Police, looking for someone else, approach Travis Job. They patted him down because he was nervous and had many things in his pockets. They discovered a glass pipe in Job’s pocket, $1,450 in cash, and car keys. Cops then opened the car parked in the driveway and searched the car. They found meth, a cigarette with Spice, another glass pipe, and a cell phone. At some unknown point, the officers discovered Jobs was on probation “with a 4th amendment waiver.”
Job was charged in a methamphetamine conspiracy. Job’s challenged the searches of his person and car. District Court denied. He appealed. Oh, he was also convicted at trial and sentenced to 360 months (that’s 30 years).
The 9th Circuit held that a Fourth Amendment search waiver cannot provide a justification for a search of a probationer where the officers were unaware of the waiver before they undertook the search. In United States v. King, the 9th Circuit held that “a suspicionless search, conducted pursuant to a suspicionless-search condition of a violent felon’s probation agreement, does not violate the Fourth Amendment.” 736 F.3d 805, 810 (9th Cir. 2013).
However, first Police officers must know about a probationer’s Fourth Amendment search waiver before they conduct a search in order for the waiver to serve as a justification for the search. Second, the decision in King was limited to individuals on probation for violent felonies. Here, the cops did not know about the waiver when they were searching. So that search is unconstitutional.
The 9th Circuit rejected the government’s arguments that the search of the defendant’s person was justified as a valid Terry stop and frisk, or as a valid protective sweep. Terry v. Ohio, 392 U.S. 1 (1968) allows a “brief stop” where an officer has “reasonable suspicion to believe ‘criminal activity may be afoot.'” After stopping an individual based on reasonable suspicion, an officer may also conduct a limited pat-down, or frisk, if he believes that “the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous.” Minnesota v. Dickerson, 508 U.S. 366, 373 (1993). Again, aside from nervousness, there was nothing to suggest that Jobs was involved in criminal activity or that he was armed and dangerous.
The 9th Circuit rejected the government’s arguments that the search of the defendant’s car was justified by the automobile exception to the warrant requirement, or by the officers’ discovery of the Fourth Amendment search waiver where the government did not prove by a preponderance of the evidence that the officers knew about the search waiver before searching the car. “A ‘protective sweep’ is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” Maryland v. Buie, 494 U.S. 325 (1990). When they were searching the car Jobs was already arrested in the squad car. Why would you need to do a protective? And even if that was ok, cops can only do a visual inspection for persons, not things.
Anton Vialtsin, Esq.
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