Courts have held that probationers are afforded a lesser expectation of privacy than individuals not on probation. As such, the United States Supreme Court has held that searches of probationers are deemed an exception to the probable cause and warrant requirement of the Fourth Amendment. However, certain criteria must be met for such a search to be reasonable under the Fourth Amendment. On July 8, 2014, the Tenth Circuit Court of Appeals decided the Leatherwood v. Welker et al. [i], which serves as an excellent review of the law pertaining to searches of probationers. The relevant facts of Leatherwood, taken directly from the case, are as follows:
Mr. Leatherwood was convicted of crimes in Oklahoma and placed on probation. His supervising probation officer, Defendant Denise Welker, received a phone call and an e-mail that led her to suspect that Mr. Leatherwood had violated various conditions of his probation. The district court did not set forth with specificity the contents of these communications, but Mr. Leatherwood did not dispute them.
The phone call, received July 27, 2009, was placed by Mr. Leatherwood’s former wife. She alleged personal knowledge that Mr. Leatherwood had raped his current girlfriend, Regina Wood, who had filed a restraining order against him. When Defendant Welker asked the former wife whether Mr. Leatherwood possessed any weapons, she said Mr. Leatherwood might have firearms in his truck, in a safe, and on a shelf in his garage. The conditions of Mr. Leatherwood’s probation prohibited him from possessing firearms and committing crimes.
The e-mail, sent September 4 and read September 7, 2009, was forwarded to Defendant Welker by an assistant district attorney, who received it from a confidential informant. The confidential informant relayed information from an anonymous source who alleged personal knowledge that Mr. Leatherwood had sent e-mails of a sexual nature to Ms. Wood, and that he had alcohol and sexual materials and devices in his home. The conditions of Mr. Leatherwood’s probation prohibited him from possessing pornography or sexually oriented materials.
On September 16, 2009, Defendant Welker met with other defendants to discuss the allegations against Mr. Leatherwood and obtained permission to conduct a warrantless search of his home. [ii] [Internal citations omitted]
Leatherwood filed suit against Welker and other probation officers for violating his Fourth Amendment right to be free from unreasonable searches and seizures. The probation officers filed a motion for qualified immunity and the district court denied the motion. The probation officers then appealed the denial of summary judgment and qualified immunity to the Tenth Circuit Court of Appeals.
At the outset, the Tenth Circuit stated that there are two different methods by which a court can evaluate whether a warrantless probation search is reasonable under the Fourth Amendment. The first method is to evaluate the case under the “special needs exception” standard set forth by the United States Supreme Court in Griffin v. Wisconsin. [iii] Under this method:
[A] probation search will satisfy the Fourth Amendment if it is carried out “pursuant to state law which itself satisfies the Fourth Amendment’s reasonableness requirement.” United States v. Lewis, 71 F.3d 358, 361 (10th Cir. 1995) (citing Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)). [iv]
The second method evaluates the case for reasonableness based upon the “totality of the circumstances” under the United States v. Knights [v], which was decided by the United States Supreme Court in 2001. Describing this method, the Tenth Circuit stated:
A probationer’s home, like anyone else’s, is protected by the Fourth Amendment’s requirement that searches be ‘reasonable.'” Griffin, 483 U.S. at 873. The reasonableness of a search is assessed by balancing the degree of intrusion into an individual’s privacy with the need for the search to promote governmental interests. Knights, 534 U.S. at 118-19. A defendant’s “status as a probationer subject to a search condition informs both sides of that balance.” Id. at 119. Specifically, probation search conditions considerably diminish the probationer’s reasonable expectation of privacy. Id. at 119-20. Mr. Leatherwood’s probation conditions subjected his property to search “within the policy of the Department of Corrections.” Aplt. App. 235. The relevant Oklahoma policy allows warrantless probation searches when there is reasonable suspicion of a probation violation or crime. Id. at 116. Given Mr. Leatherwood’s diminished expectation of privacy as a probationer, and the State’s interest in ensuring he did not violate the law, the search of his house was reasonable if supported by reasonable suspicion. See Knights, 534 U.S. at 121; Mabry, 728 F.3d at 1167; United States v. Tucker, 305 F.3d 1193, 1200 (10th Cir. 2002). [vi] [emphasis added]
Thus, the issue before the Tenth Circuit was whether the email and the information provided by Leatherwood’s ex-wife was sufficiently reliable to amount to the reasonable suspicion needed to justify the warrantless search of Leatherwood’s residence.
Leatherwood argued that the email and the information provided by his ex-wife were not sufficiently reliable to amount to reasonable suspicion. Beginning its analysis, the court noted that, while in normal context, information that amounts to reasonable suspicion must bear some indicia of reliability; however, since probationers have a limited expectation of privacy, this standard is lower when applied in probation situations. Specifically, the court stated:
Generally, anonymous tips must be corroborated and bear “sufficient indicia of reliability” to support reasonable suspicion. Florida v. J.L., 529 U.S. 266, 270 (2000). But probation searches may be premised on less reliable information than that required in other contexts. Griffin, 483 U.S. at 879. Accordingly, the Supreme Court in Griffin approved (under a special needs analysis) of a tip that came from a police officer but relayed hearsay information from an unidentified third party, was uncorroborated, and asserted only the possible existence of a violation. Id. at 878-80. In Tucker we approved of an uncorroborated tip from a known citizen-informant relaying information from anonymous sources where those sources alleged they had been in the defendant’s home and witnessed the violation. Tucker, 305 F.3d at 1196, 1201. And we have approved of probation searches based on anonymous or vague tips in other cases. See, e.g., United States v. Carter, 511 F.3d 1264, 1269 (10th Cir. 2008); United States v. Trujillo, 404 F.3d 1238, 1245 (10th Cir. 2005); Lewis, 71 F.3d at 362-63. [vii]
The court then applied the facts of the case to the “totality of the circumstance” method above. The court first stated the ex-wife had personal knowledge of Leatherwood. She was able to provide accurate information that Leatherwood was accused of rape and was able to provide the name of the current girlfriend and alleged victim. Further, she provided detailed information as to the location of the firearms in Leatherwood’s residence. While Leatherwood states, that as his ex-wife, she had motivation to lie, the court said that the probation officers were still able to credit her information. Further, since they knew the identity of the ex-wife, they could hold her accountable if she lied to them. Thus, the court held that the information provided by the ex-wife was sufficiently reliable to create reasonable suspicion.
The court also evaluated the information contained in the anonymous email. While the email was sent by an anonymous writer, the information contained in the email was relayed to the probation officers by an assistant district attorney known to the probation officers. Further, the anonymous writer alleged a reliable basis of knowledge, specifically that she had been in Leatherwood’s home and seen the violations.
The Tenth Circuit then held:
We conclude that on the basis of the telephone call and e-mail, defendants had reasonable suspicion that Mr. Leatherwood committed probation violations, and thus the search of his home did not violate his Fourth Amendment rights. [viii]
As such, the probation officers were entitled to summary judgment and qualified immunity in this case.
Law enforcement officers (police officers and deputy sheriffs) who wish to conduct searches of probationers based on the lower reasonable suspicion standard, should verify legal opinion in their specific jurisdiction; it may be required that the search be conducted in conjunction with a probation officer since the purpose of these searches is to ensure compliance with terms of probation rather than to facilitate active investigations.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 13-6152 (10th Cir. Decided July 8, 2014)
[ii] Id. at 5-7
[iii] 483 U.S. 868 (1987)
[iv] Leatherwood at 7
[v] 534 U.S. 112 (2001)
[vi] Leatherwood at 8-9
[vii] Id. at 9-10
[viii] Id. at 11