California.
okay so my question is: if someone who lives in my house is on informal probation and just got recently incarcerated one night ago, can the police still do a probation search when they know the person is in jail. also considering shes on informal probation and they came at 1:30 am when there are young children in the house who have school the next day...
just wondering if i had any rights to not let them inside my house because she was in jail..
I have the sense that something was not properly done. I feel that the probation search was conducted at an unreasonable time, without justification. But I think the law in California allows for the search to be conducted at any time, and with or without reason. However, there must be "probable cause" to believe that the person subject to the Fourth Waiver does in fact live there". (United States v. Howard (9th Cir. 2006) 447 F.3rd 1257; see also Motley v. Parks (9th Cir. 2005) 432 F.3rd 1072, 1080-1082.) If the officer's knew that this individual was in jail at the time, they may have had the right to come search her belongings. But it might be argued that because the probationer was in jail, the new address of residency was the jail itself, and she no longer lived at the residence, and the police and probation officer were well aware of this fact? But the search was probably targeted at her belongings. The relevant questions are: (A) whether anything illegal was found which will be used to violate her probation or bring forth a new criminal charge? (B) Was any of your belongings searched? Because if they were, this would not be lawful and anything illegal found from your personal belongings would be suppressed. (C) Whether or not, in California, the probationer must be present in order for them to search the home? In some states, I believe this is a requirement?
Check this information out: "Idaho’s probation condition that a probationer submit to a search “at the request of” a probation officer means that the probation officer must tell the probationer that the search is going to occur. A search in the probationer’s absence was thus void. State v. Turek, 2011 Ida. App. LEXIS 11 (March 2, 2011)"
If this is not the law in California, it can never hurt to attempt to argue that it should be. Have the probationer demand that their attorney use the same legal standards employed by the Court in the Idaho case during the suppression of evidence hearing. Whereas, this is the only way that the law could possibly be changed for the better if California law does not support Idaho Court opinions. If, like Idaho, California has the requirement that the the probationer be present, you should be o.k., because they were obviously in jail and not present.
I also think you make a good point when you say that: "so even though shes already in jail, they can still come search the house?
so if shes in jail for 2 years and her probation is there they can still come 2years later to search knowing shes already incarcerated?" This makes sense. When is the moment that the residency at your home stops and the residency of the jail begins? Using this logic makes the Idaho Court authority cited above all the more persuasive.
DID THEY FIND ANYTHING ILLEGAL DURING THE SEARCH?
