Can My Probation Officer Search My House Without a Warrant?

Probation Searches in Pennsylvania

Can A Probation Officer Search My House While I Am On Probation or Parole? 

An issue that frequently comes up when litigating motions to suppress in drug and weapons cases is whether the police or probation department need a search warrant to search the house of a someone who is on probation or parole. In general, both the United States and Pennsylvania Constitutions require law enforcement officers to get a search warrant before conducting a search of a private residence. However, there are a few limited exceptions to this rule, and two of those exceptions apply to people who are on probation or parole.

Probation Officers May Conduct Limited Home Visits

First, a probation or parole officer may conduct a limited home visit of a probationer’s home without a warrant as part of the conditions of probation or parole. The probationer may be lawfully compelled to show the probation officer around the house, and if the officer sees anything incriminating in plain view, these items can be used against the probationer. Evidence such as drugs, guns, or other contraband may be used to establish violations of the terms of the supervision or to bring new criminal charges.

Probation Officers Do Not Need A Search Warrant - But They Do Need Reasonable Suspicion

Second, the probation officer may conduct a full search of a probationer’s house where the officer has reasonable suspicion to believe that there may be contraband in the house. Reasonable suspicion is a lower standard than probable cause, and the officer is not first required to obtain a warrant before conducting the search. Instead, the officer must simply get authorization from a supervisor. Although probation officers may use these exceptions either to conduct a home visit or search based on reasonable suspicion, they are not allowed to act as a “stalking horse” for or at the direction of the police department or other law enforcement agencies who wish to use the probation as a pretext to conduct a warrantless search.

For both types of searches, probation officers may typically search the entire house. The search is not limited to the room in which the probationer stays. This is because the owner of the house will generally sign a release prior to the probationer or parolee being allowed to stay in the house. In some cases, however, it may be possible to challenge the scope of an overly broad search with respect to a defendant other than the probationer. 

Recent Caselaw on Probation and Parole Searches in Pennsylvania

The Pennsylvania Superior Court recently considered these exceptions in the case of Commonwealth v. Parker, 2016 Pa Super 280 (Pa. Super. Ct. 2016). In Parker, the Superior Court upheld the ability for probation officers to search a probationer’s home without any prior allegation of wrongdoing by the probationer, reversing the trial court’s order granting a motion to suppress crack cocaine which was allegedly found in Mr. Parker’s home.

When Parker was released from custody on a prior case, he agreed to the standard terms and conditions of probation to which many defendants must agree in counties through Pennsylvania. Specifically, he agreed to allow his probation officer to visit his home at any time to confirm compliance with the conditions of supervision. He also agreed that he would not possess any contraband and that he would permit the officer to search his home and vehicle based upon reasonable suspicion that contraband could be found.

The case began when probation officers arrived at Parker’s home to conduct a home visit. Upon entering the house, they noticed, “apparently in plain view, clear, empty, corner-cut baggies; cigar packages, which were opened and discarded on the floor; and small rubber bands.” The officers believed from past experiences that such items are commonly used for drug distribution, and they also observed a shotgun in an open closet in the kitchen. The officers then went up to Parker’s room, where they found bullets, knives, and a bong all in plain view. The probation officers contacted police officers. The police officers came to the scene, but they opted not to obtain a warrant and left. The probation officers then contacted a supervisor, who authorized a search of the home, and the probation officers proceeded to find cocaine in the refrigerator. At that point, the officers called the police back to Parker’s home, and the police arrested Parker.

Grounds for the Motion to Suppress the Results of the Probation Search

Parker moved to suppress all the items, arguing that the probation officers conducted an illegal search by entering his home without reasonable suspicion and that they should have obtained a warrant before searching the refrigerator. Parker also alleged that the probation officers had used their authority to evade the warrant requirement and act as a “stalking horse” for the local police department. Parker’s attorneys suggested that the police wanted to conduct a search but did not have the probable cause necessary for a warrant.

