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Thread: PO's Authority

  1. #1
    mgainfla is offline Junior Member
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    PO's Authority

    What is the name of your state (only U.S. law)? KY

    My roomate is on probation. His parole officer has stated that I can not have any alcahol stored in my private room and that he has full authority to seach everything I own. This includes getting onto my computer and seeing where I have been searching.

    He has also stated that if I refuse to allow him to search my property he has the authority to tell me to vacate the property before his next visit.
  2. #2
    CdwJava is offline Senior Member
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    Quote Originally Posted by mgainfla View Post
    What is the name of your state (only U.S. law)? KY

    My roomate is on probation. His parole officer has stated that I can not have any alcahol stored in my private room and that he has full authority to seach everything I own. This includes getting onto my computer and seeing where I have been searching.

    He has also stated that if I refuse to allow him to search my property he has the authority to tell me to vacate the property before his next visit.
    I don't know that he can tell you to vacate the property, but if it is the roommate's apartment then he can likely find cause to have the roomie get you out.

    Is he on parole or probation? They are NOT the same thing.

    In general, the parole/probation officer can search anywhere that the parolee/probationer has access to. If you do not like being subject to these conditions, you may have to move or lock any alcohol up in a room or box that only YOU have access to.
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  3. #3
    justalayman is offline Senior Member
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    I understand you know much more about this than I do Carl but I cannot see how a PO can demand they be allowed to search the OP's computer. The OP has not agreed to anything and is under no court orders such as a search warrant so it would appear that a search of the computer would be a violation of OP's 4th amendment rights.

    Now, not allowing the search might be a problem for the parolee/probationer but that is another issue. Parolee/probationer cannot waive OP's rights from what I understand.

    as well, if the OP is a lessee, I see nothing that would allow a PO to demand OP leave the premises. OP is not under the same obligations as the parolee/probationer is.


    as to searching the OP's room; again, if it is considered OP's private room (for the legal sense of a search warrant) I see no way the officer can demand to be allowed to search. Again, it may present a problem for the probationer/parolee but the OP still retains their rights unless they waive them. yes?

    edumacate me on this if you will.
  4. #4
    Zigner is offline Senior Member
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    Put a password on the computer. Have the PO sit down and try to log in, he'll have to ask for the password. At that point our OP can state that, without the password, the PO has just as much access to the machine as the probationer
  5. #5
    CdwJava is offline Senior Member
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    Quote Originally Posted by justalayman View Post
    I understand you know much more about this than I do Carl but I cannot see how a PO can demand they be allowed to search the OP's computer.
    If the probationer or parolee has access to it, than so does the P.O. The roommate can either (a) move, or (b) kick out the probationer/parolee.

    I do not know the law in the OP's state but if it is similar to the law in CA the OP would have to show that the probationer/parolee had NO access to the computer at all. But, if the probationer/parolee manages to send any e-mail, or get on line then that statement would be suspect.

    as well, if the OP is a lessee, I see nothing that would allow a PO to demand OP leave the premises. OP is not under the same obligations as the parolee/probationer is.
    Like I said, I am not sure what can be done to compel the OP to leave, but, the officer could almost certainly tell the OP to get out of the wau or go to jail if he is raising a stink and interfering with the search.

    as to searching the OP's room; again, if it is considered OP's private room (for the legal sense of a search warrant) I see no way the officer can demand to be allowed to search. Again, it may present a problem for the probationer/parolee but the OP still retains their rights unless they waive them. yes?
    It is all about access. In my state if the probationer or parolee has access to the room, and that can be reasonably demonstrated, we can search it. This is one of the pitfalls of living with someone who is on probation or parole. It sort of becomes incumbent upon the people who live with the probationer or parolee to demonstrate that the probationer or parolee has no access.
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  6. #6
    CdwJava is offline Senior Member
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    Quote Originally Posted by Zigner View Post
    Put a password on the computer. Have the PO sit down and try to log in, he'll have to ask for the password. At that point our OP can state that, without the password, the PO has just as much access to the machine as the probationer
    You are assuming that the probationer or parolee does not have the password.

    One email from the probationer to anyone, a modification to a Facebook page, etc., and then the computer becomes suspect even if password protected. Hopefully the OP can do that and convince the officer that the probationer/parolee has not and will not have access to it.

    If they are searching for web sites it makes me wonder what kind of parole or probation this guy is on ... for what offense? Sex crimes, maybe? Fraud or forgery? Most of the time we do not bother to search computers unless there the past offense involved computers or info obtained online, unless we're looking for incriminating e-mails or some such thing.
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  7. #7
    Zigner is offline Senior Member
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    My earlier post was meant to be a bit tongue-in-cheek.
  8. #8
    CdwJava is offline Senior Member
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    Quote Originally Posted by Zigner View Post
    My earlier post was meant to be a bit tongue-in-cheek.
    I thought so ... I just wanted to make the clarification for others who might think that might be the end all get all of the situation.
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  9. #9
    justalayman is offline Senior Member
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    It is all about access. In my state if the probationer or parolee has access to the room, and that can be reasonably demonstrated, we can search it.
    while you say that, what can you do to a person such as the OP if they refuse to allow the search of the computer or a (legally defined) separate and private room even if the PO believes the parolee/probationer has access to it.

    The parolee is the person whose rights are suspended, not the other party. Regardless of what the officer claims to be a right, what legal support is there to show the PO does have that right?

