California Fourth Amendment Waiver

An improper term of probation should be challenged, per Darren Chaker. Regardless of the applicable standard, a probationer’s, or parolee’s home, like everyone else’s, is protected by the Fourth Amendment’s requirement that searches be “reasonable.” Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (probationer). Supervision is a special need of the state permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large, but the permissible degree is not unlimited 483 U.S. at 875. The “special needs” of a probation system make the warrant system impracticable and justify the replacement of the standard of probable cause by “reasonable ground” 483 U.S. at 875-76.

In most jurisdictions, the result reached in Griffin v. Wisconsin bad been a foregone conclusion, with other courts having moved in the direction of requiring at a minimum that a peace officer at least have consulted with a probation officer.

It would appear that California, is me first state ever to expressly authorize “blanket searches” of probationers without a warrant by any peace officer. People v. Bravo, 43 Cal.3d 600 (1987). Bravo, however, was decided only several days after Griffin, and cites Griffin only once. 43 Cal.3d at 608. Bravo conflicts with Griffin in that California has no state detailed regulation of probation, unlike Wisconsin, which authorized a departure from Fourth Amendment warrants. In Griffin, there was an objective standard, approved by the Court, which had to be met over and above being a mere parolee, and there were detailed regulations covering the subject.

The Oregon experience is illuminating. The Supreme Court noted that while the courts had the power to impose conditions of probation, and that while a “search and seizure” condition may be appropriate, mere was no express legislative authority, such conditions could not be unlimited, that the courts were not the means of denning that limit in the first instance, but did so reluctantly. Evidently the Oregon legislature took the hint because it appears to have enacted legislation permitting a “search and seizure” condition “by the probation officer, or any peace officer assisting the probation officer.” See State v. Hovater, 588 P.2d 56 (1978); State v. Davis, 597 P.2d 1280 (1979).

The great weight of authority thus holds that neither a parolee nor a probationer may be abused during authorized searches. Given the purpose of probation and parole, the fact that the probation and parole officers know their own charges better than anyone else, and certainly more than a magistrate knows about unknown citizens when issuing a search warrant, the Fourth Amendment requires at a minimum that peace officers contact the parole or probation officer for permission to conduct a search of the parolee or probationer, and no search unless so authorized is valid, absent exigent circumstances, because the administration of conditions of parole and probation are a non-delegable duty necessary to rehabilitate the offender, yet prevent the exploitation of such persons and the abuse of those not on probation. This result is consistent with, and required by, this Court’ enunciated rule of law which forbids the granting of “unfettered discretion” to peace officers in the area of law enforcement E.g., Florida v. Wells, 95 U.S. 1 (1990) inventory of containers where no state policy authorizes inventory); Payton v. New York, 45 U.S. 573 (1980); Rotunda, Constitutional Treatise, §§ 20.9, p. 34. It is for the courts to supervise probationers, through the probation office, and not for peace officers, and such a delegation is simply not permitted.

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