LOCKPORT – Probation officers are overstepping their authority in searching the homes of people who have been placed under their supervision, according to defense attorney James J. Faso Jr.
Faso raised the issue Thursday before Niagara County Judge Sara Sheldon Farkas, during sentencing for Joseph N. Smith, a Niagara Falls man who was allowed to plead guilty to a misdemeanor count of second-degree aggravated harassment after being indicted on felony charges in connection with a pair of domestic incidents last year.
Smith, 38, of 18th Street, who had no prior criminal record, was placed on probation for three years, but Faso asked Farkas not to include the usual probation rule that allows probation officers to search defendants’ property without obtaining a search warrant.
Niagara County Probation Director John Cicchetti disagreed, saying that his staff complies with the state’s legal standard of “reasonableness” in how they enforce probation rules.
The standard language for searches by probation officer is read aloud hundreds of times a year by judges. It requires the person on probation to consent to “warrantless searches of your person, home, vehicle and possessions for illegal drugs and contraband, and permit the seizure of anything found.”
“This is not a new policy for us,” Cicchetti said. “There are statutes and case law that individuals on probation have a diminished expectation of privacy.”
Faso told Judge Farkas that in his opinion, the warrantless searches “have become full-blown raids.” He said probation officers bring police officers along, and it’s not unheard-of for them to “tear apart the house.”
“If they want to raid the house, let them get a search warrant like anyone else,” Faso said.
Cicchetti said probation officers have reason for complete searches.
“We have found that individuals on probation are very creative and good at finding places to store contraband,” he said.
He cited probationers’ “ingenious methods,” such as the recent discovery of drugs kept in an aerosol can of athlete’s foot spray. Cicchetti said the bottom of the can had been cut open and made to screw back in, after the drugs had been inserted inside. Faso asserted that probation officers are “only supposed to look for contraband in plain view.”
Farkas, without comment, imposed the warrantless search requirement on Smith, but Faso said he’s going to object in every case. “I’m going to oppose any and all warrantless searches,” Faso said. He told Farkas that he intends to bring motions objecting to officers’ conduct in the case of two of his clients, whom he declined to identify.