• Probation Fourth Waiver Searches and the Common Authority Theory
• Vehicle Searches and a Passenger’s Fourth Waiver
• Good Faith and Fourth Waiver Searches When the Waiver is Later Invalidated

(1) Upon finding that a passenger in a motor vehicle is on searchable probation, an officer may search those areas of the car's passenger compartment where the officer reasonably expects that the probationer could have stowed or discarded items after noticing police activity.  The fact that the probationer had just left the car when contacted is irrelevant, at least so long as she is still so close to the car that she continues to have access to it.  (2) An officer’s good faith belief that a suspect is subject to a Fourth waiver justifies a search even though an appellate court later determines that the Fourth waiver is invalid.

In late 2012, defendant Anthony Paul Maxwell was shacking up with a fellow-doper by the name of Christy Scarbrough.  Scarbrough, it seems, had four outstanding arrest warrants and was on searchable probation at the time.  On December 17th, officers received an anonymous tip that Scarbrough would be located at a particular location.  Going to that location, the officers found her just as she was exiting defendant’s car, and arrested her.  Defendant, sitting in the driver’s seat, was contacted by one of the officers who noted that he had several old injection marks on his forearms and a small patch of soot on his pants that the officer believed came from the underside of a drug user’s “cooking spoon.”  In talking to defendant, it was learned that he had a criminal history for robbery, had a knife in the trunk, and that Scarbrough had left a cigarette pack in his vehicle.  Using Scarbrough’s Fourth waiver status as their legal authority, the officers searched defendant’s car and found multiple used hypodermic needles under the driver’s seat, a spoon with soot on its underside and brown residue on its inside, a digital scale, multiple cell phones, and 25.9 grams of black tar heroin.  Defendant was arrested and his person searched incident to arrest, resulting in the recovery of $690 in cash, a counterfeit $100 bill, a motel room key, and 0.959 grams of a substance the officer believed was a narcotic.  Still using Scarbrough’s Fourth waiver status as their legal authority, the officers conducted a warrantless search of their nearby motel room, finding, among other things, multiple used and unused hypodermic needles and some large balls of black tar heroin.  Defendant was booked on charges of heroin possession with the intent to sell, and the possession of drug paraphernalia.  He was released on bail several months later while the above charges were still pending.  But then in August, 2013—months after his initial release—the judge had second thoughts about defendant’s bail conditions and decided to add a Fourth-waiver requirement, telling defendant that “[y]ou don't get to have pending controlled substances cases and not have search conditions.”  Defendant accepted the search conditions “over objection and (under) duress.”  However, in 2014, the Appellate Court struck those search conditions, finding that the trial court had failed to sufficiently show that they were warranted under the circumstances.  (See In re Maxwell (Sept. 29, 2014, C075314) [nonpub. opn.].)  But before this ruling (i.e., while he was still subject to the later-struck search conditions), defendant found himself in hot water again.  On September 18, 2013, an officer, relying on defendant’s bail release search conditions, searched his person, car, and home.  Forty-four methadone pills, packed in four separate plastic bags, were recovered, resulting in his arrest for possessing the methadone with the intent to sell.  The District Attorney consolidated defendant’s two cases, charging him with a multitude of drug-related offenses.  Defendant filed two separate motions to suppress, one for each arrest, both of which were denied by the trial court.  After his conviction by a jury and upon being sentenced to prison for 13 years, defendant appealed.

With a modification to defendant’s sentence, the Third District Court of Appeal affirmed.  On appeal, defendant raised issues related to both the December 17, 2012, and the September 18, 2013, searches. 

