9th Circuit Weighs In

This wikilog article is a draft, it was not published yet.

by: Ryan • March 10, 2013 • no comments

In a previous post, I encouraged everyone to object to a standard condition of probation which requires the probationer permit a walk-through of his residence, even in the absence of any reasonable suspicion of a crime.

Since every day dozens of misdemeanor trials and presumptive-probation trials are lost, I'm optimistic that someone will preserve the issue. Hopefully, lots of someones. It's not just a legal technicality; it's about privacy and the home and just a fundamental decency that should be accorded, as a matter of constitutional law, to probationers.

As it turns out, the 9th Circuit has an opinion on the subject as well. Just came out this week.

The majority states that a suspicionless search of the probationer's residence is permissible when the probationer has accepted the condition as a part of his probation agreement. Otherwise, it's not okay.

What does that mean for you? It means you should be objecting to that condition at the time of sentencing. Make it clear your client does not agree to it.

The 9th Circuit opinion also contained an excellent dissent by Judge Berzon. The opinion as a whole is an excellent start to understanding what right of privacy a probationer has, as well as the difference in that regard between probationers and parolees.

So all of you attorneys who are lucky enough to have clients who don't go to prison after trial, let's send this issue up. It's a winner.