How Community Supervision Works
According to Dressler (1959) & Champion (2005), probation, parole, and community corrections are sanctions that are imposed upon individuals convicted of misdemeanor and felony offenses by a court of law. Probation and community corrections are alterative sanctions to incarceration, that are imposed by the sentencing judge and the court retains authority over the offender while the sentence is being served by the offender. Parole is a form of supervised release once a portion (mandated by state or federal law) of the original sentence has been served (Champion, 2005). An important item to remember is that for a convicted individual to be released onto parole supervision, the sentencing judge must have imposed a sentence and fully executed the sentence (no time suspension). This is an important fact, because with fully executed sentences, the sentencing judge relinquishes any supervision or control over the cases and the parole board becomes fully responsible for overseeing offenders after release from incarceration and during parole supervision.
When an offender is placed on community supervision, whether probation, parole, or community corrections, the offender is being supervised by an officer of the court or Department of Corrections. The offender is expected to maintain good behavior
during his/her release and the officer is in place to make sure that the offender is abiding by the terms of supervision. Terms of supervision are mandated directives that the court or parole board order the offender to abide by during the supervision period.
Typically there are between 12-20 standard terms that all imposed on all offenders, such as:
1. Obey all local, state, and federal laws.
2. You will be subject to random urinalysis testing for the duration of your supervision term.
3. You waive your right to 4th Amendment search and seizure protections.
4. You must report to your probation/parole officer when ordered.
The above list is in no way exhaustive, but are examples of supervision conditions found in probation, community corrections, and parole offender stipulations (“Indiana Parole Board Offender Stipulations,” 2013 & “Noble Counry Order of Probation”, 2015). While jurisdictions may differ slightly on the order of stipulations, many of the conditions are consistent throughout the state of Indiana. The stipulation that is most important for this paper is the stipulation waiving the right of 4th amendment search and seizure protections for any person on community supervision and the special stipulations imposed on offenders convicted of certain crimes like sex offenses.
Special conditions are a list additional stipulations that are imposed upon offenders that are convicted of particular crimes, such as sex offenses and computer crimes. In Indiana, special conditions can be ordered by the judge, if the offender is placed on probation or community corrections, or the parole board, if the offender is released to parole services. A common judicially ordered special condition for offenders that have been convicted of crimes involving the use of a computer is having the offender’s internet and computer usage monitored or restricted and limitations placed on the types of employment white collar offenders are able to seek (Friedrichs, 2010).
Special conditions are most imposed on one group of criminal offenders though, sex offenders. In Indiana, state statute dictates what special conditions are imposed on which probation and community corrections offenders based on the crime the offender was convicted of. For instance, In Indiana IC 35-38-2-2.1 (1989) outlines the special conditions for sex offenders sentenced to probation and community corrections based on the original sex offense conviction listed in IC 11-8-8-4. Special conditions for sex offenders released to parole supervision are set by the Indiana Parole Board, are not statutory, but mimic the special conditions set by statute for those offenders released to probation and community corrections. Special conditions for sex offenders may include limiting internet usage, registration with local law enforcement of any usernames and email addresses and social media prohibitions (Indiana Parole Board Offender Stipulations, 2013). Of all the stipulations placed on offenders being supervised in the community, only the stipulation waving the right to 4th amendment search and seizure protections allow the supervising officer the ability to search and confiscate offender’s possessions.
The 4th Amendment and ز
According to the 4th Amendment of the United States Constitution, people have a right to be secure in their persons, papers and homes. No unreasonable searches may occur without a warrant and probable cause (United States Constitution, 2012). The state must prove to a court that probable cause exists before they may execute a search on a citizen’s home or person. In other words, the state must prove that the defendant has or is involved in some sort of criminal activity. However, there is an exception to this rule, it is called exigent circumstances. Exigent circumstances state, that if police believe that the suspect is trying to destroy evidence or that evidence to a crime is in danger of being destroyed the police may conduct a search and seize the evidence to prevent the destruction of said evidence. Police and the state must follow this rule or the evidence could be determined to be obtained illegally and no longer admissible in court, and this could jeopardize the case against the suspect. In Mapp v. Ohio (1961) , the US Supreme Court guaranteed that this right applied to the states, as it was originally written into the Bill of Rights, the amendment only applied to the Federal Government, and in Katz v. United States (1967), the US Supreme Court held that the 4th Amendment also applies to a person’s body as well. While the 4th Amendment applies to police and the state, parole agents have a different standard when it come to the rules of search and seizure.
