11.8Searching a Parolee or Probationer

Generally, “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” People v Chandler, ___ Mich App ___, ___ (2024). “One such exception to the warrant requirement is for searches covered by the so-called ‘governmental special needs’ or ‘regulatory’ exception.” People v Hines, ___ Mich App ___, ___ (2025). “In the context of searches performed pursuant to this exception, neither a warrant nor probable cause are required as long as the search meets reasonable legislative or administrative standards.” Id. at ___ (quotation marks and citation omitted). See Griffin v Wisconsin, 483 US 868, 876 (1987) (authorizing probation officers to search probationers when they are suspected of criminal activity); see also Samson v California, 547 US 843, 849-850, 857 (2006) (permitting suspicionless search of parolees). “The United States Supreme Court placed great emphasis on whether a probationer or parolee knew of and accepted the diminished expectation of privacy.” Chandler, ___ Mich App at ___.

Parolees. The United States Supreme Court held that a suspicionless search conducted solely on the basis of an individual’s status as a parolee does not violate the Fourth Amendment. Samson, 547 US at 849-850, 857. The Samson case involved a California statute authorizing law enforcement officers to search a parolee—without a warrant and without suspicion of criminal conduct—solely on the basis of the person’s status as a parolee. Id. The question to be decided by the Samson Court was “[w]hether a condition of [a parolee’s] 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.” Id. at 847. The Court concluded that under the totality of the circumstances and in light of the legitimate government interests furthered by monitoring parolee activity, the suspicionless search of a parolee does not impermissibly intrude on the parolee’s already diminished expectation of privacy. Id. at 852, 857.¹

“[T]he special needs exception has generally provided a basis for the search of a parolee’s residence where there were reasonable grounds to believe that the probationer was in possession of contraband.” Hines, ___ Mich App at ___. In Hines, the defendant argued that “the warrantless search of his residence was unreasonable and unconstitutional because there was no connection between the search and the ‘parole process.’” Id. at ___. However, “there was more than an inchoate hunch that [defendant] had controlled substances at his residence.” Id. at ___ (“A confidential informant had purchased what he believed to be heroin (later identified as fentanyl) from [defendant] three weeks before his arrest.”). “At a minimum, this would violate standard terms of parole, such as not committing other crimes and prohibitions on possession and use of controlled substances without lawful authority.” Id. at ___. “As such, this would satisfy the reasonable legislative and regulatory needs contemplated by the ‘special needs’ exception to the warrant requirement.” Id. at ___ (noting that “this requirement can be a low hurdle” under United States Supreme Court precedent; see Sampson, 547 US 843 (2006)).

“At least for purposes of Michigan law, it remains unsettled what privacy interests a parolee retains and whether a parole search is lawful when it is not directly and closely related to the administration of the parole supervision system.” Hines, ___ Mich App at ___ (quotation marks and citation omitted) (“acknowledg[ing], without deciding, that Michigan’s constitution may provide more extensive protections than the federal constitution when it comes to ‘special needs’ searches”). “The discovery and seizure of drugs from [defendant’s] person were unrelated to the search of the residence.” Id. at ___ (“So, suppression of the evidence seized during the search of the residence would not impact the most critical evidence in this case.”). Defendant “was arrested with nearly a gram of methamphetamine, 31 bindles of fentanyl, and 36 tablets of imitation alprazolam” and “did not have any paraphernalia in his possession that could facilitate personal use.” Id. at ___. “[T]his evidence substantially undermined any suggestion that [defendant] was carrying the drugs for personal use.” Id. at ___. Accordingly, the defendant was unable to “establish that admission of the evidence discovered in his home affected the outcome of his case.” Id. at ___.

Probationers. “A warrantless search of a probationer’s property, without reasonable suspicion or a signed waiver of Fourth Amendment protections pursuant to an order of probation, is unconstitutional.” Chandler, ___ Mich App at ___. “States are permitted to infringe on a probationer’s privacy in ways that would otherwise be considered unconstitutional because the special needs of a probation system make the warrant requirement impracticable and justify replacement of the standard of probable cause by reasonable grounds.” Chandler, ___ Mich App at ___ (quotation marks and citation omitted). “[A] warrant requirement to search a probationer would interfere to an appreciable degree with the probation system by making a magistrate, rather than the probation officer, the judge of how closely a probationer needs to be supervised.” Id. at ___ (quotation marks and citation omitted).

“Probationers, however, do not forgo their Fourth Amendment rights in full.” Id. at ___. Indeed, “a probation search condition [is] a ‘salient circumstance’ that must be considered when examining whether a person’s Fourth Amendment rights were violated.” Id. at ___, citing United States v Knights, 534 US 112, 118 (2001). In Knights, the United States Supreme Court held that “a search of [defendant’s] property, performed after police officers suspected his involvement in another crime, was reasonable under the totality of the circumstances because [the defendant] signed his probation order and the officers had reasonable suspicion he had participated in criminal activity.” Chandler, ___ Mich App at ___, citing Knights, 534 US at 118-119 (declining to address the constitutionality of a suspicionless search because reasonable suspicion was present). “[A] waiver of Fourth Amendment protections may be a condition of parole if the person on probation gave their consent to the same and the waiver is reasonably tailored to a defendant’s rehabilitation.” Chandler, ___ Mich App at ___, citing People v Hellenthal, 186 Mich App 484, 486 (1990) (quotation marks omitted) (recognizing that “a person on probation can give their consent in return for more lenient treatment.”)

“A warrantless search of a probationer’s home is unconstitutional if not coupled with an express waiver from the probationer, or the presence of reasonable suspicion.” Chandler, ___ Mich App at ___. In Chandler, defendant’s “probation order simply stated he was to submit to a search of his person and property.” Id. at ___. “It did not include the requirement of reasonable cause as was stated at sentencing.” Id. at ___ (“A court speaks through its written orders and judgments, not through its oral pronouncements.”) (cleaned up). Considering Knights’ totality of the circumstances test, the Court of Appeals noted “the importance of the trial court’s probation order as a salient circumstance.” Chandler, ___ Mich App at ___. “However, [defendant] did not sign or date the probation order, and there [was] no indication that he was aware of its contents or consented to the same.” Id. at ___ (observing that defendant was told at sentencing “that he would be subject to searches if reasonable cause or suspicion existed that he had violated the terms of probation or committed a crime”). Accordingly, “the warrantless search of [defendant’s] bedroom violated [his] constitutional rights under the Fourth Amendment” and the fruits of the search must be suppressed “[b]arring any other Fourth Amendment exception to the warrant requirement.” Id. at ___.

The defendant’s probationer status at the time of a warrantless search of his mother’s apartment and the seizure of incriminating evidence therefrom did not permit officers to conduct the search based only on reasonable suspicion that criminal activity was occurring; Knights, 534 US 112, was distinguishable “because the prosecution did not submit evidence regarding the conditions of defendant’s probation in the trial court.” People v Mahdi, 317 Mich App 446, 465 (2016) (holding that “[w]ithout the probation conditions, there [was] insufficient evidence in the record to conclude that the officers had reasonable suspicion that a probationer subject to a search condition was engaged in criminal activity”).

Where the defendant’s “term of probation had already expired” and the circuit court improperly extended it, the “defendant was not on probation, [and the] officers had no authority to enter his home and conduct a warrantless search under the probation exception to the Fourth Amendment.” People v Vanderpool, 505 Mich 391, 394-395, 409 (2020). See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 9, for information on probation.