----- Original Message ----- 
From: H Jones 
Sent: Thursday, March 06, 2003 9:50 PM
Subject: [patrickcrusade] Court Curbs Searches of Parolees' Homes

Court Curbs Searches of Parolees' Homes
Police must have a reasonable suspicion even though waivers are a condition of release.
By Henry Weinstein
Times Staff Writer

March 6, 2003

A federal appeals court, sharply divided over what society can do to protect itself against crime, ruled Wednesday that police searches of thousands of California parolees are unconstitutional.

By a 2-1 vote, the U.S. 9th Circuit Court of Appeals in San Francisco barred searches of parolees' homes unless there is a reasonable suspicion of criminal activity.

The case, which focused on waivers that parolees sign as a condition of release from prison, led to a caustic exchange of opinions between two of the court's most outspoken judges, reflecting sharp differences on the proper balance of the safety of society and individual rights.

The defendant in the case, Raphyal Crawford, had been convicted of a felony and released on parole. As a condition of his parole, he agreed to allow police to conduct searches of his home "at any time of the day or night, with or without a search warrant, and with or without cause." Waivers of that sort are widely required
of parolees in California.

That practice violated Crawford's rights under the Constitution, Judge Stephen Reinhardt wrote for the majority. The government cannot require a person to give up basic rights as a condition of being paroled, he said.

Judge Stephen Trott sharply disagreed, and predicted dire consequences. Trott invoked the specter of Richard Allen Davis, who three months after being released on parole, abducted, sexually assaulted and strangled 12-year-old Polly Klaas in 1993.

"The question in this case is whether it is reasonable in constitutional terms for California to subject convicted criminals like Richard Allen Davis while on parole to searches conducted by authorized law enforcement officers, so long as those searches are not arbitrary, capricious, or harassing," Trott wrote, quoting the standard set out by the California Supreme Court.

"What the majority opinion in this case does is far more serious than simply freeing a dangerous bank robber from federal prison. The opinion effectively holds unconstitutional a fundamental aspect of California's statutory parole system and laws," Trott wrote.

Reinhardt retorted that the Constitution "balances liberty and security, and preserves to all individuals certain guarantees against the existence of a police state. We have sought to balance the relevant interests and thereby to honor our obligation to the Constitution. We very much doubt that what we have done will be understood or valued only by the Richard Allen Davises of the underworld."

He chastised Trott's invocation of Davis as the use of a "boogeyman wholly unconnected to the case at hand." Trott, in turn, harshly criticized Reinhardt for invoking the specter of a police state.

The case arose when FBI agents entered Crawford's home in San Diego to conduct a parole search July 27, 2000. The agents had received a tip that Crawford had participated in an unsolved 1998 bank robbery and hoped to persuade him to confess.

The agents admitted in court hearings held after the search that they did not expect to find evidence of the robbery or any other crime on the premises.

FBI Agent David Bowdich, one of the agents who interrogated Crawford, said at a subsequent hearing that it is a common practice for law enforcement officers to use parole waivers as a kind of tool to talk to a suspect about crimes. Bowdich had obtained permission from Crawford's parole officer to conduct a parole search of the residence where Crawford was living with his sister.

Eventually Crawford confessed that he had been a participant in the bank robbery. His attorney moved to suppress the statements he made to the FBI agents, but U.S. District Judge Irma E. Gonzalez denied the motion.

On appeal, Crawford's lawyers argued that the search violated the 4th Amendment.

The 9th Circuit majority -- Reinhardt and Judge A. Wallace Tashima -- acknowledged that a parolee has less of an expectation of privacy than other citizens. But a "reduced expectation of privacy is substantially different from an extinguished expectation of privacy," Reinhardt wrote. "The Supreme Court considers the home
sacrosanct, and permits government searches of the home only pursuant to enhanced procedural safeguards. Neither the Supreme Court nor this court has ever approved a suspicionless search of a home for a law enforcement purpose," Reinhardt wrote.

Reinhardt and Tashima also rejected the government's argument that Crawford had consented to the search by signing the waiver in order to gain parole.

"We hold that a compulsory parole condition may not serve as a consent to engage in otherwise unreasonable searches," the majority said.

In dissent, Trott noted that the U.S. Supreme Court recently has ruled that being a parolee gives a person a dramatically reduced expectation of privacy.

"Crawford had no subjective expectation of privacy," Trott wrote, noting that at a court hearing Crawford said, "I ... just took for granted that, you know, I'm on parole and I don't have no rights at all."

California must supervise the more than 100,000 parolees in the state, 70% of whom commit another offense within 18 months -- the highest rate in the nation, according to a study Trott cited.

Crawford's attorney, Michael J. McCabe of San Diego, said that if the decision stands, he expects that Crawford eventually will be released because his confession would be suppressed and the only witness against him has made contradictory statements.

Assistant U.S. Atty. David P. Curnow in San Diego said he was disappointed in the result and is considering asking the 9th Circuit to rehear the case with a larger panel. In his dissent Trott called for an appeal by the attorney general.