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Discussion Starter · #1 ·
So, as most of you are aware, I work in a specialized unit that deals with folks on house arrest and that are monitored by GPS tracking anklets. A recent discussion amongst the officers has me thinking: the participants in this program are required to have the homeowner of the residence at which they are conducting the program sign a form that, among other things, allows us to search the home.

As I'm sure you can imagine, folks tire of the program for one reason or another, and cut the anklet. Our protocol is to conduct a home check to ensure the subject is no longer there. Well, we had one person deny us access to the home last week. What are your thoughts about forcing entry to check vs obtaining a warrant vs saying "Who cares?" and taking a warrant on the escapee?
 

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Hmmmm..... they sign a form that allows a search, but then you had someone deny. I would say that's just the same as someone withdrawing their consent on a consensual search. No problem. Post someone. Hold the status quo. Draw the warrant.
 
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Hmmmm..... they sign a form that allows a search, but then you had someone deny. I would say that's just the same as someone withdrawing their consent on a consensual search. No problem. Post someone. Hold the status quo. Draw the warrant.
This.........Cause and effect.
 
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If you enter without a warrant and he is or is not there, there probably will be a lot of paperwork for someone. Obviously if there is any contraband it probably would be suppressed and my guess is it is at least possible that if you recovered the cut ankle bracelet tracker device it might also not be admissible. But I also doubt no warrant would not be enough to have him released from custody and allowed to go free without completing his sentence.

If by chance he was inside and holding someone against their will and harmed them or worse, you might be fine legally. But there may be some moral guilt if that where to happen. I would want to be quite satisfied that there was no duress before I decided on a quick, forced entry.
 

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Hold the house and get a search warrant. If it was their house I'd say you are good. But I agree its a withdrawal of consent. But I would certainly get a search warrant and recover the ankle monitor.

I would also disqualify those people (non offender resident who refused entry) from being involved in any further participation in the program.
 

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Discussion Starter · #7 ·
Hold the house and get a search warrant. If it was their house I'd say you are good. But I agree its a withdrawal of consent. But I would certainly get a search warrant and recover the ankle monitor.

I would also disqualify those people (non offender resident who refused entry) from being involved in any further participation in the program.
The latter is a given, and if he happens to make it back to the program eventually, he'll not be allowed to live at that address. A bit more info, that I forgot to mention earlier: the inmate is committing at least two felonies by cutting the anklet. Does that change anything?

And, by "hold the house", I assume you mean to escort everyone outside while we wait on the warrant?
 

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The latter is a given, and if he happens to make it back to the program eventually, he'll not be allowed to live at that address. A bit more info, that I forgot to mention earlier: the inmate is committing at least two felonies by cutting the anklet. Does that change anything?

And, by "hold the house", I assume you mean to escort everyone outside while we wait on the warrant?
I dont think that they are felonies matter with regard to going in without consent unless you can articulate it just happened and you have an exigency.

Yes that is what I meant by holding the house. They could destroy your evidence if left inside.
 

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Texas Penal Code. Sec. 38.05. HINDERING APPREHENSION OR PROSECUTION. (a) A person commits an offense if, with intent to hinder the arrest, prosecution, conviction, or punishment of another for an offense or, with intent to hinder the arrest, detention, adjudication, or disposition of a child for engaging in delinquent conduct that violates a penal law of the state, or with intent to hinder the arrest of another under the authority of a warrant or capias, he:
(1) harbors or conceals the other;
(2) provides or aids in providing the other with any means of avoiding arrest or effecting escape; or
(3) warns the other of impending discovery or apprehension.
(b) It is a defense to prosecution under Subsection (a)(3) that the warning was given in connection with an effort to bring another into compliance with the law.
(c) Except as provided by Subsection (d), an offense under this section is a Class A misdemeanor.
(d) An offense under this section is a felony of the third degree if the person who is harbored, concealed, provided with a means of avoiding arrest or effecting escape, or warned of discovery or apprehension is under arrest for, charged with, or convicted of a felony, including an offense under Section 62.102, Code of Criminal Procedure, or is in custody or detention for, is alleged in a petition to have engaged in, or has been adjudicated as having engaged in delinquent conduct that violates a penal law of the grade of felony, including an offense under Section 62.102, Code of Criminal Procedure, and the person charged under this section knew that the person they harbored, concealed, provided with a means of avoiding arrest or effecting escape, or warned of discovery or apprehension is under arrest for, charged with, or convicted of a felony, or is in custody or detention for, is alleged in a petition to have engaged in, or has been adjudicated as having engaged in delinquent conduct that violates a penal law of the grade of felony.

