The Surveillance of System-Adjacent Individuals

<p>Although the Fourth Amendment protects against “unreasonable&nbsp;searches and seizures,” this right is not enjoyed by all people equally.&nbsp;Supreme Court jurisprudence has curtailed the Fourth Amendment privacy&nbsp;rights of individuals under probation or parole supervision.<span> </span>In this line of&nbsp;cases, the Court concluded that the government’s interest in monitoring&nbsp;supervisees, reducing recidivism, and promoting public safety outweighed&nbsp;their reasonable expectation of privacy.&nbsp;However, surveillance mechanisms like probation and parole extend the&nbsp;criminal legal system’s carceral gaze beyond the supervisees and peer into&nbsp;the bedrooms and digital lives of their families, roommates, and&nbsp;communities, or who this Article calls system-adjacent individuals.&nbsp;Probation and parole capture adjacent individuals in the carceral&nbsp;surveillance net subjecting their homes and electronic devices to scrutiny&nbsp;and punitive control despite having been neither charged nor convicted of&nbsp;<span>a crime. Such surveillance infringes upon their constitutional privacy rights&nbsp;</span><span>by allowing the government to conduct warrantless, non-consensual&nbsp;</span><span>searches of adjacent individuals’ residences and devices opening an&nbsp;</span><span>undertheorized loophole in the Fourth Amendment.&nbsp;</span><span>This Article exposes how courts routinely deprive adjacent individuals&nbsp;</span><span>of their Fourth Amendment privacy rights when they reside or share an&nbsp;</span><span>electronic device with a supervisee subject to a probation or parole search&nbsp;</span><span>condition. It proposes reinvigorating adjacent individuals’ privacy&nbsp;</span><span>protections by encouraging courts to incorporate previously overlooked&nbsp;</span><span>factors in the constitutional balancing test. It further argues that, when&nbsp;</span><span>properly applied, courts should routinely suppress evidence recovered&nbsp;</span><span>during a residential or electronic probation or parole search, absent a&nbsp;</span><span>warrant, when introduced against an adjacent individual in a criminal&nbsp;</span><span>proceeding. Finally, in response to the privacy concerns arising from the&nbsp;</span><span>advancement of surveillance technologies, it offers legislative and&nbsp;</span><span>structural reforms that constrain probation and parole officers’ search&nbsp;</span><span>authority.</span></p>