Chapter 25: Probation and Parole Searches
Chapter Structure
(1) Types of Searches
(2) Proof of Violation Not Required
(3) Requirements For Search
(4) Scope of the Search
(5) Searching Homes: Special Requirements
(6) Searching Vehicles: Special Requirements
(7) Intensity of Search
Types of Searches
Probation searches: A sentencing judge who grant probations to a defendant may require that he submit to warrantless searches of his home, vehicle, and property under his control.[1]
Purpose of search conditions: Search conditions “aid in deterring further offenses by the probationer and in monitoring compliance with the terms of probation.”[2]
No automatic search conditions: Probation search conditions are determined on an individual basis by the sentencing judge.[3] So, they vary.
Legal basis is consent: California and federal law differ as to the legal basis for probation searches. But it does not seem to matter. See this endnote.[4]
Parole searches: In contrast to probationers, parolees do not consent to search conditions. Instead, these conditions are imposed on them automatically by statute, and all parolees are subject to the same search conditions.[5] See “Scope of the Search” (Parole searches), below.
Postrelease Community Supervision (PRCS): Defendants who have been convicted of certain lower-level felonies may be permitted serve their prison sentences in county jail.[6] Then, upon release, they will be supervised for up to three years by a county probation officer. Still, his status is “akin to a state prison commitment; it is not a grant of probation or a conditional sentence.”[7] (Note: Because PRCS and parole search conditions are virtually identical, all further references to parole will include PRCS.)
Proof of Violation Not Required
: If the requirements for conducting a probation or parole search are satisfied, it is immaterial that officers lacked proof that the probationer or parolee had violated the law or the terms of release.[8] A sentencing judge may, however, expressly require such proof.[9] If so, it may create problems for officers in the field because police databases might not list unusual requirements.
Requirements For Search
: There are two requirements.
(1) Knowledge of parole/probation status
Parole searches: Officers must have known that the suspect was on parole or PRCS.[10]
Probation searches: Officers must have known that the suspect (1) was currently on probation, and (2) was subject to a warrantless search condition that permitted the search they were about to conduct.[11]
When search conditions terminate: Search conditions and other terms of probation and parole do not terminate until (1) the suspect’s probation or parole has ended, or (2) his probation or parole had been formally revoked. Thus, the search terms do not automatically terminate when the probationer/parolee has been arrested, after a court summarily revoked his probation, or after a parole hold has been filed.[12]
(2) Legitimate law enforcement purpose: Even if officers had knowledge of the search condition, a search will not be upheld unless it was conducted for a legitimate law enforcement or rehabilitative purpose.[13] This requirement is frequently expressed in the negative: the search must not have been “arbitrary, capricious, or harassing.[14]
Routine supervisory searches: A search is not arbitrary, capricious, or harassing if its purpose was to make sure that the probationer or parolee was not carrying drugs, weapons, or the fruits or instrumentalities of a crime.[15]
Investigative searches: A search is not unlawful merely because officers suspected that the probationer/parolee had committed a new crime or had otherwise violated the terms of probation, and they wanted to determine if he possessed incriminating evidence.[16]
Pretext searches: A probation or parole search is pretextual if the officers’ sole objective was to obtain evidence against someone other than the probationer or parolee; e.g., his roommate, spouse. Pretext searches are, by definition, illegal because they arguably have no rehabilitative or law enforcement motivation as to the parolee or probationer. But see this endnote.[17]
Frequent, prolonged, or late night searches: A probation or parole search might be deemed harassing if it occurred after several unproductive searches and if there was no reason to believe that a new one would be fruitful; or if it was unnecessarily conducted late at night or early morning hours, and there was insufficient reason for such an intrusive search.[18]
Scope of the Search
: The term “scope of the search” refers to what people, places and things officers are authorized to search.[19]
Probation searches: The permissible scope of probation searches will vary because, as noted earlier, they are established by the sentencing judge. As a practical matter, however, most probation orders will directly—or by reasonable inference[20]—permit searches of the probationer/parolee, his home, vehicle, and property under his control.
“Four way”: The most common search condition is one that expressly authorizes a search of (1) the probationer, (2) his residence, (3) vehicles under his control, and (4) other property under his control.[21]
“Your person and property”: A probation order that authorizes a search of the probationer’s “person and property” is identical to a four-way because the term “property” includes the probationer’s home, vehicle, and property under his control.[22]
“Property under your control”: A probation search condition that authorizes a search of only property under the control of the probationer will permit a search of the probationer’s home, vehicle, and property under his control—but not his person.[23]
Parole searches: The permissible scope of parole searches in California is set by statute, as follows: You and your residence and any property under your control may be searched without a warrant at any time by any agent of the Department of Corrections or any law enforcement officer.[24] These, too, are essentially the same as four-way searches.
PRCS searches: The scope of PRCS and parole searches is essentially the same except that parolees must submit to searches of “any property under your control,” while PRCS releasees must submit to searches of their person, residence, and possessions.[25] It appears, however, that the difference is insignificant. For example, in one case, a court ruled that a PRCS search condition authorized a warrantless blood draw.[26]
Federal parole: The scope of federal parole searches is set by the sentencing judge; i.e., it will vary.[27]
Searching Homes: Special Requirements
: Even if the terms of probation or parole authorize a search of the suspect’s home, there are additional restrictions as follows:
Probationer/parolee lives there
Required legal of proof
California and most circuits: Reasonable suspicion, not probable cause, is required.[28] Also see Chapter 18 Entry to Arrest (How to Comply, Arrestee’s home, Reason to believe).
Ninth Circuit: Probable cause is required.[29]
What constitutes “living” in a residence? The courts generally rule that probationers/parolees “live” in a home if they have been spending the night there regularly—even if not every night.[30] Conversely, the fact that the person stays in the home “occasionally” is insufficient.[31] If there is reason to believe that a probationer/parolee lives in a certain residence, it is immaterial that they also reasonably believed that he is lives in another house.[32]
Motels: The Ninth Circuit seems conflicted over whether a parolee who is a registered guest at a motel “lives” there.[33]
How to prove where the probationer/parolee is living: See Chapter 18 Entry to Arrest (How to Comply, Arrestee’s home? Reason to believe).
