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Searches, Parolees, Reasonableness, and GPS

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On Monday, the Supreme Court decided in Samson v. California that a California law requiring that parolees be subject to search by any police officer at any time does not violate the Fourth Amendment. CJLF's press release on the case is here, and our brief is here. There were three possible theories under which this condition might have been upheld: consent, special needs, or the general reasonableness of the requirement. The Court chose the latter theory.

For parole as it traditionally existed, consent would have been the easiest route. Prisoners applied to go outside the prison walls, on parole, for a portion of the time they were sentenced to incarceration. The state could grant that favor on condition of the prisoner's acceptance of conditions, including consent to be searched. A prisoner unwilling to accept that condition could choose to stay in prison. However, this theory would not apply to parolees, including some in California, who have a mandatory parole term tacked on to the ends of their sentences. For these parolees, there is no consent.

The Supreme Court has also approved searches without individualized suspicion in circumstances where a special societal need requires them. These include the all-too-familiar airport and courthouse screenings, post-accident drug tests of railway employees, Skinner v. Railway Labor Executives' Assn., 489 U.S. 602 (1989) and drunk-driving checkpoints. See Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). However, the Court has also held that a general interest in crime control is not a "special need" for this purpose, evidently fearing a slippery slope that would change these intrusions from the exception to the rule. See City of Indianapolis v. Edmond, 531 U.S. 32, 42 (2000).

The third route, the one chosen by the Court, recognizes that the Fourth Amendment does not protect against all searches but only unreasonable ones. While suspicion is required for most searches, it is not required when there is no expectation of privacy that society is prepared to recognize as reasonable. The mandatory parole term and the search condition were both provided by law before Samson committed his crime. The state has a vital interest in protecting its citizens from convicted felons that it chooses to allow out on parole instead of using longer prison terms.

Both the special needs and the reasonable expectation of privacy rationales are presented in CJLF's brief. Why did the Court go with the latter? Possibly the justices saw this slope as the less slippery of the two. This rationale does not require any further limitation of the holding of Edmond that general crime control does not come within the "special needs" doctrine.

One particular controversy that should be put to rest by this ruling is the claim that GPS tracking of parolees is a violation of the Fourth Amendment. There are many people whom society presently must keep locked up who might be allowed out if we had a tamper-proof way to know where they are every minute of the day and night. No rational person would burglarize a home if the authorities would know he was there. If technology can make tracking truly tamper-proof, then GPS has great potential to reduce the enormous expense of prisons without injury to public safety. The Samson decision should clear the constitutional path for this technology.

1 Comment

Interesting thought about GPS tracking of parolees, but to me this decision is one of decidedly limited application, given that parole has become a disfavored practiced in many states. For example, here in North Carolina parole is largely a thing of the past.

Having said that, North Carolina *does* have a mandatory nine month period of "post-release supervision" for certain categories of serious felonies. This nine month period takes the place of the last nine months of active prison time that the convicted felon was sentenced to serve, and a violation of any of the numerous statutory conditions of release obligates the felon to return to prison and complete their active term. I suppose that an individual discharged from prison under this program could be considered in the same circumstance as the parolee in Samson, so perhaps the case has a broader application than I'm giving it credit for. I'd be interested to hear if other states have officially abolished parole but have instituted these mandatory post-release supervision programs.

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