THE FOURTH AMENDMENT RIGHTS
OF JUVENILE PROBATIONERS
By Kathryn Seligman, FDAP Staff Attorney
January 2004
Your client is a minor who has been declared a ward of a California Juvenile
Court, pursuant to Welfare and Institutions Code section 602. She is on probation, subject
to a search condition permitting the police to search or seize her person or property,
without reasonable cause, at any time. What are her Fourth Amendment rights? Can she
challenge an illegal detention, arrest or seizure?
According to the California Supreme Court, she can be stopped and searched
without reasonable suspicion or probable cause. Her vehicle can be searched without
probable cause. Moreover, she can be lawfully detained, arrested, or searched without any
reasonable cause by an officer who does not even know she is on probation with a search
condition at the time of the intrusion. (See In re Tyrell J. (1994) 8 Cal.4th 68.)
The residence that your young client shares with her family can be searched
without a warrant or probable cause, and without any reasonable suspicion that she is
violating the law or probation terms. (See People v. Woods (1999) 21 Cal.4th 668.)
However, the officer would need to know that your minor client is on actually on
probation before he could search any shared areas of the residence and use the evidence
against the minor’s parents or other housemates. (See People v. Robles (2000) 23 Cal.4th
789.) But under Tyrell J., the minor’s room could likely be searched without prior
knowledge of her probation status.
If your minor client is on probation with a search clause, are there any grounds for
challenging a search or seizure? The answer is yes. First, the minor’s advocate can
challenge the search as arbitrary or conducted for purposes of harassment. Second, based
on recent decisions from the United States and California Supreme Courts, we can argue
that a search of a minor or her property, conducted without prior knowledge of the
probation search condition, is unconstitutional. (See United States v. Knights (2001) 534
US 112, 122 S.Ct. 587; People v. Sanders (2003) 31 Cal. 4th 318.) Relying on Knights, we
can also argue that a probation search unsupported by reasonable suspicion violates the
Fourth Amendment.
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B. THE MAJOR CASES
In re Tyrell J. (1994) 8 Cal.4th 68:
Juvenile probationers – no warrant or suspicion needed and no prior
knowledge needed to search, detain or arrest
Here is the basic holding of Tyrell J: A juvenile probationer, with a search
condition, can be searched or have his property searched, without a warrant and
without reasonable cause. Moreover, the juvenile probationer can be searched
without suspicion even if the officer conducting the search is unaware of the
juvenile’s probationary status or probation search clause at the time of the search.
The Courts have applied the rule of Tyrell J. to justify detentions made without
reasonable suspicion and arrests made without a warrant or probable cause. These
seizures can be justified, after the fact, even if the officer did not know of the individual’s
probation or parole status and search clause at the time of the intrusion. (See, e.g. People
v. Lewis (1999) 74 Cal. App. 4th 662, 669.)
Tyrell J. is the only published Supreme Court case dealing specifically with the
rights of juvenile probationers. Last year, in People v. Sanders (2003) 31 Cal. 4th 318, the
California Supreme Court declined to extend the rule of Tyrell J. to justify the search of
an adult parolee’s residence when the officers did not know he was on parole and subject
to a search condition before they commenced the search. Nevertheless, the Court declined
to overrule Tyrell J. outright or to reaffirm its continuing validity as a rule applicable only
to juvenile probationers. The Court, in Sanders, expressly declined the prosecution’s
invitation to find that the holding of Tyrell J. was correct; the Court noted: “Because this
case does not involve a juvenile, we need not, and do not, decide this issue.” (People v.
Sanders, supra, 335, fn. 5)
So after Sanders, can juvenile probationers and their property be searched
without prior knowledge of the probation search condition? The answer to this
question awaits further litigation.
Here are the underlying facts of Tyrell J.: Tyrell was a ward of the juvenile court
on probation with a search condition (requiring him to submit to a search of his person or
property, with or without a warrant, by any law enforcement officer). He was at a high
school football game when he was approached by a police officer who had seen him
adjust his trousers three times. The officer thought he might have a weapon; he detained
and searched Tyrell – going well beyond the scope of the initial pat search. The officer
seized a bag of marijuana from Tyrell’s pants pocket, and the minor was charged with
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possession of marijuana for sale.
