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Suspicionless probation search condition unconsitutional [NOT FINAL]

Pat Dunn won in State v. Bennett, No. 98,038 (Kan. App. June 13, 2008) and three other Dickinson County cases vacating a probation condition requiring probationers to submit to suspicionless searches:

While no specific standard has been set forth by the United States Supreme Court or Kansas courts, the Tenth Circuit Court of Appeals has analyzed Kansas law with respect to whether suspicionless parolee searches are valid and has thus shed some light on this issue.

In [United States v. Freeman, 479 F.3d 743 (10th Cir. 2007)], the court noted the existence of the KDOC regulations which required reasonable suspicion to support an SEO search. More relevant to the issue presented here is K.S.A. 21-4610 which sets forth a nonexclusive list of acceptable conditions of probation. There is no search condition contained in that list. The condition that comes the closest to a search provision states that the probationer must "permit the court services officer or community correctional services officer to visit the defendant [probationer] at home or elsewhere." K.S.A. 21-4610(c)(4). This is in keeping with the Freeman court's statement that Kansas has not gone as far as California in authorizing probationer/parolee searches.

If parolees have fewer rights than probationers following the Uhlig continuum, then probationer searches in Kansas should generally be supported by reasonable suspicion. If Kansas statutes provided for suspicionless searches as does California statutory law, perhaps the result reached could arguably be different. However, the condition of probation imposed in this case is unconstitutional and unenforceable. The district court's order of probation which included a condition subjecting the defendant to nonconsensual, suspicionless searches by community corrections or law enforcement officers is reversed.

We blogged about similar issues here and here.

Full post as published by Kansas Defenders on June 13, 2008 (boomark / email).