No. _______________
IN THE
SUPREME COURT OF THE UNITED STATES
DONALD CURTIS SAMSON -- PETITIONER
vs.
PEOPLE OF THE STATE OF CALIFORNIA -- RESPONDENT
ON PETITION FOR WRIT OF CERTIORARI TO THE CALIFORNIA COURT OF APPEAL, FIRST APPELLATE DISTRICT, DIVISION ONE
MARTIN KASSMAN
(Counsel of Record)
[A mailing address, no longer current, appeared here.]
(415) 564-6732
Attorney for Petitioner
DONALD CURTIS SAMSON
1. Does the Fourth Amendment prohibit police from conducting a warrantless search of a person who is subject to a parole search condition, where there is no suspicion of criminal wrongdoing and the sole reason for the search is that the person is on parole?
All parties appear in the caption of the case on the cover page.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
REASONS FOR GRANTING THE PETITION
(omitted from Web version)
(omitted from Web version)
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgment
below.
The opinion of the highest state court to review the merits appears at Appendix A to the petition and is unpublished.
The date on which the highest state court decided this case was January 12, 2005. A copy of that decision appears at Appendix B.
The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).
U.S. Const. amend. IV:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
On September 6, 2002, at about 5:34 p.m., San Bruno (California) police officer Alex Rohleder made contact with, as he testified, "two adults and a little baby walking down the street." The two adults were petitioner Donald Curtis Samson (hereafter Mr. Samson) and a friend named Deborah Watson. Officer Rohleder recognized Mr. Samson from a prior contact. Rohleder was aware that Mr. Samson was on parole, and Rohleder "was under the impression that he might have a parolee at large warrant." Rohleder had heard that Mr. Samson once stated, during a previous contact with South San Francisco police about an incident with his girlfriend, that he would not be taken back to prison.
Upon inquiry by Rohleder, Mr. Samson confirmed that he was on parole but stated that he had already taken care of the warrant. Rohleder called the matter in and confirmed the information Mr. Samson had given him. Rohleder nonetheless decided to search Mr. Samson, because he was on parole. The search was not for officer safety. Mr. Samson had not done anything to give the officer probable cause for a search; he "was just walking down the street" with a woman who had a baby. Mr. Samson did not give the officer permission to search him. Asked whether he had searched Mr. Samson merely "because you could," the officer testified:
Because it's a condition of his parole. I believe that being [a] parolee, that he needs to make sure he's still obeying the laws. It's a privilege for him to be out here.
Asked on cross-examination whether he searches all parolees with whom he makes contact, Rohleder testified: "It depends." He added:
If I drive by one and I already dealt with him earlier in the day or have dealt with him, I just drive by. I have other work to do. I don't go after everybody all the time.
After waiting for a cover officer, Rohleder "conducted a parolee search" of Mr. Samson. Rohleder recovered a cigarette pack which contained, in addition to cigarettes, a "plastic baggie" containing what Rohleder believed was methamphetamine. Rohleder arrested Mr. Samson. A later test showed that the substance in the "baggie" contained methamphetamine. The substance weighed 2.17 grams, which is a usable quantity of methamphetamine.
Mr. Samson's parole agent, Bernard Martinez, testified that Mr. Samson was, indeed, on parole on September 6, 2002. Mr. Samson was subject to a search condition, which stated:
You've agreed to search and seizure by a parole officer or other peace officer at any time of the night or day, with or without a search warrant or with or without cause.
Martinez testified that Mr. Samson was on parole for possession of a firearm by an ex-felon.
Deborah Watson testified that she and her three-year-old son, Jefferson, were walking with Mr. Samson when Officer Rohleder approached them and asked Mr. Samson whether there was a warrant for his arrest. Mr. Samson "replied: 'What?' Like hesitated, surprised." Then Rohleder told Mr. Samson to put his hands on a car, Mr. Samson complied, and officer searched him. Later, Rohleder told Mr. Samson to take off his jacket, searched the jacket, then searched Mr. Samson a second time. He asked Ms. Watson to wait right there with her child. After going to the police car, Rohleder approached Ms. Watson, asked her some questions, and told her to empty her pockets, which she did.