The parties and the Court assumed that the search of Tyrell’s pockets was illegal
(unsupported by probable cause) unless if was a valid “probation search”. However, the
critical point was that even though the minor was on probation with a search condition,
the officer did not find out about this until after the search. Thus, the issue before the
Court was whether an illegal search could be justified, after-the-fact, as a valid “probation
search” even if the officer was unaware of the search condition at the time of the search.
In a 5-2 decision, authored by former Chief Justice Lucas, the Court said yes.
A juvenile probationer is like an adult parolee and not like an adult probationer. He does
not consent to a probation search clause; it is imposed upon him.1 On the other hand, he
knows about the search clause, so he walks around assuming that he can be searched by
any officer at any time for any reason or no reason whatsoever. This awareness is what
supposedly deters him from committing future crimes. In constitutional terms, the
juvenile probationer has a “greatly reduced” expectation of privacy. From the minor’s
point of view, it doesn’t matter whether the officer who searches him knows he is on
probation with a search clause.
However, the Court refused to say that the juvenile probationer has no privacy
rights whatsoever. He may still challenge a search that is arbitrary or conducted for
purposes of harassment. (In re Tyrell J., supra., at 87)
The Court hinted that the rule of Tyrell J. might only be applicable to juveniles:
“[I]mposing a strict requirement that the searching officer must always have advance
knowledge of the search condition would be inconsistent with the special needs of the
juvenile probation scheme. That scheme embraces a goal of rehabilitating youngsters who
have transgressed the law, a goal which is arguably stronger than in the adult context”. (In
re Tyrell J., supra., at 86-87.) Nevertheless, the Tyrell J. rule was subsequently applied to
justify searches of adult probationers and parolees, after-the-fact, when the officers later
learned the subjects’ status.
Justice Kennard wrote a dissenting opinion, and Justice Mosk concurred with her
reasoning. Justice Kennard warned of the dangers of allowing juvenile probation searches
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Because a juvenile probationer does not consent to probation or to the
imposition of a search condition, the Supreme Court did not rely on its previous ruling in
People v. Bravo (1987) 43 Cal. 3d 600. In that case, the court held that an adult
probationer with a search clause can be searched at any time without a warrant or
reasonable cause. When a defendant accepts probation with a search clause, he consents
in advance to a waiver of his Fourth Amendment rights.
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to be justified after-the-fact: “Today’s holding offers police officers an incentive to search
any juvenile despite lack of probable cause and a warrant, for it if later turns out that the
juvenile has a probation search condition, the fruits of the search will be admissible in
court. Thus, the majority rule encourages the police to ‘search first and ask questions
later’. A policy more at odds with the purpose underlying the Fourth Amendment would
be difficult to imagine.” (In re Tyrell J., supra., at 98.)
As the Supreme Court subsequently noted in People v. Saunders, the holding of
Tyrell J was not adopted by other jurisdictions and received a chilly reception from legal
commentators. (People v. Saunders, supra., 31 Cal. 4th at 328-29.)
People v. Reyes (1998) 19 Cal.4th 743
Adult parolees – no warrant or suspicion needed
In Reyes, the Court held that an adult parolee, automatically subject to a
search condition, can have his person or property searched without any suspicion
whatsoever. The Court did not address the issue of whether the officer who conducts
the search must have prior knowledge of the individual’s parole status and search
condition because the police officer knew Reyes was on parole before the search.
When Defendant Reyes was released on parole, he had signed a parole agreement
including the standard search condition. An anonymous informant phoned the defendant’s
parole agent and reported that Reyes was using methamphetamine and might be involved
in other crimes. The parole agent called the police and asked them to evaluate Reyes for
possible drug use. The police then went to Reyes’ home and saw him walking out of a
backyard shed. After evaluating Reyes and concluding that he was not under the influence
of any drugs, the police nevertheless called the parole agent and obtained his permission
to search the shed. In the shed, the police found methamphetamine.
In a 4-3 decision authored by Justice Brown, the Court overturned its prior
decision in People v. Burgener (1986) 41 Cal.3d 505, which had required reasonable
suspicion for a parole search.2 In rejecting the reasonable suspicion requirement, the
Court acknowledged that unlike adult probationers, parolees do not “consent” to a waiver
of Fourth Amendment rights; they have no choice but to accept a search condition when
they are released on parole. Instead, like a juvenile probationer, a parolee has a search
2
Three justices (Kennard, Mosk, and Werdegar) dissented on whether
Burgener should be overruled. All three believed that reasonable suspicion should be
required for a parole search, but that there was no need to decide this issue because the
officers reasonably suspected that Mr. Reyes was violating the law.
