SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

officer who refused to authorize a search given an articulable
reasonable suspicion of criminal activity ‘would have been derelict
in his duties,’” calling the parole officer is unnecessary. (People v.
Brown (1989) Cal.App.3 rd 187, 192.)
Note: Despite the lack, under California law, of any legal
requirement to contact the appropriate parole officer or
office before undertaking a parole search, the California
Department of Correction requests and recommends, in
instances involving the search of a parolee's residence or
business, that you do so anyway, for operational reasons as
well for reasons of safety and cooperation.
Federal authority, at least from the Ninth Circuit Court of Appeal,
may still be holding onto the theory that parole is a tool for parole
authorities for controlling parolees, and not something that local
law enforcement is entitled to use. (See United States v. Jarrad
(9 th Cir. 1985) 754 F.2 nd 1451, 1454; referring to a parole officer
who authorizes a search at the request of the police as the police
officers’ agent, or “stalking horse;” see also Latta v. Fitzharris (9 th
Cir. 1975) 521 F.2 nd 246, 247, and United States v. Hallman (3 rd
Cir. 1966) 365 F.2 nd 289.)
Searching While In Ignorance of a Search Condition: Whether a police officer
must personally know of a probation or parole search and seizure condition (i.e., a
“Fourth Waiver”) before conducting a search in order for the search to be later
declared “lawful” has been the subject of some debate.
Issue: When a police officer conducts a warrantless search of a person or
that person’s property or residence, which, as it turns out, is not supported
by probable cause and/or exigent circumstances, and then belatedly
discovers that the person being searched is subject to a probation or
parole-imposed Fourth Waiver, may the search still be upheld?
Earlier Case Law tended to lean towards finding such searches to be
lawful, at least if based upon a probation Fourth Waiver. (In re Tyrell J.
(1994) 8 Cal.4 th 68, 85; People v. Valasquez (1993) 21 Cal.App.4 th 555.)
When dealing with a “parole search and seizure condition,” the
courts were not so prone to excusing the officer’s failure to know
of the existence of a Fourth Wavier. (See In re Martinez (1970) 1
Cal.3 rd 641.)
© 2012 Robert C. Phillips. All rights reserved
Also, there was authority that an illegal arrest of someone subject
to probationary search and seizure conditions does not result in
suppression of any evidence recovered incident to the arrest, in that
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