United States v. Raphyal Crawford

givе not rise profit does earn America, of STATES UNITED Tectonics, Fla. v. Inc. duty); actionable of Plaintiff-Appellee, (11th Co., Const. Castle Busi Cir.1985) purpose of Small (declared v. of private cause not create Act ness does CRAWFORD, Defendant- Raphyal on the Second, Stoppelmoor relies action). Appellant. fair faith and good duty contractual however, not duty, does That dealing. 01-50633. No. that do terms substantive to new give rise Appeals, States United contract, as exist not otherwise Ninth Circuit. States See United contends. Stoppelmoor Co-op., F.3d Power Basin Elec. Aug. 2002. Argued and Submitted Cir.2001) faith does (duty good (8th March 2003. Filed of reasonable obligations import.new not 21, 2003. March Amended express terms contained not behavior denied, contract), cert. (2002). Stop L.Ed.2d of the breach pleaded not has

pelmoor the SBA between contract

guaranty Savings Bank.

the Farmers argues Stoppelmoor

Finally, under the Federal a claim pleaded

he has claim Stoppelmoor’s tort Act.

Tort Claims duty to alleged breach

is based on we concerns that business

assist small impose does not determined already duty to advise an actionable

on the SBA busi the value about

Stoppelmoor He has stated bought.

ness he claim.

viable tort court’s order the district

We affirm

dismissal.7 brief, Mortgage no but has filed record. LLP outstanding denyWe the SBA's motion given to reverse Stoppelmoor no reason reply has brief strike matters raised new Mortgage. as LLP dismissal pleadings grant from its motion strike CA, McCabe, I. BACKGROUND Diego, San J.

Michael defendant-appellant. Agent FBI Special Sometime O’Toole, Attor- United States K. Patrick assigned investigate David Bowdich was filed), Lam, (when Carol C. ney brief that occurred a series of bank robberies (when Attorney opinion was States United 1998, including the Diego in 1997 and San Curnow, filed), United P. Assistant David a Bank of February robbery of Attorney’s States Attorney, United States Approximately Street. America on Ulrich CA, plaintiffs- Office, for the Diego, San later, informa- years Bowdich received two appellees. per- that a tion from an unnamed source par- “Ralphie Rabbit” was

son known as robbery. ticipant in the Ulrich Street “Ralphie led to believe that Bowdich was Raphyal an alias used Rabbit” was Crawford. REINHARDT, TROTT, and Before: background inves- Bowdich conducted

TASHIMA, Judges. Circuit on Crawford and learned tigation parole. Bowdich was on state Crawford REINHARDT, Judge: Circuit signed learned that Crawford had also mandatory condition of to a Pursuant referred to as a “Fourth commonly what is agents parole, FBI Raphyal Crawford’s parole. as a condition of his Waiver”1 “pa- home to conduct entered Crawford’s “Fourth docu- Specifically, the Waiver” agents 2000. The July role search” on following parole condi- ment contained the fact that despite conducted the search tions: absolutely no evi- they expected find your any proper- residence and You and premises, because of a crime on the dence your under control be searched ty Craw- they thought help pressure it would agent a warrant without role an un- talking ford into about his any Department of Corrections or law years two be- robbery solved committed enforcement officer. later, hours Crawford fore. Less than two by a agree You to search or seizure robbery. participating confessed peace other officer at parole officer or that the search of Crawford’s We hold day night, with or any time of the suspicion, al- any home without warrant, a search and with or without parole condition au- though pursuant to without cause. searches, violated the thorizing such prac- testified that it is a common Because Crawford’s Bowdich Fourth Amendment. enforcement officers to use suspicionless from the tice for law confession resulted residence, tool to “Fourth as a “kind of his we reverse Waivers” suspect about crimes. In order denying his motion talk” to a district court’s decision robbery, him about remand to allow to talk to Crawford suppress parole plea. FED. R. CRIM. Bowdich contacted Crawford’s guilty withdraw his Berner, 11(a)(2). per- his agent, Carl and obtained P. mandatory pa- referring parole condition of condition as a be treated-as 1. In II.A.3, Waiver,” purposes Section howev- adopt government’s role. For "Fourth we er, purported as a preferred purposes all we treat the condition nomenclature. For government's infra, in order to address the but we treat the "Fourth waiver Section II.A.3 arguments respect. precisely urges that it in that Waiver” as the dissent door, mission2 to conduct a search of the sister Abdullah answered the Bow- living residence where Crawford dich stated that the officers were there his sister.3 to conduct a search and Abdullah repeatedly

Bowdich testified that when told them that Crawford was the bed- he search on July conducted asleep room eighteen-month-old with his expect any he did not to find evi- Bowdich, Gutierrez, daughter. and at linking dence Crawford to the Ulrich least one other officer went into the bed- robbery Street or to other criminal room and found Crawford and young conduct, although “hoped” he he might child on the bed. Both Crawford and something find that would show that Gutierrez stated that the officers had currently Crawford was in crimi- engaging weapons their they drawn when went nal activity. robbery The had occurred into the bedroom. earlier; years more than two physical little evidence from the incident remained unac- The officers told they Crawford that for; in living counted Crawford was a dif- search, cоnducting were and es- ferent residence at the time of the rob- room, him living corted where he interim, bery; and the he had been couch, remained seated on a under “inves- imprisoned in another state for an unrelat- detention,” tigatory through the course of circumstances, ed offense. Under these the search. While the search being was acknowledged Bowdich that he did ex- not conducted, permitted move, he was not pect any physical the search to reveal evi- get even to a glass of water. Rather, robbery. dence of the bank he intended to use the search itself solely as lasted as a “tool to long see” Crawford and to induce him as 50 expected, minutes.4 As no evi- to talk. any dence of criminal activity was discov- However, ered. planned, Bowdich used early morning July the Bow- the time to initiate a conversation with dich met four other law enforcement of- began Crawford. The discussion ficials, with including Detective Michael Gu- tierrez, designed some “chit chat” that was put and knocked on the “to door of Crawford’s residence. When Mr. dispel Crawford at ease” and the “me- 2. Both Bowdich and Bemer ultimately testified that Amendment issues. The court stat- permission legally required Berner’s was not purposes ed that it would assume for of the Bowdich, agent, for an FBI to conduct the though government motion that even had search; rather, Bowdich secured Berner’s participant information that Crawford was a agreement courtesy. as a matter of robbery, probable in the there was cause not to arrest See note 28. him. There no infra hearing 3. At the on Crawford’s motion to regarding evidence in the record the nature suppress, government exclusively relied or source of the information that led Bowdich on the "Fourth as the Waiver” basis for the suspect important, Crawford. More Bow- attempted search. Crawford’s counsel to ask testimony dich’s makes it clear that he had no reliability Bowdich about the source and suspect that reason to he would find evidence connecting the information Crawford to the home, relating to a crime at Crawford’s and robbery, prosecutor objected but and the thus had no basis other than the "Fourth objection. court sustained the Crawford's Waiver” for the search. See id. issue, pressed stating counsel that he thought "quantum of information which thought 4.Crawford and his sister that the investigators was available” to the rele- was hour, police prosecutor search took about an records replied vant. The that the infor- mation available indicatе that the officers were in the residence to them was "not relevant determining” approximately the Fourth and Fifth from 8:20 a.m. until 9:10 a.m. parked fact own Then that Crawford’s car was atmosphere. Bowdich

versus-you” that, house, he although transported was front he told Crawford arrest, really him to like under he would the FBI unmarked car. office Bowdich’s robbery “an case.” about old bank talk offices, drove to the FBI which Bowdich that he did not initially stated Crawford were about 20 minutes from the located robbery, but anything about know residence. Detective sat Gutierrez he suspected that knew more Bowdich in the Crawford back seat car. on, and letting thought he was than continued the “chit Bowdich Gutierrez placed if he was talk Crawford would drive, as during chat” with Crawford Bowdich testi- “right environment.” means him at putting ease. to eliminate the dis- that he wanted fied tractions, bring to an area where Crawford offices, arriving at the FBI Bow- After scene, charge was in Bowdich dich took into an and Gutierrez Crawford that he end possibility would eliminate room, “for [ and closed the door ] interview de- hearing in some later where the “up then privacy.” They told Crawford that alleging got that I’ve five officers fense is custody he leave was not and could around, that could be a coer- milling to read Craw- began time. Bowdich atmosphere.” In order to make it “as cive ford his Miranda he rights, because want- possible,” Bowdich asked clean as Craw- Crawford, toed “make the case cleaner.” he “more comforta- ford whether would be however, interrupted protest in before talking to the officers the FBI ble” finished the line of the Bowdich second suggested to the agreed office. Crawford warnings. agents again Both told Craw- and escorted—with an offi- alternative was not in custody ford that he was and could vehicle, Bowdich’s cer on each side—to the Mi- completed leave. never Bowdich parked Crawford was which was outside.5 randa warnings. However, point. any handcuffed The interrogation approxi- continued for that testified she as- Crawford’s sister mately an an hour to hour and a half.6 No sumed he was under arrest based on the weapons Eventually, drawn. Craw- were search, way he length of the the was de- participant ford that he in room, the confessed was tained in the and fact that living 10, 1998, February robbery and admit- leaving walking he was officers on Moreover, despite having gun during sides of ted to used a the crime. both him. Crawford, According that he did not at first Crawford testified he did not feel that he agree was he to leave. told the officers that he free tо leave because whenever indi- He leave, go anywhere he wanted did not want to because he had cated that officers telling they "just him appointment support. stalled that had one to his child related however, officers, that, question.” The more stat- him The officers then told because he during ed did leave that Crawford not ask to parole, was on he could be detained in interrogation. event. that because he did Crawford stated choice, not feel that he he went with the had Crawford also stated that Bowdich called officers. prosecutor during meeting and then prosecutor agreed Gutierrez, told that the Crawford had According to Crawford Detective confessed, [any] he not “do if he would given continuing either choice of Both Bowdich Gutierrez denied time.” going interview in his home or to the FBI any promises, express they made or im- complete office to the interview. He said that before, plied, during, after to Crawford go he would to the FBI office. rather admit, however, interrogation. Gutierrez did is, course, dispute pre- 6. There some be over he told Crawford that it would better cisely during "g[o]t interrogation. what was for it told the said him if he out” and truth.

705 Murillo, was in- novo. See United States v. January Crawford 255 On (9th 1169, Cir.2001), robbery violation F.3d 1174 cert. de dicted for armed bank 2113(a) (d) nied, 948, 1342, §§ and for 122 of 18 U.S.C. S.Ct. (2002); carrying a firearm knowingly using and L.Ed.2d 245 United v. Per States (9th robbery 720, Cir.2001); of the violation cy, the commission 250 F.3d cert. 924(c)(1) (2).7 denied, §§ of 18 U.S.C. Craw- S.Ct. suppress the statements

ford moved to L.Ed.2d 405. law enforcement offi-

that he made to the July evidentiary 27. After three cers II. DISCUSSION hearings, the district court denied Craw- A. The Parole Search ford’s motion on both Fourth and Fifth The Fourth provides Amendment grounds. specifically Amendment It held right people “[t]he be secure that the initial detention of Crawford houses, effects, persons, papers, their pursuant residence against unreasonable searches and sei v. was unlawful under United States zures, shall not be violated.” U.S. (9th Cir.2000);8 Knights, 219 F.3d 1138 CONST, amend. IV. We review clear York, however, Dunaway under v. New underlying error the district court’s factual 60 L.Ed.2d 824 U.S. findings in a Fourth Amendment chal (1979), Illinois, and Brown v. lenge, and we review de novo the lawful (1975), the ness of a search or seizure. See United attenuating factors court found sufficient (9th Dorais, States v. purge between detention and confession to Hudson, Cir.2001); United States taint, rendering subsequent state- 1409, 1414(9th Cir.1996). F.3d The district court also ment admissible.

rejected Fifth Amendment A infringe search does not the Fourth in custody during claim that he was held “reasonable,” Amendment if it is which we interrogation the and therefore entitled to objective by “measure[ ] terms examin- Finally, full the court warnings. Miranda ing totality the of the circumstancеs.” determined that confession was Crawford’s Robinette, 33, 39, 117 Ohio v. 519 U.S. involuntary. (1996). 417, S.Ct. 136 L.Ed.2d 347 See (“We

Thereafter, long entered a condi- also id. held that Crawford plea of the Fourth Amendment is guilty charged tional to the counts ‘touchstone ”) pursuant (quoting Rule of Pro- reasonableness.’ Florida v. to Federal Criminal 11(a)(2). Jimeno, 248, 250, 1801, appeal 111 cedure He reserved for 500 U.S. S.Ct. (1991)). suppress.9 Following 114 L.Ed.2d 297 the denial of his motion to We suppress Supreme de Court’s recent decision in United review denials motions ruling 9.In addition to the district court’s on 7. Crawford was one of four individuals indict- search, pertaining ed in a 26 count indictment to a illegal the taint from the Crawford these, only series of bank robberies. Of two appeals finding also the district court's counts, robbery, relating to the Ulrich Street voluntary his statements were and not taken alleged Crawford’s involvement. Finally, appeals of Miranda. he a violation sentencing upward enhancement as- two-level judge judgment 8. The district entered before security physical sessed for restraint of a Knights Supreme our deci- Court reversed guard during robbery. We reach neither Knights, v. 534 U.S. sion. See United States sentencing nor the issue. Miranda 112, 587, (2001). 122 S.Ct. 151 L.Ed.2d 497 Knights further in Sec- issue is discussed II.A., tion infra. 706 Sarkisian, 112, 122 S.Ct. United v. 966, Knights, States 534 197

