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BarJournal CRIMINAL LAW

JULY/AUGUST 2015
fEATUrE reasonable Grounds

Parole Searches in Ohio

BY KEVIN J. VOGEL

he term “parole” is derived of parolees will find that the contours of the the regulation or statute at issue. In the Sixth
from a French word meaning, Fourth Amendment are nebulous when it Circuit, this is referred to as the “Loney test,”
essentially, “promise.” This comes to parolees. after United States v. Loney, 331 F.3d 516 (6th
neatly captures the basic idea It is well-established that parolees and other Cir. 2003).
T of parole: in exchange for individuals under mandatory community Ohio has provided for warrantless searches
making certain promises to society, eligible supervision do not enjoy the absolute liberty of parolees (and others on supervision)
offenders may be released from incarceration to which every citizen is entitled. Under by statute. Ohio Rev. Code § 2967.131(C)
and allowed to remain free as long as those appropriate circumstances, parolees and provides that “authorized field officers of the
promises are kept. In exchange for release, other supervisees can legally be subject to [adult parole] authority who are engaged
a parolee agrees to a term of government warrantless searches. This bedrock principle within the scope of their supervisory duties
supervision. was set forth by the U.S. Supreme Court in or responsibilities” may conduct warrantless
Parole supervision of the close to 20,000 the 1987 case Griffin v. Wisconsin, 483 U.S. searches of a parolee, his residence, and other
parolees in Ohio is performed by the more 868. Griffin involved the warrantless search enumerated places if the field officers have
than 728 employees of the Ohio Adult of a probationer pursuant to a Wisconsin “reasonable grounds” to believe that a parolee
Parole Authority (APA), part of the Ohio statute allowing probation officers to search has left the state, has broken the law, or is
Department of Rehabilitation and Correction a probationer’s home if there are “reasonable otherwise not abiding by the conditions of
(ORDC). Six years after its founding in 1965, grounds” to believe that contraband is present parole. This statute has consistently been held
the APA wrote in an annual report that in the home. to satisfy the first element of the Loney test,
“[h]uman nature being what it is, [parole] The Court held that the warrantless as “reasonable grounds” is equivalent to the
promises, though made with good intentions, probation search was “reasonable” under federal system’s “reasonable suspicion.” There
are sometimes broken. The parole system the Fourth Amendment because it was is a similar statute for probationers.
provides safeguards to protect society and the conducted pursuant to a valid regulation Therefore, by statute, parolees in Ohio are
offender from himself when he fails to keep governing probationers. The Court came to subject to warrantless searches by the APA if
his promise.” this conclusion after finding that probation the authorized APA officers have “reasonable
To that end, every day parole officers across supervision fell under the “special needs” grounds.” Defense counsel would do well to
the state make phone calls, visit job sites, make exception to the Fourth Amendment’s request in discovery the various records APA
home visits, and take other steps to ensure warrant requirement. keeps on its supervisees to evaluate whether
that the parolees under their supervision are Justice Scalia, writing for the majority, a warrantless parole search was properly
abiding by the conditions of their supervision reasoned that a state’s operation of a probation based on reasonable grounds. These include
as they reintegrate into the community and system was akin to the operation of a public Field Officer Tablet notes, NOTEC notes (a
become participating members of society. school or the supervision of a regulated log of supervisor notes), violation reports,
If a parole officer discovers evidence that a industry, systems which historically have staffing documents, email communications
parolee has violated the terms of parole, the permitted warrantless regulatory searches. between officers, other reports and records
parolee could find herself in administrative Moreover, forcing a probation officer to documenting the circumstances of the search,
proceedings for the violation, or even face new continually seek warrants would cause delay and APA policy documents.
criminal charges. and interfere with the objectives of probation. Parole searches in Ohio continue to
Like other types of government action, The Griffin holding has been extended to be analyzed under the “special needs”
parole contacts and investigations must parolees as well. Post-Griffin, warrantless framework of Griffin and Loney, but
be performed in accordance with the law, searches of parolees will be upheld under the courts may also separately consider
including the Fourth Amendment of the “special needs” exception if two elements are whether a search is constitutional under
U.S. Constitution and Article I Section 14 met: (1) the search was conducted pursuant to the “totality of the circumstances,” with
of the Ohio Constitution, which prohibit a regulation or statute that satisfies the Fourth the status of the supervisee and the
unreasonable searches and seizures. However, Amendment’s reasonableness requirement condition authorizing the search being
counsel handling cases that involve searches and (2) the facts of the search itself satisfy two of the most salient considerations.
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