Answer: It depends on who owns the safe, who uses/access the safe, the terms of the probation, and the laws of the state.
In the article that follows, we’ll explain.
Can a Probation Officer Search a Safe? (Explained)
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Terms of Probation
First and foremost, the authority of the probation officer in the specific case comes from two places: the orders of probation, and the laws of the jurisdiction.
Most defendants who are ordered to supervised probation are giving some pretty specific rules, such as:
- don’t use illegal substances
- get a job or enroll and attend school
- get evaluated for treatment or counseling
- attend recommended treatment or counseling
- violate no laws
- consent to search of person, vehicle, or residence
The terms of the probation may require the defendant to consent to “reasonable requests to search” from the probation officer.
The terms of the probation may require the defendant to consent to any request to search by the probation officer, day or night.
Who Does The Probation Apply To?
The terms of probation only apply to the defendant/probationer.
The court has power over the defendant by virtue of the charges filed, the service/arraignment of the charges, and the defendant’s conviction.
People on the street (even family members or friends) are not subject to the court’s orders.
The fact that the defendant is required to allow a search does not mean that others have to consent, such as friends, family, or even roommates.
Extent of Search
A probationer defendant is required to give consent to the requested search, but his consent cannot overcome the legal rights of others.
For example, let’s say that the defendant is standing next to a red car.
The defendant does not own the red car, nor does he have keys to it or control over it.
He doesn’t even know who owns it.
His probation officer demands an opportunity to search the vehicle, which defendant cannot lawfully give.
If the probation officer searches the red car, he will have conducted an unlawful search.
When it comes to items, rooms, spaces in a residence, the defendant can only consent to search of areas that he uses or controls.
This means that he can consent to the search common areas (kitchen, living room, den, shared bathrooms) because he has the right to use them, and does use them.
This means that he cannot consent to the search of areas in the house that he does not use, and doesn’t enter or spend any time in, or have lawful right to be.
This comes up often when there is a locked shed or garage on the property.
If officer’s believe that the defendant has use of or access to an area that no one will provide consent to search, the officers have the option of leaving or following up with a warrant.
What About The Question Of The Locked Safe?
Will the officers search the safe?
First question to answer is whether the terms of probation and the laws of the state allow the search.
If the safe is located in the residence, vehicle, or on the person of the defendant, the answer is probably yes, the safe is something that falls within the realm of search.
If the safe were located at a place of employment, or at some other location that the defendant does not control, then a warrant would probably be necessary.
Second question to answer is whether the defendant has access, use of, or control of the safe.
if the defendant has put items in the safe, if the defendant uses the safe, or has control of the safe, it is probably something the officers can request to search.
If the safe is not located in a common area, the defendant has no control over the safe or access to it, and the defendant has no legal authority to authorize a search of the safe, then officers would have to get a warrant to force entry into the safe, unless the actual legal owner of the safe consents.
But What About the Lock?
Does consent to search mean opening the safe for the officers to look through?
If the defendant/probationer has the legal authority to control the safe and can open it, probation officers can request that he do so to facilitate the search.
But if defendant chooses not to open the safe to allow the search, that could be construed as a refusal.
What If The Defendant Can’t Open It?
If defendant cannot open the safe to give officer’s access, there’s a few things that can be done, depending.
The defendant could find the person who can open the safe (like a co-owner), and that person could open it.
The defendant could consent to the seizure of the entire safe, or professional opening of the safe by a third party.
The government could open a warrant to force the opening of the safe, if defendant can’t open it and refuses to consent to seizure.
The government could decide that it sounds like too much work and leave it alone.
Hiding Contraband In Roommate’s Safe
It is common for roommates to try and get around the custody and control aspect of the search by asking the roommate to keep contraband (weapons, for example) in a safe in the roommate’s space.
Generally, this is not a recommended course of action.
Just because the safe is located in the roommate’s bedroom doesn’t mean that officer’s won’t ask to see into any safe in the house, and the location of defendant’s possessions inside the safe is pretty solid evidence that the defendant has use/access to it even if he doesn’t know the code.
Lying to the police about the existence of a safe is not a recommended course of action either.
There’s certainly room for disagreement on the validity of this strategy that is both specific to where the case is located and who the probation officers are.
Instead of rolling the dice on a probation violation (and sanctions), it is generally best practice to just remove all contraband from the premises so that defendant is not at risk of a violation regardless of what gets searched.
Concerned About a Warrantless Search of a Safe?
Talk to a local attorney who specializes in search and seizure law (criminal defense, tort law, or constitutional rights).
It is best to get questions answered early, so you can be prepared to act when the time comes to give consent or not.
Want to learn more about your criminal justice system?
Browse our free legal library guides for more information.
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