Moreno v. Baca

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

R. MORENO, in his individual 

capacity and in his capacity as

representative of the classes

described fully herein,

Plaintiff-Appellee,

v.

No. 02-55627

LEROY BACA; MICHAEL

ANTONOVICH; YVONNE BURKE;  D.C. No.

CV 00-07149 ABC

DONALD KNABE; GLORIA MOLINA;

ZEV YAROSLAVSKY, OPINION

Defendants,

and

BANKS, Deputy Sheriff # 403862;

GARCIA, Deputy Sheriff # 412525,

Defendants-Appellants.



Appeal from the United States District Court

for the Central District of California

Audrey B. Collins, District Judge, Presiding

Argued and Submitted

April 9, 2003—Pasadena, California

Submission Withdrawn October 8, 2003

Resubmitted February 16, 2005

Filed March 7, 2005

Before: Harry Pregerson, A. Wallace Tashima, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Tashima;

Concurrence by Judge Clifton

2657

MORENO v. BACA 2661

COUNSEL

Devallis Rutledge, Manning & Marder Kass, Ellrod, Ramirez,

Irvine, California, for defendants-appellants.

Kathryn S. Bloomfield, Yagman & Yagman & Reichmann &

Bloomfield, Venice Beach, California, for plaintiff-appellee.

OPINION

TASHIMA, Circuit Judge:

Los Angeles County Deputy Sheriffs Sean Banks and

Thomas Garcia (“Appellants”) appeal from the district court’s

denial of their motion for summary judgment asserting quali-

fied immunity in a § 1983 action brought by plaintiff Richard

Moreno. Moreno alleges that Appellants, acting under color

of state law, deprived him of his constitutional rights when

they arrested and searched him without cause.

Factual Background

One evening in January 2000, Richard Moreno and his

companion Joe Rodriguez were on their way to a meeting at

St. Lucy’s Church in the City Terrace area of Los Angeles.

After their car broke down, Moreno and Rodriguez proceeded

toward the meeting on foot. At approximately 7 p.m., a

marked Los Angeles County Sheriff patrol car passed them as

they walked down the street, made a U-turn, and pulled the

car onto the curb in their path. Two deputies got out of the

car. Deputy Banks, who was riding in the passenger seat,

ordered Moreno and Rodriguez to approach. Banks interro-

2662 MORENO v. BACA

gated both men as to their business in the area, patted them

down for weapons, emptied the contents of their pockets onto

the hood of the patrol car, and locked them into the back seat.

While Moreno and Rodriguez sat in the back seat of the car,

Deputy Banks entered their names into a computer inside the

patrol car and asked the men whether they were on parole.

Moreno admitted that he was.

Meanwhile, Deputy Garcia, the driver of the patrol car,

walked down the sidewalk in the direction from which Rodri-

guez and Moreno had approached, shining his flashlight on

the sidewalk and into nearby yards as he went. When Garcia

returned to the patrol car he had a discussion with Banks,

reached into the glove compartment to retrieve a ziploc bag,

and then put the bag back into the glove compartment and

closed the door. Moreno heard one of the deputies tell the

other that Rodriguez was “clean” but that Moreno was on

parole. At that point, Garcia opened the rear door of the car

and told Rodriguez that he was free to leave, which he did.

Moreno was handcuffed and told that he was under arrest for

violating his parole. When Moreno asked the deputies what he

had done to violate his parole, one of them told him that he

was caught in possession of rock cocaine.

Deputies Banks and Garcia gave a somewhat different

account of the incident. According to their incident report,

Banks noticed that Moreno was “startled” when he saw the

patrol car. As the deputies approached, Moreno turned

around, reached into his right front pants pocket, and dis-

carded something on the front steps of a nearby residence.

Because the deputies were on patrol in a high crime area, and

because they were aware that drugs were sold in several

houses nearby, they decided to investigate. They detained

Moreno and placed him in the patrol car. Banks walked to the

area in which he had seen Moreno discard the object and

recovered an object he recognized as rock cocaine. One of the

deputies did a warrant check on the patrol car’s MDT termi-

nal, which revealed an outstanding arrest warrant with

MORENO v. BACA 2663

$10,000 bail for Moreno.1 The MDT search also revealed that

Moreno was on parole, a fact which Moreno orally confirmed.

Both deputies declared under oath that they were aware from

their training and experience that a standard term of parole

was that parolees were subject to warrantless searches by any

peace officer. Moreno was placed under arrest, both for pos-

session of cocaine and under the authority of the outstanding

arrest warrant, and a parole hold was placed on him. Although

the incident report makes no reference to Rodriguez or any

other person, both Banks and Garcia refer to “another man”

in their sworn declarations describing the encounter.