According to Ms. Watson, Rohleder "did not ask me for permission. He just told
me to empty my pockets out and if I had any weapons or any drugs on me." Rohleder
testified that he searched Ms. Watson with her consent.(1)
II. Procedural
History, Including When and How the Federal Question Sought to Be
Reviewed Was Raised and How the California Courts Passed on It
The prosecution filed an information on October 11, 2002, and an amended
information on December 13, 2002. The latter charged Mr. Samson with one felony
count of possession of methamphetamine (Cal. Health & Safety Code § 11377(a)). The
information also alleged two prior felony convictions under the Three Strikes law (Cal.
Penal Code § 1170.12(c)(2)) and two prior prison terms (Cal. Penal Code § 667.5(b)).
One of the prior felony convictions alleged under the Three Strikes law was stricken, at
the prosecution's request, on March 20, 2003. Mr. Samson pled not guilty and denied the
special allegations.
Mr. Samson filed a motion under California Penal Code section 1538.5 on November 8, 2002, seeking to suppress as evidence the methamphetamine found in the cigarette pack in his shirt pocket. The motion argued that the warrantless search violated the "limited Fourth Amendment rights" retained by Mr. Samson as a parolee with a search condition. The prosecution filed written opposition. The prosecution asserted that the search was legal under People v. Reyes, 968 P.2d 445 (Cal. 1998), even "without any particularized suspicion of criminal activity," because Officer Rohleder "knew the Defendant was on parole" and "knew the Defendant had committed a violation of section 12021(a) of the Penal Code (felon with a gun)."
The trial court conducted a hearing on the motion to suppress on December 6, 2002, and December 13, 2002. On the latter date, the trial court announced its ruling denying the motion to suppress:
[T]he Court finds as follows, that the defendant was on parole subject to search and seizure. That the officer had a basis in his mind to stop the defendant, while erroneous, it wasn't arbitrary or capricious. The act of searching him was within his power given the nature of the defendant's parole offense, namely, ex-felon in possession of a firearm and was certainly prudent to make the search, not only for the protection, itself, but to make sure that parolee is not in violation of the law, which, as it turns out, he was finding dope, and I don't find that his actions were capricious or arbitrary, and therefore, I deny the motion based upon the credibility and evidence of the witness.
A jury trial began on March 19, 2003. On March 24, 2003, the jury found Mr. Samson guilty. The parties agreed to a court trial on the special allegations. On the same day, the court found the allegations true. On April 21, 2003, the trial court sentenced Mr. Samson. The court imposed the upper term of three years for Mr. Samson's conviction of violating California Health and Safety Code section 11377(a), doubled to six years under the Three Strikes law (Cal. Penal Code § 1170.12(c)(1)). With the prosecution's concurrence, the trial court imposed only one of the two one-year prior prison term enhancements. The total sentence was seven years in state prison.
Mr. Samson filed a timely notice of appeal on April 21, 2003. On appeal, he renewed his argument that the search violated the Fourth Amendment. Mr. Samson asserted that (1) even under People v. Reyes, 968 P.2d 445 (Cal. 1998), which held that no individualized suspicion was constitutionally required to search a parolee (id. at 451), the search was unreasonable and violated the Fourth Amendment, because it was arbitrary, capricious and harassing (see id. at 450-451) (Appellant's Opening Br. at 9-14); and (2) the search was not justified by a reasonable suspicion of criminal activity, which the Fourth Amendment requires to justify a warrantless search of a parolee subject to a search clause, contrary to the majority opinion in People v. Reyes (Appellant's Opening Br. at 15-17).(2)
The California Court of Appeal rejected Mr. Samson's Fourth Amendment claim and affirmed his conviction, in an opinion issued on October 14, 2004.(3) The intermediate appellate court was obliged to, and did, adhere to the rule established by the California Supreme Court's majority opinion in People v. Reyes. Accordingly, the court rejected Mr. Samson's argument that the search of his person violated the Fourth Amendment because it was not justified by a reasonable suspicion of criminal activity. (Opn. 3-4.) The court also concluded that the search was not arbitrary, capricious or harassing. (Opn. 4-5.)(4)
Mr. Samson sought discretionary review from the California Supreme Court, asserting that the court should grant review to reconsider, and ultimately overrule, its 1998 Reyes holding that no particularized suspicion is required to uphold the warrantless search of a person who is subject to a parole search condition. (Pet. for Review at 4-11.)(5) The California Supreme Court denied review on January 12, 2005.(6)
I. This Case Presents an Important Question of Fourth Amendment Law That the
California Courts Have Decided in a Way That Conflicts With Decisions of Other States' Courts and Federal Courts of Appeals.
