Roommate or housemate on Probation? You may be wondering: “OMG, can the police just come into the house at any time and search the whole place without notice or permission?” The answer to that question really depends on what type of probation the person is on, and what sort of terms are attached to it.
|Criminal or traffic court Probation is really a set of court orders that a person must comply with to prevent future trouble with the court. Probation can be a custom set of court orders, or a standardized set of orders, or “probation terms”, such as those that come with most first offense DUI cases. |
Most states, including California, have 2 main types of probation: 1) informal probation (or “court” probation); and 2) formal probation.
Information Probation usually does not include active supervision by the court or a probation department. Generally, informal probation is really just a list of things to do with deadlines, and things to stay away from. This kind of probation is commonly found in misdemeanor criminal cases (such as a first offense DUI in CA). It usually DOES NOT AUTHORIZE unannounced searches of a probationer’s home, unless there is a specific term allowing it.
Formal Probation is different than the typical misdemeanor probation. It is most often applied to felonies, and is usually actively managed by teh court or, as in CA, a county probation department. Common terms of Formal Probation will include regular drug testing, and in many cases, a “Search Term”.
The “Search Term” of a formal probation will commonly allow sudden, unannounced searches of a probationer’s home and person by police or other law enforcement. When there is such as search term, the term itself will list the limitations of it’s reach (called “scope”). In effect, the Search Term takes the Defendant’s 4th Amendment Right to be Free from Unreasonable Searches and Seizures away, and removes the need for permission to search.
So what if you live with a person who is on probation with a “Search Term”? Do you have to worry about the cops finding your bong in your own personal home made bong shelter in the middle of the night?
Some search terms only allow searches for specific things – like maybe animals in a case of animal hoarding, or maybe only drugs in a case with drug offenses.
A typical search term reads as follows:
The defendant hereby consents to a search of person, vehicle, residence, business, or any personal or real property under the defendant’s control for whatever item is prohibited, by a peace officer or probation officer, at any time, with or without a search warrant, warrant of arrest, or reasonable cause.
This means the probationer, as well as their property, is subject to search. But it also limits the search’s scope to those areas where the probation may have access to.
The search of the property can be done without the probationer being present, and entry into a house can be made without permission of housemates.
Failure to comply with the search term, like any other term or condition of probation, could result in a violation of probation. If the probationer is found in violation of probation, additional sanctions, including custody time is possible.
In general, according to the Ventura County Probation Department (which we use as a random, general, non specific example) the searches are done between the hours of 7:00 a.m. and 10:00 p.m. As the searches are done to determine compliance with the terms and conditions of probation, they are unannounced. The scope of the search is confined to “common areas” and those areas under the “custody and control” of the probationer. “Common areas” are those places to which anyone has access, like a living room or kitchen. (Source. This will vary from area to area).
The bottom line is that being on probation alone does not mean sudden unannounced searches are possible. Most common forms of misdemeanor probation are informal court probation that do not include “Search Terms” that would take away a Defendant’s 4th Amendment Right to Be Free From Unreasonable Searches and Seizures.
But more serious forms of probation and formal probation may include a “Search Term” that does take away a Defendant’s 4th Amendment Rights. If a person is on probation with a “search term”, the text of that term will spell out its scope and limitations.
What if a person is not sure whether or not their probation includes a “search term”? All defendants who are placed on probation are forced by the court to accept the terms of probation after confirming that they have head, been given, and understand the terms of probation. This means that all probationers should have court paperwork that lists all of the terms of probation. If a “search term” is not specifically listed, chances are that it is not included in the probation.
A probationer may also contact the court clerk (or probation department clerk) for the court where the case was heard to check on the terms of probation.
*This article does not address PAROLE, with is a completely different thing.
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