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condition imposed upon him to assure that he does not commit future crimes. He is put on
notice that his activities will be closely and routinely monitored, and he knows he can be
searched at any time by a police officer or a parole agent.
Consequently, like a juvenile probationer, a parolee has a greatly reduced
expectation of privacy. When this “de minimus” privacy interest is balanced against the
strong government interest in deterring future criminality, a search conducted without
reasonable suspicion or any suspicion whatsoever is deemed reasonable.
The Supreme Court applied the reasoning of Tyrell J. to adult parolees: “Tyrell J.’s
reasoning applies with equal force to adults”. Both juvenile probationers and adult
parolees have a reduced expectation of privacy. Because the government has a strong
interest in rehabilitating juvenile offenders and assuring that parolees do not return to a
life of crime, both groups can be searched without any suspicion whatsoever. (People v.
Reyes, supra., at 751-52.)
Did Reyes extend the full holding of Tyrell J. To adult parolees? Could the
suspicionless search of an adult parolee and his property be justified after the fact by
later-acquired knowledge of his parole status? Many courts assumed that this was true
until last year’s decision in People v. Sanders.
Only Justice Werdegar, in her dissenting opinion, noted that the rules applying to
juvenile probationers do not necessarily apply to adult parolees: “The conditional liberty
granted a minor who has committed a crime implicates different concerns from those of
an adult [parolee] attempting reintegration into society following a period of incarceration
in state prison”. (People v. Reyes, supra., at 768.) Essentially, Justice Werdegar reasoned
that the government interest in supervision, which outweighs the individual’s reduced
expectation of privacy, is greater in the case of a juvenile probationer. Thus, there is a
rationale for affording juvenile probationer less Fourth Amendment protection.
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People v. Robles (2000) 23 Cal.4th 789:
Housemates of probationers: The police must have prior knowledge of
the probationer’s status and search condition before they can search the
shared residence without a warrant or probable cause. Without such
knowledge, the seized evidence cannot be used against the
non-probationer housemate.
The California Supreme Court first indicated its dissatisfaction with the Tyrell J.
rule and its unwillingness to extend its holding in People v. Robles. To understand the
significance of Robles. one must first revisit the Supreme Court’s holding in People v.
Woods (1999) 21 Cal. 4th 668 – the case that preceded Robles by just one year. In Woods,
the court held that a person who lives with a probationer has reduced Fourth Amendment
protection; the common areas of his residence can be searched without a warrant and
without probable cause, and the seized evidence can be used against him – so long as the
officer searched pursuant to a valid probation condition.
In Woods, the police were interested in gathering evidence against Jason Mofield,
a man they’d arrested with drugs outside the home they knew he shared with probationer
Gala Loza. The officers knew that Loza had a search condition, and they had some recent
information that drugs were being sold out of the shared residence. They did not get a
warrant, but instead relied on Loza’s probation search clause to search the residence and
look for evidence against Mofield. Inside the house, in a room occupied by two other
non-probationer housemates (Woods and Benson), the police found drugs and guns.
Woods and Benson were criminally prosecuted
The Supreme Court upheld the search in a 4-3 decision authored by Justice
Baxter. The court reaffirmed its prior ruling that a probation search is a consent search.
The probationer, Loza, had consented in advance to a search of her residence, and this
included the common areas of the residence that she shared with non-probationer
housemates. The fact that the police officer’s subjective motive was to look for evidence
against a non-probationer housemate (Mofield) simply didn’t matter – especially where
the circumstances showed a possible probation violation. The officer could knowingly use
a probationer housemate’s search clause as a pretext to get into the house and look for
evidence against a non-probationer housemate.
In Woods, the officers knew that one member of the shared household (Loza) was
on probation and subject to a search condition before they searched the residence. What if
they learned this after the search was conducted?
This was the situation in Robles. In that case, the police searched a residence
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shared by an adult probationer and a non-probationer without a warrant and without
probable cause. They found evidence incriminating the non-probationer housemate,
Defendant Robles. The police did not know that his housemate (the defendant’s brother)
was on probation with a search clause until several days after they conducted the
otherwise illegal search.