States v. U.S. F.3d (9th Cir.1999) (2001), 587, (affirming 497 in order to 986 that a defen- L.Ed.2d 151 “standing” dant has to contest a Fourth objectively search is determine if a Amendment violation if he reasonable, required to manifests a are balance we subjective expectation privacy in the parolee a privacy against interests of expectation area searched and the is one interest in the search.10 government’s 118, society prepared recognize 122 Knights, S.Ct. 587. reasonable).11 words,

objectively In other Privacy 1. Interest His “a individual must have sufficient con- Home Own place nection to the invaded assert [Fjourth [Ajmendment.” protection of the “capacity An individual’s to claim Davis, United v. 752, States 932 F.2d 757 protection of the Fourth Amendment Carter, (9th Cir.1991); see also 525 U.S. at depends upon person ... whether the who 99, J., (Kennedy, concurring) 119 S.Ct. 469 protection of the Amendment claims the (“Fourth rights personal, Amendment are expectation of legitimate privacy has a person objects when to the search of Carter, place.” Minnesota v. the invaded rule, place exclusionary and invokes the 469, 119 S.Ct. L.Ed.2d U.S. requisite he or she must have the connec- Illinois, Rakas v. (quoting place.”). tion to that 128, 143, 99 Singleton, (1978)); United States If an individual cannot demonstrate (9th Cir.1993); see also place F.2d connection to the invaded sufficient "examining totality court found Crawford's The district of the circum- 10. unreasonable, stances, using probation be but did so search condition [a] being rejected by Knights, a salient circumstance.” doctrinal distinction Knights up U.S. at while this case was 587. appeal. past, approved only we had In the inquiry threshold This is often discussed in “necessary probation perfor searches "standing” terms of an individual’s to invoke duties,” by developing probation mance of protections. Fourth Amendment See United "probation distinction between searches” and Nerber, (9th States v. 222 F.3d 599 n. 1 enforcement/investigatory "law searches.” Cir.2000). "Standing” is also the label used Ooley, See United States v. parties both in this case the district (9th Cir.1997), by Knights, overruled court below. In order to avoid confusion (2001); L.Ed.2d 497 wholly defining with the different doctrine cases cited in id. The distinction turned on "standing,” Article III see United v. States personnel primarily the motivations of the Gamez-Orduno, (9th 458 n. 7 responsible for the search. Searches inde Cir.2000), Supreme strongly the Court has by probation pendently officers instituted against using particular cautioned label searches, probation were valid while deemed in the Fourth Amendment context. See Car request police at searches conducted the of ter, 87-88, ("The 525 U.S. at S.Ct. trying require evade Fourth Amendment to analyzed respon Minnesota courts whether ("subterfuge” using probation ments searches legitimate expectation privacy dents had a of horses”) "stalking officers as were deemed doctrine, 'standing' under the rubric of an See, investigation e.g., invalid searches. id. analysis expressly rejected that this Court Knights, Supreme years ago.... In the determining Court refused to [I]n whether a de subjective consider the “actual motivations” fendant is able to show the violation of his ... officers, disapproved rights, of individual the Fourth Amendment the ‘definition of probation rights properly placed distinction between search for those is more within purposes investigation pur- purview and a search for of substantive Fourth Amend 116-18, 121, poses. Knights, ”) 534 U.S. at standing.' See ment law than within that of Instead, Rakas, Knights required (quoting 122 S.Ct. 587. an 439 U.S. at objective 421). analysis, reasonableness conducted Amendment,12 we 150 L.Ed.2d 94 invoke Fourth to (2001); Olson, See, Carter, Minnesota v. e.g., further. proceed no need cf. 91, 110 S.Ct. Otherwise, at 119 S.Ct. 469. (holding overnight guest that even an has indi- the extent of the must determine

we expectation privacy a reasonable of expectation privacy of vidual’s premises). The Court has unam inter- government’s whether the to decide biguously pri insisted that an individual’s was reason- privacy rights with his ference protect vacy interest his home must be able. ed: case, concluded In this the district court protects The Fourth Amendment the in- objectively reason- had an Crawford privacy variety dividual’s in a of set- subjective expectation privacy of able tings. privacy none is the zone of agree. his home.13We clearly more defined than when bounded to personal connection his Crawford’s unambiguous physical dimensions him than sufficient to afford home is more of an individual’s home—a zone that protection against Amendment Fourth specific finds its roots clear and con- Indeed, rea- uninvited search. Crawford’s peo- right stitutional terms: ‘The of the must be expectation privacy sonable ... ... ple to be secure their houses in his home. The home is strongest own language shall not be violated.’ That protected proposition ... area of “prototypical unequivocally establishes the States, very Fourth ‘[a]t [of core privacy.” Kyllo United home, time, required at or without a extent connection his 12. The of the warrant, may protection de- govern- invoke Fourth Amendment with or without cause. The type privacy pend interest involved Crawford could not have ment claims that alleged invasion. The and the nature any subjective expectation privacy af- had privacy required protest a expectation of signing the condition. As discussed in ter search, example, may be different physical II.A.3, infra, Section the "Fourth Waiver” required protest video surveil- from that far, signa- Crawford’s does not extend so Nerber, 222 F.3d at 601-03. lance. See expec- ture can be deemed to reduce his most, to, privacy the condition's tation of 13. We review the district court’s factual find- Moreover, although limits. Crawford lawful Nerber, ings for clear error. See F.3d potentially sub- have known that he was implicit 603. The district court’s factual search, "rejected ject police this court has expec- finding subjective that Crawford had subjective argument person lacks a that a person privacy tation of in his and his home is simply expectation privacy because he ... clearly erroneous. expected police to intrude on could have government makes much of two facts Sandoval, that, privacy.” United States v. showing despite purportedly the district Cir.2000). Indeed, (9th consis- finding, F.3d Crawford had no actual ex- court’s pectation privacy. testimony The first is Crawford’s tent with the "very assessment of his reaction to Bowdich’s asser- parolees sur- officer that are sometimes during that the officials tion signing prised” by searches even after simply him because he was on could detain Waivers,” that al- "Fourth Crawford stated mean, parole. stated at trial that "I Crawford parole though knew what a search en- he that, know, granted just, you just I took for tailed, the officials he was "shocked” when know, parole, you I’m on that I don’t have no The natural shock that invaded his home. all, really say nothing.” rights at so I didn’t upon being his roused from Crawford felt resigned submission to the officials’ as- This enforcement officials with own bed law authority Craw- serted does not invalidate with the weapons drawn is not consistent expectation privacy in home. ford's of his own government’s that Crawford actu- contention signature on The second fact is Crawford's privacy all. ally expectation of had no Waiver,” compulsory the "Fourth a purports permit a search of condition that 708 expect privacy surely reasonably a man he must right of stands

Amendment] own home. there his own home and into to retreat governmental from unreasonable be free dissent, great weight on re- placing intrusion.’ Supreme cent decisions of the California Court, a that status as claims Crawford’s York, 573, 589-90, 445 New U.S. Payton v. deprives him of parolee (1980) 1371, L.Ed.2d 639 63 100 S.Ct. even in expectation privacy anywhere, of States, v. United

(quoting Silverman As the district court ‍‌​‌‌‌‌​​​‌​‌​‌​​‌‌​‌‌‌‌‌​‌‌‌‌‌‌‌​​​‌​​​​​​​​​‌‌​‍his own bedroom. 679, 505, 511, 5 L.Ed.2d 734 S.Ct. noted, however, federal law—not properly 44, 121 (1961)). Kyllo, also 533 U.S. See extent of the California,law governs the (“To J., (Stevens, be — dissenting) S.Ct. Amendment protection that the Fourth sure, has a reasonable ex the homeowner 372; Ooley, 116 F.3d at provides.14 See concerning what takes privacy pectation of Davis, Accordingly, we 932 F.2d at 758. ”); the home.... United place within determine the must look to federal law to 13, Johnson, 537, n. 457 U.S. v. States expectation privacy of rea- Crawford (1982) (“At 2579, 73 L.Ed.2d 202 102 S.Ct. possesses; once this threshold is sonably States, v. United 116 U.S. Boyd least since established, away may a state not define 630, 524, 616, 29 L.Ed. 746[] protection. the constitutional (1886), acknowledged ha[s] Court special Amendment accords the Fourth law, Under federal home.”); United States v. protection expectation privacy of his own home is Martinez-Fuerte, 543, 562, 428 U.S. wholly not defeated virtue of his (1976) (“[T]he 3074, 49 L.Ed.2d 1116 S.Ct. Supreme recog As the Court has status. ordinarily sanctity private dwellings [is] home, nized, probationer’s anyone “A like most Fourth stringent afforded the else’s, protected by is the Fourth Amend protection.”); L.A. Police Amendment be ‘rea requirement ment’s searches ” Gates, 879, League v. Wisconsin, Protective v. sonable.’ Griffin (9th Cir.1990) (“Nowhere protec 3164, is the 97 L.Ed.2d 709 (1987).15 tive force of the fourth amendment more To find otherwise would be to sanctity it when powerful than equate parolee’s prisoner’s home with a sanctity home is involved.... The cоmparison Supreme cell—a home, person’s perhaps rejected. our last real re unequivocally has Com Palmer, technological age, treat lies at 525- pare Hudson very rights which animate the core

amendment.”). If “does (finding an individual has a rea that the Fourth Amendment apply prison not within the confines of a expectation privacy anywhere, sonable recognize United States and its the de- 14. We that the California territories —with as well. mands of federal Constitution apparently Court has determined that Califor- recognize legitimate not nia law does we "Nor do see constitutional difference expectation privacy parolee subject of a purposes probation between "properly imposed parole search condi- the fourth amendment.” United States v. Har- tion,” Reyes, People v. 19 Cal.4th (9th Cir.1991). per, 928 F.2d 1n. (1998), Cal.Rptr.2d 968 P.2d 445 al- Although recognize we be- that distinctions though provide does that a it search of probationers parolees may tween be rele- parolee’s arbitrary capri- not home be contexts, vant in other because there is no course, cious. Id. Of a search of a California here, relevant distinction we treat discussions parolee comport must with Califor- regarding probationers being applicable to as law, jurisdictions nia in all the but—as within parolees, and vice versa. Brewer, v. dealing parol- in with Morrissey cell”); fettered discretion with 33 L.Ed.2d ees, and refused to attach so broad properly the State sub- (“Though significance “custody” theory. many restrictions jects parolee] [a day It in too late to assert thus citizens, his condition is to other applicable parole parolees by that searches of their that of confinement very different from present officers no Fourth Amendment en over a As we stated banc prison.”). Rather, issues. such searches be generation ago: illegal held and the evidence obtained Moreover, theory upon which courts suppressed they pass therefrom unless usually justify stripping relied to have protec- muster under the Fourth Amendment parolees of Fourth Amendment widely criticized. tion has been Com- of reasonableness. test repeatedly criticized the mentators have Fitzharris, v. Latta F.2d 248-49 parolees status of is le- notion that (9th Cir.1975) (en banc) (citations omit- prisoners in comparable to that of gally Ramirez, ted).16 Sepulveda See also incon- custody being logically actual as (9th Cir.1992) (“[T]he F.2d con- reality.... ignoring [T]he sistent and rights parolees are even more stitutional rejected specifically has Supreme Court inmates.”).17 un- than those of theory parole that officers have extensive protections. language on Fourth Amendment The dis- points to isolated 16. The dissent regarding appears not to Latta a “hunch” that recognize only that sent’s failure to this shows support majority had of a of the en colleague our learned has been bewitched specifically and was labeled dicta banc court the California Penal Code and the California concurring opinion by Judge authored in a Supreme expense suprem- Court at the of the J., Latta, (Choy, Choy. F.2d at 253 See misguid- acy of the federal Constitution. concurring opinion concurring). That cor- legal urge to treat California's assertion of ed proper rectly standard for a noted that custody dispositive, and on that basis to as probation search falls somewhat short prison, through- equate parole reappears with spe- probable requires cause but nevertheless See, (citing e.g., post at 724 out the dissent. give belief cific facts that rise to reasonable custody provisions CODE of CAL. PEN. produce that a will the evidence law, 3056); ("[Ujnder § at 724 California Moreover, sought. the "hunch” sentence is parolee custody Depart- is in fact in the entirely proposition, reject- based on the first ...."); (suggesting ment of Corrections concurrence, by Judge authored ed in another proper because that the search condition was J., (Wright, concurring), Wright, and see id. custody”); at 728 Crawford was "still subsequently rejected by Supreme Court (finding “parolees a class are differ- Knights, parole supra see note they constructive ent" because are "still in unique knowledge parol- have a officers ("Although parole custody”); at 729 restric- gov- requires their be ee that searches strictly speaking are not tions and conditions than those con- erned a different standard by police prison regulations, they akin to that cate- ducted officers. are (distinguishing judges gory.”); at 735 Edmond on the en banc None of the thirteen however, court, expressed any disagreement Ferguson, Supreme Court re- in which the excerpt searches, the conclusions stated in the approve suspicionless fused text, supra, except for the dis- quoted in the custody part parolees are because "in imposed an even senters —who would have sentences”). serving prison the face of out (i.e., re- standard on searches stricter unequivocal instruction from cause). probable quiring See warrant sitting оur own court en banc— Court—and J., Latta, (Hufstedler, dis- 521 F.2d at 254-59 imprisonment are to be senting). context, dis- sharply distinguished in this clings incorrectly to a model of sent legal that it maintains 17. A state's assertion long ago disavowed. impact that the federal courts custody parolees thus has limited of its not ex- parole “significantly status be diminished” —but that Crawford’s It is true 118-19, ... “expectation privacy at tinguished. Knights, the 534 U.S. reduces prepared recognize society is find in this Similarly, 587. we S.Ct. States, 529 Bond v. United reasonable.” had a diminished but case that Crawford 1462, 338, 146 L.Ed.2d 120 S.Ct. U.S. expectation of objectively reasonable still (2000) (citations quotation internal privacy in his home. omitted). However, a reduced ex- marks substantially differ- privacy is pectation of Privacy Balancing 2. expectation of extinguished an ent from Intrusion Against the Government’s subject parolees are privacy. Although privacy on their specific constraints In determine if the Knights, to applied if be constitutional “would not reasonable, the probation search was at large,” Griffin, at 483 U.S. public the weighed probationer’s the diminish Court privacy their interests against govern the privacy ed interest Indeed, entirely. the are not eliminated punish preventing ment’s interest parole require a reasonable purposes of by probationers crimes committed ing an privacy. represents Parole amount of Id. at lapsing into recidivism. custody and free- interim state between emphasized The Court S.Ct. 587. dom, reintegration of “critical to successful to be determined reasonableness was society positive and to the offender into totality circum examining the of the citizenship.” CAL. .PENAL CODE stances, probation search condi “with § to ex- 3000. It would be unreasonable a being tion salient circumstance.”18 Id. pect parolee negotiate a the transition 118, 122 S.Ct. 587. without into the life of a normal citizen privacy that normal course, some measure of the Normally, of search of a granted. citizens take for only home for Fourth if it purposes Amendment is conducted recent dis- Supreme The Court’s most pursuant grounded proba to a warrant confirms that a parole cussion of searches See, e.g., Payton, ble cause. parolee objectively reasonable ex- has 1371; Illinois v. McAr In pectation privacy in his home. Unit- cf. thur, S.Ct. 112, 122 Knights, ed States v. (noting L.Ed.2d 838 same for (2001), L.Ed.2d 497 the Su- seizures). of a Under circumstances preme confronted a search of the Court parole pursuant to a “Fourth Waiv probationer subject proba- home of a to a however, condition, Knights er” Court examining tion search condition. circumstances, a totality found that search could be reasonable Court probationer’s privacy ordinary found interest to adherence to the without strict government that a has refused to allow this one factor to over- The contends 10, supra. ride all others. See also note search becomes reasonable when conducted pursuant compulsory "Fourth to a Waiver” reject argument We therefore condition, notifies the because the condition blanket "Fourth Waiver” condition parolee suspicionless possibility parolee’s expectation privacy eliminates searches, parolee’s any parole and therefore nullifies as to render search reasonable. so below, II.A.3, privacy legitimate expectation of otherwise We address see section infra reject compulsory pa- his own home.. We this contention. different contention that the parol- certainly represents parolee’s consent condition limits role condition expectation subjected privacy, ee’s but as one to be to otherwise unreasonable "salient searches. circumstance.” The (“When an officer has 122 S.Ct. 587 See requirements.19 cause probable 119-21, 122 587. suspicion probationer at S.Ct. that a Knights, 534 U.S. Instead, amount of individual- lesser some subject engaged to a search condition is “the bal- because suspicion ized suffices activity, enough criminal there is likelihood private interests and governmental ance of that an occurring that criminal conduct is Id. reasonable.” makes such standard probationer’s significantly intrusion on the noted 587. The Court at S.Ct. privacy is reason- diminished interests suspi- degree of individualized that “[t]he able.”) added); (emphasis Griffin, 483 U.S. of a search is determina- required cion (“Supervision [of at 107 S.Ct. 3164 sufficiently high when there is a tion of parolees] ‘special is a need’ of the State is oc- that criminal conduct probability upon permitting degree impingement indi- intrusion on the curring to make the if privacy that would not be constitutional Id interest reasonable.” privacy vidual’s applied public large. per- to the at That Cortez, v. 449 U.S. (citing United States unlimited, however degree missible is not 411, 418, 66 L.Ed.2d ....”) added). (emphasis By mandating added). (1981)) After acknowl- (emphasis government’s that we balance the interests parties in the case before edging that both privacy proba- interests of a against the presence the of reasonable it had conceded parolee, by declaring and tioner found that reasonable suspicion, the Cоurt privacy individual’s interests to be dimin- sufficiently high prob- suspicion provided a supra sec- extinguished, ished but not see conduct to render ability of criminal II.A.1, Supreme has made it tion the search reasonable and overall balance pursuant clear that in the case of searches valid. conditions, ordinary to consider Knights explicitly refused relaxed but not requirements are to be whether, probationers, the case eliminated. of reasonable- requirement constitutional without individual- ness could be satisfied Moreover, fact that a 6, 122 at 119 n. suspicion. ized See id. weigh the home must search invades 587; Prob. & see also Pa. Bd. S.Ct. the circum heavily “totality in the Scott, 3,n. Parole v. 524 U.S. whether such stances” determines (1998) (reserv- 2014, 141 L.Ed.2d 344 S.Ct. Knights, 534 search is reasonable. See parol- question in the case of ing the same Carter, 587; 118, 122 see also U.S. at ees). However, implicit it is the Court’s (“[T]he 88, 119 extent S.Ct. 469 Knights statements Griffin protects which the Fourth Amendment limited searches are probation upon peo those people may depend where protectable legally reasonable and some are.”).20 above, supra section ple As noted Knights, 534 U.S. privacy interest. See long- contrary, depart from the lion to the Knights Court also concluded that 19. The a warrant to search the police principle need not obtain "the Fourth Amend established probationer subject to a “Fourth home of a people, places.” protects ment Katz Knights, 534 U.S. at Waiver”- See condition. States, United The dissent is therefore 122 S.Ct. 587. (1967). building It is not 19 L.Ed.2d that, Knights, pursuant after a search correct us, relationship unique that concerns but the parole condition is not to a "Fourth Waiver” place in which and the between an individual subject ordinary Fourth Amendment stranger, particular struc To a he resides. requirement. post at See 732. warrant interest, only passing but to ture be there, person it is his home — who lives emphasizing special status of the therein, not, subject home, privacy interests are sugges- despite the dissent’s we do II.A.1, Court considers the factors relevant to the search at in issue sacrosanct, permits government home dependently type bars this of search and only pursuant searches of the home to precludes it from coming within the procedural safeguards. enhanced Neither “closely guarded” “special set of needs” Supreme Court nor this court has ever cases authorizing suspicionless searches, approved suspicionless search of a home Charleston, Ferguson v. City 532 U.S. of purpose. for a law enforcement To do so 67, 84, 1281, 121 S.Ct. 149 L.Ed.2d 205 represent here would a substantial incur- (2001). (1) Those factors are: previously sion into inviolate constitutional home, (2) search was of Crawford’s and territory. the government’s practice was de “special