I would think concealing whether or not the person has absconded in order to delay the efforts to locate the offender would qualify as any means. We have people tell us all the time that someone we have a warrant for is not there. When we explain to them that they can go to prison if we find out they lied, they usually say something like "he is under the bed in the back bedroom". Anyway, this is the relevant Texas statute. I have no idea what the rules are where you are.

A while back we had a felony warrant for a female. The deputy working the case called her on her cell phone and told her to come out or we were going to break down the door. She stated she was not at her sister's apartment and her sister was out of town. We knocked on the door repeatedly and identified ourselves advising we had a felony warrant. The deputy watching the patio door saw someone move the curtains and peek out. We had obtained the key to the apartment from the manager. We tried to open the door with the key but the privacy lock was locked so we wound up breaking the door in anyway. The wanted person was hiding under children's stuffed toys in the child's bedroom. The sister, the brother-in-law and the child were in the apartment. We didn't arrest the sister and brother-in-law immediately because we would have had to wait for CPS to come for the child. We got felony warrants issued for them later and they turned themselves in. I think they could have been charged with child endangerment as well as hindering apprehension. Screwing around until law enforcement breaks in the door with guns drawn is not safe for the child.
 

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So, as most of you are aware, I work in a specialized unit that deals . . . "]

I'm unclear on exactly what your status is.

Who exactly is your employer? Court? Law Enforcement agency?

Are you a commissioned LEO? Or are you a private contractor?

What state are you in?

Thanks.
 

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If they signed a permission form for you to enter their residence without a warrant I don't see any issue with you doing so. Your search would either result in the apprehension of the perpetrator or in you finding nothing. No other damages, nothing for the home owner to sue for.

Just a thought.
 

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I would treat the form just like any other consent search, it is revokable at any time. Obtain a search warrant, recover the property/suspect and if the homeowners conduct did anything to further the absconding suspect then charge appropriately.
 

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Seems different than normal consent to search to me, it's a condition of the parolee living there, and presumably a legally binding document he signed.

I would have thought he would have to formally kick the parolee out, notify you of such so that the conditions he agreed to no longer apply to him anymore officially. Parolee is no longer in compliance from that guys change of heart, goes back to jail until he can arrange another place to stay.

Can't just change his mind on the fly on s whim when it's convenient, can he? Unless and until parolee is officially not living there agreement is still in effect. He can change his mind, but he has to reverse the situation in order to do so.

Of course, I don't know crap about this stuff. But that doesn't stop any of the trolls from arguing to the death about anything, SO I'M PUTTING YOU JACKBOOTS ON NOTICE!!!

Seems to me the program is a failure, a sham, at least fatally flawed if they can snap their fingers and take away consent to search when you show up at the door. Notify you of intent to evict parolee, and when he's finally out, consent revocation takes effect. Don't like it? Don't sign it.

Any case law on this?

Randy
 

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Discussion Starter · #14 ·
Any case law on this?

Randy
Looked on Google Scholar, couldn't find anything relevant. Don't have Lexis-Nexis.

I'm a bit torn on the consent issue - can consent be withdrawn in this case? Can we enter the home in order to search, if we have PC to believe the person is inside?

