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Ninth Circuit: Before Conducting Warrantless Parole Search, Police Need Probable Cause to Believe Parolee Lives There

by John E. Dannenberg

The Ninth Circuit U.S. Court of Appeals has held that ?before conducting a warrantless search pursuant to a properly imposed parole condition, law enforcement officers must have probable cause to believe that the parolee resides at the house to be searched.? The court distinguished this from the separate (and unsettled) issue of whether those officers also needed particularized suspicion of wrongdoing before conducting such a search ? a question the U.S. Supreme Court had recently accepted on certiorari (Sampson v. California, 126 S.Ct. 34 (2005)).

Darla Motley was the girlfriend of parolee Janae Jamerson. When Jamerson, a Four Trey Crips gang member, was paroled on February 20, 1998, he moved in with Motley. On February 3, 1999, he was violated and taken back into custody. On March 18, 1999, a crime task force of Los Angeles police (LAPD), federal ATF and California parole agents group-searched ten residences in the crime-ridden Newton Street area of Los Angeles. They had Jamerson?s last listed address as Motley?s, and, notwithstanding that Jamerson was already in custody, hit Motley?s home.

The two ATF agents covered the back door while parole agent Guadalupe Sanchez and LAPD officer Gregory Kading knocked on the front door. When Motley answered, Kading said he had a warrant to search the residence (a lie). Motley told Kading that Jamerson was in custody; Kading replied that he had been released three days earlier (another lie). She told Kading that only she and her 5-week-old son lived there. The officers threatened to arrest Motley and to put the infant in protective custody if she didn?t let them in. Then, the officers drew their guns and entered, one bravely training his gun on the 5-week-old infant for twenty minutes while the others searched the house (?looking for Jamerson?). When the search party left, Motley called Jamerson?s parole agent, Ms. Smith, who informed Motley that she had not authorized the search and confirmed that he was still in custody.

Motley sued the officers under 42 U.S.C. § 1983 on behalf of herself and infant son, alleging that the officers had violated their Fourth Amendment and Equal Protection rights and had used excessive force, and were therefore liable under Monell v. Department of Social Services, 436 U.S. 658 (1978). The District Court (C.D. Cal.) granted the officers? motion for summary judgment, ruling that they were immune from suit. Motley appealed.

As a threshold matter, the Ninth Circuit noted that normally it would follow Saucier v. Katz, 533 U.S. 194 (2001) to screen an officer?s qualified immunity defense, to first determine if a constitutional right had in fact been violated, and only then look at whether that right was clearly established at the time of the alleged violation. But here, both parties agreed that rights had been violated, and the court was asked to entertain only the second Saucier prong. That second question, however (whether agents needed to know that the person sought actually lived at a residence before conducting a search), was inextricably intertwined with another question, i.e., whether such officers needed particularized suspicion of wrongdoing as well. (In this case the parties agreed there was none). Unfortunately, the latter question remained undecided pending the U.S. Supreme Court?s review in Sampson. Therefore, the Ninth Circuit elected not to make a sua sponte determination on the first Saucier prong (as case law normally required) before reaching the ?known residence? question.

The Ninth Circuit relied upon Fourth Amendment-based cases relating to probation search violations, from which it reasoned that ?requiring officers to have probable cause to believe that a parolee resides at a particular address prior to conducting a parole search protects the interests of third-parties.? Indeed, third-party Motley?s Fourth Amendment ?search and seizure? rights had plainly been trampled by the agents? sham ?search? for a person whom they already had in custody. Finding this repugnant to the Fourth Amendment, the court held that such searches are unconstitutional unless the officers have probable cause to believe that the parolee is a resident of the house to be searched.

But the officers insisted nonetheless that they did believe Jamerson lived with Motley. One defense an officer may raise is that competent sources, such as other law enforcement agencies, informed him that Jamerson lived there. The Ninth Circuit agreed with the district court that the officers? reliance upon their sources appeared objectively reasonable and taken in good faith, noting that the very term ?probable cause? deals with just that ? probabilities. Moreover, the officers were entitled to maintain their belief in Jamerson?s residing at Motley?s residence until they were presented with convincing information otherwise.

Having established that the officers did have probable cause to believe Jamerson lived with Motley, the appellate court then dealt with whether a search authorization must be pre-conditioned by a need for ?particularized suspicion of wrongdoing.? But Saucier requires that in order to hold the officers liable for lack of ?particularized suspicion of wrongdoing,? that doctrine must first have been clearly established in prior law. Since that very question was admittedly open in Sampson, it was plainly not ?clearly established,? and the officers therefore could not be held liable under § 1983.

Such immunity did not apply, however, to the claim of unreasonable use of force. The Ninth Circuit cited precedent permitting an initial sweep with a weapon in a known gang member?s house, but held that that would not justify the subsequent twenty-minute training of the gun on the infant. The appeals court reversed and remanded on that constitutional violation. It further held that Kading had no qualified immunity because ?any reasonable officer should have known that holding an infant at gunpoint constituted excessive force.? But the Ninth Circuit dismissed co-defendants LAPD police chiefs Gates and Parks, as there was no evidence that LAPD had a municipal policy dictating such excessive force. The district court?s earlier dismissal of Kading was therefore reversed and remanded solely on the excessive force claim. See: Motley v. Parks, 432 F.3d 1072 (9th Cir. 2006).

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Related legal case

Motley v. Parks