The Easiest Way into Someone's Home / Phone / Car

The 4th Amendment protects...OK, I'm not defining this thing again.  If you don't know what it is and how to apply it yet, tune in 102 episodes ago.  I've already covered several of the exceptions to the 4th...a valid consent, a valid search warrant...

Today let's get into arguably the easiest exception to the 4th Amendment...a 4th Amendment waiver.  I'll get into the ins and outs of how to utilize this tool legally, and what experience has taught me regarding what will fly in court and what will be suppressed.

-LEO

Transcript

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Good morning. It's Leo, and I've knocked out several episodes surrounding the Fourth Amendment, from the Fourth Amendment itself to the various exceptions to the Fourth Amendment, such as search warrants, consent to search. Have a separate episode on I was gonna say casual encounters. I think that's from like the old Craigslist days where people would put like, I saw you at Kroger in line and we made eye contact and I felt a connection. No, that was missed connections. I'm way off off base. Anyway, consensual encounters, and there's all kinds of different exceptions to the Fourth Amendment. So today I want to get into one that I haven't touched yet. It's very simple. It can be one of the easiest tools to have in your toolbox, and that is the Fourth Amendment waiver. A lot of people that are on felony probation or parole or federal release will have signed something in their probation paperwork saying that they agree to waive their Fourth Amendment, meaning they can be searched at any time. They don't have a Fourth Amendment anymore. If you're going to use this, you're going to need to understand the paperwork. A lot of time they can just send you a copy of it or hand you a copy of it. Digital age, so they'll probably just email you one. But say you do a traffic stop, and most people are pretty, they'll tell you when they're on probation, parole, whatever, because they know it pops up in the system and that it's a violation if they try to hide it. So a lot of people say, Yeah, you know, I always heard it called being on paper. I'd say, You on paper? And they'd say, Oh, yeah, you know, I'm on paper for some bullshit or for, you know, robbery that I didn't even do or whatever. And I'll go, okay, cool. Are you a Fourth Amendment waiver? Are you a fourth waiver? And a lot of time they'll go, yeah. Or they'll say, I don't know, in which case you find out the name of their PO, you call the PO, the probation officer, parole officer, whatever, and ask them. And a lot of time the probation officer will go, he knows damn well he's a fourth waiver. Yeah, he's a fourth waiver. But he doesn't want to say it because he doesn't want to get searched because he's doing crime. So that goes into building a relationship with your probation officers. You're going to want to have a connection with the right one or two, be it probation, parole, federal, or release, because they do have large caseloads, and some of them are not going to find time for you consistently to call them and bug them about their caseload. Their priorities are going to be elsewhere. So you're going to want the PO that is a little more proactive, probably younger, hasn't been doing it as long, and is going to be more on the ball with it. It's usually better if the supervising officer, be it a PO or federal supervision, federal probation officer or whatever, if that officer can be there, that probation officer, a lot of time they'll come out in my experience. They can also explain to you if they need to be there. In some places, they do need to be there. Some places they can say, nah, go ahead and search. She has no right to any privacy at all, essentially. And they give you the green light to do it. I always like to personally get the paperwork. I'll say, can you email me that fourth waiver? And if I read it and the paperwork says this person can be searched by any probation officer, I'm not doing that search. A lot of time it says any law enforcement officer. And the probation officers often err on the side of caution. And even though it says they can be searched by any law enforcement officer, they go, I want to be there. Like our policy is we're supposed to be kind of directing the search. And you can do the actual searching, but I need to I need to be there to kind of supervise you because it's the person that I'm supposed to be supervising. And they want to know, you know, if they're having to do uh they call it a technical violation, not if the guy's not getting arrested, but he's being put in technical violation. Say he's got a picture in his phone of him holding a gun from the other day. Can I charge him criminally? Probably not, but they could put him in technical violation for stuff like that. Or if he's hanging out with other gang members at part of his paperwork is he can't. Things like that. So, and they also just tend to have a little more pull because these guys know probation can put him back in jail much easier than us, or parole, or whoever. I'm just gonna start calling them POs