Chapter 3: Search and Seizure (Probation and Supervised Release Conditions)

A. Statutory Authority

Under 18 U.S.C. § 3563(b)(22), the court may provide that the defendant “satisfy such other conditions as the court may impose.”

Under 18 U.S.C. § 3563(b)(23), the court may provide that the defendant, “if required to register under the Sex Offender Registration and Notification Act, submit his person, and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effects to search at any time, with or without a warrant, by any law enforcement or probation officer with reasonable suspicion concerning a violation of a condition of probation or unlawful conduct by the person, and by any probation officer in the lawful discharge of the officer’s supervision functions.”

Under 18 U.S.C. § 3583(d), the court may provide “for a person who is a felon and required to register under the Sex Offender Registration and Notification Act, that the person submit his person, and any property, house, residence, vehicle, papers, computer, other electronic communications or data storage devices or media, and effects to search at any time, with or without a warrant, by any law enforcement or probation officer with reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by the person, and by any probation officer in the lawful discharge of the officer's supervision functions.”

B. Sample Condition Language

You must submit your person, property, house, residence, vehicle, papers, computers (as defined in 18 U.S.C. § 1030(e)(1)), other electronic communications or data storage devices or media, or office, to a search conducted by a United States probation officer.  Failure to submit to a search may be grounds for revocation of release.  You must warn any other occupants that the premises may be subject to searches pursuant to this condition.

The probation officer may conduct a search under this condition only when reasonable suspicion exists that you have violated a condition of supervision and that the areas to be searched contain evidence of this violation.  Any search must be conducted at a reasonable time and in a reasonable manner.

C. Purpose

1. This condition serves the statutory sentencing purposes of deterrence, public protection, and rehabilitation. 18 U.S.C. § 3553(a)(2)(B)-(D).
2. This condition allows the probation officer to promote public safety through effective oversight of higher-risk defendants and by assisting with rehabilitation efforts. The condition may also deter criminal conduct and permit a probation officer to intervene quickly when reasonable suspicion exists that a defendant has engaged in criminal conduct or otherwise violated a condition of supervision.    
3. This condition enables the probation officer to satisfy the statutory requirements to keep informed as to the conduct and condition of the defendant and aid the defendant and bring about improvements in his or her conduct and condition. 18 U.S.C. §§ 3603(2)-(3).

D. Method of Implementation

1. Probation officers may recommend a condition authorizing search and seizure when a defendant is convicted of, or exhibits a history of, certain types of offenses (e.g., violent offenses, weapons offenses, drug distribution offenses, sexual offenses, offenses related to terrorism, or sophisticated financial offenses); when the defendant has a history of unsuccessful attempts at completing a term of supervision within the criminal justice system; or when a defendant exhibits some other personal trait or characteristic indicating the potential for a higher risk of recidivism or threat to public safety.
2. The supervision planning process begins with an initial investigation during which probation officers review documentation, meet with defendants, conduct on-site examinations of their residences, and develop contacts with defendants’ social networks. Due to the inherently intrusive nature of searches and seizures, probation officers discuss search conditions in detail with potential occupants of a defendant’s proposed residence during the planning process whenever possible.
3. When supervision begins, the probation officer advises the defendant of the search condition and explains the procedures followed in conducting a search. During the initial home visit (see: Chapter 2, Section VI), the probation officer provides similar information to all other occupants of the residence and answers questions regarding the condition and the procedures to be expected should a search be conducted. 
4. The probation officer limits enforcement of this condition to situations where he or she can articulate reasonable suspicion that items prohibited by the conditions of supervision or evidence of a violation of the conditions of supervision may be found at the place or in the item being searched. Searches are not to be conducted absent such suspicion of violation behavior.
5. In deciding whether to conduct a search, the probation officer considers alternative, less intrusive interventions to suspected violation behavior; the potential negative consequences a search may have on the rapport the probation officer has developed with the defendant and other occupants; the level and type of risk posed by the defendant; the seriousness of the suspected violation behavior; the risk of harm that the search could pose to the probation officer or others; and the effective use of resources necessary to conduct the search. The probation officer will recommend or conduct a search only after determining that the search is necessary to enforce other conditions of release or to achieve the desired outcomes of supervision. 
6. The probation officer is generally required to seek approval for a search from his or her supervisor(s) and the chief probation officer. To obtain such approval, the probation officer must submit details regarding the defendant, the basis for the probation officer’s reasonable suspicion of violation behavior, the object of the search, and other details to ensure that the search is conducted in a reasonable manner. 
7. At all times during the search, the probation officer continues to consider the goals of supervision, the need to maintain rapport with the defendant and other occupants of the residence, and the appropriate degree of intrusion warranted by the individual traits and circumstances of the defendant and the nature of the suspected violation behavior.
8. Following completion of a search, the probation officer submits a post-search report detailing the execution and outcome of the search and any planned follow up. Information or evidence gathered during the course of a search may be used in the regular course of managing noncompliance, which may include increasing treatment services or the intensity of supervision, notifying the court of the results of the search, seeking revocation or modification of the conditions of release, or reporting serious criminal conduct to another law enforcement agency.