Probationer subject to warrantless search even absent a probation condition authorizing such searches
Conditions of probation or supervised release sometimes include special conditions by which the defendant consents to warrantless searches of his residence by his/her probation officer. (In the District of New Jersey, standard probation conditions provide only for consent to "visits" by a probation officer and the corresponding consent to the confiscation of contraband in the plain view of that officer). Even in the absence of such conditions, the Eleventh Circuit recently held, a probation officer can conduct a warrantless search of the probationer's residence based only on "reasonable suspicion." The justification for the seeming Fourth Amendment violation: a probationer by virtue of his/her status simply enjoys a lower expectation of privacy than does the average citizen.
In United States v. Carter, 2009 U.S. App. LEXIS 8838 (11th Cir., April 27, 2009), the district court had denied Carter's motion to suppress guns and drugs found in his home in the course of a warrantless search conducted by his probation officer and state drug agents. No prior Eleventh Circuit case had approved of the warrantless search of a probationer's residence simply because of his status. The Supreme Court had previously endorsed in United States v. Knights, 534 U.S. 112 (2001), such a warrantless search only where the defendant had given prior consent as a condition of probation.
But the court of appeals nonetheless affirmed the district court, holding that Carter's status as probationer alone meant that he enjoyed a reduced expectation of privacy. When combined with the substantial government interest in "monitoring" him because of his prior drug and violent crime background, the lowered expectation of privacy justified the use of warrantless searches of Carter's home based only on a reasonable suspicion standard.
It is unclear if the Carter rationale would extend to probationers who had committed fraud crimes, resulting one might argue in a presumably lesser government interest in their being "monitored." Of course, the government could argue that, depending on the scope and effects of the prior white collar crime, such probationers are even more worthy of "monitoring." Practitioners may need to warn their clients on probation or supervised release that their status alone may justify a raid of their homes conducted solely on the basis of a belief, held by an officer of the court not trained in law enforcement and untested by judicial review, that there might be evidence of a federal crime in the home.
