Exclusionary Rule in a Probation Search

In People v. Ferguson (2003) 109 Cal.App.4th 367, the Third District Court of Appeal held the exclusionary rule applied to deter misconduct by probation staff who were acting as an adjunct to law enforcement. (Ferguson, supra, 109 Cal.App.4th at p. 370.)

In that case, a police officer conducted a probation search in reliance on erroneous information, obtained from a dispatcher, that the defendant was on probation for a drug offense. The dispatcher obtained the information from a database maintained by the California Department of Justice, which the probation department was responsible for updating when the defendant's probation ended early.

The probation department's failure to update the database was due to either a clerical error or an unawareness of the requirement to input early terminations into the database. (Id. at pp. 370-372.)

The issue before the court was whether the exclusionary rule applied when the probation department was responsible for the error. (Ferguson, supra, 109 Cal.App.4th at p. 372.)

The court concluded there was "little meaningful distinction" between probation officers and parole officers based on factors the California Supreme Court found significant in People v. Willis (2002) 28 Cal.4th 22. (Ferguson, supra, 109 Cal.App.4th at p. 374.)

The court noted that like parole officers, probation officers are peace officers under Penal Code section 830.5, and may enforce probation conditions, which sometimes include search conditions. (Ferguson, supra, 109 Cal.App.4th at p. 374.)

The court further noted the United States Supreme Court, in Cabell v. Chavez-Salido (1982) 454 U.S. 432, 433, 443, 446-447, had referred to both probation and parole officers in parts of its discussion of peace officers, as well as to the broad authority, discretion and significant police powers of probation officers. (Ferguson, supra, 109 Cal.App.4th at p. 374.)

The Ferguson court acknowledged that exercise of a probation officer's authority is sometimes more consistent with a judicial or educational role than a police one, and adult probation officers have significant ties to the court. (Ferguson, supra, 109 Cal.App.4th at p. 375.)

The court explained that notwithstanding those ties, "the probation officers and employees' significant responsibilities to enforce the law and assist law enforcement distinguish them from ordinary court employees, such as those at issue in Arizona v. Evans (1995) 514 U.S. 1." (Ibid.)

The court noted that although both probation and parole officers share an interest in rehabilitating their charges, this does not diminish their law enforcement roles since probation officers, like parole officers, "sometimes '"act like police officers and seek to uncover evidence of illegal activity"' and '"are undoubtedly aware that any unconstitutionally seized evidence that could lead to an indictment could be suppressed in a criminal trial."' (Willis, supra, 28 Cal.4th at p. 41....)

Under these circumstances, failure to apply the exclusionary rule "'would greatly increase the temptation to use the parole officer's or, in this case, the probation officer's broad authority to circumvent the Fourth Amendment."' (Willis, supra, 28 Cal.4th at p. 42 ...)." (Ferguson, supra, 109 Cal.App.4th at p. 375.)

The Ferguson court also concluded that due to the particular role of the probation department's clerical staff in entering and maintaining the type of records the police relied upon, the staff was also an adjunct to the law enforcement team. (Ferguson, supra, 109 Cal.App.4th at p. 376.)

The court stated "the probation department's employees have significant responsibilities with respect to record keeping and the dissemination of information. Their activities support and benefit not only the probation officers, but other law enforcement agencies." (Ibid.)

The court noted probation officers supervising an individual on probation are required by statute to keep written records of information about those individuals which must be open to police inspection, and because the probation department's clerical staff was responsible for entering and maintaining records in the database, which was used to assist law enforcement and operated by the Department of Justice, the probation department had an established relationship with other law enforcement agencies that was designed to support their activities. (Ibid.)

In reaching its conclusion, the Ferguson court distinguished In re Arron C. (1997) 59 Cal.App.4th 1365 (Arron C.), a pre-Willis case in which Division Five of the First Appellate District held the exclusionary rule was inapplicable where police had searched the defendant in reasonable reliance on erroneous information obtained from a juvenile probation officer that the defendant was still on probation. (Arron C., supra, at pp. 1367-1368.) In that case, the original source of the information was faulty computer records in the juvenile probation office, but no explanation was given for why the records were erroneous. (Id. at p. 1370.)

The appellate court concluded the exclusionary rule should not be applied to juvenile probation officers for the following reasons: (1) since in general law counties the juvenile probation office is, in effect, an arm of the juvenile court, as the juvenile court judge appoints probation officers who serve at the court's pleasure, there is no reason to subject probation officers to a rule designed to deter illegal police conduct; (2) it was not aware of any evidence suggesting "juvenile probation officers are 'inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion'"; and (3) applying the exclusionary rule would not have a significant effect on juvenile probation officers responsible for informing police about the status of juvenile probationers because probation officers are more like the court employees identified in Evans who have no stake in the outcome of particular criminal prosecutions than adjuncts of law enforcement, and the remedies of discipline or dismissal would be more likely to encourage juvenile probation officers to provide police with accurate information. (Arron C., supra, 59 Cal.App.4th at p. 1371.)

The Arron C. court pointed out it was not holding that a probation officer never may be deemed an adjunct to law enforcement, explaining that "if a probation officer becomes enmeshed in law enforcement activities, such as if he actively participates in a search, it would be appropriate to conclude he is an '"adjunct to the law enforcement team"' and, thus, apply the exclusionary rule." (Arron C., supra, 59 Cal.App.4th at p. 1372.) The court noted there was no evidence the probation officer involved in that case initiated, encouraged or actively participated in the search. (Id. at pp. 1372-1373.)

In refusing to follow Arron C., the Ferguson court explained that "a significant part of the rationale underlying Arron C. ... appears to have been undermined by Willis, supra, 28 Cal.4th 22. Juvenile probation officers, like adult probation and parole officers, have significant law enforcement responsibilities, as explained in Penal Code section 830.5. Nevertheless, the appellate court apparently accorded this factor little weight and devoted little discussion to it. On the other hand, the dissenting justice in that case emphasized the 'dual role' of a juvenile probation officer as 'a peace officer as well as an aid to the juvenile court.' ( Arron C., supra, at p. 1378 (conc. & dis. opn. of Jones, J.)" (Ferguson, supra, 109 Cal.App.4th at pp. 378-379.)

The Ferguson court also noted two potential distinctions between Arron C. and its case: (1) Arron C. involved a juvenile probation office where the probation officers were appointed by and served at the juvenile court's pleasure, while the adult probation office of Placer County, where the Ferguson case originated, was less an arm of the court because the court, although having the power to appoint the chief probation officer, did not have the power to appoint and remove individual department employees; and (2) in Ferguson, the source of the erroneous computer information was shown to be a database operated by the Department of Justice to assist law enforcement, and by participating in the database, the probation department plainly was acting to further law enforcement objectives and act as an adjunct of the law enforcement team. (Ferguson, supra, 109 Cal.App.4th at p. 379.)