The ju- signed Court’s needs” to discover evidence of crime for risprudence, cited with such enthusiasm prosecution. factor, future As to the first dissent, support does not exceptional cases, different a few “special needs” The correctly conclusion. dissent charac- searches not any founded on degree of “special terizes as a need” of the suspicion individualized ap have been state, incorrectly but upon concludes that proved these searches have in —but phrase, invocation of that Fourth Amend- volved the home. See Bd. Educ. v. of protections ment vanish. itself Earls, 822, 2559, 536 U.S. 122 S.Ct. 153 Griffin stated otherwise. The Court found that (2002) L.Ed.2d 735 (drug tests extra- “special proba- needs” associated with the school); curriculars at United States v. parole system tion and may “justify depar- Gonzalez, (9th Cir.2002) 300 F.3d 1048 tures from the usual warrant proba- and (searches employee backpacks pre requirements,” Griffin, ble-cause 483 U.S. vent loss of inventory); Vernonia Sch. 874, (emphasis added), 3164 107 S.Ct. Acton, 646, Dist. v. 515 U.S. 115 S.Ct. 47J unmistakably but permissible held that the 2386, (1995) 132 L.Ed.2d 564 (drug tests impingement parolee’s on a privacy is not school); of athletes at Dept. Mich. State 875, unlimited. Id. 107 S.Ct. 3164. Sitz, 444, Police v. 496 U.S. 110 S.Ct. Certainly, nothing purports to 2481, (1990) Griffin 110 L.Ed.2d 412 (highway so authorize parol- substantial invasions of a briety checkpoints); Skinner Ry. v. Labor privacy ee’s without suspicion of indi- Ass’n, 602, Executives’ 489 U.S. 109 S.Ct. vidual wrongdoing whatsoever.21 1402, (1989) (railroad 103 L.Ed.2d 639 em “special ployees’ work); Court’s drug needs” tests at cases since Nat’l Trea our own following sury Employees Raab, cases Union v. Von 489 Griffin —and “special 656, needs” similarly provide 1384, no 109 S.Ct. 103 L.Ed.2d 685 line— support (1989) (customs for the dissent’s posi absolutist employees’ drug tests at tion. These cases work); reveal that each of two 691, New York v. Burger, 482 U.S. especial protection. an constitutional We special Fourth protec- Amendment accords also note that the text of the Fourth Amend- home.”). tion to the home, singles ment itself out the protecting "right people to be secure in their Significantly, both the case that initiated 21. houses, persons, papers, and effects...." U.S. "special needs” line of cases the case CONST, added). (emphasis amend. IV See applying probationers upheld doctrine to II.A.l, supra section particularly Kyllo, predicated searches suspi- on individualized 34, 533 U.S. at 121 (finding S.Ct. 2038 T.L.O., 325, Jersey cion. See New v. home to be “prototypical pro- ... area of 345-47, 733, (1985); 105 Johnson, S.Ct. privacy”); tected 457 U.S. at 13, ("At Griffin, 552 n. 102 S.Ct. 483 U.S. at 880 & n. 107 least since S.Ct.

[1886,] the acknowledged Court ha[s] that the (1987) of evidence for criminal the collection L.Ed.2d 601 purposes. regulated law enforcement search (purely administrative Alioto, business); McMorris v. also see (emphasis n. Id. at 83 & S.Ct. Cir.1978) (9th (purely admin F.2d 897 also id. at original); see public buildings); Unit istrative (“None J., (Kennedy, concurring) Martinez-Fuerte, ed States precedents has sanc special our needs L.Ed.2d 1116 routine inclusion of law enforce tioned the search).22 (fixed border checkpoint routine ment, design policy in the both of decisions embrace In its enthusiastic arrests, part ... using integral searching of possible the invasive making legiti achieve which seeks to program suspi of thousands of “[laterally hundreds mate, objectives. The traditional war civil cion-free, of our citizens conviction-free probable-cause requirements are rant and 735, com nation,” at the dissent post see explicit on the previous waived in our cases of the fact significance pletely ignores assumption that the evidence obtained here, every suspicionless unlike in for the search is not intended to be used above, law enforcement approved search Earls, 122 purposes.”); law enforcement home, where person’s into a officials burst 2564, (permitting suspicion- 2566 S.Ct. at the Fourth Amend protective force of drug because “test results less searches powerful. supra See is at its most ment any enforce are not turned over to law section II.A.1. authority” pro for use in criminal ment Second, recently Supreme Court has Ed City Indianapolis v. ceedings); of approved a it has never emphasized that mond, 121 148 S.Ct. “special needs” search con- suspicionless (2000) (“In these [sus- L.Ed.2d 333 none of pur- law enforcement ducted for criminal cases, however, did we picionless search] struck Ferguson, the Court poses. checkpoint program of a approval indicate screening program collecting down detect evi primary purpose was to whose mothers, without indi- pregnant urine from wrongdoing.”). criminal ordinary dence use, in order suspicion drug vidualized practice using with the common As for of cocaine abuse preserve evidence conditions to search “Fourth Waiver” 72-73, at prosecution. later See U.S. stark ... fact parolees, “[t]he homes 85-86, 1281. The factor render- [the this case is that that characterizes could unconstitutional ing program screening] was de suspicionless Ferguson been clearer: not have evidence of criminal con signеd to obtain searched] the [individuals duct objective of the searches The immediate police and that over to the would be turned law en- generate evidence was criminal subsequent could be admissible ... We purposes [footnote:] forcement at 85- Ferguson, 532 U.S. prosecutions.” reasoning words lest our italicize those When, case, 121 S.Ct. 1281. previ- In none of our be misunderstood. designed, so searches are upheld cases have we special ous needs Court, Camara judicial warrant. The “spe- to a decided well before the In one case announced, however, suspi- the Su- emphatically cial needs” doctrine was stated that such of a preme did authorize the search Court because were valid intrusions cionless suspicion: residence without individualized discovery of "aimed they were not .at Court, U.S. Municipal Camara v. Camara, at of crime.” evidence (1967), approved S.Ct. S.Ct. 1727. pursuant building inspections code residential approval in granted authorizing never its term warrantless search has officer, by any as the long time “as suspicion. of individualized the absence supported by suspicion”), search was suspicionless permitting Because — denied, -, rt. ce would of of Crawford’s residence Davis, 401; 515, 154 L.Ed.2d of the home protected status fend both (“The permissible of a F.2d at 758 bounds against suspicionless searches and the bar search are a rea probation governed by conduct, we con of criminal for evidence suspicion standard.”); United sonable suspicion that some individualized clude Richardson, 439, 442 States v. 849 F.2d appropriate stan required here. (9th Cir.1988) (noting permits that the law suspicion- in such cases is reasonable dard probationers war “searches without Knights authorized the standard only upon reason showing rants and probation past parole in our discussed cause”);24 Baca, able see also Moreno v. See, e.g., States v. (C.D.Cal.2002) United decisions.23 *10 WL (9th (“Given Cir. Guagliardo, holdings [Knights and Grif 2002) ], probation (affirming validity of the Court finds that at least reason- fin State, 354, 462, agree Cherry 23. other courts that reasonable 302 Ark. 791 Most v. S.W.2d (same suspicion appropriate (1990) Arkansas); is constitutional for State v. 356-57 parole probation 828, for and searches. (S.D.1990) threshold Ashley, 459 N.W.2d 830 Giannetta, See, e.g., United States v. 909 F.2d State, (same Dakota); South v. for Carswell 571, (1st Cir.1990); 576 States v. United 1255, (Ind.Ct.App.1999) 721 N.E.2d 1262-63 446, Cir.2002), (2d Reyes, 283 F.3d 462 cert. (same Indiana); N.Y. CRIM. LAW for PRO. - denied, -, 106, U.S. 123 S.Ct. 154 1994); § (McKinney 410.50 OHIO REV. (2002); Bradley, v. L.Ed.2d 31 United States 2967.131(C) (West 2000); § CODE OR. ANN. 787, Cir.1978) (4th 571 F.2d 790 & 790 n. 4 137.540(1)(i) (2001); § REV. STAT. but see suspi (requiring grounds” for "articulable 1362, (11th Kelley, 681 F.2d Owens v. 1368 32, Scott, cion); F.2d 35 United ‍‌​‌‌‌‌​​​‌​‌​‌​​‌‌​‌‌‌‌‌​‌‌‌‌‌‌‌​​​‌​​​​​​​​​‌‌​‍States v. 678 Cir.1982) (rejecting suspicion a reasonable re (5th Cir.1982); Payne, United States v. 181 quirement); People MсCullough, v. 6 P.3d 781, 786, Cir.1999); (6th & F.3d 788 788 n. 5 774, (Colo.2000) (collecting 781 from cases State, 631, (Wyo. v. Nixon 18 P.3d 635-36 Nebraska, Hampshire, New Dako North Williams, 2001); v. 547 Pa. Commonwealth ta). 577, 1031, (1997); 692 A.2d State v. 1036 459, 225, Beaudry, 282 461- Mont. 937 P.2d Stokes, 24. See United F.3d also States v. 292 1254, (1997); Velasquez, 62 State P.2d v. 672 964, (9th Cir.2002) (permitting proba 967 (Utah 1983); Drane, 1260 828 So.2d State v. tion because reason “[t]he search standard of 107, State, (La.Ct.App.2002); 112 v. Fox 272 suspicion by probation able [embraced con 163, 847, (reason 527 Ga. S.E.2d 850 - denied, met”), clearly cert. dition] consent); suspicion applies able absent State 398, 321; -, 154 L.Ed.2d Devore, 153, 344, v. 134 Idaho 2 156-57 P.3d Garcia-Cruz, 537, v. United States 978 F.2d (reasonable (App.2000) applies suspicion ab 1992) (9th gov (approving 541 Cir. a search 760-61, consent); Reyes, sent 80 19 Cal.4th at suspicion” erned a California "reasonable 734, J., (Kennard, Cal.Rptr.2d P.2d 445 968 standard); Bunnell, 741, Toomey v. 898 F.2d concurring (collecting dissenting) cases (9th Cir.1990) ("We approve 744 do not Hawaii, Nevada, Massachusetts, from Okla general rights waivers of fourth amendment homa, Washington); States v. United cf. However, parole. parole as a condition Baker, 438, Cir.2000) (not (3d 221 F.3d 448 searches be conducted warrant without a ing suspicion requirement reasonable under standard.”) (citations under a reasonableness law); Pennsylvania Cantley, v. United States omitted); Cir.1997) (same Duff, United States v. 831 F.2d (10th 1375 (9th 1987) Lewis, Oklahoma); (affirming probation Cir. 179 for United States v. search, (10th Cir.1995) (same part "probation F.3d because the officer for Utah); West, suspicion might had a be State v. 482, reasonable that Duff 185 Wis.2d Wisconsin); (1994) (same using drugs”). N.W.2d for suspicion somewhere be- justify the individualized required suspicion able parolee].”). suspicion suspi- tween reasonable and no [of search Supreme specif- cion at all. The Court has an alternative' to proposes The dissent ically against creating cautioned such new “arbitrary, ca- suspicion: categories measuring federal the con- propound- standard harassing” pricious, actions in stitutionality government See Supreme Court. by the California ed See, 758-54, Cal.Rptr.2d e.g., Fourth Amendment cases.25 Reyes, 19 Cal.4th 445; Reyes Hernandez, post P.2d Montoya United States v. de only after it found adopted this standard wholly unneces- suspicion