The trial court rejected the argument that the probation officers could not enter the home to conduct a basic tour and observe any contraband in plain view, but the trial court ruled that the officers should have obtained a search warrant before searching the refrigerator. Because the officers had already called the police to the scene, they did, in effect, act as agents of the police department, and therefore, they should have obtained a warrant before finding the cocaine in the refrigerator.

Standards for Probation Searches

The Superior Court reversed the suppression of the cocaine and reaffirmed the prior decisions which set these standards. The Superior Court concluded that first, under existing caselaw, probation officers may lawfully conduct a home visit, tour the house, and seize any evidence of contraband which is in plain view. Second, once the probation officers find drug packaging, weapons, and bullets which have been left out in the open, the officers do not have to obtain a warrant to search the rest of the house because they have reasonable suspicion that other contraband might be found. Third, the court rejected the trial court’s conclusion that the probation department had acted as a stalking horse for the police department because there was no evidence at the motion to suppress that the police had in any way directed the search. Accordingly, the court ruled that the full search of the house was permitted despite the absence of a warrant.

There Are Limits on Probation and Parole Officers

Although the Superior Court ultimately ruled against Mr. Parker, the decision does show that even though defendants who are on probation at the time of a search have fewer rights than people who are not on probation, there are still real limits on the ability of a probation officer to search a house. First, the probation officer is limited to walking through the house and viewing only items which are in plain view. The officer cannot show up for a home visit and begin tearing the house apart. Second, the officer must have reasonable suspicion in order to conduct a full search without a warrant. This standard requires the officer to point to specific and articulable facts for why the officer believed contraband might be found. The officer cannot conduct a search for drugs simply because the defendant was under supervision for drugs.

Can the Police Search My House If I Am On Probation? 

Although probation officers do not need a warrant to search the house of a probationer or parolee, the police cannot use the probation department to evade the warrant requirement and engage in a warrantless search. Unless the evidence is first uncovered by probation officers because it was in plain view during a home visit or because the officers had legitimate reasonable suspicion, police officers must still obtain a search warrant prior to searching the home of someone who is on probation. When the police or probation department violate these rules, the evidence could be excluded following a successful motion to suppress. This rule is called the “stalking horse doctrine.”

Our Philadelphia Probation Lawyers Can Help With Probation Violation Hearings

Zak T. Goldstein, Esq. - Philadelphia Probation Violation Lawyer

Different standards apply to probationers, but law enforcement must still follow the law. If you or someone you know are facing narcotics or weapons charges for drugs or other contraband found in your house, car, or on or near your person, you need the advice of a skilled criminal defense lawyer immediately. Critical exculpatory evidence and witnesses could be lost due to delay, and there may very well be defenses ranging from a motion to suppress due to an illegal search to a lack of evidence of constructive or actual possession. We have even won motions to suppress significant quantities of drugs and guns due to illegal parole searches. Contact the Philadelphia criminal defense lawyers of Goldstein Mehta LLC at 267-225-2545 for a free, confidential, and honest case evaluation.

Can the Police Search My Car?

Can the Police Search Your Car? 

If the police searched your car and uncovered illegal contraband in Pennsylvania or New Jersey, you should speak with one of our Philadelphia criminal lawyers today. Our defense attorneys have won many motions to suppress and constructive possession trials in cases involving guns, drugs, and other illegally seized evidence. We will fight for your constitutional rights and to ensure that illegally seized items are not introduced into evidence against you. Call 267-225-2545 for a complimentary criminal defense strategy session with one of our top-rated Philadelphia criminal defense lawyers.

Do Police Need a Search Warrant to Search a Car? 

The legality of car searches by the police is frequently at issue in cases involving possessory offenses such as firearms cases and drug possession cases. In general, if the police conduct an illegal search or seizure, then the evidence obtained as a result of the illegal conduct could be suppressed. In many cases, the suppression of the critical evidence could lead to the dismissal of charges. However, the police typically have more authority for when they can search your car than for when they can search a house.

The general rule under the United States and Pennsylvania Constitutions is that law enforcement officers need a search warrant to conduct a search. However, the courts have created so many exceptions to this general rule that the rule essentially only applies to searches of houses or other types of residences and more recently, cell phones. Unsurprisingly, there are a number of exceptions which could permit a police search of a vehicle without a search warrant depending on the facts of the case.

