Sunday, November 18, 2018

The Fourth Amendment still applies to those on community supervision

Somewhere north of 4,500,000 adults are on some form of community supervision throughout the United States. The Supreme Court has held that such individuals have a diminished expectation of privacy under the Fourth Amendment by virtue of their status. 

A diminished expectation of privacy does not, however, provide POs or LEOs with free rein to do whatever they please. Rather, their conduct is still constrained by reasonableness under the Fourth Amendment, as the Sixth Circuit reminded us this past week.

In Brennan v. Dawson, the probationer's expectation of privacy under the Fourth Amendment was diminished in that he was subject to random breath tests as a condition of his probation. But no condition of his supervision diminished his reasonable expectation of privacy in his home. As such, the probationer “was as secure in his home as a non-probationer.”

Hence, the Sixth Circuit's finding that probationer’s Fourth Amendment rights were violated when the sheriff deputy arrived unannounced at probationer’s home (or his castle, as the Tenth Circuit reminded us just last week) to conduct a breath test, and, assured someone was inside, roamed the curtilage of the probationer’s home for over 90 minutes until the probationer finally emerged.

Despite repeated misconduct that may leave you thinking otherwise, the Fourth Amendment still applies to the millions of those in our communities who are on supervision. 

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