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What It Means When Police Ask: ‘Are You on Probation?’

Above: Kellen Russoniello, a fellow with the ACLU of San Diego and Imperial Counties, joined representatives from San Diego's black, Latino and Asian communities at a public safety committee hearing on police racial profiling.

Traffic stops are often at the center of claims that police officers engage in racial profiling. They're the most common form of contact between police and the community, and some vehicle code violations can feel a bit arbitrary — like having an air freshener dangling in your windshield.

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Speak City Heights is a media collaborative aimed at amplifying the voices of residents in one of San Diego’s most diverse neighborhoods. (Read more)

But Police Chief William Lansdowne said a handful of racial profiling complaints against the department in recent years — none were sustained — point to at least one moment where the line between routine and racial begins to blur for drivers: when an officer asks whether they're on probation or parole.

Residents in predominantly minority neighborhoods say the question is often the first one they're asked, and is too broadly applied. It was the focus of several emotional testimonies residents made at Wednesday's committee hearing on racial profiling.

"We don’t have a stop-and-frisk problem. We have an, ‘Are you on probation or parole?' problem,” Lei-Chala Wilson, president of the local NAACP, said at the meeting.

Lansdowne has already said he would issue a training bulletin advising officers to be more sensitive with the question. But for officers, there's a lot of utility in asking it.

What are cops getting at with the probation question?

If a person is on probation or parole, there's a good chance he or she has waived the right to refuse being searched.

A fourth waiver is a condition of parole or probation that says an individual has given up his or her Fourth Amendment protections against unwarranted searches and seizures while under state or county supervision. Though the term "fourth waiver" refers to the actual agreement, it's often personified to describe someone who's under such an order.

Usually police must have reason to believe a person violated, or intends to violate, the law when making a stop. But if a police officer knows an individual is a fourth waiver, he or she has no obligation to prove reasonable suspicion before initiating a search. The officer can conduct a body, vehicle or home search without cause, so long as it doesn't cross the line into harassment.

The courts intended for the arrangement to help rehabilitate former inmates. If a law enforcement officer can approach them at any time, they're less likely to engage in the sorts of risky behaviors that put them back behind bars.

Though the contracts are uniform and automatic for parolees coming out of state prison, probationers under county supervision will typically only have one if their crime involved drugs, theft or weapons. And the judge can tailor the terms of the agreement to cover only searches dealing with the crime for which they were convicted.

Isn't the question too broad then?

Officers are required by law to know whether the fourth waiver actually exists before conducting a fourth waiver search. The courts have ruled finding out after the fact doesn't protect an officer. They also should know the full scope of a probationer's individual waiver.

But in San Diego, there's really no such thing as an individual waiver, said retired Deputy District Attorney Robert Phillips. He writes legal briefs informing law enforcement officers throughout the state of new court decisions on search and seizure law.

"The judges have all gotten together at some point, apparently, and have a standard set of fourth waiver conditions that are about as inclusive as the state parole fourth waiver," Phillips said. "So in San Diego County, the cops have it easy. If they find someone on a fourth waiver, the cop knows it covers everything."

So asking whether someone is on probation or parole is basically a shortcut assessment of the rights an individual has and the procedures an officer must follow.

Yeah, but I didn't go to jail or prison.

Too broad an application of the question – which civil rights groups say is happening in southeastern San Diego – can breed resentment among residents. If officers ask virtually everyone they stop — or everyone they stop in a certain neighborhood — whether they're on probation, community members might assume police believe that most people of color are criminals who have been to jail.

That leads to a breach of trust, but it isn't a breach of law.

Unless an individual has been stopped with valid reasonable suspicion — he or she was speeding, for example, or fits the description of a criminal suspect beyond just sharing the same skin color — asking the question is considered a consensual contact. Under the law, it's really no different than an officer saying hello on the street.

It becomes a detention — and subject to the Fourth Amendment for those whose rights are still intact – if the exchange is prolonged or becomes accusatory. United States v. Summers puts it this way: It's not consensual if anything happens that would have "indicated to a reasonable person that he was not free to leave."

The courts have already ruled on the obvious argument here. United States v. Drayton says an officer being uniformed and armed, though intimidating, is not enough to turn a consensual contact into a detention. Nor is asking to see an individual's hands, inquiring about illegal activity and asking a passenger to get out of the car, said Phillips.

But individuals have the right not to respond, and their silence shouldn't raise reasonable suspicion — even if they're in a high-crime area, Phillips said.

Knowing whether a stop is consensual, however, can be tricky. And choosing not to comply with safety measures like showing your hands could cause problems.

Wilson, of the local NAACP, suggested a simpler solution Wednesday that puts the onus on police officers.

"Use a drivers license, you can find out that question," she said, referring to officers' ability to run a person's license through their database.

Doing so still counts as a consensual contact if an officer does it quickly, Phillips said. It's also a less loaded question.

This story is part of an ongoing investigation by KPBS and Voice of San Diego.

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