Tuesday, June 22, 2004

Ninth Circuit, Sitting En Banc, Overrules Panel on Parole Search

The Ninth U.S. Circuit Court of Appeals, sitting en banc, yesterday overruled a three-judge panel and affirmed a San Diego parolee’s bank robbery conviction.

The original panel had granted Raphyal Crawford a new trial on the ground that his conviction 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.

In a 2-1 decision, that panel said that a parole condition purporting to waive the Fourth Amendment right against unreasonable searches and seizures does not permit government agents to enter a parolee’s home without any reasonable suspicion they will find evidence of a crime.

But in an 8-3 ruling yesterday, the larger panel held that Crawford’s confession was properly admitted into evidence. The judges making up the majority split as to their rationale, with five judges—Stephen S. Trott,Diarmuid F. O’Scannlain, Andrew Kleinfeld, Richard Tallman, and Richard Clifton—concluding that the search was legal and three others—Susan Graber, Alex Kozinski, and Chief Judge Mary Schroeder—saying that the confession was not a product of the search and was admissible regardless of the search’s legality.

Graber, writing for the court, explained that even assuming that FBI agents acted illegally in entering Crawford’s home and holding him there for nearly an hour, the defendant acted voluntarily by accompanying the agents to their office and chatting for an hour even though they told him he could leave at any time.

Trott, the dissenter on the three-judge panel, agreed with Graber on that point but also argued in his five-judge concurrence that where state law permits a suspicionless parole search of a residence, there is no Fourth Amendment violation unless the search is arbitrary, capricious, or harassing.

Trott invoked the name 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.

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.

Judge William Fletcher dissented, along with Judges Harry Pregerson and A. Wallace Tashima. Tashima and Judge Stephen Reinhardt, who was not on the en banc panel, made up the original majority.

“Because Agent Bowdich and his fellow officers purposely, and successfully, used the illegal suspicionless search and accompanying detention...to produce Crawford’s confession, that confession should not have been admitted into evidence,” Fletcher argued.

The case is United States v. Crawford, 01-50633.

 

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