Warrantless Searches-APPA-Washington State University

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Radio Program available at http://media.csosa.gov/podcast/audio/2014/06/warrantless-searches-appa-washington-state-university/

[Audio Begins]

Len Sipes:  From the Nation’s Capital, this is DC Public Safety. I’m your host, Leonard Sipes. Today’s program, ladies and gentlemen, warrantless searches of probationers and parolees. We have three people from throughout the United States via Skype at our microphones today. Craig Hemmens, he is the Chair and Professor to the Department of Criminal Justice and Criminology at the Washington State University. We have John Turner, he is a doctorial student, again Department of Criminal Justice and Criminology at Washington State University. And we have back at our microphones Adam Matz. Adam is a Research Associate with the American Probation and Parole Association and Council of the State Governments. And to Craig, and John, and Adam, welcome to DC Public Safety.

Craig Hemmens:  Thank you!

Adam Matz:  Thank you! Glad to be here.

Len Sipes:  Adam, start off the conversation please, warrantless searches of probationers and parolees in terms of the document that’s yet published. I found it to be fascinating. There seems to be a lot of controversy in terms of not when Parole and Probation Officers can go in and do warrantless searches of probationers and parolees, but when police officers can; and there seems to be a mixed bag. Every state in the United States gives parole and probation agents the right to do warrantless searches. It’s different when it comes to law enforcement doing those searches. So law enforcement and parole and probation seems to be coupling up to do searches of people on parole and probation without a warrant. Have I summarized the beginning of the program correctly?

Adam Matz:  Yeah. I think that’s a pretty good summary. And I think it might be useful too, I can kind of provide a sort of short background as to why this topic’s sort of been an interest for us and has been increasing in interest as well. And we’ve obviously done, talked about police and probation and parole partnerships before, and we know that they started to become more formalized. There’s always been a lot of partnerships and, you know, law enforcement and probation and parole officers working together sort of informally, but really in the kind of early mid ‘90’s and then up to today there’s been even more of an interest in formalizing those partnerships. And part of that, when they’re working together they’re sharing a lot of information about the probations of parolees, you know, where they live and their conditions of supervision. And depending on the state that they’re situated in, law enforcement can do different things with that information.

In the case of some states they can actually conduct warrantless searches of probation or parolees, completely independent of being around the probation or parole officer that’s responsible for that individual, so it presents an opportunity. And in the other case it could also present some possible abuses perhaps, but you know, it really depends on the state. And so one of the things, and really want kind of generated our focus here, was to get some help, some guidance on really what is the legal case law out there. Because there’s several different articles that talk about the Federal level, sort of Federal case law, but we really wanted to get down more into the weeds and look at the state law, which is where Craig and John have really been helping us out.

Len Sipes:  Well Craig, this has a bit of a dilemma, does it not? I mean we have parole and probation and you mentioned this in the paper, always has had this mixed message – this mixed mission; from the standpoint on one side of the ledger we are law enforcement officers who are as the paper points out, we’re duty bound by law, by state law, to provide surveillance activities, and on the flip side of that ledger is the fact that we are there to help them to reintegrate into society, to do better. So on one side the literature is telling us to form a bond with these individuals and to do cognitive behavioral therapy and to try to help them through the process so they can successfully reintegrate, and on the other hand we’re being told that, “Well go in, and even without reasonable suspicion, you can search that person’s house at any time that you want, with or without a police officer.” So does that bring an inherent conflict in terms of the schizophrenia that comes with so many parole and probation agencies?

Craig Hemmens:  I think you’ve summarized it well. I’m not sure I’d use the term schizophrenia, but you’re exactly right. There’s a real problem with what you might call role distortion. As they said probation and parole officers are really expected to be almost all things to all people – to be out there providing public safety but also to be assisting the offender with reintegration and rehabilitation; and when you ask them to both help them and essentially have the potential to hurt them by investigating their criminal activity, which of course could mean potentially be having their parole revoked, being sent back to prison, I think that does create a great deal of mission distortion, role distortion for the officers. I think it’s something that is very difficult for them to deal with.

Len Sipes:  And John, what is the basis behind the research? So we are looking at this issue of warrantless searches, of probationers and parolees, why? Why is this important?

John Turner:  I think it’s important because initially the roll of probation and parole officers was to sort of help offenders reintegrate back into society and now the role has evolved into more of a law enforcement role. And each state has different guidelines and different policies. Some states allow law enforcement officers to conduct searches on parolees and probationers without probable cause, as to where others allow only probation or parole officers to do these searches. So I think it’s kind of important that we look at the differences between each state and try to analyze why that is.

