United States of America, State of California, Intervenor v. Raphyal Crawford, AKA Aarmyl Crawford

GRABER, Circuit Judge: Raphyal Defendant appeals Crawford the district court’s denial of his motion to suppress a statement that made to law officers, enforcement arguing that statement was taken in violation of his Fourth protection against Amendment un- reasonable searches and seizures and in violation of his entitlement Miranda warnings under the Fifth Amendment. appeals Defendant also the district court’s imposition aof two-level sentence enhance- ment physical for restraint a victim during the commission of the offense. We convictions, affirm Defendant’s but vacate his sentence and remand for resentencing. FACTUAL AND PROCEDURAL HISTORY Sometime in Special FBI Agent David Bowdich received information from McCabe, CA, Diego, Michael J. San an unnamed source that a person known as defendant-appellant. “Ralphy Rabbit” had participated Lam, Atty., Carol C. 10, 1998, Sherri February Walker robbery armed of a Hobson, (on brief), Atty. Asst. U.S. David Bank of America branch on Ulrich Street (oral Curnow, P. Asst. U.S. Atty. argument Diego. San subsequent Bowdich’s in- petition for rehearing), vestigation United States him led that “Ralphy believe 27, 2000, July At a.m. on 8:20 Bowdich by Defendant. an alias used Rabbit” was and the state officers arrived Defen- Defendant Bowdich also learned As the'parole state California. search. currently on dant’s home conduct had parole, Defendant condition them at the Defendant’s sister met door Waiver,” a document “Fourth signed that Defendant was informed them signifies parolee’s con- purportedly bedroom, with his 18-month- asleep, by any law enforcement a search sent to daughter. old Bowdich and two officers officer, cause. The with without drawn, bedroom, weapons entered states: “Fourth Waiver” told Defendant that were con- and. any prop- your residence and You and escort- ducting parole search.1 Bowdich may erty your control under room, living hoping ed Defendant agent an a warrant without searched “me-versus-you” atmosphere, the defuse any or of Corrections Department of the conducted the pa- while the state officers law officer. enforcement role remained search. Defendant. seated or agree to search seizure You detention, couch, the on for du- the under peace officer at officer or other parole (between parole ration the search night, or with or any day time minutes). and 50 warrant, and with or a search without was seated After Defendant cause. without couch, attempted engage to him Bowdich prac- that it is common Bowdich testified Eventually, Bowdich in “chit-chat.” asked to officers use tice law enforcement robbery about “an old bank Defendant talk” to a “tool to Waivers” as “Fourth forthcoming; not case.” Defendant was about crimes. suspects to the this reticence Bowdich attributed parole sought out Defendant’s Bowdich As state officers. presence of four Berner, accompany hoping to agent, Carl search, completing their state officers were Defendant’s parole search of Berner on whether he asked Defendant Bowdich obliged After Berner was to residence. place” speak private in “a prefer would to parole previously scheduled cancel just Diego and San Police with Bowdich Bowdich, consulting with search, after Department Gutierrez. Detective Michael Berner, him- conducted the agreed accompany to Bowdich Defendant self, law en- accompanied by four state vehicle, Gutierrez, to the Bowdich’s robbery Because forcement officers. trip from Defen- local FBI office. years earlier more than two had occurred took to FBI office about dant’s home changed had resi- Defendant because interroga- not 20 minutes. Defendant was dences, to find hope Bowdich not evi- did ted in the car. robbery dur- the Ulrich dence of Street office, placed At FBI Defendant was Rather, Bowdich ing parole search. with Bowdich and in an interview room to use the search as intended told Defendant Gutierrez. Bowdich Defendant about the speak to to pretext custody and could leave he was not robbery. Bowdich ex- As Ulrich Street However, “to make it as clean any time. however, ap- have he would plained, attempted give possible,” Bowdich to discuss rob- proached Defendant warnings. De- Miranda2 Defendant if had not bery parole search even Bowdich, stopped protesting fendant occurred. 436, 444-45, Arizona, 2. Miranda Although the does not reflect when record weapons, ap- their L.Ed.2d the officers holstered point. parently did so at some warnings making him FBI were warnings nervous office and Miranda present thought merely he he was and that required. therefore not were The district to discuss old case. Both Bowdich and rejected court Defendant’s claim that his reassured Gutierrez Defendant he confession involuntary as the result of arrest and that he was not under was free alleged promises from Bowdich and Gu- They made no further attempt leave. to tierrez that Defendant would face im- warnings read Defendant. the Miranda prisonment for his involvement the Ul- questioned and Gutierrez Bowdich De- robbery rich if Street cooperated According more than an hour. fendant for the investigation. Defendant, every time he tried to termi- ruled, After the district court Defendant interview, nate the Gutierrez Bowdich guilty entered a conditional plea pursuant him one or more questions. would ask two Rule of Federal Criminal Procedure government’s disputed witnesses 11(a)(2). appeal Defendant reserved for assertion, and the court district credited the denial suppress, those version of events. motion to witnesses’ Even- tually, partici- Defendant said that he had district holding court’s that his statement pated in the Ulrich bank robbery, Street was voluntary and not taken violation of gun and having he admitted used during Miranda, the applica- district court’s the crime. The officers ended the inter- tion sentencing guidelines. Defendant, arresting view without drove At sentencing hearing, govern- home, him back to his and left. ment the testimony offered of Louis Lo- Thereafter, a grand jury indicted Defen- pez, security guard duty who robbery, dant for armed bank in violation during robbery. the Ulrich Street Based 2113(a) (d), § of 18 and using U.S.C. on Lopez’ testimony, the district court im- during carrying firearm the commis- posed a two-level sentence enhancement violence, sion of a crime violation of victim, for physical pursuant restraint of a 924(c)(1) (2). § 18 U.S.C. Defendant to United Sentencing States Guideline suppress moved to the statement that he (“U.S.S.G.”) 2B3.1(b)(4)(B). § had to law made enforcement officers on July 27, 2000. After evidentiary several timely Defendant A appealed. majority hearings, district court denied Defen- three-judge panel of this court held dant’s to suppress. Relying motion on our search of Defendant’s resi- decision in United v. Knights, States 219 illegal dence was under the Fourth (9th Cir.2000), F.3d 1138 later rev’d and Amendment and that there was insuffi- remanded, 112, 587, 534 122 U.S. S.Ct. 151 cient attenuation to avoid the exclusion of (2001), L.Ed.2d 497 the district court held Defendant’s statement. States United v. that the search of Defendant’s home was a (9th Cir.2003). Crawford, 323 F.3d 700 violation of Defendant’s constitutional panel thus reversed Defendant’s con- rights under the Fourth Amendment. victions on first theory, his without reach- However, the district court concluded that ing any of other assertions of error. sufficiently Defendant’s confession was at- We ordered this case to be reheard en illegal tenuated from the search to purge banc, Crawford, United States v. 343 F.3d violation, taint of the constitutional 961(9th Cir.2003), and we affirm De- now rendering Defendant’s statement to the fendant’s convictions on a ground, law different enforcement officers admissible. The district but respect court also held that vacate and remand with Defendant was to his not custody questioned when sentence. opinion in Knights, which later was re OF REVIEW

STANDARDS Defendant versed Court. de novo denial of We review did not contend the “Fourth Waiver” United States suppress. a motion invalid, Second, itself was however. he Fernandez-Castillo, 1114, F.3d - that, pre-textual pa asserted because the 1117(9th denied, U.S. -, Cir.), cert. role made “the detention ... while (2003). 157 L.Ed.2d 299 S.Ct. being this ... search was conducted also rule to a exclusionary applies Whether illegal,” his the product confession “was novo, while the given case is reviewed de illegal detention.” He concluded that underlying findings factual are reviewed from arising “the taint the unlawful deten error. United States v. Ham for clear 1057-58(9th Cir.2001). mett, requires] suppression of the subse tion[ ] F.3d quent that argument statement.” For he novo We review de whether cases, Dunaway two relied on detention constitutionally entitled to defendant York, New 442 U.S. States v. But warnings. Miranda United (1979), Illinois, Brown v. L.Ed.2d (9th Cir.2001). ler, F.3d 45 L.Ed.2d 416 de whether a confes We also review novo (1975). Pollard v. voluntary sion is coerced. (9th Cir.), Galaza, 1030, 1032 290 F.3d Amendment, Under Fifth Defendant denied, 981, 123 cert. First, arguments. likewise made two 154 L.Ed.2d 343 argued that his “custodi- interrogation was preceded by al nature” but Miranda interpretation court’s district Second, Defendant warnings. claimed Sentencing Guide application involuntary that his confession was be- de United States lines are reviewed novo. promise a allegedly cause of made Bow- (9th Garcia, 1161, Cir.), 1164 323 F.3d - dich, reject- claim the that district court denied, U.S. -, 842, 124 cert. S.Ct. (who ed because it found that Bowdich (2003). 157 L.Ed.2d 720 promise) making alleged denied the DISCUSSION and was not. credible Defendant Defen- final argument. dant has abandoned this A. Convictions court, In the district Defendant made the other We turn to a consideration of arguments support four of a motion to first, As to the we assume three theories. confession, three of he suppress his which decision, our but need not purposes appeal. on renews decide, parole the search and not that do theory, was unlawful.3 As the second Amendment, he Under the Fourth first that Defendant’s confession was we hold argued scope that the the search exceeded the in his home product not a detention of the “Fourth because “was Waiver” Harris, that, New York v. 495 under impermissible purpose conducted for the L.Ed.2d 13 U.S. against the gathering [him] evidence (1990), Final- his confession is admissible. investigation robbery.” the bank For hold was not entitled ly, that on court’s we that Defendant argument relied this "parole to conduct search arose from the "Fourth quarrels 3. dissent the label the search,” throughout has been used which that was of Defendant's Waiver” condition litigation. In view of the Dissent Reyes, People see parole, 19 Cal.4th fact the search those who conducted Cal.Rptr.2d 452-53 968 P.2d hoped they might find evidence of current (1998), we the same label. continue to use authority wrongdoing, believed that their confession, to Miranda warnings ques- only because not is exclusion of the FBI office was not tioning at the custodial. likely police evidence more to deter similar future, misconduct but also use of 1. Fourth Amendment likely compromise the evidence is more foreshadowed, assume, As we have we Dunaway, integrity of the courts.” deciding, parole that the without search of U.S. S.Ct. 2248. residence, and his detention Defendant’s Whether the twin aims of deterrence it, illegal under Fourth during were judicial integrity application warrant not do Amendment. We need exclusionary depends largely of the rule decide whether “Fourth Waivers” are val- Brown, the facts of each case. 422 U.S. at id, mean, they suspicion- what whether case, 95 S.Ct. 2254. In this three key violate less searches the Fourth our guide inquiry appli- facts into whether Instead, proceed Amendment. to ex- we cation of the exclusionary rule to Defen- precedents amine First, dant’s is analysis statement warranted. govern relationship of the be- an illegal illegal police probable tween detention or search had cause arrest Defen- defendant’s confession. Under dant when entered his home. Sec- precedents, those Defendant’s confession is ond, the search no yielded evidence of the admissible. robbery” any “old or of crime. In- other deed, both Bowdich and Defendant knew It established that well inception from the of the exclusionary Fourth Amendment’s rule ap of any likely no evidence crime would plies to statements and evidence obtained Third, be found. Defendant no in- made product illegal searches sei States, criminating Wong Sun v. reaching statement before United zures. 471, 484-88, questioned FBI 9 L.Ed.2d office and was not about Evidence obtained such robbery substantively until he reached illegal action police “fruit the FBI office.4 poisonous tree,” warranting application of analysis applies illegal de- if, the exclusionary “granting rule estab applied illegal tentions differs from that primary illegality, lishment the evi searches. See Wayne LaFave, R. Search objection dence to which instant is made 11.4(c) 273, (3d ed.1996) § and Seizure by has been at exploitation come of that (noting that two quite “the situations are illegality or by sufficiently instead means different”). Therefore, by begin we ad- distinguishable to the purged pri be of dressing whether the detention of Defen- Brown, mary taint.” 422 U.S. at home, dant in his we which assume was (internal S.Ct. 2254 quotation marks omit illegal, requires suppression the his la- ted). The exclusionary requires rule ter statement at the FBI office. We then causal illegal connection between the con what, turn an if any- examination duct sought and the sup evidence to be pressed. thing, presumed the illegal ‘When there is a search De- close causal connection illegal between the seizure and fendant’s home adds to analysis.5 this 4. differently causally Defendant testified about the na- search connected to a confession but, ture of the conversation his home as exclusionary applies. before the rule Dissent noted, we have the district court credited so; at Not 1096. either kind of causal con- they Bowdich—not Defendant —"where do do, (as but explain) nection will we shall we disagree” testimony. in their see neither. majority The dissent asserts that the insists illegal that both illegal seizure and an cases, three the Court excluded the all

a. Detention confessions as defendants’ fruits ille- frames opening brief Defendant’s Sun, Wong See also 371 U.S. gal seizures. “[wjhether [his] us as the issue before at 83 S.Ct. 407. an unlawful initial detention while But, noted, at residence was in this case FBI conducted his as the had search was illegality of this the taint to arrest Defendant the illegal, probable cause Thus, attenuated, suppression requiring him. time Bowdich contacted this Harris, FBI offices.” statement governed by his later Harris. In case words, focuses, in on the connec other He had police probable officers cause arrest his at home and his defendant, tion detention between but entered resi the FBI office. later confession at without a warrant and without con dence York, sent, Payton New violation v. involving cases deten most Unlike 63 L.Ed.2d confessions, had here the officers tions and (1980). Although the officers’ conduct Al to arrest Defendant. probable cause Amendment, Fourth violated the though may have been some confu there that, police probable “where the have held below, counsel point on defense sion exclusionary a suspect, to arrest cause clearly expressly appeal, conceded bar use rule does not the State’s briefing argument, at oral both made the defendant outside statement the state officers ar Bowdich and when home, though even the statement is of his search, they perform rived to made in after an arrest the home taken Defendant for probable had cause to arrest Harris, Payton.” violation of U.S. robbery.6 judi A the Ulrich Street bank words, de 110 S.Ct. 1640. other binding both trial before cial admission illegal arrest inside the defen spite Am. Ins. appellate courts. Title Co. home, exclusionary rule did not dant’s (9th Corp., F.2d Cir. Lacelaw later the admission of defendant’s bar 1988). to officers at station house. statement probable cause arrest presence Brown, distinguished Dunaway, Harris from cases such as distinguishes this case probable Taylor on the basis oí cause Alabama, Brown, Taylor Dunaway, arrest: 73 L.Ed.2d cases, those evidence obtained In each of (1982), illegally officers police where following ar- from criminal defendant having prob- defendants without seized the police suppressed because rest was The Supreme to arrest them. able cause The three cases probable lacked cause. repli- “virtual Taylor Court described ” proposition the familiar stand for Dunaway because ca of both Brown and illegal fruits of an the indirect was arrested without “[pjetitioner suppressed when arrest should hope something cause in the probable relationship close sufficiently at 690- bear up.” Taylor, turn 457 U.S. would added).7 91, underlying illegality. In the 2664(emphasis 102 S.Ct. however, formality of the was not explained, his hold that the seizure As counsel 6. defense 216, probable Dunaway, was cause 442 U.S. at 99 S.Ct. concession there relevant. imply a that there arrest did not concession referred to Court later cases 2248. The in cause, suspi- probable was or even reasonable Taylor, Dunaway having arrested. as been cion, to search Defendant's home. 693, 2664; Harris, 495 at 102 S.Ct. 457 U.S. 18-19, at 1640. U.S. S.Ct. Dunaway, was not In the defendant formal- arrested, ly although went on the Court (9th 18-19, Cir.1983). 908,

