable searches and seizures are prohibited. 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 warrant shall be issued, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized." While under the Fourth Amendment to the U.S. Constitution and article 1, section 10 of the Minnesota Constitution requires probable cause, the U.S. Supreme Court has interpreted "the Amendment s fundamental purpose is to protect an individual s privacy and security from arbitrary invasions by government officials. The rights and freedoms protected by the Fourth Amendment are not absolute, often requiring courts to assess the constitutionality of a governmental search through a balancing test." (Weiss, M., 2006) As a result, the U.S. Supreme Court has ruled that probable cause is not a requirement

2 and under specialized circumstances warrantless searches are allowable. In cases pertaining to probation and supervised release (parole), the Minnesota and U.S. Supreme Courts continue to clarify the exception of warrantless searches by evaluating (1) consent, (2) the special needs exception to the Fourth Amendment, and (3) general reasonableness under a totality of the circumstances analysis." (Harold, M., 2007) In 1980, the Minnesota Supreme Court case State v. Earnest, 293 N.W. 2d365 (Minn. 1980), upheld a warrantless probation search. Citing Latta v. Fitzharris, 521 F.2d 246, 249 (9th Circ.), the court affirmed that "probation searches fall within the ambit of the Fourth Amendment, and must therefore comport with a standard of reasonableness [but] we also recognize that, because of this special relationship between the probation officer and probationer, the law relating to probation searches cannot be strictly governed by automatic reference to ordinary search and seizure law." In Griffin v. Wisconsin, 483 U.S. 868 (1987), the U.S. Supreme Court determined warrant requirements as " impractical and justify replacement of the probable cause standard with the regulations reasonable grounds standard (and that) probation agency must be able to act based on a lesser degree of certainty in order to intervene before the probationer damages himself or society..." Lastly, that probation diminishes a probationer's reasonable expectation of privacy - so that a probation officer, consistent with the Fourth Amendment, may search a probationer's home without a warrant and with only reasonable grounds not (probable cause) to believe that contraband is present." In United States v. Knights, 534 U.S. 112 (2001), the U.S. Supreme Court affirmed that a warrantless search of a probationer satisfies the Fourth Amendment only if it is conducted to monitor whether the probationer is complying with probation conditions. (In addition)... the standard for conducting the search requires no more than reasonable suspicion." In the case State v. Kouba, 709 N.W.2d 299 (2006), the Minnesota Court of Appeals "concluded that a warrantless search under a valid probation agreement does not violate the constitutional prohibitions of the Fourth Amendment. A consensual search is accepted as a reasonable search under the Fourth Amendment." In State v. Anderson 733 N.W. 2d 128 (2007) the Minnesota Supreme Court upheld a warrantless probation search, but did not address if probation searches are allowable based exclusively on the probation agreement. In 2006, the U.S. Supreme Court via Samson v. California, 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed.2d 258 (2006), affirmed the ability to perform searches not based on any standard of reasonableness, but exclusively on the status of probationer or parolee. The U.S. Supreme Court concluded, that probation and parole are not equal statuses so an examination of these two statuses as separate entities becomes necessary." (Harold, M., 2007) The Supreme Court held that parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment." (Harold, M., 2007) Given parolees release to society have a high likelihood of reoffending, the U.S. Supreme Court affirmed suspicionless searches by law enforcement on parolee cases in California because "parolees have severely diminished expectations of privacy that do not outweigh California s substantial interests in supervising released prisoners, promoting reintegration,

