California's Fourth Amendment Soup: the Parole Search Exception After People v. Schmitz and Its Application to Third Persons

• Publication year: 2016
• Author: By Daniel Woislaw

CALIFORNIA'S FOURTH AMENDMENT SOUP: THE PAROLE SEARCH EXCEPTION AFTER PEOPLE V. SCHMITZ AND ITS APPLICATION TO THIRD PERSONS

By Daniel Woislaw^*

I. Introduction

The interests of society in security and order often conflict with the interests of individuals in liberty and autonomy. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"¹ embodies an ideal of freedom that sparked the American Revolution almost two and a half centuries ago, and yet still today is the subject of public discourse and debate. That language, of course, traces from the Fourth Amendment and informs the debate respecting law enforcement's relationship with parolees and probationers.

Even after the Supreme Court clarified the extent to which the Fourth Amendment applies to individuals on parole in Samson v. California,² many questions remain unanswered regarding how the parole search exception applies to the liberty and privacy interests of third parties who might be swept up in the search of a parolee. The California Supreme Court took a substantial step in the direction of answering this question in People v. Schmitz, when it held that a police officer's search of a driver's vehicle without probable cause did not violate the Fourth Amendment where the front-seat passenger was a parolee.³

In order to explain the Supreme Court of California's reasoning and properly illustrate its deficiencies, it is necessary to examine each of decision's components in turn. The case references several fundamental doctrines in Fourth Amendment jurisprudence, including the common authority doctrine, the automobile exception, and the parole search exception. Although the Court considered all those concepts to arrive at its ultimate conclusion, it failed to adequately consider the privacy interests of third persons within the parole search context.

Fourth Amendment warrant exceptions have been crafted and defined by the Supreme Court to obviate the need for a multi-doctrinal approach to search and seizure cases.⁴ An exception either applies or does not; there is no pairing or spillover effect. None of the Fourth Amendment doctrines relied upon by the court were applicable to the facts in Schmitz, primarily because of the parolee's lack of authority or control over the vehicle in which he traveled as a mere passenger, and particularly in relation to the driver's more substantial privacy interest in the vehicle as a whole.

II. Background

A. Consent Law and Separate Privacy Interests

Fourth Amendment consent jurisprudence, although expressly disclaimed by the court as a basis for its decision in Schmitz,⁵ plays an important role in the framing of authority and control, which are important components in differentiating the contours dividing a third person's privacy interest from that of a parolee. At first glance, the idea of allowing one person to consent to the search of another offends American notions of autonomy and individualism. Yet, the law commonly affords this privilege in key areas of Fourth Amendment jurisprudence.⁶

It is true that third parties may consent to the search of another's property, and even that such searches are presumptively reasonable,⁷ but in order to consent, one must have the authority to do so.⁸ And beyond that, the authority of a third person to allow others access to property for some purposes does not result in authority of that third person to consent to its use for all purposes, particularly those of law enforcement. For example, the Supreme Court held in Chapman v. United States that a landlord with the authority to enter his tenant's residence and ensure he was not committing waste did not grant the landlord authority to consent to a law enforcement search of the leased premises.⁹

Furthermore, the authority for third party consent typically turns upon common access, use, or control over the real or personal property searched. In Frazier v. Cupp, the Supreme Court upheld the search of a duffle bag the defendant had allowed his cousin to use upon the cousin's consent.¹⁰ And in Schneckloth v. Bustamonte, it held that a driver had authority to consent to the search of his brother's car.¹¹ Thus, ownership of property, or limited access thereto, is not dispositive in determining the authority to consent. The Court articulated as much in United States v. Matlock:

Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.¹²

This standard should be the line dividing the scope of a third person's privacy interest against a nearby parolee. But the Schmitz court did not dispute the requirement of "common authority" for a residential search. Rather, it distinguished residential searches from automobile searches based on the lower privacy interest attached to mobile vehicles.¹³ In doing so, it dismissed the intermediate appellate court's reliance on People v. Woods¹⁴ that led that court to conclude "the permissible scope of the parole search was narrowly confined to the parolee's person and the seat he occupied."¹⁵ In Woods, the Supreme Court of California upheld the search of a probationer's residence conducted for the purpose of gathering evidence against the probationer's cohabiting boyfriend.¹⁶

Justice Corrigan, writing for the majority in Schmitz, continued past the common authority doctrine in the context of vehicles by alluding to Supreme Court cases discussing the lesser privacy interest of automobiles.¹⁷ Yet, no judge would dispute that a car may be searched entirely without consent in the presence of probable cause. In fact, the Supreme Court adopted the automobile exception to the warrant requirement as a bright-line rule to manifest that lower privacy interest in an easy to apply rule of procedure.¹⁸ The Schmitz majority also relies in substantial part upon the logic in Maryland v. Pringle, where the Supreme Court held that all passengers in a searched vehicle could be said to have exercised "dominion or control" over drugs found in the backseat.¹⁹

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However, Pringle focused upon whether an arrest was made with probable cause, rather than whether the search of an entire vehicle was properly consented or fell within a warrant exception.²⁰ Moreover, it was the driver in that case who consented to the search,²¹ not a mere passenger. Furthermore, the role that "dominion or control" played in Pringle was not to determine authority to consent, but whether probable cause existed for an element of the crime charged.²² That Justice Corrigan brushed past the absence of consent in Schmitz to discuss the lower privacy interest in automobiles and the status of parolees displays a willingness to create an amalgam out of separate Fourth Amendment doctrines—doctrines the Supreme Court has endeavored to separate and clarify.²³

B. The Automobile & Search Incident to Arrest Exceptions

In the absence of consent, probable cause alone will permit the search of an automobile.²⁴ It is no wonder, then, that the Schmitz court spent some time discussing the lower privacy interest in automobiles.²⁵ However, the Supreme Court has already articulated a narrowly circumscribed framework for determining whether an automobile may be subject to a warrantless search in conformity with the Fourth Amendment. The test is simple: if a vehicle is readily mobile, and probable cause exists that it contains evidence of crime, it may be searched without a warrant.²⁶ Why then did the California Supreme Court not decide this case on the basis of the automobile exception alone? The answer to that question is likewise simple. Probable cause did not exist to justify the search of the vehicle. Instead, the California Supreme Court ultimately accepted the prosecution's argument that a lower privacy interest in automobiles coupled with a parolee's access to the contents of that vehicle authorized the officer's search.²⁷

Yet, the Supreme Court of the United States stopped substantially short of declaring that no privacy exists in automobiles, choosing instead to give form to that lower privacy interest by sculpting it into the automobile search exception.²⁸ And the Court has been careful over the years to delineate the automobile exception from other exceptions to the warrant requirement.²⁹ The Court articulated this separation in a string of cases distinguishing the automobile exception from both the exigent circumstances exception³⁰ and the search incident to arrest exception.³¹

Since neither the Supreme Court of California nor the appellate court below found that that the officer in Schmitz had probable cause to search the defendant's vehicle,³² the automobile exception does not provide authority for the search conducted; given the Supreme Court's aversion to blending warrant exceptions, alluding to the lower privacy interest of automobiles ought not to have carried any probative value in determining the permissibility of the officer's search. Such considerations of privacy might be relevant to a Katz analysis in determining whether a search had occurred,³³ but Schmitz recognized that a search occurred, holding merely that it was "reasonable."³⁴

Since there was a search, no warrant, and no probable cause to search the vehicle in Schmitz, then another warrant exception must have applied for the search to be "reasonable" under the Fourth Amendment. Aside from the parole search exception, discussed infra,³⁵ the only discernable exception that could have carried...