Harris, at 110 S.Ct. 1640. 911-12 With certain contrast, said, although the the By Court prescience, distinguished we Brown and entry into Harris’ home was officers’ initial because, Dunaway each of “[i]n those at “Harris’ statement taken the illegal, cases, the defendant was without arrested product being not the of police was station cause,” probable whereas Manuel was “to- because, in custody” light in the unlawful tally Dunaway different from and Brown probable officers’ cause to arrest the probable [to arrest] because cause was am- Harris, not custody was unlawful. Id. ply began established before the officers 19, empha 110 S.Ct. 1640. Court interrogation.” their Id. at 912. We analysis is only ap sized that “attenuation apply therefore declined to the exclusion- where, matter, propriate as a threshold ary rule even the initial though arrest had challenged courts determine that ‘the evi illegal. been Id. product in dence is some sense the ” That in Defendant was detained his activity.’ illegal governmental (quot Id. home, formally there, rather than arrested Crews, ing United States v. U.S. nothing does analysis. to alter the Harris (1980)). 471, 100 1244, 63 L.Ed.2d 537 instances, In illegality both was form Harris’ statement “was not Because in detention the home. theAs Court fruit the fact that the was arrest made Dunaway, in explained application “[t]he house,” in held that this Fourth requirement Amendment’s analysis threshold for attenuation was not of probable depend cause does exclusionary met that the rule did not whether an magnitude intrusion is apply later to Harris’ statement at the house, termed an under although apply station it would ‘arrest’ state law.” 442 found, “any taken, or statements U.S. at present evidence S.Ct. 2248. The ” inside the home. Id. at 1640 case an even weaker one for the defen- added). (emphasis Although dant than was Hards. there probable Defendant, was Harris, cause arrest presence probable After placed he proved dispositive custody cause was not in to arrest has either deciding Rather, when exclusionary whether the home or at the FBI office. after rule applies to ended, evidence ob- agreed statements the search to accompany placed tained after the defendant Bowdich and Gutierrez to the FBI office. See, custody. e.g., United States Villa- At point, involuntary detention (8th Cir.2002) Velazquez, F.3d ended. that, (holding because law enforcement of- Further, Harris, the officers ac ficers had probable cause to arrest tually in obtaining succeeded the defen defendant, “the during evidence obtained during dant’s confession the illegal entry. time [the lawful defendant] well, respect In this this case is weaker custody was not tainted earlier than Harris, Harris for the defendant. (discuss- entry unlawful into his residence” appeared officers at the defendant’s front Harris, ing door and fire escape window with their 1640)). Harris, Even before we acknowl- weapons Harris, People drawn. edged that the applicability exclu- N.Y.2d 536 N.Y.S.2d 532 N.E.2d sionary rule in Dunaway and Brown opened The defendant hinged on probable officers’ lack of the door and police allowed the to enter cause to arrest. In a case in which the apartment. police his arrest, officers did have to arrested the probable cause we held that exclusionary questioned the defendant and him rule did not in his home. apply. Manuel, United States Although F.2d no search was performed, the a later not of the product confession statement was defendant’s obtained the police because, apartment.8 notwithstanding removing illegality him from the the before however, warrant, Here, police proba- made no confes- the Defendant overbroad had detention, presumed illegal the during ble cause to search the defendant’s busi- sion interrogation begin substantive “legitimate nor did thus a reason to ness and had Thus, Defendant’s during that detention. present questioning.” be at the time of FBI is even at the office later statement Id. 1337. We therefore held the in being unlawful custo- “product less the and the relationship illegality between the confession obtained dy” than was closely more the re- resembled confession police the in Harris. Harris, in where there was lationship arrest, in probable cause to than the one ini- that Defendant’s therefore hold We Brown, probable to where cause arrest require in not his home does tial detention Id. lacking. of his later statement at was suppression FBI office. illuminating applicabili- Although search, ty of the context of a Harris b. Search Ladum does not control here for two rea- pre that the Having determined First, although the sons. officers illegal Defendant’s sumed detention probable case cause to arrest Defen- had suppression not require home does dant, they probable did not have cause to office, FBI we later statement at the next Second, and more im- search his home. nonethe whether that statement consider Ladum, portantly, unlike the search in presumed illegal product less is a of the entirely search in this case was fruitless. are guided search. We trial, Indeed, as Bowdich admitted at that, “[f]or statement Harris Court’s to parole pro- was never intended search legal is purposes, Fourth Amendment Instead, robbery. duce evidence of the old it would be had the sue the same as buy time search was intended doorstep, Harris on his il police arrested for a with Defendant. conversation legally entered his home search evi most, hoped At Bowdich to find evidence dence, interrogated later Harris at the violation, which of a new crime or station house.” 495 U.S. Defendant he could use to convince added). Indeed, we have (emphasis to the old crime. In Bowdich’s confess allegations Harris to that a confes applied words, looking for evidence weren’t “[w]e search, product illegal of an sion looking at robbery, of a bank but we were set facts. albeit under different him, if possibly flipping we potential of Ladum, 141 F.3d 1328 United States a state case.” were to find evidence of able (9th Cir.1998) (en banc), we denied mo evidence, such we yielded Had the search during made suppress tion a statement the constitutionali- have to confront would pursu of the defendant’s business search ty suspicionless because govern ant a defective warrant. have an indirect would been confession stipulated ment the search warrant the search product of the search. Because that the ob was overbroad and evidence evidence, any physical produce failed to not during tained that search could however, no and because Defendant made during its Id. at 1336. used case-in-chief. search, Nonetheless, incriminating during statement that the defendant’s we held police purge warnings do suffice to the taint Miranda 8. The officers administered Amendment. conduct that violates Fourth questioning in his home. How- before Harris clarified, Brown, ever, warnings U.S. at Miranda as Brown search, as suppression any to see how the distinct we fail statement made detention, presumed illegal from the during illegal defendant home in the FBI search, caused Defendant’s statement require suppres- but would not office. sion of a statement made outside the at home. Id. The court went to only between

The two connections that the questioning Thompson conclude and the confession the officer’s search are Miranda, id., (as violated which shall we pretext to use the intent search as below) explain did not occur here. fact that speak Defendant and the De- made a statement the FBI of- fendant at Thompson illustrates, As the rationale former, after the search. As to the fice holding of Harris are not limited to pretext speak needed no Bowdich Rather, of Payton context violations. probable Defendant because he had cause Eighth held, Circuit has “Hams him, to arrest and Bowdich testified un- demonstrates that for testimony evi- equivocally that he would have contacted dence to be of an considered the fruit robbery Defendant to discuss the old bank search, illegal it must directly or indi- whether or not the had tak- search rectly attributable to the constitutional vio- place. en need not decide whether We Duchi, lation.” United States v. 944 F.2d pretext would matter had there been no (8th Cir.1991). latter, probable post cause. As to the hoc case, necessary this connection hoc; necessarily propter is in the light the presumed between illegal search, of the known fruitlessness of the search and Defendant’s later confession sequence should not be with con- confused search, the FBI office missing. is The sequence. That a search was conducted which produced whatsoever, no evidence later-given not in does itself make a con- bearing had no on the officers’ decision to the fruit of that fession search. Defendant; question Bowdich testified are not the reach We first court to this spoken he would have to Defendant States, Thompson conclusion. v. United with or without search. The had officers (W.D.N.Y.1993), F.Supp. applied probable cause to arrest Defendant Harris to statements taken after war- robbery, bank and Defendant could not entry rantless and an illegal search of the being have avoided questioned it. about defendant’s home. The court noted that Thus, search, the fruitless which during agent questioned the federal would have questioned Defendant was not substantive- Thompson regardless of the evidence un- ly robbery, about the cannot be said covered the search and that there was have “caused” Defendant’s later confes- no evidence “that defendant’s answers to sion. agent’s] questions [the would have been question “There is no of ‘attenuation’ different, depending on whether defendant until the connection primary between the illegal knew of the existence of the search illegality and the evidence obtained es- or was confronted with the documents.” Thompson, tablished.” F.Supp. Therefore, Id. at 117. the district court Harris, 17-19, 118(citing concluded, U.S. at there was no causal connection 1640). Because that connection is during between the evidence seized case, missing in this illegal reasoning Har- Thompson’s statements. Noting applies. ris Payton violation in Har- officers probable “[t]he had ris functionally similar cause to arrest to the warrant- Defendant when en- entry case,” less to search in Thomp- tered his home. The search Defen- son concluded require yielded Harris would dant’s home no evidence.

1059 made, position. McCarty, Berkemer v. was not 468 U.S. challenged statement 442, 3138, 420, was detained 104 sought, while Defendant S.Ct. 82 L.Ed.2d 317 even of Brown’s admoni- in his home. Mindful the applicability of exclusion-

tion that the Defendant’s situation at the case, rule on the facts each ary depends office to remarkably FBI is similar those at the Defendant’s confession hold that we the has that which Court held sufficiently not “bear FBI office does warnings required. are not As Miranda underlying illegali- to relationship close Mathiason, questioned Defendant was Harris, its ty” suppression. to warrant in a closed room the office a law Therefore, 19, 110 1640. U.S. at S.Ct. 495 Mathiason, 429 agency. enforcement See in denying did err district court not 493-94, Although at 97 S.Ct. 711. U.S. con- suppress motion to that Defendant’s taking place admittedly in an “coercive fession. environment,” questioning such does not where, to interrogation amount custodial 2. Amendment Fifth here, the he suspect told that is not will two Fifth Amendment We address leave, under arrest and free to claims, of which Defendant rais- only one in fact without hindrance. does leave See First, argues on Defendant appeal. es 494-95, id. at 97 S.Ct. 711. the FBI office questioning interrogation and amounted to custodial Agent fact Neither does the Bow- that he was therefore entitled Miranda De- dich Detective Gutierrez escorted Second, warnings. implicitly dissent the parole fendant the FBI office after was asserts that Defendant’s confession require warnings. In this Miranda to a advan- involuntary “psychological due regard, present case resembles Behel- tage” police gained that the means er, agreed suspect accompany where the pretextual search. to the station house. U.S. police Beheler, In 3517. S.Ct. Warnings a. Miranda warnings held were that Miranda obligation “An to ad officer’s required although suspect ... warnings minister attaches Miranda investigation, of a had been target police ‘only there has been such a restric where ultimately police, and was escorted on a as to render person’s tion freedom Although the station house. questioned at ’” custody.” Stansbury “in v. him Califor environment, these adding to the coercive nia, 318, 322, 114 S.Ct. 511 U.S. that a do not lead the conclusion factors curiam) (1994) (per (quoting L.Ed.2d 293 custody. Id. at suspect is in Mathiason, Oregon S.Ct. (1977) cu (per 50 L.Ed.2d 714 S.Ct. arguing actions Bowdich riam)). custody is in suspect Whether “ in- Gutierrez amounted to custodial ar on is a ‘formal turns whether there terrogation, Defendant concentrates rest or restraint on freedom movement’ argues He happened at his home. what degree associated with a formal that, during he was because detained Beheler, arrest.” California had entered his search and officers 1121, 1125, 103 77 L.Ed.2d drawn, weapons his later bedroom curiam) (1983) Mathiason, (per (quoting FBI amounted to at the office questioning 711). inqui This U.S. at However, interrogation. custodial totality ry requires a court to examine the agreed when Defendant detention ended the perspective of the circumstances from custody” “in to the FBI office. The person suspect’s go in the of a reasonable requires us “Psychological Advantage” determination to examine b. surrounding interroga- the “circumstances The argues dissent that Bowdich tion,” not occur in which did Defendant’s pretextual gain used the search to a “psy Keohane, v. 516 Thompson home. U.S. chological advantage” over Defendant that 457, 99, 112, 133 L.Ed.2d 383 116 S.Ct. have been would unavailable had the offi added). (1995) simply cers arrested him at his doorstep. took (emphasis What noted, Dissent at 8331. have As we De place in Defendant’s home did not trans- fendant does not his Fifth renew Amend form events at FBI office the later the claim that ment his confession was involun interrogation. into custodial Therefore, tary. that is not properly issue significant Perhaps resolving most Gill, 688, us. before Guam v. 61 F.3d question custody, the Defendant was (9th Cir.1995). were, however, Even if expressly that he was ar told not under disagree with we the dissent’s conclusion. interrupting attempt rest after Bowdich’s “A is involuntary confession if warnings. to recite the Bowdich Miranda either by physical coerced intimidation or read testified that he the Miranda warn psychological pressure.” United States v. ings questioning in make order to the of Haswood, 1024, (9th 350 F.3d Cir. possible.” as Defendant “as clean Defen 2003). In determining whether a defen said, “Oh, dant stopped him I’m under confession voluntary, dant’s was ques “the in Agent arrest?” Bowdich answered the tion is ‘whether the defendant’s will was ” negative repeated and later Defen that overborne he time confessed.’ dant was not under arrest and free to was (9th Murphy, v. Clark 331 F.3d - was, fact, leave. Defendant returned Cir.), denied, U.S. -, cert. 124 S.Ct. interview, (2003) home at of the the end without 157 L.Ed.2d 313 (quoting being 503, 513, Being Haynes Washington, arrested. aware free U.S. (1963)). 83 S.Ct. 10 L.Ed.2d dom to in fact depart, departing after Psychological per coercion invokes no se questioning office, law enforcement Miller, rule. United States v. 984 F.2d suggest questioning that the noncusto was (9th Cir.1993). Therefore, “we LeBrun, dial. See United States v. totality must consider the of the circum (8th Cir.2004) (en banc) (con F.3d stances involved and effect upon their cluding “that the defendant was not will of the Id. at defendant.” 1031(citing because, custody among things, other Bustamonte, Schneckloth U.S. officers told him was free leave 226-27, 93 S.Ct. 36 L.Ed.2d 854 and that he not would arrested (1973)). because he in fact at the arrested interview”). Beyond doubt, police conclusion of used a deceptive tactic to induce Defendant Viewing “totality circum- to the FBI speak come office and about stances” perspective from the reason- of a robbery. police the old bank lied to person able position, Defendant’s when they Defendant pur said their applying guidance, Court’s pose was to look for physical evidence of a we hold that questioning of Defendant violation; they really what wanted at the FBI did not office amount custo- talk opportunity was an to him about dial interrogation. The district thus court robbery.” “Trickery, deceit, the “old bank did not holding err in warn- Miranda impersonation even do not render a confes ings required. inadmissible, were not certainly sion in noncustodial atmosphere “more ones as comfortable” usually custodial situations make well, agents FBI office. government unless promises.” United States v.

threats or Looking setting totality to the 817(7th Cir.2001) Kontny, 238 F.3d circumstances, we find Defendant’s 731, 739, Cupp, 394 (citing Frazier v. voluntary. confession was interview (1969)). 1420, 22 L.Ed.2d 684 As at the FBI office took about an hour. We noted, has First Circuit upheld voluntary, have confessions ob- automatically coercion. trickery is not much lengthier interrogations. tained after Indeed, commonly engage in police the Haswood, 1028(“Even if at See F.3d suspect suggesting ruses as to such the all interrogation we assume that lasted just confessed or has that confederate day, ... far typically coercion involves physical police have or will secure that conduct.”). outrageous Similarly, more the against suspect. the While evidence nothing the about environment in which is some- ruse and coercion line between given the was the manner in statement or blurred, procured confessions times questioned suggests which Defendant was in voluntary held have been deceits police. conduct Defendant coercive number situations. custody was not in when he confessed. Byram, v. 145 F.3d States United he repeatedly Bowdich told Defendant that (1st Cir.1998); also United States v. see was under and was free to not arrest Cir.2001) (en Orso, 1030, 1039(9th 266 F.3d leave, and Defendant in fact did leave after banc) inspector’s misrep an (holding that interview, being without arrested. piece that a of evidence exist resentation Significantly, misrepre- Bowdich “did not ed, not constitute reprehensible, does while or purpose sent the nature the inter- conduct); Cooper, v. coercive Clanton view, threat- promises nor did make or Cir.1997) (10th (holding F.3d Pollard, 290 at en F.3d [Defendant].” despite voluntary a confession was that residence, while 1035. The search his falsely an told the defen fact that officer not to suf- deceptive, did amount “coercion him physical evidence connected dant involuntary.” ficient to make the statement crime). to the at Id. Here, not involve a deception did strength misrepresentation Sentencing B. contrary, To the against case Defendant. Finally, Defendant contends demonstrat- the fruitlessness of search by imposing a two- the district court erred lacked police to Defendant ed enhancement, to pursuant level U.S.S.G. his physical evidence of involvement 2B3.1(b)(4)(B), restraining § for physically robbery any or other crime. old bank That during robbery. guideline a victim simply gave Bow- pretextual The “if applies states that the enhancement speak Defendant opportunity dich restrained any person physically was not consider robbery. We need about or to of the offense facilitate commission whether, had Defendant confessed escape.” facilitate U.S.S.G. home, say that might we be able to 2B3.1(b)(4)(B). commentary lists § his will and caused his search overbore a victim examples, several such as “where However, pretextual confession.9 the defendant accompany was forced to search, if it anything, influenced influenced location, re- physically go to the another only agreement Defendant’s Elstad, 298, 318, de- ing was admissible a later statement Oregon see 9. But home). (hold- (1985) spite illegal detention 84 L.Ed.2d 222 tied, bound, by being strained or locked no Fourth Amendment violation in this background. up.” Id. at cmt. This case, com join Judge majority opin- Graber’s mentary merely instructive does not A.1, ion except Part as to which assumes list forth an exhaustive set situations contrary. physical

which an enhancement for re may TROTT, appropriate. straint United States Judge, Circuit concurring, (9th v. Foppe, 993 F.2d Cir. O’SCANNLAIN, KLEINFELD, whom 1993). TALLMAN, CLIFTON, Circuit Judges, join: correctly district court held that the victim physical contact with is unneces Although I in Judge concur Graber’s sary imposition the two-level en (1) opinion excellent to the extent that it 2B3.1(b)(4)(B). § hancement under How concludes that incriminating Crawford’s ever, go the court apply did on to statements against were admissible him Parker, United States F.3d (2) trial, conviction, his I affirms his (9th Cir.2001), 1119 adopted which a “sus approach this case from a per- different for tained focus” standard cases that —like spective. I conclude that because Craw- present not one—-do involve forcible parolee and, such, ford awas California restraint of the victim. subject to random searches as sei- well as Because the district court did not apply detention, zures and he was not the victim Parker, and not make findings did with the any Fourth Amendment constitutional mind, Parker in standard we cannot tell place. violation in the first had whether Defendant the “sustained fo necessary precedents cus” our under for I imposition of this sentence enhancement. During 1993, the summer of Richard matter, “if general As a district court Davis, Allen a violent career criminal serv- in sentencing, errs we will remand for ing a sixteen-year sentence for kidnapping, resentencing open on an is, record —that paroled from California State Prison. without limitation on the evidence that the later, Three months he abducted twelve- district court may consider.” United year-old Polly bedroom, Klaas from her Matthews, (9th 880, v. States 278 F.3d sexually her, assaulted eventually Cir.) (en banc), denied, 1120, cert. 535 U.S. strangled her to death. Richard Allen 2345, (2002). 122 S.Ct. 153 L.Ed.2d 173 Davis’s Polly vicious murder of be- Klaas We therefore vacate Defendant’s sentence came the catalyst Proposition 184, and remand to the district court with in “fastest qualifying initiative in California determine, structions to on an open record, history.” Ewing California, v. whether Defendant physically restrained 11, 15, 155 L.Ed.2d 108 in security guard, the light of the (2003). Proposition in conjunction standard announced Parker. with Assembly Bill life established a Defendant’s convictions are AF- sentence for specified felons in California FIRMED. VACATED; The sentence is who accumulate over time three felonies and the case is REMANDED for resen- a certain kind. The purpose of is the law tencing. protect public safety “the by providing lengthy prison terms for O’SCANNLAIN, habitual felons.” Judge, Circuit Id. concurring:

