Can a search warrant officer rely on a later discovered probation search condition under a theory of advance consent?

California, United States of America


The following excerpt is from People v. Douglas, 193 Cal.Rptr.3d 79, 240 Cal.App.4th 855 (Cal. App. 2015):

In a context somewhat similar to ours, People v. Lazalde (2004) 120 Cal.App.4th 858, 15 Cal.Rptr.3d 904 applied the objectively reasonable belief in consent standard, citing Machupa, supra, to determine whether an officer who conducted a search under an invalid search warrant without knowledge that the defendant was on probation could nevertheless rely on a later-discovered probation search condition under a theory of advance consent. The Sixth District held the advance knowledge requirement foreclosed any such reliance. ( Id. at pp. 863-865, 15 Cal.Rptr.3d 904.) "As it is undisputed that the searching officer here was unaware of who appellant was or that he was subject to a search condition, the officer could not have believed that he had appellant's consent to

[193 Cal.Rptr.3d 91]

search." ( Id. at p. 865, 15 Cal.Rptr.3d 904.)

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