On November 30, 2017, the Ninth Circuit Court of Appeals held, in Smith v. City of Santa Clara, 2017 U.S. App. LEXIS 24307 (9th Cir. Nov. 30, 2017), that the search of a probationer’s residence was permissible under federal law, despite the objection of a co-occupant and the non-presence of the probationer.


In October 2010, Santa Clara police investigated a car theft and stabbing.  The victim identified Justine Smith (“Justine”) as the driver of his stolen car.  Santa Clara police learned that Justine was on probation since December 2009 for grand theft and forgery.  As part of the terms of probation, Justine had agreed to warrantless searches of her residence.

Santa Clara police learned of the address that Justine had twice reported as her residence. After conducting a brief surveillance of the duplex at the address without seeing Justine, Santa Clara police officers knocked on the door of the address, and announced, “Probation search.  Open the door.” Plaintiff Josephine Smith (“Josephine”), Justine’s mother and co-occupant at the duplex, opened the door. Josephine declared that Justine was not there, and demanded a search warrant.  After the officers repeated that they needed to conduct a probation search, Josephine refused entry.  The officers entered the home despite Josephine’s objections.  The officers did not find Justine at either unit of the duplex.

Josephine filed a suit against the City of Santa Clara and individual police officers alleging state and federal constitutional violations, including a Fourth Amendment claim of unreasonable search and seizure under the Bane Act, Cal. Civ. Code section 52.1(a)-(b).[1] The District Court granted summary judgment to the individual defendants on the Fourth Amendment claim, finding they were entitled to qualified immunity.

At trial, Josephine sought judgment as a matter of law on her Bane Act claims on the grounds that she was present and refused consent to the search, and that therefore the search was unreasonable under Georgia v. Randolph.[2]  The District Court denied her motion for judgment as a matter of law and let the case go to the jury.  The jury found for the defendants on the Bane Act claim. Josephine appealed the District Court judgment regarding the Bane Act claim, contending that her presence and objection to the search required the officers to obtain a warrant before conducting the probation search of Justine’s residence.


The Ninth Circuit Court of Appeals affirmed the District Court’s judgment.  The Court initially observed that “It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.”  Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) (internal quotation marks omitted).  One exception to this principle is that the police generally may search a home without a warrant if they have obtained voluntary consent from the individual whose home is searched. (Citations omitted).  Under this “voluntary consent” rationale, a search will also be valid against an “absent, nonconsenting person” so long as the police obtain the consent of a person who possesses common authority over the home with the absent person.  United States v. Matlock, 415 U.S. 164, 170-71, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974).  In Randolph, the Supreme Court recognized a limitation on warrantless consent searches of a home.  In that case, the Court held that even if a person who apparently possesses common authority over a home consents to a warrantless search, the search is not reasonable as to a second occupant if that occupant is physically present and refuses permission to search. 547 U.S. at 120.

The Court noted that although the Supreme Court in Randolph recognized a limitation on consent searches, Randolph was not directly applicable to the present case because the Supreme Court’s probation-search cases did not rest on a consent rationale.  Instead, the Court of Appeals followed the totality-of-the-circumstances approach used by the Supreme Court in United States v. Knights.[3]  The Court of Appeals said that the proper question was whether a warrantless probation search that affects the rights of a third party was reasonable under the totality of the circumstances.  Answering this question, the Court explained, required balancing the degree to which a search intruded upon a third party’s privacy rights against the degree to which the search promoted legitimate governmental interests.

The Court of Appeals observed that, in assessing these interests, the Supreme Court in Knights determined that “Knights’ status as a probationer subject to a search condition” informed both sides of the reasonableness balance.  Id. at 119.  On the individual-privacy side of the balance, the Court found that the probation condition significantly diminished Knights’ reasonable expectation of privacy.  Id. at 119-20.  On the governmental interest side of the balance, the Court recognized that “the probationer ‘is more likely than the ordinary citizen to violate the law.'”  Id. at 120 (quoting Griffin, 483 U.S. at 880).

In applying these standards, the Court of Appeals noted that Santa Clara police officers knew at the time of the search that Justine was on probation for serious offenses.  The Court also noted that police had probable cause to believe that Justine had just been involved in a violent crime and car theft, and that she was still at large.  The Court stated that once the government has probable cause to believe that a probationer has actually reoffended by participating in a violent felony, the government’s interest in locating the probationer and protect the public was heightened.  The Court found that this heightened interest in locating Justine was sufficient to outweigh Josephine’s privacy interest in the duplex that she shared with Justine.  Thus, the Court concluded that, under the undisputed facts of this case,[4] the governmental interests at stake were sufficiently great that the warrantless search of Josephine’s duplex over her objection was reasonable as a matter of law.


The Ninth Circuit was careful to limit its holding in Smith.  Specifically, the Court stated, “We stress that our conclusion is limited to the facts of this case, where the police had probable cause to believe that the probationer, who was on probation in connection with serious offenses, had just participated in a violent felony and was still at large.  We express no view as to what would happen in a case in which the police conduct a search—over the objection of a present and objecting co-occupant—of a probationer’s residence who is on probation for offenses that are neither violent nor serious, and who is not suspected of involvement in a subsequent offense.”  The Court also noted that, since Randolph, the California Supreme Court had not considered whether a warrantless probation search of a residence would be unreasonable as to a present and objecting non-probationer co-occupant.  As such, it is incumbent upon agency personnel to be aware of the limitations on case law precedent in the probationer search context in order to avoid potential civil liability, and exclusion of evidence obtained in criminal proceedings.

As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com.

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[1] The Bane Act provides a cause of action for individuals whose “rights secured by” federal or California law have been interfered with “by threat, intimidation, or coercion.”

[2] 547 U.S. 103 (2006).

[3] 534 U.S. 112 (2001).

[4] The appellate court stressed that their conclusion was limited to the facts of this case, expressing no opinion as to a case in which the police conduct a search – over the objection of a present and objecting co-occupant – of a probationer’s residence who is on probation for offenses that are not violent nor serious, and who is not suspected of involvement in a subsequent offense.