Can A Probation Officer Search My House While I Am On Probation or Parole?

An issue that frequently comes up when litigating motions to suppress in drug and weapons cases is whether the police or probation department need a search warrant to search the house of a someone who is on probation or parole. In general, both the United States and Pennsylvania Constitutions require law enforcement officers to get a search warrant before conducting a search of a private residence. However, there are a few limited exceptions to this rule, and two of those exceptions apply to people who are on probation or parole.

Probation Officers May Conduct Limited Home Visits

First, a probation or parole officer may conduct a limited home visit of a probationer’s home without a warrant as part of the conditions of probation or parole. The probationer may be lawfully compelled to show the probation officer around the house, and if the officer sees anything incriminating in plain view, these items can be used against the probationer. Evidence such as drugs, guns, or other contraband may be used to establish violations of the terms of the supervision or to bring new criminal charges.

Probation Officers Do Not Need A Search Warrant - But They Do Need Reasonable Suspicion

Second, the probation officer may conduct a full search of a probationer’s house where the officer has reasonable suspicion to believe that there may be contraband in the house. Reasonable suspicion is a lower standard than probable cause, and the officer is not first required to obtain a warrant before conducting the search. Instead, the officer must simply get authorization from a supervisor. Although probation officers may use these exceptions either to conduct a home visit or search based on reasonable suspicion, they are not allowed to act as a “stalking horse” for or at the direction of the police department or other law enforcement agencies who wish to use the probation as a pretext to conduct a warrantless search.

For both types of searches, probation officers may typically search the entire house. The search is not limited to the room in which the probationer stays. This is because the owner of the house will generally sign a release prior to the probationer or parolee being allowed to stay in the house. In some cases, however, it may be possible to challenge the scope of an overly broad search with respect to a defendant other than the probationer.

Recent Caselaw on Probation and Parole Searches in Pennsylvania

The Pennsylvania Superior Court recently considered these exceptions in the case of Commonwealth v. Parker, 2016 Pa Super 280 (Pa. Super. Ct. 2016). In Parker, the Superior Court upheld the ability for probation officers to search a probationer’s home without any prior allegation of wrongdoing by the probationer, reversing the trial court’s order granting a motion to suppress crack cocaine which was allegedly found in Mr. Parker’s home.

When Parker was released from custody on a prior case, he agreed to the standard terms and conditions of probation to which many defendants must agree in counties through Pennsylvania. Specifically, he agreed to allow his probation officer to visit his home at any time to confirm compliance with the conditions of supervision. He also agreed that he would not possess any contraband and that he would permit the officer to search his home and vehicle based upon reasonable suspicion that contraband could be found.

The case began when probation officers arrived at Parker’s home to conduct a home visit. Upon entering the house, they noticed, “apparently in plain view, clear, empty, corner-cut baggies; cigar packages, which were opened and discarded on the floor; and small rubber bands.” The officers believed from past experiences that such items are commonly used for drug distribution, and they also observed a shotgun in an open closet in the kitchen. The officers then went up to Parker’s room, where they found bullets, knives, and a bong all in plain view. The probation officers contacted police officers. The police officers came to the scene, but they opted not to obtain a warrant and left. The probation officers then contacted a supervisor, who authorized a search of the home, and the probation officers proceeded to find cocaine in the refrigerator. At that point, the officers called the police back to Parker’s home, and the police arrested Parker.

Grounds for the Motion to Suppress the Results of the Probation Search

Parker moved to suppress all the items, arguing that the probation officers conducted an illegal search by entering his home without reasonable suspicion and that they should have obtained a warrant before searching the refrigerator. Parker also alleged that the probation officers had used their authority to evade the warrant requirement and act as a “stalking horse” for the local police department. Parker’s attorneys suggested that the police wanted to conduct a search but did not have the probable cause necessary for a warrant.

The trial court rejected the argument that the probation officers could not enter the home to conduct a basic tour and observe any contraband in plain view, but the trial court ruled that the officers should have obtained a search warrant before searching the refrigerator. Because the officers had already called the police to the scene, they did, in effect, act as agents of the police department, and therefore, they should have obtained a warrant before finding the cocaine in the refrigerator.

Standards for Probation Searches

The Superior Court reversed the suppression of the cocaine and reaffirmed the prior decisions which set these standards. The Superior Court concluded that first, under existing caselaw, probation officers may lawfully conduct a home visit, tour the house, and seize any evidence of contraband which is in plain view. Second, once the probation officers find drug packaging, weapons, and bullets which have been left out in the open, the officers do not have to obtain a warrant to search the rest of the house because they have reasonable suspicion that other contraband might be found. Third, the court rejected the trial court’s conclusion that the probation department had acted as a stalking horse for the police department because there was no evidence at the motion to suppress that the police had in any way directed the search. Accordingly, the court ruled that the full search of the house was permitted despite the absence of a warrant.

There Are Limits on Probation and Parole Officers

Although the Superior Court ultimately ruled against Mr. Parker, the decision does show that even though defendants who are on probation at the time of a search have fewer rights than people who are not on probation, there are still real limits on the ability of a probation officer to search a house. First, the probation officer is limited to walking through the house and viewing only items which are in plain view. The officer cannot show up for a home visit and begin tearing the house apart. Second, the officer must have reasonable suspicion in order to conduct a full search without a warrant. This standard requires the officer to point to specific and articulable facts for why the officer believed contraband might be found. The officer cannot conduct a search for drugs simply because the defendant was under supervision for drugs.

Can the Police Search My House If I Am On Probation?

Although probation officers do not need a warrant to search the house of a probationer or parolee, the police cannot use the probation department to evade the warrant requirement and engage in a warrantless search. Unless the evidence is first uncovered by probation officers because it was in plain view during a home visit or because the officers had legitimate reasonable suspicion, police officers must still obtain a search warrant prior to searching the home of someone who is on probation. When the police or probation department violate these rules, the evidence could be excluded following a successful motion to suppress. This rule is called the “stalking horse doctrine.”

Our Philadelphia Probation Lawyers Can Help With Probation Violation Hearings

Zak T. Goldstein, Esq. - Philadelphia Probation Violation Lawyer

Different standards apply to probationers, but law enforcement must still follow the law. If you or someone you know are facing narcotics or weapons charges for drugs or other contraband found in your house, car, or on or near your person, you need the advice of a skilled criminal defense lawyer immediately. Critical exculpatory evidence and witnesses could be lost due to delay, and there may very well be defenses ranging from a motion to suppress due to an illegal search to a lack of evidence of constructive or actual possession. We have even won motions to suppress significant quantities of drugs and guns due to illegal parole searches. Contact the Philadelphia criminal defense lawyers of Goldstein Mehta LLC at 267-225-2545 for a free, confidential, and honest case evaluation.

Can My Probation Officer Search My House Without a Warrant?