I join Judge question Trott’s in this concurrence its case arises from entirety, and because believe there was same concern that caused California to clear: on subject on this is “Prisoners crimi- habitual against its stance harden custo legal remain under the in con- shall it is “unreasonable” whether nals: dy department [of corrections] to have terms for California stitutional any taken peno- subject time to be decision with shall legislative made the prison.” convicted crimi- within the inclosure of the subject back objective logical Davis, § while on the district nals, Richard Allen Cal. Pen. Code 3056. As like by authorized dis correctly conducted court said—before it became parole to searches officers, long as so those by tracted our mistaken decision United enforcement law 1138(9th capricious, or “arbitrary, are not Cir. Knights, searches States F.3d 19 Cal.4th People Reyes, 2000), harassing.” since overturned P.2d 743, Cal.Rptr.2d Knights, States v. United question is whether soci- related A 151 L.Ed.2d as “reasonable” accept (2001) “[Ujnder prepared law, ety parolee California — right part parol- specific privacy custody in fact Department in the ” non-capricious, non-arbitrary, against ees Fitz See Latta v. of Corrections.... non-harassing per- of their (9th Cir.1975) (en searches harris, 521 F.2d lawfully au- abodes officers (“A sons and banc) parolee is in a differ California by California and commissioned thorized ordinary citi from that of an position ent its do consti- parolees ensure sentence.). serving is still zen.” He they make public safety as a risk to tute A. society. free from to prison transition the legal to the continuing is in the Before discuss questions to My answer both in parole ramifications of status Califor- negative. nia, however, I must discuss an error II an res- appropriate has us from distracted conceptual case. It January Raphyal Crawford olution of this On con- conspira- in court of the of imposition federal mistake to consider was convicted as a cy manufacture and distribute cocaine in parolee to on a California ditions prison to federal was sentenced state rights. base. He As Crawford’s “waiver” of supervised re- on months. While when correctly explained parole officer conviction, he was arrested this lease from by the federal in district court confronted Diego, in San charged state court misleading character- with this prosecutor California, a firearm possession of with ization, ‘Fourth not call “I do them marijuana for possession of felon the understanding of my ... waiver’ of these crimes He was convicted sale. applies probationers to Fourth waiver addition, In prison. to state and sentenced spo- single county.” the This sentence — release was revoked. supervised his federal make only state official to ken out, committed an he also it turns As volumes speaks in this appearance case— on robbery super- of while a bank armed criminal anyone familiar with California to release, crime was not dis- but this vised went apparently but law and procedure, until later. covered authorities, of the federal over heads un- has prosecutor’s mistake trial a Califor- Eventually, Crawford became resolution necessarily complicated capacity, Califor- In this parolee. nia state fact, case California’s this ever since. legal him a impressed on status nia law says, parole “The Administrative Code relationship materially altered his are not a contract but conditions are and its war- the Fourth Amendment parolees all governing rules specific The California statute requirement. rant on parolee signed parole year or not the has whether WTien Craw- containing parole form conditions.” ford parole, was released on whether he 15, 2512(a). § Regs. tit. As the not, Cal.Code liked it or and whether he consented recognized: Court has California not, subject it or he became to a search (1) exception The consent the warrant of parole seizure condition may be requirement invoked to vali- recognized custody, as his status still an adult parolee (2) date the search of be- was designed appropriately to ef- cause, under the Determinate Sentenc- tight supervision fectuate of him. ing parole Act of is not a matter of In recognition status, Crawford’s choice. The Board Prison Terms Department of imposed Corrections first provide must period parole; these on standard conditions him on Octo- (Pen.Code prisoner accept it. must ber 1999. The document memorializ- § seq.) 3000 et ing this imposition is entitled “Notice People Cal.Rptr.2d 734, Reyes, Parole,” Conditions of and it reads in rele- explanation P.2d at 448. What means part: vant is that consent and waiver cannot be used conditions, parole validate and neither NOTICE AND CONDITIONS the lack used to can thereof be invalidate OF PAROLE them. You will released effec- record, As far I can from the tell , tive period 2-17-2000 19.. for a agents prosecutors federal with whom subject YEARS . This originated this mischaracterization did not notice following and conditions. fully quote understand California law. To you Should pa- violate conditions of this Attorney Assistant United States Hobson’s role, you subject arrest, are suspen- exchange in court the district with her sion your revocation of parole. and/or Bowdich, FBI Agent you witness “Now You waive extradition to the State called it a Fourth you waiver. What are any territory California from state or referring to? Whiat it?” Bowdich’s an- the United States or from the District of was, term ... swer “It’s a common under Columbia. You will not any contest ef- parole probation system.... the state or fort to to you return the State of Califor- just they’re Fourth waiver means waiving nia. right their to search and seizure.” Wrong. When the Board of Prison de- Terms then, Wrong wrong now. termines, upon psychiatric based rea- In summary, I conclude the con- sons, you a pose danger yourself doctrine is irrelevant in this sent/waiver others, or may, Board necessary if context. treatment, for psychiatric your order placement community in a fa- treatment B. cility or prison may state or your revoke law, regards parole California which parole your return prison. order as a a right privilege, provides but as a) You your any residence and “The upon Board of Prison Terms grant- property your under may control ing any parole any prisoner may also searched without a warrant agent an impose any on parole conditions that it Department any of Corrections or may deem Cal. proper.” Pen.Code law officer. enforcement 3053(a). § Consequently, according to RC law, certain conditions were imposed on Crawford in with connection his release PAROLEE’S INITIALS

b) a You or had read to or have read have to search seizure agree You you following this notification and the officer peace or other parole officer Parole and understand Conditions night, or day or any time of you. they apply them as or and with a warrant without search without cause. ^ ^[*] sign parole agree- 6. You shall

RC containing ment the conditions in Board of Prison Terms specified INITIALS PAROLEE’S (BPT) any spe- Section 2512 and Rules specified in imposed cial conditions as Rules BPT Section 2513. and have re- You have been informed for ob- have read to writing procedure I have read or had me ceived the conditions of taining a Certificate of Rehabilitation understand PC). (4852.21 they apply to me. edgment of the force law and assur- demonstrates Crawford record form, comply ance he would with it. of this

signed copy second again, 2000. Once April time provisions promi- seizure were

search and Ill nently repeated. Reyes, the California under-

There is no doubt that Crawford authoritatively explained the status of his as a and how parolee stood status law and held that parolee under California As thereby. affected rights involuntary had been search conditions are “[w]hen explained suspicion in his Agent Berner reasonable ;properly imposed, State Parole ini- testimony, longer conducting I have them prerequisite trial “I—when no (a) (b) above, I up subject’s person proper- tial the section P.2d prop- ty.” Cal.Rptr.2d their residence and inform them that added). justification As for its (emphasis erty their control can searched under And, that state holding, “[t]he time.” as the court stated by peace any a officer duty protect public, to court in sworn has a ... told the district Crawford justifies testimony importance [this interest] Ber- regarding parole officer a search con- parolee imposition him a of warrantless to that as ner’s advice seizures, court further subject “I Id. at 450. The to dition.” searches society’s know, that interest just, you just granted took that for held “[b]ecause know, parolee in corrects his that, assuring I’m I you parole, on that don’t both Thus, its citizens protecting and in no at all.” conclude behavior rights have criminals, dangerous pur- a search subjective expecta- against had that Crawford no condition, a without rea- parole con- to privacy tion of whatsoever. Given the suant ‘intrude a does not laws, suspicion, sonable trolling appearance word is, (b) privacy, that expectation in “agree” under subsection Crawford’s reasonable to society willing is essentially expectation an an is acknowl- acknowledgment 1066 ” (cita- legitimate.’ Finally, surveyed as Id. 449 the court

recognize the United omitted). Supreme tions “special States Court’s needs” cases. These involve cases hundreds of clear, however, it court made thousands American citizens never con- open-sea- declaring was not unfettered crime, a respect victed of and with parolees. keeping prin- son on with the suspicion whom no of criminal behavior degree ciple permissible of im- existed, subject and who have become pingement parolee’s privacy on a is “not carefully targeted narrowly tailored unlimited,” Wisconsin, Griffin because, Fourth giv- Amendment searches 868, 875, L.Ed.2d 709 totality en the of the relevant circum- (1987), the Reyes court established as a stances, the searches when scrutinized requirement of a reasonable condi- through the lens of Fourth Amend- tion “arbitrary, it must not be ment are With reasonable. these cases in capricious, harassing.” Reyes, 80 Cal. mind, correctly the court in Rptr.2d P.2d at It equally concluded— my parolees view—that as a class are dif- noteworthy that “parolees California are ferent, they and that any have forfeited entitled the benefit of rule of an- right challenge proper a parole search necessary nouncement perfect law by designated conducted law enforcement entry enforcement officer’s into house.” authorities while still in Latta, constructive custo- 521 F.2d at 248(citing People v. dy Rosales, serve out their sentences Cal.Rptr. Cal.2d (1968)).1 make society the transition back into un- P.2d 489 regulatory der the Depart- control of the In support analysis of its well-reasoned ment of Corrections. conclusions, and logical the California Su- preme Court respected drew from and IV relevant federal constitutional law as ar- by ticulated According Court. From to Ferguson City Griffin, Charleston, California court understood in n. system connection with own (2001), its 149 L.Ed.2d 205 the term that a operation probation “[s]tate’s of a “special needs” as used and ap- Griffin system, like its ... operation prison plied of a Reyes appearance made its first ... presents ‘special beyond needs’ nor- Fourth jurisprudence Amendment in Jus- mal law Reyes, enforcement....” tice Cal. Blackmun’s concurring opinion in Rptr.2d 734, T.L.O., 447(quoting 968 P.2d at upheld a which marijuana-yielding Grif- fin, 3164). 873-74, 483 U.S. at It warrantless search school officials of a then “although’ quantum noted that high some purse. school originally student’s As suspicion individualized usually explained by pas- Justice Blackmun prerequisite to a sage Court, constitutional search or adopted later the full seizure[,] ... the Fourth “special Amendment im- category needs” an excep- creates poses no requirement irreducible of such tion to the Fourth Amendment’s warrant suspicion’.” Id. at 449 (quoting requirement New Jer- for searches conducted under T.L.O., sey 325, 342, v. 8, 469 U.S. n. categorical 105 “beyond circumstances the nor- 733, (1985)). S.Ct. 83 L.Ed.2d 720 mal for need law enforcement” that make Reyes, 1. After the California having Court must know about that condition before Sanders, added an protection additional element People of to the conducted search. v. 31 parolee: 318, a attempts rely 630, who officer 2 Cal.Rptr.3d on Cal.4th 73 P.3d 496 a (2003). justify search condition to a search

1067 619, at 1402 require- (quotations cause Id. 109 S.Ct. probable and the warrant T.L.O., omitted). at 469 U.S. “impracticable.” ment marks and citations (Blaekmun, J., concur- 351, 733 105 S.Ct. circumstances, In pri- limited where the 873, 107 S.Ct. Griffin, 483 U.S. ring); by vacy implicated interests the search 3164. minimal, an important are and where give Subsequent Supreme Court cases governmental interest the furthered deter- guidance as how to us additional in placed jeopardy intrusion would be safety falls a search public mine whether requirement suspi- of individualized In “special category. the needs” into cion, may despite a search be reasonable Railway Labor Executives’ Skinner suspicion. the absence such Ass’n, 103 489 U.S. 624, 109 1402. Id. at S.Ct. Both Skinner (1989), example, for the Court L.Ed.2d 639 case, companion and its National Trea- suspicionless and approved warrantless Raab, Employees v. Von sury Union testing employ- urine and railroad blood U.S. S.Ct. L.Ed.2d accidents, major in train involved ees (1989), the permits which warrantless stated testing employ- urine certain Customs pro- Fourth Amendment does not the circumstances, ees, point specific out that seizures, only all searches and but scribe public private employment, such as versus unreasonable. those are What extinguish any pri- even can diminish and reasonable, course, all of depends on vacy person interests that a not in those surrounding the the circumstances might expect circumstances otherwise of the or seizure and nature search Ortega, enjoy. See O’Connor v. of the or seizure and nature search 709, 715, L.Ed.2d S.Ct. Thus, per- or seizure itself. (1987) (“[T]he expec- of an reasonableness missibility particular practice of a according ... privacy differ[s] tation of by balancing its intrusion on judged context....”). inter- Fourth Amendment individual’s legitimate against promotion its ests in specific interest of a state As for interests. governmental parole system, the management of its cases, In most criminal we strike has described that interest Supreme Court procedures de- favor balance Prob. “overwhelming.” Penn. Bd. by the Clause of scribed Warrant Scott, Parole in certain Except Fourth Amendment. 2014, 141 L.Ed.2d 344 circumstances, a search well-defined in Scott was “whether the exclusion- issue a case is not reasonable seizure such rule, the in- prohibits ary generally which pursuant accomplished unless it is at a criminal trial of evidence troduction upon probable issued

judicial warrant in violation of defendant’s obtained recognized exceptions cause. We have pa- rights, applies Fourth Amendment however, rule, special when to this Id. hearings.” role revocation needs, law beyond the normal need for not, holding does enforcement, make the warrant said, requirement impractica- probable-cause imprisonment of Parole is variation special faced with ble. When such in which the criminals State convicted needs, we not hesitated to balance have degree of a limited freedom accords privacy interests governmental parolee’s assurance return practicality assess the warrant strict comply will often requirements in the probable-cause of his release. and conditions terms particular context. cases, 873-74, willing to the State is extend 483 U.S. at 3164. The most is only because it able to condi- answer ends with Scott which described a compliance with certain upon tion it re- state’s of management interest its The State thus has an quirements. Scott, parole system “overwhelming.” as overwhelming ensuring interest in that a 365, 118 524 U.S. at S.Ct. 2014. parolee complies require- with those B. prison and is if ments returned fails to do so. in the context answers—albeit Griffin 365, 118 (quotations Id. at S.Ct. 2014 probation question: searches—the next omitted). citations supervision parolees whether the itself of “ said also it is Court that “averse to ‘special is a need’ of permitting the State imposing requirements upon federal degree impingement upon privacy that Id. parole systems the States.” at if applied would not be constitutional 2014. 118 S.Ct. large.” public Griffin, at too,

