SDNY Judge Suppresses Evidence Seized Under Order Obtained by Probation Officer Without Finding of Probable Cause

Can a probation officer seek a warrant to search the home and locker of a supervisee who is not subject to warrantless searches under the terms of his supervised release?  Alternatively, may a probation officer seek an order under the All Writs Act permitting such a search?  If a court signs an order permitting the search without making a probable cause determination, may the probation officer nonetheless rely on the “good faith” exception to the warrant requirement? 

Answering all of these “difficult questions at the core of Fourth Amendment jurisprudence” in the negative (and suppressing all seized evidence) in United States v. Kone, 08 Cr. 557(SAS), 2008 WL 4866031 (S.D.N.Y. November 5, 2008), Judge Scheindlin has issued an important ruling that will curtail the use of probation officers as surrogates for law enforcement agents - whether commissioned or volunteers - in criminal investigations.

Facts

Kone moved to suppress evidence uncovered during court-ordered searches of his home and personal locker. At the time of the searches, he was serving a federal term of supervised release, but was not subject to any special condition or statute authorizing a warrantless search of his home.  Prior to each search, a probation officer obtained an “Order” from a federal district court judge authorizing the search.  Neither the orders nor the supporting affidavits stated that there was probable cause for the search.  The affidavits were based on “credible information” received from a Secret Service agent and a cooperating witness, and outlined the details of a joint FBI and Secret Service investigation into a fraudulent check cashing scheme. Various incriminating items were seized during the searches. 

Holding

First, the court held (and the government conceded), that the probation officer needed to obtain a warrant in order to search Kone’s home.  Second, the “orders” obtained here were not warrants, not so much because they weren’t called warrants, but because they did not contain the words “probable cause,” and there was no basis to conclude that they  “necessarily issued upon a judicial finding of probable cause.”  In fact, the district judges signing the orders may have reasonably assumed that what was sought here was something less than a Fourth Amendment warrant (for example, they “may have presumed that the Order was requested pursuant to . . . a special search condition [of supervised release], which required no finding of probable cause”).  As such, “the search of Kone’s home was a warrantless search – presumptively unreasonable.”  Finally, the probation officers could not rely on the good faith exception to the warrant requirement.  “The Constitution states that no warrant may issue but upon probable cause; thus, under clearly established law, no reasonable officer could believe that an Order that could issue without a judicial finding of probable cause was equivalent to a warrant.”

Comment

The sanction imposed here - suppression of all evidence seized from Kone’s home and locker - is rebuke enough to the government.  But while the decision never uses the word “misconduct,” it is a clear rejection of the troubling events here - whether the probation officer was engaging in some unauthorized extra-curricular law enforcement, or was being used by an investigating agency to circumvent the warrant requirement.   Judge Scheindlin’s damning conclusion is clear: “if the probation officers believed that the circumstances called for a search warrant, they should have referred the matter to a law enforcement officer, or an attorney for the Government, to request the warrant, as required by [Fed.R.Crim.P.] 41,” rather than coming up with this “experimental practice” seeking “a novel type of writ . . . governed by no law.”  And by implication, if the agency in question believed that the circumstances called for a search warrant, it should similarly have sought a warrant using time-honored procedures, and not used the target’s probation officer as its surrogate.

Lawyers: Mark Gombiner, Esq. (Federal Defenders of New York, Inc.); AUSA Edward Kim