We have a different situation than traditional LE scenarios. This guy is an inmate, and is in the custody of my agency. His residence is now his jail cell, instead of being locked up in our facility. I've never run into the issue of consent being withdrawn - normally, of the homeowner gives us grief, we snatch the inmate uo, and return him to jail with a note to not allow them to return to that address.

This case is a bit different - we have GPS indicating he is possibly in the home, but an alert showing the anklet has been tampered with; the homeowner claims the inmate "stepped out", and refuses to allow us to conduct a home check. Which, by the way, is always asked about by the prosecutor, when we swear out escape warrants (1-2 daily).

Odd situation, definitely.

The end result of this little scenario was this - my partner and I left the hime without searching, found the anklet outside, forcibly removed. We checked the immediate area (disturbingly enough, this happened very near to my home), including a local extended stay motel and shopping center.

Subject was not located, and a warrant was issued. He was arrested by LMPD a day or so later, for violating a protective order, and is back in jail. To top things off, this guy is a former officer with my agency - and is facing a multitude of charges, including assaulting one of our officers.

Classy guy.
 

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After thinking about it and reading a little more I have changed my opinion. That is the parolees legal residence no matter who else resides or even owns the home making it is open to a search at anytime. I believe the notice would be used as more of proof that you informed the other occupants in good faith that this is what be required if they agree to allow the parolee to reside there. I no longer think it is a consent based issue. They granted a parolee legal rights to the property fully knowing the conditions that come with his release, that now grants LE the power to fulfill our obligation to monitor that individual until we have proof their residence has changed.
 

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Excerpts from the summary in United States v. Knights:

Inmates released on parole by state parole authorities must sign “conditions of release” forms. One of the specified conditions is that the parolee consents to having his residence and any property under his control searched without a warrant. The consent form signed by Texas parolees authorizes searches by a parole officer, with the assistance of law enforcement, of the parolee’s person, motor vehicle, place of residence, or any property under the parolee’s control.
In 2001, the U.S. Supreme Court in United States v. Knights held that a warrantless search of a probationer’s home was reasonable under the Fourth Amendment when supported by reasonable suspicion of wrongdoing and authorized by his probation. A state probation system, reasoned the Court, creates a “special need” exception to the warrant requirement to ensure that the probationer is fulfilling all the conditions mandated by his probation. The Knights decision was followed in 2006 by Samson V. California in which the Court held that a “suspicionless search” of a parolee by law enforcement does not offend the Fourth Amendment and its probable cause prerequisites.
The Ninth Circuit also pointed out that the Supreme Court in the Knights decision held that law enforcement needed “only a reasonable suspicion of wrongdoing to conduct a warrantless search of a probationer’s residence.” But in a post-Knights decision, the appeals court decided to follow the “stricter probable cause standard” concerning suspected wrongdoing at a residence over the reasonable suspicion standard. The appeals court specifically held the “condition of parole that permits warrantless searches provides officers with the limited authority to enter and search a house where the parolee resides, even if others reside there. But they have to be reasonably sure that they are at the right house.”
 

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A decent article from Policemag.com

http://www.policemag.com/channel/patrol/articles/2006/09/point-of-law.aspx


September 01, 2006 | by Devallis Rutledge - Also by this author



Most of the U.S. Supreme Court's many rulings on Fourth Amendment issues dealing with the justification of warrantless searches and seizures have focused on either suspicion of criminal wrongdoing, or consent or exigency. But in a handful of cases, the court has considered another category of Fourth Amendment justification: basing a search or seizure on the suspect's status as a parolee or probationer. The decision in Samson v. California from the court's most recent term is the latest pronouncement in an evolving set of rulings.

Griffin v. Wisconsin

To assist probation officers and parole officers with their supervision and to aid in the general law enforcement need to curb recidivism, many states require parolees and probationers to agree that their conditional release will be subject to curtailment of their normal Fourth Amendment protections. Typically, the released convict agrees to submit his person, property, and residence to warrantless, suspicionless search and seizure by any correctional or law enforcement officer for the duration of the probationary or parole term.

