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Probationers have some liberty interests

Patrick H. Dunn won in State v. Bennett, No. 98,038 (Kan. Jan. 30, 2009), holding that a probation condition subjecting probationers to searches for no reason is unconstitutional under the Fourth Amendment and the Kansas Constitution. (Here is the previous blog entry on this case). The KSC recognized that SCOTUS cases have held that parolees can be subjected to such conditions, but distinguished probationers from parolees:

Although this court is not bound by a federal court's interpretation of Kansas law, the Tenth Circuit's reasoning in Freeman is persuasive. The Kansas Legislature has not authorized suspicionless searches of probationers or parolees. Kansas' procedures for parole supervision specifically inform parolees that they have an expectation that searches will not be conducted unless an officer has a (reasonable) suspicion that such a search is necessary to enforce the conditions of parole. Put another way, parolees in Kansas have an expectation that they will not be subjected to suspicionless searches.

It logically follows from this conclusion that because probationers have a greater expectation of privacy than parolees, searches of probationers in Kansas must also be based on a reasonable suspicion. Thus, the condition of Bennett's probation subjecting him to random, nonconsensual, suspicionless searches violates his rights under the Fourth Amendment and Kansas Constitution Bill of Rights.

The State argues that imposing a reasonable suspicion standard in all probation searches will thwart the purposes of community corrections officers, as corrections officials will no longer be permitted to search a probationer's residence or belongings when the officer conducts probation visits. This argument fails to recognize that although probationers' privacy rights are more limited than are the rights of free citizens, probationers do enjoy some expectation of privacy in their persons and property. Law enforcement efforts must be reasonably calculated with reference to the probationers' privacy rights. Reasonable suspicion is not an overly-burdensome standard of proof.

This may be an important defense in probation revocation cases.

Full post as published by Kansas Defenders on February 04, 2009 (boomark / email).