Right of a Probationer to Refuse Consent to Search by Police

Offenders on probation have to follow strict rules to ensure their freedom including permitting AP&P officers to visit them at home and work, conducting searches anytime without a warrant; however the Fourth Amendment protects the probationer the right to refuse consent to search when approached by the police.

Knock and talk


Photo by: Chris Yarzab

Police officers will often use a controversial investigative technique called a “knock and talk” to gather information and possibly gain admission to a residence without having reasonable suspicion of a crime. This is done simply by knocking on the door and asking to speak to the resident or even asking to come in. The neighboring Ninth Circuit Court of Appeals which governs appeals in the western U.S. stated “T]here is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s “castle” with the honest intent of asking questions of the occupant thereof — whether the questioner be a pollster, a salesman, or an officer of the law.”

Come on in!

Donald William Fretheim of Cedar City Utah was on probation following a conviction for drug possession and distribution when a pair of officers with the narcotics division used the knock and talk approach at his door. While investigating a drug case in the neighborhood, they found their way to Fretheim’s apartment. The officers asked Fretheim if they could come into his apartment to speak with him to which he agreed and willfully let them enter.

Consent to search

Once inside Fretheim’s apartment, the officers spotted a soft drink can on the ground that appeared to have been constructed into a cheap pipe used to smoke marijuana. When questioned about it, Fretheim admitted it was drug paraphernalia and gave the officers consent to search the rest of his apartment. The consensual search turned up with additional paraphernalia along with marijuana and methamphetamine. After being read his Miranda rights, Fretheim confessed to the police officers that the drugs and paraphernalia were his.

Probation searches apply to AP&P officers only

Consent to Search

Photo by: Hernán Piñera

Since Fretheim was on probation, he assumed he had to comply with the police officers’ request to speak with him, enter his home, and search his belongings. The reason he thought this was possibly due to the declaration in the Probation Standard Conditions issued by the Utah Department of Corrections stating that being a probationer, he must “Permit officers of Adult Probation and Parole to search [his] person, residence, vehicle or any other property under [his] control without a warrant at any time, day or night upon reasonable suspicion to ensure compliance with the conditions of the Probation Agreement.”

Mistakenly waived Fourth Amendment rights

Unfortunately, Fretheim was unaware that although he was on probation, his Fourth Amendment rights still allowed him to refuse consent to search as long as it was not by an AP&P officer. When he permitted officers to not only enter his apartment but to search his home as well, he waived his Fourth Amendment rights to search and seizure. Even though he was unaware of his right to refuse consent to search, he gave his permission so the consent was deemed valid in court.

Know your rights

When police knock at the door it can be intimidating and most residents wish to be compliant with law enforcement. It may seem illegal to deny them entry to a home and feel downright criminal to ignore the door completely. This is why it is important for individuals to understand their constitutional rights, especially during “knock and talk” approaches when the police have no legal reason to be at their home. Unless an officer has a warrant or demands to enter, the occupant has a choice. If an officer asks permission to enter or search the home, the resident has the option whether to even respond; just as they would to a nosy neighbor or a door-to-door salesman. For more information on your Fourth Amendment rights regarding searches and seizures so you can be prepared if law enforcement knocks at your door or for counsel regarding charges, contact a criminal defense attorney.

Tasers and Unjustified Use of Force by Police

Police officers who are hesitant about using their firearms will reach for their Tasers to subdue a potentially dangerous suspect; however there is ample controversy over the safety of this alternative weapon and the unjustified use of force by police.

Shot from Behind

A video out of Fairfax, Virginia has gone viral after it shows an officer’s unjustified use of force when he uses a Taser on a suspect without cause. In the video an officer Tasers a man who is fully cooperating with his arrest. Following through with the officer’s request, the man is shown attempting to place his hands on the hood of the officer’s car. Just as his hands touch the car, the officer shoots the man in the back with the Taser’s electrodes. Shocked, emotionally and literally, the man falls to the ground. Unknown to the attending officer, a bystander was videotaping the unjustified use of force with a cellphone. The officer’s needless use of the Taser is currently under investigation.

