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Probationer in Florida Has Severely Compromised Right to Privacy

In Florida and other states, a person has a right to privacy in his home, automobile, personal effects and other property. This means that the police cannot just search a person or his/her property based on suspicion or because they feel like it. However, the rules are different for people on probation.  If a person is arrested and charged with a crime, pleads guilty or is convicted at trial and is then put on probation, the state has much greater access to that person and his/her property than a regular person.

In a case just south of Jacksonville, Florida, the defendant was on probation for attempted sexual battery on a child. He was put on probation after he served time in prison. While on probation, he was required to fulfill certain conditions, and he had a probation officer who supervised him. While on probation, his probation officer came into his home and downloaded his cell phone data without a search warrant or consent.

Obviously, a police officer or anyone from the state cannot enter a person’s home and/or search his cell phone without a search warrant or specific consent under normal circumstances. However, this involved a person on probation for a serious crime.  Upon searching his phone, the probation officer found information that indicated the defendant had violated his probation. A warrant was issued for the violation of probation.

The criminal defense lawyer filed a motion to suppress the evidence arguing that the probation officer’s search of the defendant’s cell phone was illegal. A person’s cell phone data are private, the terms of his probation did not specifically allow the probation officer to search his phone and the probation officer did not have a reasonable basis to believe there was incriminating evidence in the cell phone.

The court noted that probationers have a diminished right to privacy, and the state has a significant interest in searching people on probation. The court also noted that the law allows probation officers to search a probationer’s home without consent, a search warrant or reasonable suspicion of a crime. In those cases, whatever evidence is found is only permitted to be used in a probation violation case. However, the court did acknowledge that cell phones generally hold more information, and more private data, than residences do these days. But, that was not enough for the court to rule in favor of the defendant, especially because cell phones could hold important evidence in cases involving abuse of children.  The court allowed the search of the defendant’s cell phone and found it did not violate the Fourth Amendment as long as the evidence found was only used for probation proceedings.

It is important to note that the serious nature and type of underlying charge was an important factor in the court’s decision. It is less likely that a court would allow a probation officer to walk into a person’s home and search his cell phone if he was on probation for a less serious crime or one where cell phone data would not be as relevant. That being said, as of now, this case gives probation officers quite a bit of authority to search probationers until the court rules differently.