The state of Wisconsin had a similar provision when officers found felony probationer Joseph Griffin with a handgun in his home, in violation of the conditions of his probation and state law. The state courts denied his motion to suppress the gun, finding that the probation officer had "reasonable grounds" to make a warrantless entry and search.

The U.S. Supreme Court ruled that suppression was properly denied, but rejected the "reasonable grounds" test as a necessary justification for a probation search. The court said it was unnecessary to consider the "reasonable grounds" issue, because the probation regulation was a valid basis for the search: "The search of Griffin's residence was 'reasonable' within the meaning of the Fourth Amendment because it was conducted pursuant to a valid regulation governing probationers."

Pennsylvania Board of Probation and Parole v. Scott

The next probation and parole issue decided by the Supreme Court was whether to apply the exclusionary rule to evidence offered at a parole revocation hearing. Five months after being released from a minimum prison term for murder, parolee Keith Scott was found to have five firearms in his home when it was searched by parole officers. Evidence of this violation of parole was admitted at his revocation hearing, but the appellate court and Pennsylvania Supreme Court reversed this decision. Those courts held that the search of Scott's home violated the Fourth Amendment because the parole officers lacked a "reasonable suspicion" of a violation before making the search.

On appeal, the U.S. Supreme Court reversed the Pennsylvania high court. The court sidestepped the issue of whether any level of suspicion was constitutionally required in order to search someone who had agreed to suspicionless searches. Instead, the court held that even if the search were assumed to be unreasonable, the Fourth Amendment exclusionary rule should have no application at a revocation proceeding: "The federal exclusionary rule does not bar the introduction at parole revocation hearings of evidence seized in violation of parolees' Fourth Amendment rights."

U.S. v. Knights

Mark James Knights was placed on probation in California for a drug conviction. A standard term of his probation provided for warrantless, suspicionless search and seizure by any peace officer. When an officer investigating arson attacks on electric power installations developed a reasonable suspicion that Knights was involved in these acts, he entered and searched Knights' apartment, in reliance on the probation search condition. The officer found explosives, arson equipment, and other incriminating evidence, which was offered in trial against Knights on federal charges of illegal possession of destructive devices and ammunition, and conspiracy to commit arson.

The district court judge suppressed the evidence, ruling that because the officer acted for an investigatory purpose, rather than a probationary purpose, the search was illegal and the evidence inadmissible. The Ninth Circuit Court of Appeals affirmed this ruling, and the government appealed.

The U.S. Supreme Court unanimously reversed the Ninth Circuit and district court rulings. Once again sidestepping the issue of whether officers needed any suspicion to conduct a probation search, the court held that where, as here, there was in fact a reasonable suspicion, a warrantless probation search was not constitutionally unreasonable. The Supreme Court also rejected the Ninth Circuit's view and held that the officer's subjective purpose in searching-investigation, rather than rehabilitation-was irrelevant: "There is no basis for examining official purpose. We have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers."

Samson v. California

Finally, in Samson v. California, the Supreme Court could sidestep the issue of justification for a probation or parole search no longer. The issue was squarely presented after a police officer, aware that Donald Curtis Samson was on parole and subject to a suspicionless search condition, stopped him on the street and searched his clothing, finding methamphetamine.

The California courts admitted the evidence against Samson, ruling that no suspicion was necessary to conduct a parole search in a reasonable manner. Samson appealed to the U.S. Supreme Court, which conceded that the issue at last had to be decided, suggesting that the same standard would apply to both probation and parole searches: "[In Knights], we did not reach the question whether the search would have been reasonable under the Fourth Amendment had it been solely predicated upon the condition of probation. Our attention is directed to that question today, albeit in the context of a parolee search."