individualized (1985) (criticizing the creation L.Ed.2d 381 free search. We are not sary parole in a of a new Fourth Amendment standard “suspicionless” stan- adopt Reyes suspicion” “reasonable addition to supra, explained As we have dard. cause”); “probable see also United States applying precedent light (6th F.3d 788 n. 5 Payne, Amendment, of indi- degree the Fourth Cir.1999) (applying Montoya de Her- constitutionally re- suspicion is vidualized nandez restriction to the to conduct a search quired order context).26 Accordingly, we would not do parolee. The federal Constitu- home of here. so course, tion, our decision here. governs examining totality After of the cir- 17. To the extent that the supra note See its proposing including dissent follows California Crawford’s cumstances— condition, status, a substitute for a constitution- standard as the location of sus- required degree of individualized ally search, expectation pri- reject compelled are that picion, we home, vacy in his own the state’s interest approach. rehabilitating parolees, and the interest government the state and federal of both pro- accept would we the dissent’s

Nor preventing punishing recidivist willing, if were posed standard even we parol- a of a crimes—we hold that search to characterize the contrary Reyes, is pursuant parole to a condition embodying degree of ee’s home standard as itself occupies ognized "the border search recognize possibility that some that 25. We the might premised spot jurispru- on a unique consider a search in[F]ourth [A]mendment Jardins, dence,” of informa- "hunch” —or some other scintilla Des United States v. suspi- Cir.1984), be founded on individualized (9th tion—to part vacated in on suspicion” cion that is less than "reasonable Cir.1985), (9th grounds, 772 F.2d 578 other "arbitrary capricious.” that is still not or but extraordi- that border cases involve an yet another Because we are not free to create nary interests far different from those set of standard— incremental Fourth Amendment person’s home. applicable to searches of do even if we and because we would not so Hernandez, See, Montoya e.g., de 473 U.S. at do not decide whether a search could—we ("[T]he Amend- Fourth something on a hunch is or is not more based qualita- is ment's balance of reasonableness "arbitrary capricious.” than border tively different at the international interior.”). Indeed, when a bor- than in the Indeed, only 26. we aware of one anoma are "routine,” government’s is der search protective example of a standard less lous protection particular for the "concern suspicion: sus reasonable the minimal than border,” id., integrity permits even sus- of the picion required pat-downs and incremen for import the border, picionless We decline to searches. at the national tal canine “sniff tests” precedents Couch, (9th unique to create border search 688 F.2d 599 see United States v. 1982); category reasonableness that would new Taylor, F.2d United States v. Cir. Cir.1991). (9th of the home. consistently govern searches Wе have rec- supported is ceded district only if it rea- as much in the court and in reasonable appeal. its brief on Both Bowdich and suspicion. sonable repeatedly Berner testified that when case, clear from the it is record this search, Bowdich conducted the he responsi- officials that the law enforcement expect any did not evidence linking find residence did searching ble for robbery any Crawford to the or to bank suspicion that he have reasonable was activity. ongoing other criminal Bowdich continuing criminal engaged activity or ample further that he had acknowledged two-year-old bank evidence rob- reason to believe that evidence of the rob- home, bery might be found even bery premises. would not be on of the generous “totality under view district specifically court found this testi- the circumstances.” See United States v. record, mony credible.28 On we hold Arvizu, 266, 273, that the law enforcement officials conduct- (“When discussing ing search Crawford’s home should reviewing how courts make reason- July clearly did not have determinations, able-suspicion we have suspicion reasonable to believe that repeatedly they said must look at the search would disclose evidence of ‘totality of the circumstances’ of each case criminal activity. Because there was no ”).27 Indeed, .... the government suspicion, agree con- reasonable we with the that, previous paragraph, 27. In the we determined COUNSEL: I understand but I was degree suspicion of individualized neces- prevented going into that. from sary for the at issue to be No, no, reasonable just THE COURT: no. I mean on by applying under the Fourth Amendment the state of the record— "totality analysis of the circumstances" man- right. COUNSEL: All I will—I will con- Here, by Knights. dated we address whether particular point, cede that but I think that suspicion we standard hold —the quite they the inference clear didn’t appropriate actually sup- to be such cases— they testimony believe that sufficient had ported particular search of Crawford's home, by applying "totality the distinct excerpt This that defense reveals counsel circumstances” test mandated Arvizu. assume, willing purposes argu- ment, "probable that there have been Ironically, government claims that the cause” to believe Crawford had been defendant conceded existence of "reason- robbery. involved in suspicion” by conceding able the old Even that that it met as- the cause,” undermined, higher "probable even sumption substantially standard but is howev- argument er, "probablе the mark. is off The by uncontroverted Bowdich’s own testimo- question probable cause” in involved cause to ny that the officials did not seek a warrant for believe that Crawford committed the two- parole the time arrest at crime, year-old suspicion not individualized anything search because didn't have "[w]e that a might search disclose evidence of over him....” wrongdoing. transcript The of the district event, any probable cause to believe that hearing following court dialogue: the contains participated robbery Crawford had in a bank DEFENSE COUNSEL: And so it is clear years two and one half earlier would not have record, jumps page, from this off the that justified a residence. search of his The indi- pur- [the was utilized for the search] suspicion required vidualized is that to render pose setting get scene in order to Mr. suspicion a search reasonable is that Crawford to admit his involvement ... be- may relating evidence uncover to a cause, time, up point they to that did not supra, crime. clearly As discussed the record any sufficient evidence to establish had reflects that the officers no probable even cause believe that he had suspicion that a search of Crawford's home robbery question.... committed the any would disclose such evidence. Well, THE ... we they COURT: know that certainly want to didn't disclose their evi- dence, probable they but had cause. parole condition.30 The of this parole search was essence court that district theory may preemptively that the state illegal.29 parolees

force all to “consent” blanket fashion to searches would be unrea- 3 Consent sonable under the Fourth Amendment.31 contends government The also compulsory parole hold that a We condi- be permissible search was that the may not serve as a to engage tion consent completely all of cause waived searches, Crawford in otherwise unreasonable by signing rights Fourth Amendment that Crawford therefore did not consent to search of his home. compulsory “Fourth Waiver” the standard gov- governs holding mandatory waiver rather than as a rule Although federal law our erning parolees. post We parole search in this case did not all See 724-125. that the comply requirements of Fourth intend no such deceit and offer no such erro- with the Amendment, supra proclaims that we neous characterization. See note 1. We the dissent acknowledge may properly opinion without that the record does not show not issue our pa- participation in the casе. See that California has chosen to construe its California's waiver, cites 28 U.S.C. role condition as a and we do not post at 736-737. The dissent 2403(b) intimate that it would do so. Nor does it § and FED. R. APP. PRO. both of challenges the con- apply only to constitutional matter how California characterizes which Id, course, Here, fully agree we do dition. We with dissent to state statutes. construe, question the "consent and waiver cannot be used to val- even much less not conditions,” of, [mandatory] parole post constitutionality any idate state statute. More- 725; over, infra, conducting pa- explain as we no construction of interests in California's searches, purported legal position regarding the condition as a "waiver” or and its role searches, explained of "consent” will allow Cali- fully are in the record demonstration accomplish indirectly what it appeal and in decisions of the California fornia to Court, Reyes, accomplish directly. including People Cal.Rptr.2d Cal.4th 968 P.2d Rather, of) (and dispose we address (1998). delaying We see no in now benefit argument that the "Fourth Waiver” condition sponte proceedings sua to ask for further as a blanket consent to search be- functions amply exposition position of a that is clear argument pressed upon has been cause from the materials before us. government an us the federal effort to practice. preserve It would in the California government does not make claims 30. The ignore inappropriate simply to our view be respect particular to Crawford's consent summarily. argument to dismiss it it, morning July on the nor could Nevertheless, gov- plain be that the it should given that Crawford was roused from bed hardly theory lies at the ernment’s consent who, weapons law enforcement officers merely opinion. theory is of our heart drawn, that a search was in informed him argument that we must confront additional Rather, progress. government claims question principal once we decide the Crawford, parolees, all consent- like required suspicion is that reasonable hold ed blanket fashion to other- in advance parolee subject of a search the home signed when he the wise unlawful searches only of the parole condition. It is because ' "Fourth Waiver” condition. the government’s additional assertion valid consent eliminat- condition constitutes government string of California The cites protection, that we ing Amendment all Fourth theory. support its consent Howev- cases to required not that the Fourth er, are to hold аgain governs the we note that federal law imposing prevents from Amendment the state a valid consent to search under standard for suspicionless upon parolees in the Ooley, Amendment. See 116 F.3d the Fourth home, precluded from 372; Davis, but that a state is also 932 F.2d at 758. ground conducting on the such a search mandatory parole parolee’s signature harshly alleged The criticizes our the dissent his Fourth Amendment misrepresentation the condition waives the nature of rights. Waiver” condition as a consensual "Fourth fiction,’ pur- that “a search conducted lease] It is clear is to resort to a ‘manifest for constitutionally probationer purportedly consent is who suant to a valid waives Bustamonte, rights by his accepting such condition permissible.” Schneckloth v. refuse, genuine option has little and the (1973). waiver cannot be However, voluntary said to be L.Ed.2d 854 Su- any generally-accepted sense of consistently preme has demanded term.”) (citation quotation and internal given that the consent be “valid” and meet omitted). marks requirements: well-established upon prosecutor rely Moreover, When a seeks to if mandatory parole con- justify consent to lawfulness of a dition were deemed to be a valid blanket search, proving consent, he the burden of has any protection constitutional was, fact, freely parolees that the consent would illusory be rendered —ev- voluntarily given. ery parolees This burden cannot state could sign force its discharged by showing parole, be no more than the blanket waiver as a condition of acquiescence every parolee’s to a claim of lawful author- rights constitutional Indeed, thereby instantly would ity. vanish. government’s theory, under the all parol- Carolina, Bumper v. North ees could be forced all to waive constitu- 548-49, 1788, 20 L.Ed.2d rights, tional including right to due (1968). process in proceedings, revocation or even reveals, prisoner As the record before right to trial on alleg- new offense parolee, becomes a and while still in custo- edly during committed period. dy, given he is a sheet of conditions that parolees may We hold that not generally prospective parole agent “has” him be forced as a threshold condition of their sign. purported blanket waiver is to surrender blanket waiver If among these conditions. Crawford did their rights, Fourth Amendment including sheet, sign the conditions he would recently recognized by those so Knights. have been denied and returned im- Indeed, we previously expressed mediately custody. prison To call this unequivocally disapрroval our of general choice—either waiver or certain incarcera- waivers of Fourth rights Amendment voluntary” tion—-“free and would be to conditions of parole. Toomey, See concept meaningful misconceive the con- (“We F.2d at 744 approve gener- do not conditions, sent. Under these we cannot al waivers of fourth rights amendment aas equate acceptance compulsory con- (citations parole.”) omitted); condition of dition sweeping voluntary with the consent Pelligrino, Anobile v. cf. government represents. claims it Cf. (2d Cir.2002) 123-25 (refusing, under the Lubbers, Smyth F.Supp. circumstances, totality to construe a (W.D.Mich.1975) (“[A] blanket authoriza- purported blanket waiver as valid consent tion in an adhesion contract [waiving searches). to otherwise unreasonable We rights] Fourth type Amendment is not the have no question vitality cause to focused, deliberate, and immediate con- that conclusion here. Constitution.”); sent contemplated by the LAEAVE, WAYNE R. AND holding appropriate- SEARCH Our on this issue is SEIZURE: A ly that, TREATISE ON THE narrow. We find virtue of a (3d § FOURTH AMENDMENT signature 10.10 ed. on a compulsory parole condi- 1996) (“[T]o tion, speak not, parolee consent this con- does advance and in fashion, text signature [of a to a condition of re- blanket general consent to a waiv-

719 “purpose flagrancy” of the official mis the Fourth Amend- rights his under er of Alabama, Taylor conduct. v. 457 U.S. ment.32 687, 690, 2664, 102 S.Ct. 73 L.Ed.2d 314 Attenuation B. York, (1982); Dunaway v. New 2248, consider whether Crawford’s We next 99 S.Ct. 60 L.Ed.2d 824 (1979); Illinois, 590, law enforcement officials 422 statements Brown v. U.S. parole search and illegal 603-04, 2254, fruits of the were 95 S.Ct. during (1975). detention” “investigatory The showing “burden of admissi illegal from the the taint rests, course,

search. Unless bility prosecution.” on the at- sufficiently detention was search and Brown, 604, 422 U.S. at 95 S.Ct. 2254. tenuated, later statements Crawford’s prosecution The not met that has burden Wong Sun v. United suppressed. must be here.

