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Illegal Search of a Probationer at a Traffic Stop

Many criminal  or violation of probation cases start when drugs are found after search at a traffic stop or or other offenses are discovered via the stop such as violation of a curfew or license restriction. This is particularly problematic for people on probation. New criminal law violations are substantive violations, everything else is a technical violation of probation. 

A recent case from the Second District is an example of why a stop for speeding, running a stop sign or other traffic infraction is a problem for probationers. An officer stooped a vehicle for not coming to a complete stop at a stop sign. The officer testified that his standard procedure was to run a license check and a warrants check that informed the cop that the driver was on probation. Being on probation or recently released from jail or prison will normally lead an officer to ask more questions as it did in this case.

The probationer believed that he could not decline the request to search because he was on probation and the officer did not refute  or clarify the misconception. Furthermore, the officer kept the probationer’s license. Keeping a driver’s license and not knowing that he could decline the request for consent to search were important factors to finding the search to be illegal.

A standard condition of probation is that a probationer must answer truthfully and consent to search by his probation officer. Essentially, while on probation, you are stripped on most of your 4th amendment ad 5th amendment rights to your probation officer. This is generally referred to as the probation exception to the warrant requirement. Probation officers may execute warrantless searches of a probationer’s home or workplace. However, this exception, waiver or stripping of rights does not extend to all law enforcement officers.

To support a warrantless search by consent the State has the burden to show that the consent was freely and knowingly made. Officers are not required to advise citizens of the right to refuse consent, however awareness of the right to refuse a search is also important. In addition, a traffic stop must last no longer than the time it takes to write the traffic citation.

All circumstances following the stop have to be taken into account. Whether or not someone has been seized is evaluated by the totality of the circumstances. The totality of the situation should lead to the conclusion that a criminal defense lawyer is needed. The firm’s primary focus is criminal and traffic defense. Click or call to discuss the case in a free consultation.

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Villanueva v. State 2D15-1422