Knock-notice: Officers must enter the premises in a “reasonable” manner. Accordingly, they must ordinarily comply with the knock-notice requirements unless compliance is excused for good cause.[34] Also see Chapter 21 Forcible Entry (Knock-Notice).
Protective sweeps: Officers who are conducting a probation or parole search may begin by conducting a protective sweep of the premises.[35] Also see Chapter 26 Protective Sweeps.
Suspect’s presence not required: Officers may search even if the probationer/parolee was absent.[36]
Where officers may search
Common areas: All common areas; e.g., living room, kitchen, garage.[37]
Rooms under joint or exclusive control: Rooms and areas to which the probationer/parolee had sole or joint access or control.[38] Conversely, officers may not search a room that was under the exclusive control of a resident who was not subject to a search condition.[39]
Searching the curtilage: A search condition that authorizes a search of a home impliedly authorizes a search of the curtilage; e.g., a garden, yard.[40]
Searching personal property: Officers may search containers and personal property in a searchable room or area if they had reasonable suspicion that the probationer/parolee owned or accessed it solely or jointly with another occupant;[41] i.e., probable cause is not required.[42]
Presumption of access or control: Unless there is reason to believe otherwise, officers may presume that personal property was under the sole or joint control of a probationer/parolee if it was in a room to which he had access or control. See this endnote for examples.[43]
Circumstantial evidence of access or control: Access or control of personal property may be based on circumstantial evidence, such as the following; e.g., the probationer/parolee attempted to hide or grab it,[44] the probationer/parolee had a key to it,[45] the personal property contained fruits or instrumentalities of a crime; e.g., there was reason to believe the premises were being used for drug sales,[46] the probationer/parolee had an opportunity to stow evidence in the personal property.[47]
The need to ask questions: If there is a legitimate question as to whether the probationer/parolee controlled an item, officers must question the occupants or take other steps to resolve the matter.[48] Officers are not, however, required to accept a probationer/parolee’s denial that he owns or controls it.[49]
Arresting occupants: Officers who have entered a residence to conduct a probation or parole search may arrest anyone on the premises if they have or develop probable cause to do so; i.e., neither a conventional nor a Ramey warrant is required.[50]
Searching Vehicles: Special Requirements
Driver on probation or parole: If the driver was on parole or searchable probation, officers may search the following:
Property owned or controlled: Property they reasonably believed was owned or controlled by the probationer/parolee.[51]
Property belonging to passenger: Officers may search property belonging to a passenger if they reasonably believed that the probationer or parolee could have stowed his personal belongings in the property when he became aware of police interest in the vehicle.[52]
Possible exception: Purses: In the absence of direct or circumstantial evidence that a male probationer/parolee attempted to stow property in a woman’s purse, a court might find that it was unreasonable to search the purse if it was closed and “closely monitored” by a female passenger.[53]
Passenger on probation or parole
Car stop: Officers may stop a car for the purpose of conducting a parole or probation search even though the person on parole or probation was only a passenger.[54]
Car search
Areas that may be searched: Officers may search “those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity.”[55] Officers are not required to “articulate specific facts indicating that the parolee has actually placed property or contraband in a particular location in the passenger compartment before searching that area.”[56]
Property that may be searched: Officers may search property they reasonably believed was owned or controlled by the probationer/parolee.[57]
Intensity of Searches
Reasonably “thorough” search: Searches of homes, vehicles and other places, and containers, may be reasonably thorough because, as one court put it, a cursory search “is of little value.”[58]
No damage or destruction: The search must not be destructive.[59] But if there is probable cause to believe that evidence is hidden in a place or thing that must be damaged to seize it, there is authority for doing so.[60] Note: If it is likely that a destructive search will be necessary, consider seeking a warrant.
Length of search: The permissible length of the search will necessarily depend on the number and nature of the places and things that will be searched, the amount and nature of the evidence that the officers are seeking, and any problems that caused in a delay.[61]
Searches by K9s: Officers may use a trained dog (e.g., drug- or explosives-seeking) to help with the search. This is because a dog’s sniffing does not materially increase the intensity of the search.[62]
Detaining visitors: In the absence of reasonable suspicion, officers may detain visitors on the premises for only the amount of time that was reasonably necessary to carry out their duties. In making this determination, the courts will consider whether the decision to search was based on information indicating the premises were being used for criminal activity or whether it was merely a routine compliance search.[63] See Chapter 36 Executing Search Warrants (Securing Premises After Entering).
Notes
[1] USSC: US v. Knights (2001)
534 US 112, 116 [search clause is a “common California probation
condition”]; Griffin v. Wisconsin (1987) 483 US 868, 874
[“Probation, like incarceration, is a form of criminal sanction
imposed by a court upon an offender after verdict, finding, or
plea of guilty.”]. CAL: In re Anthony S. (1992) 4
CA4 1000, 1006 [“With the benefit of probation comes the burden of
a consent search term.”]. ALSO SEE: Pen. Code§ 1203(a)
[“[probation] means the suspension of the imposition or execution
of a sentence and the order of conditional and revocable release
in the community under the supervisions of a probation officer”].
[2] QUOTE FROM: P v.
Robles (2000) 23 C4 789, 795. CAL: P
v. Bravo (1987) 43 C3 600, 611 [the “dual purpose”
of search conditions is “to deter further offenses by the
probationer and to ascertain whether he is complying with the
terms of his probation”]; P v. Reyes (1998) 19 C4 743, 752
[“The threat of a suspicionless search is fully consistent with
the deterrent purposes of the search condition.”];
In re Anthony S. (1992) 4 CA4 1000, 1002, fn.1 [“With
knowledge he may be subject to a search by law enforcement
officers at any time, [the probationer] will be less inclined to
have narcotics or dangerous drugs in his possession”];
P v. Constancio (1974) 42 CA3 533, 540 [the theory is that
search conditions tend to “minimize the risk to the public safety
inherent in the conditional release of a convicted offender”].
[3] CAL: P v. Douglas (2015) 240
CA4 855, 863 [“A search condition is not mandated by statute for
every probationer”].
[4] NOTE: The California Supreme Court
has ruled that the legal basis of probation searches is consent.