States, 83 S.Ct. 9 Temporal Proximity 1. (1963). review de novo 441 “We L.Ed.2d fact law question the mixed whether noted, correctly As the district court deriving illegal from an search is evidence sup weighs heavily first factor favor of require suppression, tainted to sufficiently pressing Only twenty- the statements. concepts applied be legal must because separated minute to the FBI offices drive about the values judgment exercised illegal and his inter Crawford’s detention the Fourth Amendment.” that animate court was correct to rogation. The district Johns, F.2d United States elapsed little find that so time was insuffi Cir.1989). (9th See, Brown, e.g., taint. purge cient to (less than U.S. at 95 S.Ct. determining pivotal question taint); purge two hours not sufficient to “whether, granting estab attenuation is (six Taylor, 457 U.S. at 102 S.Ct. the evi primary illegality, of the lishment sufficient); v. Per hours not United States by exploitation at dence ... has been come (9th 1284, 1290 ez-Esparza, 609 F.2d Cir. instead means suffi illegality of that 1980) (three sufficient); United hours purged of the ciently distinguishable be (9th George, F.2d States v. Sun, Wong 371 U.S. at primary taint.” Cir.1989) (“As aware, no court best we are (internal 487-88, quotation a de weighed against has the first factor omitted). In order to determine marks inculpatory statement fendant when his whether statement was “come by only a illegal police followed conduct by exploitation illegal at of’ the hours.”). lack of a Although detention, “[t]he few three we consider search (1) intervening period of time does significant temporal proximity of the factors: itself, not, be require that the evidence illegal and detention to the state (2) attenua ment; intervening suppressed for want sufficient presence Wellins, tion,” circumstances; and, United States v. “particularly,” post 730- prevent recidivism. See does not render the "Fourth less to Our decision nullity. The con- Waiver” condition We that the Fourth 736-737. hold totality part of the dition is still prevents offi- Amendment law enforcement lead to the conclusion circumstances that can invading parolee the home of a cials from privacy interest is warranted that a reduced they subject to a condition when parolees. Knights, in the case of See will suspicion that a search no reasonable 587; 118-19, supra see also sec- uncover evidence of crime. tions II.A.1 and II.A.2. fears, Nor, contrary to the dissent's does power- render law enforcement our decision (9th Cir.1981), omitted); Brown, quotation it does “bear[] marks see also taint,” 600-04, probability U.S. at 95 S.Ct. 2254. directly on United Delgadillo-Velasquez, States v. 856 F.2d Fourth Amendment attenua Cir.1988). (9th 1292, 1300 analysis tion focuses on the circumstances that serve the twin interests the exclu Intervening 2. Circumstances sionary judicial rule: deterrence and integ The district court concluded that See, Brown, rity. e.g., 422 U.S. at 599- illegal parole limited time between 600, 95 S.Ct. 2254. We look not at the search and Crawford’s statements did not conduct, defendant’s but rather at “inter taint, it purge the because found the tem- vening significance” events of that “render poral proximity outweighed by the other inapplicable judicial the deterrence and in prongs Specif- two of the attenuation test. tegrity purposes justify excluding [a ically, respect prong, to the second tainted] statement.” See United States v. following the district court found the inter- D., (9th Ricardo Cir. (1) vening circumstances: that Crawford 1990); Perez-Esparza, 609 F.2d at 1289. savvy” was “street and thus must have Intervening circumstances that militate agents nothing known that the had fоund favor of attenuation must be sufficiently (2) search; in the that Crawford was told important to ensure that potentially taint several that he times was not under arrest ed evidence by way was “come at of’ some (3) leave; and was free to that Crawford process exploitation other than the of an voluntarily the FBI chose office as the Sun, illegal Wong search. 371 U.S. at venue for the interrogation; and 487-88, 83 Examples S.Ct. 407. include interruption of the Miranda custody, release from an appearance be warnings showed his exercise of some free fore a magistrate, or consultation with an will. attorney, “such that we would be able to say that defendant’s [a decision to confess] By focusing on Crawford’s state of mind ‘unconstrained, independent was deci events, intervening rather than on the dis- completely sion’ that was unrelated to [the] trict court misconceived nature of the initial unlawful” George, violation. “intervening analysis. circumstances” 1416; F.2d at Perez-Esparza, see also are, facts relied on the district court (“In cases, F.2d at 1289 some the interven like warnings, principally Miranda useful ing, completely self-motivated decision of a in determining whether a confession was putative inculpate defendant to himself is Fifth voluntary purposes. Amendment event, so unforeseeable an from the arrest However, determination that a state- ing vantage point, officer’s that excluding voluntary purposes ment is “for the defendant’s statement would serve no Fifth merely Amendment is a threshold purpose.”). deterrent requirement for Fourth Amendment anal- ysis. approach The reason for this There were intervening no such events rule, exclusionary clear: taken, [t]he ... when here. Crawford continuous utilized to effectuate the Fourth presence, Amend- law enforcement directly from ment, policies serves interests and that are the site of illegal search and detention distinct from those it serves under the to the site interrogation. of his He did not Amendment,” Fifth Taylor, or, speak indeed, 457 U.S. at to an attorney, any indi- (citations 102 S.Ct. 2664 and internal vidual other than Bowdich and Gutierrez.33 brief, Although government heavily relies Wellins in its we note that the Wellins Instead, proper cited the district court under a analysis, No circumstance this prong suggests suppression if type or the law en- signifi amounts to an event of forcement illegal officials conducted the taint. As necessary purge cance purpose search with the extracting factor, the first we find that the interven evidence in if question, they or flagrantly ing prong weighs against circumstances brоke the in conducting law the search. finding Perez-Espar of attenuation. See factors, In reciting the Brown courts usu- (“The za, at 1290 deterrence ra 609 F.2d ally conjunctive choose a phrasing (“pur- vitiated, Sun, in Wong tionale was not as pose and flagrancy”), but the same courts by lengthy period away police from influ then find in if favor of taint there is evi- Nor, reasons, for the same can we ences. improper purpose dence of either or fla- speak find decision to that[the defendant’s] See, grant illegality. e.g., Taylor, independent police pressures was so (only “purpose”); at 102 S.Ct. 2664 judicial system to absolve the from the 218-19, Dunaway, 442 U.S. charge savoring the forbidden fruits of (only “purpose”); United States v. unconstitutional conduct. The first two Jenkins, (9th Cir.1991) finding factors thus dictate a no attenu (only “flagrancy”); George, 883 F.2d at ation.”). (only “flagrancy”). We also find the disjunctive analysis persuasive, more “Purpose Flagrancy” 3. of the Of- explicitly clarify improper pur- either ficial Misconduct pose or flagrant illegality support will court The district made a error prong similar determination that the third of the third, analysis “particularly of the weighs against Although in its test attenuation. suffice, either element alone important,” prong. George, 883 F.2d at would we find present In both here. holding 1416. the third factor attenuation, weighed favor of the dis- Bowdich extensively testified agents’ testimony trict court credited the search was executed in order to induce they any implied promises did not use words, talk. In Crawford to other above, however, interrogation. in their As ultimately evidence that was obtained was type analysis “betrays a lingering search, byproduct not the mere but confusion pur- between ‘voluntariness’ for Moreover, primary objective. its con- of the Fifth Amendment and the poses ducting solely pressure the search ‘causal connection’ test established in into Bowdich talking, Crawford and his Satisfying Brown. the Fifth Amendment accompanying blatantly ignored officers the ‘threshold’ condition of the then-existing prohibiting Ninth Circuit law Fourth analysis required by Amendment enforcement/investigatory” “law Dunaway, Brown.” supra searches.34 See note 10. The questionably S.Ct. 2248. search and detention was not permitted purposes pur- defendant was to consult with his law enforcement rather than attorney illegal between the search and his poses probation related to were Wellins, later confession. See 654 F.2d at illegal under more than three decades of con- Indeed, ability 555. to consult with an precedent. Circuit See cases sistent Ninth attorney was the “crucial faсtor in th[e] Ooley, F.3d at fact that cited in 372. The case,” principal and the reason no taint was discarded, subsequently this distinction was Id. found. Knights, see 534 U.S. at disregard ex- does not render the officer's officer should isting flagrant. law less ordinary known that searches conducted articulated in Brown or its flagrantly so.35 This combi- of the factors it was illegal; Therefore, progeny. as a fruit of the ille- application of the for hornbook nation calls search, statements must be rule, gal Crawford’s designed which is to de- exclusionary suppressed. conducting officials from ter government suppressing the evi-

illegal searches III. CONCLUSION See, e.g., provoked search. dence that law enforcement officials con- Because Brown, a home with- ducted search of Crawford’s taint where ar- (refusing purge “[t]he suspicion out reasonable that believe execution, rest, in and in design both of criminal they would uncover evidence The detectives embarked investigatory. activity, we that the search violated hold expedition for evidence in the upon this the Fourth Amendment. The fact that something might up.”); turn hope that a “Fourth signed Crawford blanket Waiv- (“When 609 F.2d at 1289 Perez-Esparza, mandatory er” as a condition of his illegal an or police purposely effect arrest does not serve to waive the minimum con- hope in that custodial inter- detention protection suspi- stitutional of reasonable incriminating state- rogation yield will parolees cion to which he and other are ments, appli- rationale for the deterrence Moreover, time, neither entitled. inter- exclusionary especially rule is cation of the events, vening nor the officers’ motives fact, compelling.”). In we have found this purged the taint of the unconstitutional often in those cases factor “decisive most search, subsequent statements ... a police where officers took sus- [sic] suppressed. must be therefore re- We pect custody hoping interroga- into that verse the district court’s denial of the mo- yield incriminating tion would statements.” suppress tion to remand and to allow George, F.2d at 1416. We find that guilty plea. Crawford to withdraw prong analysis the third of the attenuation sup- Every protecting in court action weighs heavily therefore favor of the consti- pression. rights vigor- tutional of individuals evokes objections ous from those who foresee di-

4. Conclusion consequences; sastrous comments that, effect, design our dissenting colleague We find both and learned demon- the FBI opinion exception. Crawford’s statements at offices strate thаt is no by exploitation Surely, were “come at of’ the ille- law enforcement could succeed Sun, Wong gal incarcerating greater danger- search. number of 487-88, government The ous if dispensed entirely 83 S.Ct. 407. has individuals we Amendments, showing not met that the with Fifth its burden the Fourth and However, by any taint of the was attenuated search even with the Sixth. our Found- sug- degree 35. Several of our attenuation cases have can also refer to the to which search- gested ing "flagrancy” aggres- intentionally overstepped that to the refers officials the law. cases, frightening looking flagrancy sive and manner in which a In both See, e.g., George, purposes analysis. search is conducted. search suits the of the taint (holding "rushing F.2d at 1416 into [the former bears on the likelihood that the apartment, guns question with drawn” evidence defendant’s] was flushed out search, weighs suppression); Delgadillo- illegal degree in favor of and therefore the Velasquez, (holding impugn judicial 856 F.2d at 1300 that an which the would evidence admitted; surprise, fright, integrity arrest calculated cause if the latter bears on the weighs suppressing confusion in favor of need for increased deterrence. In either cir- confession). However, cumstance, finding finding flagrancy weighs later engaged "flagrant” illegal suppressing question. officers in a favor of the evidence in that balances lib- Klaas. Richard Allen Davis’s vicious mur ers chose Constitution preserves Polly catalyst to all der of Klaas became the erty security, against Proposition the “fastest ini guarantees qualifying individuals certain history.” Ewing tiative in police of a state. We California existence U.S. -, California, sought to balance the relevant interests (2003). obligation to the thereby to honor our Hand hand much doubt Bill very Assembly Proposition Constitution. We specified what we have done will be understood or established life sentence for in only by “the Richard Allen Davises felons California who accumulate over valued Post at 737. time three felonies of a certain of underworld.”36 kind. The purpose of the protect public law is “to AND REMANDED. REVERSED safety by providing lengthy prison terms for habitual felons.” Id. at-, TROTT, Dissenting: Judge, Circuit 1179. The fact that these “three strikes” 1993, Richard During the summer of id., eligible parole, criminals are for makes Davis, career criminal Allen a violent serv- Proposition 184 to our relevant under kidnaping, ing sixteen-year sentence standing of Crawford’s constitutional argum paroled Prison. from California State ent.1 later, from her Three months he abducted bedroom, assaulted, sexually question and eventual- in this case is whether it is in ly ‍‌​‌‌‌‌​​​‌​‌​‌​​‌‌​‌‌‌‌‌​‌‌‌‌‌‌‌​​​‌​​​​​​​​​‌‌​‍strangled twelve-year-old Polly to deаth “unreasonable” constitutional terms for preserva persuade 36. To its readers that the The state mentions several times that one rights costly, prisoners tion of is too and that individual of its who benefit from the liberty generally yield security, must to decision is Charles Manson. We [] do deploys bogeyman wholly dissent uncon encourage type advocacy. not of A is a familiar nected to the case hand. This federal court must make its decisions in long pari tactic. Prosecutors have used such accord with the Constitution and the ahs, contemporary, both see United States v. laws, regard notoriety without Ortiz, 873, (8th Cir.2002) (Jef 315 F.3d 903 parties nonparties. Purkett, al); frey Dahmer et Culkin v. 45 F.3d Bittaker, agree 587 F.2d at 402 n. 2. We 1229, (8th 1995) (John Wayne 1235 Cir. admonition, panel's the Bittaker and accord- 400, Enomoto, Gacy); v. 587 F.2d Bittaker ingly only precedent, consider constitutional Manson); (9th 1978) (Charles 2 402 n. Cir. rules, legal par- and the circumstances of the Phillips, United States v. 476 F.2d 538 actually ties involved. We therefore render Sirhan, (D.C.Cir.1973) (Sirhan James Earl our here on the facts of the case decision Ray, Ruby); Speck, Richard Jack United principles and before us embodied in Gross, (7th States v. F.2d Rights. Bill of timeless, 1971) (Lee Oswald); Harvey Cir. Luebbers, see Johnston v. 288 F.3d Although customary generally ap- it is J., (8th Cir.2002) (Heaney, dissenting) propriate to decide these issues in abstract Parker, (Satan); Martin v. 11 F.3d 615- terms, legal deciding it I find useful when Hitler); (6th 1993) (Adolf Cir. United States something whether is "unreasonable” to have Hitow, (6th Cir.1989) v. it, understanding a broader as did the Steinkoetter, (Al Capone); United States v. Otherwise, voters in California. one loses (6th Cir.1980) (Pontius F.2d Pilate human element and all the ramifications of Iscariot). and Judas With fewer than five no apologize my colleagues I the decision. to if is, references to Richard Allen Davis—who they freely I admit this find this offensive. course, party neither a nor an unindicted co- tendency may reading come not from conspirator joins seeking those dissent —the Supreme opinions, Court but also from twen- capitalize notoriety to on the of evildoers. ty-three years talking people lives to whose permanently by were ruined violent and We have confronted such tactics before. As we stated in Bittaker: heartless felons. ject criminals time to be taken back within subject convicted California prison.” Pen. Davis while on the inclosure of the Cal. Allen like Richard § law en- cor by authorized 3056. As the district court conducted Code searches officers, long so as those rectly understood —before it became dis forcement “arbitrary, capricious, or by searches are tracted our mistaken decision United question (9th is whether A relatеd harassing.” Knights, v. 219 F.3d 1138 Cir. States accept as “reason- prepared society 2000), is by since overturned right part on the specific privacy able” a Knights, United States non-arbitrary, non-eapri- against parolees 112, 122 cious, non-harassing searches of their law, parolee California “[U]nder — lawfully abodes officers persons and custody Department is fact ” and commissioned California authorized See Latta v. Fitz Corrections.... parolees do not consti- to ensure that its (9th Cir.1975) (en harris, 521 F.2d 246 they make public safety tute a risk banc) (“A parolee California a differ society. to free prison from the transition citi position ordinary ent from that of an sentence.). serving zen.” He is still his questions to is my Because answer both “no,” respectfully I emphatically dissent. A.

