March 18, 2005
Ninth Circuit: Police Need RS to Search Parolee
From BNA.com: "The Fourth Amendment requires police officers to have reasonable suspicion before searching or arresting a parolee who is subject to a condition of release authorizing warrantless searches, the U.S. Court of Appeals for the Ninth Circuit held March 7. It also decided that the prohibition on suspicionless searches of parolees or probationers was clearly established in 2000, despite the Supreme Court's reservation of the question in United States v. Knights, 534 U.S. 112, 70 CrL 220 (2001), and other indications in subsequent caselaw that judges remain divided over the issue. (Moreno v. Baca, 9th Cir., No. 02-55627, 3/7/05).
The civil rights plaintiff in this case was walking down the sidewalk in 2000 when he attracted the attention of two sheriff's deputies. Taking all inferences from the facts in favor of the plaintiff, the deputies stopped him without reasonable suspicion, made him empty his pockets, and locked him in the back of a police vehicle. The deputies then learned of an outstanding arrest warrant and the fact that the plaintiff was on parole with a condition that he submit to warrantless searches. They subsequently searched the area where the plaintiff had been walking and found a rock of crack cocaine. After being acquitted of drug charges, the plaintiff brought a civil rights action pursuant to 42 U.S.C. §1983, claiming a violation of his Fourth Amendment rights. The deputies filed a motion for summary judgment, asserting that they were entitled to qualified immunity.
In Griffin v. Wisconsin, 483 U.S. 868 (1987), the Supreme Court held that warrantless probationary searches are permissible under the Fourth Amendment's "special needs" doctrine when they are authorized by a statute or regulation that requires reasonable grounds for searches. In Knights, the court looked at a warrantless probation search from the investigatory, rather than a special needs, point of view and held police officers needed "no more than reasonable suspicion" to conduct a search of the home of a probationer who was subject to a condition of release authorizing warrantless and suspicionless searches. Because the parties in Knights conceded that the officers had reasonable suspicion, the U.S. Supreme Court expressly noted that it did not need to consider whether the probationer's Fourth Amendment rights were so diminished by the search condition that the officers could have conducted the search with less than reasonable suspicion, or with no suspicion at all.
In United States v. Crawford, 323 F.3d 700, 72 CrL 568 (9th Cir. 2003), vacated and reheard 372 F.3d 1048, 75 CrL 446 (9th Cir. 2004) (en banc), a divided panel of the court, addressing the question that appeared to have been left open in Knights, ruled that law enforcement officers must have reasonable suspicion before searching the home of a parolee or probationer who is subject to a condition of release authorizing warrantless and suspicionless searches. The en banc court, however, assumed without deciding that a Fourth Amendment violation had occurred and resolved the case on the basis of the scope of the exclusionary rule. Nevertheless, pluralities of the en banc court in Crawford did square off on the issue of parole and probation searches. One group signed an opinion approving warrantless, suspicionless searches and seizures of parolees and their residences so long as the searches are not arbitrary, capricious, or harassing. Another group said the panel was right when it approved a reasonable suspicion standard.
In the instant case, the court resurrected the ruling of the panel in Crawford by holding that, even if the deputies knew about the plaintiff's parole status and search condition, the Fourth Amendment required them to have reasonable suspicion to justify the detention and search of the plaintiff. Along the way, the court said the Knights court "held that reasonable suspicion was required to search the probationer's house" in that case, and that recent studies prevented the state from showing that suspicionless searches "significantly advance the purposes of parole beyond searches based on a reasonableness requirement."
In an opinion by Judge A. Wallace Tashima, the court said that, regardless of whether the intrusions in this case are evaluated as investigatory actions or under the special needs doctrine, the determination of the reasonableness of the intrusions turns on a balancing of the degree to which they intruded on the plaintiff's privacy against the degree to which they were needed to promote the state's interest in supervising parolees. The deputies contended that the existence of the parole condition authorizing warrantless searches extinguished any protection the Fourth Amendment provided against their actions. The court, however, pointed out that even in Knights, where the search condition authorized not only warrantless but also suspicionless searches, the Supreme Court referred to the probationer's privacy rights as "significantly diminished," not eliminated. "Whatever the extent of [plaintiff] Moreno's Fourth Amendment rights, they clearly included the right to walk along a public sidewalk unmolested by law enforcement," the court said.
Evaluating the extent of the intrusion on the plaintiff's surviving privacy rights, the court concluded that there was "little doubt" that the encounter with the plaintiff, particularly his confinement in the police vehicle, was tantamount to "a full blown arrest and search" that would otherwise have required probable cause. Turning to the other side of the balance, the court acknowledged that the state has an overwhelming interest in supervising parolees to protect the public and to ensure that parolees are reintegrated into society. Griffin itself relied on what the Ninth Circuit called the "traditional assumption" that these two goals are furthered by close supervision of parolees.
But things have changed since Griffin,
the Ninth Circuit decided. It reported that "[m]ore recent studies
suggest that close supervision of offenders has relatively little
impact on recidivism rates." In light of this newer information, the
court decided that "the State has not shown that suspicionless
searches, which mimic the conditions of prison, significantly advance
the purposes of parole beyond searches based on a reasonableness
requirement." [Mark Godsey]
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