Cases holding search waivers constitutional, when person is convicted or a probationer, but search waivers for individuals on bond are of questionable validity

State v. Olsen

State v. Olsen, 399 P. 3d 1141 (Wash.  Supreme Court 2017)

Washington Supreme Court upholding random drug testing of DUI probationer: Olsen was convicted of a crime and is still in the State’s legal custody. Simms, 10 Wash.App. at 82, 516 P.2d 1088. She has a duty to engage in her rehabilitation in exchange for the privilege of being relieved from jail time and “should expect close scrutiny” of her conduct. Lucas, 56 Wash.App. at 241, 783 P.2d 121; see also City of Spokane v. Marquette, 146 Wash.2d 124, 132, 43 P.3d 502 (2002) “Random UAs are a permissible means here. UAs are an important monitoring tool utilized by courts during the rehabilitative process of probation. See, e.g., Williams, 97 Wash.App. at 260, 983 P.2d 687 (authorizing requirement that probationer submit to a breath test, blood test, or UA upon probation officer’s request); KING COUNTY DRUG DIVERSION COURT, PARTICIPANT HANDBOOK 5-7 (2015) (drug court participants required to participate in random, observed UAs). Unannounced testing is, arguably, crucial if a court is to impose drug testing at all.[4] Random testing seeks to deter the probationer from consuming drugs or alcohol by putting her on notice that drug use can be discovered at any time. It also promotes rehabilitation and accountability by providing the probation officer with a “practical mechanism to determine whether rehabilitation is indeed taking place.” Macias v. State, 649 S.W.2d 150, 152 (Tex. Crim. App. 1983) (weekly UAs)”.) Additionally, as noted by the National Drug Court Institute, “it is crucial that samples be collected in a random, unannounced manner,” as random testing prevents individuals from planning ahead and avoiding detection.[5] Requiring reasonable suspicion as a basis to test could make it prohibitively difficult for the probation officer to carry out his or her responsibilities of supervising the probationer and accurately assessing progress toward rehabilitation. See State v. Zeta Chi Fraternity, 142 N.H. 16, 28, 696 A.2d 530 (1997) (citing State v. Berrocales, 141 N.H. 262, 681 A.2d 95 (1996)).

State v. Barth

State v. Barth (Iowa Court of Appeals 2016)

A majority of the courts across the nation that have considered the issue have concluded that “consent-search provisions in probation agreements constitute a waiver of search-and-seizure rights.” Id. at 792-93 (citing cases); see also, e.g., United States v. Barnett, 415 F.3d 690, 691 (7th Cir.2005) (“Constitutional rights like other rights can be waived, provided that the waiver is knowing and intelligent, as it was here.”); State v. Gawron, 112 Idaho 841, 736 P.2d 1295, 1297 (1987) (upholding warrantless search of probationer based on consent contained in probation agreement); People v. Absher, 242 Ill.2d 77, 351 Ill.Dec. 163, 950 N.E.2d 659, 668 (2011) (upholding suspicionless search based on consent to a warrantless search).

US v. Laurent

US v. Laurent, 861 F. Supp. 2d 71  (ED New York 2011)

Collecting cases where an indictee may also be subject to pre-trial release conditions that infringe upon his constitutional rights, provided that there has been an independent judicial determination that such conditions are necessary.

Sanders v. Bishop

Sanders v. Bishop, 1:06-cv-01264 OWW GSA (E .D. Calif. 12-29-2008)

Collecting cases reflecting search waivers permissible in probation and parolee cases.

Butler v. Kato

Butler v. Kato, 154 P.3d 259, 259 (Wash. Ct. App. 2007)

Following United States v. Scott, 450 F.3d 863, 863 (9th Cir. 2006) (concluding that a search waiver is probably improper when a person is on bond.

Samson v. California

Samson v. California, 547 U.S. 847, 847 (2006)

Holding consent to search by parolee negated necessity of establishing reasonable suspicion, but search could not be for harassment.

State v. Kouba

State v. Kouba, 709 N.W. 2d 299, 299 (Minn. Ct. App. 2006)

Recognizing that a waiver is sufficient in probation cases.

United States v. Scott

United States v. Scott, 450 F.3d 863, 863 (9th Cir. 2006)

Concluding that a search waiver is probably improper when a person is on bond.

State v. McAuliffe

State v. McAuliffe, 125 P.3d 276, 276 (Wyo. 2005)

Recognizing complete waiver, but search must be reasonable.

State ex re. A.C.C.

State ex rel. A.C.C., 44 P.3d 708, 708 (Utah 2002)

Recognizing waiver in juvenile case, but limited case to the facts.

State v. Ullring

State v. Ullring, 741 A.2d 1065, 1065 (Me. 1999)

Holding that a search waiver as a condition of bond is constitutional.

Terry v. Superior Court

Terry v. Superior Court, 86 Cal. Rptr. 2d 653, 653 (Cal. Ct. App. 1999)

Holding that a 4th Amendment waiver is an improper condition in diversion case, without statutory authority.


In re York, 40 Cal. Rptr. 2d 308, 308 (Cal. 1995)

4th Amendment waiver is an improper condition in diversion case, without statutory authority.