See P v. Schmitz (2012) 55 C4 909, 920 [“a probationer who
is subject to a search clause has explicitly consented to that
condition”]; P v. Bravo (1987) 43 C3 600, 608 [“A
probationer, unlike a parolee, consents to the waiver of his
Fourth Amendment rights in exchange for the opportunity to avoid
service of a state prison term.”]; P v. Robles (2000) 23 C4
789, 795 [“a person may validly consent in advance to warrantless
searches and seizures in exchange for the opportunity to avoid
serving a state prison term”]; P v. Ramos (2004) 34 C4 494,
506 [“by accepting probation, a probationer consents to the waiver
of Fourth Amendment rights in order to avoid incarceration”]. In
contrast, the Ninth Circuit has ruled that the legal basis is
basic Fourth Amendment requirement of “reasonableness”; i.e., a
probation search is reasonable if the need for the search
outweighed its intrusiveness. See
Smith v. City of Santa Clara (9C 2017) 876 F3 987, 992 in
which the court applied “the general Fourth Amendment approach” in
which the legality of the search is determined by assessing “the
degree to which it intrudes upon an individual’s privacy” against
“the degree to which it is needed for the promotion of legitimate
government interests.” The U.S. Supreme Court has declined to
resolve the issue, although it employed the “reasonableness”
approach when it had an opportunity to choose. See
US v. Knights (2001) 534 U.S. 112, 118. This may be nothing
more than legal semantics because the Ninth Circuit in
Smith, in applying the balancing test, ruled that the need
for probation searches was sufficiently strong to warrant a
forcible entry and search of the probationer’s residence. More
important, the court in Smith also ruled that, because
federal probation searches are not based on consent, they are not
subject to the restriction on probation searches that exists
pursuant to Georgia v. Randolph (2006) 547 US 103. Even
though California still views probation searches as consensual, we
do not think the California courts will rule that a probationer’s
objection to the search has any significance.
[5] CAL: P v. Schmitz (2012) 55
C4 909,916 [“every inmate eligible for release on parole is
subject to search or seizure by a parole officer or other peace
officer”]. ALSO SEE: US v. Caya (7C 2020) 956 F3 498
[good review of Supreme Court decisions on parole searches].
[6] CAL: Pen. Code§§ 3450
et seq.
[7] CAL: P v. Fandinola (2013)
221 CA4 1415, 1422. 9th CIR: US v. Cervantes (9C
2017) 859 F3 1175, 1181 [California courts concur that “the
State’s interest in supervising offenders placed on mandatory
supervision is comparable to its interest in supervising
parolees”]. ALSO SEE: US v. Caya (7C 2020) 956 F3
498, 503 [court rejects the argument that “extended supervision is
more like probation than parole”].
[8] CAL: P v. Reyes (1998) 19 C4
743, 753 [“the purpose of the search condition is to deter the
commission of crimes and to protect the public, and the
effectiveness of the deterrent is enhanced by the potential for
random searches”]; P v. Bravo (1987) 43 C3 600, 611;
P v. Douglas (2015) 240 CA4 855, 861 [probation searches
“may be conducted without reasonable suspicion of criminal
behavior or a violation of probation”]; P v. Medina (2008)
158 CA4 1571, 1576.
[9] CAL: P v. Bravo (1987)
43 C3 600, 607, fn.6 [“Absent such express language, a
reasonable-cause requirement will not be implied.”].
[10] CAL: P v. Schmitz (2012) 55
C4 909, 916 [the “parolee’s status [must be] known to the
officer”]. 9th CIR: US v. Job (9C 2017) 851 F3 889,
896 [“The district court did not determine whether the officers
were aware of the search waiver before conducting the search”].
NOTE: For reasons that are unclear, the Ninth Circuit ruled
that parole searches are permitted only if officers were aware
that the suspect’s antecedent crime was a violent felony. See
US v. Cervantes (9C 2017) 859 F3 1175, 1180 [“with respect
to probationers … we have expressly limited our holding to
offenders who are on probation for a violent felony”];
US v. Lara (9C 2016) 815 F3 605, 609-10.
[11] CAL: P v. Robles (2000) 23
C4 789, 797 [without knowledge that a suspect was searchable, a
warrantless search “cannot be reasonably related to a [conditional
release] purpose” and, furthermore, searches conducted without
such knowledge are “wholly arbitrary” in the sense that officers
search “without justification, and without any perceived limits to
their authority”]; P v. Rosas (2020) 50 CA5 17, 24 [“It is
well-settled that the probation exception is inapplicable if
police are unaware of the probation search condition at the time
of a warrantless search.”]; P v. Sanders (2003) 31 C4 318,
333 [“But if an officer is unaware that a suspect is on probation
and subject to a search condition, the search is not justified”];
P v. Romeo (2015) 240 CA4 931, 954 [there was no “showing
that the searching officers knew that the target of their search,
the residence itself, fell within the scope of a probation search
clause”].
[12] CAL: P v. Hunter (2006) 140
CA4 1147, 1152 [“Hunter was still a parolee until his parole was
formally revoked.”]; P v. Barkins (1978) 81 CA3 30, 33
[“Actual revocation of probation cannot occur until the
probationer has been afforded the due process,” and until then
“the terms of probation remain in effect.”];
P v. Burgener (1986) 41 C3 505, 536 [“Nor is it relevant
that the parolee may already be under arrest when the search is
conducted.”]; P v. Stanley (1995) 10 C4 764, 790 [“Neither
police participation nor the fact the parolee is already under
arrest invalidates an otherwise proper parole supervision
purpose.”]. 9th CIR: Latta v. Fitzharris (9C 1975)
521 F2 246, 252 [“A] parole officer’s interest in inspecting [the
parolee’s] place of residence [does] not terminate upon his
arrest; if anything, it intensified.”]; US v. Dally (9C
1979) 606 F2 861, 863 [“Holiday’s arrest for a parole violation
did not end the need for a parole search”].
[13] CAL: P v.
Robles (2000) 23 C4 789, 797 [“searches that are undertaken
pursuant to a probationer’s advance consent must be reasonably
related to the purposes of probation”]; P v.
