U.S. v. Crawford, 032103 FED9, 01-50633

Docket Nº:01-50633
Party Name:U.S. v. Crawford
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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UNITED STATES OF AMERICA,Plaintiff-Appellee,

v.

RAPHYAL CRAWFORD,Defendant-Appellant.

No. 01-50633

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Filed March 5, 2003 Amended

March 21, 2003

ORDER AND AMENDED DISSENT

D.C. No. v. CR-01-00141-IEG

Appeal from the United States District Court for the Southern District of California Irma E. Gonzalez, District Judge, Presiding

Argued and Submitted August 6, 2002-Pasadena, California

Before: Stephen Reinhardt, Stephen S. Trott, and A. Wallace Tashima, Circuit Judges.

Opinion by Judge Reinhardt; Dissent by Judge Trott

COUNSEL

Michael J. McCabe, San Diego, California, for the defendant- appellant.

David P. Curnow, Assistant United States Attorney, United States Attorney's Office, San Diego, California, for the plaintiff-appellees.

ORDER

The Dissent, slip op. 3157, filed with the Opinion, slip op. 3115, filed March 5, 2003, and appearing at 2003 WL 735531, is withdrawn and replaced with the attached dissent.

OPINION

REINHARDT, Circuit Judge:

Pursuant to a mandatory condition of Raphyal Crawford's parole, FBI agents entered Crawford's home to conduct a "parole search" on July 27, 2000. The agents conducted the search despite the fact that they expected to find absolutely no evidence of a crime on the premises, because they thought it would help pressure Crawford into talking about his role in an unsolved robbery committed two years before. Less than two hours later, Crawford confessed to participating in the robbery.

We hold that the search of Crawford's home without any reasonable suspicion, although pursuant to a parole condition authorizing such searches, violated the Fourth Amendment. Because Crawford's confession resulted from the suspicionless search of his residence, we reverse the district court's decision denying his motion to suppress and remand to allow him to withdraw his guilty plea. FED. R. CRIM. P. 11(a)(2).

I. BACKGROUND

Sometime in 1998, FBI Special Agent David Bowdich was assigned to investigate a series of bank robberies that occurred in San Diego in 1997 and 1998, including the February 10, 1998, robbery of a Bank of America on Ulrich Street. Approximately two years later, Bowdich received information from an unnamed source that a person known as "Ralphie Rabbit" was a participant in the Ulrich Street robbery. Bowdich was led to believe that "Ralphie Rabbit" was an alias used by Raphyal Crawford.

Bowdich conducted a background investigation on Crawford and learned that Crawford was on state parole. Bowdich also learned that Crawford had signed what is commonly referred to as a "Fourth Waiver"1 as a condition of his parole. Specifically, the "Fourth Waiver" document contained the following parole conditions: You and your residence and any property under your control may be searched without a warrant by an agent of the Department of Corrections or any law enforcement officer.

You agree to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant, and with or without cause.

Bowdich testified that it is a common practice for law enforcement officers to use "Fourth Waivers" as a "kind of tool to talk" to a suspect about crimes. In order to talk to Crawford about the robbery, Bowdich contacted Crawford's parole agent, Carl Berner, and obtained his permission2 to conduct a parole search of the residence where Crawford was living with his sister.3

Bowdich repeatedly testified that when he conducted the parole search on July 27, 2000, he did not expect to find any evidence linking Crawford to the Ulrich Street robbery or to any other criminal conduct, although he "hoped" he might find something that would show that Crawford was currently engaging in criminal activity. The robbery had occurred more than two years earlier; little physical evidence from the incident remained unaccounted for; Crawford was living in a different residence at the time of the robbery; and in the interim, he had been imprisoned in another state for an unrelated offense. Under these circumstances, Bowdich acknowledged that he did not expect the search to reveal any physical evidence of the bank robbery. Rather, he intended to use the parole search solely as a "tool to see" Crawford and to induce him to talk.

In the early morning of July 27, Bowdich met four other law enforcement officials, including Detective Michael Gutierrez, and knocked on the door of Crawford's residence. When Crawford's sister Abdullah answered the door, Bowdich stated that the officers were there to conduct a parole search and Abdullah told them that Crawford was in the bedroom asleep with his eighteen-month-old daughter. Bowdich, Gutierrez, and at least one other officer went into the bedroom and found Crawford and his young child on the bed. Both Crawford and Gutierrez stated that the officers had their weapons drawn when they went into the bedroom.