Len Sipes:  Okay. Adam, now tell me a little bit about this. It’s mission creep to some degree, the idea that you know, the parole and probation agents throughout this country, again there is this, I won’t use the word schizophrenic, I won’t even use the word bi-polar, just this schism. On one side of it he is there to help this individual, on the other side he is there to provide surveillance, to provide what some would refer to as a public safety surveillance role. We have many parole and probation agents throughout the country who carry badges and wear guns; so in one sense the warrantless search is part and parcel to a law enforcement function and one sense it doesn’t lend well to creating a positive interaction with the person that he’s supervising.

Adam Matz:  Yeah, there’s a couple different ways I think you could look at this. Obviously there is potential for mission distortion, particularly if you look at this in terms of partnerships where the emphasis when folks are working with law enforcement, might tend to kind of put more emphasis on the enforcement aspects, surveillance aspects, versus more of the rehabilitative part of it. That doesn’t necessarily have to be the case and some of the research does talk about you know, the police officers can kind of help reinforce, sort of referrals, or treatment those kinds of things. It’s a little bit suspect. The research isn’t very definitive on that. It really tends to imply that there’s definitely a surveillance aspect to it.

Now the other part I want to talk about that, to kind of build on what John was saying earlier too, is the idea that part of the issue and part of the reason why partnerships are important and they’re beneficial is that it’s really kind of an issue of coverage, you know? We know that there’s excessive case loads, you know, excessive workloads for probation and parole, so what partnering with law enforcement does, because law enforcement has a greater street presence, it really increases sort of that reach, that extra level of supervision that simply just isn’t possible. So there’s sort of a logistical part to it as well. One more thing I wanted to say too is mission distortion and mission creep, there is a slight distinction there. Mission creep is really where you’re taking on tasks that are beyond what you would normally do. So I think this kind of leaning towards maybe enforcement, that’s definitely more distortion. But the creep would be more like collaborating, sort of the meetings that you do with law enforcement. So there’s multiple aspects to it.

Len Sipes:  We meet within Washington DC, we meet with members of law enforcement every day. Everyday we’re sharing intelligence. Every day we are out there working side by side with law enforcement. We do law enforcement assistance in terms of the serving of warrants, and we just don’t work with the Metropolitan Police Department here in Washington DC, we work with the housing police officers, we work with the FBI, we work with the Secret Service. So we’re constantly working, exchanging information. I’ve been on, joint patrols with our people. We call them community supervision officers here at the Court Services and Offender Supervision Agency. So, all of this is supposed to be a good thing because as you just said Adam, it extends the presence of the parole and probation officer.

He or she is not out there 24 hours a day, 365 days a year but that police officer is. So oftentimes those police officers will, after going into the home, after identifying who that person is, identifying his risk level or his needs level, will come back to us and say “Look, he’s hanging out in the street corner. We think he’s hanging out with the wrong guys. We think he’s smoking pot. He’s definitely bothering the neighbors. Can you please intervene before we have to intervene?” So there’s a helping role plus a surveillance role all at the same time. Anything I’m saying Craig, that creates problems in terms of your research concerns, worries?

Craig Hemmens:  Well I think you’ve hit on all the issues. I think once we recognize that the probation and parole officers now are expected to again do more than perhaps historically they did, to have a law enforcement or a supervision function, I think that’s there, it exists. I think the partnerships with the police, as Adam had pointed out, have tremendous benefits to the community. So I think those are here to stay. I think what our research was trying to focus on was what are the variations? What are the things that some jurisdictions will allow police officers to do rather than probation parole officers? Of course, probation parole officers generally are permitted to conduct warrantless searches. Usually that’s a condition of probation for the probationer, parolee. So that’s not an issue but it’s extending that sort of warrantless search ability to police officers, who traditionally have not had it. In that sense it’s kind of turning, it’s giving them the greater authority that the probation parole officers have always had to interact with their clientele, but extending it to the police.

Len Sipes:  What was, any one of the three of you, what was after doing this research, what did you come out of it, what were your impressions, what were your fears, your hopes, your dreams when you took a look at this? I mean every state in the United States except Maryland who I’ve represented for fourteen years, every state in the country except Maryland has the right for their parole and probation agents to conduct warrantless searches of the person and of the residence of a probationer or a parolee. So obviously this is something that is in law. That certainly gives the impression that this is something they want done. What’s your impression after doing the research?