Bravo (1987) 43 C3 600, 611 [the search may be conducted
for “legitimate law enforcement purposes”]; P v.
Medina (2007) 158 CA4 1571, 1577 [search must be related to
a “rehabilitative, reformative or legitimate law enforcement
purposes”].
[14] USSC:
Samson v. California (2006) 547 US 843, 856 [Court noted
that California’s prohibition against arbitrary, capricious, or
harassing probation and parole searches eliminates an officer’s
“unbridled discretion to conduct searches”]. CAL:
P v. Bravo (1987) 43 C3 600, 610 [“A waiver of Fourth
Amendment rights as a condition of probation does not permit
searches undertaken for harassment or searches for arbitrary or
capricious reasons.”]; P v. Schmitz (2012) 55 C4 909, 916
[the search must not be “arbitrary, capricious, or harassing”];
P v. Medina (2007) 158 CA4 1571, 1577 [“A search is
arbitrary and capricious when the motivation for it is unrelated
to rehabilitative, reformative or legitimate law enforcement
purposes, or when it is motivated by personal animosity toward the
probationer.”]; P v. Zichwic (2001) 94 CA4 944, 951 [“A
search is arbitrary when the motivation for the search is
unrelated to rehabilitative, reformative or legitimate law
enforcement purposes”]; P v. Cervantes (2002) 103 CA4 1404,
1408 [“It is only when the motivation for the search is wholly
arbitrary, when it is based merely on a whim or caprice or when
there is no reasonable claim of a legitimate law enforcement
purpose, e.g., an officer decides on a whim to stop the next red
car he or she sees, that a search based on a probation search
condition is unlawful.”]. NOTE: In the context of parole
and probation searches, the courts do not apply the common
definitions to the terms “arbitrary” and “capricious.” For
example, officers will sometimes decide to conduct parole searches
because they happen to see the parolee walking or driving down the
street, and they had nothing else to do at the time. While such a
search might qualify as “arbitrary” (i.e., depending completely on
individual discretion) or “capricious” (i.e., sudden, impulsive,
random), the courts permit—and even encourage—these types of
searches. See P v. Robles (2000) 23 C4 789, 799 [“routine
monitoring” is permissible]; P v. Bravo (1987) 43 C3 600,
608 [court rejects the idea that a search without reasonable
suspicion is arbitrary, capricious, or harassing]. On the other
hand, the courts apply the common definition to the term
“harassment.” Thus, a search would not have been motivated by a
law enforcement or rehabilitative interest if the officers’
objective was to annoy the parolee. Such a motivation might be
established through proof that the officers disliked the parolee,
or that they conducted the search after conducting several
unproductive searches in the recent past with no reason to believe
the search in question would be fruitful, or that the search was
conducted in an unnecessarily oppressive or intrusive manner.
[15] USSC:
Griffin v. Wisconsin (1987) 483 US 868, 875, 878, 880;
US v. Knights (2001) 534 US 112, 117. CAL:
P v. Robles (2000) 23 C4 789, 799 [“routine monitoring” is
permissible]; P v. Lewis (1999) 74 CA4 662, 671.
[16] USSC: US v. Knights (2001)
534 US 112, 119 [“It was reasonable to conclude that the search
condition would further the two primary goals of
probation-rehabilitation and protecting society from future
criminal violations.”]. CAL: P v.
Reyes (1998) 19 C4 743, 752 [“The state has a duty not only
to assess the efficacy of its rehabilitative efforts but to
protect the public”]; P v. Woods (1999) 21 C4 668,
675, 678 [court noted “dual purpose of search condition to deter
further offenses by the probationer and to ascertain compliance
with the terms of probation”]; P v. Stanley (1995) 10 C4
764, 790 [“Clearly, investigation of defendant’s involvement in a
murder would have a parole supervision purpose.”];
P v. Robles (2000) 23 C4 789, 799 [search is “reasonably
and objectively related to the purposes of probation” when the
“facts known to the police indicate a possible probation
violation”]; P v. Bravo (1987) 43 C3 600, 611 [the search
may be conducted for “legitimate law enforcement purposes”];
In re Anthony S. (1992) 4 CA4 1000, 1004 [“Here the
evidence shows that the officers were motivated by a law
enforcement purpose; i.e., to look for stolen property, alcohol,
weapons, and gang paraphernalia at the homes of the ‘Ventura
Avenue Gangsters’ members. This is a legitimate law enforcement
purpose.”]. ALSO SEE: US v. Reyes (2C
2002) 283 F3 446, 463 [“the objectives and duties of probation
officers and law enforcement officers are unavoidably parallel and
are frequently intertwined”]. NOTE: In the past, the Ninth
Circuit ruled that searches conducted for the purpose of obtaining
evidence are unlawful. These rulings were rejected by the Supreme
Court in US v. Knights (2001) 534 US 112. See
US v. Ickes (6C 2019) 922 F3 708, 712 [it is immaterial
that the purpose of the search was to obtain incriminating
evidence; i.e., court rejects “stalking horse” cases];
US v. Price (7C 2022) 28 F4 739, 751 [in rejecting
“stalking horse” argument, court said, “When the rationale for a
search “rests on ordinary Fourth Amendment analysis that considers
all the circumstances of a search, there is no basis for examining
official purpose.”].
[17] NOTE: The California Supreme Court
has noted that officers who are investigating the roommate may
also have an interest in determining whether the probationer or
parolee is an accomplice. See P v. Woods (1999) 21 C4 668,
679 [drug possession by the probationer’s roommate demonstrated “a
possible probation violation that justifies a search of the
probationer’s house pursuant to a search condition”];
P v. Robles (2000) 23 C4 789, 797 [“[In Woods we]
concluded there that, regardless of the searching officer’s
ulterior motives, the circumstances presented ample justification
for a search pursuant to the probation clause at issue because the
facts known to the officer showed a possible probation
violation.”]. ALSO SEE: Maryland v. Pringle (2003)
540 US 366, 373 [drug dealing is “an enterprise to which a dealer
would be unlikely to admit an innocent person with the potential
to furnish evidence against him”].
