VA: Lifetime suspicionless probation search condition unreasonable

Defendant was convicted of rape and sentenced to 156 years with 140 suspended, or life suspended. He had a suspicionless probation/parole search condition imposed by the court. Lifetime suspension of his Fourth Amendment rights is neither related to the offense nor reasonable. Murry v. Commonwealth, 2014 Va. LEXIS 121 (September 12, 2014), reversing Murry v. Commonwealth, 62 Va. App. 179, 743 S.E.2d 302 (2013):

Murry, however, is challenging the reasonableness of the probation condition. In contrast to the defendant in Knights, he is not challenging the legality of an actual search. As we already stated, the balancing test used in Knights and other cases is, nevertheless, the appropriate framework to address the reasonableness of the probation condition because it affects Murry’s Fourth Amendment rights. See Carswell, 721 N.E.2d at 1258 (when a defendant contends that a probation condition is “unduly intrusive on a constitutional right,” a review of the condition must balance the constitutional rights enjoyed by the probationer and the legitimate needs of law enforcement); State v. Bennett, 288 Kan. 86, 200 P.3d 455, 463 (Kan. 2009) (balancing probationer’s expectation of privacy against state’s legitimate interests to decide whether probation condition authorizing suspicionless searches violated probationer’s Fourth Amendment rights); Jones, 41 P.3d at 1258 (determining the reasonableness of a probation condition waiving Fourth Amendment rights “requires a balancing of the interests of the state and the privacy interests of the probationer”). Murry’s future status as a probationer “informs both sides of that balance.” Knights, 534 U.S. at 119.

On Murry’s side of the balance, it is apparent from the decision in Knights that probationers retain some expectation of privacy, albeit diminished. See id. at 121 (“When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable.”) (emphasis added); see also Samson, 547 U.S. at 850-52 & n.2 (explaining that parolees have fewer expectations of privacy than probationers and that, in Knights, the probationer’s acceptance of the probation condition there significantly diminished his expectation of privacy); Griffin, 483 U.S. at 875 (“Supervision … is a ‘special need’ of the [s]tate permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large. That permissible degree is not unlimited, however.”); United States v. Stewart, 468 F.Supp.2d 261, 278 (D. Mass. 2007) (“[T]here must be some privacy rights that a probationer retains and from which he can exclude the government unless it comes armed with a warrant or individualized suspicion.”); People v. Johns, 342 Ill. App. 3d 297, 795 N.E.2d 433, 437, 277 Ill. Dec. 66 (Ill. App. Ct. 2003) (explaining that a probationer’s expectation of privacy is diminished but not extinguished); Bennett, 200 P.3d at 463 (“[A]lthough probationers’ privacy rights are more limited than are the rights of free citizens, probationers do enjoy some expectation of privacy in their persons and property.”); People v. Hale, 93 N.Y.2d 454, 714 N.E.2d 861, 863, 692 N.Y.S.2d 649 (N.Y. 1999) (“[A] probationer loses some privacy expectations and some of the protections of the Fourth Amendment, but not all of both.”).

The probation condition challenged in this appeal subjects Murry to searches of his person, property, residence, and vehicle at any time by any probation or law enforcement officer. Neither a search warrant nor even reasonable cause is required. Furthermore, the probation condition not only authorizes suspicionless searches but also allows such searches for both probation and investigative purposes. See Hale, 714 N.E.2d at 862, 865 (upholding search conducted pursuant to a probation condition that allowed only searches for specific items by probation officers). There is no question that the degree of intrusion on Murry’s expectation of privacy as a probationer is significant. In reality, it extinguishes any Fourth Amendment rights Murry may have as a probationer.