Court Upholds Searching of Probationers

SAN FRANCISCO — Police have broad authority to search convicted criminals who choose probation over going to prison, the state Supreme Court ruled unanimously Thursday.

Even an uncorroborated, anonymous tip would be sufficient basis for police to search a felon who accepts searches conducted without warrants as a condition of his probation, the court said.

The justices rejected a state appellate finding that police must first have “reasonable cause” to believe the probationer was involved in criminal activity.

By accepting probation instead of prison and agreeing to submit to warrantless searches, the probationer has “voluntarily waived whatever claim of privacy he might otherwise have had,” Justice Edward A. Panelli wrote for the court. “. . . Probation is not a right but a privilege.”

The justices said that while they would not condone harassment or searches for “arbitrary or capricious reasons,” they would permit searches related to the “rehabilitative and reformative purposes of probation or other legitimate law enforcement purposes.”

1981 Marijuana Case

The ruling came in the case of Robert Terry Bravo, who was granted probation after his conviction in 1981 for possession of marijuana. As is common in such proceedings, Bravo, among other things, agreed to submit to searches “any time of the day or night by any law enforcement officer with or without a warrant.”

In 1982, an anonymous informant telephoned Anaheim police and said he suspected narcotics activity at an apartment officers later identified as belonging to Bravo.

Police went to the residence, cited the probation order and were granted entry to the premises, where they found cocaine, firearms and a large amount of cash.

After he was charged, Bravo contested the admissibility of the evidence, arguing that it was found during an illegal search. A trial judge refused to bar admission of the evidence and Bravo pleaded guilty to possession of cocaine and possession by a convicted felon of a concealable firearm.

Bravo took the case to the state Court of Appeal in Santa Ana, which held 2 to 1 in his favor. The panel majority found that while Bravo had agreed to submit to warrantless searches, he did not waive his constitutional protection against an “unreasonable search.” Any search based on uncorroborated information provided by an unknown and untested informant could not be considered “reasonable,” the appellate majority said.

But on Thursday, the state high court reinstated Bravo’s conviction, finding that under the Fourth Amendment, a search was permissible when within the scope of a valid consent. The plain wording of Bravo’s probation order authorized the officers’ search, the court said.

The justices drew a distinction from a 1986 ruling the court made forbidding “unreasonable searches” of parolees in similar circumstances.

Convicted criminals sent to prison under determinate-sentencing provisions are entitled to their release on parole at a particular time--and therefore they have certain rights of privacy, the court said. But probationers waive such rights in voluntarily accepting the chance to avoid prison, it said.