N.D.Cal.: It’s not for LEO to second guess a probation search condition’s validity or application

If the probation search condition applies on its face, and even if the search is for general law enforcement purposes, it’s not for the searching officer to inquire into the details of whether there might be some argument behind the scenes that might otherwise make the search unreasonable. Here, it was defendant’s claim he was a non-violent offender and was doing all that he was supposed to do on probation. Even if true, the search condition still applies. United States v. Aviles, 2017 U.S. Dist. LEXIS 81567 (N.D. Cal. Jan. 11, 2017):

Stepping back from the case law, Aviles’s proposed interpretation of Lara makes little practical sense. As the Supreme Court explained in Knights, it is not merely probation officers who can search a probationer with less than probable cause based on a search condition; law enforcement officers may do so for general law enforcement purposes. Knights, 534 U.S. at 121.2 A law enforcement officer who encounters someone and learns that the person is a probationer subject to a suspicionless search condition is in no position to inquire whether that search condition still ought to apply. The officer typically cannot assess how the probationer has been doing — e.g., whether he’s been reporting for meetings with his probation officer, whether he has a job, and whether he’s been passing his drug tests — and then use that information to decide whether the search condition should still apply. It’s the job of the sentencing judge to decide whether a probationer should be subject to a search condition, how long the condition should operate, how much of the probationer’s property it should cover, and whether searches should require any level of suspicion. That decision is based on the kind of balancing the Supreme Court conducted in Knights and the Ninth Circuit conducted in King – a balancing of the probationer’s privacy interests against the government’s interest in keeping tabs on him. See United States v. Betts, 511 F.3d 872, 876 (9th Cir. 2007) (concluding on appeal from sentencing that a search condition on supervised release was valid based on the same balancing inquiry). If that balance changes substantially after the probation conditions have been imposed but before the probation period has expired, the probationer can go back to the sentencing judge and seek to modify the conditions of his probation. See, e.g., Cal. Penal Code § 1203.3. What the probationer cannot do is expect a law enforcement officer to repeat the inquiry of the sentencing judge, on the assumption that the search condition might have become invalid some time during the period of probation.