In People v. Reyes, 968 P.2d 445, the California Supreme Court precedent that the
Court of Appeal below followed, a four-to-three majority overruled People v. Burgener,
714 P.2d 1251 (Cal. 1986), which had held that a warrantless search of the person or
property of a parolee must, in order to survive Fourth Amendment scrutiny, be justified
by at least a reasonable suspicion that the parolee has violated, or is planning to violate,
the law or a parole condition. People v. Reyes, 968 P.2d at 446, 450-451. The Reyes
majority held that "a parole search may be reasonable despite the absence of
particularized suspicion." Id. at 451.
In her Reyes dissent, California Supreme Court Associate Justice Joyce Kennard pointed out that most courts which have considered the issue have held that a suspicionless search of a parolee by a police officer violates the Fourth Amendment:
To summarize, state and federal courts that have considered the validity of parole or probation searches have generally adopted either a reasonable suspicion requirement, as this court did in Burgener, supra, 41 Cal.3d 505, or a rule barring searches when the parole or probation officer was acting as an agent of the police, or they have adopted both rules.
People v. Reyes, 968 P.2d at 456 (Kennard, J., concurring and dissenting).
Several years after Reyes was decided, this Court noted, but did not decide, the question whether the Fourth Amendment would allow the search of a probationer with no individualized suspicion of criminal wrongdoing. The Court held that probable cause was not required to justify the warrantless search of a probationer who was subject to a search condition; reasonable suspicion was enough. "When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy interests is reasonable." United States v. Knights, 534 U.S. 112, 121 (2001). The Court stated that it "need not address the constitutionality of a suspicionless search because the search in this case was supported by reasonable suspicion." Id. at 120 n.6.
In the wake of Knights, several lower courts have held that the Knights rule applies to parolees as well as probationers. See, e.g., Knox v. Smith, 342 F.3d 651, 657 (7th Cir. 2003) (seizure of parolee "based only on reasonable suspicion" that he had violated terms of release agreement would satisfy Fourth Amendment); United States v. Loney, 331 F.3d 516, 520-21 (6th Cir. 2003) ("it is now beyond question that a state statute survives Fourth Amendment scrutiny if it authorizes searches of parolees based on a reasonable suspicion that an individual is violating the terms or conditions of parole"). Probationers and parolees often are treated alike for Fourth Amendment purposes. See, e.g., Moreno v. Baca, 400 F.3d 1152, 2005 U.S. App. LEXIS 3739, *17-*18 (9th Cir. 2005); United States v. Tucker, 305 F.3d 1193, 1199 n.1 (10th Cir. 2002); United States v. Thomas, 729 F.2d 120, 125 n.1 (2d Cir. 1984). Cf. People v. Woods, 981 P.2d 1019, 1031 (Cal. 1999) (Brown, J., dissenting) (criticizing majority opinion on ground that it "reintroduces a disparity between parolees and juvenile probationers on the one hand, and adult probationers on the other").
