Last mo. the US S.Ct. in US v. Knights, held that a warrantless search of a probationer by a cop was ok, because the search was reasonable. One of the factors that led to that decision was the fact that the defendant, when he got probation, was ordered to submit to such searches by either probation or law enforcement officers.

Our office added that condition to our plea bargain form, lifting the language almost verbatim from the opinion ("Def. shall submit his person, property, residence, vehicle, personal effects, etc. to search at any time, with or without a search or arrest warrant, or reasonable cause, by any probation officer or law enforcement officer.")

Now, one of our judges insists on striking out the "law enforcement officers" part, because, he says, "we don't know what Texas courts will do."

Is this a valid concern? Even if it is, is there any downside to the State by having the condition include searches by police officers? Are other offices making this waiver a condition of probation? Are you getting any flack?

I recently asked our judges to adopt the same condition. They agreed.

The Texas Constitution is no more protective on this issue than the U.S. Constitution. In fact, the Court of Criminal Appeals has held that the Texas Constitution does not even have a warrant requirement.

So, I would encourage your judges to accept teh condition. However, I would also caution law enforcement that they still better have some articulable reason for searching; they just don't need a warrant or probable cause.

I think there is little chance that the CCA could (or would) reach a more protective reading of the Texas Constitution. The last time I checked, Bauder was the only case where they reached a more protective substantive rule. Otherwise, the CCA has shown great restraint with the Texas constitution.

Aren't there also good arguments that it will increase the efficiency of the court's probation system?

Finally, the downside is small if Texas courts reached a different result. Most probation revocations have multiple bases, so the small amount of dope found may not be necessary to revoke a given probation (and the new class b case was relatively unimportant anyway). Moreover, searches of probationers will often have multiple supporting bases, i.e. the probationer was acting suspicious so the p.o. patted him down and found the gun or the probationer appeared to be selling dope out of his car, so an officer searched the car under Carroll, or the probationer is searched incident to arrest on a p.v. warrant, etc.

I do not believe that Texas courts will vary from Knights. Your judge should accept what the Supreme Court stated and allow for conditions of probation to allow for searches of probationer's based on reasonable suspicion and allow such searches by law enforcment officers.

In my reading of Knights, it appears that the Supreme Court blesses the probationer search condition only if the search is supported by individualized reasonable suspicion. I think that the Court was very clear that they were not deciding whether the search was OK if there was no reasonable suspicion.

Given that reading, I think that we may be better off writing into a condition of probation authorizing searches that reasonable suspicion is required before the warrant requirement is waived so that law enforcement is not misled into thinking that they can just search on an unsupported hunch.

Another idea that I am not sure was addressed in the condition of probation or the Court in Knights is an explicit waiver/consent as a condition of probation. Something in the conditions after the search provision with language like "The Defendant hereby consents to any community supervision officer or law enforcement officer searching his residence, vehicle, etc. at any time." Does anyone see any problem (other than skeptical defense counsel) with that?

Yes, the Supreme Court was careful to decide only if the search before it was reasonable and, therefore, did not decide if a suspicionless search was unreasonable. But the only reason the case got decided that way was because some creative lawyer put the condition (as worded in the Supreme Court's opinion) into an order in the first place. I would not concede that a suspicionless search is bad, and I would not prevent such a search by putting more limiting words into the condition.

On the other hand, I would alert the police to the preference for suspicion. But, unless your police just like to search people, they likely will have focused on the defendant for a particular reason, which is about all you need for suspicion.

As for the consent, if you put that into the condition, you would only shift the litigitation to the issue of the voluntariness of the consent. I'd rather have the judge telling the defendant what to do. The conditions of probation describe the do's and dont's for a the defendant, not his consent to a future action.

I need forms or copies of probation judgments that contain a waiver of P/C or search warrant as a condition of the probation. I would really appreciate any feedback on these forms. Forms can be faxed to Lubbock County D.A. c/o Jennifer Bassett at 806-755-1154.

I would also like to know how many and what counties in TX are implementing this condition.

Our office has been using the Knights search condition in all of our probation pleas for the past year. We have had zero resistance from defendants. The probation dept., however, has watered down the condition in the actual probation conditions that the court signs.

When we complained about this, one of our judges wrote that the district judges had looked into the matter, and they believe that Tamez v. State, 534 SW2d 686 (Tex.Crim.App. 1976) controls and they are bound by that case to not have a condition of probation that probationers submit to searches by police and probation.

What do y'all think?

Isn't Tamez's striking down the California probation search provision merely dicta, since it had already reversed the case? The way it's written it sounds like an advisory opinion.

Also, since Knights has made it clear that the search provision does not offend the US 4th Amend., aren't the only questions left to decide 1) whether Tex. Const. Art. 1, Sect. 9 provides probationers with more protection than the 4th Amend. & 2) Whether the search provision exceeds the court's authority under Art. 42.12, Sec. 3, CCP.

The reasoning in Tamez seems very odd. Does anyone really fear that the present Ct. of Crim. Appeals would throw out a Knight's search of a probationer?

What are your thoughts, and do you think the search provision should be kept in probation orders?

Check out Barnett