Walk Through of Probationer’s Home, Pursuant to State Statute, Reasonable Despite Lack of Reasonable Suspicion

By Brian S. Batterton

In most instances, the Fourth Amendment requires that searches and seizures be based upon probable cause and pursuant to a warrant. However, exceptions to this rule do exist. While probationer’s homes are protected by the Fourth Amendment’s requirement that searches and intrusions on privacy be “reasonable,” the United States Supreme Court has permitted exceptions in the context of searches of probationer’s residences due to a limited expectation of privacy possessed by those on probation. ⁱ For example, in United States v. Knights, the United States Supreme Court held that, to conduct a non-consensual search of a probationer’s home for ordinary law enforcement purposes under limited expectations of privacy, it is only necessary to show reasonable suspicion that the probationer is engaged in criminal activity.ⁱⁱ

Recently, the Fifth Circuit Court of Appeals decided a case that involved a “walk through” of a probationer’s home that was based, not upon reasonable suspicion of criminal activity, but rather upon a Louisiana statute that authorized home verification visits of probationers. In the United States v. LeBlanc, LeBlanc’s probation officer went to his home, to conduct a home visit, which was authorized under Louisiana statute, if conducted at reasonable times and intervals. The probation officer informed LeBlanc, who was a convicted felon, that he was there to conduct a home visit and asked if he could “look around.” The probation officer testified that LeBlanc did not object and showed him around the entire house. The home visit, in its entirety, only lasted for about ten minutes and the probation officer did not physically move anything, open drawers, or inspect personal belongings. However, when they entered LeBlanc’s bedroom, the probation officer observed, in plain view, a .410 shotgun which he seized as evidence of LeBlanc’s probation violation.

Later, LeBlanc moved to suppress the gun, alleging that it was seized during an unlawful search, because the search exceeded the permissible scope of a home visit without reasonable suspicion of criminal conduct. The district denied the motion to suppress and LeBlanc appealed.

The Fifth Circuit Court of Appeals first noted that the Supreme Court has recognized a “continuum” of expectation of privacy under the Fourth Amendment for probationers based upon the degree of punishment that a defendant is subjected to. ⁱⁱⁱ Therefore, a court granting a defendant probation can impose reasonable conditions that deprive that defendant of some freedom that is enjoyed by law abiding citizens. ^iv This means that courts can impose reasonable restrictions upon liberty and privacy in order to ensure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being free. ^v “Supervision, then, is a ‘special need’ of the State which permits a degree of impingement upon the privacy that would not be constitutional if applied to the public at large.” ^vi

The Court next examined Louisiana’s conditions of probation, which were designed to promote probationer rehabilitation and protection of the community from harm due to probationers being free. The state statute allowed LeBlanc’s probation officer “to visit him at his home or elsewhere.” ^vii Additionally, the Louisiana Probation and Parole Manual authorized probation officers to perform “residence verification” by utilizing interpersonal contact at the probationer’s residence. ^viii Finally, the purpose and intent of a home visit was not to conduct a law enforcement or criminal investigative measure, but rather it was a supervisory measure. Thus, the home visit conducted with LeBlanc was a constitutionally reasonable regulation and was allowed under Louisiana law.

Finally, the Court analyzed LeBlanc’s argument that the probation officer exceeded the scope of the allowable “home visit” by asking to “look around” without reasonable suspicion of criminal activity. The Court recognized that the Louisiana Supreme Court has previously stated that the supervision of a probationer may require a probation officer to take action to accomplish a home visit that would seem to intrude upon a reasonable expectation of privacy, if that person were a law abiding citizen. ^ix However, a probationer does not have the same level of an expectation of privacy as a law abiding citizen. Next, the Court noted that LeBlanc’s probation officer testified that the “purpose of a home visit was to verify compliance with the terms of probation, such as to verify that the probationer lives where he says and that the residence is suitable (not overcrowded and not residing with other felons).” ^x Considering that probationers are subject to a diminished expectation of privacy compared to the general population, the Court held that the home visit conducted at LeBlanc’s residence did not exceed the scope of that which was permissible.

In reaching the above decision, the Court considered the following facts: (1) the probation officer asked to “look around;” (2) the probation officer spoke casually with LeBlanc during the encounter; (3) LeBlanc led the probation officer through the house on a “tour;” (4) LeBlanc led the probation officer to the bedroom and opened the door clearly indicating his consent for the officer look into the room; (5) the walk through of the home lasted no more than two or three minutes; and (6) the probation officer did not closely examine any room or search through LeBlanc’s personal belongings. Thus, the Court found that, under the above facts, the mere walk through of LeBlanc’s home was merely incidental to and part of the probation officer’s interpersonal contact.

1. Griffin v. Wisconsin, 483 U.S. 868 (1987)
2. 534 U.S. 112, 121 (2001)
3. Samson v. California, 126 S. Ct. 2193, 2198 (2006)
4. Knights, 534 U.S. at 119.
5. LeBlanc at 9 (citing Griffin, 483 U.S. at 875)
6. Id.
7. LeBlanc at 14
8. Id.
9. Id. at 20
10. Id. at 21

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