The question about suspicionless searches left open by Knights has, however, been decided differently in the various state and lower federal courts. The California courts, including the Court of Appeal below, continue to follow the Reyes holding that the Fourth Amendment allows the police to search a person who has a parole search condition, with no particularized suspicion, "reasonable" or otherwise. (Opn. 4); People v. Zichwic, 114 Cal. Rptr. 2d 733, 740 (Cal. Ct. App. 2001) ("Knights did not cite Reyes and did not reach the issue decided in Reyes, that a parole search does not require a particularized suspicion. As an intermediate state appellate court, we, of course, are bound by decisions of the California Supreme Court."). Cf. People v. Sanders, 73 P.3d 496, 506 (Cal. 2003) (reiterating Reyes holding but noting contrary Ninth Circuit panel decision, described below).
Courts of other states and of federal circuits have continued, after Knights, to reach conclusions contrary to that of the Reyes majority, as Justice Kennard noted the majority of jurisdictions had before Reyes. Louisiana, for example, requires that even a parole officer harbor a "reasonable suspicion" of criminal activity before searching a parolee without a warrant. State v. Bonner, 811 So. 2d 1151, 1153-54 (La. Ct. App. 2002) ("While the decision to conduct a warrantless search of a parolee and his home must be based on something more than a mere hunch, probable cause is not required, and only a reasonable suspicion that criminal activity is occurring is necessary for a parole officer to conduct a warrantless search."). Pennsylvania requires that the warrantless search of a parolee be performed by a parole officer, and it requires both a "reasonable suspicion to believe that the parolee committed a parole violation" and that the search be reasonably related to the parole officer's duties. Commonwealth v. Hughes, 836 A.2d 893, 899 (Pa. 2003).
The Sixth Circuit has been even more protective of parolees' Fourth Amendment rights. In United States v. Carnes, 309 F.3d 950 (6th Cir. 2002), a panel majority concluded that government agents required both a warrant and probable cause to seize and listen to audio tapes, found at the home of a parolee's girlfriend after the parolee's arrest there, which were used against the parolee at trial. Id. at 953, 956, 959-960, 963. A dissenting judge would have held that only a reasonable suspicion of a crime or parole violation was required. Id. at 964 (Kennedy, J., dissenting.) That judge wrote: "I read Knights as creating a categorical rule that searches of parolees and probationers subject to search conditions require reasonable suspicion of the commission of a crime or parole violation, not probable cause." Id. That rule is the one urged by Mr. Samson in the instant case, but it is contrary to the California rule, which holds that no particularized suspicion is required for a parole search.
Whether or not California's rule, as stated in the Reyes majority opinion, is correct has been the subject of sharp conflict among the judges of the United States Court of Appeals for the Ninth Circuit. In 2003, a divided three-judge panel held that the standard embraced by the Reyes majority does not comport with the Fourth Amendment and that the search of a parolee's home pursuant to a parole condition is unreasonable if it is not supported by a reasonable suspicion of wrongdoing. United States v. Crawford, 323 F.3d 700, 715-16 (9th Cir. 2003). The Ninth Circuit granted rehearing en banc, and in June 2004, the court affirmed the defendant's conviction on the ground that, even if the search violated the Fourth Amendment, the defendant's subsequent statement to police was not a product of that search and did not have to be suppressed. United States v. Crawford, 372 F.3d 1048, 1052, 1057-59 (9th Cir. 2004). The majority opinion specifically noted: "We need not and do not decide . . . whether suspicionless parole searches violate the Fourth Amendment." Id. at p. 1054. Five concurring judges would have held that the search did not violate the Fourth Amendment; three dissenting judges would have held that it did. Id. at 1062-76 (Trott, J., concurring); id. at 1082-97 (W. Fletcher, J., dissenting).