The 4th Amendment and Community Supervision
For the remainder of this paper, probation, parole and community corrections will be referred to as community supervision. How offenders are supervised, the conditions offenders are subject to, and how officers perform their duties are similar. The only difference is how a violation is handled. Judges are a little more cautious when dealing with cases involving supervised offender’s rights, as courts can be over ruled by higher courts on appeal. Whereas, the parole board is its own final authority. Offenders may sue for rights violations while on parole, but unlike in a criminal court where an attorney will be appointed if the offender does not have the financial means to hire an attorney, no such protection exists for parolees. Parolees must hire their own attorneys if they wish to file a law suit against the parole board, or go pro se (defend themselves without legal representation).
When an offender is sentenced to community supervision, the offender is agreeing to abide by a particular and well defined set of rules and standards. The offender signs a supervision release form which outlines those standards and conditions of release. As mentioned earlier in this paper, community supervised offenders have constrained rights when it comes to their supervision and waive his/her 4th Amendment rights. In the state of Indiana, the supervising agent has the right to search offenders under the concept of reasonable suspicion. Reasonable suspicion states that a reasonable person would be inclined to believe that a person, is involved in or about to be involved in illegal activities. This is the standard and accepted practice for community supervision involving searches concerning supervised offenders.
The first case to be brought before the Unites States Supreme Court (USSC) involving search and seizure rights of a community supervised offender was Griffin v.Wisconsin (1987). In Griffin, Joseph Griffin was convicted in a Wisconsin court of
resisting arrest, obstructing an officer, and disorderly conduct. Griffin was placed on probation as an alternative to incarceration and waived his 4th amendment rights as directed by probation and the sentencing judge. During the course of the offender’s supervision period, it came to the attention of the probation department that Griffin might be in possession of firearms. Felons in possession of firearms is illegal in Wisconsin and a probation violation as listed in the conditions of supervision. Probation officers conducted a search of Griffin’s residence on the tip provided to them and found a handgun. Griffin was found guilty of the probation violation and sentenced to incarceration. Griffin appealed the conviction to the US Supreme Court and the court ruled the search was legal and justified. The Supreme Court made its decision based on three main points:
a.) The warrantless search of the probationer’s residence was reasonable as the condition requiring the search was reasonable. The state has an active interest in the probationer’s supervision.
b.) Supervision of probationers is a special need of the state and therefore the state is not held to the same standard for 4th amendment issues as in non-probation cases.
c.) Supervision by the state is necessary to maintain probationer compliance while on supervision, probation is for rehabilitation, and the state is held responsible for probationer’s actions and protection of the public (Griffin v. Wisconsin”, 1987).
This same matter was taken up by the United States Supreme Court in Samson v. California (2006) for final clarification. The Court ruled that community supervised offenders waived their right to the 4th Amendment upon agreeing to early release from
prison or an alternative to incarceration. The Court also stated that as parole violations are presided over by parole boards and not judges, offender’s violations are “administrative” in nature and not subject to the 4th Amendment guarantee. In Lehman’s terms, this means while offenders are on community supervision, most of the rules that applied to them while/if incarcerated, still apply on supervision in the community. This ruling has provided community supervision officers a wide breadth when supervising offenders in the community (“Samson v. California,” 2006).
Under these two rulings, community supervision officers reserve the right to search an offender, his/her house, possessions, and any common area and in cases where the offender resides with another individual, and any digital devices the offender may have access to as well. This is an important issue if the offender resides with his parents and the offender has access to the computer that is stationed in the living room, which is an area the defendant uses regularly, then the supervision officer has a right to search that particular device for contraband. If a multi-user computer has different login credentials for different users, the officer may only search the device using the offender’s personal login information. The supervision officer does not have the authority to impede on the rights of others in the residence, who are not on community supervision, or search their personal spaces.