Warrantless Searches for Probationers in Arizona

Arizona Court of Appeals: A search subject to probation terms significantly diminishes privacy rights

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If you are placed on probation for a drug crime in Arizona, you have a reduced expectation of privacy than you had before.

This means that, depending on the probation conditions, the privacy protections you thought you had under the Fourth Amendment of the United States Constitution related to search and seizure may not apply.

In a recent Court of Appeals case  the state of Arizona appealed after the lower court granted a defendant’s motion to suppress the evidence of a warrantless search.

In this article we will examine a recent Court of Appeals case which centered around the challenge of a warrantless search at the residence of a probationers.

We will also take a closer look at some key legal concepts that the court examined in the process establishing a ruling in this case.  The legal concepts we will discuss following the overview and court ruling summary include:

  • Privacy rights for warrantless searches under the U.S. Constitution 4th Amendment;
  • Privacy rights for warrantless searches of a person’s residence under the Arizona Constitution Article 2, Section 8;
  • A comparison of the two, and discussion as to why the more liberal privacy rights afforded under Arizona law did not apply;
  • Assessing “Totality of the Circumstances” for reasonableness of a warrantless search on a probationer’s residence.

Case Overview

The case arose when the lower court placed the defendant on supervised probation after he was convicted of a repeat felony drug charge for solicitation to possess crack cocaine for sale.

The defendant’s probation conditions were not unusual for the offenses. They included requirements that he maintain a crime-free lifestyle; refrain from possessing firearms or ammunition; submit to searches and seizures of person and property by the Adult Probation Department without a search warrant; and submit to periodic drug testing.

Pursuant to the conditions of probation, the probation department searched the defendant’s home without a warrant on several occasions before the search at issue in this case.

An informant told an officer that the defendant was on probation, but he thought that the defendant was still selling crack.

The informant also said that he thought the defendant’s young child was coming with the defendant to the drug sale transactions.

The police advised the defendant’s probation officer, that the informant claimed that drugs were being sold from the defendant’s home.

Ten law enforcement officials including three probation officers and seven police officers went to the defendant’s home.

When the defendant met them at the door, the probation officer told him they were going to conduct a probation search.

It is not clear whether the defendant objected. The officers went inside without a warrant and seized contraband, including crack cocaine, a gun, and ammunition.

The defendant was charged with felony possession of drugs for sale, misconduct involving weapons, and possessing drug paraphernalia.

The probation officer filed a petition to revoke his probation.

The defendant filed a motion to suppress the items seized by police officers, arguing that it was a warrantless police search, rather than a search by probation officers.

The lower court rejected the argument, since the probation office participated.

The defendant filed a motion to reconsider on the grounds that the probation officers didn’t have reasonable suspicion to search.

The lower court granted the defendant’s motion to suppress, finding that there was an insufficient legal basis to search.

The court granted the motion to dismiss without prejudice, meaning that the prosecution could reinstate their actions in the case.  The State appealed.

The Court of Appeals pointed out that although a warrant based on probable cause is usually necessary for a search, there are exceptions.

Some exceptions include searches incidental to arrest; suspect’s consent, exigent circumstances; or delays for a warrant would jeopardize the safety of others.

One of these exceptions involves the probation officers’ right to search a probationer’s residence under the probation terms.  This type of search does not require a warrant or probable cause under the Fourth Amendment of the Constitution.

The defendant didn’t challenge the validity of his probation conditions or argue that the search violated those conditions.

Rather, the defendant’s argument was that the probation officer’s warrantless search of his home had to be based on a reasonable suspicion that he was engaged in criminal activity.

The State argued that the search simply had to be reasonable under the totality of the circumstances.

The Court of Appeals explained that in Arizona, a defendant must comply with probation conditions as long as they help in rehabilitation; or that the conditions are a reasonable alternative to incarceration as punishment for a crime.

So unless the terms violate the probationer’s rights or have no connection to the purpose of probation, the trial court has discretion in imposing conditions of probation.

The appellate court explained that while a defendant is on probation, he has a reduced expectation of privacy than other citizens have.

The appellate court explained that searches like the one of the defendant’s home were necessary to promote legitimate government interests, including the interest in integrating a probationer back into society, and preventing repeat offenses.

The U.S. Supreme Court has rejected imposing an individualized reasonable suspicion requirement.

Instead, the U.S. Supreme Court has directed courts to look at the “totality of the circumstances” to decide whether a search was reasonable.

The appellate court further explained that the person whose home was searched had to be a known probationer subject to a probation condition that allows a warrantless search. And that the search had to be conducted by a probation officer in an appropriate and non-harassing way in order to determine compliance with probation conditions.

The lower court’s order granting the motion to suppress was vacated, and the matter was sent bac00k to the lower court for further proceedings.

Warrantless Search & Seizures of Residence for Probationers under the 4th Amendment 

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The court analyzed cases involving Search & Seizures for Probationers under the 4th Amendment Constitution.

It pointed out that the 4th Amendment allows for the right for people to be free from unreasonable searches as well as their homes, papers, and effects.

The court acknowledged that under the 4th Amendment a warrantless search cannot be conducted in absence of probable cause, unless the circumstances fall within one of the meet one of the specified exceptions.

