Prisons and Regulation of Probation and Parole

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


Prisons and Regulation of Probation and Parole.—The “undoubted security imperatives involved in jail supervision” require “defer[ence] to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to the problems of jail security.”368 So saying, the Court, in Florence v. Board of Chosen Freeholders, upheld routine strip searches, including close-up visual cavity inspections, as part of processing new arrestees for entry into the general inmate population, without the need for individualized suspicion and without an exception for those arrested for minor offenses.369 Correctional officials had asserted significant penological interests to justify routine strip searches of new arrivals: detecting and preventing the introduction into the inmate population of infections, infestations, and contraband of all sorts; and identifying gang members. Having cited serious concerns and having applied their professional expertise, the officials had, in the Court’s opinion, acted reasonably and not clearly overreacted. But despite taking a deferential approach and recounting the grave dangers correctional officers face, the Florence Court did not hold that individuals being processed for detention have no privacy rights at all. In separate concurrences, moreover, two members of the five-Justice majority held out the prospect of exceptions and refinements in future rulings on blanket strip search policies for new detainees.370

The Court in Maryland v. King cited a legitimate interest in having safe and accurate booking procedures to identify persons being taken into custody in order to sustain taking DNA samples from those charged with serious crimes.371 Tapping the “unmatched potential of DNA identification” facilitates knowing with certainty who the arrestee is, the arrestee’s criminal history, the danger the arrestee poses to others, the arrestee’s flight risk, and other relevant facts.372 By comparison, the Court characterized an arrestee’s expectation of privacy as diminished and the intrusion posed by a cheek swab as minimal.373

Searches of prison cells by prison administrators are not limited even by a reasonableness standard, the Court’s having held that “the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.”374 Thus, prison administrators may conduct random “shakedown” searches of inmates’ cells without the need to adopt any established practice or plan, and inmates must look to the Eighth Amendment or to state tort law for redress against harassment, malicious property destruction, and the like.

Neither a warrant nor probable cause is needed for an administrative search of a probationer’s home. It is enough, the Court ruled in Griffin v. Wisconsin, that such a search was conducted pursuant to a valid regulation that itself satisfies the Fourth Amendment’s reasonableness standard (e. g., by requiring “reasonable grounds” for a search).375 “A State’s operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated industry, . . . presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements.”376 “Probation, like incarceration, is a form of criminal sanction,” the Court noted, and a warrant or probable cause requirement would interfere with the “ongoing [non-adversarial] supervisory relationship” required for proper functioning of the system.377 A warrant is also not required if the purpose of a search of a probationer is investigate a crime rather than to supervise probation.378

“[O]n the ‘continuum’ of state-imposed punishments . . . , parolees have [even] fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.”379 The Fourth Amendment, therefore, is not violated by a warrantless search of a parolee that is predicated upon a parole condition to which a prisoner agreed to observe during the balance of his sentence.380

368 Florence v. Board of Chosen Freeholders, 566 U.S. ___, No. 10–945, slip op. at 2, 9 (2012). See also, e.g., Bell v. Wolfish, 441 U.S. 520 (1979). The Florence Court made clear it was referring to “jails” in “a broad sense to include prisons and other detention facilities.” 566 U.S. ___, No. 10–945, slip op. at 1 (2012).

369 566 U.S. ___, No. 10–945, slip op. (2012). The Court upheld similarly invasive strip searches of all inmates following contact visits in Bell v. Wolfish. 441 U.S. 520, 558–60 (1979).

370 566 U.S. ___, No. 10–945, slip op. (2012) (Roberts, C.J., concurring); 566 U.S. ___, No. 10–945, slip op. (2012) (Alito, J., concurring). In the opinion of the dissenters, a strip search of the kind conducted in Florence is unconstitutional if given to an arriving detainee arrested for a minor offense not involving violence or drugs, absent a reasonable suspicion to believe that the new arrival possesses contraband. 566 U.S. ___, No. 10–945, slip op. (2012) (Breyer, J., dissenting).

371 569 U.S. ___, No. 12–207, slip op. (2013).

372 Id. at 10–18, 23.

373 Id. at 23–26.

374 Hudson v. Palmer, 468 U.S. 517, 526 (1984). See also Bell v. Wolfish, 441 U.S. 520, 555–57 (1979) (“It is difficult to see how the detainee’s interest in privacy is infringed by the room-search rule [allowing unannounced searches]. No one can rationally doubt that room searches represent an appropriate security measure . . . .”).

375 483 U.S. 868 (1987) (search based on information from police detective that there was or might be contraband in probationer’s apartment).

376 483 U.S. at 873–74.

377 483 U.S. at 879.

378 United States v. Knights, 534 U.S. 112 (2001) (probationary status informs both sides of the reasonableness balance).

379 Samson v. California, 547 U.S. 843, 850 (2006) (internal quotation marks altered).

380 547 U.S. at 852. The parole condition at issue in Samson required prisoners to “agree in writing to be subject to a search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” Id. at 846, quoting Cal. Penal Code Ann. § 3067(a).