[18] CAL: P v. Reyes (1998) 19
C4 743, 753 [a search could become “constitutionally unreasonable
if made too often, or at an unreasonable hour, or if unreasonably
prolonged.”]; P v. Medina (2007) 158 CA4 1571, 157 [search
could be unconstitutional if it was “unreasonably prolonged”];
P v. Zichwic (2001) 94 CA4 944, 951 [a search “may be
unreasonable if made too often, or at an unreasonable hour, or if
unreasonably prolonged”]. ALSO SEE:
P v. Clower (2009) 170 CA4 488, 494 [“six searches over a
four- to five-month period, without more, do not necessarily
indicate harassment”]; P v. Sardinas (2009) 170 CA4 488,
494 [ a second search one day after an unproductive search was not
harassing because the circumstances surrounding the second search
indicated the defendant might still be selling drugs].
[19] CAL: P v. Woods (1999) 21
C4 668, 682 [“a search pursuant to a probation search clause may
not exceed the scope of the particular clause relied upon”];
[20] CAL: P v. Bravo (1987) 43
C3 600, 607 [“The search condition must be interpreted on the
basis of what a reasonable person would understand from the
language of the condition itself”]; P v. Rios (2011) 193
CA4 584, 596-97 [although there was a failure to establish the
precise terms of probation, they could be inferred].
[21] CAL: P v. Cervantes (2017)
11 CA5 860, 869, fn. 8 [2017 WL 2180484] [“A standard probation
search condition… requires the probationer to submit to
warrantless, suspicionless, searches of his person, vehicle,
residence, property, and personal effects.”].
[22] CAL: P v. Bravo
(1987) 43 C3 600, 602, fn.1, 607 [Probation order stated: “Submit
his person and property to search or seizure at any time of the
day or night by any law enforcement officer with or without a
warrant.” Court: “We think the wording of appellant’s probation
search condition authorized [a search of defendant’s apartment”].
[23] CAL: P v.
Spratt (1980) 104 CA3 562, 566-67 [“property under my
control” authorized a search of probationer’s residence].
[24] CAL: 15 CCR§ 2511(b)(4).
ALSO SEE: Pen. Code§ 3067(b)(3);
P v. Schmitz (2012) 55 C4 909, 916 [“every inmate eligible
for release on parole is subject to search or seizure by a parole
officer or other peace officer”]; P v. Douglas (2015) 240
CA4 855, 862 [“Because a search condition is statutorily mandated
for all parolees, the officer need only know that the individual
is on parole.”]; P v. Middleton (2005) 131 CA4 732, 739 [“A
search condition for every parolee is now expressly required by
statute”].
[25] CAL: Pen. Code§ 3453(f) [“The
person, and their residence and possessions, shall be subject to
search at any time of the day or night, with or without a warrant,
by an agent of the supervising county agency or by a peace
officer.”]
[26] CAL: P v. Jones (2014) 231
CA4 1257, 1269 [“Jones’s mandatory PRCS search and seizure
condition authorized the blood draw without the necessity of a
warrant.”].
[27] 9th CIR:
US v. Cervantes (9C 2017) 859 F3 1175, 1180-81 [the
offender “is simply serving the tail end of that [prison] sentence
at liberty, subject to whatever conditions of supervision the
court deems necessary”].
[28] CAL: P v.
Downey (2011) 198 CA4 652, 661 [“California case law is
clear that the appropriate test is whether the facts known to the
officers, taken as a whole, gave them objectively reasonable
grounds to believe that [the probationer] lived at the apartment.”
Citations omitted.].
[29] 9th CIR:
US v. Grandberry (9C 2013) 730 F3 968, 973 [“officers must
have probable cause to believe that the parolee is a resident of
the house to be searched”]; Motley v. Parks (9C 2005) 432
F3 1072, 1080 [“before conducting a warrantless search pursuant to
a parolee’s parole condition, law enforcement officers must have
probable cause to believe that the parolee is a resident of the
house to be searched”; overruled on other grounds in
US v. King (9C 2012) 687 F3 1189]; US v. Bolivar (9C
2012) 670 F3 1091, 1095 [“Officers must have ‘probable cause’ that
they are at the correct residence”]. ALSO SEE:
US v. Thabit (8C 2023) 56 F4 1145, 1151 [“We hold that
probable cause is the appropriate standard in a case involving a
dwelling of a third party.”].
[30] 9th CIR: US v.
Diaz (9C 2007) 491 F3 1074, 1079 [“The officers had
reliable information that Diaz was usually at home during the day.
Nothing the agents observed made this belief unreasonable.”].
OTHER: Washington v. Simpson (8C 1986)
806 F2 192, 196 [court ruled that an arrestee “resided” in a house
when she stayed there two to four nights per week, kept some
personal belonging there, and previously gave that address as her
residence when she was booked”]; US v.
Magluta (11C 1995) 44 F3 1530, 1533 [“The ‘reason to
believe’ standard was not defined in Payton, and since
Payton, neither the Supreme Court, nor the courts of
appeals have provided much illumination.”].
[31] 9th CIR:
US v. Cervantes (9C 2017) 859 F3 1175, 1182 [a probationer
or parolee “would not understand the term [‘residence’] to
encompass a place where he is merely a temporary overnight
guest”]; US v. Franklin (9C 2010) 603 F3 652,
656 [“It is insufficient to show that the parolee may have spent
the night there occasionally.”]; Perez v.
Simpson (9C 1989) 884 F2 1136, 1141 [arrestee did not
reside in the house merely because “he spent the night there on
occasion”].
[32] 9th CIR: Case v.
Kitsap County Sheriff’s Department (9C 2001) 249 F3 921,
931 [officers reasonably believed the arrestee lived at the house
“at least part of the time.”]. OTHER: US v.
Risse (8C 1996) 83 F3 212, 217 [arrestee may “live” in a
house “even if [the arrestee] concurrently maintains a residence
elsewhere as well”]; US v. Bennett (11C 2009)
555 F3 962, 965 [“The fact that a suspect may live somewhere else
from time to time does not categorically prevent a dwelling from
being the suspect’s residence.”]; US v.
