Based on Mere Suspicion That a Probationer Lives Within
The Rutherford Institute has called on the U.S. Supreme Court to protect homeowners from warrantless searches by police based merely on a suspicion that a person on probation or parole resides on the premises.
Institute attorneys warn that if the Arkansas Supreme Court’s ruling in Bailey v. Arkansas is permitted to stand, it could establish a slippery slope that allows police to carry out warrantless searches in violation of the Fourth Amendment when police merely suspect but do not know or have probable cause to believe that a probationer lives on the premises.
“This case isn’t just about one search in Arkansas. It’s about a creeping erosion of our Fourth Amendment rights that threatens every homeowner in America,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “We’re on a slippery slope towards a society where police can invade any home based on nothing more than a hunch. It’s an affront to the Constitution and a danger to us all.”
Under Arkansas Code § 16-93-106, persons who are placed on supervised probation or parole are required to agree to a waiver that allows any law enforcement officer to conduct a warrantless search of their person, residence, electronic device, or motor vehicle at any time, day or night, whenever requested by the law enforcement officer, and the search does not need to be based on an articulable suspicion that the person is committing or has committed a new criminal offense. If a person refuses to waive their Fourth Amendment rights, then they will not be eligible for supervised release. The Rutherford Institute’s amicus brief notes that nearly four million individuals across the country are subject to supervised probation or parole, and about 65% of jurisdictions require similar waivers while many other jurisdictions are in states, like Arkansas, which impose the waiver as a condition of supervised release. This raises a concern, potentially affecting millions of innocent third parties throughout the country, when police officers mistakenly suspect that a probationer who has waived his Fourth Amendment rights is living at another’s residence, and then use that waiver as justification to search the home without a warrant or any indication of criminal activity.
The Arkansas Supreme Court ruled that police officers merely need reasonable suspicion to believe that the home is the probationer’s residence in order to conduct a search. But because police will often have reason to suspect a probationer or parolee is residing with a parent, sibling, or friend, The Rutherford Institute’s amicus brief warns that those relatives and friends will then lose their right to security in their homes. The brief highlights many cases where the rights of innocent third parties have been violated by police searching their homes based on a mistaken suspicion that a family member or friend who was on probation or the subject of an arrest warrant lived there—in one case the police shot and killed the owner’s dog, and in other cases police drew guns in front of children and traumatized a parolee’s mother who then went to the hospital and took several days to recover. The Institute’s brief argues that police officers must at least establish the higher standard of probable cause that a home is actually the probationer’s residence to avoid such reckless and damaging searches.
