Thursday, March 6, 2003
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Court Limits ‘Fourth Waiver’ Home Searches of Parolees
By ROBERT GREENE, Associate Editor
A parolee’s “Fourth Waiver”—a parole condition purporting to waive the Fourth Amendment right against unreasonable searches and seizures—does not permit government agents to enter the parolee’s home without any reasonable suspicion they will find evidence of a crime, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
In a 2-1 decision, the court threw out a San Diego parolee’s bank robbery conviction because it was based on a confession that came only after FBI agents staged a search that they correctly thought they could use to get the parolee to talk about his role in an unsolved crime.
The agents held Raphyal Crawford in his own home for nearly an hour, then took him to their office—although they told him he could leave at any time—and questioned him until he confessed to a two-year-old robbery.
Courts have long held that parolees have a diminished expectation of privacy and that agents can search their homes without probable cause.
But Judge Stephen Reinhardt, who was joined by Judge A. Wallace Tashima, said there was a big difference between a reduced expectation of privacy and “an extinguished expectation” of privacy.
Citing the California Penal Code, Reinhardt called parole “an interim state between custody and freedom, ‘critical to successful reintegration of the offender into society and to positive citizenship.’”
“It would be unreasonable to expect a parolee to negotiate the transition into the life of a normal citizen without some measure of the privacy that normal citizens take for granted,” the judge said.
The opinion was met with a harshly worded dissent in which Judge Stephen Trott called for permitting searches of parolee homes so long as they are not “arbitrary, capricious, or harassing.”
In calling for Crawford’s statement to be admissible and his conviction to be upheld, Trott invoked the name not of the defendant but of Richard Allen Davis, the paroled kidnapper who sexually assaulted and killed 12-year-old Polly Klass in 1993. The Klass killing prompted California voters to adopt the Three Strikes Law, an anti-recidivism statute that has become a model for other states and for the federal government.
“Although it is customary and generally appropriate to decide these issues in abstract and legal terms, I find it useful when deciding whether something is ‘unreasonable’ to have a broader understanding of it,” Trott, a former prosecutor in the Los Angeles District Attorney’s Office, the U.S. Attorney’s Office for the Central District of California and the U.S. Attorney General’s Office, said in a footnote. “Otherwise, one loses the human element and all the ramifications of the decision. I apologize to my colleagues if they find this offensive. I freely admit this tendency may come from twenty-three years of talking to people whose lives were permanently ruined by violent and heartless felons.”
While he was on federal parole from an 87-month sentence for conspiracy to manufacture and distribute cocaine base, Crawford was arrested for, charged with and convicted of possession of a firearm by a felon and possession of marijuana for sale. It was when he was on parole for this crime that FBI Special Agent David Bowdich learned that he could have information about a 1998 Bank of America robbery.
Bowdich also learned that Crawford had signed a “Fourth Waiver” that subjected him to search “at any time of day or night, with or without a search warrant, and with or without cause.”
Bowdich and three other law enforcement officers went to Crawford’s house and entered his room with their weapons drawn. They moved Crawford to the living room and had him sit on the couch under “investigatory detention” for about 50 minutes.
The agents found no evidence of criminal activity, and they did not expect to, but they used the time to start talking with Crawford and to try to put him at ease in the hope that he would open up about the robbery. They then escorted him, with an officer on each side, into their car and drove him to headquarters where, before long, he confessed to taking part in the bank job.
The district court upheld the admissibility of the confession.
Reinhardt said the Supreme Court always has considered the home sacrosanct, even in the context of state “special needs” that can overcome the privacy right in certain cases.
Some individualized suspicion was required to enter Crawford’s home, the judge said, since proceeding without it would offend the protected status of the home as well as the bar against suspicionless searches for evidence of criminal conduct.
“Neither the Supreme Court nor this court has ever approved a suspicionless search of a home for a law enforcement purpose,” Reinhardt said. “To do so here would represent a substantial incursion into previously inviolate constitutional territory.”
Reinhardt rejected the “arbitrary, capricious, or harassing” standard suggested by Trott because, he said, his colleague got it from a California Supreme Court ruling that held parole virtually indistinguishable from imprisonment, in which there are no privacy rights. California law does not apply in the Fourth Amendment contest, he said.
“A state’s assertion that it maintains legal custody of its parolees thus has limited impact on Fourth Amendment protections,” Reinhardt said in a footnote. “The dissent’s failure to recognize this shows only that our learned colleague has been bewitched by the California Penal Code and the California Supreme Court at the expense of the supremacy of the federal Constitution. The misguided urge to treat California’s assertion of legal custody as dispositive, and on that basis to equate parole with prison, reappears throughout the dissent.”
Trott took exception to what he called Reinhardt’s “conceptual mistake” to consider imposition of conditions on a parolee as a “waiver” of rights.
In California, Trott said, Fourth Waivers apply to probationers, while parole conditions are not a contract but a list of the specific rules governing parolees whether or not the parolee has signed the agreement.
The distinction was clear, he said, To anyone familiar with California criminal law and procedure, but it apparently went over the heads of the federal authorities, and the prosecutor’s mistake has fouled up the resolution of this case ever since.”
Even if the federal prosecutors suffered from “disorientation” on the issue of a Fourth Waiver, he said, the court should not.
“Scotch tape is not Scotch liquor just because the federal government says it is,” he said.
The majority ruling throws open the “habeas gates to a flood of petitions,” he said, adding:
“Only the Richard Allen Davises of the underworld will herald this unsettling result.”
The case is United States v. Crawford, 01-50633.
Copyright 2003, Metropolitan News Company