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People v. Olguin (Cal. Supreme Ct. - Dec. 29, 2008)

By Shaun Martin

Anyone get a pet over the holidays? If so, make sure to tell your probation officer. Because the California Supreme Court holds that it's a permissible condition of probation for a DUI offense (!) to impose a continuing obligation to tell your probation officer of any pets you might have. That condition is "reasonably related to continuing criminality."

Notwithstanding the counterintuitive nature of the holding, Chief Justice George (who authors the majority opinion) makes a decent point that owning a pet might make it more difficult or dangerous for a probation officer to conduct unannounced searches of the premises, and hence telling the officer about your pet might indeed be a permissible condition. Dogs, after all, can bark and bite, so maybe the officer should indeed know whether they're there.

Nonetheless, while Chief Justice George mentions "dogs" 15+ times, as I was reading the opinion, I kept looking for any example other than dogs. And the opinion doesn't contain any. After all, having to tell the officer that you've got a goldfish hardly makes any sense. This point doesn't escape Justice Kennard, who dissents (joined by Justice Moreno), and who concludes that the condition is overbroad for this reason. Justice Kennard would have the condition read something like "dogs and any other dangerous animal". Whereas Chief Justice George thinks that a more bright-line (albeit overly broad) notification rule is equally permissible.

But I was wondering: Why not just a bright-line rule that says you have to tell the officer about any dogs? These are the only real animals you can worry about. Cats? Come on. They ignore even their owner, so hardly a threat to probation officers. Fish? Nah. Then I looked up the other top ten pets. Birds? Hamsters? Rabbits, mice, gerbils, rats, and guinea pigs? Forget about it. Of the top ten pets, I can't think of any other than dogs for which there's any reasonable relationship between the notification requirement and preventing criminality (at least in the DUI context).

Now, if the defendant has a tiger as a pet, well, of course. But I honestly don't see the harm in having a condition that's more narrowly tailored than this one. That at least carves out 9 of the top 10 animals and says "Tell us about any pets (but you need not disclose cats, fish, birds, hamsters, rabbits, mice, gerbils, rats, or guinea pigs)." That's gotta be a better system, right? Wholly beyond preserving the rights of defendants, who wants probation officers to waste their valuable time -- even if only a minute per probationer -- taking a call every time there's a new fish or cat in town. Come on.

For this reason, I'm somewhat sympathetic to Justice Kennard's dissent. And, at a bare minimum, I'd change the standard probation form so that the relevant boxes the judge checks (under the "pet" condition) excludes nine of the top ten pets. Otherwise we're just being silly.

And perhaps, deliberately nor not, imposing a condition of probation that we know that a large portion of probationers will violate, and hence give the officer pretty much unlimited discretion to violate him any time the officer feels like it.

So let's all agree to at least take away fish and guinea pigs, shall we?

Full post as published by California Appellate Report on December 30, 2008 (boomark / email).