3 and combating recidivism. (Harvard Law Review, 2006) "Near the end of the opinion, the majority commented that California has an arbitrary, capricious, or harassing standard to prevent any Fourth Amendment violations that might result from the State s suspicionless search statute. (Harvard Law Review, 2006) In Minnesota, Minn. Statute Subd. 4 allows offenders under intensive supervised released supervision shall submit at any time to an unannounced search of the offender's person, vehicle, or premises by an intensive supervision agent. Unlike Samson v. California 547 U.S. 843, 126 S. Ct. 2193, 165 L. Ed.2d 258 (2006) that allowed for a suspicionless searches under California law, in State v. Heaton _N.W. 2d_(2012) WL the Minnesota Court of Appeals affirmed a warrantless search required reasonable suspicion of an offender under intensive supervised release, based on the conclusion that search conditions pursuant to Minnesota law contains no language explicitly eliminating suspicion or cause in connection with the search of a parolee. The Minnesota Court of Appeals further added, we hold that these legitimate government interests extend to parolees and probationers alike and conclude that the search of a parolee s home requires only reasonable suspicion.therefore a warrantless search was lawful if reasonable suspicion of criminal conduct can be established. While the courts have affirmed that probation may conduct searches based on reasonable suspicion, the note of caution is that the evidence obtained may not always be admissible under a new charge. The Fourth Amendment guarantee against unreasonable searches is limited by the exclusionary rule, which deters such searches by excluding from criminal proceedings evidence illegally obtained. (Monteforte, S., (1982) Evidence obtained by probation agents may be admissible as evidence in revocation hearings but not be permitted in criminal proceedings, which diminishes capacity to charge the offender with a crime and subject to additional penalties under sentencing guidelines. The exclusionary rule acts as a deterrent for law enforcement to use probation searches for investigation purposes. In Unites States Sperling v. Fitzpatrick 426 F. 2d 1161, 1164 (1970) where the court affirmed that evidence obtained during a search could be used for the revocation hearing, but determined the...the exclusionary rule is adequately served by the exclusion of the unlawfully seized evidence in the criminal prosecution. Probation searches are seen as the safety net to enforce the conditions of probation even in cases where, for whatever reason, the evidence is insufficient to prove the probationer guilty of new criminal charges beyond a reasonable doubt. (Stanley, E., & Adelman, J.D., 2002) For determining which areas can be searched in U.S. v. Risse, 83 F 3d (8th Cir. 1996), the U.S. Court of Appeals found no authority to support Risse's implicit assumption that a person can have only one residence for Fourth Amendment purposes. Rather, when evaluating Risse's expectation of privacy in his home, we are guided by the principle that, so long as (the offender) possesses common authority over, or some other significant relationship that dwelling can certainly be considered [her] home for Fourth Amendment purposes, even if the premises are owned by a third party and others are living there. As to what can be searched, in People v. Alders, 87 Cal. App. 3d 313 (1978), the U.S. Court of Appeals ruled that "neither reason nor authority support the proposition that police may conduct a general search of the private belongings of one who lives with a probationer." The search is limited to what reasonably is seen as joint control. In People v. Boyd, 224 Cal. App. 3d 736, 749 (1990), the reasonable

4 suspicion standard should be used to determine whether a particular object is within the scope of the parole search being conducted. Its application avoids unreasonable intrusions into the privacy interests of persons with whom the parolee associates or resides with. This distinction was supported by People v. Veronica, 107 Cal. App. 3d 906, (1980); the appellate court affirmed that a "distinctively female purse" was beyond the scope of the parole search because it clearly appeared not to be the property of either parolee. As to the manner of the search, In United States v. Lopaz 474 F. 3d (2007)the U.S. Court of Appeals affirmed searches where officers conducted protective sweeps of all common areas that the parolee or probationer have exclusive or joint control." As for rooms that are under the exclusive control of someone else, Maryland v. Blue 494 U.S , the U.S Supreme Court affirmed that a protective sweep would be permitted only if officers reasonably believe there was someone inside who posed a threat to them." (Alameda County District Attorney s Office, 2009) In addition, United States v Strickland 902 F.2d 937 (1990), the U.S. Court of Appeals stated that the search "may be thorough, it must not be destructive. (Alameda County District Attorney s Office, 2009) Lastly, In People v. Boyd, 224 Cal. App. 3d 736, 749 (1990) the court affirmed officers are not required to accept a parolee's or probationer's denial that he controls certain places or things...nor are officers required to accept the word of other people on the premises that the parolee or probationer did not control something. Still it is a circumstance that should be diminished if the person has no apparent motive to lie. (Alameda County District Attorney s Office, 2009) Recommended Principles for Search and Seizure: Policy: Before the department conducts any search or seizure there is an approved policy. For planned searches advisement by your county attorney s office is recommended. Staff Training: Staff that conduct searches are trained in the department s policy and established safe search techniques. Staff safety: Safety of the probation /parole officers, and other persons present, is of primary concern during a search. If at any time staff s safety during a search is in question, the search shall be discontinued. Target Population: Search and seizure is targeted towards offenders that pose a threat to the community. Reasonable Suspicion: A search without consent requires a valid court order authorizing random searches and at least reasonable suspicion that the offender is in violation of conditions of a granting authority. Reasonable suspicion can be defined as: current information received from a reliable informant, the probation officer s observations of the offenders physical appearance and demeanor, UA results, observations regarding accumulation of material possession without income or explanation by the offender, information that the offender is associating with individuals involved in criminal offenses, evidence observed in plain view during home contacts, and any behaviors that place public safety at risk. Supervisor Approval: Whenever reasonable, a supervisor shall review the case to determine if reasonable suspicion has been met and related to conditions of granting authority. The search