Consent to Search the Vehicle

First, the police can always conduct a search when they have the consent of the owner or operator of the vehicle. If the police pull over a vehicle for a traffic infraction and are suspicious of the driver for some reason, they can always ask the driver for permission to search the car. If the driver gives them permission, then they may search the car and can use anything that they find as evidence in court. The only challenges which could be brought via a Motion to Suppress in this instance would be to the legality of the initial stop and whether the driver actually gave consent or whether the consent was fabricated or coerced.

Therefore, our advice is that you should not give permission or consent should the police ask if they can search your car. However, if the police decide to conduct a search anyway, you should not attempt to resist. Instead, it is best to remain calm while they conduct the search and speak with an attorney about your legal options once the encounter has ended.

Police Usually Need Probable Cause to Conduct a Car Search

Second, courts have developed an “automobile exception” to the warrant requirement. Under the United States Constitution, police officers and federal agents typically do not need a warrant to conduct a search of a vehicle. Instead, because of the inherent mobility of an automobile, they may search the vehicle if they have probable cause to do so. Probable cause means that it is more likely than not that the police will find contraband or some evidence of a crime. Thus, if police have probable cause, they do not have to obtain a warrant or consent prior to conduct a search.

An example would be a situation in which police pull a suspect over for swerving and upon approach, the officers believe the driver to be under the influence of alcohol. While questioning the driver, one of the officers smells alcohol coming from inside the actual vehicle. In that case, a prosecutor would argue that police have probable cause to enter the vehicle and determine the source of the odor because it was more likely than not that police might find spilled alcohol or a beer can which would be evidence in the subsequent DUI case against the driver.

Until recently, Pennsylvania took a more limited approach to the automobile exception. Previously, in order to evade the warrant requirement, prosecutors were required to show both that the police had probable cause to search a vehicle and that some sort of exigent circumstances applied, meaning that evidence could be lost should the police be required to obtain a warrant. However, in Commonwealth v. Gary, the Pennsylvania Supreme Court abolished the exigent circumstances requirement and adopted the federal automobile exception, meaning that police can now search a vehicle whenever they have probable cause to do so.

Although Gary is the law today, the Pennsylvania Supreme Court recently agreed to review whether Gary is correctly decided or whether law enforcement officers should have to obtain a search warrant prior to searching a car absent exigent or unusual circumstances. Therefore, it is possible that the current court could reinstate the rule that police must obtain a warrant prior to searching a car if they want the evidence to be admissible in Pennsylvania state court.

Other Exceptions Which Allow Law Enforcement to Search a Car

Third, there are a number of other potential scenarios in which the police can search a car without a warrant. For example, if the police end up arresting the driver of the car, then there are some circumstances in which the police may conduct a search of the car as a “search incident to arrest.” However, in Arizona v. Gant, the United States Supreme Court held that police may only conduct this type of search incident to arrest of a car when the police reasonably believe that they are likely to find evidence of the offense of arrest. This means that officers cannot automatically search a car as a search incident to an arrest for a suspended registration or suspended driver’s license. Instead, police must have some reason to believe they are going to find more evidence of the crime for which they arrested the driver in the vehicle.

Additionally, the police may, in some occasions, conduct an inventory search of a car if they are required to tow it after arresting or citing the driver. However, recent case law has substantially limited the authority of the police to conduct an inventory search of a car (commonly called a LIVESTOP in Philadelphia), and some of these inventory searches are now subject to challenge with a motion to suppress.

Police Can Sometimes Frisk A Car

Finally, police may also conduct a limited search of a vehicle if they have reasonable suspicion that the driver or passenger was engaged in criminal activity and that he or she was armed an dangerous. In that situation, the Terry doctrine allows them to conduct a “frisk” of the areas which were accessible to the driver to ensure that the driver will not have access to weapons if he or she is allowed to return to the vehicle. Of course, if the police find contraband or are able to see contraband while conducting the frisk, then they may enter the vehicle to retrieve the contraband and use it as evidence in a criminal prosecution under the plain view or plain feel doctrines.