I January Raphyal Crawford continuing legal On Before to discuss the conspira- California, court of was convicted federal parole ramifications of status however, and distribute cocaine cy to manufacture I must discuss a serious error prison sentenced to federal base. He was Judge Reinhardt infect has allowed to supervised While on re- for 87 months. opinion. conceptual his It is a mistake to conviction, arrested he was lease from imposition consider the of conditions on a Diego, in state court San charged parolee rights. as a “waiver” of As Craw- California, possession by with of a firearm parole ford’s correctly state officer ex- marijuana possession a felon and plained when confronted in district court convicted of these crimes sale. He prosecutor with federal this mis- addition, prison. to state In and sentenced characterization, “I leading do not call supervised his release was revoked. federal my them a ‘Fourth waiver’... understand- out, he committed an As it turns also ing applies proba- of the Fourth waiver super- a bank robbery armed while on county.” single tioners This sen- release, crime vised but this was not dis- spoken by state official to tence— covered until later. Based on his exten- appearance speaks make an in this case— record, clearly sive Crawford constitutes anyone volumes to familiar with California safety. risk public procedure, appar- criminal law and but it ently went over the heads of the federal Eventually, Crawford became Califor- authorities, prosecutor’s and the mistake capacity, nia In this parolee. state Califor- up has fouled resolution of this case him impressed legal nia law status fact, ever since. California’s Adminis- relаtionship altered materially says, parole trative “The Code conditions with Amendment and its war- the Fourth specific are not a contract but are the rules rant California law on this requirement. parolees all subject parole governing clear: “Prisoners on whether is shall legal parolee signed containing has the form custody remain under the of the de- partment Regs. tit. and shall be sub- conditions.” Cal.Code. [of corrections] 2512(a). § the California so it can be hacked to death. As The asser- recognized: has tion that argument being consent is answered in terms of jurispru- consent exception

The consent warrant “just government dence because the invoked val- raises requirement may not be it” is too cute half. parolee an adult be- We no busi- idate the search of “adopting government’s ness Sentencing preferred under the Determinate cause nomenclature” that wrong analyt- is not a matter of Act of ically misleading. tape Scotch is not choice. The Board Prison Terms must just period parole; prisoner liquor Scotch because the federal provide gov- (Pen. says § ernment it is. Before start accept must it. Code 3000 et we brand- ing anything unconstitutional, seq.) at the very picture least we should have a clear People Reyes, 19 Cal.4th 80 Cal. assessing. of what we are So should have (1998). Rptr.2d 968 P.2d prosecutor the federal before attempting explanation obviously means is What this to defend it as a waiver of Fourth Amend- cannot be consent waiver used to rights. ment conditions, can validate and neither lack thereof be used to invalidate

them. B. error, course, originate This did not provides California law that “The Board far I tell Judge Reinhardt. As as can upon granting any parole of Prison Terms record, prosecutors from the the federal any prisoner may impose also on the agents and it do originated whom parole any may conditions that it deem fully persist understand California law and 3053(a). proper.” § Cal. PemCode Con- day calling parole to this in conditions law, sequently, according and to the cer- quote “Fourth waivers.” To Assistant imposed tain conditions were on Crawford Attorney ex- United State’s Hobson’s in parole connection with his in release change the district court with her wit- year re- When Crawford was Bowdich, Agent you FBI ness “Now called parole, leased on whether he liked it or you it a Fourth waiver. refer- What are not, not, and whether he consented to it or ring to? What is it?” Bowdich’s answer subject he became to a search and seizure was, ... “It’s a common term under the (1) parole recognized condition parole probation system.... state or custody, status as still in de- just they’re Fourth waiving waiver means signed supervision to effectuate of him. right their to search and seizure.” Wrong. status, In summary, recognition doc- of Crawford’s consent/waiver Thus,

trine is I Department imposed irrelevant this context. of Corrections first majority’s willingness conclude that the to these standard conditions on him on Octo- entertain the Federal Government’s disori- ber 1999. The document memorializ- entation on this is no than ing imposition issue more is entitled “Notice of Parole,” knowingly it allowing, tongue-in-cheek, a Conditions of reads rele- part: strawman to walk onto the chopping block vant

NOTICE AND CONDITIONS OF PAROLE 2-17-2000,19_for parole period You will be released on effective of 3 YEARS. subject following you

This notice and conditions. Should violate conditions subject arrest, parole, you suspension your parole. of this are revocation of and/or territory of the United any state or from to the State California extradition

You waive you any to return not contest effort You will of Columbia. from the District or States of California. the State reasons, you determines, psychiatric upon based Prison Terms Board of When psychiatric others, may, necessary if for yourself or Board danger to pose treatment, prison facility or state or community placement in.a treatment your order your prison. return to order your may revoke your control be searched a) any property under your residence You and any or law enforcement Department of agent Corrections a warrant without officer. RC INITIALS

PAROLEE’S peace time of b) by parole or other officer officer agree to search or You seizure cause. with or without a search warrant and night, with without day or RC INITIALS

PAROLEE’S writing obtaining a procedure have received have informed and You been PC). (4852.21 Rehabilitation Certificate following you and the Conditions read to this notification have read or had You you. they apply to understand them as Parole and parole specified agreement containing conditions of sign shall 6. You (BPT) imposed any special conditions Rules 2512 and Terms Section Board of Prison specified in BPT Rules Section they apply as the conditions of had read to me and understand I read or have have to me. (a) (b) above, I up tial the section demonstrates that Crawford The record form, prop- copy of this inform that their residence and signed a second them 24, again, the April time 2000. Once their control can be erty under searched promi- provisions were And, and seizure search any time.” as peace a officer at nently repeated. told the district court in sworn Crawford parole officer Ber- testimony regarding under- doubt that

There is no Crawford parolee him that he ner’s advice to as how his parolee as a his status stood searches, know, just, you “I subject to thereby. As been affected rights had that, know, you just granted took that for explained in Agent Berner Parole State rights I don’t have no parole, ini- I’m on that I them testimony, “I —when

727 Thus, 752, I that Cal.Rptr.2d 749, at all.” conclude Crawford Cal.4th at 80 at 968 subjective expectation of privacy had no P.2d at 450. It is equally noteworthy that laws, controlling “parolees whatsoever. Given the California are entitled to the appearance “agree” of the word under benefit of the rule of announcement neces (b) acknowledg- sary perfect subsection a law enforcement officer’s essentially Latta, no more than entry ment is acknowl- into a house.” 521 F.2d at Rosales, edgment (citing force of law. People v. 68 Cal.2d 299, 1, (1968).). Cal.Rptr. 437 P.2d 489 II support In of its analysis well-reasoned Reyes, Supreme conclusions, the California and logical Court the California Su authoritatively explained of a preme status respected drew from and parolee under law California and held that relevant federal constitutional law as artic involuntary search conditions are ulated Supreme “[w]hen Court. From properly imposed, suspicion Griffin, is the California court understood in longer prerequisite no conducting system connection its own subject’s person proper- search of the operation probation a”[s]tates of a 752, ty.” Cal.Rptr.2d system, 19 Cal.4th at at operation like its a ... prison 739, added). (emphasis presents 968 P.2d at 450 ... ‘special beyond needs’ nor ” justification The holding 748, court said of its mal law enforcement.... Id. at 736, ... duty protect Cal.Rptr.2d state has a “[t]he 968 P.2d at 447(quot public, importance 873-74, and the ing Griffin, [this 483 U.S. at 3164). justifies imposition of a interest] war- It then noted that “although ‘some 752, rantless search condition.” Id. at 80 question suspicion of individualized is usu Cal.Rptr.2d at 968 P.2d at 450. ally prerequisite to a constitutional “[bjecause seizure[,] society’s court held also that search or ... the Fourth parolee both in assuring imposes interest cor- Amendment no irreducible re “ rects his behavior and in protecting quirement suspicion’ its of such Id. at criminals, against dangerous citizens Cal.Rptr .2d at P.2d at condition, T.L.O., pursuant to a (quoting Jersey New suspicion, without reasonable ‘in- does not n. 83 L.Ed.2d (1985)). expectation priva- trude on a reasonable is, cy, expectation society Finally, surveyed the court the United ”

willing to recognize legitimate.’ Id. at “special States Court’s needs” Cal.Rptr.2d 968 P.2d at 449 cases. These cases involve hundreds of (citations omitted). thousands of American con- citizens never clear, however, crime,

The court made it respect that it victed of a and with to declaring open-sea- was not an unfettered suspicion whom no of criminal behavior existed, parolees. keeping prin- son on In subject the and who have become to permissible ciple degree carefully the of im- targeted narrowly and tailored parolee’s because, pingement privacy on a is “not giv- Fourth Amendment searches unlimited,” Wisconsin, totality v. 483 U.S. en the circum- relevant Griffin stances, 107 S.Ct. the searches when scrutinized (1987), Reyes the court established a through as the lens of the Fourth Amend- requirement of a condi- ment in are reasonable. With these cases mind, “arbitrary, tion search that it correctly must not be the court in concluded— capricious, harassing.” Reyes, my parolees view—that as a class are dif- surrounding the the circumstances have forfeited they ferent, and the and the nature of or seizure search parole search proper a challenge right the the nature of or seizure and search law enforcement designated by conducted Thus, ... itself.” search or seizure custo- in constructive still while authorities particular practice “is permissibility of a and their sentences out they serve dy as intrusion on the by balancing its judged society un- back into the transition make Amendment inter- individual’s Fourth Depart- control of regulatory der promotion legitimate against its ests ment Corrections. ... governmental interest.” cases, Ill strike this In most criminal we procedures in de- balance favor of City v. Ferguson According Clause of the by the scribed Warrant Charleston, 74 n. S.Ct. 532 U.S. Except in cer- Fourth Amendment.... (2001), the term L.Ed.2d 205 circumstances, a search tain well-defined ap- in and “special needs” used Griffin in a case is not reason- or seizure such in appearance made its first plied Reyes in pursuant accomplished it unless able jurisprudence Jus- Fourth Amendment upon proba- judicial warrant issued opinion in concurring tice Blackmun’s recognized ex- cause.... We have ble marijuana-yielding T.L.O., upheld a which rule, however, “when ceptions to officials of by school warrantless search needs, need ‘special beyond normal originally As purse. student’s high school enforcement, make the warrant for law pas- Blackmun explained by Justice imprac- probable-cause requirеment and Court, full by the adopted later sage “ ... faced with such ticable.’ When excep- creates an “special category needs” needs, special have not hesitated we warrant Fourth Amendment’s tion to the privacy and governmental balance under conducted requirement for searches practicality of the interests to assess the “beyond the nor- categorical circumstances require- cause probable warrant and that make mal need for law enforcement” particular contest. ments require- cause probable the warrant (citations 619, 109 S.Ct. 1402 omit- T.L.O., Id. at “impracticable.” ment ted). (Blackmun, J., concur- 351, 105 S.Ct. 733 circumstances, pri- where the

ring); Griffin, 483 In limited by implicated interests search vacy 3164. minimal, important are where give cases Subsequent Supreme Court furthered governmental interest how to deter- as to guidance us additional jeopardy placed intrusion would be safety search falls public mine whether a suspi- of individualized requirement category. “special into the needs” cion, despite be reasonable Ass’n, Executives’ Ry. Skinner v. Labor suspicion. the absence of such 103 L.Ed.2d 624, 109 Id. at (1989), said example, suspicionless approving case, warrantless companion its Both Skinner employ- of railroad testing blood and urine Union Von Treasury Employees Nat'l accidents, major train ees involved Raab, 656, 109 S.Ct. 489 U.S. (1989), the war- permits which pro- L.Ed.2d 685 does

