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August 21, 2018

Warrantless Searches of Probationers

Case:   State v. Angela Hamm and David Hamm

Issue:  Are probationers subject to warrantless, suspicionless searches?

Facts:  Angela and David Hamm were married and lived together. Angela Hamm was on probation. A confidential informant made a statement potentially implicating Angela and David for selling methamphetamine. Officers were unsuccessful in doing a controlled buy or obtaining other direct evidence. Officers went to the residence and saw men monitoring surveillance cameras when then turned off the cameras and denied they had been on. Officers then entered the residence and seized various drugs and paraphernalia, leading to the arrest of Angela and David. The trial court granted their motion to dismiss, and the State appealed.

Appellate Decision: A divided intermediate court affirmed suppression, holding officers (1) lacked reasonable suspicion to search the house of a probationer, (2) the totality of the circumstances did not justify the search, and (3) Angela did not consent to the warrantless search as a condition of probation because officers lacked reasonable suspicion. Judge Williams wrote a concurring opinion explaining why reasonable suspicion should be required to conduct a warrantless search of a probationer. Judge Glenn wrote a dissenting opinion arguing that officers had reasonable suspicion to search the residence.

Review Granted:  August 13, 2018.

Prediction:  Ben thinks the supreme court will reverse, adopting its recent holding in State v. Stanfield that parolees are subject to warrantless searches based upon “parolee status alone.” That same opinion rejected the argument that reasonable suspicion was required to search parolees, and noted that while parole and probation are different, cases regarding probation searches are “instructive” on the issue of parole. Ben also thinks Justice Lee will dissent and reiterate her position in Stanfield that parole (and thus probation) status should not subject a person or their co-residents to a warrantless and suspicionless search.