Written by attorney Thomas Anthony Schaeffer

4th Amendment Waiver Search

4th Amendment Waiver Consequences for Probationers and Those Associated with Probationers

Definition of 4th Waiver

When an individual is sentenced to probation a “4th Waiver" is usually included as a term of that probation. “4th Waiver" means the probationer is waiving their 4th Amendment right against unreasonable searches and/or seizures conducted by the government. In other words, law enforcement is allowed to search a probationer’s person, auto, or home without justification. Although some may see this term of probation as reasonable and even necessary to properly supervise those who agree to probation, the waiver has an impact which reaches far beyond the probationer.

Consequences for Friends and Family of Probationers with a 4th Waiver

The 4th Amendment requires either reasonable suspicion or a warrant before a law enforcement official is legally allowed to invade a person’s personal privacy. However, law enforcement is using 4th waivers to justify warrantless searches of persons, homes and autos, placing the probationer and his/her family and friends on precarious constitutional grounds by assuming that those who live with the probationer are assuming the risk of a lowered expectation of privacy.

Practical Application

In the real world, Police use "4th Waivers" to gain access to areas which would otherwise require warrants issued by judges to gain access. Although some of the searches led to additional charges, revocation of probations and the like, most searches conducted under this authority serve only to harass and subjugate the probationer and his/her family.

The most troubling example of this practice that we have encountered was an 18 year old girl who still lived with her mother and her father. Her father was on probation and was subject to a "4th Waiver." While the girl was not at home, Officers entered the residence pursuant to the terms of the father's probation and searched the entire home. In the back of the daughter's underwear drawer, the police found a small bag of Marijuana.

In the end, the daughter pled guilty to possession and was offered probation... which also included the 4th amendment waiver requirement.

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