IA: Parole search provision not true consent based under state constitution

Iowa concludes that a parole agreement with a consent provision is not true consent under the state constitution. The case has a complete analysis of consent of probationers v. parolees and concludes there is no bargaining power for the parolee. [Not that anybody truly has that much bargaining power.] State v. Baldon, 829 N.W.2d 785 (Iowa 2013):

Additionally, two cases pique our concern that suspicionless consent searches of parolees also impact persons who live with parolees. See McFerrin v. State, 42 S.W.3d 529, 534-35 (Ark. 2001) (holding parole officer could extract consent from parolee’s sister prior to parolee’s release); Devore, 2 P.3d at 156-57 & nn.1, 2 (holding a search notification form requiring parolee’s roommates to submit to suspicionless searches created valid consent). Another case cogently explains the fear about these cases. Roman, 570 P.2d at 1241-42. The Roman court stated:

“Fourth amendment protection will be diminished not only for parolees, but also for the family and friends with whom the parolee might be living. Those bystanders may find themselves subject to warrantless searches only because they are good enough to shelter the parolee, and they may therefore be less willing to help him—a sadly ironic result in a system designed to encourage reintegration into society. Moreover, the demeaning effect of arbitrary intrusions into the parolee’s privacy will be reflected in the attitudes of his relatives and friends. As a result, the parolee will suffer diminished feelings of self-worth, making his rehabilitation more difficult. In addition, warrantless parole officer searches may reinforce patterns of resentment to authority, and excessive external controls may inhibit the development of necessary internal controls: ‘a person must have the freedom to be responsible if he is to become responsibly free.'”

Id. at 1243 (quoting Note, Striking the Balance Between Privacy and Supervision: The Fourth Amendment and Parole and Probation Searches of Parolees and Probationers, 51 N.Y.U. L. Rev. 800, 816-17 (1976) (footnotes omitted)). Roman actually rejected consent as a rationale for upholding searches of parolees, although it held limited searches of parolees were acceptable under another rationale. See id. at 1241-42, 1243-44. These collective observations give us pause to follow this line of authority.