Better than a bullet

Photo by: cea

Photo by: cea

Tasers, otherwise known as stun guns, were designed to give police officers a safer alternative to control suspects who were resisting arrest or behaving in a threatening manner. Positively, after the introduction of Tasers in the police force, death and injury has plummeted for police officers and those being arrested. This decrease in overall harm may lead many officers to believe that it is tolerable to use Tasers in otherwise avoidable circumstances. Although Tasers may be safer than firearms, they are still extremely dangerous. While they were originally considered to be fairly harmless, recent serious injuries and even deaths by Tasers has made authorities reevaluate the use of this supposedly safer alternative.

A 50,000 volt warning

Tasers that are designed for police departments pack a punch of nearly 50,000 volts. In many cases, as the electrodes from the Taser hit the suspect’s body, the only effect on the suspect is the loss of muscle control. This usually results in the suspect falling to the ground while their muscles twitch and spasm. Unfortunately, in other situations, this deliverance of a high voltage shock can cause cardiac problems such as an irregular heartbeat, cardiac arrest, restricted breathing and even death. Although many who have complications from Tasers had a pre-existing condition, that is not the case for everyone.

“Less-lethal” Tasers should be used sparingly

Since Tasers were originally thought to be non-lethal, officers began using them in several situations, oftentimes when not needed. Now that the dangers of Tasers are well known, police departments should be trained on how to distinguish when the use of Tasers are completely essential. A few settings when the use of Tasers should be questioned are:

• When approaching suspects who are unarmed.
• During attempts to arrest someone who appears to be under the influence of drugs, which could make them more susceptible to cardiac or respiratory difficulties.
• Anytime a suspect is cooperating with police.
• During altercations with the elderly who are commonly predisposed to many cardiac conditions.
• When dealing with children!

Beyond the unjustified use of force with Tasers, they should also not be used around anything flammable, during interrogations, when there is not a clear shot of the suspect, or when an innocent bystander is too close to the situation.

Avoid Taser Use

Tasers, firearms, clubs, and other instruments of violence used by police should only be applicable when no other option would suffice. Likewise, those persons in situations where they are dealing with police should educate themselves on the potential side effects of Tasers, and do everything within their control to not become a victim. By fully cooperating with police during a potential arrest or investigation, the likelihood of Tasers being used will hopefully decrease. For questions related to the unjustified use of force regarding Tasers during an arrest, speak with a criminal defense attorney.

Man Fleeing From Police Drives Stolen Vehicle 70 Miles with Only One Tire

A 33 year old Mesa Arizona man was arrested in Beaver Utah for fleeing from police after he drove a stolen vehicle for 70 miles with only tire left.

No plans on stopping

Photo by: Scott Davidson

Photo by: Scott Davidson

33 year old Matthew Hazenberg crossed over the Utah border from Arizona in the stolen vehicle and was immediately pursued by Utah Highway Patrol. When Hazenberg failed to stop for UHP and continued to drive north on I-15, officers laid out spike strips to end the pursuit. Even after having both left tires and the front right tire spiked, Hazenberg continued on I-15 for 70 long, pavement damaging miles. Hazenberg will likely face charges of vehicle theft and fleeing from police.

Repeat offender

This wasn’t Hazenberg’s first run in with the law. In April 2015, Hazenberg was arrested in Moses Lake Washington for fleeing from police after he fled in his vehicle, then from his vehicle, leaving his 8 year old step-daughter alone in the back seat. Moses Lake police were trying to locate the 8 year old, who had been reported missing by her mother when they located Hazenberg’s vehicle and were led in a brief chase. Hazenberg then bolted from the car, and was found later at his home.

Fleeing from police is a felony

Anytime a police officer requests a driver to pull their car over, they are obligated to do so, or they may face a 3rd degree felony. Utah code 41-6a-210 states: “An operator who receives a visual or audible signal from a peace officer to bring the vehicle to a stop may not: operate the vehicle in willful or wanton disregard of the signal so as to interfere with or endanger the operation of any vehicle or person; or attempt to flee or elude a peace officer by vehicle or other means.” For more information on laws regarding stopping a vehicle for police officers, contact a criminal defense attorney.