Lost in Probation: Contrasting the Treatment of Probationary Search Agreements in California and Federal Courts


In the administration of a state or federal probation system, a criminal defendant who is placed on probation often signs a "consent-to-search" agreement. This agreement contains a clause in which the probationer consents to suspicionless, warrantless searches of his person and residence for the duration of his probationary term. Searches pursuant to these agreements have generated a number of cases challenging their constitutionality. Specifically, several defendants who have been searched pursuant to their probation agreement and later prosecuted have invoked the Fourth Amendment, arguing that the exclusionary rule demands that such evidence be deemed inadmissible in a subsequent criminal trial.

But federal and state courts have failed to provide a consistent legal analysis in deciding such cases. On one hand, California courts hold that consent-to-search agreements eliminate a probationer's privacy protection, and the exclusionary rule challenge typically fails. On the other hand, federal courts reason that such agreements constitute only one factor in the expectation of privacy balancing test, and thus hold that searches pursuant to these agreements must meet some reduced level of constitutional scrutiny. In this Comment, the author explores this level of scrutiny in the wake of the Supreme Court's decision in United States v. Knights, and argues that federal courts should adopt the more logical and straightforward California approach.

About the Author

Senior Editor, UCLA Law Review, Volume 51. J.D., UCLA School of Law, 2004; B.S., UCLA, 2000.

By uclalaw