April 13, 2024

Darren Chaker Laws of Attraction

Darren Chaker, California Law and First Amendment blogger

California Fourth Amendment Waiver Searches

9 min read
Fourth Amendment Waiver searches, Darren Chaker.

Fourth Amendment Waiver Searches by Darren Chaker.

Fourth Amendment Waiver For Those on  Probation and Parole: A Comprehensive Analysis by Darren Chaker

Understanding the Fourth Amendment’s Impact on Probation and Parole

Probation and parole are crucial aspects of the criminal justice system, offering individuals a chance for rehabilitation while ensuring public safety. However, the rights of probationers and parolees are often diminished due to Fourth Amendment waiver searches. The constitutional protections against unreasonable searches and seizures often cease to exist for many on probation or parole. In this in-brief article, legal researcher Darren Chaker delves into the complexities of probation, parole, and the Fourth Amendment, shedding light on important legal considerations.

1. The Fourth Amendment’s Relevance in Probation and Parole

The Fourth Amendment to the United States Constitution safeguards individuals from unreasonable searches and seizures, a fundamental right that extends to probationers and parolees. Darren Chaker found the landmark case of Griffin v. Wisconsin (483 U.S. 868, 873) recognized that probationers are entitled to the Fourth Amendment’s protection. For police and defendants, it is well known anyone on probation and especially parole, the “status as a probationer” means that he “begins with a lower expectation of privacy than is enjoyed by a citizen who is not subject to a criminal sanction.” United States v. King, 736 F.3d 805, 808 (9th Cir. 2013), cert. denied, 134 S. Ct. 1492 (2014). As the Supreme Court has made clear, “[i]nherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled.” Knights, 534 U.S. at 119.

2. Balancing Special State Needs and Privacy Rights

Supervision of probation and parole involves balancing the state’s special needs for public safety with an individual’s right to privacy. While some intrusion into privacy is permitted due to supervision requirements, it is not boundless, as emphasized in Griffin (483 U.S. at 875). It should be kept in mind not every person on probation has waived his Fourth Amendment rights. In United States v. Hill, 776 F.3d 243 (4th Cir. 2015) where the court acknowledged he was on supervised release, but nothing in the conditions of set by the judge indicated her waived his Fourth Amendment rights. Moreover, the good faith exception to the exclusionary rule did not apply.

3. Replacing Probable Cause with “Reasonable Ground”

The “special needs” of probation systems often render traditional warrant systems impractical. This led the Supreme Court to advocate for replacing the standard of probable cause with the concept of “reasonable ground” in Griffin (483 U.S. at 875-76). This adaptation allows probation officers to make informed decisions without the need for conventional warrants. Consequently. discarding the search warrant requirement is reasonable in order to avoid interfering with the probation system and the right of a probation officer rather than a magistrate to make decisions about the probationer’s conduct. In United States v. Grandberry, 730 F.3d 968 (9th Cir. 2013) the court held a law enforcement officer may not conduct a warrantless search of premises without probable cause to believe that the parolee does, in fact, live at that location.

4. California’s Unique Approach: Electronic Device Searches

California introduced a distinctive approach by expressly authorizing “blanket searches” of probationers without a warrant by any peace officer, as demonstrated in People v. Bravo (43 Cal.3d 600, 1987). However, Bravo was decided shortly after Griffin and cited Griffin only once, indicating potential conflicts. California courts have provided that probation or parole searches should not make the person feel harassed and must relate to the goals of rehabilitation. governed probationer searches.

5. Lessons from Oregon’s Experience on Fourth Amendment Waivers

Oregon’s experience provides valuable insights into the regulation of probationer searches. The Supreme Court acknowledged the authority of courts to impose probation conditions, including “search and seizure” conditions. However, Oregon initially lacked explicit legislative authorization for such conditions. Nevertheless, the state eventually passed legislation allowing “search and seizure” conditions “by the probation officer, or any peace officer assisting the probation officer,” as evident in cases like State v. Hovater and State v. Davis.

6. Safeguarding Probationer and Parolee Rights

Legal consensus holds that parolees and probationers should not face abusive searches. Given the goals of probation and parole, probation and parole Fourth Amendment waiver searches are best left to the officers are best equipped to understand their charges, making it essential for peace officers to seek permission from probation or parole officers before conducting searches. Without such authorization, searches are typically considered invalid, except in cases of exigent circumstances. This approach aligns with the Fourth Amendment’s principles, ensuring the proper rehabilitation of offenders while protecting individuals not on probation.

7. Courts’ Role in Supervising Probationers

Ultimately, the responsibility for supervising probationers, including authorizing searches, rests with the courts, facilitated through the probation office. This approach aligns with established legal principles that limit “unfettered discretion” for peace officers in law enforcement. The Supreme Court has been instrumental in giving guidance on the topic.

In United States v. Knights, 534 U.S. 112 (2001), Supreme Court upheld a warrantless search of a probationer’s home. The Court explained that “[t]he touchstone of the Fourth Amendment is reasonableness” and that “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.’” Id. at 118-119

In Samson v. California, 547 U.S. 843 (2006), this Court resolved “a variation of the question [it] left open in [Knights]” by holding that the Fourth Amendment permitted a suspicionless search of a parolee’s person conducted pursuant to a state law requiring consent to such searches as a condition of parole. Id. at 847; see id. at 848-857. The Court observed that parolees “have severely diminished expectations of privacy by virtue of their
status alone,” and added that “parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.” Id. at 850, 852.


In conclusion, Darren Chaker finds a comprehensive understanding of the Fourth Amendment’s application in probation and parole contexts is essential for legal practitioners and those involved in the criminal justice system. While probation and parole involve some restrictions on privacy, these limitations must be carefully balanced with individuals’ constitutional rights. Ensuring the proper supervision of probationers and parolees while upholding their rights remains a cornerstone of a just and effective criminal justice system.

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