There are other exceptions to these general rules and other issues which frequently come up such as K9 searches and the duration of time during which the police may detain a vehicle an conduct an investigation pursuant to a traffic stop. However, those issues will be the subject of future articles.

How A Philadelphia Criminal Lawyer Can Help

Clearly, there are a lot of exceptions which allow the police to search a car without a warrant, and we are likely at a point where the exceptions have begun to swallow the rule. This means that the answer to the question, “Can the police search my car?” is unfortunately that it depends on the circumstances. It is clear that police are not required to obtain a search warrant to search a car during a traffic stop. Instead, they are typically going to be required to make some sort of showing of either probable cause or reasonable suspicion in order to justify a search, and these searches are often subject to challenge with a motion to suppress.

If it can be shown that the initial stop was illegal, or that the police did not have actual reason to believe that they would find contraband in the car, it may be possible to have the evidence suppressed and excluded at trial. Likewise, if the police claim that the defendant consented to the search but the defendant and witnesses in the car disagree, it may be possible to prove that the consent was fabricated or coerced. Each case is different, and despite the elimination of the warrant requirement for vehicle searches, there are still real limits on the ability of the police to search a car. The bottom line is that illegally seized evidence usually cannot be used against you in court, and in many cases, it remains possible to challenge the warrantless search of an automobile. 

If the police searched your car and found something illegal in Pennsylvania or New jersey, you need the services of one of our Philadelphia criminal defense lawyers. We have won countless motions to suppress and trials on gun and drug charges. We will fight to protect your rights and make sure that illegally seized evidence is not used against you. Call 267-225-2545 for a complimentary criminal defense strategy session with one of our top-rated Philadelphia criminal defense lawyers.

PA Superior Court: Odor of Marijuana Still Contributes to Probable Cause

Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court decided the case of Commonwealth v. Batista, holding that the smell of fresh marijuana, along with other indications that the property was being used as a grow house, provided police with probable cause to obtain a search warrant for the premises. Although there has been a liberalization of marijuana laws in Pennsylvania and Philadelphia, it is still illegal to grow and possess marijuana under many circumstances. Therefore, appellate courts have continued to hold that the odor of marijuana may give police probable cause to conduct a search.

Commonwealth v. Batista 

Officer Beattie of the Philadelphia Police learned from an unidentified source that a major marijuana growing operation was occurring at the defendant’s residence. Officer Beattie also learned from the unidentified source “that you can smell the odor of fresh marijuana coming out of the exhaust system that’s located in the front window of the first floor.” Officer Beattie and two other investigators went to see and smell the residence. The officers observed “a surveillance camera directed at the front door…a gated-in lot, with a shed located inside of the lot, and a surveillance camera” which faced the front of the property. Multiple officers then walked by the front of the residence and smelled a strong odor of fresh marijuana coming from the exhaust system that was running in the first-floor window. 

Officer Beattie then performed a real estate check that revealed that the defendant was the owner of the property. Officer Beattie next applied for a search warrant of the residence based on the above information. Additionally, Office Beattie included that he has been a Philadelphia police officer for approximately 23 years and assigned to the Narcotics Bureau for 20 of those years. The magistrate then concluded that there was sufficient probable cause to suspect the defendant of illegally growing marijuana in his garage and issued a search warrant. 

The next day, the police executed a search warrant and uncovered 91 marijuana plants in the defendant’s garage. The defendant was then placed under arrested and he was charged with various drug-related offenses. The defendant then filed a motion to suppress which was denied. The defendant then proceeded to a bench trial where he was found guilty of possession of marijuana with the intent to deliver and possession of drug paraphernalia. The defendant was then sentenced to an aggregate sentence of 11 ½ to 23 months incarceration. He appealed.

The Defendant’s Appeal 

In his appeal, the defendant argued that the magistrate’s finding of probable cause was erroneous. Specifically, he argued that marijuana is legal in Pennsylvania and decriminalized in Philadelphia. Further, he stated that “medical marijuana became legal in Pennsylvania more than one year before the search of his home when the legislature enacted the Medical Marijuana Act.” Also, he stated that because Philadelphia made possession of marijuana a civil offense the smell of marijuana is not indicative of criminal activity. Therefore, because of these new developments in the law regarding marijuana, the defendant argued that the policed lacked probable cause to search his residence.