The officers told Crawford that they were conducting a parole search, and escorted him to the living room, where he remained seated on a couch, under "investigatory detention," through the course of the search. While the search was being conducted, he was not permitted to move, even to get a glass of water.

The search itself may have lasted as long as 50 minutes.4As expected, no evidence of any criminal activity was discovered. However, as planned, Bowdich used the time to initiate a conversation with Crawford. The discussion began with some "chit chat" that was designed "to put Mr. Crawford at ease" and dispel the "me-versus-you" atmosphere. Then Bowdich told Crawford that, although he was not under arrest, he would really like him to talk about "an old bank robbery case." Crawford initially stated that he did not know anything about the robbery, but Bowdich suspected that he knew more than he was letting on, and thought that Crawford would talk if he was placed in the "right environment." Bowdich testified that he wanted to eliminate the distractions, bring Crawford to an area where Bowdich was in charge of the scene, and eliminate the possibility that he would end "up in some hearing later where the defense is alleging that I've got five officers milling around, and that could be a coercive atmosphere." In order to make it "as clean as possible," Bowdich asked Crawford whether he would be "more comfortable" talking to the officers at the FBI office. Crawford agreed to the suggested alternative and was escorted - with an officer on each side - to Bowdich's vehicle, which was parked outside.5 Crawford was not handcuffed at any point. However, Crawford's sister testified that she assumed he was under arrest based on the length of the search, the way he was detained in the living room, and the fact that he was leaving with officers walking on both sides of him. Moreover, despite the fact that Crawford's own car was parked in front of the house, he was transported to the FBI office in Bowdich's unmarked car.

Bowdich drove to the FBI offices, which were located about 20 minutes from the residence. Detective Gutierrez sat with Crawford in the back seat of the car. Bowdich and Gutierrez continued the "chit chat" with Crawford during the drive, as a means of putting him at ease.

After arriving at the FBI offices, Bowdich and Gutierrez took Crawford into an interview room, and closed the door "for [ ] privacy." They then told Crawford that he was not in custody and could leave at any time. Bowdich began to read Crawford his Miranda rights, because he wanted to "make the case cleaner." Crawford, however, interrupted in protest before Bowdich finished the second line of the warnings. Both agents again told Crawford that he was not in custody and could leave. Bowdich never completed the Mirandawarnings.

The interrogation continued for approximately an hour to an hour and a half.6 No weapons were drawn. Eventually, Crawford confessed that he was a participant in the February 10, 1998, robbery and admitted to having used a gun during the crime.

On January 16, 2001, Crawford was indicted for armed bank robbery in violation of 18 U.S.C. § § 2113(a) and (d) and for knowingly using and carrying a firearm in the commission of the robbery in violation of 18 U.S.C. § § 924(c)(1) and (2).7

Crawford moved to suppress the statements that he made to the law enforcement officers on July 27. After three evidentiary hearings, the district court denied Crawford's motion on both Fourth and Fifth Amendment grounds. It specifically held that the initial detention of Crawford in his residence pursuant to the parole search was unlawful under United States v. Knights, 219 F.3d 1138 (9th Cir. 2000);8 however, under Dunaway v. New York, 442 U.S. 200 (1979), and Brown v. Illinois, 422 U.S. 590 (1975), the court found sufficient attenuating factors between detention and confession to purge the taint, rendering the subsequent statement admissible. The district court also rejected Crawford's Fifth Amendment claim that he was held in custody during the interrogation and therefore entitled to full Mirandawarnings. Finally, the court determined that Crawford's confession was not involuntary.

Thereafter, Crawford entered a conditional guilty plea to the charged counts pursuant to Federal Rule of Criminal Procedure 11(a)(2). He reserved for appeal the denial of his motion to suppress.9 We review denials of motions to suppress de novo. See United States v. Murillo , 255 F.3d 1169, 1174 (9th Cir. 2001), cert. denied, 535 U.S. 948 (2002); United States v. Percy, 250 F.3d 720, 725 (9th Cir. 2001); cert. denied, 534 U.S. 1009.

II. DISCUSSION

A. The Parole Search

The Fourth Amendment provides that "[t]he right of the people to be secure in their...

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