The Constitutionality of Suspicionless Searches Based on Parole Status.

Samson v. California

California law requires parolees to sign a document “[agreeing] to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant, and with or without cause.” Donald Curtis signed such a waiver and was searched solely on the basis of his status as a parolee. The question here is whether a condition of release can so diminish or eliminate a released prisoner’s reasonable expectation of privacy under the Fourth Amendment to allow a suspicionless search.

The lower courts held that the search conformed to the Fourth Amendment so long as it was not “arbitrary, capricious, or harassing” (California provision). The Court takes the “totality of the circumstances” into account to weigh the individual’s interest in privacy against the legitimate government interest effectuated by the search. On this basis, in United States v. Knights the Court held that a warrantless search based on parolee status as well as reasonable suspicion was constitutional. Describing parole as one step on a continuum from solitary confinement in a maximum security prison to a couple hours of community service, the Court argues that parolees have fewer expectations of privacy than probationers because “parole is more akin to imprisonment than probation is.” Parole, then, is an extension of incarceration which happens to provide the opportunity of serving it outside the prison walls.

The analysis is based on balancing. The parolee has diminished interest in privacy, and the state has an “overwhelming” interest in supervising parolees, reducing recidivism, protecting its population, etc. The Court also gives reasons to believe that these arguments apply specifically to California. By finding the search reasonable on the basis of standard Fourth Amendment analysis the majority avoids finding either that acquiescence to the terms of parole constituted consent, or that as parolees (and thereby, as a class of prisoners) parolees are not entitled to protection under the Fourth Amendment.

Curtis argues that there is a less restrictive means possible, citing programs by other states and the federal government. The majority counters that this forgets the recognition of California’s particular interest, as noted earlier. The Court also denies that “individualized” suspicion goes far beyond what ‘reasonableness’ requires. There is also the argument that these searches make it more difficult for the parolees to reintegrate into society and are therefore arbitrary. The Court rejects this argument because it would apply under a regime requiring suspicion as well. Finally, the majority avoids addressing whether these searches are capricious in fact by arguing that, according to the California constitutio, which prohibits “arbitrary, capricious, or harassing” searches,” the search at issue is not capricious by hypothesis.

According to the dissent the requirement of individualized suspicion has only been dispensed with to satisfy a “special need” beyond the state’s general interest in law enforcement. The dissent also points out that the immediate precedent to which the majority appeals involved a “search by a probation officer that was supported by reasonable suspicion.” In that case the “ongoing supervisory” relationship between the probation officer and the probationer changed the character of the search in that the relationship was not entirely adversarial. Even where the Court has allowed suspicionless searches the dissent argues that it has required programmatic safeguards.

The dissent accuses the majority of reasoning that (1) (as per Hudson v. Palmer) prisoners have no legitimate expectation of privacy; (2) parolees are like prisoners; therefore (3) parolees have no legitimate expectation of privacy. The dissent disagrees with the premise that a parolee is the same as a prisoner, or even materially different from a probationer, since the severity of a parolee’s crimes should only bolster the state’s interest in supervision rather than diminishing the individual’s Fourth Amendment interest. Additionally, the extent to which a prisoner’s Fourth Amendment right to privacy is diminished is based entirely on institutional practicalities of incarceration, practicalities that do not apply to parolees.

The dissent argues that the legitimacy of the individual’s expectation of privacy is not diminished by California’s refusal to acknowledge it. Whatever the dissent might think about the majority’s reliance on the idea that the state could incarcerate parolees and therefore has the power to search them, this does not conform to precedent since a search is an illegitimate punitive measure.