Finally, Here, we learn O’Lone v. from Estate the answer Shabazz, inis the affirmative. As in the case of the (1987), prison regula- L.Ed.2d supervision probationers, supervision as deferentially tions are treated more under Reyes designed peno- described as a than Fourth Amendment other mea- logical initiative to assure Although sures. parole restrictions and (1) a period genuine serves rehabili- strictly speaking prison conditions are not reintegration society, tation and into regulations, they are akin to that category. (2) as a device to see to it that “the com- munity [parolee’s] is not harmed

y being large.” recognized Id. Griffin my survey From of these “special connection probation with felons on cases, conclude, needs” I as did the Cali- suggests “[r]eeent research that more in- Court, fornia Supreme provide tensive supervision can reduce recidi- the appropriate for analyzing framework vism ....” why Id. see no reason in this case. issues parolees. observation would fail to apply If anything, it has even force more when A. applied to that class. question The threshold to be answered however, Most importantly, California’s operation is whether California’s of its legislature definitively has come to the prisons parole system presents a “spe- same regarding conclusion the need for cial Supreme need” as defined supervision: effective question Court. This authoritatively has Legislature finds and declares that been answered: does. The answer be- period immediately following incar- gins Griffin, which California ceration critical to successful reinte- relied: gration society of the offender into A operation probation sys- State’s of a to positive citizenship. It is in in- tem, operation school, like its gov- public safety terest of for the state to office prison, supervi- ernment or its provide the supervision of and sur- a regulated industry, sion of likewise parolees, including judi- veillance of presents “special beyond needs” normal actions, cious may law use of revocation and to justify enforcement that depar- educational, vocational, provide tures proba- family from usual warrant and requirements. personal ble-cause counseling necessary to as-

1069 Jeremy Travis Law- prisons. in and Sarah the transition between parolees sist rence, A discharge. Experiment, and sen- Parole imprisonment California’s to or 1170 J. Of pursuant (Aug.2002). population, tence Section Cal. that period parole, 126,117 of unless parole include shall inmates were released on waived, provided as in this section. during year. Sadly, figure, Id. of that 90,000 prison, to either fol- were returned 3000(a)(1). legisla- § Cal. Pen.Code lowing a of a or for conviction new crime finding in this implemented ture then violating parole conditions. The California quoted regulations previously and statutes report Statistics Criminal Justice Center’s parole. govern in that 68% prepared April indicates inus Ew- Court reminded are parolees prison: of adult returned to longstanding have a ing that federal courts 55% for violation for the parole and 13% deferring legislatures state tradition of to new Cali- felony commission of a offense. important implementing and making General, Attorney fornia Crime in criminals and Califor- relating to policy decisions nia, April According at 37. to 24-25, 123 public safety. 538 U.S. at S.Ct. Center, of Policy Research “70% California said, The Court 1179. felons within paroled the state’s reoffend enacted Legislature the California When highest recidivism rate months —the law, judg- it made a three strikes Petersilia, Challenges the nation.” Joan of safety protecting public ment Reentry Prisoner Parole in Califor- criminals incapacitating who requires (June 2000).2 nia, 12 CPRC Crawford already of at least been convicted have are only Richard Allen Davis two of Nothing in or violent crime. one serious paroled felons who reoffended. State’s prohibits Eighth Amendment Cali- that choice. To the making fornia from pattern continuing We find a similar contrary, our cases establish that at criminality by parolees when we look deterring have valid interest “States Federal statistics. Between segregating habitual criminals.” 1994, 215,263 released on prisoners were Raley, Parke Justice, Dept, federal parole. U.S. 517,121 L.Ed.2d 391 S.Ct. Statistics, Bureau of Justice Offenders Prison, 1986-1987 25,123 Returning to Federal Id. It does not seem S.Ct. 1179. number, 33,855 (Sept.2000). this apply at all Of a stretch reason- prison three ing to the rational decision California’s were returned within 13,000 subject to man- legislature parolees years, all which were almost datory search conditions. commission offenses. of new violent report, “According Id. to a recent [more] daunting challenge

How Cali- in- approximately percent of former adequately parolees, supervising fornia of prisons from were mates released state dangers parolees present do what new charged at least one ‘serious’ abiding people de- society from which law re- years three of their crime within According to au- protection? serve Journal, Ewing, 538 U.S. at lease.” August as thoritative California Justice, 158,177 (referencing Dept, U.S. had inmates in its California Here, Stevens, although Id. at 1384. 2. Scalia and con- Justices Skinner, partial to the at least a solution curring dissented in searches are in the result in danger, A this case demonstrates. Von Raab. See off the armed robber They search took an bank did so because could not Diego put where streets him problem would be solved of San find a real belongs. testing employees. service urine Customs Statistics, Langan Bureau of Justice P. crimes by committed all the men with Levin, Special Report: D. worked, & Recidivism whom we have it would be astro- 1994,, p. Prisoners Released in However, nomic. that is represented of (June 2002)). in crime statistics.... If judge one were to by records, police official he would be to- up pressing To sum the size and nature tally misled about the extent of criminal I problem, of this borrow from a report activity.” Id. To point, make this the doc- Institute, from the Policy Urban Justice arrayed tors startling criminal activity Center: of their three representative subjects. 600,000 year, than This more individu- 64,000 The crimes, first had committed but prisons— als will leave state and federal apprehended only seven times. Id. at 222. 1,600 day, four many times as as left 200,000 The second responsible for prison years ago. gov- federal crimes. Id. at 223. The third admitted recently ernment announced the award over 600 crimes before age he reached the grants of million in to help states $100 twenty. of report Their continues: design strategies improve new out- prisoners returning comes for A home. can many comparable We cite figures number of corrections administrators from the histories of others with whom challenge engag- have embraced the we have worked. One man committed ing community groups in supervising the approximately rapes being before reentry. professionals, Public health arrested and charged rape. Anoth- development experts, housing workforce er snatched about 500 purses one providers, advocates, rights civil po- year, more than one a day; he was not lice all officials have focused attention on any arrested for of these. Another mo- challenges opportunities pre- 1,000 lested about per year children sented prisoners record numbers of when he was between 17 and for a coming society. back into free 5,000 acts, total of at least and was Jeremy Lawrence, Travis and Sarah Be- apprehended only one. yond the Prison Gates: The State Pa- Id. at 221-225. America, (Nov.2002). role in According to the opin- Court’s In their multi-volume ground-breaking Ewing, ion in a study by the Sacramento work, The Personality, Criminal doctors Bee of 223 habitual criminal offenders Samuel Yochelson and Stanton Same-now they California found that had an aggre- give us a idea society vivid of what up 1,165 gate felonies, prior average of 5 against in dealing with hardcore criminals apiece. parolees such as Crawford. In this prior convictions included 322 rob- work, eye-opening which resulted from fif- burglaries. beries and 262 About 84 research, years teen of concentrated percent of the 233 three strikes offend- report doctors on the incidence of crime ers had been convicted of at least one subjects they committed studied. all, violent crime. they were respon- The doctors tell us that each of these men homicides, sible for 17 attempted slay- they

with whom worked to having “admits ings, and 91 sexual assaults and child enough committed spend crimes to over molestations. 1,500 years jail if he were convicted for Ewing, 26,123 538 U.S. at S.Ct. 1179. all of them.” 1 Samuel Yochelson and Samenow, Stanton information, The Criminal deduce from Person- as well ality 221. The doctors “If continue: we as from legislative California’s findings, were to calculate the total number that the control supervision parol- (“As society in- reintegrate [Ninth Circuit] into ees acknowledged, legit- far from Act has a Appeals an arena different volves Pa- law purpose safety “normal” enforcement. nonpunitive ‘public needs of imate rolees, highways, our like drunk drivers on by to alerting public is advanced the which a demonstra- group that are are a discrete of sex in communi- the risk offenders their safety the communi- to the of ble menace ”)(cid:127) ty.’ See discharged. are into which

ties Sitz, C. Dep’t. State Police Mich. of 451, 2481, 110 S.Ct. 110 L.Ed.2d U.S. question “ by third posed Griffin (“No (1990) seriously dispute one can ‘special parole the needs’ of its whether driving the of drunken magnitude the justify regula- system [California’s] search in problem the States’ interest eradicat- by interpreted tion ... as it has been state it.”). by Parolees have demonstrated ing officials state court.” 483 corrections and capac- a adjudicated criminal conduct their in Reyes at 107 S.Ct. U.S. 3164. With seri- ity willingness commit crimes and as the of the chal- magnitude mind as well liberty. of enough deprive them ous special I it is lenge, think clear that the serving their yet have not finished They make parole system of California’s needs they do in connection which sentences with I requirement impracticable. the warrant innocence. enjoy presumption a of given conclude that all the relevant further Moreover, while their collective behavior circumstances, parol- and facts California’s of the demonstrates the truth parole eminently reason- ee search conditions are pre- past behavior is the best axiom that previously The statistics described able. Supreme future behavior. As the dictor of crime no room doubt that leave Scott, ... “parolees in are Court observed huge problem a in parolees is California of- likely to commit future criminal more government attention and that demands Scott, average than are citizens.” fenses than must look no further action—one Thus, at 118 S.Ct. 2014. U.S. in and Richard Davis. As Allen Crawford supervision the mem- that the of conclude probation ap- the searches the case of rationally group is a identified bers of requirement a Griffin, in warrant proved tran- of California that “special need” of system with interfere the would normal, everyday of law scope the scends rath- “setting up magistrate a supervision, concerns. enforcement of agent] judge than[the er super- and Parole is first foremost about re- supervision parolee] a [the how close controlling have people and who vising 3164; at see quires.” Id. 107 S.Ct. propensity a to break demonstrated Latta, (dismissing 521 F.2d at 251-52 also has a for whom the still law and State context as requirement in this the warrant mentor to constrain and to responsibility unreasonable). addition, delay inher- Like public safety. in with connection (1) ham- obtaining in a warrant ent would involv- “Megan’s version of Law” Alaska’s of miscon- per quick responses evidence of registration sex offenders ing (2) duct, effect of reduce the deterrent about them publication information Griffin, U.S. the conditions. Internet, legislation approved on the Furthermore, rules 107 S.Ct. 3164. Doe, Smith normally pertain quantity to the 155 L.Ed.2d of information needed to secure quality (2003), purpose punitive, here is not at odds the essence are with warrant con- government state but enable Again, as parole system. needs regulatory to enhance text of a scheme ... 102-03, agency probation, case of public safety. “[t]he Id. right privacy California retains proceed on the basis its must be able parolee], and to searches and seizures against government [the experience entire light of its probabilities arbitrary, right privacy that are assess life, character, cir- knowledge of against searches and seizures that are ca- Id. at cumstances.” privacy against pricious, right and a harassing. searches and seizures that are Supreme Court has not Although the meaningful, restrictions are These plenary of whether a question reached the they represent workable standards state parolee to a applicable condition every day in apply and federal courts as- law so diminishes that under California sessing propriety variety gov- of a privacy expectation person’s actions. These ac- qualifications search is “reason- ernment parole condition proper able,” Knights supports goal keeping the of complish its decision the constitutional Court’s conclusion. the parole California searches seizures within that reminded us Knights “[t]he by scope of reason demanded the Constitu- Amendment of the Fourth touchstone by mandating that the or sei- tion search reasonableness, and the reasonableness of justifiably purpose within the of zure be ‘by assessing, on a search is determined Latta, See, e.g., parole conditions issue. hand, degree to which it in- the one 252(“In case, given 521 F.2d at a what is and, privacy an individual’s on upon trudes may require done be so as to unreasonable other, it is needed degree the- to which be held to violate the search legitimate govern- of promotion for the example, Fourth Amendment. For ” 118-19, 122 534 mental interests.’ U.S. of part harassment or intimidation is no a Houghton, v. 587(quoting Wyoming S.Ct. job.”). parole officer’s 1297, 295, 300, 119 S.Ct. 526 U.S. Furthermore, the Due Process Clause (1999)). concluding In L.Ed.2d 408 provides protection parolees additional to expectation a of probationers have reduced subject parole condition searches and privacy, on the need to the Court relied in which seizures. Should manner “protect[ society from future criminal vio- ] (1) such a search or seizure was conducted 119, 122 lations.” Id. at S.Ct. 587. This community’s of “shock conscience” our force greater observation even when has (2) fairness,” “decency sense of or was applied parolees. so “brutal” that it did not and “offensive” Moreover, postulates that al Griffin comport play with traditional ideas of fair though right privacy a of is defi parolee’s decency, exclusionary then the rule as nitely compared pub as to the diminished § provide well as 28 U.S.C. 1983 would large, “permissible degree” lic at of remedy both and redress. Rochin v. See not impingement such “is unlimited.” 165, 172, California, 342 U.S. S.Ct. 875, 107 483 U.S. at S.Ct. 3164. As Griffin (1952). 96 L.Ed. 183 Just as the extrac it, adequately law in California see by physician sample tion a of a blood from check. read in the satisfies this When suspected an unconscious driver vehicu light Reyes, parole California’s search manslaughter lar from a railroad wholly and seizure conditions do not elimi —or worker or a official—does not Customs expectation right parolee’s nate t concepts, Breithaup offend these v. contrary, they privacy. To the authorize Abram, 432, 435-36, U.S. S.Ct. only narrowly tailored searches a class (1957), L.Ed.2d 448 neither does Cali rationally authorized officials related fornia condition search bridled individual’s status. More im portantly, according Reyes, parolee Reyes. example of a search or observed about the behavior and atti- good case is a

This arbitrary, parolee.” and tude Id. 521 F.2d at 250. capricious, not that was to harass or to intimidate. not conducted D. fellow armed bank rob- One of Crawford’s require Two recent cases comment: accomplice. identified him as bers Edmond, City Indianapolis v. 531 U.S. and the contact with Crawford search (2000) L.Ed.2d 333 from that information was carried followed Charleston, Ferguson City scope of that informa- out well within 149 L.Ed.2d 205 jurisdiction as tion well within Edmond, In the Supreme Court addition, investigate robberies. In bank “special declined to confer needs” status who conducted the peace officers city-operated checkpoints vehicle es permission had obtained from purpose interdicting tablished parole officer. This was excel- Crawford’s drugs. distinguishing unlawful this ve put dangerous police lent work checkpoint hicle initiative from ap others belonged, not an unrea- criminal where he Prouse, proved in Delaware authority. sonable abuse of (1979); 59 L.Ed.2d 660 Honor, I You could MS. HOBSON: Martinez-Fuerte, United States v. 428 a going that there was to be represent 543, 3074, 96 49 U.S. S.Ct. L.Ed.2d 1116 going identify Ra- witness who (1976); Mich. Dep’t and State Police v. Crawford, who was masked and phyal Sitz, 444, 2481, 496 U.S. 110 S.Ct. 110 gunman as a in the fifth wearing gloves (1990), 412 L.Ed.2d the Court observed robbery. gun- identified as the He was primary that “the purpose” of the check lobby holding man own. point program scrutiny under “was to de (defense counsel): If MR. McCABE ordinary evidence of criminal wrongdoing.” tect White, Juju who is that witness is Mr. ond, 38, at 121 531 U.S. Edm doing years custody, 32 in that’s not Thus, program 447. S.Ct. checkpoint in exactly the best information the world qualify “special beyond did not as a need” prosecution to mount a criminal based scope of normal law enforcement. Id. upon. 47-48, Similarly, at 121 in Fer S.Ct. Okay. THE But I will as- COURT: disapproved of a com guson, purposes sume for of this that even hospital, police, public policy bined though they had information that he was pregnant patients test for evidence gunman robbery, in the fifth drug positive use and to turn over results him, probable didn’t have cause to arrest police prosecution. to the 532 U.S. at because he wasn’t arrested. Is that suf- 70-73, 85-86, 121 S.Ct. 1281. The basis ficient? for the Court’s determination was Yes, program

