From the Classroom
By Raymond Hill
Professor Emeritus, Santa Rosa Junior College
“Good Faith” in Probation Searches
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?
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 Fourth Amendment,” according to Peo. v. Robles (2000) 23 Cal. 4th 188.
Examples of Good Faith
The defendant was a suspect in a residential burglary. An investigating officer went to his motel room. The defendant declined consent to search his room. The officer radioed the dispatcher to determine if the defendant was subject to a probation search. The dispatcher relayed that the defendant was not subject to probation search. This information was in error – he was actually subject to a probation search. The dispatcher then erroneously told the officer that the defendant was on parole and subject to parole search. (The dispatcher had misread the computer readout). Based on this information, officers conducted a warrantless search of the room and recovered stolen property. An appeals court ruled the officer acted in “good faith” when he believed he was conducting a parole search when in fact he could have conducted a probation search. “To punish the responsible officer and the inept dispatcher in these circumstances creates a windfall for the defendant who was legitimately subject to a search condition.” See Peo. v. Hill (2004) 118 Cal. App. 4th 1344.
Based on a probation search clause, Orange County Sheriff’s Department deputies searched a defendant’s home and found child pornography. Later, it was discovered that when the Superior Court changed the defendant’s probation status, probation officials were not notified. In actuality, the defendant was no longer subject to a probation search. The appeals court ruled that “penalizing officers by excluding evidence due to errors by judges, magistrates, and court clerks cannot be expected to alter the behavior of police officers, who are in no position to question court directives.” When the Superior Court makes an error, “good faith” still applies. See Peo. v. Miller (2004) 124 Cal. App. 4th 216.
An Elk Grove police officer stopped a defendant’s vehicle for having faulty brake lights at 02:30 hours. The defendant did not have a driver’s license and identified himself as Marques Watkins, his brother’s name. The officer checked this information and found Marques Watkins was on probation with a search clause. A search recovered cocaine base under the driver’s seat. After an arrest, the defendant gave his true name and records showed he was also on searchable probation. The defendant could not benefit by his untruthfulness (“No one can take advantage of his own wrong,” Civil Code 3517). By misrepresenting his identity and probation status, he waived the opportunity to contest the probation search. (Peo. v. Watkins (2009) 170 Cal. App. 4th 1403).
A deputy conducted a probation search based on dispatch information that the defendant was on searchable probation for brandishing a weapon. He found a .22 rifle. Later, it was discovered the defendant’s probation had expired, though he was still on active probation with search conditions on a different felony case. Although the initial dispatch information was incorrect, the search was lawful because the defendant was still on searchable probation. (Peo. v. Wolfgang (2015) 210 Cal. App. 4th 1268).
Older Cases Explore Problems with Inaccurate Information
There are some older California rulings that held if an error is made by the probation department in failing to record or update accurate information in their files, there was no “good faith” reliance on inaccurate information. These decisions were based on the court’s analysis that probation is part of law enforcement and not the courts.
I offer two U.S. Supreme Court cases which under “Right to Truth-in-Evidence” (Article 1 Section 28 California Constitution; In re: Lance W. (1985) 37 Cal. 3d 873) would have precedence today about information received and acting in “good faith” under the Fourth Amendment with a records error by law enforcement, courts, or probation:
A Phoenix, Arizona, officer stopped a defendant’s vehicle for wrong-way driving in front of the police department. A computer check revealed an outstanding misdemeanor warrant and an arrest search located drugs. It was later learned the warrant had been recalled 17 days earlier but remained in the computer system due to a court clerical error. The High Court ruled the officer acted in “good faith” when relying upon the warrant information. The Exclusionary Rule exists to deter unlawful police conduct. A court clerk’s error would not serve to promote this purpose, per Arizona v. Evans (1995) 514 U.S. 1.
A Coffee County, Alabama, sheriff’s deputy arrested a defendant based on warrant information received from the Dale County Sheriff’s Department. An arrest search located a handgun and methamphetamine. A Dale County sheriff’s employee failed to locate the original warrant. She called the court clerk and learned the warrant had been recalled five months earlier, but sheriff’s records had not been updated. The High Court ruled the deputy relied in “good faith” on the information received, although it was based on a law enforcement error not a judicial mistake. “The arresting deputy did nothing improper,” “the error was a result of isolated negligence (a clerical mistake) attenuated from the arrest,” and “was not the result of a false entry or proven widespread inaccuracies in the sheriff’s warrant system,” Herring v. U.S. (2009) 555 U.S. 135 determined.
For additional discussion, see Bob Phillips’ “The Fourth Amendment and Search and Seizure: An Update,” 23rd Edition, March 2023, Pages 1865-1871, on LegalUpdates.com.
I’m of the opinion that the person being contacted or detained is not the best source of information for determining “searchable probation.” It takes only a few minutes on your MDT or through dispatch to confirm a probation search condition through Superior Court files or the DOJ Supervised Release file. If the information turns out to be erroneous, you can fall back on “good faith.”
Thanks to Deputy Chad Pearlson, Sonoma County Sheriff’s Office, for offering up this question.