In an opinion written by Justice Baxter (the same justice who’d authored Woods),
the Court refused to combine Woods and Tyrell J. to uphold the search of the shared
residence, after-the-fact, as a probation search. They did not allow the seized evidence to
be used against the non-probationer housemate. While acknowledging that the
probationer had consented in advance to allow his residence to be searched, the Court
held the police could not rely on this advance consent if they did not know about it : “If
officers lack knowledge of a probationer’s advance consent when they search the
residence, their actions are wholly arbitrary in the sense that they search without legal
justification and without any perceived limits to their authority”.
Without overruling Tyrell J. (as concurring Justices Kennard and Brown
proposed), the Court distinguished that case on two points. First, the non-probationer
housemate has a greater expectation of privacy than the probationer. After Woods, that
housemate could anticipate that shared areas of his residence may be searched by officers
aware of the probationer housemate’s search condition. However, he need not anticipate
that officers unaware of that condition will invade the residence without a warrant.
Second, Robles involved a residential search of a shared household and Tyrell J.
involved the on-the street search of the probationer’s person. The Court believed there
was more potential for abuse if they allowed the police to conduct warrantless residential
searches and then justify their actions, after-the-fact, upon discovering that one resident
was on probation. In some neighborhoods, where many households have at least one
resident probationer, the police would be inclined to try their luck: Conduct an illegal
home search and hope that one of the people who lives there turns out to be on probation.
Notably, the Court did not find it significant that Tyrell J. involved a juvenile
probationer whereas the probationer in Robles was an adult. Presumably, the Robles rule
would apply to households where one of the members is a juvenile on probation with a
search clause. Under Robles, the police could not search the shared areas of the family
residence (e.g. living room, kitchen) and use seized evidence against the non-probationers
unless they know before they enter that the child is on probation.
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United States v. Knights (2001) 534 US 112, 122 S.Ct. 587
All probationers - warrantless search of probationer’s home, supported
by reasonable suspicion and authorized by a probation search condition,
is constitutional. It does not matter whether the search is for an
investigatory purpose or a probationary purpose
United States v. Knights is significant because it is the most recent United States
Supreme Court case setting the Fourth Amendment requirements for a probation search.
Knights holds that a search conducted without a warrant or probable cause is
constitutional if authorized by a valid probation condition. Knights strongly implies that
the officer who conducts the probation search must know of the probation condition
before commencing the search. Moreover, Knights arguably suggests that a constitutional
probation search must be supported by reasonable suspicion.
Although the defendant in Knights was an adult probationer, there is no reason
why the Court’s “traditional” Fourth Amendment analysis would not apply to juvenile
probationers and parolees. Indeed, the California Supreme Court applied the Knights
decision to an adult parolee in People v. Sanders, supra., 31 Cal. 4th at 318.
To understand Knights, one must first review the background of the high court’s
decision. The Supreme Court granted certiorari to determine if a rule promulgated by the
Ninth Circuit – which prohibited “probation searches” conducted for “investigatory
purposes” – was constitutionally valid. In a series of cases, culminating in United States v.
Knights (9th Cir. 2000) 219 F.3d 1138, the Ninth Circuit rested the constitutionality of a
probation search on the subjective purpose of the officer conducting the search. If the
search was conducted to foster the probationer’s rehabilitation and assure his compliance
with probation terms, it was valid. However, if the search was an “investigatory search”
aimed at gathering evidence of suspected criminal law violations, it was unconstitutional.
The Ninth Circuit repeatedly condemned the practice of using a probation search
condition as “a subterfuge for conducting a criminal investigation”.
The facts underlying Knights are relatively straightforward: Mr. Knights was a
California probationer. As a condition of probation, he “consented” to the standard search
term, permitting police or probation officers to search his person, property, or residence
without a warrant and without reasonable cause. Federal law enforcement officers
suspected that Knights was behind various acts of sabotage and vandalism at PG & E
facilities in Napa County. After conducting surveillance, the officers had a reasonable
suspicion (if not probable cause) that Knights was involved in this criminal activity. The
officers decided to search Knights’ apartment. Because they were aware of Knights’
search condition, they did not obtain a warrant. Rather, they conducted a “probation
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search” of Knights’ residence and found incriminating evidence. Knights was charged in
federal court with conspiracy to commit arson and possession of a destructive device. The
district court granted the defense motion to suppress upon finding that the search was
improperly conducted for “investigatory” rather than “probationary” purposes. Relying on
the doctrine described above, the Ninth Circuit affirmed the district court’s ruling.