MR. Your Honor. of this was “indistin purpose McCABE: guishable general from the interest demonstrates, defense passage As this 81, control.” Id. at 121 S.Ct. crime proposition did not contest the counsel Edmond, 44, 121 1281(quoting 531 U.S. approach legitimate the FBI’s was for law 447). Thus, particulars of this S.Ct. purposes. Latta that all enforcement held satisfy did not the Court’s test. policy condition required parole that is to make goals parole search lawful is a reasonable belief on the Although one of the crime, prevent search is I see part system certainly law enforcement is to materially necessary. may supervision parolees “It on a as even be based ‘hunch,’ pa- from the arising distinguishable he had learned different and from what Gonzalez, (9th general law enforcement. v. F.3d 1048 States

rameters Cir.2002) (searches Ferguson, First, backpacks Edmond of employee in both the flawed initiatives were groups prevent inventory); at which loss of Vernonia ordinary comprised of citizens Acton, 646, aimed were v. Sch. Dist. 515 U.S. 47J daily business, people (1995) their going 2386, about (drug 132 L.Ed.2d 564 innocence, presumption with the Sitz, cloaked school); tests athletes at U.S. certainly custody not in people 444, 2481, 412 (high 110 L.Ed.2d prison out sentences. This is a serving Skinner, way sobriety checkpoints); subject liberty at full cohort U.S. 109 S.Ct. 103 L.Ed.2d 639 state, by the special supervision and most (railroad (1989) employees’ drug tests at not in importantly, class “transition be- work); Treasury Employees Nat’l Union discharge.” imprisonment Cal. tween Raab, v. Von 109 S.Ct. 3000(a)(1). § Pen.Code (1989) (Customs 103 L.Ed.2d 685 employ work); ees’ drug tests New York v. Second, the administration California Burger, 482 U.S. 107 S.Ct. system renders different of its (1987) L.Ed.2d 601 (purely administrative law enforcement. As rec- from normal we business); regulated search of Latta, McMorris ognized Alioto, (9th Cir.1978) 567 F.2d 897 extent that there is en- To the “law (purely public administrative search it is to emphasis, forcement” deter the buildings); United States Martinez- returning from to a life of parolee Fuerte, “When, here, parolee crime.... (1976) (fixed checkpoint L.Ed.2d rou parole, of his violation search); tine border United States v. higher duty protect is to agents’ — Flores-Montano, U.S.-, 124 S.Ct. system protect to parole public.” and (border (2004), 158 L.Ed.2d 311 However, parole of the sys- feature per se by searches are reasonable is, virtue tem, important predom- as it does not border). that fact occur at the .... that crimes inate The fact are de- during tected the administration of the States, In Katz United 389 U.S. system not parole does convert what is (1967) 88 S.Ct. 19 L.Ed.2d 576 essentially a and supervisory regulatory rejected Court that idea there such a subterfuge into program a criminal “concept[as ‘constitutionally protected investigations. area’ can serve as a talismanic that] solu- (citations omitted). Latta, 521 F.2d at 249 every tion prob- to Fourth Amendment fact, lem.” n. In Id. 507. Accordingly, Knights pro- Griffin although the Court recognized that pri- authority case, controlling vide the for this vate acknowledged home has been to be a Ferguson. not Edmond

constitutionally area, protected the Court E. against a rigid analytical cautioned reli- ance principle. on this Saying Literally hundreds thousands of sus “effort to decide or not a given whether picion-free, conviction-free citizens of our ‘area,’ abstract, viewed is ‘constitu- subject nation have been made to limited tionally protected’ deflects attention from needs” “special searches because of a de problem presented in this case.” Id. transcending monstrable need the bound certainly 88 S.Ct. I aries of normal enforcement. acknowl- law See Bd. Earls, edge protection usually the constitutional Educ. (2002) (drug person afforded to a in that person’s L.Ed.2d 735 tests home. school); hand, for extracurriculars On United the other with the idea mind encounter, peo- pose approved by of the protects Amendment Craw- that the Fourth given Crawford’s dif- places, not ple, parole agent ford’s and well-within the status, appropriate it is to I believe ferent conditions, scope applicable parole of the than it protection lair far less give his annoy, not to harass or to but It ordinarily attain. is the status would investigate robbery an armed bank where privacy that determines the person by Crawford had been identified an accom- is entitled even person which the plice participant as a who carried a fire- Knights fully supports person’s residence. arm. Moreover, bodily fluids would this idea. sum, I, too, would affirm Crawford’s homes, par and the seem to be resentencing. conviction and remand for bodily problem including had no Court has “special within the needs” fluid searches CONCLUSION category. legislative California’s decision make recognize also to important

isWhat privilege right rather than a the classes in- from these cases is subject prison parolees stringent su- privacy find their in them did not volved pervision including searches was eliminated,” patently just “wholly altered dis- rights cretely rationally to accommodate reasonable. As limited the California exactly That is compelling public needs. Reyes, and the Due parolees done to vis a what California has Clause, Process these searches conform to vis searches. the demands of the Fourth Amendment. Moreover, decision not to rec- California’s

VI ognize privacy right part on the of con- above, I conclude that From all victed felons to defeat these searches is statements to law enforcement Crawford’s ca- clearly arbitrary, rational and not not preceded by any illegal officials were not pricious, harassing, punitive. and not personal search or seizure or a violation subjectively any Crawford did not have also that the con- of Miranda. conclude residence, in his expectation privacy was, required by duct of the officers any objective expectation any such Latta, under the demonstrably reasonable might have had would not be “one parolee “totality Knights, of circumstances.” as society prepared recognize is 587; Latta, 521 at 122 S.Ct. U.S. States, Bond v. reasonable.” United 250(A parolee F.2d at and his home are 334, 338, 120 S.Ct. 146 L.Ed.2d U.S. subject by to search officer (2000) Maryland, (quoting Smith reasonably when the officer believes 735, 740, 2577, 61 99 S.Ct. necessary perform- in the such search is (1979)). The test reiterated L.Ed.2d duties); see 8289 also Rise v. ance of his in Minnesota v. by (9th Cir.1995) (Ore- Oregon, 59 F.3d 1556 Carter, 469, 142 525 U.S. of gon requiring statute felons convicted (1998) that “in order to L.Ed.2d 373 specific murder or sexual offenses sub- Amend- protection claim the of the Fourth sample mit for DNA bank is reason- blood ment, a must demonstrate defendant and therefore does not violate the able expectation privacy personally has Amendment); Gregoire, Fourth Russell v. searched, expecta- and that his place (9th Cir.1997) (convicted 124 F.3d 1079 sex ... is ... one that has a source tion right privacy prevent- offenders have no Id. permitted by society.” recognized regis- them to ing requiring the state from case fails 119 S.Ct. 469. Crawford’s subject community ter as such residences). this test. pur- notification of their product illegal governmental shot killed Senator activi- Sirhan Sirhan ” 1 Kennedy in 1968 while Senator ty.’ illegal governmental

Robert F. no There was a candidate for the Presi- Kennedy was here, activity is the and that end of it. States. the United Sirhan dency of Nevertheless, highly it is desirable that we and is serving murder a life convicted a majority opinion, merely plu- issue in California. He is eli- prison sentence in rality opinion, Iso have concurred in the If he gible pa- is-released on parole. for majority Judge opinion as well Trott’s role, not seem to ex- it does reasonable regarding suppression Crawford’s until empt him from searches statements. suspicion that he has bro- someone has I Regarding sentencing, concur in the again. The holds true ken the law same majority, vacating result reached felons imprisoned for all three strikes remanding, disagree but the de California. novo the majority ap- standard of review permits sen- If the Constitution life plies. Standard of review has not been criminals, Ewing, 538 tences for career put my has issue and view not been 15, 123 S.Ct. and the “Me- U.S. at (so argued by any we as an party en banc gan’s posting on Internet of the Law” court I suggest would not do as with- here neighborhood registered addresses sex inviting briefing), out further and has Doe, offenders, see Smith therefore a focus of our not been attention. (2003), 155 L.Ed.2d But the standard of review a sentence for a keep reasonable state to seems question, threshold we must view tight parolees. rein on case through proper the lens of the stan- I would affirm Crawford’s conviction. review, dard of legislation and recent makes the de novo standard untenable. KLEINFELD, Judge, Circuit by declaring err that the We standard of concurring: review is de novo. that, majority assuming holds with- (1) separately write for two reasons: out that the search deciding of Crawford’s clarify the distinction between parolees illegal, and his detention there were home (2) probationers, address made statements Crawford were standard application of review for admissible. I agree. nevertheless sentencing guidelines to the facts of the hold Judge Trott would that the search offense. home and Crawford’s his detention constitutionally permissible, so there were I. were admissible re- statements without gard analysis First, in the majority opin- to the parolees. The cases often speak ion. agree. persons to probation parole.” “on That set quite includes two different subsets. view, Judge

In my approach Trott’s is One is freedom entitled to less than the preferable, it usefully because clarifies the other. Crawford himself summarized the relationship of pa- constitutional states parolees law for with near accuracy when rolees, and because just it “[Ajttenuation he testified that “I took for said, granted New York v. Harris that, you know, I’m parole, on that I only where, don’t analysis appropriate is as a matter, rights courts have no at all.” The threshold determine that difference ‘the evidence is in challenged parolees probationers, some sense between who Harris, 14, 19, (1990). 1. New York v. 109 L.Ed.2d 13 terms, probationers tial attain that opposite punishment ends of the status are near scale, judicial of both the correctness from a determination that their illustrates analysis possibility and the Judge suggest Trott’s conduct and records do not so relating only pro- to distinguishing danger of cases much harmfulness or that substan- imprisonment justified. tial bationers. have been persons Parolees are who reasonable, perfectly It is and constitu- and re- prison sentenced to for felonies tionally permissible, that persons whose prison before the end of their

leased egregious parolees’ conduct has been so as on They are held a “variation terms. subject hunches, are to searches on unreli- degree only a “limited imprisonment” tips, general sweeps, anything able get One cannot sentenced of freedom.”2 “arbitrary, capricious, else not or harass- only way get parole parole. ing.” Thus even if the search of Craw- system3 is to commit a typical state ford’s home would be violative of a proba- misdemeanor, get felony, merely not (I right privacy suggest tioner’s do not jail, for a prison, merely sentenced to not be), that it would that would not settle the long enough qualify time for period of question whether it would the right violate release, Thus, eventually, on parole.4 is, privacy, it parolee. limited as of a of distinguished from those not convicted supervision pro- Constitutional limits on anything, those convicted of mere misde- may be more extensive than bationers jailed jailed, and meanors and either or not limiting supervision parolees. those impris- those convicted of felonies but per- lengthy periods, parolees oned for are II. harmfully sons deemed to have acted more anyone except than those felons not re- Second, sentencing. During the Ulrich parole. leased on robbery, pointed gun Street Crawford momentarily security guard, pressing are close to the other end a Probationers back, said, holdup. typi- the harmfulness scale. The most into his “This is wall, put your up, to Face the hands probation cal use of is as an alternative offenders, jail commonly don’t The district court held that for minor most move.” exchange imposition a first of- sufficed for misdemeanants.5 Sometimes probation “physical Apply- restraint” enhancement. gets fender felon lenience review, majority vacates imprisonment.6 parol- ing than de novo rather Unlike ees, grounds that the dis- prison were sent to for substan- and remands who Scott, commit Class A or 2. Pa. Bd. Parole v. for individuals who B 141 L.Ed.2d 344 person But a who commits lesser felonies. probation felony may be sentenced to if his system abolished in federal 3. Parole was history other- offense level and criminal level Sentencing Reform Pub.L. Act Sentencing place Zone A the wise him in 98-473, Stat.1987, II, II, tit. ch. No. (where applicable range 0-6 Table 212(a)(2). § months), impos- B and court also or Zone See, e.g., §§ 3040 et Cal.Penal Code es a condition or combination of conditions mandatory parole persons seq. (imposing confinement, requiring intermittent commu- imprisoned year). for more than one confinement, nity detention. home 5Bl.l(a). § U.S.S.G. See, e.g., (Imposition § 5. U.S.S.G. 5B1.1 Probation). Term of 743, Reyes, 7.People 19 Cal.4th 80 Cal. v. system, federal 18 U.S.C. 734, 445, Rptr.2d P.2d 450 968 3561(a)(1) prohibits probation § a sentence of not-very-useful appellate decisions which United applying by not court erred trict overlook, may and afford judges has histori- district v. Parker.8 Our court States sentencing to the physi- appropriate of the deference application that the cally held The more adjustment undisputed judgments judges. to an of district cal restraint reviewed de novo.9 We would also establish facts is deferential standard set of of review to joints sentencing our standard in the play correct needed should con- I nevertheless judges of discretion.” that district can guidelines, “abuse so by majority by reached generated cur in the result out the variations smooth sentencing. regarding offi- prosecutors probation different important, cers in similar cases. Most widely adopted A standard was de novo though the old de novo standard was of the relevant the recent revision prior to think (though construction permissible theory for the de novo stan- statute.10 erroneous) of the “due deference” lan- reviewing application is that dard the recent guage the statute before facts, making a to the we are guidelines amendment, with the squared it cannot be of law.11 Our determina- determination as it now stands. statute law, though, are so fact-based tions of proper- more should fact-limited appellate Congress provided has judgments about facts. ly be viewed statutory regarding direction court with a vast number of deci- generated haveWe standard of review for different sen- guidelines apply how the sions about tencing by a district court. In 18 decisions minute and so affected of crimes so details 3742(e), § are instructed U.S.C. we that the cases invite distinctions by context to the Congress “give due deference application. as often as guidelines application district court’s to the facts.” the addition of the deferential abuse of discretion With The more year,12 prevent proliferation of Act amendments last standard would PROTECT Parker, 303, 1114, (6th Cir.1996) ("Since Perkins v. 241 F.3d chal- 8. United States (9th Cir.2001). lenges only proper- whether the district court ly Sentencing applied the Guidelines and does 640("We Thompson, 9. See 109 F.3d review challenge findings not fact, the district court’s interpretation of the de novo the court’s Guidelines, law, appeal questions the issues on are its factual determinations novo.”); which we review de United States v. error.”). clear Jones, 1512, (11th Cir.1994) 32 F.3d 1517-18 ("Whether applies particular Guideline to a Parker, 1118-19(failing 10. See 241 F.3d at given legal question subject set of facts is a according but articulate a standard review review.”); Stokley, de United v. novo States apparent no deference to the district court’s (4th Cir.1989) (per- 881 F.2d 115-16 physi- apply the decision to enhancement for forming de novo review where the defendant 640; restraint); Thompson, cal 109 F.3d really undergirding did “not attack the factual Plenty, see United States v. 335 F.3d also contended] of his sentence but rather that his (8th Cir.2003) ("The impo- district court’s legal defini- behavior did not fall within the sition of the enhancements is based on factual ”). 'physically of the term restrained’ tion findings subject to review for clear error. interpretation The district court’s of the Unit- Anglin, 11. United States v. 169 F.3d Sentencing applica- ed States Guidelines and (2d Cir.1999). to the tion of those Guidelines facts of 108-21, (internal (Apr. case are reviewed de novo.” cita- 12. Pub.L. No. 117 Stat. Drew, 2003). omitted)); Phillips, United See United States v. 356 F.3d tions States Cir.2004), (D.C.Cir.2000) ("Because (9th as amended F.3d 1098-1100 significantly Daily D.A.R. issue 367 F.3d Journal facts on this are (9th 2004) May (holding dispute, primarily question Cir. that the the issue is Act amendments to the standard of law and therefore review closer to de novo is PROTECT Perkins, retroactively). required.”); apply 89 F.3d review United States said, Congress effect, out three dif- tions. expressly statute sorts has review (1) review, “clearly er- error, ferent standards of decisions class A for clear class B determinations; credibility for roneous” deference, novo, with due and class C de (2) application deference” for of the “due yet we review class B as well as class C (3) facts; “de novo” for guidelines decisions de novo. That is plainly mis- “3(A) guidelines to facts for application reading of the statute. 3(B)” determinations, i.e., departures or Though “due deference” is a different departures reasons and with- improper for discretion,” verbal formula from “abuse of out written statements of reasons: interpreted meaning is best as the same appeals give The court of shall due re- thing a case such as In Crawford’s. gard opportunity to the of the district United, States, Koon v. the Court directed judge credibility of the court to wit- appellate courts to a district review court’s nesses, accept findings and shall depart decision to from the Guidelines fact of the district court unless are range for abuse of discretion rather than and, clearly except erroneous with re- de novo.14 The acknowledged Court spect to determinations under subsec- “the deference that is due district court [a (3)(A) (3)(B), give tion or shall due def- 3742(e) § under depends on the nature of ] application erence to the district court’s question presented.”15 the ap- Where guidelines of the to the facts. With pellate good court “will be in a position under subsec- respect determinations question to consider the as the district (3)(A) (3)(B), appeals tion or the court of instance,” court was in the first as when shall review de novo the district court’s claim appeal is that the district application guidelines of the to the court made some kind of mathematical facts.13 error, may district court “[t]he be owed no erroneously applying We are “de novo” deference.”16 expressly review where the statute com- distinguishing departure decision apply mands tous “due deference” review. questions require from of law that no def- way Congress There is no to infer that erence, the Court Koon relied on the apply meant for us to de novo review to all decisions, departure factual nature of deci- facts,” “application guidelines of the to the require sions that a district court to “make expressly distinguished where it between many a refined assessment of the facts “due deference” and “de novo” review and bearing on the outcome” and that involve explicitly limited de novo review to the unique “the consideration of factors that designated departures classes of from the susceptible generaliza- are little of useful guidelines. may Where we once have tion.” reasoned that we can- say been able to that the “deference due” depar- the factual nature of the not avoid applications guidelines other to the facts higher it to a inquiry taking ture level was “none”—and then review de novo— generality.18 asking Rather than interpretation precluded is now for the heartland as applications guidelines whether factor is within facts (3)(A) (3)(B) than general proposition, other determina- court asks wheth- 3742(e). § 13. 18 U.S.C. Id. 16. States, 81, 99-100, (internal

