U.S. v. Crawford, 323 F.3d 700; 2003 U.S. App LEXIS 3891

The United States Court of Appeals for the Ninth Circuit, on March 5, 2003, wrote new law governing parole and probation searches. The Court concluded that a parolee's expectation of privacy is diminished, but not extinguished. This holding is in direct conflict with California court decisions (including the California Supreme Court) holding that parolees and probationers expectations of privacy are extinguished. The Ninth Circuit specifically held that "reasonable suspicion is the appropriate threshold for parole and probation searches." U.S. v. Crawford (2003) 2003 U.S. App Lexis 3891.

Crawford was released on parole subject to a mandatory condition that he submit to warrantless searches of his person and/or property, with or without cause. This waiver is commonly referred to as a "fourth waiver" (ie... a standard condition of parole whereby the parolee waives his or her 4^th Amendment protections from unreasonable search and seizure). FBI agents subsequently entered Crawford's home and conducted a parole search, at which time Crawford confessed to participating in a robbery. Crawford subsequently petitioned the trial court to suppress his statements claiming a violation of his Fourth Amendment protection from unreasonable searches and seizures.

The Government responded by claiming that pursuant to the "fourth waiver" they were entitled to conduct such a warrantless search and, Crawford had waived his expectation of privacy. The Ninth Circuit rejected this argument finding that, " by virtue of a signature on a compulsory parole condition, a parolee does not, in advance and in blanket fashion, consent to a general waiver of his rights under the Fourth Amendment."(Emphasis added.)

The Ninth Circuit rejected opinions from the California courts finding that parolees enjoyed no reasonable expectation of privacy, by specifically finding that "federal law - not California law- governs the extent of the protection that the Fourth Amendment provides."

HOW THIS EFFECTS YOUR AGENCY

Officers must have an individualized reasonable suspicion to conduct warrantless parole and/or probation searches, regardless of whether a parolee has signed a "fourth waiver" as a condition to his or her parole. The Ninth Circuit gave the following guidance regarding what constitutes reasonable suspicion: "the degree of individualized suspicion required of a search is a determination of when there is a sufficiently high probability that criminal conduct is occurring to make the intrusion on the individual's privacy interest reasonable." Although such evidence can still be used in a state criminal prosecution against the suspect, a suspicionless search can subject the officer and department to potential civil liability.