Police Search Power Expansion Raises Questions Of Constitutionality

The success of a new bill that would expand police search powers could depend on the interpretation of a state Supreme Court ruling.

Criminal defense attorneys say allowing police broad powers to search people on probation or parole may not be constitutional. At a hearing on the bill, its author, Senator Joe Leibham of Sheboygan, cited a state Supreme Court opinion to support his belief that the bill does not violate Fourth Amendment rights that protect people from unreasonable searches.

“If you read the case history, the conclusion is that this type of increased involvement by law enforcement would be constitutional and still respectful to those aspects of our state and our federal constitution.”

But Anthony Cotton of the Wisconsin Association of Criminal Defense Attorneys says the big difference between the legal standards of probable cause that police must use now to get a search warrant, and the “reasonable suspicion” standard this bill would put in place that allows police to search a parolee or probationer or his house or car without a warrant.

“Probable cause-More likely than not. 51 percent likely that the person is committing a crime, 49 percent unlikely. Reasonable suspicion has been held by Wisconsin courts to be as low as an anonymous tip. My concern is that the Supreme Court is going to say ‘No that goes too far.’ Laws that allow law enforcement to go into parents homes roommates homes based on anonymous tips for example do go too far.”

Cotton says the ruling the bill is depending on is a narrow one that applies only to very specific facts that allows judges to grant a search warrant for a parolee. But Senator Leibham says the increased monitoring of parolees and probationers the law allows will improve public safety and deter ex-offenders from committing new crimes and returning to prison.