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Search And Seizure While On Probation

What Is Probation?

Probation is a criminal sentence that allows an offender to remain in the community under certain conditions instead of going to jail or prison.

Probation typically lasts for a specific period of time, and a “probationer” or person on probation is commonly required to meet certain conditions such as regularly reporting to a probation officer, not breaking any laws, paying fines and restitution, and completing any court-ordered treatment or education programs.

Since probation is an alternative to being incarcerated, if a probationer violates any of the conditions of their probation, they could end up going to jail or prison depending on the severity of the crime they were convicted of or plead guilty to.

Probation is intended to provide offenders with rehabilitation opportunities to improve their lives without having to serve time in jail or prison. Additionally, probation is a form of punishment meant to deter future criminal activity which ultimately protects society as a whole.

The probation program is also used to help reduce overcrowding in prisons and provide sentencing options for first-time offenders of some crimes.

Can a Person Be Searched Without a Warrant While on Probation? The Fourth Amendment

The Fourth Amendment to the United States Constitution protects citizens from unreasonable search and seizure.

It states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

This amendment is grounded in the belief that citizens should not be subject to unlawful searches and seizures without a warrant. The amendment also requires that warrants be specific in terms of the place being searched and the items being seized.

The protections of the Fourth Amendment also give ordinary US citizens an expectation of privacy that they will not be stopped by the police unless the police have a reasonable suspicion to stop someone.

However, the question becomes, do people on probation in California have the same Fourth Amendment protections as ordinary citizens? The short answer is no.

California Probation Law

California has long held that people on probation can be subjected to warrantless searches and seizures because California law oftentimes requires people who go on probation to submit to a search of their person, property, vehicle, or place of residence without a search warrant by a police officer or probation officer.

The reasoning for this diminished expectation of privacy is the assumption that a probationer is more likely to violate the law than an ordinary citizen not on probation or parole.

Normally, for the police to search a person’s residence, law enforcement will need a warrant or consent to search. For a person on probation, if the police have a reasonable suspicion that a probationer is engaged in criminal activity, then their home can be searched, and their property can be seized without a warrant.

California courts have stated that people on probation are more likely to hide criminal activities and destroy incriminating evidence because they can be sentenced to jail or prison if their probation is revoked. Moreover, in a probation revocation hearing, certain court procedures such as the right to a jury, and evidence rules such as proof beyond a reasonable doubt do not apply.

The Different Expectations of Privacy
  • In order for the police to stop an ordinary citizen, the police need to have a Reasonable Suspicion.
  • In order to search an ordinary citizen, the police need to have Probable Cause.
  • In order to stop or search a person on probation, the police only need a Reasonable Suspicion or Less.
  • In order to stop or search a person on parole, the police just need Knowledge of Parolee Status.
  • In order to stop or search a person in prison, Nothing is Required as there is no Expectation of Privacy in prison.
What the Police Cannot Do While Someone Is on Probation

In California, police officers cannot arrest, search, or seize property when it becomes arbitrary or continuous stops rise to the level of harassment. In other words, just because the police know that someone is on probation does not give them the right to continually stop, search, and seize property without a reasonable suspicion of criminal conduct.

A Criminal Defense Attorney Who Focuses on You and Your Rights

If you are accused of violating your probation, it is important to speak to an experienced criminal defense attorney as soon as possible. Attorney William Kroger understands how important your freedom is to you. Contact Mr. Kroger at 323-655-5700 for a free consultation today.

The defense lawyers at William Kroger can help protect your rights. Representation for the best possible outcome in your case is just a phone call away.

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