"Prior Consents:"� Search & Seizure (Fourth Waiver) Conditions:

General Rule

General Rule:  All parolees, and some probationers, are subject to what is commonly referred to as a "Fourth Waiver;" i.e., where the subject has agreed, prior to the fact, to waive any objections to being subjected to searches and seizures without the necessity of the law enforcement officer meeting the standard Fourth Amendment requirements of probable cause and a search warrant.  (See Vandenberg v. Superior Court (1970) 8 Cal.App.3^rd 1048, 1053.)

The courts and the Legislature may, under certain limited circumstances, condition the freedom of parolees, some probationers, and (in some cases) even pretrial detainees, upon an agreement that law enforcement, probation officers and/or parole agents, be allowed to search and seize a subject's person and possessions without probable cause and without a search warrant.  (People v. Bravo (1987) 43 Cal.3^rd 600, 610; In re York (1995) 9 Cal.4^th 1133, 1150.)

Although imposed as a condition of the subject's parole or probation, such a waiver, albeit coerced at least to some extent, is often considered by some courts to be a form of "prior consent."  (In re Tyrell J. (1994) 8 Cal.4^th 68, 79-80, overruled on other grounds.)

Note:  In re Tyrell J., supra, has been specifically overruled by the California Supreme Court in In re Jaime P. (2006) 40 Cal.4^th 128, on the issue of whether an officer had to know of the probation condition prior to the search.  (See "Searching While In Ignorance of a Search Condition," below.)  Tyrell J. is cited in this outline for its other still-valid legal points. 

Parole

Parole:  A condition of all paroles, after the parolee has been released from prison, is that the parolee submit to searches by his or her parole officer, or "other peace officer at any time of the day or night, with or without a search warrant and with or without cause." (Cal. Code of Regs, Title 15, § 2511; P.C. § 3067(a); People v. Hernandez (1964) 229 Cal.App.2^nd 143.)

The Penal Code provides that; "The Legislature finds and declares that the period immediately following incarceration is critical to successful reintegration of the offender into society and to positive citizenship.  It is in the interest of public safety for the state to provide for the supervision and surveillance of parolees . . ."  (P.C. § 3000(a)(1))

P.C. § 3067 applies, by its terms (subd. (c)), to any parolee whose offense for which he or she is paroled occurred on or after January 1, 1997.  Otherwise, the language of Cal. Code of Regs, Title 15, § 2511 controls:

For parolees whose offense for which he or she is on parole occurred before 1/1/1997:  "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."  (Cal. Code of Regs, Title 15, § 2511)

For parolees whose offense for which he or she is on parole occurred on or after 1/1/1997:  Any inmate released on parole must agree in writing "to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause."  (P.C. § 3067(a))

Probation

Probation:  A condition of some (but not all) probationary terms is that the probationer submit to searches by a probation officer or any law enforcement officer without probable cause or a warrant.  (People v. Mason (1971) 5 Cal.3^rd 759, 763-764.)

A court may impose any "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, . . . (and) for the reformation and rehabilitation of the probationer."  (P.C. § 1203.1(j))

A Fourth Wavier condition of probation will be upheld unless:

• The wavier has no relationship to the crime for which the offender was convicted; and
• The wavier relates to conduct that is not in itself criminal; and
• The waiver is not reasonably related to preventing future criminality.

See People v. Shimek (1988) 205 Cal.App.3^rd 340, 342; People v. Lent (1975) 15 Cal.3^rd 481, 486; In re Frank V. (1991) 233 Cal.App.3^rd 12232, 1242.

Note:  The Supreme Court, in People v. Mason (1971) 5 Cal.3^rd 759, erroneously listed these criteria in the disjunctive, when in fact they are to be considered in the conjunctive.  (People v. Lent, supra, at p. 486, fn. 1.)  In other words, all three conditions have to apply before a probation condition is subject to being struck.

Note:  Given the above factors, probationary search and seizure conditions are commonly applied to narcotics and theft-related offenses, and sometimes crimes of violence where the use of a weapon was involved.