Craig Hemmens:  Well I think you’re absolutely, it’s correct, I think you’re absolutely right. For probation and parole officers, this is, they’ve always had this authority and in virtually every state. What we found that is new here, or relatively new, is extending that authority to police officers. Currently it is still only a minority of states that allow police officers to conduct warrantless searches. These thirty-three states do not allow officers to do that. But we found that at least eleven states provide police officers with essentially the same search ability, same search authority as probation and parole officers. Another four states have it in limited situations. So I’d say that while it’s a minority of jurisdictions it’s a pretty significant minority and I think it suggests there is a trend there towards extending the search authority for police officers. Again, giving them…

Len Sipes:  The right to search on the part of parole and probation has been upheld by no less than the Supreme Court, correct?

Craig Hemmens:  Absolutely. There’s no question about that, that they have that authority under the Constitution.

Len Sipes:  And courts are beginning to allow police officers essentially to do the same thing?

Craig Hemmens:  Well, it’s courts and it’s legislatures. In fact in this paper what we’ve found are that there are at least fifteen states that have statutes that have conferred some authority on police officers to conduct warrantless searches in some situations. So it’s not just the courts who sort of extended the authority of probation officers had to police officers but it’s the legislatures who obviously I think are responding to this need to have a greater presence, a greater ability to supervise offenders in the community; and I think that’s why they’re writing these statutes.

Len Sipes:  Well, then it’s probably the third time I’ve been to this point, and but it’s sort of astounding to me at the same time. Part of me understands this, part of me understands this from the standpoint of being a former law enforcement officer, part of me understands this in terms of representing Parole and Probation Agencies for a quarter of a century. So I understand how all this flows. I understand the fact that this is something you probably want done, probably something that needs to be done. But Adam, once again, how do you form that cognitive behavioral therapy relationship with a person under supervision while you’re knocking on the door saying “Hey, I’m going to bring in a cop and we’re gone to search your home, and we’re going to search your presence?”

Adam Matz:  Yeah, actually, you know what, I think a good way to think about this too is who needs to be targeted with these kinds of partnerships, particularly with law enforcement. Where does that apply particularly well? And you mentioned the risk/needs responsivity principles, and those should apply here. I mean these partnerships should really be focused on the folks who need that, you know, that real intense level of supervision. That’s really where this needs to be focused. One of the things that’s kind of interesting, this is just kind of anecdotal comments from some of the literature, but there tends to be this assertion that the presence of law enforcement officers with the probation officers, say when they’re doing a home visit, tends to solicit more respect from the probationer or parolee. In other words they tend to take their supervision a little more seriously.

So if you have an issue with a particular individual that’s sort of out of control, then law enforcement can help sort of support probation and parole. And that’s really where I think these partnerships needs to is law enforcement sort of supporting probation and parole ideally. Not for the other way around. You know, the intent shouldn’t be to give law enforcement more authority, if you will, or more inroads. It should really be based on supporting the Probation and Parole Agency. I think it’s important to keep that distinction.

Len Sipes:  We’re halfway through the program. We’re doing a program today on warrantless searches of probationer and parolees. We have three experts at our microphones today. Craig Hemmens, he is the Chair and Professor, departmental Chair and Professor at the Department of Criminal Justice and Criminology at Washington State University. www.wsu.edu. John Turner, he is a Doctorial student, again Department of Criminal Justice and Criminology at Washington State. And Adam Matz has been by our microphone several times, always enjoy having Adam doing a program with us. He is a research associate with the American Probation and Parole Association Council of State Governments. www.appa-net.org.

So Adam, I’m glad you brought that up. What we’re trying to do is focus on high-risk offenders. And that’s something that’s well substantiated by the literature. I’m assuming that even though the document really didn’t address this, I’m assuming that most of these activities, as they are in Washington DC, really are directed towards people who we’re concerned about, who pose a possible risk to public safety and that’s where the police, parole and probation interactions are the strongest, work the best and yes you’re right, in the ride alongs that I’ve been on you really do get the attention of that person under supervision when you bring a police officer into the mix.

Adam Matz:  Yeah and you know, to follow up on that, you know, really from the conversations I’ve had  and from some of the different trainings we’ve done you would think it would be based on the risk level but what I find sometimes is that’s not necessarily the case. Sometimes it can depend, sometimes folks just like to share a lot of information, or they do these collaboratives, and they don’t really have that focus. So really it depends. And we always have to be careful not to assume that everybody has a risk assessment or fully developed risk assessment. A lot of times that assumption’s made but it’s really not true when you get to some of these really small agencies, so it really depends.

Another thing that’s kind of interesting that I’ve noticed it’s sort of been a development is, there’s some jurisdictions, and this is pretty rare, I haven’t heard of this very much, but there’s some jurisdictions where they’ve used law enforcement as volunteer probation officers and they’ll do like curfew checks for example. That I think is kind of interesting and I wonder if that is maybe a bit too much. And I don’t know, I think that is kind of open for debate.