The United States Supreme Court has held that a warrant or probable cause is required for a Probation Officer to search a Probationer’s residence (United States v. Knights 1987).  In this case it was held that no more than a reasonable suspicion of criminal activity was necessary to conduct a warrantless search.

The Appeals Court began its analysis with several Arizona cases where the issue was challenged over the last 4 decades including State v. Montgomery.

In this case it was decided that court may require that the probationer comply with probation terms that related to the probationer’s rehabilitation and public protection. And that in this situation, probable cause is not a prerequisite if it is necessary for the probationer to perform their duties properly.

In State v. Hill warrantless searches of probationers probation officers were consistently recognized as reasonable and necessary to promote the continued use of probation as an alternative to incarceration.

The issue in this case was whether or not the warrantless search of the probationer’s residence was reasonable based on the “totality of the circumstances.”

The court held that “reasonableness” was the “touch tone” of the 4th Amendment (United States v. Knights).  In this case reasonableness was determined by assessing the degree to which it intrudes on a probationer’s privacy, in comparison to the degree in which it supports the government’s legitimate interests.

The Court held that the defendant’s status as a Probationer subject to a search condition significantly diminished the probationer’s Privacy Rights.

Totality of the Circumstances  

The count outlined factors recognized by precedent cases that can be used as a guide to consider as to whether or not a search is reasonable based on totality of circumstances which include:

  • The search must be pursuant to the facts;
  • The known probationer must be the target of the search;
  • The search must be subject to an enforceable and valid probation condition that allows for a search without a warrant;
  • The search must be conducted by a probation officer who possesses the duties and obligation to determine if the probationer is in violation or compliance;
  • The search must be in appropriate manner with rightful purpose;
  • The search must not be arbitrary; harassing, or capricious.

The Court noted that if the warrantless search was reasonable based on the totality of circumstances then it satisfied the requirements of the 4th Amendment.

Arizona Constitution v. United States Constitution

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In this and other precedent cases the defense relied on the fact that the language in the Arizona Constitution provides for more privacy to a person in their residence than does the 4th Amendment of the United States Constitution.

Article 2, Section 8 of the Arizona Constitution states “No person shall be disturbed in his private affairs, or his *home invaded, without authority of law.”

This compared to the IV Amendment of the United States Constitution which provides the for the rights of people “…to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

As we compare the two laws we see that Arizona expands more privacy rights to a person in their residence in that they have an expectation not to be disturbed in their private affairs, or to have their homes invaded without proper lawful [emphasis added] authority.

However in this case, the court held that the defendant did not provide a showing that the search of his home was in fact unlawful  (Arizona v. Roberson 2010). 

 Further, the court cited Arizona v. Juarez 2002, which held that the defendant’s rights will not be expanded beyond the United States Constitution’s 4th amendment, unless it can be shown the warrantless search of the home was “unlawful’.

*Note: The privacy protections that extend beyond the 4th Amendment of the United Sates Constitution under the Arizona Constitution Article 2, Section 8, apply to a person’s residence only, and not their vehicles.

Criminal Defense for Probation Violations, Drug Crimes, and Weapons Charges Mesa AZ 

due-process-3-300x209Probation violations often result in more severe penalties and sentencing than the original offense for which a person was convicted.

Although being on probation makes it more difficult to protect your rights.  It can leave you feeling as though your freedoms have been reduced, it is for many, a better alternative than a longer prison sentence or spending time in jail.

The Arizona Supreme Court has held that Probation is a privilege and that revoking it is a penalty (Arizona v. Montgomery; Arizona v. Lyons)

When a person is in violation of their probation terms, the probation may be revoked.

Under A.R.S. 13-901 the presiding Judge at their discretion may reinstate the original sentence, or the maximum penalty under the law allowed for the crime of which a person was convicted.

If you are accused of violating probation you will be given a court date for a hearing.

Generally the burden of proof to prove guilt or innocence of a crime is “beyond a reasonable doubt” which is the highest of standards in the USA criminal justice systems. But this is not the case for probation violations.  However, the standard for determining guilt or innocence in probation violation cases is by “preponderance of the evidence.”

Preponderance of the evidence means evidence that proves “more likely than not” that the probation was violated.

This means it is an easier task for the prosecution to convict a person of violating the terms of their probation that it is to convict them of a new criminal charge.

It is important that you consult an attorney about your probation violation before your court date to discuss your defense options.

 A probationer has diminished rights to privacy for search and seizures;

 But they do not lose the right to defend their charges in due process. 

You have the right to retain legal counsel, which will help you to protect your rights, and increase your chances of avoiding harsh sentencing associated with revocation of probation.

James Novak of the Law Office of James Novak provides a free initial consultation for active charges, in his service area.  He will discuss your matter with you, and provide you with options for defense.  Call or contact The Law Office of James Novak today for a confidential and free consultation at (480) 413-1499.

Additional Resources

Arizona Uniform Conditions of Supervised Probation

A.R.S. § 13-701 (Sentencing for felony)

A.R.S. § 13- 901 (Probation and Violation Laws)

Arizona 13-3925 (Unlawful Search and Seizure; Admissibility of Evidence)

Requirements and Exceptions to Lawful Search Warrants in Arizona

Arizona Constitution Article 2, Section 8 (Privacy Rights)

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