The Supreme Court examined the nature of the conditional release of prisoners on parole, noted the high rate of recidivism (70 percent of California's parolees re-offend within 18 months of parole), and decided that the state's need for close supervision of those who are released from prison is a significant factor. At the same time, where a parolee accepts a term of warrantless, suspicionless search as a condition of early release from prison, he has temporarily forfeited the right to require a search warrant or some level of objective suspicion for police searches and seizures.

The court concluded by saying, "Examining the totality of the circumstances pertaining to petitioner's status as a parolee...including the plain terms of the parole search condition, we conclude that petitioner did not have an expectation of privacy that society is prepared to recognize as legitimate...Thus, we conclude that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee."

Expanding Parole and Probation Searches

Not all states impose search conditions on parolees and probationers. But given the Supreme Court's deference to the states in designing systems that meet the objectives of reintegrating offenders into society while protecting public safety, states would be free to adopt plans that, like those in Wisconsin, California, and other states, allow all law enforcement officers-not just parole and probation officers-to conduct warrantless, suspicionless searches of the person, vehicle, property, and residence of a parolee or probationer at any time of the day or night, in a reasonable manner.

As permitted by state law and the Supreme Court, parole and probation search conditions can provide police officers with a legitimate tool to detect and interdict criminal behavior.

Devallis Rutledge, a former police officer and veteran prosecutor, is Special Counsel to the Los Angeles County District Attorney.
 

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... the participants in this program are required to have the homeowner of the residence at which they are conducting the program sign a form that, among other things, allows us to search the home.

As I'm sure you can imagine, folks tire of the program for one reason or another, and cut the anklet. Our protocol is to conduct a home check to ensure the subject is no longer there. Well, we had one person deny us access to the home last week.
What's your agency's policy for such circumstances?

Never a bad idea to look toward current GO's & P's/P's for an answer before deciding on forging ahead to blaze a new trail, especially if it's not an exigent circumstance. ;)



... He was arrested by LMPD a day or so later, for violating a protective order, and is back in jail. To top things off, this guy is a former officer with my agency - and is facing a multitude of charges, including assaulting one of our officers.
Well, crap. Wish I could say I'm surprised, but sometimes there are some guys & gals in the broad spectrum of the LE/CORR field end who just seem to end up in the "I'm also a client" category. Some are surprising, some aren't.
 
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Discussion Starter · #19 ·
What's your agency's policy for such circumstances?

Never a bad idea to look toward current GO's & P's/P's for an answer before deciding on forging ahead to blaze a new trail, especially if it's not an exigent circumstance. ;)
Yeah, you're talking to the guy who works for an agency that doesn't have an OIS policy...and just had their first OIS in April. Sure, there's a use of force policy, but nothing about an OIS or how it should be handled.
 

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Yeah, you're talking to the guy who works for an agency that doesn't have an OIS policy...and just had their first OIS in April. Sure, there's a use of force policy, but nothing about an OIS or how it should be handled.
Do you outsource it to the locals? PD or SO of jurisdiction (occurrence of incident) or the local prosecutor's investigators? State troops/patrol? AG? Gut feeling? Seat of pants? Man on the street? (Sorry, couldn't resist. :) )

Anyway, not having a written shooting policy or designated "shooting incident team" (investigative post-incident) can become problematic if (when) someone has to appear to answer questions about agency/dept policy for a depo or court appearance. Ditto training files. Being asked to bring a copy of the GO's, especially the use-of-force/high-liability (deadly force, guns, etc) section, and any added supplemental orders and revisions, to a depo or court appearance can often provide some belated motivation to be better prepared the next time around.

I remember when a bureau commander had to bring a stack of documents more than a foot tall to a federal court proceeding to explain and answer policy & procedural questions under oath. It was only a single division's Policy & Procedure manual, too. Being in the middle of revising the older P&P manual meant taking everything old, new and under consideration for revision to court for inspection under the BIG microscope.

Just don't be left without a chair when the music stops, because it always stops sometime ...

You paid enough to be a guinea pig for creating & implementing policy on the fly? :eek:
 
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