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Arizona Supreme Court Clarifies Proper Standard for Reviewing Search of a Probationer's Home

by Christopher Zoukis

The Arizona Supreme Court has cleared up confusion in the state about the amount of suspicion required to legally search a probationer's home without a warrant.

Christian Adair was on probation for two felony convictions for solicitation to possess crack cocaine for sale. His probation conditions required that he "submit to search and seizure of person and property" by the probation department without a warrant. Based on uncorroborated information provided by a confidential informant who refused to be named in a police report, probation officers and local police conducted a warrantless search of Adair's residence.

The search uncovered crack cocaine, scales, packaging material, $450 in cash, a gun and ammunition. Adair was charged with felony possession of narcotic drugs for sale, possession of drug paraphernalia and misconduct involving weapons. His probation officer also filed a petition to revoke his probation.

Adair moved to suppress the evidence, arguing that the search was "a warrantless, pretextual police search, not a search by probation officers pursuant to the probation conditions." Adair also argued that the search was improper because the police did not have reasonable suspicion. The trial court agreed and suppressed the evidence.

The appellate court disagreed with the use of a reasonable suspicion standard, and the Arizona Supreme Court affirmed, reversing the trial court. According to both upper-level courts, "reasonableness under the totality of the circumstances" is the proper standard for weighing the legality of the warrantless search of a probationer's home.

"[I]n assessing whether the probation officers' warrantless search of Adair's residence was lawful, 'reasonableness under the totality of the circumstances satisfies the requirements of the Fourth Amendment,' " wrote the Arizona Supreme Court.

The court reached this conclusion after balancing the probationer's diminished expectation of privacy with the state's "substantial" interest in apprehending criminals and protecting potential victims.

"The status and privacy interests of doctors, students, motorists, and pedestrians are not analogous to those of convicted felons on probation," wrote the court. "The respective interests of the government and the persons subjected to searches in non-probation cases are not fairly comparable to the parties' respective interests here."

The court highlighted several factors, to be considered in determining "reasonableness under the totality of the circumstances." Such factors to be balanced include whether the person subject to a warrantless search is a bona fide probationer; whether the search is conducted by a probation officer in order to determine compliance with probation requirements; the nature and scope of the probationer's prior conviction; the content and scope of the probation conditions; the nature and severity of the suspected offense giving rise to the search; whether the suspected crimes are similar to the crimes for which the probationer is on probation; and the nature, source and plausibility of the information supporting the search.

Applying this test to Adair's situation, the Arizona high court easily found the search to be legal. The court was not troubled by the fact that uncorroborated information was provided by an informant, finding that such considerations are less important in the probation context.

"The trial court observed that the informant provided very limited, uncorroborated information," noted the court. "But those observations, though pertinent to situations involving anonymous tips in which reasonable suspicion or probable cause is required for a stop or search, neither diminish the significance of the information that was conveyed nor preclude a finding of reasonableness in this context."

In reaching its decision, the court observed that the search here "was not a mere pretext for conducting a criminal investigation by the police." Had that been the case, the result would likely have been different. See:  State v. Adair, Case No. CR-15-0337-PR (Sup Ct. Ariz. 2016).

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Related legal case

State v. Adair