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Under Arkansas Code § 16-93-106, persons who are placed on supervised probation or parole are required to agree to a waiver that allows any law enforcement officer to conduct a warrantless search of their person, residence, electronic device, or motor vehicle at any time, day or night, whenever requested by the law enforcement officer, and the search does not need to be based on an articulable suspicion that the person is committing or has committed a new criminal offense. If a person refuses to waive their Fourth Amendment rights, then they will not be eligible for supervised release. The Rutherford Institute’s amicus brief noted that nearly four million individuals across the country are subject to supervised probation or parole, and about 65% of jurisdictions require similar waivers while many other jurisdictions are in states, like Arkansas, which impose the waiver as a condition of supervised release. This raises a concern, potentially affecting millions of innocent third parties throughout the country, when police officers mistakenly suspect that a probationer who has waived his Fourth Amendment rights is living at another’s residence, and then use that waiver as justification to search the home without a warrant or any indication of criminal activity.
The Arkansas Supreme Court ruled that police officers merely need reasonable suspicion to believe that the home is the probationer’s residence in order to conduct a search. But because police will often have reason to suspect a probationer or parolee is residing with a parent, sibling, or friend, The Rutherford Institute’s amicus brief warned that those relatives and friends will then lose their right to security in their homes. The brief highlighted many cases where the rights of innocent third parties have been violated by police searching their homes based on a mistaken suspicion that a family member or friend who was on probation or the subject of an arrest warrant lived there—in one case the police shot and killed the owner’s dog, and in other cases police drew guns in front of children and traumatized a parolee’s mother who then went to the hospital and took several days to recover. The Institute’s brief argued that police officers must at least establish the higher standard of probable cause that a home is actually the probationer’s residence to avoid such reckless and damaging searches.
Derek C. Reinbold, Brenna L. Darling, and Sven E. (Trip) Henningson of Kellogg, Hansen, Todd, Figel & Frederick P.L.L.C. advanced the arguments in the Bailey v. Arkansas amicus brief.
The Rutherford Institute, a nonprofit civil liberties organization, defends individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.
This press release is also available at www.rutherford.org.
Source: https://tinyurl.com/4kfbmpze
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