Bervaldi (11C 2000) 226 F3 1256, 1263 [“even if the 132nd
Place address was his ‘permanent residence’ in some sense, that is
not inconsistent with Deridder’s residence at the 129th Avenue
address”]. COMPARE: Cuevas v.
De Roco (9C 2008) 531 F3 726, 733 [the officers’
information “was several years old, uncorroborated by available
sources, and contradicted by two more recent pieces of
information”].
[33] 9th CIR: US v.
Franklin (9C 2010) 603 F3 652, 657. COMPARE:
US v. Cervantes (9C 2017) 859 F3 1175, 1181 [court claims
that Franklin held that a motel is a residence only if the
suspect was otherwise homeless]. NOTE: Under the
questionable logic of Cervantes, parolees who have a
permanent home could prevent parole searches by temporarily
renting motel rooms to conduct their criminal activities.
[34] CAL: P v. Ureziceanu (2005)
132 CA4 747, 790 [“the remaining policies and purposes underlying
the statutory knock-notice provisions must be satisfied in the
execution of a probation search of a residence”].
[35] 9th CIR US v. Lopez (9C
2007) 474 F3 1208, 1213 [“Because a protective sweep is a less
intrusive search than a parole search, [the Supreme Court]
necessarily makes both the protective sweep, and the parole
search, lawful.” Citing Samson v. California (2006) 547 US
843].
[36] CAL: P v.
Mason (1971) 5 C3 759, 763 [court rejects the argument that
“a search made without defendant’s knowledge would have been
invalid”]. ALSO SEE: Hart v. Superior Court (1971)
21 CA3 496, 502 in which the court explained the related rationale
for permitting officers to execute a search warrant even though
they were aware that no one was present; i.e., it would require
that officers “either make certain that an occupant was present
before going to the premises which in and of itself could
frustrate the purpose of the search—or simply take a chance that
someone will be present and if not—try again. This latter system
has inherent hazards, also. An innocent, but curious neighbor,
might easily observe the arrival and attempt by the officers to
execute the warrant. (This would certainly be likely if—in
addition to knocking on the door—the officers would be required to
verbally identify themselves, albeit to no one.”); Chapter 36
Executing Search Warrants
(Pre-Search Issues, Entry if occupants absent).
[37] CAL: P v.
Robles (2000) 23 C4 789, 798 [“if persons live with a
probationer, common or shared areas of their residence may be
searched”]; P v. Smith (2002) 95 CA4 912, 916
[probation searches “may extend to common areas, shared by
nonprobationers, over which the probationer has common
authority”]; P v. Britton (1984) 156 CA3 689. 700-3
[OK to search closet used by both occupants]; P v.
Barbarick (1985) 168 CA3 731, 740 [home includes garden
area]; P v. Pleasant (2005) 123 CA4 194, 197
[“Persons who live with probationers cannot reasonably expect
privacy in areas of a residence that they share with
probationers.”].
[38] CAL: P v. Schmitz (2012) 55
C4 909, 917 [“if others live with a probationer, the shared areas
of their residence may be searched based on the probationer’s
consent, given in advance by agreeing to a search condition”];
P v. Ermi (2013) 216 CA4 277, 280 [“An officer conducting a
probation search, may search those portions of a residence over
which the officer reasonably believes the probationer has joint
control or access.”]; P v. Woods (1999) 21 C4 668, 682
[“officers generally may only search those portions of the
residence they reasonably believe the probationer has complete or
joint control over”]; P v. Smith (2002) 95 CA4 912, 918;
P v. Pleasant (2004) 123 CA4 194, 197 [“Since Ms. Pleasant
gave a search waiver as a condition of probation, law enforcement
authorities could, without a warrant or probable cause, search
areas used exclusively by Ms. Pleasant, areas within ‘common
authority’ of the probationer and fellow occupants and areas which
she ‘normally had access.'”]; P v. Icenogle (1977) 71 CA3
576. 586 [suppression would be required if “the portion of the
bedroom where the two balloons were found constituted an area
under the sole dominion and control of defendant”];
P v. Boyd (1990) 224 CA3 736, 743-50;
P v. Smith (2002) 95 CA4 912, 918.
[39] CAL: P v. Carreon (2016)
248 CA4 866, 879 [“The presence of an overnight guest should
prompt a searching officer to pause and consider the guest’s
privacy expectations before intruding into an area assigned to the
guest.”]; P v. Robles (2000) 23 C4 789, 798 [roommates of
parolee/probationer “retain valid privacy expectations in
residential areas subject to their exclusive access or control, so
long as there is no basis for officers to reasonably believe the
probationer has authority over those areas”].
[40] CAL: P v.
Barbarick (1985) 168 CA3 731, 741.
[41] CAL: P v. Ermi (2013) 216
CA4 277, 281 [“Officer Knapp had seen probationers hide contraband
in a roommate’s belongings to avoid detection. We conclude that
substantial evidence supports the trial court’s express factual
finding of control or access.”]; P v. Baker (2008)
164 CA4 1152, 1159 [“When executing a parole or probation search,
the searching officer may look into closed containers that he or
she reasonably believes are in the complete or joint control of
the parolee or probationer.”]; P v. Smith (2002) 95 CA4
912, 919 [the issue is whether the purse was under the
probationer’s control “or one to which he at least had access”];
P v. Boyd (1990) 224 CA3 736, 749 [“Even if the
nonparolee roommate’s claim of ownership sounds reasonable,
reasonable suspicion may be predicated on the parolee’s possession
or control of the object.”]. 9th CIR:
US v. Bolivar (9C 2012) 670 F3 1091, 1095 [“Officers must
have ‘probable cause’ that they are at the correct residence but,
once validly inside, they need only ‘reasonable suspicion’ that an
item is owned, possessed, or controlled by the parolee or
probationer.”]; US v. Davis (9C 1991) 932 F2
752, 758 [“police must have reasonable suspicion that an item to
be searched is owned, controlled, or possessed by probationer”].
ALSO SEE: P v. Schmitz (2012) 55 C4 909, 918, 926.
[42] CAL: P v. Boyd (1990) 224
CA3 736, 744 [“the reasonable suspicion standard of
Burgener controls whether an item of personal property is
within the scope of a parole search”];
P v. Britton (1984) 156 CA3 689, 701 [error to apply
probable cause standard]; P v. Palmquist (1981) 123 CA3 1,
13 [reasonable suspicion, not probable cause, is required].
