No Need For Reasonable Suspicion for Search of Probationer

Agents of law enforcement are not required to cite reasonable suspicion before searching a probationer under standard probation.

 

United States v. Tessier, 2016 BL 45438, 6th Cir., No. 15-5284, 2/18/16

     The Sixth Circuit Court of Appeals ruled that, as long as the standard probation form that consents to searches "without a warrant" and "at any time", law enforcement officials do not need reasonable suspicion to search a probationer.

     Probationers still have some protections, but are not entitled to the same absolute liberties, guaranteed by the Fourth Amendment, as people not on probation. In this case, officers were acting within a operation searching the residences of every known sex offender in the county. The court used a "totality of the circumstances" analysis and said that because the search conditions in this case advanced the two primary goals of probation - rehabilitation and protecting society from future criminal violations -  the intrusion was reasonable.

     The court said that it did not need to answer the greater question of "whether a search of a probationer's home that has no legitimate law enforcement or probationary purpose-such as a search with no purpose other than to harass the probationer-would be reasonable under the Fourth Amendment."

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Tessier_No_155284_2016_BL_45438_6th_Cir_Feb_18_20?1457129207

De Novo Review for Counsel Forfeiture

A trial court's finding that a defendant forfeited his right to counsel through his conduct must be reviewed de novo, even if the defendant did not object at the time and did not have counsel at the hearing.

 

United States v. Ductan, 2015 BL 284193, 4th Cir., No. 14-4220, 9/2/15

    The defendant had not stated specifically that he objected to the ruling that he had forfeited his right to counsel. He did indicate that he was planning to hire private counsel and did not represent himself. He was also speaking in what the Fourth Circuit called "nonsense statements." This behavior prompted the magistrate judge to declare that the defendant had forfeited his right to counsel.

    In this per curiam decision, the Fourth Circuit said that the circumstances of the case require a de novo review of the finding of forfeiture of the right to counsel. The court cited the Ninth Circuit decision referring to a defendant's inability to understand, or even point out, the trial court's errors. The context of making a decision of forfeiture based, at least in part, on the defendant's behavior has now been used in at least two circuits.


http://www2.bloomberglaw.com/public/desktop/document/United_States_v_Ductan_No_144220_2015_BL_284193_4th_Cir_Sept_02_2