Answer: maybe, and it really depends.
Let us explain.
Can Probation Officers Read Your Text Messages? (Explained)
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Authority of the Probation Officer
The probation officer cannot do whatever he wants while supervising a defendant.
Everyone knows the rules, as they are set forth in the terms of the probation ordered by the court, and the laws of the jurisdiction (state/federal).
And while some of the constitutional rights are no longer in play, the defendant is still a citizen of the state and country, and still has rights.
The defendant has to follow the terms of the probation, which include:
- obeying all laws
- staying within the state
- getting a job
- avoiding specific people or places
- attending recommended treatment or counseling
- submitting to a polygraph
- submitting to substance abuse testing
- consenting to a search of the defendant’s person, residence, or vehicle
Note that the defendant has to give “consent” to the search.
The probation officer cannot come into a home without consent, or without a warrant.
If the defendant fails to consent, then he is in violation of his probation.
What About The Phone?
In recent years, there has been a lot of fighting and changing minds about whether a phone can be searched during probation or not.
The primary ways that a probation officer can do anything with anything belonging to the defendant is with the defendant’s consent, or with a warrant.
There are even cases that argue for and against whether the probation officer even has the right to ask for the defendant’s consent to look at a phone, and cases where appellate courts have overturned orders from the lower court that the defendant consent to searches of his phone by probation officers.
In most states at this time, the probation officer cannot simply take a defendant’s phone and review the information on it.
There is usually no authority.
However, some probation orders require that defendant’s provide consent to the probation officer as a condition of the probation.
Other states are silent on the matter.
Reviewing The Defendant’s Text Messages
Aside from reviewing the text messages on a defendant’s phone, there are a few other ways that a probation officer could get access to the defendant’s text messages.
First, he could go to the other individual in the conversation and obtain the messages, simply by asking.
There’s generally nothing a defendant could do to stop the recipient of his messages from giving them to the probation officer, aside from seeking an injunction due to some serious privacy concerns or pursuing other claims the defendant might have on the civil side for privacy, libel, etc (subject for another day).
Depending on who the messages are with, the messages themselves might be subject to exclusion from court due to privilege (husband-wife, attorney-client, physician-patient).
But the private individual would be the person subject to the defendant’s wrath and lawsuits, not the probation officer.
Second, the probation officer could seek a search warrant for the phone to look at the text messages.
He would have to convince a judge and meet the legal burden of evidence in order to obtain the warrant.
Third, the probation officer could subpoena the records of the messages preserved by the cellular phone company.
There might not be much (cellular carriers don’t preserve that much), but it could still yield something.
Communicating In Private
While the defendant probationer might have some really good arguments and authority on his side to keep the probation officer from accessing his text messages, it is generally recommended that the defendant handle himself in such a way during probation that it wouldn’t matter even if the probation officer did look at his messages.
Another option is to utilize one of many text messaging apps where the messages are not preserved, assuming that this does not otherwise violate probation terms.
Another option is to find other secure ways to communicate.
Need Help Protecting Information?
Start with looking at the terms of probation and the court’s orders.
After all, there are many lawful and justified reasons why a defendant might want to protect his text messages.
This could be a requirement of his employment, contractual reasons, NDAs he has signed (or wants to sign), or to protect his business.
If the privacy of information on/in a defendant’s text messages are important, he should confer with his defense attorney during the sentencing phase to argue against terms that would allow the probation officer free access to them.
He can also confer with an attorney post-judgment to modify probation terms.
Want to learn more about your criminal justice system?
Browse our free legal library guides for more information.
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