Vol. 19 No. 6- U.S. V. Crawford – Parolee Searches

June 24, 2004


The long awaited decision from the Ninth Circuit “en banc” court has finally been published. As you will recall, the Ninth Circuit originally determined that a parolee’s waiver of rights under the Fourth Amendment (the “Fourth waiver”), was unconstitutional. In September, 2003 the court voted to re-hear the case “en banc” (at least 11 justices) and oral argument was heard in December, 2003. There has been concern regarding whether or not law enforcement could or could not rely upon the signed waiver of the parolee. True to form for the Ninth Circuit – we still have no answer to that question.

The Court states that it ordered an “en banc” re-hearing of the three judge panel decision, and the appeal is based on three issues raised by Crawford: (1) the search of his home “exceeded the scope of the “Fourth Waiver” because “it was conducted for the impermissible purpose of gathering evidence against [him] in the investigation of…” a new crime; (2) that the claim that the search was related to his parole status was pretextual and,

therefore, the search was illegal; and, finally, (3) that his confession was “the product of an illegal detention” and should be suppressed. As to the waiver issue, the Court stated it would not make a decision.

The Court stated it would “affirm Defendant’s convictions on a different ground…” than did the three judge panel, and remanded it for re-sentencing. The Court then stated, without explanation, that “…we assume, without deciding, that the parole search of Defendant’s residence, and his detention during it, were illegal under the Fourth Amendment. We need not AND DO NOT DECIDE whether “Fourth Waivers” are valid, what they mean, or whether suspicionless searches violate the Fourth Amendment.”  (Emphasis added.) The Court then directs all its attention to the relationship between an illegal detention or search and it’s impact, if any, on a defendant’s confession.

The obvious concern is directed to the Court’s statement that it assumes the search was illegal under the Fourth Amendment. That, along with the Court explicitly stating that it is NOT deciding whether “Fourth waivers” are constitutional, leaves open that question. As of now, however, there is no decision which holds that “Fourth waivers” are unconstitutional. When the Court accepted the case for an “en banc” re-hearing, the original decision was vacated and, since this Court did not rule on the key issue, everything reverts to pre-Crawford and the law in California permits law enforcement to rely on the “Fourth Waiver.” There are two concurring opinions and one dissenting opinion which address the “Fourth waiver’ issue but, nonetheless, the majority decision does not decide the question.


As always, we urge that you receive written guidance from your agency’s legal advisor on matters such as this.  We will advise our clients to follow the law, as it currently exists in California, which states, as set forth in one of the concurring opinions, “…that parolees as a class are different, and that they have forfeited any right to challenge a proper parole search conducted by designated law enforcement authorities while still in constructive custody as they serve out their sentences and make the transition back into society under the regulatory control of the Department of Corrections.” It is imperative to note, however, that “…the permissible degree of impingement on a parolee’s privacy is not unlimited,” and a “requirement of a reasonable parole condition search [is] that it must NOT be ‘arbitrary, capricious, or harassing.'”