Probationers Do Not Lose All Privacy and Fourth Amendment Rights; Condition that Probationer Waive His Fourth Amendment Rights and Consent to the Search of His Home Struck

The Fourth Department determined the condition of probation requiring the probationer to consent to the search of his home, which was not part of the plea agreement, was not enforceable. A probationer does not lose all Fourth Amendment protections:

We agree with defendant … that the waiver of the right to appeal does not encompass his challenge to the condition of probation that required him to sign a consent to waive his Fourth Amendment rights against a search of his home on the ground that it is related to defendant’s “drug/alcohol abuse,” inasmuch as that condition was not part of the plea agreement … . We also agree with defendant that the condition does not relate to “the probationary goal of rehabilitation” and thus is not enforceable on that ground … . Indeed, the presentence report indicated that the 51-year-old defendant, a first-time offender, does not have a history of drug or alcohol abuse and that he was not under the influence of drugs or alcohol at the time of the offense. It is well established that “a probationer’s home is protected by the constitutional requirement that searches be reasonable . . . [A] probationer loses some privacy expectations and some part of the protections of the Fourth Amendment, but not all of both” … . We therefore modify the judgment by striking as a condition of probation the requirement that defendant consent to the waiver of his Fourth Amendment rights against a search of his home. People v Mead, 2015 NY Slip Op 08304, 4th Dept 11-13-15