Do You Understand the Legal Boundaries of Probation Searches? A Key Court Ruling May Help

By Robert Phillips, Deputy District Attorney (ret.)  

Legal Issues and Case Law

• Probation Fourth Amendment wavier searches of a residence 
• Probable cause to believe a probationer lives at the residence being searched 
• A federal evidentiary hearing on a motion to suppress 
• Probable cause vs. reasonable suspicion standard of proof 

Rule: For a warrantless probation search of a probationer’s residence to be lawful, it is required that officers have probable cause to believe that the probationer lives there. An evidentiary hearing on a motion to suppress in federal court is not required absent a showing that contested issues of fact exist.  

Note: Some authorities argue that the “reasonable suspicion” standard, rather than “probable cause,” is the correct standard of proof. 

Facts: In Nov. 2018, an anonymous tipster reported to the Los Angeles Police Department that a person named Ryan was selling drugs out of 14436 Emelita Ave., Apartment B, in Van Nuys. The tipster also reported that Ryan drove a red convertible Ford Mustang. LAPD Officer Giovanni Espinoza was assigned to investigate the tip. By researching law enforcement databases, Officer Espinoza determined that a subject named Ryan Beau Patrick Barry, the eventual defendant in this case, was subject to post-release community supervision stemming from felony firearm and drug convictions. Pursuant to the terms of his supervision, Barry had waived his Fourth Amendment rights, making him subject to the warrantless search of his person, property and residence. However, Officer Espinoza also found that Barry had listed a different residential address with his probation officer than the Emelita apartment. It was further discovered that Barry did not possess a valid driver’s license and that it was illegal for him to be driving a motor vehicle at the time.  

Intent on determining whether Barry was the “Ryan” referred to by the tipster, Officer Espinoza checked out the Emelita apartment. He observed a red convertible Mustang parked close to a walkway that led to the apartment. As Officer Espinoza watched the Mustang, Barry appeared in the walkway and got into the car. Officer Espinoza ....