Is a probation condition that requires a probationer to participate in a field interrogation valid under the Fifth Amendment?

Like a standard probation search condition, a field interrogation probation condition is a correctional tool that can be used to determine if defendant is complying with the terms of his or her probation. (People v. Reyes (1998) 19 Cal.4th 743, 752.) A

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probation condition is valid under the Fifth Amendment unless there is a reasonable basis for concluding an impermissible penalty has been attached to the exercise of the privilege. (Minnesota v. Murphy (1984) 465 U.S. 420, 436-437 [104 S.Ct. 1136, 79 L.Ed.2d 409].) Minnesota v. Murphy upheld a probation condition which required the probationer to be truthful to the probation officer in all matters against a claim that the defendant's Fifth Amendment right to remain silent was violated.

The field interrogation probation condition does not compel a defendant to make incriminating disclosures and does not place an impermissible penalty on defendant's Fifth Amendment privilege. It merely requires him to "[s]ubmit to and cooperate in a field interrogation by any peace officer." While probationers have long been required to "cooperate" with their probation officers, a probationer is not foreclosed from asserting his Fifth Amendment privilege, and it would not be inherently uncooperative for him to assert that privilege. (See United States v. Davis (1st Cir. 2001) 242 F.3d 49, 52 [finding no realistic threat of having the defendant's probation revoked in a requirement to "cooperate" with the probation officer].)

Further, law enforcement officers may not use probation conditions to conduct searches or interrogations for purposes of harassment. (See People v. Woods (1999) 21 Cal.4th 668, 682; People v. Bravo (1987) 43 Cal.3d 600, 607.) Accordingly, we conclude defendant's Fifth Amendment privilege has not been infringed by the field interrogation probation condition.

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