14. Koon United Id. at 116 S.Ct. 17. omitted). quotations 135 L.Ed.2d 392 Id. at 116 S.Ct. 2035. Id. at 116 S.Ct. 2035. 18. very effec- might A raised fist given the heartland restrained. is within factor er the tively elderly, an frail victim but restrain the case.19 the all of facts larger at all restrain a victim might not re- recently, Supreme the More perpetrator, and the stronger than argument that be- jected a defendant’s might vary with effectiveness of restraint in the dispute in deci- no facts were cause pass- day, visibility of of the crime to time court, appellate reviewed sion refuge, and all sorts of ersby, proximity of In Bu- appropriate.20 novo review was de Thus, things. application of the other States, upheld the Court v. United ford facts guideline “physical restraint” review of deferential the Seventh Circuit’s “readily by ref- question is not a resolved court’s decision that certain the district stan- general legal principles erence not consolidated for convictions were past Rather, a question it is dards alone.”24 Bu- it determined that sentencing when of, grows by, out and is bounded “that Relying offender.21 ford was a career factual circumstances case-specific detailed Koon, the Court held that “the heavily on appellate ... value of limits the [which] position in a better than good court is in district We are not precedent.”25 court position as the district court to evaluate to decide whether a appellate court record, light in so we facts of individual particular set circumstances get of the business of largely should out ‘functional consolida- demonstrates ” 22 so, court doing except when the district Additionally, pointed the Court tion.’ determination, even when viewed deferen- may closely guide nuance out that “factual tially, to. cannot be deferred decision, legal legal results de- applying a de novo stan- Our error heavily understanding pending upon large number generates dard of review details.”23 significance case-specific no of cases for which our review makes “physical restraint” en- Whether According to very valuable contribution. 2B3.1(b) (4)(B), hancement, § in a applies Commission, Sentencing the United States given analogous case is to the kind of 14,000 year fiscal there were question for which the Court has offenders sentenced federal Guidelines judgment to the required deference courts in the Ninth Circuit.26 Of that nuanced, comprehensive, court. A district number, their appealed either sen- crime, contextualized consideration tences or their sentences and convictions.27 criminal, victim, all and the many as the num- This is almost as cases circumstances, surrounding may affect the immigration ber of cases we handled 2001.28 An of discretion standard of physically decision whether the victim was abuse Statistics, Sentencing http:// al available at 19. Id. (last www.ussc.gov/ANNRPT/2001/ table2.pdf States, 20. v. United 63- Buford 31, 2004). visited March 149 L.Ed.2d 197 Types Appeals in Cir- 27. "Table 55: Each S.Ct. 1276. 21. Id. District, cuit and Fiscal Year 2001” U.S. Sen- Commission, tencing Sourcebook Federal 22. Id. at 121 S.Ct. 1276. Statistics, Sentencing http:// available at 23. Id. 1276. (last www.ussc.gov/ANNRPT/2001/table55.pdf 31, 2004). visited March 24. Id. ending September period 28. In the 12-month 65-66, Id. at 121 S.Ct. 1276. 30, 2001, 1,150 commenced the Ninth Circuit appeals.” "Table B-l Each "administrative See 26. "Table 2: Guidelines Offenders in Commenced, 2001,” District, Appeals-Appeals U.S. Courts of Circuit and Fiscal Year Circuit, Commission, Terminated, During Pending, Sentencing Sourcebook Feder- (b)(2) than unpub- far more tion rather the mere two level generate would review published adjustment physical far for restraint under fewer dispositions lished (b)(4).31 Then distinguished than a de novo standard. subsection we opinions Thompson by and limited in Parker hold- found that Crawford The district court just ing pointing gun a at someone directly employee, at a bank gun a pointed physical does not restraint amount with- him robbery, a made him this was told out a “sustained on the victim.32 focus” wall, and forced around to face turn thicket, stayed could have out of We during the entire rob him to remain there greater and left the district courts with the majority that the district bery. The holds unadorned, clarity guidelines had we physical contact correctly court held merely reviewed for abuse discretion. unnecessary, under with the victim was pair This of cases shows how de novo Thompson,29but that the States v. United guidelines review encrusts the with need- impose “physi could not district court complexity. less additional We did not adjustment express without cal restraint” generate sentencing a common law of be- in United ly finding, under our decision guidelines, fore the because sentences a “sustained v. Parker30 States focus generally unappealable. guide- were are, in Both cases person.” the restrained lines are so elaborate a codification that view, unnecessary elaborations of the my by body an extensive encrustation com- were led a mis guidelines to which we unhelpful sentencing judges mon is law the dis taken standard of review. Were just not contribute to and does sentences guidelines simply apply trict court any more than abuse of discretion' review cases, they guidance are without the would. quite adequate, proba and would would be adjustment. imposing

bly suggest upon The distinctions which the cases in particular have focused have salience sentencing guideline Under cases, legal generalizations they but as are 2B3.1(b)(2), brandishing a fire- using § or arbitrary. gun a a person Whether touches robbery a five or six during gets arm a silly question, simply or not is since physical re- level increase. Abduction guns is that can func- whole idea separately by four straint are dealt with ’ touching why they is tion without 2B3.1(b)(4). § adjustments in and two level —that for replaced have swords. As whether commentary following guideline focusing spends felon a whole lot of time tied, “by being restraint physical refers bank, on one of the individuals bound, up.” or locked eliminated the We many but one of contextual consider- clarity arrangement of this simplicity and that affect how restrained victims ations by generating needless common law appropriate inquiry A focus of feel. more First, physi- around it. we construed the by gun upon would be whether restraint point- to include cal restraint enhancement “using” and “brandish- is covered ing gun Thompson, at someone even adjustments, and whether it is like gets ing” at someone though pointing gun binding, locking up exam- adjustment tying up, or six level under subsec- five Ending September Thompson, 109 F.3d at 641. the 12-Month Period 29. 2001,” Office of the United Administrative Courts, Parker, at 241 F.3d 1118. States Judicial Business the United 30. Report 2001 Annual the Di- States Courts: rector, Thompson, F.3d at 641. http://jnet.ao.dcn/img/as- available 31. (last sets/4825/b01sep01.pdf visited March 32.Parker, 2004). 241 F.3d application “physical note for crime will be found. pies in the Because the search line of inqui- restraint.” But sensible of Crawford’s residence accompanying by our needless common ry foreclosed any detention were conducted without such law. suspicion, they violated the Fourth Amendment. vacating in our result and re- concur resentencing, though I differ manding produced by “exploita- When evidence is standard of Be- proper as to the review. underlying illegality, tion” of an such as a panel easily as an en banc can cause we Amendment, violation of the Fourth it law, language prior correct mistaken we must be excluded from the evidence the should consider the effect the PRO- prosecution presents at trial. Brown v. Act and our of re- TECT revise standard Illinois, 590, 599, 422 U.S. subsequent Doubtless in some view. case (1975) 45 L.Ed.2d (quoting Wong Sun the issue of standard review will be States, 471, 487-88, v. United squarely by set us the briefs. before (1963)). 9 L.Ed.2d 441 Because Agent pur- Bowdich and his fellow officers FLETCHER, Judge, Circuit W. posely, and successfully, illegal used the dissenting, with whom PREGERSON and suspicionless search and accompanying de- TASHIMA, Judges, join: Circuit tention as a produce “tool” to Crawford’s During suspicionless a search of his resi- confession, that confession should not have involuntary during dence and an detention been admitted into evidence. I therefore search, Raphyal agreed Crawford to respectfully dissent. go Agent to FBI office to talk. FBI David Bowdich conducted the search be- Background I. hoped that he could cause induce Craw- 27, 2000, July On at about 8:20 in the a robbery ford to confess to bank that had morning, Agent FBI Bowdich arrived with two and a place years taken about half four state law enforcement officers at Agent Bowdich testified that he earlier.. residence, Crawford’s living where he was and his fellow officers had no expectation with his sister. “courtesy,” Agent As a any they would find evidence of the “old Bowdich had notified robbery” during Rather, Crawford’s bank search. planned he testified that he the search officer of his intention to search Craw- detention a accompanying get residence, “tool” to ford’s but the officer did to confess. After Crawford about hour accompany Agent Bowdich. The offi- office, half at FBI and a Crawford door, cers knocked on the and Crawford’s participating confessed the bank rob- Bowdich, sister let them in. Agent Detec- bery. Gutierrez, tive and at least one other offi- cer went into the bedroom where Craw- detention,

At the time of the search and ford asleep eighteen was with his month- parolee Crawford was a California state daughter. old Detective Gutierrez and subject to explicit parole. conditions of Crawford testified that the officers had conditions, however, None of these author- their guns drawn. The officers woke ized suspicionless pur- search whose sole Crawford, room, took him into the pose living to investigate pre-parole crime. and seated him on the couch. that, Agent Bow- conclude in the absence of an ex- plicit dich testified that parole, condition of Crawford was “de- search of a parolee’s residence tained” on the couch and was not investigate pre- “free to paróle justified crime must at least a leave” while the officers searched the resi- reasonable suspicion that evidence of that dence. suspicionless search of residence and Crawford’s resi- of Crawford’s

The search lasted between accompanying might up detention dence turn evidence of violations his time, fifty During minutes. thirty and leverage of state law that he could use for residence, Craw- as officers searched get robbery. Crawford to confess to the ready her children get tried ford’s sister Agent forthrightly: Bowdich testified “We day. Agent Bowdich used this for their looking weren’t for evidence of a bank “chit-chat” with Crawford. Late time to robbery, looking we were po- [the] but conversation, Agent Bowdich asked him, tential of if possibly flipping we were described as an “old bank about what he case, able to find evidence of a state where suggested Bowdich then robbery.” Agent give we would take all that evidence and might be “more comforta- that Crawford one our state officers who was there FBI office. Under the talking ble” at the Agent for us—with us.” Bowdich re- Bowdich Agent circumstances created peatedly testimony made clear and his fellow officers—several officers purpose suspicionless the sole during the searching Crawford’s residence search of Crawford’s residence and accom- detention early morning, accompanying an panying investigate detention towas living the couch in the of Crawford on was, robbery. robbery That bank room, eighteen month-old Crawford’s course, committed before Crawford was bedroom, in sleeping daughter still parole. released on get chil- trying sister her Crawford’s day agreed ready dren for the —Crawford II. Fourth Amendment Violation at the FBI office would that a conversation that suspicion- Crawford contends “more comfortable.” be residence, less search of his and the ac- Agent Bowdich and Detective Gutierrez detention, companying violated the Fourth Agent Bowdich’s car. escorted Crawford I agree. Amendment. to the During twenty minute drive office, sat in the FBI Detective Gutierrez A. of Crawford’s Parole Conditions seat next to Crawford. Once back detention, At the time of the office, an FBI was taken into Crawford parole Crawford was on from California room, interview and the door was closed. prison. was released from state When he began to read Agent Crawford Bowdich signed is sometimes called prison, he what Arizona, under Miranda rights his form, imposed a “Fourth Waiver” which 16 L.Ed.2d 694 I am during parole. certain conditions his him, (1966), asking stopped but Crawford purposes of this case willing assume Agent if under arrest. Bowdich he was conditions of are valid. that these not discontinued said that he was However, author- none of these conditions Miranda rights. After about reading the suspicionless pur- search whose sole ized room, in an hour and a half the interview pre-parole pose investigation was the robbery. to the Crawford confessed bank crime. in Agent Bowdich testified the district expect

court that he did not to find evi- Validity of the Parole Conditions robbery dence of the bank in his search of separate in his Judge Trott contends Rather, sought residence. he Crawford’s in this case have opinion parties that the opportunity an to talk to Crawford about status of a legal misunderstood the robbery” in a situation the “old bank form. As understand “Fourth Waiver” psychologi- would be at a where Crawford Further, Judge Trott contends that argument, disadvantage. hoped cal torney representing the State as had the General times California relevant at all amicus, Assistant and from the United law to enter into authority under state Attorney. During argument oral States probationer, a would-be agreement court, attorneys repre- both our en banc authority awith have such did not but parole at the conditions of sented Judge According parolee. would-be at all relevant times issue in this case were unilaterally imposes condi- Trott, the State agreement the State a matter of between in contrast to conditions parole, tions of attorneys told us parolee. Both by agree- established which are probation, prisoners if state choose California and the would-be the State ment between Amendment to waive their Fourth probationer. being granted pa- rights as a condition Trott relies on the decision Judge role, get parole do not prisoners those People in Supreme Court California Attorney Gen- stay prison. Deputy Cal.Rptr.2d Reyes, 19 Cal.4th eral, particular, represented Cali- explaining why 968 P.2d changed fornia law has since California parolee a would-be cannot consent Reyes. Supreme Court’s decision illegal an otherwise to validate used brief maintains that between State’s wrote, language search, quot- court 1, 2003, sixty- March 2001 and October by Judge Trott: ed sign refused to new condi- seven inmates exception to the warrant The consent pris- and were returned to tions may not be invoked to vali- requirement on. parolee adult search of an be- date the circumstances, might In it matter some cause, under the Determinate Sentenc- parole conditions of are unilateral- whether 1976, parole is not a matter of ing Act of State, by ly imposed by the as contended The Board of Prison Terms choice. Trott, Judge imposed pursuant or are provide period parole; must and the agreement an between the State (Pen.Code it. prisoner accept must At- parolee, by Deputy as contended choice, § there seq.) 3000 et Without torney General and the Assistant United voluntary no consent to inclu- can be case, however, Attorney. In States this sion the search condition. purposes matter. For the of this does not (citation omitted) (italics Id. at 448 indicate case, I the conditions con- assume Judge opin- quoted sentence not Trott’s signed in the “Fourth form tained Waiver” ion). reasoning, the State has Under They may are valid Crawford valid. be authority bargain no with would-be because, contends, Judge Trott authority parolee, and therefore lacks the power unilaterally impose had the State parole to threaten to withhold unless the they may valid because them. Or be agrees to waive some or all of his parolee agreed to them as a condition of Crawford rights. Judge Fourth Amendment Trott Or, indeed, they may gaining parole. argues parties thus that what the in this invalid. But it makes no difference in this case call a “Fourth Waiver” form is not case, for in no event do the conditions of agreement parolee agrees under which the in the “Fourth form au- parole Waiver” rights Fourth to waive his Amendment suspicionless search of Craw- thorize Rather, parole. the “Fourth gain order to investigate pre-parole ford’s residence parol- form is a notification to the Waiver” crime. unilaterally imposed upon

ee of conditions Meaning of the Parole Conditions him the State. Judge signed Trott understands California law the “Fourth Waiver” Crawford 2000, just At- he was released differently Deputy from the form before somewhat

1085 possible purpose unexpected, unprovoked There are several of an prison. from conditions contained readings parole of a defendant is to ascertain form, none of these read- in the but under parolee] whether is complying [the with did these conditions authorize ings of [parole]; terms to determine not by Agent conducted suspicionless search law, only disobeys whether he but also fellow officers. To un- Bowdich and his ”) whether he obeys (quoting the law.’ Peo conditions, helpful it is first derstand the Mason, 759, ple v. 5 Cal.3d 97 Cal.Rptr. background against legal out the sketch (1971)) 302, 630, 488 P.2d (emphasis 632 which were written. added); Bravo, 282, Cal.Rptr. 238 738 P.2d (also Mason, quoting Cal.Rptr. 342 97 Legal Background a. 632). 302, 488 P.2d at The California Su many years, Supreme For California preme repeatedly upheld suspi- Court has allowing conditions sus- upheld Court has parole cionless searches for evidence of searches. picionless probation See, Woods, current e.g., crimes. 88 Cal. Woods, See, 668, 21 e.g., People Cal.4th 88, Rptr.2d (suspicionless 981 P.2d at 1028 88, 1019, P.2d Cal.Rptr.2d crime); search for evidence of current (1999) Reyes, Cal.Rptr.2d (probation); Reyes, Cal.Rpt r.2d 968 P.2d at 447 (parole); People 968 P.2d (suspicionless search for evidence of cur Bravo, Cal.Rptr. 43 Cal.3d Bravo, use); drug rent Cal.Rptr. (1987) (probation). 738 P.2d 342-43 343(search 738 P.2d at for evidence of The court has indicated these condi sales). drug current But I am unaware of first, purposes: tions have two to ensure any case in which the California probation compliance with the law while upheld suspicionless Court has either a and, second, parole; compli or to ensure crime, pre-parole search for evidence of a probation parole. ance the terms of suspicionless pur or a search whose sole See, Woods, Cal.Rptr.2d e.g., pose investigate pre-parole is to crime. P.2d at 1027. Probation and signed when Crawford his con- reasonably related to searches must be parole, ditions of the case law of our circuit Robles, purposes. People these two See v. was even stricter than that of the Califor- 789, 914, Cal.Rptr.2d 23 Cal.4th 97 3 P.3d Supreme long nia Court. In a line of (2000) (“As 311, indicate, 316 our decisions cases, repeatedly proba- we had held that pursuant searches that are undertaken dispense tion and searches could probationer’s a advance consent must be ordinary requirements with the of a war- reasonably purposes pro related to the probable only rant and cause when the bation.”). investiga- for subterfuge search was not a Supreme The California has de Court See, past e.g., tion into or current crimes. purpose ensuring compli scribed the 370, Ooley, United States v. 116 F.3d 372 only in a proba ance with the law terms of (9th Cir.1997) (“[W]e long recognized have parolee’s compliance, or current tioner’s legality of a warrantless search pre-probation pre-parole compli or depends showing on a that the search was Woods, example, ance. For the Califor and not an investi- probation true stated, Supreme nia dual “[T]he Court search.”); Vought, v. gation United States purpose of a search condition to deter [is] (9th 1498, Cir.1995); 69 F.3d 1501 United by probationer and to further offenses (9th Watts, 790, F.3d 794 States v. 67 compliance ascertain with the terms of the Cir.1995), grounds, 519 rev’d on other 88, probation.” Cal.Rptr.2d P.2d at 88 981 (1997); 148, 633, L.Ed.2d 554 added); 136 (emphasis Reyes, 1024 see also 80 (“ 894, Cal.Rpt Harper, r.2d States v. 928 F.2d [T]he 968 P.2d United United, Butcher, form, question is not v. “Fourth States (9th Cir.1991); Waiver” (9th Cir.1991); United Knights might means or mean. The what 926 F.2d Richardson, 439, 441 849 F.2d v. rather, States is what California officials question, Jarrad, v. States (9th Cir.1988); United they pre- the law when understood be (9th Cir.1985); Latta 1451, 1454 754 F.2d the “Fourth form to Craw- sented Waiver” (9th Fitzharris, F.2d Cir. decided, Knights year ford a before Rhay, 1975) (en banc); Smith 419 F.2d might reasonably have and what Crawford Cir.1969). (9th Probable cause 160,162-63 meaning that form understood to be the required ordinary for and a warrant were signed it. when investigations proba law enforcement past both parolees tioners The Parole b. Conditions —of Fourth crimes—where present signed by “Fourth form Waiver” require. otherwise so Amendment would clauses: Crawford contained two signed his year A after Crawford your You residence [Crawford] form, Supreme Court “Fourth Waiver” your control any property under overruled this line cases partially may by be searched without warrant 112, 122 Knights, States v. United agent Department an of Cor- Rely L.Ed.2d 497 any offi- rections or law enforcement de Supreme the California Court’s ing on cer. Woods, 21 Cal.4th 88 Cal. cision in up P.2d the Court Rptr.2d Parolee’s Initials search, probation investigatory

