Since going on probation the sheriff has come to my house on several occasions and have harassed me an my tenant who rents the adjacent home. On Easter day, my tenant is a sixty year old grandmother who is not on parole or probation, she was visiting me and was arrested during an UN-announced raid on my property (under the pretense of a probation search) she got charged with an 11550 and 11350(a) possession. The charge is based on a small plastic bag of powder that was supposedly found adjacent to where she was cuffed and sitting outside of my home . She clearly told the officers she did not consent to a search or a test. The officer tried to get her to say I dropped the bag to her but she refused to agree. So in the police report they claim she gave up the bag voluntarily.
You need to consult a lawyer now. You raise a lot of questions and make unwise admissions in this statement. Generally, any law enforcement officer can perform a probation search, depending on the circumstances, the terms of probation, and what the officer knows. Obviously, you are the focus here.
Generally, as a condition of Probation, an individual waives their Search & Seizure rights. This means that a police officer can search that person or their property any time they desire, even in the middle of a night on a holiday.
Seth Weinstein, Esq.
Los Angeles Criminal Defense Attorney
Your situation is much more common than you would believe. Ventura is well known as the place you go to vacation and end up on probation, and as a result losing most of your Fourth Amendment rights. The DA's office seeks, and the Judges as a matter of routine order search terms on most all cases where clients accept probation. Your attorney either gave you incorrect advice, or there was a miscommunication, as law enforcement agencies (the police department, sheriffs department, etc) can and will utilize your search terms to obtain entry for really any purpose. The term of your probation is what controls. They may utilize a search term for drugs to search your home for drugs. But not, her home. The police often use probation terms to repeatedly harass, however the law allows their repeated searching as long as the probation search is not "arbitrary, capricious, or harassing". Iv fought that issue countless times, but I am not aware of any judge in this county ever finding a probation search invalid on that ground.
However, your tenant may have been illegally detained. The probation search should not allow for her to be handcuffed especially if she was not inside the home. Your probation terms give them the opportunity to search your home for drugs, and whatever else the term states. It does not allow them to come take photos. Your tenants big problem is getting around the fact the officer is claiming she handed him the bag of dope voluntarily. Law enforcement officers very often stretch the truth...at motions to suppress. When you are challenging an officers credibility, its really difficult to win because almost always the Judge wants to protect the officer.
Iv litigated countless cases like this in suppression motions, and have won plenty. Have your tenant speak to several local attorneys.
It's unclear to me whether you are asking about the constitutionality of the search of you or your tenants rights. But if you're asking about your own, my colleagues are correct. Please defer to their answers. If you're asking about the rights of your elderly tenant, the legality of the search of her place is not as clear. She too needs to consult counsel.
Alright, there is a lot going on here but this should cover the basics:
When you are on probation for drug related offenses (specifically those you described above), you give up your Fourth Amendment rights to be from searches from law enforcement or other governmental agents including probation officers. This should have been explained to you by the court, your attorney, and/or your probation officer. This means that your belongings (including your home, car, person, etc) can be searched as long as these searches are not excessive or unreasonable (tough hurdle to prove with these facts so far).
With regards to your sixty year old tenant who was arrested for possessing narcotics as well as being under the influence of narcotics. she has her own issues right now. If the narcotics are not hers, then why would she test "dirty" or present symptomology consistent with being under the influence? If this is indeed a misunderstanding, I suspect that while she was arrested, the District Attorney will not file on her without additional evidence supporting the charges. I am not sure what rights she would have to proceed against you with a lawsuit based on your facts.
Finally, yes, law enforcement may enter your home since you are on probation following an arrest at the location to take pictures for evidence in the pending case.
Good Luck with this.
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