ND: Suspicionless probation search of an unsupervised probationer is unreasonable

A suspicionless probation search of an unsupervised probationer is unreasonable. SCOTUS’s probation and parolee search rationale does not apply. State v. Ballard, 2016 ND 8, 2016 N.D. LEXIS 15 (Jan. 14, 2016):

[*P34] The Fourth Amendment test for the “reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Knights, 534 U.S. at 118-19 (internal quotation omitted). The Court in Samson explained that probationers have expectations of privacy greater than parolees or prisoners. 547 U.S. at 850. (“As we noted in Knights, parolees are on the ‘continuum’ of state-imposed punishments. On this continuum, parolees have fewer expectations of privacy than probationers ….”) (citation omitted).

[*P35] Here, Ballard was an unsupervised probationer, not a parolee like Knights. Ballard’s status as a probationer informs both sides of the Fourth Amendment balancing test. See Knights, 534 U.S. at 119; Samson, 547 U.S. at 848. “Probation, like incarceration, is a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.” Griffin, 483 U.S. at 874 (citation omitted) (quotation marks omitted). “Probation is simply one point (or, more accurately, one set of points) on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service.” Id. “Inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled,” which justifies the “impos[ition] [of] reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.” Knights, 534 U.S. at 119 (citation omitted) (quotation marks omitted). See also State v. Schlosser, 202 N.W.2d at 139 (“The defendant’s status as a probationer does affect his rights under the Fourth Amendment.”); State v. Perbix, 331 N.W.2d at 18 (“We begin by recognizing that probation is not the same as freedom.”). Yet, probationers have greater expectations of privacy than do parolees or prisoners. Samson, 547 U.S. at 850.

[*P36] In Samson a parolee’s suspicionless search was deemed constitutional after the Court concluded the legitimate governmental interest exceeded the parolee’s expectation of privacy. The State’s interest was described as “substantial”:

“This Court has repeatedly acknowledged that a State has ‘an “overwhelming interest”‘ in supervising parolees because ‘”parolees … are more likely to commit future criminal offenses.”‘ Pennsylvania Bd. of Probation and Parole, 524 U.S., at 365, 118 S.Ct. 2014 (explaining that the interest in combating recidivism ‘is the very premise behind the system of close parole supervision’). Similarly, this Court has repeatedly acknowledged that a State’s interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment.”

547 U.S. at 853.

[*P37] Penalties imposed in criminal proceedings should bear the hallmark of proportionality. See Leo M. Romero, Punitive Damages, Criminal Punishment and Proportionality: The Importance of Legislative Limits, 41 Conn. L. Rev. 109, 118 (2008) (“Proportionality of punishment to an offense involves two judgments–how serious is the offense and how much punishment does it deserve. In the case of criminal punishment, legislatures make these judgments.”). Legislative judgment, as an expression of the public will, typically imposes more serious penalties on more serious crimes. Id. Presumably, the converse also is true, punishing less serious crimes less strictly. If the state’s interest in supervising parolees upon release from prison is “overwhelming,” the corollary is that the state’s interest in restraining the liberty of an unsupervised probationer is much less.

[*P38] The defendant’s expectation of privacy is the other interest to be weighed. In Samson, the parolee’s privacy interests were severely limited due to his conditions of release from incarceration for being a felon in possession of a firearm. 547 U.S. at 846. Samson’s parole conditions (1) required him to immediately report to his parole officer upon release from prison; (2) required him to give 72-hour notice of change of employment; (3) required him to request permission to travel more than 50 miles from his place of habitation; (4) prohibited him from engaging in criminal conduct; (5) barred him from possessing firearms or weapons; and (6) subjected him to psychiatric treatment or other special conditions as were subsequently imposed by the Board of Parole Hearings or the California Department of Corrections. Id. at 851-52.