The disagreement among Ninth Circuit judges was on display again last month in Moreno v. Baca, 400 F.3d 1152, 2005 U.S. App. LEXIS 3739. In that case, a civil rights action under section 1983, the plaintiff alleged that sheriff's deputies deprived him of his constitutional rights when they arrested and searched him without cause. 2005 U.S. App. Lexis 3739, *1. At the time of the detention, the plaintiff was a parolee subject to a warrantless search condition. Id. at *4-*5. Despite this, the panel majority opined that the plaintiff's Fourth Amendment rights "clearly included the right to walk along a public sidewalk unmolested by law enforcement" (id. at *22) and that he "certainly had a legitimate expectation of privacy with respect to the contents of his pockets" (id. at *26). Regarding the level of suspicion required to justify the warrantless search of a parolee who has a search condition, the majority concluded:
Taking into account the reduced privacy rights enjoyed by parolees and the State's interest in rehabilitating parolees and deterring crime, we hold that the Constitution requires that a law enforcement officer must, at minimum, have a reasonable suspicion that a parolee has engaged in criminal wrongdoing or violated his parole prior to arresting him or conducting a search of his person.
Id. at *31.
Although the judgment in Moreno v. Baca was unanimous, one judge criticized the above-quoted language as "a bit of dictum" and as legally incorrect. Id. at *55-*56, *61-*62 (Clifton, J., concurring in judgment). That judge, who had joined Judge Trott's concurring opinion in United States v. Crawford, 372 F.3d 1048, adhered to the view that "a law enforcement officer's search of a parolee's residence is reasonable so long as the search is not 'arbitrary, capricious, or harassing.'" Moreno v. Baca, 2005 U.S. App. Lexis 3739, *55-*56 (Clifton, J., concurring in judgment), quoting Crawford, 372 F.3d at 1063 (Trott, J., concurring).
The instant case is well-suited to serve as a vehicle for resolving the conflict, because it starkly presents the issue whether the Fourth Amendment required that Officer Rohleder harbor a reasonable suspicion of criminal wrongdoing before he could search Mr. Samson's person. There is no issue in this case as to whether the officer did, in fact, harbor such suspicion; neither the prosecution nor the trial court asserted that such suspicion existed. Indeed, the officer admitted on the witness stand that he had no reason to suspect that Mr. Samson was doing anything illegal. As the Court of Appeal noted, "[t]he warrantless search was predicated entirely upon defendant's parole status." (Opn. 5.) This Court should grant certiorari in the instant case to decide the recurring question whether or not a parolee with a search condition may constitutionally be subjected to a warrantless search with no individualized suspicion of criminal wrongdoing.
The petition for a writ of certiorari should be granted.
Respectfully submitted,
MARTIN KASSMAN
(Counsel of Record)
(original signed)
Attorney for Petitioner
DONALD CURTIS SAMSON
Date: April 12, 2005
1. Defense counsel asked Rohleder why he had asked Ms. Watson for consent to search her. The trial court sustained the prosecution's objection on relevance grounds. Defense counsel also asked: "Well, when you stop a parolee, do you search everyone that's with him?" The trial court again sustained a relevance objection.
2. Mr. Samson also argued that the trial court awarded him too few credits for days in actual local custody and for local conduct. In supplemental briefing after this Court's decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), Mr. Samson argued that the trial court violated his Sixth Amendment right to jury trial when it imposed an upper term based on aggravating factors that were neither found true by a jury nor found true beyond a reasonable doubt.
3. The Court of Appeal's opinion (hereinafter Opn.) is Appendix A to this petition.
4. The court upheld Mr. Samson's claim of error regarding sentence credits. (Opn. 5.) It rejected his claim that the trial court's imposition of the upper term without a jury trial on aggravating factors violated the Sixth Amendment as interpreted in Blakely v. Washington. (Opn. 5-17.)
5. Mr. Samson also sought review of the court of appeal's denial of his Sixth Amendment jury trial claim under Blakely v. Washington. (Pet. for Review at 11-23.)
6. The order denying review is Appendix B to this petition. With regard to the issue under Blakely v. Washington, the order specified that the denial of review was without prejudice to any relief to which Mr. Samson might be entitled after the California Supreme Court decides two pending cases on the application of Blakely to California law.