Search the Home of a Parolee Without a Warrant in California

The Fourth Amendment protects citizens from arbitrary and unreasonable searches and seizures. (People v. Souza (1994) 9 Cal.4th 224, 229.) A warrantless search of one's residence by the police is presumptively unreasonable "unless it falls within one of the narrow and well-delineated exceptions to the warrant requirement." (Flippo v. West Virginia (1999) 528 U.S. 11, 13; see also Katz v. United States (1967) 389 U.S. 347, 357.) The search of the home of a parolee subject to a valid search condition is one of those well-recognized exceptions to the warrant requirement. See: Samson v. California (2006) 547 U.S. 843, 852; Griffin v. Wisconsin (1987) 483 U.S. 868, 873-874 a "State's operation of a probation system, like its operation of a school, government office or prison . . . presents 'special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements"; People v. Reyes (1998) 19 Cal.4th 743, 752 as a convicted felon still subject to the jurisdiction of the Department of Corrections, a "parolee has conditional freedom -- granted for the specific purpose of monitoring his transition from inmate to free citizen. The state has a duty not only to assess the efficacy of its rehabilitative efforts but to protect the public, and the importance of the latter interest justifies the imposition of a warrantless search condition".) In California, once a law enforcement officer learns a suspect is a parolee subject to a valid search condition, the parolee and his or her residence may be searched, even in the absence of reasonable suspicion the parolee is engaged in criminal activity. (Samson v. California, supra, 547 U.S. at pp. 852-853, 857; People v. Reyes, supra, 19 Cal.4th at p. 754.) As the United States Supreme Court recently explained, a California inmate who elects to serve his parole period out of physical custody, subject to the legal custody of the Department of Corrections (Pen. Code, 3056), is given this "variation on imprisonment" in exchange for his or her express agreement to comply with various terms and conditions that would otherwise impinge on the privacy rights of nonincarcerated persons, including the right to be free from suspicionless searches or seizures. (Samson, at pp. 851-853; see also Pen. Code, 3067, subd. (a) as condition of parole, inmate must agree in writing to be subject to search or seizure by parole officer or other peace officer at any time with or without warrant and with or without cause.) Under those circumstances, the parolee cannot be said to have any "expectation of privacy that society would recognize as legitimate." Samson, at p. 852; see also Reyes, at p. 753 "The level of intrusion is de minimis and the expectation of privacy greatly reduced when the subject of the search is on notice that his activities are being routinely and closely monitored. Moreover, the purpose of the search condition is to deter the commission of crimes and to protect the public, and the effectiveness of the deterrent is enhanced by the potential for random searches. We thus conclude a parole search may be reasonable despite the absence of particularized suspicion."; People v. Sanders (2003) 31 Cal.4th 318, 333 when the officer is unaware of the parolee's status at the time of the search, after-acquired knowledge that parolee was subject to search condition will not justify search.) Thus, so long as the police officers know the parolee's status prior to conducting the search (Sanders, at p. 333) and the parole search is not conducted for an arbitrary, capricious or harassing purpose, the search of a parolee or his or her residence does not implicate the Fourth Amendment. (Samson, at p. 856; Reyes, at p. 753; People v. Middleton (2005) 131 Cal.App.4th 732, 738.) In California all parolees are subject by law to warrantless searches as a condition of their parole. (See People v. Willis (2002) 28 Cal.4th 22, 44; People v. Middleton (2005) 131 Cal.App.4th 732, 739; see also 3067, subd. (a) "Any inmate who is eligible for release on parole pursuant to this chapter shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause."; 3060.5 "Notwithstanding any other provision of law, the parole authority shall revoke the parole of any prisoner who refuses to sign a parole agreement setting forth the general and any special conditions applicable to the parole . . . and shall order the prisoner returned to prison.".)