Search conditions: Difference between revisions
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'''Search conditions''' refers a condition of release, whether it be probation, parole, or bail, that requires submitting to warrantless searches. It is all called a '''4th waiver''' though some practitioners strongly object to that term. | '''Search conditions''' refers a condition of release, whether it be probation, parole, or bail, that requires submitting to warrantless searches. It is all called a '''4th waiver''' though some practitioners strongly object to that term. Though the term "search conditions" or "4th waiver" is used broadly refer to warrantless searches as a condition of release, search conditions for a probationer do differ slightly from search conditions for a parolee. Probation is a privilege, not a right; so, a probationer has given consent in advance for warrantless searches. | ||
==Electronic devices== | |||
People v. Bryant (Apr. 17, 2017, No. B271300), available at [http://www.courts.ca.gov/opinions/documents/B271300M.PDF] | |||
==People and property in close proximity to person with search conditions== | ==People and property in close proximity to person with search conditions== | ||
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People v. Robles (2000) 23 Cal.4th 789, 798 ("those who live with a probationer maintain normal expectations of privacy over their persons. In addition, they 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."). | People v. Robles (2000) 23 Cal.4th 789, 798 ("those who live with a probationer maintain normal expectations of privacy over their persons. In addition, they 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."). | ||
A stop of a vehicle made without reasonable suspicion is not subsequently cured by the discovery that one of the passengers has a search condition. (People v. Bates (2013) 222 Cal.App.4th 60.) | |||
==Search of third parties in proximity to person with search condtiions== | |||
''People v. Woods'' (1999) 21 Cal.4th 668. | |||
''People v. Robles'' (2000) 23 Cal.4th 789.) | |||
''People v. Ermi'' (2013) 216 Cal.App.4th 277.) | |||
There is a difference between authority over a room, and access to a room. A probation search is for rooms in which the probationer has authority over; it is not for rooms that the probationer has access to. The Court said, "it flouts widely held social exxpectations to define joint access as simply having the physical ability to open a door, walk into a room, and open drawers. (''People v. Carreon (2016) 248 Cal.App.4th 866, 879.) | |||
People v. Mason (1971) 5 Cal.3d 759 | |||
Russi v. Superior Court (1973) 33 Cal.App.3d 160 | |||
Detention of others during probation search | |||
''People v. Matelski'' (2000) 82 Cal.App.4th 837 | |||
''People v. Rios'' (2011) 193 Cal.App.4th 584 | |||
''People v. Gutierrez'' (2018) 21 Cal.App.5th 1146, held it violation of a Fourth Amendment where defendant "ordered out of the house, subjected to patdown search, and directed to sit down on front porch or in the front yard" for the length of search of a probationer. | |||
People v. Woods (1999) 21 Cal.4th 668 indicates there should only be a probation search of common areas, but People v. Ledesma (2003) 106 Cal.App.4th 857 seems to allow protective sweeps during probation search. This was called a protective sweep because it was looking for people, not for objects, and the shotgun was in plain sight, not part of a search. | |||
==Search of residence== | |||
===Search excluded=== | ===Search excluded=== | ||
;''People v. Alders'' (1978) 87 Cal.App.3d 313 | ;''People v. Alders'' (1978) 87 Cal.App.3d 313 | ||
: | :A search of a woman's coat belonging to the co-resident of a male probationer was improper, because clearly the woman's coat did not belong to male probationer. | ||
A search of a woman's coat belonging to the co-resident of a male probationer was improper, because clearly the woman's coat did not belong to male probationer. | |||
;''People v. Veronica'' (1980) 107 Cal.App.3d 906 | |||
:Search of parolee's wife's purse excluded. The purse did not belong to parolee. | |||
;''People v. Sandoval'' (2008) 163 Cal.App.4th 205 | |||
;''People v. Carreon'' (2016) 248 Cal.App.4th 866 | |||
:When probationer is renting room, search conditions don't extend to whole residence. | |||
===Search not excluded=== | |||
;''People v. Downey'' (2011) 198 Cal.App.4th 652 | |||
Law enforcement search residence that they have good faith belief to be that of a probationer. However, probationer had already moved out and updated his new address. Because law enforcement had a "reasonable belief," a standard lower than probable cause, that probationer would be address, search was valid. | |||
;''People v. Ermi'' (2013) 216 Cal.App.4th 277 | |||
;People v. | ;''People v Smith'' (2002) | ||
;''People v. Rios'' (2011) 193 Cal.App.4th 584 | |||
==Search of vehicle== | |||
===Search excluded=== | |||
===Search not excluded=== | ===Search not excluded=== | ||
;''People v. Schmitz'' (2012) 55 Cal.4th 909 | |||
==Good Faith Exception== | |||
Herring v. U.S. (2009) 555 U.S. 135, overruling People v. Willis (2002) 28 Cal.4th 22. Unless the officer's conduct could be described as “deliberate, reckless, or grossly negligent” or in some instances “recurring or systemic negligence” the exclusionary rule does not apply. | |||
People v. | ''People v. Prichett'' (2024) 102 Cal.App.5th 355, in regards to termination of probation under operation of law under AB1950, but not officially and publicly terminated. | ||
Latest revision as of 18:18, 31 March 2025
Search conditions refers a condition of release, whether it be probation, parole, or bail, that requires submitting to warrantless searches. It is all called a 4th waiver though some practitioners strongly object to that term. Though the term "search conditions" or "4th waiver" is used broadly refer to warrantless searches as a condition of release, search conditions for a probationer do differ slightly from search conditions for a parolee. Probation is a privilege, not a right; so, a probationer has given consent in advance for warrantless searches.
