FL4: Parole searches not limited by time of day, but must be reasonable; this one at 5:45 am with 8 officers

Florida case law long has recognized warrantless probation and parole searches on reasonable suspicion, and statute is not required. Here, there wasn’t even a parole condition to submit to parole searches. This search started at 5:45 am and was reasonable, even though 6-7 police officers also participated in it. A gun was found. Harrell v. State, 2015 Fla. App. LEXIS 5849 (Fla. 4th DCA April 22, 2015):

Because of the significant factual differences between Knights and the instant case, Knights is not controlling. The Second District Court of Appeal has recognized that Grubbs is partially abrogated by Knights, but the court specified, “If law enforcement officers lack a reasonable suspicion to search, then Knights is inapplicable. In that instance, Knights would not conflict with Grubbs.” Bamberg v. State, 953 So. 2d 649, 654 n.4 (Fla. 2d DCA 2007). In the instant matter, the parties do not dispute that there was no reasonable suspicion to search; therefore, Grubbs is controlling and Knights is inapplicable.

A totality of the circumstances analysis is not necessary here, as the Florida Supreme Court has already determined that a search of a probationer by a probation officer is reasonable. As we have stated, such a search was expressly authorized by the court in Grubbs as “reasonable … and absolutely necessary for the proper supervision of probationers.” 373 So. 2d at 909. Accordingly, the subject search was reasonable and the trial court did not err in admitting the evidence.2

The second issue presented by Harrell on appeal—that the search was conducted at an unreasonable time and in an unreasonable manner—was not raised in the proceedings below and, therefore, we review the issue for fundamental error. See Hall v. State, 92 So. 3d 223, 225 (Fla. 4th DCA 2012) (“Absent fundamental error, an appeal may not be taken from a trial court’s judgment or order unless properly preserved.” (quoting Rhodes v. State, 986 So. 2d 501, 513 (Fla. 2008))).

The reasonableness of the manner of a search is dependent on the facts and circumstances of the case. Webster v. State, 201 So. 2d 789, 791 (Fla. 4th DCA 1967). A search may become unreasonable if made at an unreasonable hour or where there has been arbitrary or oppressive conduct on the part of the parole officer. See United States ex rel. Randazzo v. Follette, 282 F. Supp. 10, 13 (S.D.N.Y. 1968), aff’d, 418 F.2d 1319 (2d Cir. 1969).

While there does not appear to be any Florida case directly opining on times at which a search would be considered unreasonable, Florida courts have allowed the admission of evidence obtained in non-exigent searches conducted at more egregious hours than the 5:45 a.m. [*11] search at issue here. State v. Chen, 1 So. 3d 1257, 1259-60 (Fla. 2d DCA 2009) (reversing order suppressing evidence obtained in 12:30 a.m. search of apartment); State v. Swank, 399 So. 2d 510, 512 (Fla. 4th DCA 1981) (reversing order suppressing evidence obtained in 4:00 a.m. search of hotel room). Furthermore, section 948.03(1)(b), which permits a supervisor to visit a probationer at his home, places no time restrictions on the visits. Such a restriction would be counterproductive for obvious reasons. Consequently, the trial court did not fundamentally err in admitting the evidence despite the allegedly unreasonable hour of the search.

Furthermore, the probation officers’ accompaniment by law enforcement officers as well as the officers’ detention of the residents during the search were precautionary safety measures and did not violate constitutional prohibitions on unreasonable searches. See Yule, 905 So. 2d at 255 (explaining that the interest in probation officer safety outweighed any additional intrusion into probationer’s privacy and was adequate justification for the detention of probationer’s roommate).