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When Placed on Probation for a Crime, You Give Up Certain Constitutional Rights

In Florida, when a defendant pleads guilty or no contest to a charge or is convicted of a crime at trial, he/she may be sentenced to a term of probation. At the beginning of the probation, the defendant, now referred to as a probationer, signs a form acknowledging that he/she consents to searches of his/her home, vehicle, person and personal effects by the probation officer(s). Normally, pursuant to the Constitution, for a person who is not on probation, the police or any law enforcement official must have a warrant, probable cause or at least reasonable suspicion of a crime before any type of search can take place. However, once a defendant is under a probationary sentence, he/she gives up those rights to some degree, and he/she is subject to searches by the probation officer(s) for no apparent reason.

However, there is a question as to what law enforcement officials can do if they find evidence, such as illegal drugs, in the search of the probationer’s home as a result of a search without a warrant or probable cause. In that case, the probation officers can use such evidence in a violation of probation proceeding. However, if police officers are involved in the search and do not take the steps to obtain a warrant prior to the search as the Constitution normally requires, the evidence likely cannot be used to support a new criminal charge. In other words, if a probationer has his/her home or other property searched without the normal Constitutional safeguards such as a warrant or probable cause, any evidence located can likely only be used against the probationer in a probation revocation proceeding. If the police or probation officer(s) suspect a probationer is committing a crime and intend to secure evidence to support a new criminal charge, they would need to obtain a warrant or otherwise follow the normal Constitutional safeguards.