Police, The Fourth Amendment, Qualified Immunity

Rohnert Park may need to change policy on probationer consent searches

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Probationers regularly consent to allowing the police to search their residences without a warrant, and even without any particularized suspicion.  However, what happens if somebody who lives with the probationer objects to the search?

Case:  Barajas v. City of Rohnert Park, Dist. Court, ND California 2016

Decision Points:

  1.  Police cannot do a probationer consent search if a co-resident (in this case the father) of a probationer objects.  This law is only now becoming “clearly established.”
  2. Police cannot do probationer consent searches for the purpose of harassment.  In this case, two of the officers who performed the search (City Of Rohnert Park Officers Jacy Tatum, David Rodriguez) the search are accused of having harassing motives due to having been involved in previous altercations and/or confrontations with the probationer.
  3. Probation consent searches generally need to be knock and announce, and not performed by sneaking in with a drawn gun as Officer Tatum did in the instant case.


Thus, in order to be reasonable under the Fourth Amendment, police are generally required “to announce their intent to search before entering closed premises;” however, the obligation “gives way when officers have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or [] would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” United States v. Banks, 540 U.S. 31, 36 (2003) (quotation omitted). To determine whether an entry is reasonable, courts must consider all the circumstances surrounding the entry, including, but not limited to, officer safety, time of day, destructibility of evidence, the size of the residence, the nature of the offense, and any other observations by law enforcement that would support a forced entry. Combs, 394 F.3d at 744. Additionally, they must examine what, if any, notice the police gave before entry and the likelihood that the notice alerted those inside the home to the officer’s presence and purpose. Id. at 744-45. Finally, a “probation search does not permit an exception to the knock and announce requirement unless there are exigent circumstances or futility.” Portnoy v. City of Davis, 663 F. Supp. 2d 949, 957 (E.D. Cal. 2009) (citing Green, 420 F.3d at 699).

Written by Burgers Allday

February 13, 2016 at 2:45 pm

Posted in Uncategorized

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