Len Sipes:  Well John, in the research you talked about the fact that there were some rather successful programs where, that depended upon law enforcement and parole and probation coming together as a joint endeavor. So, you did point out within the research that some of these programs have worked. I don’t think they focused specifically on warrantless searches but philosophically they’re basically saying that parole and probation and law enforcement together as a team provide some value to the community.

John Turner:  Right. That can be the case. But also it had been problematic in that there have been times when law enforcement have tried to persuade probation and parole to work with them in order to conduct warrantless searches. So that’s been one of the problems that we’ve found.

Len Sipes:  Okay, but philosophically parole and probation and law enforcement coming together, we’re basically saying it’s a good thing, Craig?

Craig Hemmens:  Yeah, I think that’s a fair assessment. Again, I think information is so important to all Criminal Justice Agencies, and I think that what folks have recognized is that working together you can get a lot more accomplished, you can learn a lot more about what’s going on. Probation and parole officers are able to share a tremendous amount of information with police officers and vice versa; so I think, and they’re working to the same end, which is both, obviously assisting the offender in the community, but also providing public safety.

Len Sipes:  And Adam, you’re the one who brought up the fact that most Parole and Probation Agencies, and we’ve done shows on this in the past, have extremely high caseloads. When I talk to my counterparts throughout the country, they’re telling me a hundred and fifty to one is not unusual. Here in the District of Columbia it’s fifty to one and below for specialized case loads. But we’re a Federal Agency. We have Federal funding. Our caseloads are much more manageable than what I find throughout the country. In some cases I’ve found there to be two hundred to one. So when you have large case loads throughout the country trying to leverage whatever resources you have in terms of either supervising or trying to help the person under supervision, in many cases I can see where that Parole and Probation Agency would say, “Hey let’s partner up with law enforcement in terms of the surveillance role because there is no way that we can do an adequate job keeping everybody under tabs without the Law Enforcement Agency being involved.”

Adam Matz:  Yeah. I think that’s exactly right and I think it’s a good point. You know, that’s really what kind of brought I think, probation and parole and police agencies together, again if you will, ‘cause originally if you go back in the past a lot of the functions kind of overlap. But really it’s kind of brought folks together and I think the partnerships is a perfect opportunity. It makes complete sense. You can look at sort of the pulling levers’ ideology or methodology behind bringing different Justice Agencies together so everybody’s working together as a coordinated system. So definitely partnerships make sense, and they’re definitely a positive thing. The real thing that I think agencies need to be careful of or pay attention to is just to make sure that when they’re forming these partnerships they have some, you know, agreements together, some MOUs, something to kind of outline what the expectations are, provide some measurable goals, and really make it a coordinated approach. Not you know, sometimes informal stuff’s fine, but it’d be much more preferable if there was some structure around these, ‘cause they can be productive. There’s limited research. We’d like to know more about, you know, how or what makes them effective, what doesn’t work, and you really can’t do that unless it’s formalized. So definitely we support partnerships, we just want to get them to the next level.

Len Sipes:  The document itself, again not published as of yet, Is It Reasonable? A legal review of warrantless searches of probationers and parolees. Now help people understand this because again you’re going to get people who are very familiar with parole and probation listening to this program and you’re going to get students and professors and aides to mayors, governors, even congressional aides, in Washington, who are going to listen to this program. Part of this involves some very specific legal terms. You know, I was trained in probable cause, what leads a reasonable person to believe a crime has been committed, then you have reasonable suspicion. What some police officers use who search people on the street if they have a bulge in their pocket and they’re in a high crime area and the person is known to have been involved in criminal activity before, you can, that can provide you their reasonable suspicion in terms of searching that person. Do these terms have an impact when it comes to warrantless searches of probationers and parolees either by parole and probation agents or law enforcement officers?

Adam Matz:  They do. They’re still very much in play. If I can reference the most recent Supreme Court cases dealing with this. In US versus Knights the Supreme Court allowed police officers to search a probationer, to search his home, so because the condition, the probation condition allowed it, and they had reasonable suspicion rather than that probable cause, which as you said is a greater amount of evidence or a greater amount of indication of criminal activity. So the Knights’ decision allows police officers with just reasonable suspicion to conduct a very thorough search of a probationer’s home. In the Samson case, decided a few years after that, that came out of California, which is one of the sates that has a statute which allows police officers to conduct completely warrantless searches without even reasonable suspicion or probable cause of a parolee. And a police officer took advantage of that statute, used that statute to stop a parolee and conduct a search, again, without reasonable suspicion or any indication of criminal activity. So while most states still require at least reasonable suspicion or sometimes probable cause, there are a handful of states at this point that have eliminated that altogether and just said that warrantless searches by police officers, and this is without probation officers present, warrantless searches by police officers on their own of somebody on parole, is fine.