Not surprisingly, in a unanimous decision authored by Chief Justice Rehnquist ,
the Ninth Circuit rejected the Ninth Circuit rule that a probation search conducted for an
“investigatory purpose” (i.e to discover evidence of the probationer’s suspected law
violations) was unconstitutional. The Supreme Court declined to uphold the probation
search under the advance consent rational employed by the California Supreme Court in
Bravo. Instead the reasonableness of the search of Knights’ residence was determined by
“examining the totality of the circumstances” under the Court’s traditional “Fourth
Amendment [balancing] approach” with Knights’ “probation condition being a salient
circumstance” in this analysis. (United States v. Knights, supra., 122 S.Ct. at 591.)
After weighing the probationer’s reduced expectation of privacy against the
legitimate government interest in assuring that the probationer did not re-offend, the
Court concluded that “no more than reasonable suspicion” was required to conduct a
lawful search of a probationer’s home pursuant to a search condition. In other words, the
police officer did not need a warrant, probable cause, or a narrowly defined “probationary
purpose”. The Court held: “[B]ecause our holding rests on ordinary Fourth Amendment
analysis that considers all the circumstances of a search”, there is no basis for examining
the searching officer’s subjective purpose. (Knights, supra.,at 591-93.)
The Supreme Court held that “no more than reasonable suspicion” was required
for a valid probation search, but did it require reasonable suspicion or any suspicion
whatsoever? Actually Knights left open the question of whether a search conducted
without any individualized suspicion could satisfy the reasonableness requirement of the
Fourth Amendment. The Court noted that the terms of Knights’ probation condition
permitted a search without reasonable suspicion, “but we need not address the
constitutionality of a suspicionless search because the search in this case was supported
by reasonable suspicion”. (Knights, supra., at 592, fn. 6)
Nevertheless, the Supreme Court did imply that searching officer’s advance
knowledge of the probation search condition was a pre-requisite to a valid probation
search. It is this knowledge that allows the officer to presume that the probationer might
be violating the law and to search with less than probable cause.
As noted, the Court held that the reasonableness of a probation search is
determined by balancing the probationer’s privacy interest against the government’s
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legitimate interest in monitoring the probationer’s compliance with the law – to protect
society and assure the probationer’s rehabilitation. (Knights, supra., at 591.) The Court
emphasized that “Knights’s status as a probationer subject to a search condition informs
both sides of the balance”. (Knights, supra., at 591.) On one hand, the imposition of the
probation search condition “significantly diminished Knights’s reasonable expectation of
privacy”. On the other hand, the probation search condition enhances the governmental
interest only if the officer knows the individual is on probation prior to the search. He can
then reasonably assume that it is more likely the suspect will be engaging in criminal
activity because “[t]he recidivism rate of probationer’s is significantly higher than the
general crime rate.”(Knights, supra., at 592.)
Because a certain degree of suspicion flows from the individual’s known status as
a probationer – i.e. someone is who is more likely to violate the law than the average
citizen, a reasonable suspicion of criminal activity is sufficient to justify a search of the
probationer or his residence. In all cases, “[t]he degree of individualized suspicion
required of a search is a determination of when there is a sufficiently high probability that
criminal conduct is occurring to make the intrusion on the individual’s privacy interest
reasonable”. (Knights, supra., at 592.) Normally, the requisite degree of individualized
suspicion must rise to the level of probable cause. However, for probationers, a lesser
degree of suspicion “satisfies the Constitution”. The combination of the known recidivist
tendencies of probationers, combined with the reasonable suspicion of criminal activity
on the part of the particular probationer, makes the search reasonable because “there is
enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s
significantly diminished privacy interests is reasonable”. (Id. at 592-593.)
The Supreme Court’s balancing approach in Knights created an obvious conflict
with the California Supreme Court’s reasoning in Tyrell J.. Unlike the California court,
the United States Supreme Court did not look exclusively at the probationer’s reduced
privacy interest. It also looked at the government interest -- an interest that necessarily
implies prior knowledge of probationary status and the search condition. As Justice
Brown argued persuasively in her concurring opinion in Robles, a police officer cannot
act pursuant to the legitimate government interest in monitoring a probationer’s
compliance, if he does not even know that the person he is searching is on probation.
