When Are You – or When Are You Not – Acting in Good Faith in Probation Searches?

From the Classroom  
By Raymond Hill  
Professor Emeritus, Santa Rosa Junior College 

“Good Faith” in Probation Searches 

Question 

During field questioning, a subject contacted or detained tells you that he has a probation search condition. You search and locate contraband. You discover later that the subject’s probation was terminated early, but the subject was unaware of this change. Will any evidence discovered be admitted, presuming you were you acting in “good faith” on the subject’s statement   

Discussion 

The case law is clear that an officer or deputy must have actual knowledge of an existing probation search condition at the time of a search, or any evidence will be suppressed. The discovery of a probation search clause “after the fact” cannot rehabilitate a Fourth Amendment act. There is no “good faith” under these circumstances. Below are some good cases on each side of the “good faith” issue. 

Examples That Don’t Meet Good Faith  

A sheriff’s deputy observed the defendant standing outside a suspected “chop shop.” The deputy performed a pat search and discovered methamphetamine and a pipe in the defendant’s pocket. The defendant was on probation with a search clause, although the deputy was unaware of that at the time of the search. There were no “Terry factors” to justify a frisk, and the deputy had no knowledge of the probation condition before conducting the search. The evidence was suppressed. (Peo. v. Bowers (2004) 117 Cal. App. 4th 126.) 

A victim observed the defendant driving the victim’s stolen car. When police arrived, the defendant was arrested, but the car was not in view. One officer went to a garage behind an apartment the defendant jointly shared with his brother. He peered through a small hole in an aluminum door and the stolen car was observed and recovered. The defendant’s brother had a probation search clause, but this information was not known to officers at the time of the search. “By entering Apartment C’s garage with no warrant and no awareness of the brother’s advance consent to probation searches, police violated the ....

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