Legal Question in Criminal Law in California

Whether or not there was probably cause, your boyfriend has a serious charge against him and definitely needs to get a criminal defense lawyer to represent him.

The term fourth waiver as used in the context of your question is referring to someone who is either on Parolee or on Probation. All parolees are fourth waivers until they have successfully completed Parole. Some Probationers are also considered fourth waivers when one of the terms and conditions of probation is they are on "searchable probation." Basically, they have waived the right to object to being subjected to searches and seizures by any law enforcement agency. So the general standard regarding probable cause as applied to the fourth amendment does not apply either.

In regards to someone on Parolee the law changed around 1996 and there are two different statutes that must be considered. If someone was placed on parole before January 1, 1997 the controlling statute is California Code of Regulations, Title 15 section 2511. It basically provides that someone on parole, their residence and any property under their control may be searched without a warrant at any time by any law enforcement official or officer. If someone was placed on Parole after January 1, 1997 the statute to follow is California Penal Code, section 3067(a). It provides that any inmate released on parole must 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." ( the agreement in writing is put into place before they are released) In other words law enforcement can search any person currently on parole any time they want to.

Now under Probation it is a little different but not much. California Penal Code, section 1203.1 provides that a fourth waiver condition of probation will be upheld unless: the waiver has no relationship to the crime for which the offender was convicted; and the waiver related to conduct that is not in itself criminal, and the waiver is not reasonably related to preventing future criminality. So under probation their some slight gray areas but not many. Basically, law enforcement once they come into contact with someone on probation can search without a reason. In regards to coming into contact with someone, they don't need much of a reason to come into contact with that person. However, when someone is on probation the court may have limit the conditions to the search and seizure. So the specific terms and conditions of probation must be reviewed with the specific facts of the incident taken into consideration before a determination can be made as to the legality of the search.

Next, In your question you stated the officer told you that your boyfriend gave him or her permission to go into the trailer. The officer did not need permission or consent. The officer is also not required to tell you the truth regarding his or her reason for proceeding inside unless the trailer was yours and not your boyfriends and you were not on searchable probation or on parole. Now, if the officer simply asked can I go inside and search and he or she was given permission to do so, then consent was granted. However, it is impossible to give you an accurate analysis in this forum and without asking more questions to gather more specific information. I strongly suggest you immediately contact a criminal defense attorney in your local area and at the very minimum seek an initial consultation. Your boyfriend is in a very serious situation and he needs a criminal defense attorney. This communication does not create an attorney-client relationship between the parties. There is also no attorney client privilege regarding this communication. The information provided is based on general legal principles and should not be considered legal advice. If you can not find a criminal defense attorney, I suggest you contact the local county bar association and get ask for some contacts for criminal defense from their referral list.

Good Luck,

Brian McGinity