Vol. 18 No. 18- Parolee Searches

To: All Police Chiefs and Sheriffs

From: Martin J. Mayer

November 17, 2003

As you will recall, the Ninth Circuit U.S. Court of Appeals, in U.S. v. Crawford, 343 Fed 3d 961 (2003), held that law enforcement could not search a parolee without “reasonable suspicion” to believe a crime was occurring, or had occurred, involving the parolee. This would be true even though the parolee had signed a waiver, prior to being released from prison, of his/her constitutional rights against unreasonable search and seizure. The waiver is known as a “fourth (amendment) waiver.” As a result, it was necessary for law enforcement to stop utilizing something that, up until the Court’s decision, had been a lawful practice. Continued, deliberate, reliance on the waiver could subject the officer to personal liability for violating that parolee’s constitutional rights (42 UCS 1983), in addition to any agency liability.

Earlier this week we were informed that some prosecutors believe, and have informed law enforcement agencies, that the decision was overruled. As a result, some law enforcement agencies have, as one commander put it, “gone back to business as usual, before the decision.”

Unfortunately, that is NOT accurate information; the decision has not been overruled. The Ninth Circuit DID vote, on September 2, 2003, to rehear the case “en banc,” which means by, at least, 11 justices. As a result, the Court stated that “the three judge panel opinion shall not be cited as precedent…” in any court proceeding, until it is approved by the en banc court. As of this date, the hearing is scheduled for December 8, 2003, 11:00 a.m., San Francisco.

As a result, the decision may not be cited in court until further review, but it has NOT been overruled. If the en banc court agrees with the original decision by the three judge panel, those who continued to rely on the “fourth waiver” could find liability applied, perhaps retroactively to the date of the original decision.


Use caution in reverting back to relying upon a parolee’s “fourth waiver.” The Court of Appeal decision was adverse to law enforcement’s efforts, however, the fact that the Court voted to review the decision en banc is, obviously, positive. Since there is no assurance that the en banc court will overturn the three judge panel, we are recommending to our clients that they wait until we find out before making changes.