Car Search When Driver or Passenger Is on Parole, PRCS or Searchable Probation

JOHN E.B. MYERS
RICHARD SQUIBBS
DANIEL MARTINEZ SANDOVAL
Davis Police Department

The driver and passengers of a car have a reasonable expectation of privacy (REP) in the car. Despite a REP, there are many ways for police to search cars without a warrant, including consent, the automobile exception, an inventory search, a search incident to arrest, a protective sweep and others. In this article, we discuss car searches when an officer knows the driver or a passenger is on searchable probation, parole or post-release community supervision (PRCS).

The leading case is People v. Schmitz (2012) 55 Cal. 4th 909. A deputy sheriff stopped a car with four occupants: the driver, a front-seat passenger on parole and rear-seat passenger with a young child. Based on the front-seat passenger’s parole status, the deputy searched the entire car. In the back-seat area, the deputy found syringes in a bag of chips and methamphetamine in a pair of shoes. This evidence was offered against the driver.

The Supreme Court wrote that searching a car in which a parolee is a passenger is reasonable when the officer knows the passenger’s parole status before the search occurs. It does not matter whether the driver knows the passenger’s parole status. The court wrote: “The limits of a parole search flow from the nexus between the parolee and the area or items searched. How we define that nexus depends on the totality of the circumstances, and takes into account such factors as the nature of that area or items, how close and accessible the area or item is to the parolee, the privacy interests at stake, and the government’s interest in conducting the search” (55 Cal. 4th at 923).

The search is not limited to the seat occupied by the parolee/probationer. “The law does not presume that a front seat passenger has nothing to do with items located elsewhere in the passenger compartment of a car. … The scope of the search is confined to those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity” (Id. at 923, 925). Because a front-seat parolee could place contraband in a bag of chips or a pair of shoes and then place those items in the back seat, the court upheld the search.

In People v. Baker (2008) 164 Cal. App. 4th 1152, the male driver was on parole. The female front-seat passenger had her purse on the floor near her feet. The Court of Appeal ruled that it was unreasonable to search the purse as part of a parole search. There is a greater expectation of privacy in a purse than in a bag of chips. Courts are uneasy when an item like a purse has clear indicia of ownership by someone other than the parolee/probationer. A criticism of Baker is that a parolee could easily stow a gun or drugs in a passenger’s purse a few feet away. 

In People v. Cervantes (2017) 11 Cal. App. 5th 860, the front-seat passenger was on searchable probation. Police acted reasonably in searching the center console because the passenger had ready access to the console.

In Claypool v. Superior Court (2022) 85 Cal. App. 5th 1092, the driver was not on parole or probation, although he was a convicted felon. There were two passengers, and the back-seat passenger was on parole. During a parole search, police used the car key to unlock the glovebox, where they found a loaded firearm. The driver was charged with felon in possession. The Court of Appeal ruled the search of the locked glovebox unconstitutional. The court focused on the fact that the glovebox was closed and locked, the parolee was seated in the back and there was “no evidence suggesting the type of movements among the three occupants consistent with secreting the gun into the glovebox” (85 Cal. App. 5th at 1099).

Based on California case law, the following factors can be documented to support parole/probation car searches:

• • • What type of vehicle is involved? How large or small is the vehicle?
    • How many people were in the vehicle, and where was everyone seated? Were people belted in?
    • How close to the parolee/probationer was the item? How easy or difficult would it have been for the parolee/probationer to hide the item?
    • Did the parolee/probationer have access to or control of the item or the area?
    • Could the parolee/probationer have stowed something in the area or item?
    • How quickly could an item have been stowed?
    • Prior to or during the stop, did the parolee/probationer or others move in ways suggestive of something being stowed or secreted?
    • Was the item inside a closed or locked container?
    • Was the item unique by gender to a person not on probation or parole?
    • What privacy interests are there in the item (e.g., closed purse versus an open bag of chips)?

A judge evaluating the legality of a parole/probation search of a car considers the totality of the circumstances. To defend the search in court, officers can document and photograph all the facts and circumstances that made it reasonable to believe the parolee/probationer could have stowed contraband in the car.

About the Authors

John E.B. Meyers is a visiting professor of law at the University of California College of Law, San Francisco, and has worked as an officer with the University of the Pacific, Stockton, and the City of Ione. John is also currently a reserve officer with the Davis Police Department. Richard Squibbs and Daniel Martinez Sandoval are full-time police officers with the Davis Police Department.