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25 Sep 2012

The Fruits of a Probationary Administrative Search Cannot Be Used to Prosecute a New Crime

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D.H.K. was arrested in Port St. Lucie on October 22, 2009, for violation of probation (VOP). D.H.K. was on probation out of the State of New Jersey. This probation was transferred, however, through the Interstate Commission for Adult Offender Supervision (the “Interstate Commission”).

D.H.K.’s probation officer appeared at his Port St. Lucie residence to conduct an “administrative” search of the home. During the course of this detailed and extensive search, a gram of suspected cannabis was located. The probation officer immediately placed D.H.K. under arrest for the VOP, apparently employing DOC’s “zero tolerance” policy. D.H.K. was remanded to the St. Lucie County Jail to languish without bond.

D.H.K.’s father immediately contacted Jeffrey H. Garland, who met with the client over the weekend and began collecting documents.

Attorney Garland recognized that the case had two components:

  1. The illegal search; and
  2. The State of New Jersey’s anticipated lack of enthusiasm for extradition, incarceration and related expenses connected with a VOP for one gram of cannabis.

Attorney Garland recognized that Florida probationers are routinely required to submit to administrative searches pursuant to a standard condition of probation which provides substantially as follows:

You shall submit your person, property, place of residence, vehicle or personal effects to a warrantless search at any time, by any probation or community control officer or any law enforcement officer.

Attorney Garland secured a copy of the specific probation order imposed by the New Jersey court in D.H.K.’s case. The New Jersey probation order required that the probationer consent to visitation, but did not require the probationer to submit to administrative searches:

You shall permit your probation officer to visit your residence or other suitable place, vehicle, or other personal property.

The defense investigation established that the Florida probation officer probably conducted an illegal search. Florida courts allow probationers to raise search and seizure defenses in probation violation cases. In this situation, a court would probably have ruled that the search was illegal and ordered the one gram of cannabis to be suppressed.

It was not necessary to take this matter to court. The defense went directly to the New Jersey probation officer who was monitoring D.H.K.’s case. Perhaps because of the de minimis nature of the violation, or perhaps because of the search and seizure issue (we may never know), the New Jersey probation officer advised the Interstate Commission that it would not issue a warrant.

Based upon New Jersey’s refusal to extradite, the Interstate Commission issued an order on October 28, 2009, for D.H.K. to be released from custody. He was released from the St. Lucie County Jail the same day.

Several lessons might be learned from this case:

  1. A persons sentenced to probation or parole in one state may transfer supervision to another state. This transfer is accomplished via the Interstate Commission for Adult Offender Supervision.
  2. A probationer may be subject to an administrative search. However, the scope of such an administrative search would be established by the probation order in the specific case.
  3. If the probation order does not authorize an administrative search, then the probation officer or law enforcement officer must have some independent reason to authorize the search. Such independent authority could arise from a search warrant, consent or certain other exigent circumstances.
  4. If evidence of a crime is uncovered during a probationary administrative search, then that evidence may not be used to prove the independent crime – although it might be used to establish a violation of probation. This is a complicated area of evolving law. Any person who is arrested under such circumstances and facing prosecution should consult a qualified attorney about these issues. See Gordon v. State, 1 So.3d 117 (Fla. 1st DCA 2009); Bamberg v. State, 953 So.2d 649 (Fla. 2nd DCA 2007); Soca v. State, 673 So.2d 24 (Fla. 1996); and United States v. Knights, 122 S.Ct. 587 (2001).
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