SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

juvenile court probation system. In an adult prosecution, whether
of a parolee or a probationer, and irrespective of whether it is the
subject’s home or person (or, presumably, his vehicle or other
personal possessions) that is being searched, not knowing of a
Fourth Amendment search and seizure condition will preclude
the use of such a waiver to save an otherwise illegal search.
(People v. Bowers, supra, at pp. 1268-1269.)
Myers v. Superior Court (2004) 124 Cal.App.4 th 1247, is in
accord, noting the Tyrell J. is limited to probation searches
of a juvenile.
But the Fifth District Court of Appeal went even further and took it
upon itself, in effect (without specifically stating so), to overrule
Tyrell J. and hold that a juvenile probationer, searched illegally, is
protected by the rule of Sanders: An officer cannot rely upon a
Fourth Wavier that he didn’t know about at the time of the search.
(In re Joshua J. (2005) 129 Cal.App.4 th 359.)
Since Sanders, courts have consistently ruled against the legality
of searches done when the prosecution attempted to validate the
search under the theory that the officer belatedly discovered that
the defendant was subject to either probation or parole search and
seizure conditions:
Searching law enforcement officers must be aware of a
juvenile’s waiver of his or her probationary search and
seizure rights when searched after being stopped in a motor
vehicle. (People v. Hester (2004) 119 Cal.App.4 th 376,
392-405.)
An otherwise illegal search of a residence is not saved by a
belatedly discovered probation Fourth Waiver search and
seizure condition. (People v. Bowers (2004) 117
Cal.App.4 th 1261; see also People v. Lazalde (2004) 120
Cal.App.4 th 858; a decision out of the Sixth Appellate
District, involving an adult probationer and a motel room.)
The illegal search of an adult on the street, where it was
belatedly discovered that he was on a probation Fourth
wavier, is not made retroactively valid. (People v.
Hoeninghaus (2004) 120 Cal.App.4 th 1180.)
It is irrelevant whether the Fourth Waiver is based
upon a probationary, or a parole, search and seizure
© 2012 Robert C. Phillips. All rights reserved
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