Consent to Search Waived - Parole or Probation Searches

Probation Search

Often when a person is placed on probation for a felony violation a condition of that probation is the explicit consent to search by law enforcement. [1]

When a person on probation waives the right to refuse consent as a condition of probation and shares a residence with others that waiver gives the police consent to search those shared areas.[2]

An officer conducting a probation search may search those areas which the officer “reasonably” believes the probationer to have joint access or control. [3]

When a person accepts as a condition of probation the waiver of the right to object to a search by police the search need not require any suspicion of criminal activity or probable cause. A person’s right to privacy is sacrificed if the search is conducted in a “reasonable” manner. [4]

A probation search condition by its terms may limited any search to specific types of property. However, if not so limited a police officer may search for any evidence of a crime if the officer knows of the consent wavier condition.[5]

If the search is arbitrary and it should harass or annoy the person searched then that can be grounds to object. In that situation a court may exclude evidence of a crime that the searched produced.[6]

The standard probation search condition usually reads that the person on probation will “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.”[7]

Often a search condition will included the language “whenever requested” by a police officer. This requires any police officer conducting a search to give notice that the search is based on a condition of the person’s probation. Failure to give notice can support an objection to the search as “unreasonable” and any evidence found as a result can be excluded.[8]

Parole Search

If a person is on parole and a parole officer has a reasonable belief that a paroled prisoner is violating any conditions of their parole they may search the parolee's home without consent. “By accepting the privilege of parole a prisoner consents to the broad supervisory and visitorial powers which his parole officer must exercise over his person and property until the term of his sentence shall have expired or been terminated.” [9]

In determining the “reasonableness” of a parole search the totality of the circumstances are examined. The limits of a parole search are based are those areas the parolee has control over by examining such factors as (a) the nature of the area searched or item recovered; (b) how close and accessible the area or item is to the parolee’s area of domicile or other area of clear control; (c) the apparent privacy interests of the parolee to the area or item at stake; and (d) the government's purpose in conducting the search. [10]

[1] People v. Mason (1971) 5 C.3d 759, 764, 97 C.R. 302, 488 P.2d 630; People v. Velasquez (1993) 21 C.A.4th 555, 558, 559, 26 C.R.2d 320.

[2] People v. Woods (1999) 21 C.4th 668, 88 C.R.2d 88, 981 P.2d 1019, S.Ct. 3092, 49 L.Ed.2d 1000,People v. Smith (2002) 95 C.A.4th 912, 918, 116 C.R.2d 694; People v. Pleasant (2004) 123 C.A.4th 194, 197, 19 C.R.3d 796

[3] People v. Ermi (2013) 216 C.A.4th 277, 280, 156 C.R.3d 848.

[4] In re Jeremy G. (1998) 65 C.A.4th 553, 555, 76 C.R.2d 585; People v. Lilienthal (1978) 22 C.3d 891, 899, 150 C.R. 910, 587 P.2d 706,; People v. Brown (1987) 191 C.A.3d 761, 766, 236 C.R. 506; In re Anthony S. (1992) 4 C.A.4th 1000, 1002, 6 C.R.2d 214

[5] People v. Gomez (2005) 130 C.A.4th 1008, 30 C.R.3d 662.

[6] People v. Bravo (1987) 43 C.3d 600, 607, 238 C.R. 282, 738 P.2d 336 People v. Cervantes (2002) 103 C.A.4th 1404, 1406, 1408, 127 C.R.2d 468

[7] People v. Bravo (1987) 43 C.3d 600, 238 C.R. 282, 738 P.2d 336,

[8] People v. Mason (1971) 5 C.3d 759, 764, 97 C.R. 302, 488 P.2d 630,

[9] People v. Denne (1956) 141 C.A.2d 499, 510, 297 P.2d 451.

[10] Samson v. California (2006) 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250