because I don't need to say probation or parole or federal release or this or that or halfway house people or whatever. The interesting thing about parole, as long as we're differentiating a little bit, when they're on parole, they're they're still in custody. They're still in the custody of the state. They are out, but technically they are in custody and being allowed to be out. That's the main difference between between probation and parole. Probation, you've served your sentence and you're now out being supervised. Parole, you're technically still in custody. So it tends to be a little bit stricter, the rules are getting the paperwork and reading it and understanding it, understanding what the prosecutors expect. If they expect a probation officer to be there, you're gonna need to need to. Understanding what the judges expect. If the judges want the probation officers there, you'll be banging your head against a wall if you're just going, well, the paperwork doesn't say that. Like you're gonna have to find a PO that's willing to come out, or you're just gonna be on the bad side of that judge. Knowing what you can search, again, that comes from reading the actual paperwork that that probation or signed. Usually it'll say pretty much everything: house, apartment, car, phone, everything. But you're gonna want to check that out because if you're gonna be digging through his Instagram messages, if you're gonna be going through his Snapchat, seeing a bunch of stuff, I know you definitely don't want to see, aside from the obvious crime that goes on, you just need to understand the ins and outs of that fourth waiver so that your evidence doesn't get suppressed. So let's say the probation paperwork, the fourth waiver paperwork says he waives his right to any expectation of privacy at 4911 Main Street, Augusta, Georgia. And you find out through your investigation that he doesn't actually live there. You can't really search given that paper. His probation officer might not think of it. And they might go, yeah, he's a fourth waiver. You can search. And then you look at the paper and it has an address on it, as opposed to, again, same investigation. It's revealed that he's not living where he's supposed to be. Yeah, people do do technical violations where they register with probation one place and they lay their head every night somewhere else. And it just says at his address. If it says his address of record, it's probably a no-go. If it says where he resides, he consents to a search of where he resides and you can show that he's residing at a different house. I would take that forward. I would let his attorney argue that in court. And I go, Yeah, I got pictures of him four different days at 7 a.m. coming out yawning with no shirt on. Try to tell me he's not living there if you want to, feeding the dog and everything, meeting the kids at the door. This was this dude's home. He just gave a bomb address to probation. So what can you search? If it says any cell phones, are we going to be comfortable digging through all the apps? A lot of the stuff is not going to be in the text messages. It's going to be in the encrypted apps. It's going to be in the various things. So are you clear? I would say yes. If it says the cell phone and all of its contents, I would say that all that stuff that's really in the cloud is accessible to the law enforcement officer that's doing the search. But make sure that you're within the bounds of whatever the case law is. And you're, I mean, hopefully having, I've talked a lot about having a good relationship with the prosecutor's office and telling them, like, hey, this guy's a fourth waiver. Uh, here's what I'm going to be doing. And if they freak out, they freak out and you need to readjust. Another thing you need to know is a fourth waiver is often not enough to just go out and do a search on someone's house. So I'll give you an example. I had a target on West 38th Street, and I knew he was selling cocaine. I busted a dude with five ounces of crack, and he got to telling me about a dude that sells quarter keys, sells nine ounces of Coke at a time. So I'm like, okay, cool. Tells me all about him. I look that dude up. Dude is a Fourth Amendment waiver. But do I have enough to go do the search? Obviously, the aggressive young cop in me says yes. And I can say it with all the confidence I want. But I talked to the prosecutor, luckily first, because they would not have prosecuted that case. And I ended up getting a good amount of dope and like five grand and I think a pistol out of that dude's place. And that would have all been for naught because they what they said is, and I think it was in the fine print of the paperwork, the officer doing the search must have a reasonable, articulable suspicion to do it. And they didn't feel that this drug dealer giving me this name and me looking him up and seeing he was on probation for drugs, they didn't feel it was enough. So I ended up having to do some surveillance and do some other techniques, not to build probable cause for a search warrant, but to build a reasonable, articulable suspicion, a lower standard than PC. But