1) Consent to search regulations can be included as a condition of mandatory supervision. This is authorized by state parole policy manuals, state codes, or case law. Only one method is required to justify the search condition. 2) Case law has established that warrantless searches of parolees do not violate the Fourth Amendment as long as regulations authorizing such searches meet reasonable standards. States can impose special conditions on those released on mandatory supervision through parole department policies, state codes, or case law. 3) For a search condition involving warrantless home searches under mandatory supervision to be reasonable, it should be used discretionally depending on the nature of the original crime, such as being more justified for a sex offender versus a negligent

1. TEXAS DEPARTMENT OF CRIMINAL JUSTICE
Brad Livingston
www.tdcj.state.tx.us Executive Director
TO: Regina Grimes
FROM: Bert McManus
DATE: 9-30-2002
RE: Mandatory Supervision Condition – Consent to Search
ISSUE: Whether consent to search regulations can be part of a mandatory
supervision condition?
ANSWER: Yes, as long as the search condition is authorized by at least one of
three regulatory authorities. One authority is the state parole policy and procedures
manual. The manual should provide specific guidelines for parole officers to
follow when conducting searches and seizures of a parolee. The second way is by
state code. The code should at least state that the Parole Division is governed by
the regulation(s) listed and permit his/her parole officer to visit him at home or
work to be subject to search of his property, person, and residence. Thirdly, case
law can authorize warrantless searches of a person who is on mandatory
supervision. Each of these categories has different guidelines, which allow for
warrantless searches of a parolee; however, only one method is needed to justify
the search condition.
ANALYSIS: The following five cases address the issue of mandatory
supervision requiring a search condition. These are Roman v. State, 570 P.2d 1235
(1977); State v. Alaska, 807 P.2d 513 (1991); Garrett v. State, 791 S.W. 2d 137
(Tex. Crim. App. 1990); State v. James, 963 P.2d 1080 (1998); and United States
v. Newton, 181 F. Supp. 2d 157 (E.D.N.Y. 2002) United States v. Newton, 369
F.3d 659, 676 (2nd Cir.), cert. denied, 160 L. Ed. 2d 262, 125 S. Ct. 371 (2004).
Subject to the conditions of his parole, a parolee…is free to be with his family,
friends, and to form other enduring attachments of a normal life. Roman, citing
Morrissey v. Brewer, 408 U.S. at 482 (1972). The State subjects him to many
different restrictions not applicable to other citizens but is quite different from
incarceration in prison. Id. When determining the constitutionality of warrantless
OFFICE OF THE GENERAL COUNSEL
Bert McManus, Legal Assistant - bert.mcmanus@tdcj.state.tx.us
P.O. Box 13084 Capitol Station P.O. Box 4004
Austin, Texas 78711 Huntsville, Texas 77342-4004
Phone (512) 463-9899, Fax (512) 936-2159 Phone (936) 437-6698, Fax (936) 437-6994

2. search conditions for a parolee, we utilize the approach of the Supreme Court and
balance the “precise nature of the governmental interest involved” against the
“private interest that has been effected by governmental action”. Roman. A
parolee or a probationer does not generally relinquish their constitutional right to
be free from unreasonable searches and seizures. Newton, citing Griffin v.
Wisconsin, 483 U.S. 868, 873 (1987). To help determine what reasonable is we
must look at a parolee’s status as compared to a person who is not on parole.
Newton citing United States v. Grimes, 67 F. Supp. 2d 170,175 (W.D.N.Y. 1999).
Most of the time a search of one’s residence or property may only be performed by
warrant supported by probable cause. Newton citing Griffin at p. 873. However,
the United States Supreme Court has permitted exceptions to these standards when
it comes to a State operating its probation and parole system. Id. Probationers and
Parolees can be subject to impingement of their privacy that would not be
constitutional if applied to the public at large. Newton citing Griffin at p. 875. To
guarantee that this impingement does not violate a parolee’s level of Fourth
Amendment protections, warrantless searches without probable cause, need to be
formulated in a regulation that meets reasonable standards of the Fourth
Amendment. Id at p. 873. These type of searches come under the heading of
warrantless administrative searches, where government investigators perform
searches within a regulatory system and are excluded from the warrant/probable
cause requirement. Newton citing Camara v.Municipal Court, 387 U.S. 523, 538
(1967). These warrantless administrative searches are legal as long as they meet
reasonable legislative or administrative standards. Id. To apply this standard to a
parolee, the state where he is on parole must have a law, which provides
appropriate search regulations, Newton. This State law can take on any of three
forms: The Parole Department’s Policy and Procedure Manual, State code
regulations governing release conditions of parolees, or case law. Id.
The probable cause standards and warrant requirements do not apply to searches
and seizures of a parolee. Roman citing Latta v. Fitzharris, 521 F. 2d 246 (9th
Cir.
1975), cert. denied, 423 U.S. 897 (1976). The parolee and his home are subject to
search whenever the correctional officer reasonably believes that such a search is
necessary. Id. However, a condition permitting warrantless searches and seizures
at any time of day or night is too liberal. Roman citing Tamez v. State, 534 S.W.
2d 686 (Tex. Crim. App. 1976). Yet Roman cited People v. Mason, 5 Cal. 3d 759
(1971), cert. denied, 405 U.S. 1016 (1972) stating a warrantless search by a
probation officer at any time is reasonable where the original conviction was for a
narcotics offense. Depending on the nature of the crime involved, a condition of
release granting authorities the right to search premises and persons at reasonable
times could stand muster under both Alaska and federal Constitutions. Roman. …
A parolee, while free of the prison walls, still remains under legal custody.
2

