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LU Ref# CAI00011
June 17, 2021
Author Ref. No: Vol 26 No. 7
LU Ref# CAI00011
June 17, 2021
Author Ref. No:   Vol 26 No. 7

Robert Phillips
Deputy District Attorney (Retired)

“Part of me says; ‘I should stop drinking this.’ But the other part of me says’ ‘Don’t listen to him, he’s drunk.’”
Probation Fourth Waiver Searches & Good Faith Belief in the Existence of a Fourth Waiver
COURT CASE REFERENCE: People v. Maxwell (Dec. 11, 2020) 58 Cal.App.5th 546

(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.