[t]he Fourth Amendment seizures, testing of certain Customs but rantless urine all and scribe searches specific circum point that employees, What out is those are unreasonable.... stances, private em- public as versus reasonable, course, all of such “depends can and even extin- ployment, supervision diminish must address: whether the it- “ any privacy person interests that a guish parolees self of ‘special is a need’ of the might not in those circumstances other- state permitting degree of impingement expect enjoy. wise and See O’Connor upon privacy that would not be constitu- Ortega, 480 applied tional if public at large.” (1987) (“[T]he L.Ed.2d 714 reasonableness Here, too, Id. at 107 S.Ct. 3164. expectation privacy of an ... differ[s] answer is in the affirmative. As in the context....”). according to supervision case of probationers, supervision Finally, Reyes we learn from O’Lone v. Estate as described is de- Shabazz, (1) signed to assume that serves as (1987), prison regula- a period genuine rehabilitation and deferentially tions are treated more under reintegration society, into and as a the Fourth Amendment than other mea- device to see to it that community “the is Although parole sures. and restrictions [parolee’s] not harmed being strictly speaking prison conditions are not .” large Griffin, 483 U.S. at regulations, they are akin that category. recognized in connection Griffin “[rjecent probation with felons on re-

IV suggests that more super- intensive my survey “special From of these vision can reduce recidivism....” Id. I see cases, conclude, I needs” as did the Cali- no reason why this observation fail would Court, Supreme fornia they provide apply parolees. If it anything, has appropriate analyzing framework for applied even more force when to that class. issues this case. however, Most importantly, California’s

A. legislature definitively has come to the same conclusion regarding the need for The threshold question to be answered supervision: effective is operation whether California’s of its prisons parole system presents “spe- Legislature The finds and declares that cial Supreme needs” as defined period immediately incar- following question Court. This has authoritatively ceration critical to successful reinte- been answered: it does. The source of gration society of the offender into Griffin, this answer is on which the Cali- positive citizenship. It is in in- fornia Court relied: public safety terest of for the state to operation A probation sys- State’s of a provide supervision for the of and sur- tem, school, operation gov- like its of ‍‌​‌‌‌‌​​​‌​‌​‌​​‌‌​‌‌‌‌‌​‌‌‌‌‌‌‌​​​‌​​​​​​​​​‌‌​‍a parolees, judi- veillance of including the ernment prison, supervi- office or or its actions, cious use of revocation and to a regulated industry, sion of likewise educational, vocational, provide family presents “special beyond needs” normal personal counseling necessary to as- depar- law enforcement that justify parolees in sist the transition between tures from proba- the usual warrant and imprisonment discharge. A sen- requirements. ble-cause pursuant tence to Section 1168 or 1170 873-74, 107 S.Ct. 3164. period parole, shall include a unless waived, provided this section. B. 3000(a)(1). § Cal. legisla- answers —albeit in the context of Pen.Code Griffin probation question searches —the next implemented finding we ture then parole. of Id. a violation or for technical previously quoted regulations

statutes Policy Re- to the California According parole. govern Center, paroled of the state’s “70% search in Ew- reminded us Supreme Court months —the within 18 felons reoffend longstanding a courts have ing that federal nation.” rate in the highest recidivism legislatures to deferring state tradition of Petersilia, Prisoner Challenges Joan important implementing making and in California, Parole in Reentry and relating to criminals decisions policy (June 2000).2 Rich- Crawford and CPRC — -, U.S. public safety. of the State’s Davis are two ard Allen said, 108. The 155 L.Ed.2d who reoffended. paroled felons Legislature enacted the California When continuing pattern of a similar law, judg- We find it made three strikes look at criminality by parolees when we safety public protecting ment Between 1986 and statistics. who Federal incapacitating criminals requires 1994, 215,263 released on prisoners were at least already been convicted have Justice, Dept. of parole. U.S. Nothing federal or violent crime. serious one Statistics, Bureau Justice prohibits Cali- Amendment Eighth Offenders Prison, 1986-1987 to Federal Returning To the making that choice. fornia from number, 33,855 (Sept.2000). Of this our cases establish contrary, prison within three to deterring were returned a valid interest “States 13,000 which were for years, almost criminals.” habitual segregating new violent offenses. the commission of Raley, Parke (1992).... report, to a recent “According [more] Id. 517, 121 L.Ed.2d in approximately percent of former a stretch at all to be Id. It does not seem prisons were from state mates released the rational deci- reasoning to apply new charged at least one ‘serious’ subject legislature of California’s sion re years three of their crime within mandatory condi- parolees all — -, Ewing, U.S. lease.” tions. (referencing 155 L.Ed.2d challenge Cali- daunting How Justice, Bureau of Justice Sta Dept. parolees, supervising adequately fornia Levin, tistics, Special Langan P. & D. parolees present to dangers and what do Prisoners Re Report: Recidivism of abiding people de- society from which law (June 2002)). leased in P.1 to the au- protection? According serve nature up pressing the size and To sum Journal, Au- as of thoritative California report I from problem, of this borrow 158,177 inmates gust California had Institute, Policy from the Urban Justice Jeremy and Sarah prisons. Travis its Center: Lawrence, Experi- Parole California’s 2002). 600,000 ment, than individu- year, This more (Aug popula- Of that Cal. J. prisons— and federal als will leave state tion, 117 inmates were released 1,600 many as left day, four times as Sadly, of that parole during year. Id. gov- 90,000 prison years ago. The federal prison, ei- figure, were returned recently announced award crime ernment following ther of a new conviction Here, Stevens, partial parole searches are at least although con- Scalia and Justices Skinner, danger, demon- as this case curring solution in the result in dissented bank they strates. A search took armed They Von because could not Raab. did so Diego put of San robber the streets problem be solved off find a real that would belongs. employees. him where he testing urine of Customs service help million in grants states over 600 crimes before he reached age $100 design strategies improve new out- of twenty. report Their continues: prisoners comes for A returning home. We can cite many comparable figures number of corrections administrators from the histories of others with whom challenge have embraced the of engag- we have worked. One man committed ing community groups in supervising the approximately rapes before being reentry. professionals, Public health arrested and charged rape. Anoth- development experts, workforce housing er snatched about purses in one advocates, providers, civil rights po- year, more than day; one a he was not lice all officials have focused attention on arrested for of these. Another mo- challenges opportunities pre- 1,000 lested about per children year by prisoners sented 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 for one. yond the Prison The Gates: State Pa- Id. at 221-225. (Nov.2002). America, role in According opin- Court’s In their ground-breaking multi-volume Ewing, ion in study by the Sacramento work, Personality, The Criminal doctors Bee of 223 habitual criminal offenders in Samuel Yochelson and Stanton Samenow they California found that aggre- had an give society us a vivid idea of what up 1,165 gate prior felonies, an average of 5 against dealing with hardcore criminals apiece. parolees such as Crawford. In this work, eye-opening which from fif- resulted prior The convictions included 322 years research, teen of concentrated burglaries. robberies and 262 About 84 report doctors on the incidence of crime percent of the 233 three strikes offend- by subjects they committed studied. ers had been convicted of at least one tell us that each doctors of these men all, they violent crime. respon- were they with whom worked having “admits to homicides, for attempted sible slay- committed enough spend crimes to over ings, and 91 sexual assaults and child 1,500 years jail if he were convicted for molestations. all of them.” 1 Samuel Yochelson and — U.S. -, Ewing, Samenow, Stanton The Criminal Person- L.Ed.2d 108. ality 221. The doctors continue: “If we information, I deduce from this as well were to calculate total number of as from legislative findings, California’s crimes committed all the men with that the control supervision parol worked, whom we have it would be astro- they ees as reintegrate society into in However, nomic. represented is not volves arena far different from the in crime If judge statistics.... one were to needs of “normal” law Pa enforcement. records, police official he would be to- rolees, like drunk highways, drivers on our tally mislead about the extent of criminal group are a discrete are demonstra activity.” point, Id. To make this the doc- ble menace to the safety of the communi arrayed startling tors activity criminal representative they discharged. of their three ties into which are subjects. See Sitz, 64,000 crimes, Dept. The first had committed Mich. State Police v. but apprehended only seven times. Id. at 222. U.S. 110 L.Ed.2d (1990) (“No 200,000 responsible The second was seriously dispute one can crimes. Id. at 223. The third magnitude driving admitted of the drunken special I it clear that the lenge, in eradicat think is interest the States’

problem or make it.”). parole system have demonstrated needs of California’s Parolees ing I capac impracticable. conduct a requirement criminal the warrant adjudicated their crimes seri given to commit conclude all the relevant willingness also ity and circumstances, liberty. of deprive parol- them California’s facts and enough ous serving their yet eminently finished They not search conditions are reason- ee they do in connection with which previously described sentences able. The statistics of innocence. enjoy presumption a not doubt that crime leave no room for Moreover, while collective behavior their huge problem a in California parolees is truth of the demonstrates the parole on attention and government that demands pre is the best past behavior axiom look no further than action—one must Thus, I con future behavior. of dictor Richard Allen Davis. As in Crawford and of the members supervision that the clude probation ap- searches the case of the “spe a rationally group identified is of this proved Griffin, requirement in a warrant that transcends the of California cial need” parole system of would interfere with the normal, everyday enforcement scope of law supervision, “setting up magistrate rath- and foremost Parole is first concerns. parole agent] judge as the of er than [the controlling people supervising and about supervision parolee] re- [the how close propensity have demonstrated who 107 S.Ct. 3164. See quires.” Id. for whom the State still the law and break Latta, (dismissing at 251-52 also to constrain and to responsibility has a in requirement the warrant this context as safety. public in connection with mentor unreasonable). addition, delay inher- “Megan’s of Law” Like Alaska’s version (1) obtaining ent in a warrant would ham- of sex offenders involving registration responses to evidence of miscon- per quick publication of information about and the duct, and reduce the deterrent effect of Internet, legislation approved them on the Furthermore, the rules the conditions. Id. Doe, Supreme Court Smith by the normally pertain quantity U.S. -, 155 L.Ed.2d quality of information needed to secure (2003), purpose puni here is not with the warrant are at odds essence tive, government state in the but to enable parole system. Again, of as in needs regulatory context of a 4135 scheme ... probation, agency the case of “The -, public safety. enhance Id. at proceed on of must be able to the basis its (“As the [Ninth Circuit] S.Ct. 1140 parolee], experience [the entire Appeals acknowledged, the Act has a probabilities light assess of its legitimate nonpunitive purpose ‘public life, character, knowledge of his and cir- by alerting the safety’ which is advanced cumstances.” Id. at 107 S.Ct. 3164. public to the risk of sex offenders their Supreme Although the Court has ”). community.’ question plenary reached the of whether a C. applicable parolee search condition to a law so under California diminishes question posed by is The third Griffin “ persons expectation privacy prop- that a ‘special whether the needs’ its “reasonable,” er condition search is system justify regula- [California’s] Knights supports its decision Cali- interpreted by tion as it has been state fornia Court’s conclusion. The officials and court.” 483 corrections state Knights “[t]he Court reminded us that Reyes U.S. at 107 S.Ct. 3164. With mind the chal- touchstone of the Fourth Amendment magnitude as well as the reasonableness, Latta, (“In and the reasonableness of also 521 F.2d at 252 given ‘by assessing, case, a search is determined what is done be so unreasonable hand, degree one to which it in- require as to that the search be held to and, privacy upon trudes an individual’s on violate the Fourth Amendment. For ex- other, degree to which it is needed ample, harassment or intimidation is no promotion legitimate govern- for the part of a job.”). officer’s ” 118-19, 122 mental interests.’ 534 U.S. at Furthermore, the Due Process Clause 587(quoting Wyoming Houghton, S.Ct. v. provides protection additional to parolees 295, 300, 1297, 526 U.S. 119 S.Ct. subject parole to condition searches. (1999)). In concluding L.Ed.2d 408 Should the manner in which such a search probationers expectation a reduced of (1) was conducted “shock the conscience” privacy, the Court relied on the need to community’s of our sense of “decency and “protect[ society from future criminal ] fairness,” (2) or was so “brutal” and “offen 119, violations.” Id. at 122 S.Ct. 587. comport sive” that it did not with tradition greater This observation has even force play al ideas of fair decency, and then both applied parolees. when exclusionary rule as well as 42 U.S.C. Moreover, postulates that al Griffin § provide 1983 would remedy both though parolee’s of right privacy is defi redress. California, See Rochin v. nitely compared pub diminished as 205, U.S. 72 S.Ct. 96 L.Ed. 183 lic at large, “permissible degree” of (1952). Just as by physi the extraction impingement such “is not unlimited.” cian of a sample blood from an unconscious 875, 107 483 U.S. S.Ct. 3164. As Griffin suspected driver of vehicular manslaugh it, I adequately see the law California ter —or from a railroad worker or a Cus satisfies this check. When read toms official'—does not' offend these con light of Reyes, parole California’s Abram, cepts, Breithaupt v. wholly parol conditions do not eliminate 435-36, (1957), 77 S.Ct. L.Ed.2d 448 expectation ee’s or right privacy. of To neither parole does a California condition contrary, they only narrowly authorize by Reyes. search bridled tailored searches class of authorized rationally officials related to the individu good example This case is a of a search parole al’s importantly, status. More ac arbitrary, capricious, that was not not cording Reyes, parolee in California not conducted to harass or to intimidate. retains a right privacy against govern of One of Crawford’s fellow armed bank rob- ment arbitrary, searches that are a right accomplice. bers identified him as an privacy against capri searches that are search and the contact with Crawford that cious, right privacy and a against followed from that information was carried harassing. searches that are These re scope out well within the of that informa- meaningful, they repre strictions are tion jurisdiction as well as within the sent workable standards state and federal investigate bank robberies of the authori- apply every day courts in assessing the who ties conducted the search with Craw- propriety variety of a of government ac ford’s officer’s consent. This was qualifications accomplish tions. These police put excellent work that a dangerous goal constitutional keeping belonged, criminal where he not an unrea- scope searches within the of reason de authority. sonable abuse of manded by mandating Constitution justifiably Honor, the search be within the MS. HOBSON: You I could purpose represent conditions at issue. going See that there was to be a D. Ra- identify going to who was

