SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

Knock and Notice:
The “knock and notice” provisions of Penal Code §§ 844 and 1531 apply
to searches conducted pursuant to a probation or parole condition. (See
P.C. § 3061; People v. Rosales (1968) 68 Cal.2 nd 299, 303-304; People v.
Kanos (1971) 14 Cal.App.3 rd 642, 651-652; People v. Constancio (1974)
42 Cal.App.3 rd 533, 542; People v. Lilienthal (1978) 22 Cal.3 rd 891, 900;
People v. Mays (1998) 67 Cal.App.4 th 969, 973, fn. 4; People v.
Urziceanu (2005) 132 Cal.App.4 th 747, 789-792; People v. Murphy
(2005) 37 Cal.4 th 490.)
See “Knock and Notice,” under “Searches With a Search
Warrant,” above.
This includes the doctrine of “substantial compliance,” where forced entry
may be made so long as the “policies and purposes” (i.e., respecting the
right to privacy within the home and avoiding violent confrontations) of
the knock-notice rules have been satisfied. (People v. Montenegro (1985)
173 Cal.App.3 rd 983, 988-989.)
However, a court may not impose a waiver of the knock and notice
requirements as a condition of probation. (People v. Freund (1975) 48
Cal.App.3 rd 49, 56-58.)
Detentions, Patdowns and Arrests:
Detentions: A search and seizure condition justifies a detention without a
reasonable suspicion of criminal activity. (People v. Viers (1991) 1
Cal.App.4 th 990, 993-994.)
Patdowns:
Viers further held that it was irrelevant that the officers were
unaware of defendant’s probation status when the search was
conducted; a conclusion that has since been abrogated by People v.
Sanders (2003) 31 Cal.4 th 318. (See Myers v. Superior Court
(124 Cal.App.4 th 1247.)
See “Searching While In Ignorance of a Search
Condition,” above.
© 2012 Robert C. Phillips. All rights reserved
Old Rule: When the rule was that a parole search required at least
a “reasonable suspicion” of renewed criminal activity, a police
officer could not justify a patdown (frisk) search of a detained
suspect for weapons based upon the detainee’s status as a parolee
alone, in the absence of other suspicious circumstances furnishing
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