BB&K Police Bulletin: Probation Search - “Search Terms” Allow Officers to Search Any Area Under Probationer’s Joint Control

Overview: A California appellate court recently ruled that a peace officer could search any part of a residence over which a probationer with “search terms” as a condition of probation had joint control or access. During the search of an apartment bedroom shared by a probationer, his girlfriend and their son, an officer saw a purse allegedly belonging to the girlfriend. Inside the purse was a makeup bag containing drugs and paraphernalia. The probationer had search terms in his probation conditions. The court found the evidence uncovered in the search admissible because the probationer had joint control over his girlfriend’s purse and other places in their shared bedroom and because of the search terms that permitted the search in the first place.

Training Points: This decision provides greater latitude for conducting probation searches pursuant to search terms. Given the current climate of Realignment brought about by AB 109, officers may be conducting more of these types of searches. The critical question is whether a probationer has “joint control or access” over areas and containers in the residence. To support the search, officers should clearly articulate the facts and circumstances that demonstrate this joint control or access. While this decision does not permit unrestricted access to all areas and containers in a shared residence, it does expand significantly the scope of probation searches pursuant to search terms. Though not specifically addressed by this case, presumably the logic would hold true for parole searches under similar circumstances.

Summary Analysis: In People v. Ermi, probationer Ronald Williams and girlfriend Brandy Ermi lived together in an apartment and shared the bedroom with their son. An officer entered the cluttered bedroom during a probation search and saw a purse on a chair in the center of the room. The officer searched the purse and found a makeup bag containing a vial of methamphetamine, a lighter and a pipe. The officer found more drugs and paraphernalia elsewhere in the room. Ermi said the purse was hers, but denied ownership of the makeup bag inside. Ermi claimed that the items should be suppressed because her purse was a “distinctly female” depository that could not plausibly belong to a male probationer. The court disagreed, finding that the officer could search any part of the apartment over which the probationer had joint control or access, which extended to the purse and the other locations where evidence was found. To rule otherwise would allow probationers to conceal contraband in places where those with joint control or access could withhold consent, and thereby defeat the probation search terms.

Follow-Up Contact: For questions regarding this case or its implications for your agency and public safety department, please contact Paul Cappitelli, BB&K’s law enforcement specialist, G. Ross Trindle, III, public safety attorney, or your BB&K attorney.

Topics:  Probation, Probationary Status, Right of Access, Search & Seizure, Search Warrant

Published In: Constitutional Law Updates, Criminal Law Updates, Privacy Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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