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The Fourth Amendment typically prevents police from searching someone's person, belongings, or home without a warrant or probable cause. But it's common for judges, as a condition of sentencing someone to probation, to require that the probationer agree to warrantless searches. Because this condition gives up the probationer's normal Fourth Amendment rights, it's often called a "Fourth waiver."
Because a sentence of probation is usually an alternative to a jail sentence, courts have found that probationers have reduced expectations of privacy—that is, they don't have the same Fourth Amendment rights as others. That's why courts can require probationers to submit to warrantless searches not supported by probable cause. The goal is to help rehabilitate the probationer, protect society, or both.
Although officers usually need probable cause before they can search a person or home (they typically need a warrant for the latter), a search condition eliminates this requirement. In some states, an officer must have reasonable suspicion before conducting a probation search, but in others, an officer can conduct one at any time, even without reason to believe that the probationer committed a crime. Some search conditions allow only probation officers to search, while others authorize both probation and police officers to do the same.
Any time, any place. The strictest type of probation search condition requires that the probationer agree to any search at any time by a probation officer or police officer. Under this condition, the officer doesn't need to suspect the probationer of a crime before searching.
Reasonable suspicion. Another common type of search condition requires that the probationer agree to reasonable searches at reasonable times. In this case, the officer must have "reasonable suspicion" that the probationer has committed a crime or possesses contraband (such as drugs, weapons, or stolen property).
Contraband. Yet another kind of search condition allows an officer to search a probationer only if the officer has reason to suspect that the probationer possesses drugs, weapons, or both. This is sometimes called a "drug search condition" or "contraband search condition," because it only allows an officer to search for drugs or weapons, not for evidence of other crimes.
Whether there is reasonable suspicion for a search depends on what the officer observes. Some examples of reasonable suspicion to search a probationer's home include:
When the probationer has been convicted of a drug crime or has a history of drug or alcohol abuse, the judge can almost always include a search condition as part of probation. Courts have found that search conditions help prevent further drug or alcohol abuse. Even in cases that don't involve drugs or substance abuse, courts routinely consider search conditions valid.
Example: Shawn is convicted of receiving stolen property. He has been convicted of drug and theft crimes before. The judge sentences him to three years of probation and includes a search condition. The probation officer searches Shawn's home and finds marijuana. The court finds that the search is reasonable, because the search condition was related to Shawn's rehabilitation based on his history of drug and theft crimes. (Allen v. State, 258 Ga. 424 (1988).)
Defendants may occasionally be able to avoid a probation search condition by objecting at the sentencing hearing, when the judge sets the conditions of probation. That's why it's important that you have knowledgeable legal counsel (your lawyer will also be able to determine whether objecting to the search condition is a bad idea).
If the case involves a guilty plea, a lawyer should discuss the conditions of probation with the prosecutor before the plea. Depending on the circumstances, the prosecutor might agree to a modification or elimination of a search condition. Once a defendant agrees to a probation search condition, it is very difficult—if not impossible—to successfully challenge a subsequent search.