At the time of the detention, Moreno was indeed a parolee

under the supervision of the California Department of Correc-

tions. He had been released from prison more than two years

earlier, subject to the following condition: “You and your res-

idence and any property under your control may be searched

without a warrant by an agent of the Department of Correc-

tions or any law enforcement officer.” As it turns out, Moreno

also had an outstanding arrest warrant, which was issued

when Moreno failed to make an appearance in state court in

1999. It is undisputed, however, that the deputies learned that

Moreno was on parole and that he had an outstanding arrest

warrant only after searching and detaining him.

Moreno was subsequently charged in state court with pos-

session of a controlled substance. Deputies Banks and Garcia

testified against him at trial and Rodriguez testified for the

defense. Moreno was acquitted by a jury in 2002.

Moreno then brought this action under 42 U.S.C. § 1983,

contending that Banks and Garcia violated his Fourth Amend-

ment right to be free from unreasonable searches and seizures

when they arrested and searched him without cause. Banks

1

An MDT terminal gives deputy sheriffs access to certain criminal

records, and can alert officers to the possibility of outstanding arrest war-

rants.

2664 MORENO v. BACA

and Garcia responded that Moreno had no right to be free

from suspicionless arrests and searches because of the out-

standing bench warrant and the parole condition. Even if rea-

sonable suspicion were required to detain Moreno, the

officers contended, they had the requisite level of suspicion

because of Moreno’s nervous behavior and the fact that he

was walking in a “high crime” area. The district court sided

with Moreno, reasoning that under Griffin v. Wisconsin, 483

U.S. 868 (1987), and United States v. Knights, 534 U.S. 112

(2001), “at least reasonable suspicion is required to justify the

search, and subsequent seizure, of Moreno.” The court further

held that, interpreting the facts in the light most favorable to

Moreno, the facts “do not come close to the level of suspicion

that existed in Knights and Griffin.” It rejected the deputies’

argument that Moreno’s parole search condition and the out-

standing arrest warrant retroactively justified the arrest and

search even though neither Banks nor Garcia was aware of

either circumstance at the time. The court denied the deputies’

motion for summary judgment on qualified immunity

grounds, holding that Moreno’s constitutional right to be free

from suspicionless searches was “clearly established” at the

time of the detention, and that a suspect’s nervousness at the

sight of law enforcement, by itself, did not give rise to reason-

able suspicion.

The deputies brought this interlocutory appeal of the dis-

trict court’s denial of summary judgment on qualified immu-

nity grounds. We have jurisdiction over the appeal, but only

to the extent that it presents legal questions. Mitchell v. For-

syth, 472 U.S. 511, 530 (1985); Jeffers v. Gomez, 267 F.3d

895, 903 (9th Cir. 2001) (“Our jurisdiction [to review the

denial of qualified immunity] generally is limited to questions

of law and does not extend to claims in which the determina-

tion of qualified immunity depends on disputed issues of

material fact.”).

I.

We review the district court’s denial of a motion for sum-

mary judgment de novo. Billington v. Smith, 292 F.3d 1177,

MORENO v. BACA 2665

1183 (9th Cir. 2002). Viewing the evidence in the light most

favorable to the nonmoving party, we must determine whether

there are any genuine issues of material fact and whether the

district court correctly applied the relevant substantive law.

Oliver v. Keller, 289 F.3d 623, 626 (9th Cir. 2002). “[T]he

ordinary framework for deciding motions for summary judg-

ment” applies to motions for summary judgment based on

official immunity. Butler v. San Diego Dist. Attorney’s Office,

370 F.3d 956, 963 (9th Cir. 2004). Because the moving defen-

dant bears the burden of proof on the issue of qualified immu-

nity, he or she must produce sufficient evidence to require the

plaintiff to go beyond his or her pleadings. Id. The defen-

dant’s burden is to demonstrate the absence of a genuine issue

of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986).

[1] The determination of whether a law enforcement officer

is entitled to qualified immunity involves a two-step analysis.

Saucier v. Katz, 533 U.S. 194, 201 (2001). In the first step we

must view the record in the light most favorable to the party

asserting injury in determining whether the officer’s conduct

violated a constitutional right. Id. If the plaintiff establishes

the violation of a constitutional right, we must next consider

whether that right was clearly established at the time the

alleged violation occurred. Id. The contours of the right must

have been clear enough that a reasonable officer would have

understood that what he or she was doing violated that right.

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

II

Appellants challenge the district court’s order on two

fronts. Their primary contention is that Moreno had no Fourth

Amendment rights that could have been violated by virtue of

the parole condition allowing warrantless searches of his per-

son, residence, and property. They further assert that the arrest

and search were justified by the parole search condition and

the outstanding arrest warrant, despite the fact that the depu-

2666 MORENO v. BACA

ties did not know of either fact at the time. We reject both

these contentions.

A. Did the Suspicionless Detention Violate Moreno’s

Fourth Amendment Right to Be Free From

Unreasonable Searches and Seizures?