9th CIR: US v. Davis (9C 1991) 932 F2 752, 758
[“police must have reasonable suspicion that an item to be
searched is owned, controlled, or possessed by probationer”].
[43] EXAMPLES: The courts have ruled
that officers reasonably believed that probationers or parolees
had sole or joint control of the following property:
• A jewelry box on the dresser in a female probationer’s
bedroom. Russi v. Superior Court (1973) 33 CA3 160.
• A “gender neutral” handbag on a bed in a home occupied by a
male parolee and his girlfriend. P v. Boyd (1990) 224 CA3
736, 749 [“Even if the nonparolee roommate’s claim of ownership
sounds reasonable, reasonable suspicion may be predicated on the
parolee’s possession or control of the object.”]. Also see
P v. Smith (2002) 95 CA4 912, 919-20 [“once it was
determined the bedroom Kelsey and defendant shared was being used
for a criminal enterprise, there was no reason for the officers
not to believe the purse, regardless of its appearance, was one
being jointly used, even if not jointly owned, by the probationer
subject to search”]; P v. Ermi (2013) 216 CA4 277, 281
[“Here the purse was on a chair in the middle of a cluttered
bedroom that [the probationer] shared with appellant. Officer
Knapp saw [the probationer] emerge from the bedroom moments before
the search.”]. Compare P v. Baker (2008) 164 CA4 1152, 1160
[purse at the feet of a female passenger in a vehicle was not
under the parolee’s control].
• A paper bag in the closet of the parolee’s bedroom.
P v. Britton (1984) 156 CA3 689.
• A stationery box in a drawer in the living room.
Russi v. Superior Court (1973) 33 CA3 160.
• Trash under the kitchen sink. P v. Burgener (1986)
41 C3 505.
• The refrigerator in the kitchen.
P v. Palmquist (1981) 123 CA3 1.
• Dresser in parolee’s one-bedroom apartment.
P v. Icenogle (1977) 71 CA3 576
• Attempt to hide or grab: Officers may also assume that a
probationer/parolee had sole or joint control of a container or
personal property if he attempted to hide or grab it (see
P v. Alders (1978) 87 CA3 313, 317 [“[Probationer’s]
very act of reaching demonstrated that he exercised control, joint
or otherwise, over the bed.”]), or if it was a locked and the
probationer/ parolee had a key to it (see P v.
Pleasant (2005) 123 CA4 194, 197; US v.
Davis (9C. 1991) 932 F2 752, 759. Officers may not,
however, search the person of a resident who was not on probation
or parole. See P v. Robles (2000) 23 C4 789, 798.
NOTE: Old “ownership” cases: There are some older cases in
which the courts ruled that officers could not search personal
property that was obviously owned by someone other than the
probationer/parolee; e.g., search of woman’s purse during search
of male probationer’s home. See: P v. Veronica (1980) 107
CA3 906; P v. Alders (1978) 87 CA3 313, 317-18 [“there was
no reason to suppose that a distinctly female coat was jointly
shared by her and [the probationer].”]; P v. Baker (2008)
164 CA4 1152, 1160 [“Here, there is nothing to overcome the
obvious presumption that the purse belonged to the sole female
occupant of the vehicle who was not subject to a parole-condition
search.”]; P v. Alders (1978) 87 CA3 313, 317-18 [“there
was no reason to suppose that a distinctly female coat was jointly
shared by her and [the probationer].”]. Although these cases have
not yet been expressly overturned, they are contrary to current
law because, as noted, the issue is not who owns the property that
was searched but whether the probationer/parolee had joint or sole
access or control. Furthermore, if personal property could be
searched only if it was owned by the probationer, criminals could
frustrate probation searches by simply keeping their drugs and
other contraband in property belonging to a cohabitant.
P v. Ermi (2013) 216 CA4 277, 281-82 [“To rule otherwise
would enable the probationer to flout a probation search condition
by hiding drugs in a cohabitant’s purse or any other hiding place
associated with the opposite gender.”].
[44] CAL: P v. Alders (1978) 87
CA3 313, 317 [“[Probationer’s] very act of reaching demonstrated
that he exercised control, joint or otherwise, over the bed.”].
[45] CAL: P v.
Pleasant (2005) 123 CA4 194, 197. 9th CIR:
US v. Davis (9C 1991) 932 F2 752, 759.
[46] CAL: P v. Burgener (1986)
41 C3 505, 536 [“The information relayed by police to the agent
was more than adequate to give rise to a reasonable suspicion that
defendant was involved in criminal conduct and that evidence
confirming that suspicion would be found in his home.”];
P v. Smith (2002) 95 CA4 912, 919-20 [“once it was
determined the bedroom Kelsey and defendant shared was being used
for a criminal enterprise, there was no reason for the officers
not to believe the purse, regardless of its appearance, was one
being jointly used, even if not jointly owned, by the probationer
subject to search”]. NOTE: In P v. Veronica (1980)
107 CA3 906, 909 the court ruled that officers could not lawfully
search a purse hanging on the bedroom door of a home shared by the
parolee and his wife. In light of more recent cases, and
especially because there was substantial evidence that the home
was being used to carry out drug sales, the court’s ruling is of
doubtful validity.
[47] CAL: P v. Ermi (2013) 216
CA4 277, 281 [“Here the purse was on a chair in the middle of a
cluttered bedroom that [the probationer] shared with appellant.
Officer Knapp saw [the probationer] emerge from the bedroom
moments before the search.”]. ALSO SEE:
P v. Schmitz (2012) 55 C4 909, 926 [“Under the Court of
Appeal’s approach, a parolee passenger could frustrate a valid
parole search simply by sitting in the front seat of the car and
placing or discarding his belongings in the back. Imposing such an
artificially narrow rule frustrates the legitimate goals of
parole.”].
[48] CAL: Russi v.
Superior Court (1973) 33 CA3 160, 167; P v.
