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Atlanta Criminal Defense Lawyers > Blog > Drug Crimes > Can I Refuse a Police Search If I’m on Probation?

Can I Refuse a Police Search If I’m on Probation?


The Fourth Amendment to the U.S. Constitution normally protects a person’s right to be free from “unreasonable search and seizures.” This means that, absent certain exceptions recognized by the courts, the police must first obtain a warrant before searching you or your property without your consent. Such a warrant requires a magistrate to find there is “probable cause” that the search will uncover evidence of criminal activity.

But these protections are not as strong for a person who is already serving a term of probation following a prior criminal conviction. As a condition of probation, judges often require a probationer to waive their Fourth Amendment rights and consent to any search of their person or property at any time–even if the police do not have a warrant. The police must still have “reasonable suspicion” before conducting a search. In other words, they cannot simply use a baseless search as an excuse to harass the probationer.

Court Upholds Search of Probationer’s Roommate Due to Lack of “Express” Refusal

A recent Georgia Court of Appeals decision, Martin v. State, illustrates how a probationer’s limited Fourth Amendment rights can actually affect third parties in certain situations. In this case, a woman was previously convicted for illegal possession of meth. She negotiated a plea agreement with the state. In exchange for her guilty plea, the court sentenced her to 3 years probation. The terms of her probation included a Fourth Amendment waiver that allowed the police to search her home at any time without a warrant.

While on probation, the probationer shared a bedroom with a man, the defendant in this case. One night, a probation officer went to check on the probationer after she failed a previous drug test. She was not at the address she provided to the probation officer. Instead, she was at another residence with the defendant.

When the probation officer arrived at the correct address, he decided to conduct a search of the bedroom. The defendant did not object at the time. The probation officer found a black bag in the bedroom. There were drugs in the bag. Police then arrested and charged both the defendant and the probationer. At trial, the probationer testified the drugs belonged to the defendant.

A jury convicted the defendant on three counts of drug possession. On appeal, he argued the evidence found by the police search was inadmissible since he never waived his Fourth Amendment rights. The Court of Appeals rejected the argument and upheld the defendant’s conviction. The appellate court noted the probationer’s waiver allowed for the bedroom search and since the defendant never expressly refused consent, his roommate’s waiver was sufficient. Put another way, since the defendant never raised an objection to the search at the time, the police were allowed to infer his consent.

Contact Hawkins Spizman Trial Lawyers Today

The critical lesson here is that you should never stand by and acquiesce when the police want to search you or your property. You can–and should–object. And if you are placed under arrest, your first call should be to a qualified Georgia drug crime lawyer. Contact Hawkins Spizman Trial Lawyers today to schedule a free consultation. We serve clients throughout Georgia including Atlanta, Dunwoody, Alpharetta, Cobb County, Fulton County, Gwinnett County, Johns Creek and Sandy Springs.



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