they wanted me to have something. As soon as I got that, which I got very quickly with a little surveillance, I didn't get PC for the house, but I went straight back to that same prosecutor. They liked it because I actually did what they said without running my mouth. I probably moaned a little bit when they said, go do your job. And then I went and did it. And I came to him and said, Hey, here's what I saw. Here's what I saw him doing on the porch. And they said, go do the search. I got the probation officer. We went out there. We had a nice conversation about the niacin that he had, which people use to beat drug tests. And he tried to tell me that he takes it as a vitamin. I was like, oh, what's niacin? What's that supposed to do for you, bro? So I had a little fun, I trolled him a little bit because people just eat a bunch of it before their drug tests to beat it. But that was a very easy case to make and get a trafficking cocaine charge against that guy, the minimal effort with the Fourth Amendment waiver. And I did bring probation with me out on that one. I do remember specifically, I had a good PO at the time that I was working with. She was very aggressive. She ended up becoming a cop in the same area, but she was like wannabe cop at that time, which was great because we had the same goals. And a lot of the probation officers, we didn't have the same goals. I had another one that I avoided at all causes, all costs to work with. First, I blame him for getting me shot at one time because he should have violated the guy multiple times and didn't. And then the dude almost blew my head off. So I do blame him for that. But another time he went out, oh, actually on that same dude and was watching him through the window flush heroin down the toilet. And the dude just refused to come to the door. And I mean, I don't know what their rules are, but it seemed crazy. You're flushing heroin and you're saying you can we can't go in that place. And then the dude says, I'm not coming out. I am not doing a drug test today. Flat out. Dude's like, come out, I need you to pee in a cup. He's like, I ain't doing that. And he did not violate him for any of that. So I try to avoid people that are like that and get with the people that are either want to be cops and so they're working hard or just take pride in effectively supervising their person. So fourth waiver, great tool. You must understand it. The simplest way to do that is to just read it. And if you don't understand something in the print, then ask the probation officer how they interpret it, or ask somebody at the DA's office that is likely to inherit the case. Even if they don't get the case, you can say when you send it up, you know, if Johnny Prosecutor looks at you crazy, say, hey, I talked to Janie. Janie said this, I did exactly what she said. Like, please talk to your coworkers because I consulted with you guys. I'm trying to do the right thing here. To find the right PO. It's definitely better if they're there, though they're not always. And some people will just consent to search when you start talking about a fourth waiver. It'll go something like this. Hey, man, you on paper? Yeah, yeah, I got like seven years left. All right. You want to talk about them charges or what? Nah, hell no. That's in the past. All right, cool. Are you a fourth amendment waiver? Man, I think so, but you can search. There's nothing in the car. That's how it goes a lot of times. And that's exactly where you end up without even asking. They see where you're going. There's either nothing in the car or they think their goose is cooked. And so they just go ahead and say, yeah, go ahead. Generally in that case, they are a fourth waiver and they know it. But use it, keep it in your pocket. It's simple in the preliminary stages of investigation. If you want to skip, you know, all the risks that come with doing buys, doing pickoffs, surveillance in bad areas, trash pulls, disgusting but necessary techniques, if you want to just bypass all that, it's kind of a cheat code of just, nah, I'm just going to come search. Just make sure you're within the bounds and what you can search. Because if you don't know, you don't want to be on the scene. I mean, if if that's what the situation dictates or or deals you, you know, if you do a traffic stop and you find out then that they're a Fourth Amendment waiver, that is what it is. You're trying to figure it out now. And if it's one in the morning, you may not get a hold of the on-call probation officer. But if you have, if you can give them advanced notice, you can really work through exactly what their paperwork means. And you can ask that specific question. Hey, I see it says search cell phones and devices. That includes apps on phones, right? That's everything. And they'll be like, yeah. And boom, now you're good. So all right, I hope this hope. I hope this hopes some of y'all. I hope this helps some of y'all and you can apply this technique. It's just a shortcut, man. And most places you got so much work available, you know, if you can, if they're a fourth waiver and you can just get it knocked out, man. Let's go.