21st-quarterly-report.pdf

Twenty-First Quarterly Report of the Independent Monitor for the Oakland Police Department May 4, 2015 Page 53 of increasing attention being given to procedural justice and its focus on legitimacy. Probation and parole searches present a unique law enforcement ability for police officers in the state of California. These searches assist officers with determining whether probationers and parolees are engaging in the same past conduct – i.e., continuing to possess drugs, weapons, stolen property, and/or other contraband. This ability, according to the Court of Appeals, tends to “minimize the risk to the public safety inherent in the conditional release of a convicted offender.”14 As the California Supreme Court observed in In re Tyrell J., “[A] probationer must thus assume every law enforcement officer might stop and search him at any moment. It is this thought that provides a strong deterrent effect upon the [probationer] tempted to return to his antisocial ways.”15 Before conducting a probation/parole search, officers need to make sure that: 1) the person whose property they want to search is subject to a search condition; and 2) the place or thing they want to search is searchable under the terms of probation. Neither reasonable suspicion nor probable cause is required to conduct a probation search. In other words, probation searches may be conducted regardless of whether officers have reason to believe the probationer has committed a new crime or is otherwise in violation of probation.16 OPD clearly has the legal authority to conduct these searches; however, when applying the concept of procedural justice, the question goes to whether, though it may be legal, the search is legitimate in the eyes of the person searched – or for that matter, others. OPD is acutely aware of these findings and has intensified its examination of variances in recovery rates, as well as the several factors surrounding the stops and searches of individuals on probation/parole. We encourage OPD command staff to continue its examination of this data in an effort to address any disparity of stop data by race and the recovery rates per squad. Task 34.3.1 requires that OPD have a stop data database that can be summarized, searched, queried, and reported by personnel authorized by OPD (compliance standard: Yes/No). Special Order 9042 requires that officers “complete an electronic FBR [Field Based Reporting] Stop Data Collection Form (SDF) for certain arrests, every detention not resulting in an arrest (vehicle, walking, and bicycle stops), every consent search of a person conducted and any other 14 People v. Constancio (1974) 42 Cal.App.3d 533, 540. ALSO SEE People v. Reyes (1998) 19 Cal.4th 743, 752 [“The state has a duty not only to assess the efficacy of its rehabilitative efforts but to protect the public, and the importance of the latter interest justifies the imposition of a warrantless search condition.”]. 15 (1994) 8 Cal.4th 68, 87. ALSO SEE People v. Mason (1971) 5 Cal.3d 759, 763 [“With knowledge he may be subject to a search by law enforcement officers at any time, the probationers will be less inclined to have narcotics or dangerous drugs in his possession.”]; People v. Bravo (1987) 43 Cal.3d 600, 610; In re Anthony S, (1992) 4 Cal.App.4th 1000, 1002, fn.1 [“Being on probation with a consent search term is akin to sitting under the Sword of Damocles.”]; People v. Turner (1976). 16 A search clause may specifically require reasonable suspicion. See, for example, People v. Kasinger (1976) 57 Cal.App.3d 975, 977; People v. Constancio (1974) 42 Cal.App.3d 533, 537; People v. Bravo (1987) 43 Cal.3d 600, 607, fn.6 [reasonable suspicion requirement will not be implied]. This is very rare, however, because most judges consider such a term to be counterproductive; i.e., the effectiveness of search clauses depends on the probationer’s knowing that he can be stopped and searched at any time—not just when officers have developed reasonable suspicion. See In re Tyrell J. (1994) 8 Cal.4th 68, 87; People v. Mason (1971) 5 Cal.3d 759, 763; People v. Bravo (1987) 43 Cal.3d 600, 610; In re Anthony S, (1992) 4 Cal.App.4th 1000, 1002, fn.1.