Probation and Parole: Procedural Protection

An extraordinary array of conditions limit the freedom of probationers and parolees. As noted, almost all of those conditions are upheld by the courts. The Constitution itself is viewed as not being fully applicable to probationers and parolees whose constitutional identity is less than the ordinary citizen but more than that of a prisoner.

In Griffin v. Wisconsin, 483 U.S. 868 (1987), a probationer's home was searched by probation officers, accompanied by police, without consent, without a warrant, and without the semblance of probable cause. A handgun was found and introduced in evidence over objection at Griffin's felony trial.

The Supreme Court upheld the search as "reasonable" under the Fourth Amendment, stressing that the search was conducted under a state regulation authorizing probation officers to search a probationer's home when there were "reasonable grounds" to believe there was contraband in the home.

Plainly this search and seizure would have been illegal if Griffin had not been on probation or parole. The Supreme Court, without actually expressing this, had to choose between affording the probationer's home the traditional privacy protections extended the home or opting for the total lack of privacy protection afforded a prisoner's cell. (See Hudson v. Palmer, 468 U.S. 517 (1984)). The Court opted for the latter and in so doing diluted the privacy of other occupants of the home and also invited baseless searches.

In Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357 (1998), the Pennsylvania Supreme Court had found that a search of a parolee's home without the owner's consent and not authorized by any state statutory or regulatory framework violated the Fourth Amendment and the evidence seized should not have been admitted at a revocation hearing. The U.S. Supreme Court reversed, in a 5–4 decision, holding that parole boards are not required by federal law to exclude evidence obtained in violation of the Fourth Amendment. The exclusionary rule was said to threaten the traditionally informal process of parole revocation and any marginal gains in deterrence would be offset by the significant restraints on the parole process.

The Court did not rule on the question of whether the actual search was unreasonable, noting that the case could be decided by ruling only on whether any such evidence must be excluded by a parole board. Thus, an open question from Griffin remains open: must there be reasonable suspicion to search a parolee's home where the parolee consents in advance as a condition of parole?