(See People v. Robles, supra., 23 Cal.4th at 805-06 [concurring opn. of Brown, J.].)
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People v. Sanders (2003) 31 Cal. 4th 318:
Adult parolees and their housemates: The police must have prior
knowledge of the parolee’s status and search condition before they can
search the shared residence without a warrant or probable cause.
Without such knowledge, the seized evidence cannot be used against the
parolee or his housemate.
In Sanders, the California Supreme Court did not overrule Tyrell J.. However, the
Court held that its reasoning would not apply when the police searched the residence of a
parolee without knowing that he was on parole with a search condition.
In Robles, the Supreme Court had held that the government could not validate the
otherwise illegal search of a shared residence, after-the-fact, by the subsequently acquired
knowledge that one housemate was on probation with a search condition. But Robles only
prohibited the use of the seized evidence against the non-probationer housemate. Sanders
applied and extended the Robles rule to bar the use of the seized evidence against both the
non-parolee housemate and the parolee.
The relevant facts of Sanders are as follows: The defendants, Arlene Sanders and
Kenton McDaniel, lived together. Police officers responded to a report of a disturbance at
their apartment. Standing outside the apartment door, the police heard a man and woman
yelling. When the door was opened, the officers noted that Sanders had an abrasion on
her face. The officers handcuffed both suspects and conducted a “protective sweep” of
the entire apartment, searching for additional occupants. During the sweep, the officer
looked inside a boot in a closet and found cocaine. After conducting the sweep and
finding the cocaine, the officers learned that McDaniels was on parole, subject to a
mandatory search condition. They then conducted a thorough parole search and seized the
previously discovered cocaine from the closet. The two defendants were charged only
with possession of cocaine for sale, based on the drugs discovered in the closet before the
officers knew that McDaniel was on parole.
The Court of Appeal reversed the trial court’s order denying the motion to
suppress. The appellate court held that the search of the closet, which yielded the cocaine,
could not be justified as a “protective sweep”. Moreover, it could not be justified as a
“parole search” because the officers did not know McDaniel was on parole at the time of
the search. The Supreme Court granted review to determine whether the search was
lawful, under Tyrell J., even though the officers were unaware of McDaniel’s parole
status until after the search. (People v. Sanders, supra., 31 Cal. 4th at 322-324.)
In a 6-1 opinion, authored by Justice Moreno, the California Supreme Court
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affirmed the Court of Appeal and held that the cocaine seized during an unlawful search
could not be admitted against either Sanders, the parolee’s housemate, or McDaniels, the
parolee. Justice Baxter, the lone dissenting justice, would have admitted the evidence only
against Parolee McDaniels.
The Court began its analysis by reviewing its own relevant authorities and those of
the United States Supreme Court. After acknowledging that Tyrell J. declined to require
prior knowledge of the juvenile probationer’s search condition, the Court noted: 1)that the
Tyrell J. rule had received a “chilly reception” from legal commentators and been rejected
by most other jurisdictions; and 2)that “[w]e limited the holding in Tyrell J. in People v.
Robles”. (Sanders, supra., at 328-329.)
Reiterating its ruling in Robles, the Court held that the cocaine was inadmissible
against Sanders, the parolee’s housemate. Just as incriminating evidence seized during an
illegal search was not admissible against Defendant Robles based on the officers’
subsequently acquired knowledge that his housemate was on probation with a search
condition, the cocaine was not admissible against Defendant Sanders merely because the
police later discovered that McDaniels was on parole. “The circumstances that McDaniel
was on parole while the defendant’s brother in Robles was on probation makes no
difference; the expectation of privacy of co-habitants is the same whether the search
condition is a condition of probation or parole”. (Sanders, supra., at 330.)
The issue of whether the search was unlawful as to McDaniel, the actual parolee,
presented a “more difficult question”. The Court ultimately concluded that the search of
the closet could not be justified as a “parole search” because the officers did not know
McDaniel was on parole at the time they commenced the searched. There were two basic
reasons for this conclusion: 1)The reasonableness of a search must be determined based
on circumstances known to the officer when the search is conducted. 2)Invalidating an
unknowing parole search is consistent with the primary purpose of the exclusionary rule –
to deter police misconduct. (Sanders, supra., at 332.)
