Searches Without Suspicion: Avoiding a Four Million Person Underclass

B.Y.U.­­­ Law Review, Forthcoming

47 Pages Posted: 1 Sep 2022

See all articles by Tonja Jacobi

Tonja Jacobi

Emory University School of Law

Addie Maguire

Orleans Public Defenders

Date Written: August 24, 2022


In Samson v. California, the Supreme Court upheld warrantless, suspicionless searches for parolees. That determination was controversial both because suspicionless searches are, by definition, anathema to the Fourth Amendment, and because they arguably undermine parolees’ rehabilitation. Less attention has been given to the fact that the implications of the case were not limited to parolees. The opinion in Samson included half a sentence of dicta that seemingly swept probationers into its analysis, implicating the rights of millions of additional people in the United States. Not only is analogizing parolees and probationers not logically sound because the two groups differ in important respects, but the Court made this proclamation without any briefing on whether it is constitutional or practically advisable to treat probationers’ rights in the same restrictive way as the Court ultimately determined was appropriate for parolees. Such preemptive behavior by the Court is contrary to well-established norms of jurisprudence, and for good reason: the resulting extemporaneous half-sentence addressing the rights of probationers has created considerable uncertainty as to its precedential power, and the circuits have since applied the decree in disparate ways. We argue that the substantial differences between probationers and parolees make the extension to probationers flawed. Permitting warrantless, suspicionless searches of probationers defeats the rehabilitative purpose of probation, risks creating an underclass of millions of people, and is likely to particularly harm already marginalized communities. Finally, there is no limiting principle to the Court’s logic, and so its extemporaneous inclusion of probationers may be a slippery slope to undermining the rights of many others.

Keywords: Fourth Amendment, Suspicionless Search, Warrant requirement

JEL Classification: K00

Suggested Citation

Jacobi, Tonja and Maguire, Addie, Searches Without Suspicion: Avoiding a Four Million Person Underclass (August 24, 2022). B.Y.U.­­­ Law Review, Forthcoming, Available at SSRN: or

Tonja Jacobi (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

Addie Maguire

Orleans Public Defenders ( email )

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