Drug Testing of Probationers as a Warrantless Search

The principal probation reform bill (S.L. 2009-372 [S 920], summarized here) went into effect on December 1. Since then, I’ve received a number of questions about it, many of them from probation officers. One of their main concerns relates to the way some of the amendments to the law are reflected in the new AOC forms for suspended sentences. A recurring question involves drug testing. The new law requires probationers, as a default regular condition of supervised probation, to submit to warrantless searches by probation officers – so long as the searches are “for purposes directly related to the probation supervision” – and in certain circumstances, by law enforcement officers. It also makes it a regular condition that probationers may not use, possess, or control illegal drugs or associate with those who do. Under prior law, a nearly identical version of the probation officer search condition and an identical version of the “use, possess, or control” condition were special conditions of probation under G.S. 15A-1343(b1)(7) and -1343(b1)(8), that the judge could add by checking boxes #13 and #14 on old form AOC-CR-604, page 1, side two. But another related special condition was also available on the old form: #15, “Supply a breath, urine and/or blood specimen for analysis of the possible presence of a prohibited drug or alcohol, when instructed by the defendant’s probation officer.” It’s not on the new form, which has led some officers to ask me whether drug testing can still be added as a special condition. Unlike [...]