Electronic devices
People v. Bryant (Apr. 17, 2017, No. B271300), available at [1]
People and property in close proximity to person with search conditions
People v Woods (1999) 21 Cal.4th 668, 682 ("Moreover, officers generally may only search those portions of the residence they reasonably believe the probationer has complete or joint control over.")
People v. Robles (2000) 23 Cal.4th 789, 798 ("those who live with a probationer maintain normal expectations of privacy over their persons. In addition, they 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.").
A stop of a vehicle made without reasonable suspicion is not subsequently cured by the discovery that one of the passengers has a search condition. (People v. Bates (2013) 222 Cal.App.4th 60.)
Search of third parties in proximity to person with search condtiions
People v. Woods (1999) 21 Cal.4th 668.
People v. Robles (2000) 23 Cal.4th 789.)
People v. Ermi (2013) 216 Cal.App.4th 277.)
There is a difference between authority over a room, and access to a room. A probation search is for rooms in which the probationer has authority over; it is not for rooms that the probationer has access to. The Court said, "it flouts widely held social exxpectations to define joint access as simply having the physical ability to open a door, walk into a room, and open drawers. (People v. Carreon (2016) 248 Cal.App.4th 866, 879.)
People v. Mason (1971) 5 Cal.3d 759
Russi v. Superior Court (1973) 33 Cal.App.3d 160
Detention of others during probation search
People v. Matelski (2000) 82 Cal.App.4th 837
People v. Rios (2011) 193 Cal.App.4th 584
People v. Gutierrez (2018) 21 Cal.App.5th 1146, held it violation of a Fourth Amendment where defendant "ordered out of the house, subjected to patdown search, and directed to sit down on front porch or in the front yard" for the length of search of a probationer.
People v. Woods (1999) 21 Cal.4th 668 indicates there should only be a probation search of common areas, but People v. Ledesma (2003) 106 Cal.App.4th 857 seems to allow protective sweeps during probation search. This was called a protective sweep because it was looking for people, not for objects, and the shotgun was in plain sight, not part of a search.
Search of residence
Search excluded
- People v. Alders (1978) 87 Cal.App.3d 313
- A search of a woman's coat belonging to the co-resident of a male probationer was improper, because clearly the woman's coat did not belong to male probationer.
- People v. Veronica (1980) 107 Cal.App.3d 906
- Search of parolee's wife's purse excluded. The purse did not belong to parolee.
- People v. Sandoval (2008) 163 Cal.App.4th 205
- People v. Carreon (2016) 248 Cal.App.4th 866
- When probationer is renting room, search conditions don't extend to whole residence.
Search not excluded
- People v. Downey (2011) 198 Cal.App.4th 652
Law enforcement search residence that they have good faith belief to be that of a probationer. However, probationer had already moved out and updated his new address. Because law enforcement had a "reasonable belief," a standard lower than probable cause, that probationer would be address, search was valid.
- People v. Ermi (2013) 216 Cal.App.4th 277
- People v Smith (2002)
- People v. Rios (2011) 193 Cal.App.4th 584
Search of vehicle
Search excluded
Search not excluded
- People v. Schmitz (2012) 55 Cal.4th 909
Good Faith Exception
Herring v. U.S. (2009) 555 U.S. 135, overruling People v. Willis (2002) 28 Cal.4th 22. Unless the officer's conduct could be described as “deliberate, reckless, or grossly negligent” or in some instances “recurring or systemic negligence” the exclusionary rule does not apply.
People v. Prichett (2024) 102 Cal.App.5th 355, in regards to termination of probation under operation of law under AB1950, but not officially and publicly terminated.