California First District Court of Appeal, in People v. Smith, ruled that a search by police officers inside the underwear of a parolee in a hotel parking lot, not exposed to the street, is reasonable under the Fourth Amendment.

Craig Smith was sentenced to ten years in state prison on drug charges after he was arrested in the parking lot of the Vallejo Inn in Vallejo, California. Two police officers saw a man attempting to gain entrance to a hotel room through a window leading out into the parking lot. At the same time they saw another man, Smith, sitting in a car outside the room. They decided to investigate. They asked Smith if he was on parole and he answered in the affirmative. The hotel being in a high crime neighborhood and Smith being on parole for a drug related offense, led the officers to search him. Initially they did a pat search but found nothing. Then they searched his vehicle and again found nothing. Then with Smith standing in the crock of the police car, that is the area between the open door and the body of the vehicle, they removed his belt, opened buttons, unzipped his zipper, lowered his pants and searched inside his underwear where they found a bag containing twelve baggies containing crack cocaine, heroin, and methamphetamine.

An officer may search a parolee, even without reasonable or probable cause as long as the officer knows the person is on parole. But such a search cannot be arbitrary, capricious and/or harassing. Here the court balanced the defendant’s limited privacy rights as a parolee against the state”s “overwhelming” interest in preventing recidivism on part of the parolee. The court pointed out that searches of parolees are a means of carrying out the officer’s duty to closely supervise a parolee.

A search, according to the judge, is only arbitrary, capricious or harassing if the officer carries out the search for an improper purpose. Generally the means or place used to perform the search is immaterial. Therefore since the officers had a legitimate law enforcement reason to perform the search the search and since it was carried out in relatively unintrusive manner it was reasonable under the Fourth Amendment

Interestingly while the court found the location and the nature of the search reasonable, it did not discuss whether the defendant’s privacy rights under the Fourth Amendment and California’s constitutional guarantee of privacy were violated when the officer put his hand inside the defendant’s underwear and retrieved the bag which was sitting on the defendant’s penis.