Illegal Search & Seizure – Probation & Parole Violations

PROBATION & PAROLE VIOLATIONSIf a search is conducted without probable cause, all of the evidence obtained from that search is inadmissible and excluded from trial.   This is basic principal of constitutional law under our Commonwealth’s constitution and the US constitution.  The evidence isn’t permitted at trial under what is known as the exclusionary rule.  The purpose of the exclusionary rule is to correct the invasion of a person’s rights.  While evidence is excluded at trial, Pennsylvania previously allowed excluded evidence to be used during probation and parole violation proceedings.

PA Courts allowed this inadmissible evidence under the reasoning that parolees and probationers have a diminished protected privacy interest under the Pennsylvania and United States Constitutions. Recently, however, in the case of Commonwealth vs. Arter, the Pennsylvania Supreme Court held that while probationers and parolees have a more narrow privacy interest than a person who is not on parole or probation they nevertheless have a protected privacy interest and searches of these individuals must be reasonable.

Since searches must be reasonable, the exclusionary rule which previously only applied to evidence at trial, now applies to probation and parole violation proceedings under the exclusionary rule. In this decision, the PA Supreme Court found that while the U.S. Constitution provides an individual with certain rights, the Pennsylvania Constitution is free to provide a greater level of protection and there is no prohibition against this greater level of protection.

The counterargument to this reasoning, however, is that persons on probation or parole have been given an opportunity to be released from jail early and so courts should not exclude evidence simply because it is suppressed for the purposes of trial. Further, opponents complain that applying the exclusionary rule to probation revocation proceedings could negatively affect public safety and would hinder a probation officer or parole officer’s ability to enforce the terms and conditions of an individual’s probation or parole.

This decision, however, doesn’t put probationers and parolees in the same position as other individuals under the Constitution of Pennsylvania or the U.S. Constitution.  As stated earlier, police searches require probable cause.  This decision, however, requires that searches of persons on probation or parole have reasonable suspicion; a lower form of probable cause.  Evidence seized without this lower form of probable cause is inadmissible not only at trial obviously, but also for parole and probation violation hearings.  This is a huge decision because prior to this decision, this evidence was admissible and a person found in violation was subject to either resentencing to a new period of probation or had their parole revoked and sent back to prison to complete the remainder of their term.

While this decision goes beyond the protections provided by the U.S. Constitution, Pennsylvania courts are not limited to the restrictions of that document, or its interpretations and may look to the Pennsylvania Constitution for further protection. In these situations, courts will evaluate a person’s constitutional rights using the following analysis:

  1. The text of the Pennsylvania constitutional provision to the history of the provision, including Pennsylvania case law.
  2. Relevant case law from other jurisdictions, and
  3. Policy considerations including unique issues of state and local concerns and the applicability within modern Pennsylvania jurisprudence.

Illegal search and seizure is major issue especially in cases involving illegal guns, firearms and even DUI/DWI.  For more information, I encourage you to continue reading my blog and visit my website’s free download section.