In recognizing that the reasonableness of a search must be determined based on the
totality of the circumstances known to the officer when the search begins, the Court relied
on the analysis of Knights. The nation’s high court had emphasized that it was the
officer’s knowledge of the individual’s probation status which allowed him to assume a
greater possibility of recidivism and thus search without probable cause. “But if an officer
is unaware that a suspect is on probation and subject to a search condition, the search is
not justified by the state’s interest in supervising probationers or by the concern that
probationers are more likely to commit criminal acts.” (Sanders, supra., at 333.)
Requiring prior knowledge of a housemate’s parole status before the officer can
conduct a valid parole search also further’s the purpose of the exclusionary rule by
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deterring police misconduct. This rule discourages the police from conducting unlawful
searches on the hope that they may “get lucky” and later discover that one housemate is
on parole. (Sanders, supra., at 334-335.)
C. AFTER KNIGHTS AND SANDERS: QUESTIONS TO ANSWER
1. Does the Sanders rule apply to searches of adult probationers’
residences, as well as the residences of adult parolees?
I think the answer is definitely “yes”. Throughout Sanders, the Court makes it
clear that the reasoning applies equally to searches of residences occupied by adult
probationers as well as parolees. The Court expressly re-affirmed and extended its ruling
in Robles, a case that involved a residence occupied by an adult probationer.
2. Does the Sanders rule apply to a search of an adult parolee’s person as
opposed to his residence?
Prosecutors can be expected to argue that the Sanders rule applies only to
residential searches. They will assert that the unknowing and suspicionless search of a
parolee’s person is still permissible. Prosecutors will likely point to language in Sanders
emphasizing the sanctity of the home (“physical entry into the home is the chief evil
against which the wording of the Fourth Amendment is directed”) and the desire to
discourage warrantless searches of homes shared by parolees and their non-parolee
housemates.
Nevertheless, the reasoning of Sanders should apply to personal as well as
residential searches. The rule that a search must be justified by circumstances known to
the officer prior to the commencement of the intrusion would also apply to the search of a
person or a vehicle. Also, just as there are certain neighborhoods where many of the
homes have at least one resident on parole or probation, there are certain areas where
many individuals on the street are probationers or parolees. The police should be
discouraged from contacting persons in these areas and searching them without cause on
the chance that they will get lucky and later learn of their parole or probation status.
The Fifth District held, in an unpublished opinion, that the Sanders rule also bars
the search of a parolee’s person without probable cause and without prior knowledge that
the individual is on parole with a search condition. (People v. Esquivel, F041146)
3. Does Tyrell J. still govern searches of juvenile probationers or does the
Sanders rule apply?
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As noted above, the Supreme Court, in Sanders, declined to overrule Tyrell J.. The
Court also declined the prosecution’s invitation to hold that the Tyrell J. rule still applied
to juvenile probationers: “Because this case does not involve a juvenile , we need not, and
do not, decide this issue.” (People v. Sanders, supra., 31 Cal. 4th at 335, fn. 5.)3
So where does this leave juvenile probationers? If a police officer searches a
juvenile on the street without reasonable cause, and later learns that he is on probation, is
the search justified under Tyrell J.? The answer is unclear. If a police officer searches a
residence occupied by a juvenile probationer and his parents, and finds cocaine in the
family room, is the evidence admissible against the parents? Almost certainly not, under
the authority of Robles and Sanders. Is the evidence admissible against the juvenile? No,
if Sanders applies, but yes if juveniles are governed by Tyrell J.
The answers to all of these questions await further litigation. However, I think
there are strong arguments that Tyrell J. is no longer good law, after Knights and Sanders.
As discussed above and recognized by the California Supreme Court in Sanders, the
reasoning of Knights presumes that the officer knows the individual is on probation
before he conducts the search. The government cannot further its legitimate interest in
assuring that a probationer has not broken the law – an interest which justifies dispensing
with traditional Fourth Amendment requirements – if the officer does not know the
subject (whether an adult or juvenile) is on probation. The rule that a search must be
justified by circumstances known to the officer before the intrusion would apply whether
the suspect was a minor or an adult. Finally, it serves the purpose of the exclusionary rule
to discourage the police from conducting illegal searches of minors as well as adults.
3
It should be noted that Justice Kennard, in her concurring opinion criticizes
the majority opinion for not overruling Tyrell J.: “I would draw no distinction between
the warrantless search of an adult parolee and the warrantless search of a juvenile
probationer. As to each, I would apply the same analysis: Neither search can be justified
by information such as the search condition in this case that was unknown to the
searching officer”. (Sanders, supra., 31 Cal. 4th at 337-338.)
