They do not give up their rights. Anyplace that the probationer or parolee does NOT have access to (such as a personal car or bedroom) should be exempt from search. Any common areas where the probationer or parolee HAS access to, IS subject to search. Typically these rooms are kitchens, living room, hallway bathrooms or adjoining bathrooms connected to the probationer or parolee's room, a garage, yard, etc. If a co-tenant has an area that the probationer or parolee does NOT have access to, then it should be exempt from search.
Originally Posted by justalayman
This is why (at least out here) probation and parole officers regularly meet with roommates of folks released on search conditions to tell them about it. I have rarely come across a situation where the roomies were not aware of the search conditions or the extent of the search ... they may not be happy about it, but usually they were aware.
It is commonly accepted practice everywhere I know. The alternative might be to restrict these folks to their own apartments, or, not to allow them out at all. If they can be free from search in their residences by hiding dope or contraband in the refrigerator, what would be the point?
If you happen to know of any cases (even on your circuit) to support yourself, I would really like to read them. I am just not able to get my head around what you are saying as being anything close to legal.
Here is the section discussed in CPOLS:
5. Joint Occupants
People who live with probationers/parolees cannot "reasonably expect privacy" in shared areas of the residence. (Pleasant (2004) 123 Cal.App.4th 194, 197.) Thus, an objection of the cotenant (roommate, spouse, etc.) cannot prevent you from conducting a search of the shared areas. However, you cannot search areas that are occupied or controlled exclusively by the cotenant. You must limit your search to those areas exclusively occupied by the probationer/parolee or those areas that are jointly occupied by the probationer/parolee and the cotenant.
Example: Pleasant lived with his mother, who was on probation with a search condition. Ms. Pleasant had a key to her son's locked room in which officers found a rifle under the bed. HELD: Because the probationer had access to the key to the room where the gun was found, the officers could enter and search that room under the authority of the probationer's Fourth Amendment waiver. (Pleasant (2004) 123 Cal.App.4th 194, 198.)
As for a specific item, you need some basis for thinking it belongs to or is under the control of the probationer/parolee in order to search it. This basis may be supplied by the surrounding circumstances. (Britton (1984) 156 Cal.App.3d 689, 700-703; Baker (2008) 164 Cal.App.4th 1152, 1159.)
Example: Officers searched a male probationer's residence pursuant to a valid search condition. During the search of the bedroom Smith shared with the probationer, a narcotics dog responded to a woman's purse on their bed. HELD: The search of the purse was lawful. The "question was not whether the purse was female or gender-neutral; the critical issue was whether the officers reasonably believed the item was one under [probationer's] control or one to which he at least had access." Once it was determined that the bedroom was linked to a criminal enterprise, the officers were reasonable in believing that the purse was another potential repository for narcotics, even if the purse was not jointly owned by the probationer. (Smith (2002) 95 Cal.App.4th 912.)
Example: Officers conducted a narcotics parole search of a small trailer after removing the male (the parolee) and his female companion (the defendant, who was not on parole or probation) to the main residence a few feet away. One officer picked up a brown leather "gender neutral" clutch-purse or handbag that was on top of the only bed in the trailer. The bed appeared to have been recently used by both occupants. The container was a type that the officer had seen both males and females use to keep drugs. He opened it and discovered methamphetamine, along with makeup and other "female" items. HELD: The officer's actions were proper because the object was not "distinctively female" (appearance is only one factor) and he had reasonable suspicion that it was owned, controlled or possessed by the parolee. The failure to inquire about ownership should never automatically invalidate a parole or probation search and was not unreasonable here. (Boyd (1990) 224 Cal.App.3d 736, 745-751.)
Example: Officer could not search a "female" purse located on the floorboard in front of the passenger seat when the driver was male and the passenger was female solely on the basis of the driver's parole search condition. The court found "nothing to overcome the obvious presumption that the purse belonged to the sole female occupant of the vehicle who was not subject to a parole-condition search. (Baker (2008) 164 Cal.App.4th 1152, 1159-1160.) (Note that this decision is inconsistent with existing precedent in its analysis and reasoning.)
Knowledge of the probation/parole search condition prior to a search is critical. In 1999, a divided California Supreme Court upheld the probation search of a residence jointly occupied by A and B where the police were looking for criminal evidence against A, a nonprobationer, and it was the roommate, B, who was on searchable probation. Because the police were aware of the roommate's probation condition and the search was limited to the areas under the probationer's exclusive or joint control, it was valid. (Woods (1999) 21 Cal.4th 668, 671-672.)
One year later, the California Supreme Court, in a unanimous decision, made "knowledge first" a requirement for "joint occupant" probation searches. (Robles (2000) 23 Cal.4th 789.) The court has extended this knowledge-first rule to searches of a parolee's residence. (Sanders (2003) 31 Cal.4th 318.)
Example: Evidence obtained against Robles during a warrantless search of his garage was suppressed and inadmissible despite the fact that, unknown to the searching officers, Robles' brother, who lived at the same residence, was on searchable probation. The officers were not aware of the brother's probationary status at the time they conducted the search. (Robles (2000) 23 Cal.4th 789.)
Example: Officers were investigating a domestic violence call in an apartment shared by Sanders (victim) and McDaniel (suspect). Sanders had a recent cut on her cheek, and McDaniel was observed hiding something metal behind the sofa cushion; both became verbally and physically abusive toward the officers. A protective sweep of the apartment followed, and a work boot full of rock cocaine was observed in plain view in an open closet. The officers learned of McDaniel's parole status after the protective sweep, which the court of appeal held exceeded its lawful scope. HELD: McDaniel's parole search condition could not be relied upon to validate the warrantless search. (Sanders (2003) 31 Cal.4th 318.)
Robles and Sanders reflect the California Supreme Court's concern that police might conduct "illegal" searches of jointly occupied premises, hoping to validate them after the fact by discovering that one of the occupants was on searchable probation or parole. Thus, whenever possible (and it was not possible or advisable inside Sanders' residence before the protective sweep), you should check the probationary or parole status of all suspects and any joint occupants before conducting the search.
Additionally, the Ninth Circuit requires that a parole search of co-occupant premises be supported by "probable cause to believe that the parolee is a resident of the house to be searched." (Motley (9th Cir. 2005) 432 F.3d 1072, 1080; Howard (9th Cir. 2006) 447 F.3d 1257, 1262.) Probable cause can be based on the parolee's reported address. (Motley (9th Cir. 2005) 432 F.3d 1072, 1082.)
Non-Association Condition. If a probationer has a "non- association" condition, it is proper for you to briefly detain those who are present or departing to check their felon status. (Matelski (2000) 82 Cal.App.4th 837, 846-853.)