Probation search affected his relatives, too, and would have violated their Fourth Amendment rights, but qualified immunity protects the officers

The search of a probationer’s home affected the rights of those who lived with him, too, and their rights were violated by the entry. The officer, however, wins on qualified immunity. Thornton v. Lund, 538 F. Supp. 2d 1053 (E.D. Wis. 2008):

Of course, officials may not search a home without a warrant based on the parolee/probationer exception if the home is not the residence of the parolee or probationer. See, e.g., Motley v. Parks, 432 F.3d 1072, 1078 (9th Cir. 2005) (en banc); Moore v. Vega, 371 F.3d 110, 116 (2d Cir. 2004); see also Steagald, 451 U.S. at 220 (holding that officials may not enter a third-party’s home to locate the subject of an arrest warrant unless they also hold a search warrant for the home). However, if officials reasonably believe that a parolee or probationer lives at a particular house, courts analyze the search as if the parolee or probationer in fact lived there. Motley, 432 F.3d at 1078; Moore, 371 F.3d at 117.

In the present case, defendants argue that they had a right to enter and search plaintiffs’ home without a warrant because they reasonably believed that William lived there and they suspected him of having engaged in criminal activity. Although William appears not to have been living in plaintiffs’ home, plaintiffs do not appear to dispute that defendants reasonably believed that he lived there. As discussed, William had a low expectation of privacy and had consented to a search of his living area. See Samson, 126 S. Ct. at 2199; Knights, 534 U.S. at 119-20; Barnett, 415 F.3d at 692. However, William is not a plaintiff, and Fourth Amendment rights “are personal in nature.” Steagald, 451 U.S. at 219. A search that is reasonable as to one individual may be unreasonable as to another. Randolph, 547 U.S. at 119; Steagald, 451 U.S. at 219. Thus, the question presented is whether plaintiffs’ own Fourth Amendment rights were diminished because defendants reasonably believed that William, a parolee, lived in their home.

Some courts have treated individuals living with parolees and probationers as having diminished Fourth Amendment rights. See, e.g., United States v. Cantley, 130 F.3d 1371, 1377 (10th Cir. 1997); Perez v. Simmons, 884 F.2d 1136, 1140 (9th Cir. 1988); People v. Robles, 23 Cal. 4th 789, 97 Cal. Rptr. 2d 914, 3 P.3d 311, 317 (Cal. 2000). However, the basis for these decisions is unclear. Perhaps such courts assumed that individuals living with parolees and probationers have a diminished expectation of privacy. However, the reasoning underlying the Supreme Court’s view that parolees and probationers have a diminished privacy interest appears not to apply to individuals with whom they live. Parolees and probationers have a low expectation of privacy because their liberty is conditional and because the government “clearly expressed” to them that they were subject to warrantless searches, and they acknowledged this “unambiguously.” Samson, 126 S. Ct. at 2199; Knights, 534 U.S. at 119-20. Where, as here, the government gave the parolee’s co-resident no notice of its intent to search and the co-resident did not consent to a search, the rationale for concluding that the co-resident has a diminished privacy interest evaporates.

Other courts have held that a parolee’s co-resident has a diminished privacy interest based on the parolee’s consent to warrantless searches. Donald v. Delaware, 903 A.2d 315, 319-21 (Del. 2006); North Dakota v. Hurt, 2007 ND 192 P18, 743 N.W.2d 102 (2007); Wisconsin v. West, 185 Wis. 2d 68, 95-96, 517 N.W.2d 482 (1994). However, although one co-tenant may authorize a search of a home, such authorization is insufficient if another co-tenant is present and objects to the search. Randolph, 547 U.S. at 119. In the present case, both plaintiffs were present when defendants sought to search their home, and both refused to consent to a search. The parties dispute whether Sherrie subsequently changed her position, but it is undisputed that Latanga did not. Thus, notwithstanding William’s consent, defendants’ entry into and search of plaintiffs’ home was unreasonable as to Latanga and, under Sherrie’s version of the facts, was also unreasonable as to Sherrie. See Randolph, 547 U.S. at 119. Thus, defendants violated Latanga’s Fourth Amendment right to be free from unreasonable searches and may also have violated Sherrie’s right.