You & Warrantless Searches on Probation

In Criminal by brian@gwa-law.com0 Comments

Not All Warrantless Searches are Permissible Just Because You Are on Probation

It is well-settled law that a probationer must submit to warrantless searches of his residence, vehicle and/or person.

This is a regular condition of probation set out in N.C. Gen. Stat. 15A-1343(b)(13) , which states that a probationer must: “Submit at reasonable times to warrantless searches by a probation officer of the probationer’s person and of the probationer’s vehicle and premises while the probationer is present, for purposes directly related to the probation supervision, but the probationer may not be required to submit to any other search that would otherwise be unlawful.” Id. (2015).  As a regular condition of probation, it does NOT need to be delineated by a judge in open court, though it often is.

But notice the qualifications or restrictions on it: (1) the probationer must be present; (2) it must be their premises or vehicle; (3) it must be for the purposes directly related to supervision; and (4) there is a constitutional caveat (an exception to make the statute constitutional)

That last caveat is sort of a catch all. The real meaning behind it is that just because you are on probation doesn’t mean that you give up any and all constitutional rights, and specifically, your rights under the 4th and 5th Amendments to the U.S. Constitution.

Notably, regardless of the search, the probationer must be present. This is notable because there have been cases where probation officers have shown up at a probationer’s house, or those of a loved one with whom the probationer is staying, barged in, and found contraband, with which either the probationer or another was charged.

Additionally, just because a probationer is in another person’s vehicle or home does not make it THEIR car or home. Therefore, if a probationer is a mere passenger in a car note registered or titled in their name, this doesn’t necessarily allow for a warrantless search without other probable cause.

Finally, any warrantless search must be directly related to supervision. Recently, the North Carolina Criminal Law Blog from the UNC School of Government had an excellent post on this topic. The crux of the post is that not all searches are “directly related.” See the post for more explanation and examples.

 

 

 

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