5 shall not be for the purpose of law enforcement conducting an investigation and bypassing the requirement of a search warrant. Documentation: Documentation should include: factors leading to reasonable suspicion, what locations will be searched, when the search will be conducted, who will conduct the search, and what items the search is expected to produce. Once the search occurs, documentation should include: date and time of the search, the place the search occurred, who assisted the probation officer in the search, property seized, and the disposition of that property. If the search did not occur, documentation should include rational as to why the search was abandoned or discontinued. Conduct Searches: It is recommended that searches occur in teams with trained probation staff and law enforcement. Entry causing damage is not permissible. A protective sweep of the search area by law enforcement should occur before the search begins. If at all possible, document the search area before and after the search is completed. The scope of the search is locations where possible contraband could exist, based on reasonable suspicion. Locations that fall outside of the offender s joint control or common areas shall not be searched nor should documents relating to offender-attorney correspondence. If at all possible, inform the offender or parent/guardians of a juvenile offender of the search and have them present. Good judgment and respect for the personal property of the offender is shown at all times during the search. Disruption of the offender s home and property is limited to only that which is necessary to complete the search, and will not result in more than minimal damage to property. Use of force shall not be used to enforce compliance with a search. If items found during the search are illegal, it is recommended that a determination be made as to whether the search should be discontinued so that law enforcement may follow their own protocol for search and seizure to address exclusionary rule concerns related to criminal proceedings. Handling Evidence: Chain of custody shall be maintained for all items confiscated until the disposition of the contraband. Document any evidence seized and place it in a secure area. Provide documentation to the offender of what specific items were seized. Documentation of the items seized shall include, the date of seizure, offender name, case number of the offender searched, a description of where the evidence was found, the signature of the probation officer who conducted the search, an itemized list of any property seized including descriptive data such as serial numbers, make, model, color, etc. Opinions or conclusions regarding the identity of any items seized shall not be used (and) if other persons have access to the area, facts relating to dominion and control are also important to document. Disposal of Property: Any contraband seized during the search will be handled based on the disposition of the hearing. Items seized which are not considered contraband or illegal shall be returned to the owner or owner s representative.

6 References Weiss, M (2006). Interpreting Searches of Pre Trial Releases Through the Lens of the Fourth Amendment Special Needs Exception. Hofstra Law Review Volume 35 (pp ). Harvard Law Review, (2006). Criminal Law and Procedure Fourth Amendment Suspicionless Search of Parolees: Samson v. California. Volume 120, No. 1 (pp ). Alameda County District Attorney s Office (2009). Probation and Parole Searches, Point of View Volume 31, No. 1 (pp. 1-14). Jones, M., & Krebs, J, (2007). Suspicionless Searches in Probation and Parole in Light of Samson v. California. The Journal of the American Probation and Parole Association Perspective, Volume 31, No. 1 (pp ). Monteforte, S., Admissibility of Evidence in Probation/Parole Revocation Proceedings and in Criminal Prosecutions: Applying a Single Standard, Fordham Law Review, Volume 50, Issue 5 (pp ) Stanley, E., & Adelman, J,D, (2002) U.S v. Knights Supreme Court Rules on Searches of Probationers by Police The Journal of the American Probation and Parole Association Perspective, Volume X, No. X (pp ). SAMPLE SEARCH AND SEIZURE POLICY STATEMENT (n.d) Retrieved World Wide Web weekly.com /index.html