Can the Police Stop Me if They Smell Marijuana?

Probably. In general, marijuana is still illegal under state and federal law. The fact that Philadelphia has stopped enforcing most marijuana prohibition does not mean that police do not have reasonable suspicion or probable cause based on the odor of marijuana. Further, there are very few medical marijuana dispensaries in the state of Pennsylvania, and the fact that some people now have medical marijuana does not necessarily mean that the odor of marijuana does not provide reasonable suspicion or probable cause for police to make a stop or search. However, as marijuana laws continue to be liberalized, it is possible that courts will eventually find that the odor of marijuana does not provide reasonable suspicion or probable cause for police to search someone because the police should not just assume that the person does not have a prescription to smoke marijuana.

The Superior Court’s Decision

The Superior Court denied the defendant’s appeal. The Superior Court found that though the defendant’s argument was “novel,” he still would not prevail. The reason was, as discussed above, is that the police are still allowed to stop someone when they smell marijuana. Additionally, there was no evidence that his residence qualified as a dispensary. As the Superior Court noted, a very small number of growers have been qualified as a “grower/processor” under the Medical Marijuana Act. As of now, there can only be, at most, 25 of these growers/processors. Further, the Superior Court deferred to Officer Beattie’s experience as a narcotics officer. It is important to note that the Superior Court did not rely entirely on the odor of marijuana alone in justifying the search. The officer also noted other factors such as the camera, the exhaust system, and things of that nature in concluding that the defendant was operating a grow house. Had the officer merely smelled marijuana, the outcome may have been different. Therefore, the Superior Court held that there was sufficient probable cause to issue the search warrant. As such, the defendant will not get a new trial and he will have to serve his sentence.     

Facing Criminal Charges? We can help.

Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today. 

PA Supreme Court: Police May Often Search Commercial Trucks Without a Warrant

Philadelphia Criminal Defense Lawyer

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Maguire, holding that individuals engaged in highly regulated commercial activities such as commercial trucking are not entitled to the same constitutional safeguards as the general public. This decision is highly relevant to those engaged in the trucking industry because it permits the government to set up checkpoints that would normally not be constitutional if they were designed to stop and search the general public. Therefore, those who are employed in this industry must be especially careful when engaged in commercial activities.  

Commonwealth v. Maguire 

On May 20, 2015, the Pennsylvania State Police and the Pennsylvania Department of Environmental Protection (hereinafter “DEP”) set up a commercial vehicle inspection program in accordance with 75 Pa.C.S. § 4704 which permits the police to set up a “systematic vehicle inspection program…to determine whether they meet standards established in department regulations.” The inspection was scheduled one month in advance, and it occurred at a Clinton County landfill located in McElhatten, Pennsylvania. Pennsylvania State Trooper Beaver, a motor vehicle enforcement officer, and a motor carrier enforcement supervisor comprised the team that conducted the checkpoint inspections. This team was stationed in a lot in front of the scale house near the entrance of the landfill. 

This team established and utilized a procedure where the first team member available would stop the next truck entering the landfill. At approximately 2:50 PM, it was Trooper Beaver’s turn to inspect a truck when he observed the defendant driving his truck. Trooper Beaver exited his vehicle and motioned for the defendant to pull into the lot where the team was located. The defendant complied with his request. Trooper Beaver then engaged the defendant in conversation and asked him to provide him with documents pertinent to the truck and its operation. While speaking with the defendant, Trooper Beaver detected smell of alcohol on the defendant’s breath. He then reviewed the defendant’s documents and did a walk-around inspection of the truck. 

