probation attorney

Can the Police Search My Home If I Am on Probation?

probation attorneyIf you are convicted of a criminal offense, the court may decide to sentence you to a period of probation in lieu of, or in addition to, a period of incarceration. While you are on probation, you must abide by a number of rules and conditions because you remain under the jurisdiction of the sentencing court. In addition, you lose some of your rights while on probation. A common concern probationers have is whether the police can conduct a search of their home while on probation. To answer that question, a Tennessee probation attorney explains your rights with regard to a search of your home by the police while on probation.

Probation Basics

Probation is a sentencing alternative. When probation is ordered, it is typically ordered in addition to a suspended sentence. This is one of the numerous ways in which defendants misunderstand their probationary sentence. The judge usually sentences the defendant to a period of time in jail/prison and then suspends that time, allowing the defendant to spend that time on probation instead of in jail/prison. For example, you might be sentenced to serve 365 days in jail, but have all 365 days suspended and ordered to spend that same amount of time on probation. The jail time, however, remains “hanging over your head.”

Search and Seizure Basics

In the United States, searches and seizures are governed by the Fourth Amendment to the United States Constitution which reads:

“The right of the 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.”

The 4th Amendment requires a law enforcement officer to obtain a warrant, based on probable cause, before conducting a search and seizure. Over time, however, that requirement has been watered down and exceptions have evolved. The most commonly used exception for the search of a home is consent.

Did You Already Consent?

When you are sentenced to serve a period of time on probation, the court retains jurisdiction over you until you complete your probation. While on probation, you are supervised by a probation officer. When you initially registered for probation, you likely completed a number of documents. One of those may have been a consent to search your home. Different states, and even different counties within the same state, implement their own procedures and rules for probationers; however, it is common for a probationer to effectively waive some of his/her rights while on probation.

Does the Probation Officer Have “Reasonable Suspicion”

In situations where a probationer has not already consented to a search, the standard required for a probation officer to conduct a search is usually lower than it would be for a law enforcement officer to conduct a similar search. Instead of needing “probable cause,” a probation officer must only have a “reasonable suspicion” that contraband will be found within the home.

Can the Officer Search the Entire House?

Yet another area of search and seizure law relating to a probationer that is somewhat convoluted is the extent of the search that can be conducted. If you are on probation, and you share a house or apartment with roommates, can your probation officer search the entire house, or is there a limit to the extent of the search even if reasonable suspicion exists? A recent appellate decision in Tennessee sheds some light on this issue. In State of Tennessee v. Janet Michelle Stanfield, Tony Alan Winsett, and Justin Bradley Stanfield (2017), a probationer, a parolee, and another person lived in a house which was searched by police without a warrant. They were arrested for drugs found at the house, and moved to suppress the evidence. The trial court granted the motion and suppressed the evidence. The appellate court affirmed. The court first rejected the State’s argument that the parolee consented to a search solely because of his parole status, writing that the search must nonetheless be constitutionally reasonable under the totality of the circumstances pursuant to State v. Turner (Tenn. 2009). Similarly, with respect to the probationer, the court held the officers lacked the reasonable suspicion required to search a person on parole. With respect to the person not on probation or parole, the court rejected the State’s argument that he waived his rights by living with people on probation and parole, as well as the argument that his open bedroom door demonstrated a “shared common authority.”

Contact a Tennessee Probation Attorney

If you have additional questions or concerns about probation in Tennessee, consult with an experienced Tennessee probation attorney at Bennett, Michael & Hornsby as soon as possible. Contact the team today by calling 615-898-1560 to schedule your appointment.

Stan Bennett