<- Previous Page
Limitation: Searches Conducted for Purposes of Harassment
^- Up One Level
Chapter 15: Fourth Waiver Searches:
Next Page ->
Searching While In Ignorance of a Search Condition
   Table Of Contents
      Chapter 15: Fourth Waiver Searches:
         Who May Conduct a Fourth Waiver Search?
            California Rule
            Need to Seek Permission:
               Probation
               Parole

California Rule

California Rule:  California law is clear, as indicated by the terms of the standard Fourth Wavier conditions, probation and parole searches are not limited to probation and parole officers.  Any law enforcement officer is typically authorized to conduct such searches.  (People v. Mason (1971) 5 Cal.3rd 759, 766 [probation]; People v. Reyes (1998) 19 Cal.4th 743 [parole].)

The Ninth Circuit Court of Appeal's theory that Fourth Waiver searches are a rehabilitative tool for use by probation officers only, with local law enforcement's attempt to use a Fourth Wavier to justify a warrantless search as being no more than a "ruse" for conducting a new criminal investigation and a violation of the Fourth Amendment (e.g., see United States v. Ooley (9th Cir. 1997) 116 F.3rd 370.), has been overruled by the United States Supreme Court.  (United States v. Knights (2001) 534 U.S 112 [151 L.Ed.2nd 497]; see also United States v. Stokes (9th Cir. 2002) 292 F.3rd 1164.)

back to top
Probation

Probation:  It has long been the rule, at least in probation searches, that a local law enforcement officer need not even seek the permission of a probation officer.  (See People v. Mason, supra.)

Note federal law is to the contrary, based on the terms of the Federal Probation Act, which is not applicable to state cases.  (See United States v. Consuelo-Gonzalez (9th Cir. 1975) 521 F.2nd 259.)

In United States v. Stokes (9th Cir. 2002) 286 F.3rd 1132, the search in issue was conducted by the defendant's probation officer, so the issue was not discussed.

back to top
Parole

Parole:  Prior California authority to the effect that in a parole situation a local law enforcement officer must first receive authorization from the parole officer (e.g., see People v. Coffman (1969) 2 Cal.App.3rd 681, 688-689; People v. Natale (1978) 77 Cal.App.3rd 568, 574.) has arguably been overruled by People v. Reyes (1998) 19 Cal.4th 743, which finds the standards for probation and parole searches to be the same.

Even prior to Reyes, supra, there was some California authority that at least where seeking the prior approval of the parole officer would be a "meaningless formality," such as when "any parole officer who refused to authorize a search given an articulable reasonable suspicion of criminal activity ‘would have been derelict in his duties,'" calling the parole officer is unnecessary.  (People v. Brown (1989) Cal.App.3rd 187, 192.)

Note:  Despite the lack, under California law, of any legal requirement to contact the appropriate parole officer or office before undertaking a parole search, the California Department of Correction requests and recommends, in instances involving the search of a parolee's residence or business, that you do so anyway, for operational reasons as well for reasons of safety and cooperation.

Federal authority, at least from the Ninth Circuit Court of Appeal, may still be holding onto the theory that parole is a tool for parole authorities for controlling parolees, and not something that local law enforcement is entitled to use.  (See United States v. Jarrad (9th Cir. 1985) 754 F.2nd 1451, 1454; referring to a parole officer who authorizes a search at the request of the police as the police officers' agent, or "stalking horse;" see also Latta v. Fitzharris (9th Cir. 1975) 521 F.2nd 246, 247, and United States v. Hallman (3rd Cir. 1966) 365 F.2nd 289.)

back to top
<- Previous Page
Limitation: Searches Conducted for Purposes of Harassment
^- Up One Level
Chapter 15: Fourth Waiver Searches:
Next Page ->
Searching While In Ignorance of a Search Condition