(1) The December 17, 2012, Search of Defendant’s Car, Person, and Motel Room:  Defendant first argued that the search of his car was illegal, and as a result (under the “fruit of the poisonous tree doctrine”), the subsequent searches of his person and his motel room were also illegal.  The Court disagreed.  Pursuant to the Fourth Amendment, the general rule is that for law enforcement officers to conduct a search, a search warrant is required.  An exception to this rule is when the subject of the search is on “searchable probation;” i.e., as a condition of probation, he or she has waived his or her Fourth Amendment rights and agreed that law enforcement may search him or his property without a warrant; commonly referred to as a “Fourth waiver.”  (People v. Woods (1999) 21 Cal.4th 668.)  Of particular significance in this case was the fact that as of December, 2012, it was not defendant who was subject to search and seizure conditions, but rather his passenger; Christy Scarbrough.  But this fact does not protect defendant when the search occurs while she is in his car.  In Woods—a residential search case—the California Supreme Court talked about what is known as the “common authority” theory of consent. Pursuant to this theory, anyone with common authority over a residence can consent to the search of that residence.  When that “consent” is based upon a resident’s Fourth waiver, anyone who lives with him (or her) runs the risk of having any of the common areas of the residence searched (thus excluding areas that are exclusively under the control of the subject who is not subject to a Fourth waiver).  In searching those common areas, should evidence be found that is attributable to the person who is not subject to the Fourth waiver, then that evidence, having been lawfully recovered, is admissible against him in later court proceedings.  The California Supreme Court subsequently extended this theory to automobile searches (People v. Schmitz (2012) 55 Cal.4th 909), holding that there is a lesser expectation of privacy in one’s car than in his home.  Schmitz also extended the Woods rule (which involved a probation search) to parolees.  In Schmitz, the California Supreme Court held that an officer may search “those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when (he or she becomes) aware of police activity.”  This includes (but is not necessarily limited to) “the space at his or her feet, in the door pocket, or in the backseat.”  In this case, therefore, the officers’ search of defendant’s car, looking in those areas where the officers might reasonably have expected Scarbrough to have secreted contraband, was legal, despite the lack of any express consent from defendant.  At least one court has extended the Schmitz rule—a vehicle search where the defendant was a parolee—to vehicle searches where the passenger is a probationer on “searchable probation.” (See People v. Cervantes (2017) 11 Cal.App.5th 860.)  The Court here agreed with Cervantes.  Defendant also argued that none of the above applied to the search of his car in that Scarbrough had gotten out of his car when the officers contacted her.  The Court found this fact to be irrelevant, so long as she “was still so close to the car” at that time, that she “still had access to it.”  Based upon all of the above, the search of defendant’s car was lawful.  As such, neither the search of defendant’s person nor the search of his motel room were the products of an unlawful search.  Evidence recovered from defendant’s car, his person, and his motel room, were therefore properly admitted into evidence against him. 

(2)  The September 18, 2013, Searches of His Person, Car, and Home:  Defendant’s argument here was that even though the 2013 searches were premised upon his own Fourth Amendment waiver (which, if you remember, he gave under protest), that waiver was subsequently held to be invalid by the appellate court.  Any evidence recovered as a result of that invalid waiver, therefore, should have been suppressed.   The Court disagreed.  While the Exclusionary Rule was at one time strictly applied, more modern cases have held that not all violations of the Fourth Amendment require the suppression of the resulting evidence.  Suppression is warranted only in “those instances where its remedial objectives are thought most efficaciously served.”  (Arizona v. Evans (1995) 514 U.S. 1, 11.)  Thus, “courts have applied the (exclusionary) rule only when it would ‘yield “appreciable deterrence” and where the benefits of suppression “outweigh its heavy costs (of suppression)”’” (Davis v. United States (2011) 564 U.S. 229, 237.)  In this case, the officer who searched defendant, his car, and his home, was relying in “good faith” on the fact that defendant had waived his Fourth Amendment rights as a condition of his release pending trial.  The officer had no way of knowing that that waiver would subsequently be invalidated by an appellate court.  Suppressing the resulting evidence, therefore, would not serve any “remedial” purpose, and, as such, is unwarranted in this case.

The Court doesn’t go into a lot of detail about what areas of defendant’s car were subject to search in the 2012 search (based upon Scarbrough’s Fourth waiver), mentioning only “the space at (the probationer’s) feet, in the door pocket, or in the backseat.”   But the California Supreme Court, in Schmitz, addresses this issue.  Per Schmitz, a warrantless search is lawful when it involves those areas of the passenger compartment of a vehicle where an officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity, as well as a search of personal property located in those areas, so long as the officer reasonably believes that the parolee owns those items or has the ability to exert control over them. (Id., at pp. 926-928.)  This obviously excludes the trunk and engine compartments of the car, but pretty much opens up just about everywhere else in the passenger area, both front and back seat.  Also remember that while all parolees are subject to Fourth waivers (not having a choice, it being automatically imposed upon release from prison:  Cal. Code of Regs, Title 15, § 2511; P.C. § 3067(b)(3)), not all probationers are.  As highlighted by the fact that defendant’s Fourth waiver imposed upon his release from his first arrest in this case was struck by an appellate court, a trial court wishing to put a probationer on a Fourth waiver must be able to provide reasons on the record as to why a Fourth waiver is appropriate to the circumstances of the case.  So you cannot just assume that a probationer is subject to a Fourth waiver; you have to check.  And while checking via a police radio is certainly preferable, simply asking the person may be enough so long as he admits it, in that all you really need is an “objectively reasonable belief” that he’s subject to a Fourth waiver.  (See People v. Douglas (2015) 240 Cal.App.4th 855, 868-869.)