On February 7, 2008, the Illinois Supreme Court decided People v. Wilson, 228 Ill.2d 35, 885 N.E.2d 1033, 319 Ill. Dec. 353 (2008), upholding suspicionless searches of parolees by law enforcement officers. This decision left no question that officers may subject those individuals on Mandatory Supervised Release (MSR)1 to suspicionless searches. However, the Court did not address whether such a search would be reasonable if the searching officer had no knowledge of the individual’s status on MSR at the time of the search. This article addresses that question.

In Wilson, the Court reviewed a search of defendant’s bedroom conducted by defendant’s parole officer and two police officers. In doing so, the Court also measured the effect of the defendant’s MSR agreement on his expectation of privacy.2 MSR agreements are signed by all criminal defendants placed on MSR prior to their release to MSR and provide, in part, that the defendants “shall consent to a search of [their] person, property, or residence under [their] control.”3 While Illinois law is clear that such an agreement does not amount to prospective consent,4 the Court in Wilson did give this agreement substantial weight in finding that a parolee has a reduced expectation of privacy.5 Weighing the diminished expectation of privacy against the State’s legitimate interest in monitoring parolees, the Court balanced these competing interests and held the Fourth Amendment does not prohibit a suspicionless search of a parolee’s residence.6

In Wilson, the searching officers did know that Wilson was on parole. However, now that Wilson has unequivocally expanded searches of those on MSR to regular law enforcement officers, the question is sure to arise: Would a search of a parolee, otherwise lacking individualized suspicion, be reasonable if the officer realized the individual was on MSR only after the search was concluded? Whether this were to take place on a traffic stop, traditional Terry stop, or while on a residential call, this situation is not beyond comprehension and has certainly happened already. In this situation, a prosecutor is left with the decision whether to argue that, in retrospect, the search was valid due to the individual’s status on MSR.

The retrospective argument seems to have been left open by the strong language the Wilson Court used when addressing the privacy interest half of the balancing test. The Court cited People v. Moss, 217 Ill.2d 511, 842 N.E.2d 699, 299 Ill. Dec. 622 (2006), stating that the search condition in the MSR agreement has no “limitation on what government agent may perform that search or what purpose they may have.”7 The Court also noted that a parolee is on notice that a law enforcement officer may ask for consent to search with or without suspicion of wrong doing.8 If this is the case, what reason would there be for an officer to have knowledge the person is on MSR? The parolee would have no reason to believe such knowledge is required. Additionally, the Wilson Court cited a federal Ninth Circuit decision stating that “a parolee has no expectation of privacy.”9 Furthermore, an officer’s lack of knowledge plays no role in the parolee’s already nonexistent expectation of privacy. Therefore, an officer does not need to have knowledge of the individual’s status on parole prior to the search. Right? This must be the case unless an answer is found in the other side of the balancing test.

For a search to be reasonable there must also be a legitimate State interest that outweighs the parolee’s privacy interest.10 While theWilson Court never discussed the legitimate government interest present during the search in question, the Court did discuss other cases that stood for the principle that a state’s legitimate interest warrants privacy intrusions on parolees.11 However, the Court did not discuss the searching officer’s knowledge of the MSR and the answer to the question does not seem to be addressed in Illinois jurisprudence.

This topic of officer knowledge was addressed by the United States Supreme Court in Samson v. California, 547 U.S. 843, 126 S. Ct. 2193 (2006). While addressing the fear of arbitrary and/or capricious searches, the Court in Samson noted that under California precedent “an officer would not act reasonably in conducting a suspicionless search absent knowledge that the person stopped for the search is a parolee.”12 Essentially, under California law, if an officer does not have knowledge of the individual’s status on parole there is no legitimate state interest being pursued in searching the individual.

A similar requirement is well established in Illinois probable cause jurisprudence. Illinois law is clear that an officer’s assessment of probable cause to arrest must be based on facts known to the officer at the time of arrest.13 Given that reasonableness to search is also based on the totality of facts and circumstances known to the officer at the time of a search, it logically follows that an officer would need to know that the individual being subjected to a search is on MSR and therefore subject to suspicionless searches.

Despite this precedent, it is hard to escape the firm language used in Wilson that “a parolee has no expectation of privacy.”14 If a court is to truly balance the competing interests, it would not take much for the State’s interest to outweigh a nonexistent privacy interest. However, as is understood in California, the officer should be serving a state interest at the time of the search. Whether it is knowledge of the individual’s status on MSR or the otherwise required level of suspicion, as law enforcement officers continue to train and work under the authority of Wilson, they would be well advised that in the absence of the individualized suspicion to make sure the individual in question is on MSR. Otherwise, we may find that hindsight is not reasonable.

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Adam W. Ghrist is an Assistant State’s Attorney in the McLean County State’s Attorney’s Office. Any opinions expressed in this article are solely those of the author and not those of the McLean County State’s Attorney’s Office.

1. MSR was previously and still remains commonly referred to as “Parole” in Illinois.

2. 730 ILCS 5/3-3-7.

3. 730 ILCS 5/3-3-7(a)(10).

4. People v. Moss, 217 Ill.2d 511, 842 N.E.2d 699, 299 Ill. Dec. 622 (2006).

5. Wilson, 228 Ill.2d at 53 (The Wilson Court relied heavily on the United States Supreme Court’s holding in Samson v. California, 547 U.S. 843, 126 S.Ct. 2193 (2006), which reviewed a search of a parolee subject to a similar California search agreement. The SamsonCourt found the similar agreement salient to the parolee’s diminished expectation of privacy. 547 U.S. at 852, 126 S.Ct. at 2200.

6. Wilson, 228 Ill.2d at 53.

7. Moss, 217 Ill.2d at 532.

8. Wilson, 228 Ill.2d at 50 (citing Moss, 217 Ill.2d at 532).

9. Id. at 51(emphasis added) (citing United States. v. Lopez, 474 F.3d 1208 (9th Cir.2007)).

10. Id. at 41.

11. Id. at 50-51.

12. Samson, 547 U.S. at 857 n. 5 (citing People v. Sanders, 31 Cal.4th 318, 331-332, 2 Cal.Rptr.3d 630, 73 P.3d 496, 505-506 (2003) (Supreme Court of California holding that “such a search cannot be justified as a parole search, because the officer is not acting pursuant to the conditions of parole”)); see also Moreno v. Baca, 431 F.3d 663, 641 (9th Cir.2005)(“[P]olice officers cannot retroactively justify a suspicionless search * * * on the basis of an after-the-fact discovery of * * * a parole condition”).

13. People v. Nash, 78 Ill.App.3d 172, 177, 397 N.E.2d 480, 484 (1979) (holding that an otherwise illegal arrest of defendant for one offense could not be justified when, in retrospect, it was discovered that probable cause existed to arrest defendant for another offense); see also People v. Harris, 352 Ill.App3d 63, 815 N.E.2d 863 (2004).

14. Wilson, 228 Ill.2d at 50 (citing Moss, 217 Ill.2d at 532).