Boyd (1990) 224 CA3 736, 749 [“Depending upon the facts
involved, there may be instances where an officer’s failure to
inquire, coupled with all of the other relevant facts, would
render the suspicion unreasonable and the search invalid.”];
P v. Britton (1984) 156 CA3 689, 701; P v.
Baker (2008) 164 CA4 1152, 1160 [“There is no obligation to
ask whether the purse belonged to the parolee before searching
it.”]. NOTE: Although there are cases indicating that
questioning may be required if such information “can easily be
ascertained (see P v. Tidalgo (1981) 123 CA3 301,
306-7; P v. Fuller (1983) 148 CA3 257, 263), as a
practical matter it is seldom “easy” to determine with any
certainty who controls a room or object especially when, as is
often the case, a person who admits having control may be
arrested.
[49] CAL: P v.
Boyd (1990) 224 CA3 736, 749 [“The officer should not be
bound by the [parolee’s] reply in the face of overwhelming
evidence of its falsity.”]; P v. Britton (1984) 156
CA3 689, 701 [“An officer could hardly expect that a parolee would
claim ownership of an item which he knew contained contraband.”].
[50] CAL: P v. Evans (1980) 108
CA3 193, 196 [“it is the intrusion into, rather than the arrest
in, the dwelling which offends constitutional standards under
Ramey“]; P v. Lewis (1999) 74 CA4 662, 673
[“there is no violation of either Ramey or Payton if
officers entitled to enter a home to search enter to make an
arrest”].
[51] CAL: P v. Schmitz (2012) 55
C4 909, 913 [“the officer may search personal property located in
those areas if the officer reasonably believes that the parolee
owns those items”].
[52] CAL: P v. Schmitz (2012) 55
C4 909, 926 [“The scope of the search is confined to those areas
of the passenger compartment where the officer reasonably expects
that the parolee could have stowed personal belongings or
discarded items when aware of police activity.”];
P v. Cervantes (2017) 11 CA5 860, 871.
[53] CAL: P v. Schmitz (2012) 55
C4 909, 932 [“In this respect, an open shoe differs markedly from
a purse, which is likely to be more closely monitored by its owner
or otherwise secured.”]. ALSO SEE: P v. Baker (2008)
164 CA4 1152, 1160 [“Here, there is nothing to overcome the
obvious presumption that the purse belonged to the sole female
occupant of the vehicle who was not subject to a parole-condition
search.”].
[54] CAL: In re
William J. (1985) 171 CA3 72, 77 [court refuses to adopt a
rule permitting a car stop only if the suspect was the driver; “If
we were to adopt such an untenable rule, then legions of criminals
throughout the land could hire drivers, who are upstanding
citizens with no past criminal involvement, to chauffeur them
around our streets and highways in open, notorious view. As smug
passengers they could wave to the police who could only watch in
frustration as they passed by.”].
[55] QUOTE FROM:
P v. Schmitz (2012) 55 C4 909, 913. CAL:
Claypool v. Superior Court (2022) 85 CA5 1092, __ [search
of locked glove box unlawful because “it does not appear
objectively reasonable to believe the back seat passenger [i.e.,
the parolee] might have secreted a gun in the glove box after he
saw police” and “we find it critical that there is no evidence
suggesting the type of movements among the three occupants
consistent with secreting the gun into the glove box”];
P v. Maxwell (2020) 58 CA5 546, 592 [“an officer may search
those areas of the passenger compartment where the officer
reasonably expects that the probationer could have stowed personal
belongings or discarded items when aware of police activity”].
[56] QUOTE FROM:
P v. Schmitz (2012) 55 C4 909, 916. CAL:
P v. Ermi (2013) 216 CA4 277, 281 [“Officer Knapp had seen
probationers hide contraband in a roommate’s belongings to avoid
detection.”].
[57] CAL: P v. Schmitz (2012) 55
C4 909, 913 [“the officer may search personal property located in
those areas if the officer reasonably believes that the parolee
owns those items”].
[58] QUOTE FROM:
US v. Torres (10C 1981) 633 F2 1019. 1027. CAL:
P v. Crenshaw (1992) 9 CA4 1403 [“a consent search, to be
effective, must be thorough”].
[59] USSC: US v. Ramirez (1998)
523 US 65, 71 [“Excessive or unnecessary destruction of property
in the course of a search may violate the Fourth Amendment, even
though the entry itself is lawful.”]. CAL: P v.
Crenshaw (1992) 9 CA4 1403. 9th CIR: US
v. Gutierrez-Mederos (9C1992) 965 F2 800, 804.
[60] USSC: US v.
Ross (1982) 456 US 798, 818 [noting that in Carroll
v. US (1924) 267 US 132 the Court ruled that
prohibition agents did not violate the Fourth Amendment by ripping
open the upholstery of Carroll’s car because they had probable
cause to believe contraband was hidden under the upholstery];
Dalia v. US (1979) 441 US 238, 258 [“officers
executing search warrants on occasion must damage property in
order to perform their duty”]. 9th CIR: Liston
v. County of Riverside (9C 1997) 120 F3 965,
979 [“Although this court has not addressed the matter, other
circuits have held that only unnecessarily destructive behavior,
beyond that necessary to execute a warrant effectively, violates
the Fourth Amendment.”].
[61] CAL: P v. $48,715 (1997) 58
CA4 1507, 1510 [lengthy search necessary because the bed of the
truck “was loaded with luggage and bags of pasture seed”].
[62] CAL: P v.
$48,715 (1997) 58 CA4 1507, 1516 [“use of the trained dog
to sniff the truck did not expand the search to which the
[suspect] had consented,” edited]; P v. Bell (1996)
43 CA4 754, 769 [“Once defendant gave Officer David consent to
search his baggage, and thus, albeit implicitly, the trunk, a
canine sniff search of the trunk did not invade any legitimate
expectation of privacy.”]. 9th CIR: US v.
Perez (9C 1994) 37 F3 510, 516 [“Using a narcotics dog to
carry out a consensual search of an automobile is perhaps the
least intrusive means of searching because it involves no
unnecessary opening or forcing of closed containers or sealed
areas of the car unless the dog alerts.”].
[63] CAL: P v. Gutierrez (2018)
21 CA5 1146, 1159 [30-minute detention for routine search was
unwarranted].