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Ninth Circuit Concludes Mandatory Supervision Akin to Parole for Fourth Amendment Analysis

by Mark Wilson

In 2014, Steven Cervantes pleaded guilty to California counterfeiting and drug felonies. He was sentenced to three years in jail. The sentencing court then divided the sentence into two years of imprisonment followed by one year of mandatory supervision. As part of his plea agreement, Cervantes agreed to abide by mandatory supervision conditions, including a warrantless, suspicionless, search condition.

While serving his mandatory supervision term, Cervantes and his girlfriend, Samanthe Farish, were stopped by a police officer for jaywalking. Cervantes admitted that he was on “probation” and subject to a search condition. The officer searched Cervantes and found a room key to the Ayres Hotel in his pocket. Cervantes said he and Farish were renting a room on the third floor of the hotel and that his belongings were in the room. The officer let them leave without citing them for jaywalking.

Nothing found on Cervantes or any of his answers gave the officer any reason to suspect that Cervantes was engaged in criminal activity. Nevertheless, the officer searched his room, believing that his search condition authorized a warrantless, suspicionless search. Police found counterfeit currency and equipment used to make it—all in plain view.

Cervantes was arrested and charged with unlawfully possessing counterfeit currency and images of counterfeit currency. He moved to suppress the evidence seized from the hotel room, arguing that the warrantless, suspicionless search of the room violated the Fourth Amendment. The trial court denied the motion, concluding that Cervantes’ search condition authorized the search. Cervantes was found guilty and sentenced to 21 months in prison with a five-year supervised released term.

The Ninth Circuit affirmed, finding that “although the issue is admittedly a close one, for Fourth Amendment purposes…mandatory supervision is more akin to parole than probation.”

For Fourth Amendment purposes, the U.S. Supreme Court divides offenders subject to search conditions into two groups—those on probation and those on parole. Parolees are generally afforded less protection than probationers under the Fourth Amendment. Samson v. California, 547 U.S. 843 (2006). The stated rationale is that parolees have committed more serious crimes and are considered more likely to recidivate than probationers.

The Ninth Circuit had to determine whether mandatory supervision is more like probation or parole. It concluded that “mandatory supervision is more akin to parole than probation.” The Court reasoned that probation is imposed “in lieu of punishment.” In contrast, parole involves “serving the tail end” of a sentence at liberty, “subject to whatever conditions of supervision the court deems necessary to protect the public and promote rehabilitation.”

The Court concluded that mandatory supervision is more like parole than probation. With both parole and mandatory supervision, the offender serves the final portion of his or her sentence at liberty but subject to conditions imposed by the court. The appellate court then analyzed the search of Cervantes’ room applying Fourth Amendment requirements for parolees. Parolees have “severely diminished expectations of privacy” and are subject to warrantless, suspicionless searches as a condition of their release. Therefore, officers did not need either reasonable suspicion or probable cause to search his hotel room, so the search did not violate Cervantes’ Fourth Amendment rights. The Ninth Circuit affirmed the district court’s denial of Cervantes’ motion to suppress. See: United States v. Cervantes, 2017 U.S. App. LEXIS 18017 (9th Cir. 2017). 

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