Cal.1: A probationer’s guest can challenge the scope of search provision

Defendant lived in the garage next to a probationer’s house. He could challenge the scope of search provision of the probationer when the police searched the garage, too, as a probation search because it effected him. (In contrast, parolees have no such right in California.) People v. Romeo, 2015 Cal. App. LEXIS 845 (1st Dist. September 28, 2015):

Although the Rios court did not place much weight on the fact that the rights of a non-probationer guest were involved—understandably, because the record there amply justified warrantless entry to R.R.’s residence, and once the officers were properly inside, the arrest and search of Rios was plainly justified by his conduct—we think the involvement of a non-probationer is important here. The rationale for probation searches embraced by the California Supreme Court in Bravo and its progeny is essentially transactional. The probationer is deemed to have consensually surrendered his expectations of privacy as a quid pro quo for avoiding imprisonment. Although this theory of consent does extend constructively to house guests in some circumstances—based on sharing of common areas in the residence (Woods, supra, 21 Cal.4th at pp. 675-676)—the basis for the theory is more attenuated for guests than it is for their probationer hosts. Guests are therefore entitled to demand adherence to the proper scope of their host’s search conditions, despite the usual rule prohibiting the assertion of someone else’s Fourth Amendment rights in search and seizure cases. (See Rakas v. Illinois (1978) 439 U.S. 128.) The California Supreme Court took care to underscore this point in Woods, supra, 21 Cal.4th 668, where, in the course of upholding the probation search of a residence that yielded incriminating evidence against two non-probationer guests, the court emphasized that “our holding is not intended to legitimize unreasonable searches with respect to nonprobationers who share residences with probationers. In all cases, a search pursuant to a probation search clause may not exceed the scope of the particular clause relied upon.” (Id. at pp. 681-682, italics added.)

The court expanded on the same theme in Robles, supra, 23 Cal.4th 789. “[R]esidences frequently are occupied by several people living together, including immediate family members and perhaps other relatives or friends, as well as guests. Allowing the People to validate a warrantless residential search, after the fact, by means of showing a sufficient connection between the residence and any one of a number of occupants who happens to be subject to a search clause, would encourage the police to engage in facially invalid searches with increased odds that a justification could be found later. It also would create a significant potential for abuse since the police, in effect, would be conducting searches with no perceived boundaries, limitations, or justification.” (Id. at p. 800.) “The potential for abuse, with its consequent impact on the citizenry,” the court explained, “is especially heightened in high crime areas where police might suspect probationers to live.” (Ibid.) “With respect to the goals of probation, society would be hard pressed not to ‘”‘recognize as legitimate'”‘ [citation] third party privacy expectations concerning the illegality of warrantless searches that bear no reasonable relation to the purposes of probation.” (Id. at p. 799.) Permitting arbitrary and indiscriminate probation searches might cause “[m]any law-abiding citizens … not to open their homes to probationers if doing so were to result in the validation of arbitrary police action. If increased numbers of probationers were not welcome in homes with supportive environments, higher recidivism rates and a corresponding decrease in public safety may be expected, both of which would detract from the ‘optimum successful functioning’ of the probation system.” (Ibid.)

We conclude that, on this record, the search of 628 Walnut Avenue cannot be upheld. We are asked to sustain the warrantless search of a residence without any showing that the searching officers knew that the target of their search, the residence itself, fell within the scope of a probation search clause. A probation search carried out by police heedless of any limits in the operative search clause might turn out to be lawful or unlawful—depending on an after-the-fact check. (See Hoeninghaus, supra, 120 Cal.App.4th at p. 1196 [“If, as the People argue, police did not need to know that their authority to search defendant was limited to searching for drugs, then police could search him without any limitation and without any grounds to believe the search was reasonable; and if, after learning about the condition, they claimed that they were looking for drugs, the search could be upheld under the consent exception”].) This is the “search first, justify later” approach that the Supreme Court has consistently decried, while pointing out that it is particularly problematic where third-party non-probationers are involved.

To meet their burden of proof, the People were required to present evidence demonstrating the objective reasonableness of a warrantless search. The presentation of a search clause expressly allowing a residential search would have sufficed, as would more detailed testimony from Officer Miller showing some understanding of the operative terms of probation and connecting those terms to the need for a warrantless search. Even without any of that, the search might still have been justified if the objective circumstances otherwise warranted it. (See Woods, supra, 21 Cal.4th at p. 680 [“‘”the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action”‘”], quoting Whren v. U.S. (1996) 517 U.S. 806, 813.) But we find no such justification on this record.