What If My Roommate is On Probation? Can the Police Search Anytime?



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.

Questions? Leave a Comment.

About Attorney Christopher Dort

Public Interest Attorney. CA State Bar #196832. Licensed to practice law in California 1998, and then the US Federal District Court in 2000. Civil Litigation Trial Attorney (Insurance Defense Firms) 2000-2003. Private practice 2003 - present. First Solo Criminal Jury Trial 1998 (Santa Cruz County). First Civil Jury Trial 2002 (Orange County). Santa Cruz County Public Defenders Office 1996-1999 (law clerk). BA in Politics from UC Santa Cruz, 1995. JD, University of California, Hastings, 1998.
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10 Responses to What If My Roommate is On Probation? Can the Police Search Anytime?

  1. Cautionary Roomate says:

    So even with a rental agreement specifically outlining that my room is private and not accessible to the person on probation AND a lock on my door, if the police come to search will they have a right to access my room? It’s not so much that there is illegal activity going on it’s more that I’m worried that I’ll be at work one day and come home to find the door to my room kicked in. I know this is a somewhat complex situation but I feel that there must be some kind of proverbial “loophole” to keep the officers from kicking down the door to my private living area

  2. Cautionary Roomate says:

    I have a roomate that is on formal probation, I live I a seperate room, and am wondering if there is any way I can legally prove that my room is not under the “control and custody” of the probationer? Technically the house is under his name but if I have a rental agreement could I specifically outline that my room is a private area which could prevent officers from searching my room? I’m hoping that a lock on the door and a specific rental agreement would suffice! Any advice?

    • Cautionary,

      My advice? Make sure there is never any evidence of a crime in areas under your control. If there is illegal activity in the home, consider a new place to live.

      Realistically, if the cops come and search, they are going to search everywhere, probably. Having a specific retail agreement and lock will help you establish a defense later if you get tied up in something unfortunate.

  3. parental rights says:

    My son is on formal probation, he just met with his PO and she told him that he has search terms, my question is this, my 21 year old son and my wife and I enjoy a beer or a glass of wine from time to time, if they come to do a probation search and they want to look in the fridg do i have the right to enforce my 4th amendment? and if i say no to the search what can they do to me?

    • Parental,

      I believe beer and wine are legal in the US. I dont see the problem.
      ….Unless you are one of those citizens who just happens to keep the weed in the fridge and the LSD in the freezer. Dont laugh, it’s not that strange of a question, actually.

      People keep important chit in the fridge and freezer. Dope, Bribe Money (that was a good fridge 4th Amendment Case http://en.wikipedia.org/wiki/William_J._Jefferson_corruption_case ), body parts . . . it’s all been found in a fridge before.

      OK I get it. You dont want the fuzz in the fridge.

      Yes, you do have the right to claim your Fourth Amendment Protections, even if there is a parolee or probationer in your house.

      Common areas present a problem in the search law. You have a lowered expectation of privacy in the common areas, even if you dont know it. Get your son his own probationer only fridge. Exclude him from your fridge. Put a sign on it that says “No Trespassing, this is a Parental Only Fridge”.

      Remind your son that your name is now “Parental”. Tell your son the word “Parental” includes the word “RENTAL”.

      Sounds like a joke, but I am semi serious. Private areas that the probationer does not have access to have greater protection than common areas, such as a bathroom. A rental agreement with an adult child can outline private and common fridge areas.

      You never have to consent to a search. There are exceptions such as certain sensitive areas defined by law like airports, border crossings, court buildings, area 51 entry gates, etc. You can absolutely refuse to give permission for law enforcement search at your home without committing a crime. Will it stop them from searching? Who knows. Whether or not they search depends on the facts at the time as the (imaginary reasonable) officer sees them.

      Refusing to provide consent to search will preserve all of your defenses if you catch a case.

      If you consent to a search, you waive your Fourth Amendment Protections.

      What does the 4th Amendment say? Start here: ALL WARRANTLESS SEARCHES ARE PRESUMED ILLEGAL.

  4. tracy reedy says:

    i woke this morning to what sounded like SWAT coming through my front door. 4 Chico Police officers without a probation officer present, kicked in my front door beuase i didnt answer it in the time they allowed. i was asleep upstairs in my 1920s home and did not hear them knock. i had to slip some sweats on and forgot my glasses so i can see clearly, walked downstairs and had them shine flashlights in my eyes and point their handguns at my head. i informed them i just woke up and i was the only one here. they then cuffed me and pushed me into a chair, they walked around my house with weapons drawn. thank God my 9 yr old son wasnt here. i would have lost it. they searched more then just common areas and thought it was a joke that the door was kicked in. i’m still reeling from this morning and i am dedicated to follow all necessary avenues to whatever legal means to get this addressed.

  5. Dont know says:

    Could my roommates room be searched if im on formal probation and there is a look on there door?

  6. Marynn says:

    I found that so very helful and in words easy to understand thank you for that, but i have question what if the person on probation was just sitting in front of ther house doing nothing but talking with family and cops pass by thing hey they look like gang member so stop. It isnt untill they ask and run checks do they find out the perdon is on probatio and then decide to check the house where they find something belonging to another family member whos sharing his room said family member is present and tells the officers this as well yet they still refuse to believe that and arrest the probationer who had been doing nothing but spending the sunday evening with family when the police officers decided they wanted to so some profiling. Is their does the pobationer have NO rights here? Any help would be much appreciated. Sincerly MaryAnn H.

    • DortLaw says:

      Marynn,

      One of your sentences has about 80 words. This comment is really hard to understand. But I will try.

      “Is their does the probationer have no rights here?”

      I will try to re write it:

      “If you are on probation can the police just stop you on the street and search you and the place where you live?”

      Answer:

      When you are on probation, your rights are limited by court order. The extent of those limits depend on the nature of the “Terms of Probation”. If the terms of probation include “Search Terms”, as defense attorneys sometimes call them, the Probationer loses their right to be free from unreasonable searches and seizures that was – prior to probation – guaranteed to them under the 4th Amendment to the US Constitution.

      The question of whether or not the cops can search your room when you live in the same room with a person on probation is very complicated. Cannot be analyzed on these sample facts.

      Browse Our Attorney Drafted CA Self Help Forms

      Free Attorney Case Review


      Hope that helps. someone.

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