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Iowa finds parole condition unconstitutional; why should you care?

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by: Ryan • May 14, 2013 • 2 comments

Standard condition (P) of parole in Iowa is: parolee must submit his "person, property, place of residence, vehicle, personal effects to search at any time, with or without a search warrant, warrant of arrest or reasonable cause by any parole officer or law enforcement officer."

Iowa Supreme Court found it unconstitutional last month in State v. Baldon.

In doing so, they summarized related case law from around the country. That case law is below.

Oregon has a similar standard condition of probation. While a search requires "reasonable suspicion" before the refusal to consent can constitute a probation violation, standard condition (H) requires a probationer:

(h) Permit the parole and probation officer to visit the probationer or the probationer’s work site or residence and to conduct a walk-through of the common areas and of the rooms in the residence occupied by or under the control of the probationer.

Obviously, a walk-though is a search. If you lose a trial or you have open sentencing, please please please object to that condition of probation. I mean, since I first posted on this topic, y'all must have lost 300 misdemeanor trials. Anyone preserve this issue?

Here's what the 9th Circuit has to say about it.

And here's the aforementioned case law cited by the Iowa Supreme Court.

See United States ex rel. Coleman v. Smith, 395 F. Supp. 1155, 1157 (W.D.N.Y. 1975) (holding consent-search provision in parole agreement was coerced and involuntary); Roman v. State, 570 P.2d 1235, 1241-42 (Alaska 1977) (holding released offenders do not voluntarily consent to all conditions of parole); People v. Reyes, 968 P.2d 445, 448 (Cal. 1998) (holding suspicionless searches of parolees cannot be justified by consent if prospective parolee does not have freedom to accept or reject parole); People v. McCullough, 6 P.3d 774, 781 (Colo. 2000) (avoiding consent issue by relying on the special needs doctrine to justify a parolee search); People v. Wilson, 885 N.E.2d 1033, 1042 (Ill. 2008) (adopting Samson instead of analyzing the parole agreement's search condition under a consent framework); State v. Heaton, 812 N.W.2d 904, 908 (Minn. Ct. App. 2012) ("By agreeing to [the search] condition of parole, appellant diminished his reasonable expectation of privacy."); Himmage v. State, 496 P.2d 763, 765-66 (Nev. 1972) (holding parolee voluntarily agreed to consent-search provision as a condition of release into society); People v. Huntley, 371 N.E.2d 794, 798 (N.Y. 1977) (holding the parolee's signature on parole agreement "is not to be taken as an unrestricted consent to any and all searches whatsoever or as a blanket waiver of all constitutional rights to be secure from unreasonable searches and seizures"); Sullivan v. Bunting, 975 N.E.2d 999, 1001 (Ohio 2012) (holding parolee consented to search of his e-mail based on the parole agreement); State v. Benton, 695 N.E.2d 757, 762 (Ohio 1998) (holding parolee waives constitutional search-and-seizure rights by voluntarily signing parole agreement); Scott v. Pa. Bd. of Prob. & Parole, 698 A.2d 32, 36 (Pa. 1997) (holding parolee's right to be free from unreasonable searches and seizures was "unaffected by his signing of the consent to search provision"), rev'd on other grounds, 524 U.S. 357, 369, 118 S. Ct. 2014, 2022, 141 L. Ed. 2d 344, 355 (1998); State v. Turner, 297 S.W.3d 155, 166 (Tenn. 2009) (adopting Samson "where the parolee has agreed to warrantless searches by law enforcement officers"); State v. Velasquez, 672 P.2d 1254, 1260 & n.4 (Utah 1983) (holding defendant does not waive Fourth Amendment protection by signing parole agreement, but the search condition does confirm right of parole officer to conduct reasonable searches within scope of parole mission); Pena v. State, 792 P.2d 1352, 1357-58 (Wyo. 1990) ("[A] parolee's signature on a parole agreement which permits warrantless searches as an acknowledgement that parole officers have the right to conduct reasonable searches."); see also State v. Williams, 486 S.W.2d 468, 472 (Mo. 1972) ("[Parolees] have accepted the favor of parole subject to that degree of surveillance and search required under the circumstances for the effective supervision of the parolee and the protection of the public.").