witness Crawford, masked and who was phyal comment: require Two recent cases in the fifth gunman as a gloves wearing Edmond, U.S. v. City Indianapolis gun- as the was identified robbery. He 447, 148 L.Ed.2d 333 lobby down. holding man Ferguson, Edmond, In the Su L.Ed.2d counsel): (defense If MR. McCABE “special to confer preme declined White, who is Juju witness is Mr. city-operated vehicle needs” status custody, that’s years doing 32 purpose checkpoints established in the world information exactly the best drugs. distin interdicting unlawful based prosecution criminal mount a checkpoint initiative guishing this vehicle upon. in Delaware approved from others But I will as- Okay. Prouse, THE COURT: (1979); this that even v. Mar purposes of United States for L.Ed.2d 660

sume 3074, tinez-Fuerte, 543, 96 S.Ct. he was U.S. information that though they had (1976); Sitz, 496 U.S. and 49 L.Ed.2d robbery, they in the fifth gunman the 412, 2481, 444, L.Ed.2d the him, S.Ct. arrest probable cause to didn’t pur primary that “the observed that suf- Is he wasn’t arrested. because under checkpoint program pose” of the ficient? evidence of ordi scrutiny “was to detect Yes, Your Honor. MR. McCABE: Edmond, 531 nary wrongdoing.” criminal Thus, 37, 447. at 121 S.Ct. U.S. demonstrates, defense passage As this qualify did not as checkpoint program proposition contest the counsel did not beyond scope the of normal “special need” law legitimate for approach FBI’s the 47-48, 121 S.Ct. Id. at law enforcement. that all Latta held purposes. enforcement Ferguson, in the Court Similarly, 447. condition required to make that is police, hospital, disapproved of combined the belief on lawful is a reasonable patients public policy pregnant to test and that the search is part of enforcement law drug use and to turn over for evidence of be based on a necessary. “It even police prosecu results the positive ‘hunch,’ he had learned arising from what 69-73, 85-86, 121 S.Ct. tion. 532 U.S. at atti- behavior and or observed about the determi The for the Court’s basis at 250. parolee.” tude of the Id. pro purpose that the of this nation was view, holding in this my majority’s gen “indistinguishable from the gram was opinion our is irreconcilable case 81, Id. at control.” eral interest crime Latta. Edmond, 531 U.S. 1281 (quoting S.Ct. 447). Thus, 44, 121 particulars seriously anyone not result at S.Ct. I doubt that satisfy did not policy of this Court’s at facts of this case who looks oriented test. here as evidence would see what occurred inappro- police

of “a state.” To use goals Although one of only serves to priate unhelpful and label crime, I see certainly prevent is to system else- correctly it when it is used degrade as different and supervision parolees investigated to have Crawford where. Not parameters distinguishable from First, robbers identi- one of his fellow in both after bank law general enforcement. groups at Ferguson, him been a dereliction of would have Edmond fied were aimed which the flawed initiatives duty. sworn comprised ordinary going prevent citizens inventory); were loss of Vernonia business, daily people Acton, 646, about their cloaked Dist. Sch. 515 U.S. 47J innocence, presumption 2386, (1995) with the 132 L.Ed.2d 564 (drug people certainly custody serving not in school); Sitz, tests of athletes at 496 U.S. prison 444, out sentences. This is a cohort at 2481, 110 S.Ct. 110 L.Ed.2d 412 (high liberty subject special full and not su- Skinner, way sobriety checkpoints); state, pervision by impor- and most 602, 109 S.Ct. 103 L.Ed.2d 639 tantly, a class not “transition between (railroad employees’ drug work); tests imprisonment discharge.” Cal. Pen. Raab, Von 489 U.S. 109 S.Ct. 3000(a)(1). § Code (Customs 103 L.Ed.2d 685 employees’ work); drug tests New York v. Burger, Second, the administration California 96 L.Ed.2d parole system of its it renders different (1987) (purely administrative search of from normal law enforcement. As we rec- business); Alioto, regulated McMorris v. Latta, ognized (9th Cir.1978) 567 F.2d 897 (purely admin To the extent that there is a “law en- in public istrative search buildings); Unit emphasis, it forcement” is to deter the Martinez-Fuerte, ed States v. parolee returning from to a life of “When, here, parolee crime.... (fixed search). checkpoint routine border parole, violation of his majority acknowledges but then side agents’ higher duty protect is to steps these cases with a false distinction parole system protect public.” and to that a precept overlooks fundamental However, parole sys- this feature of the the Fourth Amendment. Judge Reinhardt tem, is, important it predom- does not claims that none of these cases involve inate .... The fact that crimes are de- searches of homes. Judge What Rein tected during the administration of the hardt proclaims pro misses when he “the parole system does not convert what is tected status of the home” is long- essentially supervisory regulatory a principle established that “the Fourth program subterfuge into a criminal protects people, Amendment places.” not investigations. States, Katz v. United (citations omitted). Id. at 249 (1967). 507, 19 L.Ed.2d 576 Accordingly, Knights pro- Griffin case, controlling authority vide the for this Katz, In rejected the Court the idea Ferguson. not Edmond and “concept there is such a as a ‘constitution- ally protected area’ that can a serve as

E. talismanic to every solution Fourth Literally problem.” hundreds of thousands of sus- Amendment Id. at n. picion-free, fact, conviction-free citizens of our 507. In although S.Ct. rec- subject nation have been made to ognized private limited that a home has been ac- “special needs” knowledged searches because of a de- to be a constitutionally pro- area, transcending monstrable need the bound- tected the Court against cautioned a aries of normal law rigid analytical enforcement. See Bd. principle. reliance on this Earls, Educ. v. Saying S.Ct. that the “effort to decide whether ‘area,’ (drug given tests or not a viewed the ab- school); stract, for extracurriculars ‘constitutionally protected’ United is de- Gonzalez, (9th States v. 300 F.3d 1048 problem present- flects attention from the Cir.2002) (searches employee backpacks ined this case.” Id. at Cir.1997) (con- (9th goire, 124 F.3d the constitutional acknowledge certainly

I right priva- have no sex offenders person a in victed afforded to usually protection hand, requiring the state from cy preventing the other home. On person’s to subject be as such and register Fourth them to mind that idea with residences). of their community notification places, not protects people, Amendment encounter, approved by status, purpose of the I The different Crawford’s given agent and well-within far his lair give to appropriate it is believe condi- applicable parole ordinarily scope of the than it would protection less annoy, but to tions, or to to harass person status of It is the attain. robbery where Craw- per- armed investigate to which privacy determines co-conspira- identified resi- ford had been person’s in that even is entitled son a firearm. participant who carried this idea. tor as supports Knights fully dence. Moreover, seem be fluids would bodily sum, I irrelevant. is Attenuation homes, has the Court par conviction. would affirm Crawford’s bodily fluid including problem had no catego- needs” “special VI searches within ry. in this case majority opinion What the simply free- recognize serious than does is far more important also

What in- classes robber from federal dangerous bank ing cases is from these un- effectively holds privacy opinion their prison. not find in them did volved aspect of Cal- eliminated,” just altered dis- a fundamental constitutional “wholly rights laws. parole system and rationally statutory accommodate ifornia’s cretely and opin- exactly point from the quote That is I to make public needs. compelling vis рarolees done has ion: what California parole searches. Moreover,

vis con- mandatory parole if the blanket deemed to be a valid dition were

y consent, for protection any constitutional illusory— be rendered parolees would above, I that conclude all of the From parolees to every could force its state law enforcement to statements of waiver as a condition sign the blanket any illegal of not the fruit officials were constitutional parole, every parolee’s I also that conclude or detention. search thereby instantly vanish. rights would was, required of the officers the conduct Indeed, theory, government’s the under Latta, under demonstrably reasonable by all be to waive parolees all could forced the circumstances.” “totality the including right the rights, constitutional 587; 118, 122 S.Ct. Knights, proceed- in process revocation to due 250(A Latta, parolee and his F.2d at to trial on right the ings, or even by the subject to home are during allegedly offense committed new reasonably be- officer the officer when parol- period. We hold the necessary in is lieves such search as a forced may generally not be ees duties). Rise See also performance of his to condition their threshold Cir.1995) (9th Oregon, 59 F.3d 1556 their by blanket waiver surrender convicted requiring felons (Oregon statute rights, including Fourth Amendment offenses to specific or sexual of murder Knights. recognized by recently those so DNA bank sample submit for is blood hopelessly passage is though Even does not violate and therefore one of viewing this issue as Amendment); in v. Gre- confused Russell the Fourth (b) waivers, ill Challenge consent and forced it blows an Constitutional to just party wind for California. We State If a questions Statute. open gates constitutionality thrown the habeas to a flood of aof statute of a State petitions, monitoring, proceeding disabled electronic which that State or its banks, officer, crippled agency, employee DNA and who what or knows is not a party an official Only capacity, ques- else. the Richard Allen Davises tioning party give will must written unsettling underworld herald this notice to the circuit immediately upon clerk result. filing of record or as soon as the opinion Not wrong is this on the question is raised the court ap- analysis track in its and dead wrong on the peals. The clerk must then certify that merits, it accomplished but has this drastic fact attorney general of the State. representatives result in a case where all respect my With colleagues, their Attorney the California Gеneral have not studied refusal to my request accede to appeared represent or been heard from to allow appear California to in this case be- tell, I State’s interests. As far as can opinion fore we issue our distressing. is they do not even know of the existence of spirit We have violated the by of the law Instead, rely this case. we have had to on excluding the sovereign entity most affect- prosecutors federal inexplicably who do ed this decision. As the appear grasp not the essence of the said Arizonans En- for Official least, relevant At very California law. Arizona, glish v. respect federal law and com- California (1997), “the Attor- pels us to invite Attorney California’s Gen- had, ney minimum, General at a a right case, and, eral to intervene in this at a by Congress, right present secured minimum, pursuant to file an amicus brief argument appeal’ on question augment to F.R.A.P. 29 and to the record ” constitutionality.’ damage before we inflict such on Califor- I hope would get California would nia law and overturn will of Legisla- its wind panel of what this has done. The ture as construed the California Su- Attorneys United States Office should no- 2403(b) preme § Court. U.S.C. reads: tify counterparts its state of this decision (b) action, suit, In any proceeding Thus, delay. without I file this dissent in a court of the United States to which end, hope with the that this but officer, any agency, State or or em- beginning of the proper resolution of ployee party, thereof is not a wherein this appeal. constitutionality any of statute of that affecting public State interest is CONCLUSION drawn in question, certify the court shall legislative California’s decision to sub- attorney general such fact to the of the ject prison parolees stringent supervi- to State, permit and shall in- State to including patently sion searches was rea- evidence, presentation tervene for if ‍‌​‌‌‌‌​​​‌​‌​‌​​‌‌​‌‌‌‌‌​‌‌‌‌‌‌‌​​​‌​​​​​​​​​‌‌​‍sonable. As limited the California evidence is otherwise in admissible in Reyes, and the Due case, and for on argument question Clause, Process these searches conform of constitutionality. to the demands of the Fourth Amend- Moreover, Moreover, 44 Rule of the Federal Rules of ment. California’s decision Appellate recognize privacy right Procedure contains the same re- not to on the quirement: part of convicted felons to defeat these

73 pa- If is parole. he released clearly gible not for arbi- rational is searches role, to ex- harassing, and not seem reasonable not it does capricious, not trary, did subjectively until Crawford from searches punitive. empt him not in privacy expectation of he has bro- suspicion not have has someone objective ex- residence, any such holds true again. The same ken the law might have any parolee pectation imprisoned felons all three strikes for society is “one not be had would California. as reasonable.” recognize prepared if the would think that Constitution One States, 334, 338, 529 U.S. v. Bond United criminals, for career life sentences permits (2000) 146 L.Ed.2d 120 S.Ct. “Megan’s posting Ewing, and the Law” see Maryland, v. (quoting Smith ad- neighborhood on the Internet 61 L.Ed.2d 735, 99 S.Ct. offenders, see registered sex (1979)). by the Su- dresses reiterated The test Carter, Doe, -, Minnesota Smith v. preme Court (2003), 142 L.Ed.2d not it would L.Ed.2d to claim the that “in order is keep tight for a state to be unreasonable Amendment, a Fourth protection parolees. rein on per- that he must demonstrate defendant affirm Crawford’s conviction I would privacy expectation sonally has an sentence.3 searched, his expecta- and that place ... rec- that has source ... is one tion by society.” Id. permitted

ognized and case at 470. Crawford’s

fails this test. and killed Senator shot

Sirhan Sirhan while Senator Kennedy F.

Robert the Presi- a candidate for

Kennedy was Sirhan was the United States.

dency of serving a life and is of murder

convicted He is eli- prison in California.

sentence bag, a tam- expec- your which was resealed with change. So do our Times writing opin- per-evident seal. privacy. While tations ion, open to work. to San If TSA screener unable I traveled Francisco hotel, opened my my bag inspection I it was your because I arrived When locked, piece paper that was forced and found the screener been suitcase my in Boise. closed suitcase your bag. when I TSA sin- there to break the locks on this, The paper regrets having reads: to do and has cerely your bag comple- upon care reseal taken INSPEC- OF BAGGAGE NOTIFICATION However, inspection. TSA is not tion of TION resulting damage your locks liable for your passenger, protect you and fellow To security precaution. necessary from this Security Transportation Administration post September appear would It 2001, (TSA) inspect all required law to travel air are now of us who all part process, baggage. As checked search, "special even subject needs” physically bags opened and in- are some wholly we Does this mean Crawford. bag among those select- spected. You right privacy? Of not. It lost course our inspection. physical ed for protect from real means ourselves bag inspection, your and its During the adopt proce- danger, pro- we need to have been searched contents security against our dures will increase completion At the items. hibited returned to crime. inspection, contents were

Case Details

Case Name: United States v. Raphyal Crawford

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 21, 2003

Citation: 323 F.3d 700

Docket Number: 01-50633

Court Abbreviation: 9th Cir.