The “Stalking Horse” Theory for Parole and Probation Fourth Waiver Searches. 
By Robert Phillips, Deputy District Attorney (Ret). 

     Have you ever heard of the “stalking horse” theory, as it relates to parole and probation Fourth waiver searches?  (A “Fourth wavier search,” of course, refers to warrantless searches of a parolee or probationer’s person and property [e.g., house, vehicle, containers, etc.] based upon the parolee or probationer’s prior express waiver of his Fourth Amendment search & seizure rights as a condition of being released from custody.)  The “stalking horse” theory is based upon the idea that a Fourth Waiver search is a tool meant for parole or probation officers only, intended to be used as a means for keeping a check on the activities of their parolees and probations, respectively. 

     At one time it was believed that for a federal or state law enforcement officer to conduct a warrantless Fourth waiver search, that officer needed the permission of the subject’s parole or probation officer.  In conjunction with this theory, the courts would not let law enforcement officers get around the search warrant requirement by simply using a parole or probation officer as a “stalking horse,” i.e., utilizing the parole or probation officer’s warrantless search authority to avoid the necessity of getting a warrant. 

     California has long since eliminated the need for local law enforcement to seek the permission of a probation officer before conducting a probation search.  (See People v. Mason (1971) 5 Cal.3rd 759.)  The same theory was eventually extended to state parolees.  (See People v. Reyes (1998) 19 Cal.4th 743.)

     These cases, by inference, have eliminated the validity of any staking horse arguments made by the defense in state cases, at least in California.  Local law enforcement may simply conduct parole and probation searches without a parole or probation officer’s permission.  We now do it all the time.  However, the stalking horse theory continues to be used in federal court, as it has been done historically.  (E.g., see (United States v. Watts (9th Cir. 1995) 67 F.3rd 790, 793-795, for a thorough discussion of the stalking horse theory.) Now, however, the Seventh Circuit Court of Appeal, in United States v. Price (7th Cir. Mar. 9, 2022) 28 F.4th 739, has held that maybe the stalking horse theory need not be of concern anymore.  In Price, defendant Terraun Price, while on parole, attempted to buy ammunition and a magazine for his .40 caliber pistol he, as a convicted felon, illegally possessed.  Defendant claimed in this case that a state of Indiana Department of Correction special agent violated the Fourth Amendment by using a federal parole officer as a pawn in order to conduct a warrantless search of defendant’s home and vehicle. The special agent, it seems, called defendant’s parole officer to the scene of the defendant’s arrest where he attempted to buy the ammunition and magazine, and prompted the parole agent to conduct a warrantless parole search.

The Seventh Circuit Court in Price held that the evidence seized during the resulting warrantless Fourth waiver search was done so lawfully, rejecting defendant’s argument that the evidence should have been suppressed under the “stalking horse” theory.  The Court’s reasoning was as follows:  Way back in 1987, the U.S. Supreme Court, in Griffin v. Wisconsin (1987) 483 U.S. 868, upheld the warrantless search of a probationer’s residence after probation officers established reasonable grounds to believe the probationer was unlawfully in possession of firearms. The Supreme Court in Griffin specifically held that the effective supervision of probationers requires an exception to the normal probable cause and warrant requirements for the simple reason that “special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” (Italics added; pg. 873.) Under Griffin, in other words, the warrantless search of a probationer, on something less than the normal probable causes, is justified by the “special need” to properly supervise the state’s probationers. 

     Born out of this theory, the rule was developed that police officers using a probation or parole officer as a “stalking horse;” i.e., having them assist by using their authority to conduct a warrantless search and thus bypassing the search warrant requirement, is a Fourth Amendment violation.  However, subsequently, in United States v. Knights 534 U.S. 112, decided in 2001, and Samson v. California 547 U.S. 843, decided in 2006, the Supreme Court held that warrantless probation and parole searches need not be based on “special needs,” but can also be evaluated under the Fourth Amendment’s “reasonableness” inquiry, requiring a consideration of the “totality of the circumstances” instead of a “special need.” The issue, therefore, becomes one of “reasonableness” instead of the existence or a parole or probation officer’s “special need” to supervise a parolee or probationer, thus rendering the stalking horse theory a non-issue.  Significantly, the Seventh Circuit noted that defendant Terraun Price was unable to find a single federal appellate court decision in which a search was invalidated under the stalking horse theory since the Supreme Court’s rulings in Knights and Samson. In addition, the Price Court found that every other federal circuit court that has examined the stalking horse theory since Knights and Samson has either rejected it or limited its applicability to circumstances where the government relied solely on the special needs of a state’s probationary or parole system as the basis for a warrantless search. In Price, therefore, because the government did not rely on the “special needs” of Indiana’s parole system to justify the searches of defendant’s property and residence, it was held to be irrelevant whether the parole officer initiated his search of defendant’s vehicle and residence of his own volition or at the behest of the Indiana state special agent. “Stalking horse,” therefore, did not apply.