held condition, probation based on a California agree You to search or seizure suspicion reasonable officers had where peace officer or other officer at current crime that evidence of a would be any day night, or time of the with or justi repeated found. The Court dual without search warrant given by fications the California without cause. probation searches: “It was rea sonable to conclude the [California Parolee’s Initials further

probation] search condition would “you your specifies Clause primary goals probation the two —reha your any property residence and under society from protecting bilitation and fu searched; may control” authorizes ture criminal violations.” 534 U.S. at searches law enforcement officers and see also added); (emphasis S.Ct. 587 Corrections; agents Department (‘When id. 122 S.Ct. 587 an officer “without a war- authorizes searches that a suspicion probation has reasonable contrast, By specifies only rant.” 2 Clause engaged subject to a search condition is er (Crawford) “you” agree to be activity, ... an criminal intrusion on searched; by parole authorizes searches significantly diminished probationer’s officers; peace officers and other and au- added). reasonable.”) (emphasis privacy is thorizes searches and seizures both “with Knights only addressed The Court in warrant,” or without a search and “with or cause, suspicion, required or the level without cause.” for evidence of cur- probation for searches readings Three different of the two rent crimes. It did not address the level The first two read- possible. clauses are justify suspicion required searches ings part understand the clauses as of an pur- crimes. But for past for evidence of integrated in which each clause has understanding Crawford’s whole poses

1087 reading un- dich’s search was not authorized meaning. The third under a distinct having synony- the clauses as either clause because 1 derstands Clause does not none of these meanings. all, Under suspicionless mous searches at allow and be- “Fourth form readings does the Waiver” 2 suspi- cause Clause does not authorize of Craw- suspicionless authorize a search investigate pre-parole cionless searches to investigate pre-parole a ford’s residence crimes. crime. reading attempt The third abandons the fact that reading The first focuses on the to read the “Fourth form an Waiver” relatively protec- 1 is narrow and Clause integrated in which 1 2 whole Clauses specifies applies

tive. 1 that it Clause independent meanings. have As seen residence, Crawford, searches above, 2 Clause authorizes a standard sus- control; property dispens- under his picionless parole search under California a only requirement es with a for warrant. read, may case law. 1 be Clause redun- contrast, and rela- By general Clause dantly, exactly to authorize type same tively specify It does not non-protective. cases, search. several California search, any kind of and it dis- particular interpreted has Supreme parole Court penses both a warrant and a cause with precisely condition worded as Clause 1 to requirement. The reference Clause suspicionless parole to authorize a worded suggests that a a search of “residence” See, Sanders, e.g., People search. authorized under residential search is 2 Cal.Rptr.3d Cal.4th 73 P.3d Further, but not under Clause 2. Clause (2003); Reyes, Cal.Rptr.2d of a statement in Clause 1 that the absence cases, P.2d at 446. In these the court has may conducted “with or with- interpreted phrase “without a warrant” suggests out cause” that a search under only to mean not without a warrant but cause, unlike Clause 2. requires Clause However, court also “without cause.” reading, Agent Bowdich’s Under any in these cases did not discuss other not authorized under either search was parole might conditions also have 1 does not authorize clause because Clause do not know present. been therefore all, suspicionless searches at and Clause interpret whether the court would suspicionless does not authorize searches dispense phrase “without a warrant” to of residences. if requirement for cause there had na- reading The second focuses condition, com- been an additional ture of a search under California parable dispensing to Clause with both clearly authorizes a conven- law. Clause warrant and cause. suspicionless parole tional search as de- dispense if I read 1 to But even Clause authorized scribed and under California cause, I should not requirement with a Bravo, See, e.g., P.2d 336. case law. broadly more than the read the clause any “with or It allows searches time has read it. Supreme California without a search warrant” and “with Court has re- The California cause,” specifically without and it refers to purposes parole that the of peatedly held 1 by “parole searches a officer.” If Clause are to ensure cur- probation searches independent meaning, have some proba- compliance with law and with rent must refer to other kinds of searches. See, Woods, parole e.g., tion and terms. 88 crimes, investigate pre-parole Searches 88, at 1027. Given Cal.Rptr.2d 981 P.2d specifically by not authorized California law, very a clear law, require this case I would among would these other case be form that reading, Agent Bow- statement the Fourth Waiver searches. Under this subjected suspicionless in- to a suspicionless parolee a search to can be it authorizes crimes. no There is pre-parole a vestigate investigate pre-parole search to crime. signed. in the form Crawford clarity such 1. Knights v. United States reading

Thus, any consistent with under law, Agent Bowdich’s search California opinion point The closest on is the Su- under authorized either Clause was not preme opinion Court’s United States v. neither 2, clause author- because Clause 112, Knights, 534 U.S. S.Ct. investigate searches to suspicionless izes (2001). opinion L.Ed.2d That strongly crimes. pre-parole suggests indeed, compels almost — —the argument, Deputy At- During oral in the conclusion that at least absence of us told the “Fourth torney General explicitly condition of pro- stated signed by is no form Crawford Waiver” otherwise, a viding any parolee’s search of parolees. for California That longer used investigate pre-parole residence to crime long-term importance may fact lessen must be on at least based reasonable sus- case, it does not change of but picion. court A California sentenced of which parole conditions Crawford was Knights subject probation condi- given any of possible notice. Under ‘[sjubmit tion Knights “that would ... form, the “Fourth readings of Waiver” residence, person, place of property, vehi- authorize a suspicionless form does not cle, effects, personal anytime, to search search of residence to investi- Crawford’s warrant, with or a search without warrant gate question crime. The pre-parole of arrest cause any pro- or reasonable posed case is thus in this whether ” bation enforcement officer or law officer.’ search of suspicionless Crawford’s resi- Id. Pursuant to this in the of an ex- dence was valid absence condition, authorities State conducted a plicit authorizing condition such a Knights’s apartment of warrantless search search. of a current found evidence crime. Expectation Privacy AB. Parolee’s of Knights’s apartment search of of a Controlling in the Absence cause, probable merely based on but Condition Parole of current suspicion reasonable criminal parolee know that has a reduced We activity. construed The Court the terms expectation privacy, that a State probation condition explicit per- may parole on compliance “condition” search,” but, mit a “suspicionless because terms and ... “often strict conditions of supported search in the case was Pa. Bd. Prob. release.” & Parole suspicion, it did not reasonable reach the 357, 365, Scott, 524 U.S. 118 S.Ct. question suspicionless such a whether (1998). expectation L.Ed.2d This search condition was valid. Id. at 120 n. may entirely be reduced privacy but not 122 S.Ct. 587. Nor did the Court reach the 120-21, Knights, eliminated. See 534 U.S. at question Knights’s purported whether con- 587(balancing privacy interest to a sent contained in the explicit Pursuant probationer). “special to the was, in probation conditions of it- and of doctrine, may a State as an require, needs” self, a valid waiver of his Fourth Amend- condition explicitly probation, stated rights. ment Id. at S.Ct. 587. may that a probationer’s residence did consider the condition of searched without warrant. Griffin probation circumstance” a “salient under a Wisconsin, “totality However, circumstances” test 97 L.Ed.2d 709 because the Supreme provided Knights has that a Court never held notice of the in a valid search Craw- justification for subject. er might be he to which searches in Weighing Knights’s. than 118, 587. ford’s case 122 S.Ct. Id. against privacy in interest

probationer’s Special Needs Doctrine 2. intrusion, in the interest government’s of ... balance held that “the “special Trott contends that the Judge than rea- no more requires considerations suspicionless a needs” doctrine allows of a search to conduct suspicion sonable disagree for two in this case. search 121, 122 Id. at house.” probationer’s this First, Court has reasons. added). Using an “or- 587(emphasis S.Ct. only in a suspicionless searches authorized analysis,” id. at dinary Fourth Amendment cases, where narrowly class of defined 587, concluded: 122, the Court 122 S.Ct. “beyond the of the state “special needs” ordi- Amendment Although the Fourth justify for law enforcement” normal need probability degree of narily requires v. Ferguson program of searches. cause,” “probable in the term embodied Charleston, 76 n. 532 U.S. City of the Constitution degree satisfies a lesser (2001) L.Ed.2d 205 S.Ct. governmental when the balance T.L.O., 469 Jersey v. (quoting New a standard makes such interests private 325, 351, 83 L.Ed.2d 105 S.Ct. a interests warrant Those reasonable. (1985) (Blackmun, J., concurring)). The standard probable-cause lesser than investigation of the search purpose here— a reasonable an officer has here. When place took over two robbery a that of bank subject to a probationer a suspicion that clearly served the “normal years earlier — in criminal engaged condition search past to solve for law enforcement” need enough likelihood there is activity, crimes. that an occurring criminal conduct (dis- Second, Knights addition signifi- probationer’s on the intrusion above), Trott relies on Penn- Judge cussed interests is privacy cantly diminished Probation & Parole Board sylvania reasonable. Scott, 524 U.S. (citations omitted) 121, 122 S.Ct. 587 Id. at (1998), Wiscon- L.Ed.2d 344 Griffin added). (emphasis sin, subject was Knights, probationer In Scott L.Ed.2d Griffin proba- condition of stated explicitly to an con- explicit enforcement both involved of his allowing suspicionless searches tion Neither probation. or parole ditions crimes, current for evidence of residence application supports nor Scott Griffin cir- as a “salient the court treated which analysis uphold “special needs” In 118, 122 cumstance.” Id. investigate pre- search suspicionless contrast, case, was sub- Crawford this crime. paróle parole condition of ject explicit to no Scott, parole condition explicit an to investi- searches suspicionless allowed owning possess- from Scott prohibited argument crimes. The gate pre-parole weapons. When or other ing firearms suspicionless favor of bow, three ar- firearms, compound Knights. than in thus much weaker case is bedroom, in his were found rows subject explicit only Knights Not not need to did The Court was revoked. was also probation; condition of constitutionality question reach crime. of a current searched for evidence because bedroom the search of Scott’s circumstances indicate Both of these exclusionary holding narrow “totality its under the of interests the balance revocation apply rule did require great- would of the circumstances” “sufficient hearings grounds.” was decide the based on “reasonable Finally, n. Id. at 362 118 S.Ct. 2014. case.” and perhaps important, most the searches mentioning phrase “special Without both Scott were for evidence Griffin wrote, needs,” ... the Court State “[t]he contrast, By of current crimes. Craw- ‘overwhelming ensuring an has interest’ ford’s residence was searched because complies that a of parolee [conditions Agent Bowdich investigating pre- a if parole] prison and is returned he fails paróle sum, crime. neither Scott nor to do at so.” U.S. 118 S.Ct. 2014. supports allowing a suspicionless Griffin search here. In Griffin, explicit proba- condition of a permitted pro- tion warrantless search of 3. Expectation Privacy of long bationer Griffin’s so residence grounds” there to believe were “reasonable subjective Crawford had a sufficient ex- at possessed Griffin contraband. 483 U.S. pectation privacy, of on the facts of this 870-71, 107 S.Ct. 3164. The Court held case, that he should be able to enforce the that supervision probationer Griffin was right privacy to which objectively he is “ ‘special need’ of the permitting State Ciraolo, entitled. See California degree impingement upon privacy 207, 211, U.S. 106 S.Ct. 90 L.Ed.2d would not be constitutional if applied to (1986) (describing part a two inquiry: public large.” Id. at 107 S.Ct. subjective “has the individual manifested a grounds,” 3164. “Reasonable as interpret- expectation privacy” “society and is will- by Court, ed Wisconsin re- ing to recognize expectation as rea- quired cause, suspicion probable less than sonable”); Kyllo States, see also v. United suspicion. but more than no In Griffin’s 27, 33, case, grounds” require- “reasonable (2001) Ciraolo). L.Ed.2d 94 (citing ment by presence was satisfied of a subjective Crawford’s understanding is tip detective’s might contraband somewhat hand, unclear. On the one present. The upheld a search of Crawford general testified that as a mat- Griffin’s residence: ter, just, know, “I you just grant- took for think it special We clear that the needs that, know, ed you I’m on parole, that I probation system of Wisconsin’s make don’t rights have no On the all[.]” other requirement the warrant impracticable hand, testified, he also twice specifically as justify replacement of the standard early to the morning search actually con- probable by cause “reasonable by Agent ducted Bowdich and his fellow grounds,” by as defined the Wisconsin officers, that he was “in shock” as a result Supreme Court. Taking the search. these statements 875-76,107 Id. at S.Ct. 3164. together, I conclude that Crawford did not case, by In this contrast to Scott and expect the search and detention to which Griffin, rely cannot explicit the State on an subjected. he was parole. condition Without such a condi- It is not expect unrealistic to the State form, “Fourth tion we Waiver” have to draft language in a parole condition expression no formal “special” or need— form with the customarily by care used Moreover, the State. otherwise — competent lawyer; nor is it explicit search condition unrealistic to whose constitu- tionality language read was sustained in drafted the State accord- Griffin —based expression ing the State’s formal to the rules of ordinarily of its construction “special applied need”—did not permit suspicion- having to documents legal conse- less search. It permitted only a search quence. But it is legal unrealistic to use

1091 Indeed, poses. general explicitly we have stated interpret parolee’s analysis to rights at that he “has no and are indis- probationers parolees oral statement that to acquiesce all,” his decision to explaining purposes for of the Fourth tinguishable him deprive to police authority, apparent at Harper, Amendment. See 928 F.2d Amend- applicable Fourth otherwise of his (“Nor n.l do we see a constitutional 896 v. Sando- See United States rights. ment probation and difference between (ob- Cir.2000) (9th val, 660 200 F.3d amendment.”). of the purposes for fourth “rejected the our court has serving that subjective person lacks a that argument 5. Fourth Amendment Violation privacy simply of because expectation Knights Court in has told to in- expected police have ... could key to a Amendment us that the Fourth privacy”). on his trude balancing “The analysis is a of interests. touchstone of the Fourth Amendment Comparable Treatment reasonableness, of and the reasonableness Probationers and of by assessing, is determined on a search Parolees hand, degree one to it in- which sepa- in his Kleinfeld contends Judge and, on upon privacy trudes individual’s probationers parol- that and opinion rate other, degree it is needed which differently pur- for be treated ees should of promotion legitimate govern- for the searches. probation of and poses 118-19, 122 interests.” 534 at mental Knights did disagree. The Court I (citation omitted). 587 ordi- Under whether, for question of not address circumstances, course, nary a residential Amendment, a Fourth purposes justified by must be a warrant be parolee and should probationer Here, however, probable cause. However, based other comparably. treated they parolee, was a and the State that Crawford by suggest the Court cases See, e.g., than usual Griffin, greater 483 U.S. had a interest should be. therefore (“[I]t always true conducting searches to ensure (as we have said to be probationers obeying On the was the law. Crawford enjoy not parolees) they do true of hand, form the “Fourth Waiver” other citi- liberty every absolute ‘the which signed and up drawn State entitled, only but ... conditional zen is con- right not assert did Crawford dependent liberty properly on observance suspicionless searches of Crawford’s duct ”) special[probation] restrictions.’ investigate pre-parole viola- residence Brewer, Morrissey v. (quoting is, only That of the law. did tions 33 L.Ed.2d to conduct not assert that needed State (alteration (1972)) The Cali- original). legiti- “promot[e] in order to such searches the same Supreme Court invokes fornia interests”; Crawford governmental mate probation justifications conditions given that he would also never notice differentiating be- parole, without subjected to such searches. See, e.g., probation parole. tween Given the balance interests —informed Woods, Cal.Rptr.2d 981 P.2d form that Craw- by the “Fourth Waiver” Reyes, Cal.Rptr.2d 1027(probation); “spe- of the signed, inapplicability ford agree (parole). P.2d at subjective analysis, Crawford’s cial needs” pur- Kleinfeld that for some Judge privacy, objective expectation can be poses probationers parolees probationers treatment of comparable differently, but I do not believe treated Amend- under the Fourth pur- parolees present are different for (9th Agent Esparza, Bowdieh and ment—I conclude F.2d Cir. needed, 1979): minimum, at a his fellow officers suspicion” justify

