The United States 7th Circuit Court of Appeals has recently decided the case of United States v. White (2015), which will provide significant guidance to law enforcement officers dealing with parolees or people on probation. Generally the Federal Courts have recognized that offenders that have been released on parole or placed on probation, have a reduced expectation of privacy in 4th Amendment protections.
The justification for this reduced privacy is based on the fact that they are allowed into society only by the graces of the criminal justice system, and were it not for parole or probation they would be incarcerated, where there are very few expectations of privacy granted by the 4th Amendment. However, the level of 4th Amendment protections of parolees and probationers while in society still remains a question.
EDITOR’S NOTE: The review of important criminal case-law, particularly on the Federal level, is one of the primary goals of BlueSheepDog. Our intent is to educate officers on the latest findings on some of the most critical aspects of the job. However, we are not attorneys or legal representatives, so we recommend each reader consult with their local prosecutors and follow their Department policies.
The 7th U.S. Circuit Court of Appeals is responsible for Illinois, Indiana, and Wisconsin, and their rulings directly impact law enforcement within the 7th Circuit. However, the ruling of one Federal Appeals Court carries significant weight in the adjudication of similar cases in the different Federal Districts. As such, understanding the reasoning behind the ruling of one Federal Appeals Court can be extremely beneficial for officers throughout the country.
United States v. White (2015)
On March 25, 2015, the 7th U.S. Circuit Court of Appeals decided United States v. White, that decided the reasonableness of a warrantless, non-consensual search of a parolee on a condition of parole under the protections of the 4th Amendment. The 7th U.S. Circuit covers Illinois, Indiana, and Wisonsin.
The case began on March 29, 2011 when the Illinois Department of Corrections issued an arrest warrant for White for violating two conditions of his parole. White was on parole for felony convictions in Illinois, and as such, was under several restrictions as a condition of parole. The first violation came from White being identified as being the shooter by one of two victims of a shooting a week prior. Second, earlier in the month White’s parole officer had conducted a routine inspection of White’s bedroom and located packaging for a Glock .40 caliber magazine.
Two days after the warrant was issued, police received a tip that White was driving a green sport utility vehicle. That information led officers to the residence of White’s cousin, Tawana Williams, because she drove a car matching that description. Upon contacting her, Williams told police that she had been with White earlier that day and White had left a gym bag in her car. Without any further information the police searched White’s gym bag and located a .40 caliber Glock handgun, loaded with 10 rounds of ammunition.
Based on the discovery of the firearm, White was ultimately arrested and charged with possessing a firearm and ammunition as a felon in violation of 18 U.S.C. § 922(g)(1).
Motion to Suppress
At the onset of the case against White, he filed a motion to suppress the weapons found during the search of his bag which was in Tawana’s car. The trial court denied the motion, and White was convicted of the charges at a trial by jury. White then appealed the denial of his motion to suppress to the 7th U.S. Circuit Court of Appeals.
White’s argument on appeal centered around whether the officers violated his 4th Amendment rights when they searched his bag that was in Williams’ sport utility vehicle. Obviously the reasonableness of any search under the 4th Amendment is determined by U.S. Supreme Court precedence, and the precedence already established in the 7th Circuit Court of Appeals.
Individual State Law Dictates Parolee Conditions
However, the reasonableness in question in the case against White depended upon the extent of State law in Illinois in regards to how far parole conditions diminish a parolee’s (White’s) expectation of privacy. In this case the 7th Circuit relied on the Illinois case of People v. Absher.
The decision in the Absher case revealed an Illinois probationer’s agreement to consent to suspicion-less searches is best understood has having the effect of waiving his Fourth Amendment rights. In essence, when the probationer (or parolee) signs the paperwork agreement to enter into probation or parole instead of being incarcerated, they are signing a waiver of consent to suspicion less searches by law enforcement officers as a condition of their release. Though the Absher case specifically refers to probationers, the 7th Circuit found that it was still instructive to White’s condition as a parolee.
Having established a base line for understanding the Illinois State law on parolees and probationers, the 7th Circuit looked further into Federal Court findings in regards to parolees and probationers. The 7th Circuit reviewed the case of Samson v. California, where the United States Supreme Court case addressed certain issues regarding the searching of parolees.
Federal Law Examines the Reasonableness of State Law Restrictions
Regarding Samson, the Seventh Circuit stated:
“To determine the reasonableness of a search under the Fourth Amendment, we look at the totality of the circumstances, balancing the degree to which the search intrudes on individual liberty and the degree to which it promotes legitimate governmental interests. Wyoming v. Houghton, 526 U.S. 295, 300 (1999); Narducci v. Moore, 572 F.3d 313, 319 (7th Cir. 2009). Balancing those interests, the Supreme Court in Samson upheld a warrantless and suspicionless search of a parolee. There, the Court analyzed a parole condition substantively identical to the condition requiring White to “consent to a search of your person, property, or residence under your control.” Compare 730 ILCS 5/3-3-7(10) and People v. Wilson, 885 N.E.2d 1033, 1041-42 (Ill. 2008), with Samson, 547 U.S. at 846.”
The 7th Circuit did not decide whether the consent White signed as a part of his parole led to a “complete waiver” of 4th Amendment rights. Instead, the Court ruled that, when balancing the relevant interests of the government as opposed to White’s individual interests of liberty, the search was reasonable.
In making this decision the 7th Circuit Court of Appeals observed first that the government has an “overwhelming interest” in supervising parolees because they are more likely to commit crimes and must be reintegrated into the community. Given that legitimate governmental interest, the 7th Circuit Court of Appeals concluded that a “condition of release can so diminish or eliminate a released prisoner’s reasonable expectation of privacy that a suspicionless search by a law enforcement officer would not offend the Fourth Amendment.”
Decision of the 7th Circuit Court of Appeals
Thus the Court found under Samson, even if White did not actually consent to the bag’s search, his significantly diminished expectation of privacy due to his status as a parolee, balanced against the government’s substantial law-enforcement interest renders the search reasonable and therefore lawful.
Therefore, the 7th Circuit affirmed the denial of the motion to suppress, and White’s conviction on Federal weapons charges were upheld.
Of significant importance in the decision in U.S. v. White (2015) is the underlying State law on the conditions and restrictions placed on persons released on parole or probation. As such, police officers must have a strong understanding of their own State law in regards to these restrictions.
Parole Officer Direction
Some States require a suspicion-less search of a parolee or probationer to be conducted by the Parole officer, or at least under their direct instruction to do so. That means officers would have to contact the Parole officer in question and obtain direct authorization for a search, rather than having a blanket authority to do so simply because the person is on parole or probation.
Police With Full Authority
In other States, officers are provided the immediate authority to carry out the conditions on parolees or probationers. In those situations, the officers are allowed to search the parolee and their belongings simply for the fact that they are on parole.
Different Authority for Parolees v. Probationers
Some States recognize the differences between a person on parole (someone who has been incarcerated), and a probationer (who has not been incarcerated for their offense). In those States, a parolee has a much reduced expectation of privacy and may be searched much more easily. However, a probationer is recognized as someone whose “conviction” may be removed if they abide by the conditions of their probation during the time allotted. In those situations, a probationer may retain more of their 4th Amendment expectations of privacy, and their suspicion-less search may require direct involvement by the Probation officer or court order.
Know Your State Law!
As identified in this article, the crux of the reasonableness to search parolees and probationers will likely fall squarely on what each individual State allows in State law.