• Parole Fourth Waiver Searches
• Fourth Waiver Searches of Vehicles
• Vehicle Searches Based Upon the Presence of a Parolee/Passenger

Upon discovering that a passenger of a vehicle is subject to a waiver of his Fourth Amendment Search and Seizure rights, an officer may search those areas of a vehicle where it is reasonable to believe, under the circumstances, that the Fourth waiver subject may have hidden contraband, while taking into consideration the privacy interests of the driver/owner of the vehicle. 

Defendant Brandon James Claypool was observed by police driving his Honda Accord in a high crime/gang area (unknown what time of day or night) with two passengers later identified as Malcolm Clay, sitting in the front passenger seat, and Carlos Olivia, in the rear seat on the passenger’s side.  Observing the front passengers in the car to “be leaned back” as it passed the police car going in the opposite direction, the officers did a U-turn and followed the Honda.  No observations were made, however, of anything being exchanged between the front and rear passengers.  The Honda did an “abrupt turn” onto a side street and stopped in front of a residential driveway.  Blocking the driveway being a violation of V.C. § 22500(e)(1), the officers pulled up behind it and stopped.  Upon contacting the vehicle’s occupants, it was noted that defendant (the driver) had the car keys (along with a cellphone and a wallet) in his lap.  The Honda’s engine had been turned off.  Observed in plain sight in the back seat near Olivia was an open bottle of cognac which Olivia acknowledged was his.  Olivia also told the officers that he was on parole (thus subject to warrantless/suspicionless searches).  Deciding to do a parole search of the car, all three subjects were asked to exit the vehicle.  Defendant was told to put his keys on the dashboard as he got out of the car.  Clay (the front passenger) appeared to be visibly sweating and nervous.  When asked if there was a gun in the car, one of the officers testified that he “thought” Clay responded, “I don't know.” Retrieving the car keys from the dashboard, the officers used them to open the locked glovebox.  A loaded pistol was found therein.  Defendant was charged in state court with a number of firearms and ammunition-related offenses.  His motion to suppress the evidence was denied by the preliminary hearing magistrate, and then again by the trial court.  Defendant appealed.

The Third District Court of Appeal reversed.  The issue on appeal, as it was at the prelim and in the trial court, was the legality of the warrantless vehicle search based upon the parole status of a passenger in the car.  The landmark case decision relevant to this issue is the California Supreme Court case of People v. Schmitz (2012) 55 Cal.4th 909.  In Schmitz, a male passenger in the front seat was on parole and thus subject to search and seizure conditions (commonly referred to as a “Fourth waiver,” and as are all parolees in California).  Defendant was the driver (and presumably the owner) of the car.  In the back seat was a woman with a child.  In the back with her was a woman’s purse, a bag of chips, and a pair of shoes.  Officers searched the vehicle based upon the front seat passenger’s Fourth waiver.  Upon doing so, a syringe cap was found in the purse, two syringes were found in the chips bag, and some methamphetamine was found in the shoes.  The California Supreme Court upheld the search of the chips bag while taking into account the various factors unique to that case.  Of noted relevance in making this decision, the Court took into consideration the lack of any physical barrier between the front and back seats, making it easy for the parolee to reach back and secret the syringes in the bag.  Also, it was noted that “a bag of chips, unlike a purse, was not an ‘inherently private repository for personal items’ with distinct characteristics that tied it to a person; rather, it was often a receptacle for trash.” The Court also noted that “nobody had claimed control over the bag of chips at the time of the search.”  The shoes (containing the meth) presented a closer question for the Court in that it was unclear from the record who owned them and whether they were gender specific. However, since they were on the back seat, the Court held that it was objectively reasonable that (as with the chips bag) the parolee could reach back and hide contraband there. (The search of the purse was not litigated in that the syringe cap was not contraband and the defendant did not seek to suppress them.)  Comparing the instant case with Schmitz, the Court found the circumstances to be significantly different.  The Court ruled that “it does not appear objectively reasonable to believe the back search passenger, Olivia (the parolee), might have secreted a gun in the glove box after he saw the police.”  That is because to do so, it would have taken the involvement of both Clay, in the front passenger seat, and defendant, who had the key to the glovebox in his possession, using them to drive the car.  The “privacy interest” inherent in the contents of one’s glove compartment was also taken into account, as opposed to the chips bag and pair of shoes involved in the Schmitz case.  Neither Clay’s apparent nervousness (for which there could have been any number of reasons), nor his possible comment about not knowing whether there was a gun in the car, was found to be of any significance.  Finding the only relevant issue to be whether Olivia attempted to secret the gun in the glovebox after having noticed the police following them (as opposed to any prior time), the Court ruled that had he attempted to do so, it would have been more likely that he would have stuck it into a more accessible portion of the car (e.g., under the seat) than in a locked glovebox, therefore eliminating the need for assistance from the other occupants of the car.  With the key to the glovebox on the same key chain being used by defendant to drive the car, it was extremely unlikely Oliva tried to hide the gun in that glovebox.  The Court therefore reversed the lower courts’ conclusions on this issue, and remanded the case for further proceedings consistent with this ruling.

Unfortunately, Schmitz has come to be interpreted by many as justification to search the entire interior of a vehicle any time it is found that any occupant of that vehicle happens to be subject to a Fourth waiver.  If you’ve become any kind of a student of the rules of search and seizure, you have no doubt discovered it is never that simple.  For every rule, there are exceptions.  And for every exception, there are more exceptions.  If you go back and read Schmitz, you’ll discover that it is actually very limited in its holding, requiring searching officers to take into account the defendant’s privacy interests involved in the place being searched (e.g., a chips bag and a pair of shoes vs. something like a locked glove compartment as in this case), balancing it with the likelihood that a Fourth wavier subject would have chosen that particular place to secret some form of contraband.  Such a balancing occurred in this new case.  So what do you do when confronted with a Fourth waiver subject as the passenger in someone else’s car   You ask yourself:  Where is it reasonable to believe, under the existing circumstances, that he (the Fourth waiver subject) might have hidden contraband of some sort upon observing officers following the car he is in, all the while taking into consideration (i.e., performing a “balancing” act) the privacy interests of the driver/owner of the car.  Tough to do, certainly, particularly while considering the fact that you will be second guessed by judges who have a lot more time to consider the issues and do the necessary balancing act.  But that’s why you get paid the big bucks.  All you can really do is take your best shot and see where the chips fall.