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4. After Knights, is reasonable suspicion required for a valid probation
or parole search?
The California Supreme Court has consistently held that a parole or probation
search, pursuant to a valid condition, can be conducted without reasonable suspicion. (See
People v. Bravo (1987) 43 Cal.3d 600 [adult probationers]; Tyrell J., supra., 8 Cal. 4th at
68 [juvenile probationers]; People v. Reyes, supra., 19 Cal. 4th at 743 [adult parolees].
Indeed, in Sanders, the Court reaffirmed the Reyes rule – holding that a parole search can
be conducted without individualized suspicion so long as the officer knows the individual
is on parole with a search condition. ( Sanders, supra., 31 Cal. 4th at 332-333.)
Some read the United States Supreme Court’s opinion in Knights as requiring
reasonable suspicion for a valid probation or parole search. The Court expressly
declined to decide whether a “probation search by a law enforcement officer without any
individualized suspicion would have satisfied the reasonableness requirement of the
Fourth Amendment”. They did not have to determine the validity of a suspicionless
search because the officers had reasonable suspicion to search Probationer Knights.
(United States v. Knights, supra., 122 S. Ct. at 592, fn. 6) Nevertheless, some
commentators point to passages in Knights as implying that individualized suspicion is a
necessary pre-requisite for a constitutional probation search.
First, after balancing the probationer’s reduced expectation of privacy against the
government interest in preventing recidivism, the Court held that “no more than
reasonable suspicion’ was required to conduct a search of the probationer’s home.
(Knights, supra.., at 592.) Second, the Court explained this holding by noting that the
degree of individualized suspicion required for a constitutional search depends on the
probability that criminal conduct is occurring: Because probationers are more likely than
most citizens to commit crimes, the police don’t need probable cause. Nevertheless, under
the Court’s reasoning, it seems that some degree of individualized suspicion is required to
combine with the general suspicion that derives from probationary status:
“Although the Fourth Amendment ordinarily requires the degree of probability
embodied in the term ‘probable cause’, a lesser degree satisfies the
Constitution when the balance of governmental and private interests
makes such a standard reasonable. [Citations omitted] Those interests warrant
a lesser than probable-cause standard here. When an officer has reasonable
suspicion that a probationer subject to a search condition is engaging in
criminal activity, there is enough likelihood that criminal conduct is
occurring that an intrusion on the probationer’s significantly diminished
privacy interest is reasonable.”(United States v. Knights, supra., at 592-593.)
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One Ninth Circuit opinion supports the view that reasonable suspicion is
constitutionally required for a valid parole or probation search. In United States v.
Crawford (9th Cir. 2003) 323 F.3d 700, a 2-1 majority held that the search of a California
parolee’s home was only legal if supported by reasonable suspicion. The Court based its
decision, in part, on the Supreme Court’s reasoning in Knights:
“After examining the totality of the circumstances – including Crawford’s parole
status, the parole condition, the location of the search, Crawford’s expectation of
privacy in his own home, the state’s interest in rehabilitating parolees, and the
interest of both the state and the federal government in preventing and punishing
recidivist crimes – we hold that a search of a parolee’s home pursuant to a parole
condition is reasonable only if it is supported by reasonable suspicion.”
(United States v. Crawford, supra, at 715-716)
Judge Trott vigorously dissented from the majority’s holding in Crawford. He
approved the standard adopted by the California Supreme Court in Reyes: A parole search
need not be supported by individualized or reasonable suspicion. It is constitutional so
long as it is not arbitrary, capricious or conducted for purposes of harassment. (Crawford,
supra., at 723-738.)
Unfortunately, the majority opinion in Crawford is no longer citeable authority and
it may not stand for long. On September 2, 2003, the majority of the active judges of the
Ninth Circuit voted to rehear the case en banc. (United States v. Crawford (9th Cir. 2003)
343 F.3rd 961) Whatever the en banc panel decides, the question of whether a parole or
probation search must be supported by reasonable suspicion may ultimately be
determined by the United States Supreme Court. In the meantime, the California Courts
of Appeal will likely take the position that the relevant California Supreme Court
precedents are binding, unless you can convince the court that Knights requires
individualized suspicion as a constitutional pre-requisite.
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