Len Sipes:  Do they have to have, does a parole and probation agent, and I know we’re talking about all fifty states now except the state of Maryland, parole and probation agents, do they have the right even without reasonable suspicion, they do it simply because they’re there, do they have the right without reason, without any justification to search that individual and to search the residence?

Adam Matz:  The answer in general is…

John Turner:  Some states.

Len Sipes:  John?

Adam Matz:  Go ahead John.

John Turner:  Oh I was just going to say we’ve found that in some states they do. In some states they’re allowed to search the residence or the person or even the vehicle without reasonable suspicion at all. But in the majority of states they have to have some sort of reasonable suspicion in order to conduct a search.

Len Sipes:  Okay, so in most states they do have to have reasonable suspicion. They just cannot go into a house or search a person.

John Turner:  Right.

Craig Hemmens:  Unless, and there are those states which have conditions of probation and parole which say that would include allowing warrantless searches, so if there is a probation or parole condition where essentially the offender grants his consent in advance to a warrantless search, those provisions, those conditions have been upheld by courts.

Len Sipes:  Now, but for the law enforcement side of it there seems to be a gradual increase in responsibility unless the state or the local jurisdiction specifically provides legislation saying that they can do warrantless searches without reasonable suspicion, without probable cause. There seems to be a graduated list of reasons as to whether or not police officers can do a warrantless search of the individual and of the premises.

Craig Hemmens:  That’s correct. At this point the majority of states, the mass majority, I think at least thirty three, do not allow police officers to conduct warrantless searches. But that’s thirty three out of fifty. There are at least fifteen states we’ve found, who do allow police officers to conduct warrantless searches in some situations without probable cause or reasonable suspicion.

Len Sipes:  But what if they have probable cause? Do they have to wait for a warrant? Can they say “I know this person’s on parole. I have probable cause but rather than play it safe and go and get a warrant, I’m just going to go into that person’s house now because I know he’s on parole and I have probable cause?”

Craig Hemmens:  Well unless the jurisdiction specifically authorizes a warrantless search, if you have probable cause, I would say no. The courts would still, typically courts allow warrantless searches if there’s probable cause and an exigent circumstance, some justification for not going and getting a warrant. I don’t think the courts have yet moved to the point where the fact of the person who’s on probation or parole is in and of itself an exigent circumstance.

Len Sipes:  Okay. Adam, in the final minutes of the program when we only have two or three minutes left of the program, does this get us back into the debate of what parole and probation officers could be, should be? I mean the overwhelming majority of the literature I read and the conversations I have are along the lines of helping that individual cross that bridge, breaking down barriers, finding a way to find the right programs for that person, ending the rate of recidivism. And on the flip side here we are talking about in many states badge carrying, gun carrying, parole and probation officers doing warrantless searches. So this will be the fourth time I’m bringing it up and the last time I’ll bring it up, but again, does this again get back to the conflict of what a parole and probation officer could be or should be?

Adam Matz:  Well, I think what it really gets at is, and what you’re getting at really is a need for a balance in the approach that officers take. And I think as you pointed out and most people know, it really does vary across the country. You have some states where it’s very much a law enforcement kind of Probation or Parole Agency and then other ones it’ll be very much social work. And we know some agencies are, you know, armed with firearms and other non-lethal weapons but other ones are not, so it really varies but I think regardless…

Len Sipes:  Just a couple seconds.

Adam Matz:  Sure. Regardless though, the opportunity here, this presents an opportunity for law enforcement and probation and parole to work together and it’s beneficial on all fronts when it’s done correctly and methodically. So you can increase protection of not only the probation and parole officer but you can also increase safety for the law enforcement and you can also help ensure the safety of the probation or parolee.

Len Sipes:  Adam, you’ve got the final word. Ladies and gentlemen, we’ve done a show today on warrantless searches in parole and probation. Our guest today Craig Hemmens, Chair and Professor, Department of Criminal Justice and Criminology, Washington State University. John Turner, a doctorial student there at Washington State, and Adam Matz, Research Associate from the American Probation and Parole Association. Ladies and gentlemen, this is DC Public Safety. We appreciate your comments. We even appreciate your criticisms and we want everybody to have yourselves a very pleasant day.

[Audio Ends]

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