3. Garrett, citing United States v. Rabb, 752 F.2d 1320 (9th
Cir. 1984), cert. denied,
471 U.S. 1019 (1985). The opinions of Morrissey, Latta, Rabb, and Griffin,
indicate that probationers and parolees do not enjoy the same level of Fourth
Amendment protection that is given to defendants only suspected of a crime.
Garrett. A reduction of Fourth Amendment protection and protection afforded by
Article I, Sec. 9, Texas Constitution, can be justified only to the extent actually
necessitated by the legitimate demands of the probation process. Id. The Supreme
Court of Alaska stated that…warrantless searches of probationers and parolees
would thenceforth be lawful only if the sentencing court or the parole Board had
specifically authorized warrantless searches in the conditions of the defendant’s
probation or parole. James, citing Roman. Roman further held, …The Parole
Board does not have unlimited authority to impose warrantless-search conditions
but such conditions will be allowed only when the record establishes “a reasonable
nexus” between the defendant’s underlying conduct and the decision of the court
or Board to allow warrantless searches. Id.
When a parolee is put on mandatory release, he is put into an environment that
maintains constructive custody over him as compared to prison. This environment
is not bound by the intrusive rules of incarceration but is still kept under the control
of each state. The State has the right to implement special or supplemental
conditions to someone released on parole or mandatory supervision. Either the
State Parole Department’s Policy or Procedures Manual, State Code, or State Case
Law should regulate these supplemental conditions. The standards under which
these three types of regulations are imposed are different. In a recent court
decision, when a policy and procedures manual authorizes warrantless searches of
a parolee, there seems to be the need for (a) consent from the parolee and (b) a
clear reason for doing so. When the legislature gives authorization, it appears that
the releases’ signature on the standard certificate of release is all that is needed.
Reasonableness does not seem to be an issue. When judicially authorized, there
seems to be no need for consent of the parolee or the inhabitants of the residence.
Only the search needs to be related to the performance of the parole officer’s duty.
The duty of the parole officer or department is to deter and detect parole violations
as well as protect the public from criminal activity. A condition of release,
involving warrantless searches of residences under mandatory supervision, should
be used with discretion, depending upon the nature of the original crime committed
by the parolee. For example someone who is on parole for negligent homicide
might not need a warrantless search of his home at night as compared to a sex
offender. One would seem unreasonable and the other justified.
When Fourth Amendment issues are imposed on mandatory
supervision, the Board should afford an inmate the opportunity to an in-person
3

4. hearing. This seems to be the only time where courts have directed parole agencies
to allow inmates to be heard on conditions of mandatory supervision. Inmates
have no say over standard conditions of parole. Unlike probation, inmates have no
right to refuse mandatory supervision because it is part of the penological process
and not an act of mercy. Even if an inmate refuses to sign the agreement on
supplemental conditions of mandatory release, he is still bound to its conditions
and is subject to parole revocation if he does not abide by them. The conditions
just need to be reasonably related to the rehabilitation of the parolee, the protection
of the public, and not excessively restrictive of liberty.
4