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In a recent Idaho Supreme Court opinion, a probationer won his challenge to a search of his car. I know, to anyone on probation this seems like a unbelievable outcome. As with most things in the law, however, when you get down to the documents governing the relationship between the parties to the agreement – the probationer and the State of Idaho – the result was actually predetermined.

On October 29, 2014, Brody Jaskowski pled guilt to misdemeanor DUI and was place on supervised probation for 18 months. (That means, for a misdemeanor, Mr. Jaskowski would be under supervision for 1.5 years or 578 days!) The written supervision contract between Mr. Jaskowski and the State permitted the warrantless search of his “person, personal property, electronic devices, automobiles, residence, and outbuildings at the request of my Probation Officer, by the Probation Officer, Peace Officer, and/or his designee….”

Brody was pulled over by a Montpelier, Idaho, police officer on April 15, 2016. (Note, this is 534 days after his guilty plea!) The probation officer searched the car and, shockingly, discovered contraband. Brody’s lawyer challenged the search arguing it was conducted contrary to the terms of the probation agreement. The Idaho Supreme Court agreed and held: “The common guiding principle underlying our decisions … is that courts evaluating the scope of the Fourth Amendment waiver must look to the language used in the condition of probation in order to determine whether the search was objectively reasonable.” Therefore, in Brody’s case, the probation officer had to ask Mr. Jaskowski if he could search the car. *Note, Mr. Jaskowski couldn’t say no…but the probation officer still needed to ask!*

Most attorneys believe that when someone is on probation, a search like the one in the Jaskowski case cannot be argued against. This just ain’t so! Kudos to Mr. Jaskowski’s trial attorney for making the argument and winning it. The State needs to be held to its agreement with probationers. Just because you’re on probation doesn’t mean you give up  all of your Fourth Amendment rights.