Vol. 19 No. 5- Parolee Searches: Status Report

June 1, 2004


Last year, the 9th Circuit U.S. Court of Appeal held, in the case of United States v. Crawford, 343 F. 3d 961 (2003), that law enforcement could not search a parolee (or a probationer) without “reasonable suspicion” to believe that a crime was occurring, or had occurred, involving the parolee. The court held that the parolee’s waiver of his or her constitutional protections against unreasonable search and seizure (referred to as the “fourth waiver”) was unconstitutional since it was not a voluntary waiver. Subsequent to that decision, the 9th Circuit voted to review the case “en banc,” which means at least 11 members of the 9th Circuit would reconsider the three judge panel’s decision. Oral argument was presented to the en banc court on December 8, 2003 however, as of this date, there has been no ruling from the en banc court.

The firm of Jones & Mayer published three different Client Alert Memorandums regarding this case; the most recent on November 17, 2003. (Client Alert Memo’s can be accessed via our Website at www.jones-mayer.com/clientalerts.html.)

Recently we have received numerous telephone calls inquiring about the status of the decision and the concerns we set forth in the November 17th Client Alert Memorandum. In that memo we expressed concern regarding officers relying upon the “fourth waiver” until the en banc court issued its ruling. Our concern was predicated upon the worst case scenario: that the en banc court agrees with the prior decision and issues the same or similar opinion. As legal counsel to law enforcement agencies, we are concerned about potential liability not only for the agency, but also the law enforcement officers employed by those agencies. We are cautious, therefore, when giving legal advice which could conceivably result in liability to both the entity, as well as its officers. Reading our November 17th Client Alert carefully, one will note that we refer to information, received from our clients, that some prosecutors in California had indicated that the prior decision had been overruled and, therefore, it was safe to continue to rely upon the parolees’ signing of a “fourth waiver.” In fact, the acceptance for en banc review does not overrule the prior decision, although it does vacate it. In fact, the Client Alert Memo states that, as a result of the en banc court taking the case, the prior decision cannot be cited in any court proceeding.It is also important to note in that the case of U.S. v. Crawford the search was conducted without any “reasonable suspicion” that any crime had occurred involving the parolee. Recently, the United States Court of Appeal for the Second Circuit addressed the issue of a parolee’s agreement to submit to searches pursuant to the signing of a “fourth waiver.” In the case of United States of America v. Newton, 02-1310, decided 5-26-04, the Second Circuit stated that “although warrant less searches are generally presumed unreasonable, the law recognizes certain exceptions to this rule.” Referring to the U.S. Supreme Court decision inGriffin v. Wisconsin, 483 U.S. 868, (1987) the court stated that “a State’s operation of a probation system…presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements.” Continuing, the U.S. Court of Appeals stated that, “… this court has ruled that the operation of a parole system also presents special needs justifying the departure from the traditional Fourth Amendment requirement.” (Emphasis in original) The Newton court further stated that “… persons on supervised release who sign such documents (“fourth waivers”) manifest an awareness that supervision can include intrusions into their residence and, thus, have a severely diminished expectation of privacy.” That is a philosophy which we do not disagree and we are hopeful that the 9th Circuit en banc court will reach the same conclusion as well. As of this date, however, it has not done so. It is also important to note that in the Newton decision, which ultimately held that the search of the parolee was justified, the basis of the search was predicated on reasonable suspicion that a new crime had, in fact, occurred. “Once the parole officers in this case received information that Newtonhad a gun at his residence and had threatened his mother and her husband, it was a reasonable exercise of their parole duty to search Ms. Wright’s apartment both to detect the possession of a firearm in violation of Newton’s parole and to protect Wright and her husband.” As such, although the Newton Court of Appeal discusses, in passing, reliance upon the “fourth waiver,” the case in not on point with the Crawford decision, since the search in the Newton case was based upon reasonable suspicion.The three judge panel in the Crawford case also referenced searches of probationers. We have stated in the past, and continue to believe, that the decision would not be applicable to probationers in the State of California. In California, one’s waiving of his or her constitutional protections under the Fourth Amendment is voluntary and not compelled. We have always disagreed with that reference in the Crawford decision as it applies to California probationers.How this affects your agency?As always, our responsibility is to provide advice and guidance to our clients based upon our best interpretation of the law. Although it is extremely rare for the 9th Circuit to review a three judge panel decision en banc, and not reverse the panel’s decision, it has now been six months since oral argument was made to the court and we are still waiting for a decision. It is imperative that law enforcement officers receive advice and guidance from their department’s legal advisor on matters of this nature in order to protect themselves from personal civil liability. It is also important to note that neither the County Prosecutor, nor the State Office of the Attorney General, serve as legal advisors to local law enforcement officers, and opinions expressed by members of those offices will not provide the protection from liability referred to above. It was, and still is, our concern that if the 9th Circuit en banc decision is unfavorable to law enforcement, one could argue that officers had prior notice of this concern and could be liable for relying upon the fourth waiver. On March 20, 2003, prior to the court accepting the Crawford decision for en banc review, the California Attorney General’s office issued a bulletin which states in part, “…officers conducting a parole search of a parolee’s residence absent reasonable suspicion or consent could possibly be vulnerable to civil action under 42 U.S.C. section 1983.”

The Attorney General goes on to state that “if the 9th Circuit determines that the Crawforddecision placed California officers on notice that warrantless residential searches were unconstitutional, officers would no longer be able to assert qualified immunity for their actions after the Crawford decision becomes final.” We believe the concern expressed by the Attorney General could also be expressed regarding the pending decision by the en banc 9th Circuit Court of Appeals.