“reasonable their The “free will” of an inculpating defen- residence and search of Crawford’s Craw- dant is to be light considered in accompanying ford’s detention. The sole policies judicial twin in- —deterrence purpose of the search detention was to tegrity the Fourth Amendment’s ex- —of crime, justi- investigate pre-parole and to clusionary rule. It enough is not for fy Agent that search Bowdieh at needed Fourth Amendment attenuation that the suspicion least a reasonable that he would uneoerced; statement be the defendant’s find evidence of that crime. Because “free will” must also be sufficient to Agent no suspicion, Bowdieh had such I inapplicable render the deterrence and that the search of conclude Crawford’s res- judicial integrity purposes justify that idence, accompanying and the detention of excluding his statement. search, during Crawford violated the A determination that a confession was a Fourth Amendment. product of a defendant’s “free will” under analysis an attenuation is different from a III. Attenuation of the Fourth determination that a confession was volun Amendment Violation tary under the Fifth Amendment. Duna law, Under established evidence ob way, 216-17, 442 U.S. at 99 S.Ct. 2248. A through “exploitation” tained illegal confession can be voluntary under police behavior cannot be admitted Fifth Amendment yet, at the same Brown, into evidence. U.S. 95 time, inadmissible into evidence because it question S.Ct. 2254. The under Brown is the result of an exploitation of an illegal was whether there had been sufficient “at ity under a Brown attenuation analysis. Id. tenuation” illegality of the the evi Supreme The Court has instructed tous dence obtained could be admitted. The look to three factors in performing an at- illegali Court stated that once an (l)”the analysis: tenuation temporal prox- ty shown, has been we must decide wheth imity of confession,” the arrest and the er “the evidence has been come at by (2)”the presence intervening circum- exploitation illegality of that or instead (3) stances,” and, “particularly, pur- sufficiently distinguishable means to be pose flagrancy of the official miscon- purged primary of the taint.” Id. (quoting Brown, duct.” 603-04, 422 U.S. at Sun, Wong 487-88, 371 U.S. at 83 S.Ct. 2254; Alabama, see Taylor also 407).”[T]he purpose of this attenuated con 687, 690, U.S. 102 S.Ct. nection point test is to mark the of dimin (1982) L.Ed.2d 314 (quoting Brown fac- ishing returns of the principle deterrence tors); Dunaway, 442 U.S. at 99 S.Ct. exclusionary inherent in the rule.” United (same). Ienco, (7th States v. 182 F.3d Cir.1999). An analysis of the attenuation in factors this case leads to the conclusion that

When the evidence at issue is a confes- Crawford’s sion, confession should not have analysis the attenuation determines been admitted into evidence. The district whether the confession is the result of an factor, court found that exploitation the first illegality, “temporal or whether it proximity,” is the favored agree. result of the defendant’s “free will.” Crawford. York, Dunaway “temporal v. New proximity” U.S. between the 60 L.Ed.2d 824 As search and Crawford’s detention at the explained we residence, in hand, United States v. Perez- on the one and Crawford’s other, Brown, also confession, ling.” close. See on the was 20 min- 2254(finding illegal FBI office took about arrest taint of drive utes, about arrest, confessed after and Crawford attenuated when both de- “[t]he hour a half at office. execution, sign investigatory. upon expedi- The detectives this embarked factor, circum “intervening

The second hope tion evidence some- Interven stances,” Crawford. also favors turn thing might up.”). Because the law, circumstances, means in the case ing purpose search was conducted with We look at “interven intervening events. confess, pressuring Crawford to factor significance” that “render ing events of heavily excluding in judicial weighs deterrence and favor of inapplicable the justify excluding tegrity purposes [a confession. Perez-Esparza, 609 statement.”

tainted] Further, the misconduct official was 3; at see States F.2d 1289 & n. also United search, At the the “flagrant.” time of the 343(9th D., F.2d Cir. v. Ricardo probable in this required case law circuit 1990). include Examples of such events searches, justify investigatory cause to an custody, appearance release be from investigated being whether crimes an magistrate, fore a or consultation with past. were current See discussion su- See, v. attorney. e.g., United States Wel II.A.2.a. pra Supreme Part California (“The (9th Cir.1981) lins, 654 F.2d (and not) case law did not still does crucial in this case is that Wellins factor suspicionless parole authorize searches to attor permitted to consult with his Anyone investigate past charged crimes. ease, ney.”). In this were no inter there knowledge with a of this case law—as continuous, vening In a uninter events. Bowdich, agent, an FBI must be— Agent rupted Agent Bowdich and the sequence, have known the time should that a search; illegal other officers conducted the investigate a suspicionless pre- search to search; during took detained Crawford crime was not authorized under ei- paróle office; to the FBI and talked Crawford ther our case law or that of the California him in room the office until he a closed Anyone Court. knowl- Nothing else This happened. confessed. edge of the case law also should have clearly factor thus cuts in favor of Craw form known “Fourth Waiver” ford. not signed by Crawford did authorize factor, Finally, purpose the third “the investigate a suspicionless pre- search to flagrancy and of the official misconduct” crime. paróle Agent also favors Crawford. Bowdich clearly All factors fa- three attenuation candidly “purpose” admitted that of his conclude that therefore vor Crawford. suspicionless search detention was confession, a result his obtained as get pre-parole Crawford to confess to the of his residence illegal suspicionless search robbery. Agent testified bank Bowdich detention, accompanying illegal that he sus- conducted unconstitutional properly admitted into could have been picionless as a “tool” to obtain that evidence. explained in Perez- confession. As we

Esparza, police 609 F.2d at “[w]hen Analysis Majority’s IV. illegal an or deten- purposely effect arrest two majority opinion makes mis- hope interroga- tion custodial First, characterizes statements, repeatedly takes. tion yield incriminating will and his Agent Bowdich fel- application rationale the search deterrence See, “parole e.g., as a exclusionary especially compel- rule is low officers search.” However, Foxworth, (9th maj. and 1051. op. at 1050-51 31 F.3d Cir. 1994) suspicionless Agent search for (describing Bowdich’s practice” “custom and pre-parole evidence of a crime was not a police Portland to detain occupants of a under parole search California law. This search); Wellins, during residence majori- first mistake is not essential to the (defendant F.2d at 552 detained while his however, ty’s analysis, majority for the searched). case, house was In this be willing to assume that the search ac- cause search and detention were car companying detention violated the Fourth ried out simultaneously and with the same Amendment. goal, inseparable Crawford’s detention was

Second, majority from, to, search, relies on New York ancillary illegal Harris, 110 S.Ct. legality and the of the search and deten (1990), conclude, incorrectly, L.Ed.2d 13 analyzed tion must be together. that the modern cases which the Court Brown, analysis attenuation Dun- has performed analysis— attenuation away, Taylor applies equally to illegal Brown, Dunaway, Taylor ap- not—do illegal Brown, searches and seizures. See mistake, ply. Unlike the first this mistake 2254(“In Wong is crucial. Sun, pronounced the Court the principles majority discusses the search and applied to be where the issue is whether detention in if they Crawford’s home as statements and other evidence obtained See, neatly separated analysis. can be after an illegal arrest or search should be (“The maj. e.g., op. analysis at 1054 excluded.”). Brown, Dunaway, Tay- applies illegal detentions differs from lor have strikingly similar facts. In all searches.”); illegal applied id. at cases, three the defendants were detained (“Because 1057-58 pro the search failed to probable without cause. In Brown and evidence, any physical however, duce and Taylor, the formally defendants were ar- because Defendant made no incriminating rested; in Dunaway, the defendant was search, during statement the fail we to see formally arrested. After their illegal search, pre how as distinct from the detentions, all three defendants confessed. detention, illegal sumed caused Defen case, In each the Court conducted an at- office.”). dant’s statement in FBI tenuation analysis to if determine the con- analyses illegal

While searches and sei product fession was the illegal de- kept zures can sometimes separate, tention. illegal there is no doubt that an search and Harris, contrast, In the defendant illegal an detention both violate the Fourth was arrested probable with cause. The See, Miller, Amendment. e.g., Chandler v. police entered Harris’s house without an 305, 308-09, 520 U.S. 117 S.Ct. arrest warrant and arrested him in the (1997) search); L.Ed.2d 513 (illegal Duna entry house. Because the into the house way, U.S. at 99 S.Ct. had been accomplished without an arrest seizure). (illegal 2248. It is a stan warrant, the illegal arrest was Pay under dard police practice to restrict the motion York, ton v. New 100 S.Ct. suspects during a residential search. See, However, 63 L.Ed.2d 639 Summers, e.g., Michigan v. 452 U.S. 692, 705, the Court held that illegal since the act — 69 L.Ed.2d 340 (1981) (Fourth performed Amendment arrest —had been tempo allows rary probable detention of homeowner cause and police illegal while because the ar warrant, search the pursuant confession, house to a produced so rest had not long reasonable); as detention is Franklin required confession was not sup- to be Brown, Tay- illegally The fact that Harris Dunaway, and sion. was pressed under Harris, in his made lor. See arrested home it no more likely that he confess if had would than he legally arrested with a warrant. The been case in this that at It is uncontested in Harris im- specifically noted the Agent had time of the search Bowdich portance of the causal connection between cause to arrest Crawford for probable him. robbery. illegal But he never arrested conduct and the confessions in bank is, Brown, had cause what probable That he to do Taylor. Dunaway, and The Court probable do. he had he did not But no wrote: suspicion justify cause or reasonable emphasized ... have We attenua- That accompanying detention. where, analysis only appropriate tion is, cause to probable he had no do what matter, aas threshold courts determine majority opinion nonetheless did do. that “the in challenged evidence is some Agent had concludes that because Bowdich product illegal sense the government Crawford, cause to arrest probable * * activity.” Harris’ *. statement illegal search and detention suspicionless taken at the station not the police was in illegal arrest comparable are custody. product being unlawful disagree with conclusion. Harris. of having Neither was it the fruit been Harris, First, in police probable had rather arrested the home than some- justify illegal act—the arrest cause to their * * * ... else. that the place We hold warrant, They lacked arrest of Harris. house station statement this case was illegal made arrest under

which Harris’s legal admissible Harris because probable had cause to Payton; but statement, custody, ... and because the case, by con- perform the arrest. product being the of an arrest and while trast, Agent probable had no Bowdich the legal custody, in was not fruit of the (or suspicion) even reasonable cause that the was in the fact arrest made illegal and ac- justify his acts—the search someplace rather house than else.' companying detention. The clearly in the Harris stated (citations 19-20, Id. at 110 S.Ct. 1640 and probable illegal cause for the existence omitted). case, In this as quotation marks from arrest differentiated case Brown, Taylor, is Dunaway, and there Broim, Taylor, Dunaway, where illegal causal link ac- a clear between the the probable there had been no cause for tions and Crawford’s confession. actions It illegal in those cases. wrote: cases, however, majority In each of those evidence obtained con- opinion, The following a criminal ar- from defendant link. In cludes that there was no causal police rest was because the suppressed part, majority the reaches this conclusion probable The cases lacked cause. three divide-and-conquer strategy. It by a proposition for stand the familiar illegal as if treats the search detention illegal the indirect fruits of search events, a they separate were two such that they suppressed arrest should be when must be be- relationship causal established sufficiently relationship a close bear confession, illegal tween the search the underlying illegality. the and, the separately, illegal between deten- 18-19,110 at S.Ct. illegal But and the confession. these tion inextricably actions were intertwined. Second, Harris, there no causal was (the these therefore must be whether question act illegal link between the arrest warrant) together, illegal confes- actions considered without Harris’s world, evidence, occurred in the real causally were search and later interroga- connected to Crawford’s confession. ted Harris the station house. Simi- larly, if police the had made a warrant- majority In part, the reaches its conclu- entry home, less into Harris’ not found because-we-say-so strategy. sion It there, him but him arrested on the simply denies there was a causal link. returned, street when he a later state- Agent But forthright testimony Bowdich’s ment made him after proper warn- contradicts that Agent conclusion. Bow- ings would no doubt be admissible. dich—who position was the best clearly believed that there was 495 U.S. at 1640(emphasis know— testified, causal link. As he illegal the added to indicate quoted by sentence the search and detention were “a get tool” to majority). Here, the Court is comparing Crawford to Agent confess. Given Bow- illegal actual arrest of Harris inside his dich’s clear statement of purpose, as well home to two hypothetical situations. With as the factual narrative of how he accom- these hypotheticals, the Court is making plished that purpose, impossible is to the point that there was no causal link conclude that there was no causal link. between illegal acts and the subse- degree of the causal may connection quent Harris, confession. In the illegal in question; but the fact of that connec- arrest produce did not the confession. See tion cannot be denied. 1640(“Harris’ 19,110 id. at statement police taken at the station was not the premised

Hams being there no product being in unlawful custody.”). causal link at all. Once there is a some In the hypotheticals, two connection, illegal kind of a causal Hams no illegal entry longer governs. produce In did not the con- quoted by words Harris, words, fession. the Court in other the Court analy- attenuation sis applies emphasizing when challenged necessity of a evidence is causal con- “in nection some sense the between product illegal act illegal and the government Harris, confession, activity.” and thereby differentiating (citation omitted) (em- Brown, 110 S.Ct. 1640 Harris from Dunaway, Tay- added). lor, phasis Once there which causal there was such a connection. sense,” Thus, connection “in some degree far from supporting majority’s and consequence of that analysis, connection is eval- quotes sentence it from Har- uated Brown, under the attenuation test of only ris serves to underline the difference Dunaway, Taylor. and between this case and Harris. sum,

Third, Agent finally, gained and Bowdich majority psycho- opinion logical advantage relies on a sentence Harris over Crawford through to conclude that an analysis illegal early attenuation morning is not search required of his Maj. this case. op. at residence and quote illegal 1056. I detention incident sentence context: to that search. This advantage would not have been available Agent

Because the had probable officers had Bowdich cause simply waited until crime, arrest Harris for a Crawford walked out Harris was onto unlawfully in the sidewalk custody before arresting when he him. was house, Agent removed to Because the station Bowdich had no given probable Mi- (or randa cause warnings, and even suspicion) allowed to talk. reasonable For justify acts, Fourth illegal Amendment purposes, and because those legal illegal issue is the same purpose as it would acts had the and effect of had police getting confess, arrested Harris on his Crawford to this case does doorstep, illegally entered his home to not Harris, come under the rationale of Brown, the rationale of rather under but those Taylor. Under

Dunaway, Agent Bowdich

cases, illegal actions of sufficiently were not his fellow officers confession to allow Crawford’s

attenuated into evidence.

to be admitted

V. Conclusion end, fairly simple case.

In the this is con- his fellow Bowdich and officers

Agent suspicionless parolee search of

ducted residence, accompanying

Crawford’s

detention, investigate pre-parole and detention violated This search

crime. illegal Amendment.

the Fourth circum- and detention created invit- Agent under Bowdich

stances which office, talk at the FBI

ed Crawford “more he would be comfortable.”

where in a inter- hour and a half closed

After an office, FBI Crawford room

view robbery. This ille- to the bank

confessed detention, subsequent

gal search conduct, deliberately,

course of were Bow-

successfully, Agent undertaken obtain Crawford’s confes-

dich order to inad- That confession therefore

sion.

missible. respectfully dissent. America,

UNITED STATES

Plaintiff-Appellee,

Ricky ROSS, Defendant-Appellant. D. 02-50226.

No. of Appeals, States Court

United Circuit.

Ninth Aug.

Argued Submitted 21, 2004.

Filed June

Case Details

Case Name: United States of America, State of California, Intervenor v. Raphyal Crawford, AKA Aarmyl Crawford

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 21, 2004

Citation: 372 F.3d 1048

Docket Number: 01-50633

Court Abbreviation: 9th Cir.