Probation Fourth Waiver Searches & Good Faith Belief in the Existence of a Fourth Waiver

• 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 ....