    I suspect the OP's rights would override the PO's claim of a right to inspect as the OP has waived no rights by living where they do and the parolee has no actual control over the items I am referring to. As such, allowing a search on the mere basis of use, that would also mean a PO would have a right to search any building or vehicle the parolee would have entered or searched any computer the parolee had used. I don't think that would be correct. Consider the possibility the parolee uses a computer at work. Are you claiming the PO somehow has the right to search the employers entire computer system? I don't think they would.

    I just don't see how the lack of rights of the parolee can be enforced upon a person who still has their full rights, property the parolee cannot claim ownership or control over. It would be a violation of the actual owners rights.

    It is all about access. In my state if the probationer or parolee has access to the room, and that can be reasonably demonstrated, we can search it. This is one of the pitfalls of living with someone who is on probation or parole. It sort of becomes incumbent upon the people who live with the probationer or parolee to demonstrate that the probationer or parolee has no access.
    I know you are pretty good with court citations and I would have to believe that just such a situation has been challenged. Any citations come to mind?
  10. #10
    CdwJava is offline Senior Member
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    [QUOTE=justalayman;2594592]while you say that, what can you do to a person such as the OP if they refuse to allow the search of the computer or a (legally defined) separate and private room even if the PO believes the parolee/probationer has access to it.[/quote
    We can either go ahead and search it and suffer the possibility of a suppression motion later, or we can seize it and seek a search warrant, or we can remove everyone from the home and seek a search warrant that way. It depends on the law in the particular state in this area. The OP's state may allow greater access or lesser access with regards to roommates. I am operating under the assumption that the laws are similar.

    Understand that prior to the housing of someone on parole or probation, the roommates are often told about the conditions and what could happen. They then have the opportunity to accept the placement of the individual or not. So, in this instance one of two things likely happened. The OP moved in to a home already occupied by the probationer/parolee, or, the OP was previously informed of what might happen and is only now understanding what that conversation was about. And, I suppose it is possible that in KY the probation or parole officers do not discuss the placement with roommates before placement. That might make it harder to support an unwarranted search - at least the FIRST time. Now, the OP KNOWS what can happen and either needs to take steps to secure his property he does not want searched, or, he can find other living arrangements for himself or the parolee/probationer.

    Consider the possibility the parolee uses a computer at work. Are you claiming the PO somehow has the right to search the employers entire computer system? I don't think they would.
    No, but they might be able to search the computer terminal itself.

    I just don't see how the lack of rights of the parolee can be enforced upon a person who still has their full rights, property the parolee cannot claim ownership or control over. It would be a violation of the actual owners rights.
    That is why people who accept probationers or parolees are asked to do so with their eyes open. They can either accept the intrusion or reject it - and reject the probationer or parolee.

    I know you are pretty good with court citations and I would have to believe that just such a situation has been challenged. Any citations come to mind?
    For CA, yes, but not for the OP's state. Decisions of the 9th Circuit and the California courts would not be binding on the OP's state.

    The issue here is whether or not it is reasonable to conclude that the probationer or parolee had access to that room or area of the house. Searching the private bedroom of a person not on parole or probation should not be conducted unless there is some reason to believe that any of the property belonging to the person is stored in it. Most any other common room will be fair game.
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  11. #11
    justalayman is offline Senior Member
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    That is why people who accept probationers or parolees are asked to do so with their eyes open. They can either accept the intrusion or reject it - and reject the probationer or parolee.
    Now this suggests the people have in fact given permission for the searches and if so, I have no argument there but what about in a situation where the roommates have no control of the probationer living in the house?

    The other tenants in a house would have no right to refuse to allow the probationer to live in the house in a situation where they are roommates due to the LL renting multiple rooms in the house or if there was an existing lease before the probationer became a probationer.



    Especially if there was a situtation where the other people in the house did not have any control over who lived in the house, I cannot imagine anyway the officer's claim of rights could override the other parties constitutional rights.

    I think you might be walking on thin ice on some situations.
  12. #12
    CdwJava is offline Senior Member
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    If there is any reason to believe that the probationer or parolee has access to the room or areas in question, they are subject to search. Out here we are required to at least articulate good cause to believe that the parolee/probationer has access to the room and this might be difficult for private rooms. But, very often we are told, "Well, he has his jacket in my closet and he goes into the room to use the phone," that sort of thing and that os enough to give us access.

    If the officer searches something in a private room and finds contraband tied to a roomie, then the roomie can seek to suppress it and he might prevail.

    Common areas are, of course, subject to search. It is the private rooms that can be sticky wickets. Typically we do not search rooms that we cannot articulate access to by the parolee/probationer.

    So, the OP would be well advised to put a lock on his bedroom door and maybe move his computer into his bedroom. As long as the key to the room is not available to the probationer/parolee, then he should be okay.
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  13. #13
    justalayman is offline Senior Member
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    I'm sorry Carl but I cannot believe a person has somehow given up their rights simply by being associated with a probationer. It goes beyond all reason as a violation of that persons rights and subjects them to a search without PC. Even if the probationer had access to some private property of another, I just do not see it relieving that person of their rights.


    and although you speak of some possible evidence against the true owner might being able to be suppressed, I am speaking of the much more grievous offense of their rights actually being suppressed to begin. That in itself is the concern.


    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.
  14. #14
    CdwJava is offline Senior Member
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    Quote Originally Posted by justalayman View Post
    I'm sorry Carl but I cannot believe a person has somehow given up their rights simply by being associated with a probationer. It goes beyond all reason as a violation of that persons rights and subjects them to a search without PC. Even if the probationer had access to some private property of another, I just do not see it relieving that person of their rights.
    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.

    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.

    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.
    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?

    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.)
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  15. #15
    justalayman is offline Senior Member
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    thanks. Looks like I have some reading to do before anything else from me.

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