Following the inspection, Trooper Beaver had the defendant exit the truck and told him that he smelled of alcohol and asked whether he had been drinking. The defendant stated he had one beer prior to his trip to the landfill. At this point, Trooper Beaver noticed a cooler on the floor of the truck near the gearshift. Inside this cooler, he saw three Busch light beers and two bottles of water. The defendant was then asked to perform a field sobriety test, which he failed. The defendant was then placed under arrest and transported to the Jersey Shore Hospital for blood testing. He was subsequently charged with DUI and five other counts of unlawful activities. 

The Motion to Suppress

The defendant then filed a motion to suppress the evidence. In his motion to suppress, the defendant argued that his Fourth Amendment rights were violated because Trooper Beaver and his team did not comply with the Tarbert/Blouse guidelines which were promulgated to test the constitutionality of systematic, police-conducted vehicle checkpoints which were used to stop members of the general public (specifically for DUI’s). The trial court held a hearing at which Trooper Beaver was the only witness to testify. At the conclusion of the hearing, the trial court ordered the parties to submit post-hearing briefs. The Commonwealth filed a brief arguing that the Tarbert/Blouse guidelines are inapplicable to the commercial vehicle safety checkpoints that were used in the instant case. The trial court agreed with the defendant and granted his motion to suppress. The Commonwealth then filed a timely appeal. 

On appeal, the Superior Court agreed with the Commonwealth. The Superior Court held that the Tarber/Blouse guidelines did not apply to a checkpoint for commercial vehicles. Instead, the trial court should have analyzed the checkpoint under the factors discussed in the United States Supreme Court’s case in New York v. Burger (these are guidelines that are directed at commercial related activities). Based on these Burger factors, the Superior Court held that the search was constitutional and reversed the trial court. The defendant then filed a petition for allowance of appeal, and the Pennsylvania Supreme Court granted review.

What are the Tarbert/Blouse Guidelines? 

The Tarbert/Blouse guidelines are factors that a court uses to determine whether a checkpoint is constitutional. Remember, the Fourth Amendment protects against unreasonable searches and seizures. If the police stop you at one of these checkpoints, this is technically a seizure. These checkpoints are commonly used to deter and arrest people who are suspected of driving under the influence. Pennsylvania appellate courts have held that these checkpoints are constitutional, so long as they sufficiently comply with the Tarbert/ Blouse guidelines.

According to the guidelines:

1) vehicle stops must be brief and must not entail a physical search;

2) there must be sufficient warning of the existence of the checkpoint;

3) the decision to conduct a checkpoint, as well as the decisions as to time and place for the checkpoint, must be subject to prior administrative approval;

4) the choice of time and place for the checkpoint must be based on local experience as to where and when intoxicated drivers are likely to be traveling; and

5) the decision as to which vehicles to stop at the checkpoint must be established by administratively pre-fixed, objective standards, and must not be left to the unfettered discretion of the officers at the scene.

It is important to remember that it is not required that all of these guidelines are present. Rather, they are just guidelines to determine whether the checkpoint in question is sufficiently compliant with the constitution.    

What are the Burger Factors? 

The Burger Court recognized owners of a commercial business or vehicle in a closely regulated industry have a substantially reduced expectation of privacy, and therefore, the Fourth Amendment warrant and probable cause requirements are lower for these individuals. Therefore, a warrantless inspection is constitutional if: 1) there is a substantial governmental interest informing the regulatory scheme pursuant to which the inspection was made; 2) warrantless inspections are necessary to advance the regulatory scheme; and 3) the statute’s inspection program is applied with such certainty and regularity as to prove a constitutionally adequate substitute for a warrant.

The Pennsylvania Supreme Court’s Decision 

The Pennsylvania Supreme Court affirmed the Superior Court’s decision and held that the Tarbert/Blouse guidelines were not applicable to the instant case. The Court reasoned that when the defendant was stopped, he was engaged in the trucking business, which is a closely regulated industry. Additionally, the Court stated that “owners of certain closely regulated businesses should expect that their businesses would be subject to warrantless administrative searches.” Therefore, the defendant had a reduced expectation of privacy when he was engaged in his trucking business. As such, his case will be remanded to the trial court and the Commonwealth will be able to use all the evidence that was suppressed in their case against him. 

Facing criminal charges? We can help.

Philadelphia Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

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