Limitation: Searches Conducted for Purposes of Harassment:
A probationer (or parolee) subject to a search condition retains the right to be free from a search that is arbitrary, capricious or harassing. A search is arbitrary "when the motivation for the search is unrelated to rehabilitative, reformative or legitimate law enforcement purposes, or when the search is motivated by personal animosity toward the parolee." A search is a form of harassment when its motivation is a mere "whim or caprice." (People v. Reyes (1998) 19 Cal.4th 743, 754; People v. Medina (2007) 158 Cal.App.4th 1571, 1577.)
"It is only when the motivation for the search is wholly arbitrary, when it is based merely on a whim or caprice or when there is no reasonable claim of a legitimate law enforcement purpose, e.g., an officer decides on a whim to stop the next red car he or she sees, that a search based on a probation search condition is unlawful." (People v. Cervantes (2002) 103 Cal.App.4th 1404, 1408.)
Fourth Waiver searches have been held to be unreasonable if conducted too often, at an unreasonable time, when it is unreasonably prolonged, or for any other reasons establishing arbitrary or oppressive conduct by the searching officers. A search is arbitrary or oppressive when the motivation for the search is unrelated to a rehabilitative, reformative or legitimate law enforcement purpose, or when the search is motivated by personal animosity toward the parolee or probationer. (People v. Reyes, supra, at pp. 753-754; see also People v. Clower (1993) 16 Cal.App.4th 1737, 1741; and United States v. Follette (S.D.N.Y. 1968) 282 F.Supp. 10, 13.)
The United States Supreme Court found California's restrictions on arbitrary, capricious or harassing searches as an important ingredient in upholding the constitutionality of a suspicionless Fourth Waiver search of a parolee. (Samson v. California (2006) 547 U.S. 843 [165 L.Ed.2nd 260].)
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