In a wide ranging opinion on parole searches, the Arizona court holds that there is no Fourth Amendment or state constitutional requirement of reasonable suspicion for a parole search. There are good policy reasons for suspicionless searches. State v. Adair, 2016 Ariz. LEXIS 308 (Nov. 22, 2016):
P18 Considering the holdings and reasoning in that trilogy of Supreme Court cases, we agree with the court of appeals that in assessing whether the probation officers’ warrantless search of Adair’s residence was lawful, “reasonableness under the totality of the circumstances satisfies the requirements of the Fourth Amendment.” Adair, 238 Ariz. at 194 ¶ 1, 358 P.3d at 615. As the court of appeals correctly observed, the cases on which the trial court relied “found that ‘reasonable suspicion’ for a probation officer’s warrantless search of a probationer’s residence satisfied the Fourth Amendment, but did not hold that reasonable suspicion was constitutionally mandated.” Id. at 197 ¶ 11, 358 P.3d at 618 (citing cases). Instead, as noted above (supra, ¶ 16), the Supreme Court has not required reasonable suspicion as a threshold standard for warrantless searches of probationers’ residences, and for several reasons we are not inclined to do so.
P19 First, Samson reiterated that “[t]he touchstone [or “object”] of the Fourth Amendment is reasonableness, not individualized suspicion,” and that “the Fourth Amendment imposes no irreducible requirement of such suspicion.” 547 U.S. at 855 n.4 (citation and internal quotation marks omitted). Although Samson did not equate parolees with probationers, noting that the former “have fewer expectations of privacy” than the latter, id. at 850, the Court did not suggest that the difference was so significant as to require a showing of reasonable suspicion to conduct a warrantless probationary search, particularly when the applicable probation conditions specifically and expressly authorize such searches. And, importantly, the state’s “substantial” interests that weighed heavily in the Court’s balancing of interests in Samson — “recidivism, public safety, and reintegration of parolees into productive society” — exist here as well. Id. at 853, 855 n.4.
P20 Second, Samson observed that “[i]mposing a reasonable suspicion requirement . . . would give parolees greater opportunity to anticipate searches and conceal criminality.” Id. at 854. That same concern applies to probationers, as Samson, Knights, and Griffin recognized. Id. (citing Knights, 534 U.S. at 120; Griffin, 483 U.S. at 879). “In some cases—especially those involving drugs or illegal weapons—the probation agency must be able to act based upon a lesser degree of certainty than the Fourth Amendment would otherwise require in order to intervene before a probationer does damage to himself or society.” Griffin, 483 U.S. at 879. Because “the similarities between parole and probation . . . are far greater than the differences,” we conclude that reasonable suspicion is not necessarily required for a probationary search. Cf. State v. Vanderkolk, 32 N.E.3d 775, 779-80 (Ind. 2015) (holding that probationers who have been clearly informed that their probation conditions unambiguously authorize warrantless and suspicionless searches are subject to warrantless searches without reasonable suspicion).
P21 Third, contrary to Adair’s argument, probationary searches conducted pursuant to clear, specific probation conditions are materially different from other types of searches that require reasonable suspicion. See, e.g., O’Connor v. Ortega, 480 U.S. 709, 722-26, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987) (weighing hospital’s interests against a doctor’s privacy interests and concluding that search would be proper if supported by reasonable grounds for suspecting search would uncover evidence of doctor’s misconduct); New Jersey v. T.L.O., 469 U.S. 325, 337-42, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985) (weighing government’s interests against school student’s privacy interests and finding search of student’s purse reasonable only if supported by reasonable grounds to believe search would reveal evidence that student violated the law or school rules); United States v. Brignoni-Ponce, 422 U.S. 873, 878-82, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975) (balancing government’s interest against motorist’s to find that roving immigration stops of vehicles must be supported by reasonable suspicion); Terry v. Ohio, 392 U.S. 1, 19, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (requiring reasonable suspicion before conducting investigatory stop and frisk of pedestrian on public property). The status and privacy interests of doctors, students, motorists, and pedestrians are not analogous to those of convicted felons on probation. The respective interests of the government and the persons subjected to searches in non-probation cases are not fairly comparable to the parties’ respective interests here.
P22 Accordingly, we reject Adair’s assertion that the Fourth Amendment categorically requires reasonable suspicion for all warrantless searches of probationers’ residences. A search of a convicted felon/probationer’s home, conducted by probation officers pursuant to valid probation conditions, is categorically different from police officers’ investigatory stops of vehicles or pedestrians. Cf. Evans, 237 Ariz. at 235 ¶ 17, 349 P.3d at 209 (holding that “reasonable suspicion under the Fourth Amendment does not require officers to testify about how their observations reduce or eliminate the possibility that innocent travelers will be subject to seizures or trial courts to make specific findings on that issue”); Serna, 235 Ariz. at 275 ¶ 21, 276 ¶ 28, 331 P.3d at 410, 411 (holding that, absent consent, a frisk of a suspect’s person is permissible only if the officer “reasonably suspect[s] both that criminal activity is afoot and that the suspect is armed and dangerous”).