When the probationer is a juvenile, because the purpose of juvenile law is to rehabilitate (See W&I § 202(b)), the third of the above factors is perhaps the most important.  (In re Tyrell J. (1994) 8 Cal.4^th 68, 87, overruled on other grounds; see also In re Bonnie P. (1992) 10 Cal.App.4^th 1079, 1089.)

The language of the specific Fourth Waiver condition must be considered.  There being no statutorily-required standard language, a court is free to limit the search and seizure conditions as it deems to be appropriate under the circumstances.  A judge who wishes to impose some unusual restrictions on law enforcement officers' powers to conduct Fourth Waiver searches has the legal authority to do so.  (People v. Bravo (1987) 43 Cal.3^rd 600, 607, fn. 6.)

Any limitations in the conditions are binding on the searching officers.  For instance, a search and seizure condition specifically limited to narcotics cannot be used to justify a search for stolen property.  (People v. Howard (1984) 162 Cal.App.3^rd 8.)

However, so long as the area being searched could contain items allowed to be searched for under the terms of the Fourth Waiver, the officer's subjective intent (e.g., searching for stolen property where only a search for narcotics was authorized) is irrelevant, and the search will be upheld.  (People v. Gomez (2005) 130 Cal.App.4^th 1008.)

Some Fourth Waivers include language authorizing a warrantless search only "upon request," "as requested," or "whenever requested."   Even though ordinarily the defendant need not be present during the search (People v Lilienthal (1978) 22 Cal.3^rd 891, 900.), courts have interpreted the above language to mean that the probationer must either be present, or at least be notified beforehand about an impending search.  If he is not, the resulting evidence will be suppressed.  (See People v. Mason, supra, at p. 763; People v. Superior Court [Stevens] (1974) 12 Cal.3^rd 858, 861.)

Parole vs. Probation

Parole vs. Probation:  Although there is some authority for the argument that the rules are the same, whether discussing the issue of a parole search or a probation search, when a Fourth Waiver is the issue (see People v. Hoeninghaus (2004) 120 Cal.App.4^th 1180, 1192-1198.), the United States Supreme Court has indicated that parolees have fewer expectations of privacy than probationers, hinting that they (i.e., parolees) therefore may be subject to stricter controls.  (Samson v. California (2006) 547 U.S. 843 [165 L.Ed.2^nd

250].)

A "Special Needs" Search:  In either case (i.e., parole or probation), such a condition of parole or probation, commonly referred to as a "Fourth Waiver," is an important variance from the normal search and seizure rules.

 "(T)he government may dispense with the warrant requirement in situations when ‘"special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable."'"  (In re Tyrell J. (1994) 8 Cal.4^th 68, 77, overruled on other grounds; citing Griffin v. Wisconsin (1987) 483 U.S. 868, 873 [97 L.Ed.2^nd 709, 717].)

A "Fourth Waiver," at least when applied to an adult probationer, is in effect a prior consent given by the probationer to submit his or her person, home, vehicle and other possessions to search or seizure by any probation officer or other law enforcement officer, any time, day or night, without requiring the searching probation officer or police officer to obtain a search warrant, or to demonstrate the existence of probable cause.  It is a waiver of the subject's Fourth Amendment rights against unreasonable searches and seizures.  (See In re Tyrell J., supra, at pp. 79-80, overruled on other grounds; Vandenberg v. Superior Court (1970) 8 Cal.App.3^rd 1048, 1053; People v. Bravo (1987) 43 Cal.3^rd 600, 608-610; In re York (1995) 9 Cal.4^th 1133, 1149; People v. Hernandez (1964) 229 Cal.App.2^nd 143.)

As a result, considering the important governmental interest in operating probation or parole systems, as well as the need to protect the public, when balanced with the diminished expectation of privacy enjoyed by probationers and parolees, Fourth Wavier searches are now commonly classified as "Special Needs" searches which may be reasonable despite the lack, in some instances, of any particularized suspicion justifying the search.  (Griffin v. Wisconsin (1987) 483 U.S. 868, 875 [97 L.Ed.2^nd 709, 718]; In re Tyrell J., supra, at pp. 76-77, overruled on other grounds; People v. Reyes, supra, at pp. 748, 751-752.)  (See "Special Needs Searches," above.)

