§ 3.1.6 Probation and Parole
Different rules govern the searches of probationers and parolees because of their diminished expectation of privacy. United States v. Knights, 534 U.S. 112 (2001); see also Griffin v. Wisconsin, 483 U.S. 868 (1987) (searches of probationers and parolees do not require a warrant, as long as probation or parole officer has reasonable grounds to believe person violated probation or parole conditions); State v. Turner, 142 Ariz. 138, 142, 688 P.2d 1030, 1034 (App. 1984) (Div. 2) (“While appellant is on probation his expectations of privacy are less than those of other citizens not so categorized.”)
“A probation officer has a duty to determine whether a probationer is complying with all of the conditions of his probation.” Turner, 688 P.2d at 1034 (probation officer lawfully conducted search based on search condition, with assistance of law enforcement; condition permitted search of person or property by probation officer at any time, with or without warrant).
“Arizona appellate courts have suggested that reasonableness under the totality of the circumstances satisfies the Fourth Amendment for warrantless searches of a probationer as well as a parolee.” “This authority demonstrates that reasonableness under the totality of the circumstances satisfies the Fourth Amendment when analyzing the probation officer’s warrantless search of a probationer’s residence undertaken pursuant to the Probation Conditions.” State v. Adair, 238 Ariz. 193, 358 P.3d 614 (App. 2015) (Div. 1). See also “Probationary Conditions, Searches of Probationers and Parolees,” infra.
Evidence seized in violation of the Fourth Amendment is still admissible in a probation or parole revocation proceeding. See Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357 (1998) (parole revocation); State v. Nieuwenhuis, 146 Ariz. 477, 706 P.2d 1244 (App. 1985) (Div. 2) (probation revocation); State v. Alfaro, 127 Ariz. 578, 623 P.2d 8 (1980) (same).
“Neither a presentence report nor any statement made in connection with its preparation shall be admissible as evidence in any proceeding bearing on the issue of guilt.” State v. Williams, 209 Ariz. 228, 238, 99 P.3d 43, 53 (App. 2004) (Div. 1) (quoting current Ariz. R. Crim. P. 26.4(d)). “Such statements are inadmissible even if offered in a subsequent proceeding that involves an unrelated incident.” Id., citing State v. Burciaga, 146 Ariz. 333, 335, 705 P.2d 1384, 1386 (App. 1985) (Div. 1).
Probation officers are “peace officers” for purposes of the assault on a peace officer statute, see, e,g., A.R.S. § 13-1204(A)(8) (assault on peace officer); In re David H., 192 Ariz. 459, 967 P.2d 134 (App. 1998) (Div. 2), but this does not alter the classification of a probation officer’s search of a probationer.
1. Probationary Conditions, Searches of Probationers and Parolees, Reduced Expectation of Privacy Generally. See also State v. Turner, 142 Ariz. 138, 688 P.2d 1030 (App. 1984) (Div. 2) (probation officer’s search of probationer based on search condition was lawful). When a probationer’s condition of probation permits a search at any time by a probation officer or law enforcement officer, without any warrant or reasonable cause, it does not violate the probationer’s Fourth Amendment rights for a law enforcement officer to search the probationer with reasonable suspicion, and not probable cause. United States v. Knights, 534 U.S. 112 (2001) (defendant’s status as probationer subject to a search condition “significantly diminished his expectation of privacy,” so sheriff’s deputy who was aware of that condition could search defendant’s vehicle with only reasonable suspicion). The Supreme Court in Knights did not address whether the search condition so diminished the defendant’s expectation of privacy that the officer could search even without reasonable suspicion; the officer had reasonable suspicion, so the Court did not address that issue.
Arizona courts have found that probationers possess a lesser expectation of privacy under the Fourth Amendment. See State v. Turner, 142 Ariz. 138, 142, 688 P.2d 1030, 1034 (App. 1984) (Div. 2) (“While appellant is on probation his expectations of privacy are less than those of other citizens not so categorized.”); State v. Montgomery, 115 Ariz. 583, 566 P.2d 1329 (1977) (court found that probationary condition requiring defendant to submit to a warrantless search and seizure of his person or property at any time by any police or probation officer was not overbroad, noting that...
