Vol. 18 No. 6- Parolee Searches And The 4th Amendment

March 24, 2003
To: All Police Chiefs and Sheriffs


Martin J. Mayer & Dean J. Pucci



The United States Court of Appeals for the Ninth Circuit, on March 5, 2003, clarified the law governing parole and probation searches. The Court concluded that a parolee’s expectation of privacy is diminished but not extinguished, as some California courts have held (including the California Supreme Court). The Ninth Circuit specifically held that “reasonable suspicion is the appropriate threshold for parole and probation searches.” U.S. v. Crawford (2003) 2003 U.S. AppLexis 3891.

Crawford was released on parole subject to a mandatory condition that he submit to warrantless searches of his person and/or property, with or without cause. This waiver is commonly referred to as a “fourth waiver.” FBI agents subsequently entered Crawford’s home and conducted a parole search, at which time Crawford confessed to participating in a robbery. Crawford subsequently petitioned the trial court to suppress his statements claiming a violation of his Fourth Amendment protection from unreasonable searches and seizures.

The Government responded by claiming that pursuant to the “fourth waiver” they were entitled to conduct such a warrantless search and, Crawford had waived his expectation of privacy. The Ninth Circuit rejected this argument finding that, ” by virtue of a signature on a compulsory parole condition, a parolee does not, in advance and in blanket fashion, consent to a general waiver of his rights under the Fourth Amendment.”

The Ninth Circuit rejected opinions from the California courts finding that parolees enjoyed no reasonable expectation of privacy, by specifically finding that “federal law – not California law- governs the extent of the protection that the Fourth Amendment provides.”



According to the most recent and controlling authority on this issue, your officers must have an individualized reasonable suspicion to conduct warrantless parole and/or probation searches, regardless of whether a parolee has signed a “fourth waiver” as a condition to his or her parole. The Ninth Circuit gave the following guidance regarding what constitutes reasonable suspicion: “the degree of individualized suspicion required of a search is a determination of when there is a sufficiently high probability that criminal conduct is occurring to make the intrusion on the individual’s privacy interest reasonable.”

As always, we urge that you confer with your department’s legal advisor before taking action regarding legal matters. Should you have any questions or wish to discuss this matter in greater detail, please feel free to call Martin Mayer or Dean Pucci at 714-446-1400 or at mjm@jones-mayer.com or djp@jones-mayer.com.

[The Law Offices of Jones & Mayer located in Fullerton, California focus its practice on representing the interests of public entities as its City Attorney, in labor negotiations, in defending tort litigation and civil rights litigation. Martin Mayer focuses his practice in the area of representing cities, counties and the State on matters arising out of their respective law enforcement agencies.]



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