Note:  While a probationer is given a choice whether to accept the probation conditions (the alternative being incarceration), parolees and juveniles typically are not.  The "prior consent" theory, therefore may be hard to justify with parolees and juveniles.  Therefore, in such cases, the theory that one who has validly waived his or her Fourth Amendment rights has a diminished expectation of privacy as a result, as a "special needs" search, is perhaps a stronger justification.  (In re Tyrell J., supra, at p. 86, overruled on other grounds; People v. Reyes (1998) 19 Cal.4^th 743, 749-750.)

A "Special Needs Search"�

The United States Supreme Court, in Griffin v. Wisconsin, supra, at p. 876 [97 L.Ed.2^nd at p. 719], found three reasons supporting the conclusion that the operation of a probation system presented such "special needs:"

• A warrant requirement would interfere to an appreciable degree with the probation system, setting up a magistrate rather than the probation officer as the judge of how close the supervision the probationer requires.
• The delay inherent in obtaining a warrant would make it more difficult for probation officials to respond quickly to evidence of misconduct.
• A warrant and probable cause requirement would reduce the deterrent effect that the possibility of expeditious searches would otherwise create.

See also the concurring opinion in United States v. Crawford (9^th Cir. 2004) 372 F.3^rd 1048, at pages 1066-1072, describing a parole Fourth Waiver search as a "special needs" search.

The United States Supreme Court, in (Samson v. California (2006) 547 U.S. 843, 852, fn. 3 [165 L.Ed.2^nd 250].) declined to decide whether a parole Fourth Waiver involved a "special need."

Juvenile Probationers

Juvenile probationers may also be subjected to a Fourth Waiver requirement.  (In re Tyrell J. (1994) 8 Cal.4^th 68, 87, overruled on other grounds.)

Wel. & Inst. Code § 730(b):  "The court may impose and require any and all reasonable conditions that it may determine are fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced."

The "special needs" of the juvenile probation system, with its "goal of rehabilitating youngsters who have transgressed the law, a goal that is arguably stronger than in the adult context," allows for stricter controls.  (In re Tyrell J., supra, overruled on other grounds.)

So long as the conditions imposed are tailored specifically to meet the needs of the juvenile concerned, taking into account not only the circumstances of the crime but the juvenile's entire social history, probationary conditions, even which otherwise infringe upon the constitutional rights of the juvenile, will be upheld.  (In re Binh L. (1992) 5 Cal.App.4^th 194, 203-205.)

Pre-Trial

Pre-Trial:  Similar Fourth Waivers may also be imposed as a condition of an "O.R." (i.e., "Own Recognizance") release pending trial, and have been held to be lawful if reasonably related under the circumstances of a particular case to the prevention and detection of further crime and to the safety of the public.  (In re York (1995) 9 Cal.4^th 1133.)

The Ninth Circuit disagrees, holding that a Fourth Wavier cannot be imposed on a pretrial defendant as a condition of release.  (United States v. Scott (9^th Cir. 2005) 450 F.3^rd 863.)

Constitutionality

Constitutionality:  The advanced waiver of Fourth Amendment rights, imposed as a condition of accepting probation or parole, has been held to be constitutional.  (Zap v. United States (1946) 328 U.S. 624 [90 L.Ed. 1477]; People v. Mason (1971) 5 Cal.3^rd 759, 764-765.)

Expectation of Privacy

Expectation of Privacy:  While a number of legal theories, including "prior consent" and "special needs" (see above), have justified the upholding the legality of Fourth Waiver searches over the years, another theory espoused by some courts is that persons subject to a Fourth Waiver have a reduced expectation of privacy, depriving them of any "standing" to object to the search.  (People v. Valasquez (1993) 21 Cal.App.4^th 555, 558; People v. Viers (1991) 1 Cal.App.4^th 990, 993; People v. Biddinger (1996) 41 Cal.App.4^th 1219; People v. Ramos (2004) 34 Cal.4^th 494, 504-506; Samson v. California (2006) 547 U.S. 843 [165 L.Ed.2^nd 260].)