[2] The Fourth Amendment provides, in relevant part, that

“[t]he right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and sei-

zures, shall not be violated, and no Warrants shall issue, but

upon probable cause.” U.S. Const. amend. IV. The “touch-

stone of the Fourth Amendment is reasonableness. The Fourth

Amendment does not proscribe all state-initiated searches and

seizures; it merely proscribes those which are unreasonable.”

Florida v. Jimeno, 500 U.S. 248, 250 (1991) (citations omit-

ted). The “reasonableness” mandated by the Fourth Amend-

ment generally requires law enforcement officers to obtain a

warrant supported by probable cause prior to conducting a

search. Payton v. New York, 445 U.S. 573, 586 (1980). When

applied in circumstances that make the warrant requirement

impracticable, however, the “reasonableness” standard can be

met even in the absence of a warrant. Warden v. Hayden, 387

U.S. 294, 298 (1967). And, in extraordinary situations in

which the government has a “special need, beyond ordinary

law enforcement,” the reasonableness standard can be met

even in the absence of probable cause. New Jersey v. T.L.O.,

469 U.S. 325, 347 (1985).

[3] But the doctrines that the Court has crafted to respond

to these unique situations are merely a gloss on the reason-

ableness standard embodied in the text of the Fourth Amend-

ment itself. In the absence of controlling case law, our central

inquiry in Fourth Amendment search and seizure cases

remains whether the search or seizure was reasonable in light

of “all the circumstances surrounding the encounter.” Ohio v.

Robinette, 519 U.S. 33, 39 (1996) (quoting Florida v. Bostick,

501 U.S. 429, 439 (1991)). We applied the “reasonableness”

MORENO v. BACA 2667

test to evaluate the warrantless search of a parolee in Latta v.

Fitzharris, 521 F.2d 246 (9th Cir. 1975) (en banc). See id. at

248-49 (holding that “[parole] searches may be held illegal

and the evidence obtained therefrom suppressed unless they

pass muster under the Fourth Amendment test of reasonable-

ness”).2 In evaluating whether the suspicionless search and

seizure of Moreno was “reasonable,” we balance “the degree

to which the intrusion intrudes upon an individual’s privacy”

against “the degree to which it is needed for the promotion of

legitimate governmental interests.”3 Knights, 534 U.S. at 118-

19 (quoting Wyoming v. Houghton, 526 U.S. 295, 300

(1999)).

1. The Privacy Interests of Parolees

[4] We begin our analysis by rejecting Appellants’ conten-

tion that Moreno, by the very nature of his status as a parolee,

had no Fourth Amendment rights at all. We rejected an identi-

2

More recently, in United States v. Kincade, 379 F.3d 813 (9th Cir.

2004) (en banc), petition for cert. filed, (U.S. Nov. 15, 2004) (No. 04-

7253), we were unable to resolve the proper test to be applied to determine

whether an involuntary blood draw from a supervised releasee for a DNA

databank violated the Fourth Amendment. See id. at 842 n.1 (Reinhardt,

J., dissenting).

3

Because the arrest and search at issue in this case were clearly for law

enforcement purposes, the “special needs” doctrine does not apply. See

Ferguson v. City of Charleston, 532 U.S. 67, 83 n.20 (2001) (“In none of

our previous special needs cases have we upheld the collection of evi-

dence for criminal law enforcement purposes.”); City of Indianapolis v.

Edmond, 531 U.S. 32, 38 (2000) (observing that the “special needs” doc-

trine has never been applied where the purpose of the search was “to

detect evidence of ordinary criminal wrongdoing”); see also Kincade, 379

F.3d at 854 (Reinhardt, J., dissenting) (“Never in over two hundred years

of history has the Supreme Court approved of a suspicionless search

designed to produce ordinary evidence of criminal wrongdoing for use by

the police.”). Even assuming that parole supervision can qualify as a “spe-

cial need,” Appellants cannot reasonably contend that the search was con-

ducted for the purpose of supervising parolees, see Griffin, 483 U.S. at

873, because they did not know that Moreno was a parolee at the time of

the incident.

2668 MORENO v. BACA

cal argument three decades ago in Latta. See Latta, 521 F.2d

at 248 (“It is . . . too late in the day to assert that searches of

parolees by their parole officers present no Fourth Amend-

ment issues.”). The Fourth Amendment by its explicit terms

applies to all persons, regardless of their status under the law.

In Griffin, the Supreme Court confronted the question of

whether and to what extent the Fourth Amendment limits the

government’s ability to search probationers, who, like paro-

lees, are offered conditional liberty as an alternative to incar-

ceration. A Wisconsin regulation permitted any probation

officer to search a probationer’s home without a warrant so

long as there were “reasonable grounds” to believe that con-

traband would be found. 483 U.S. at 871. Acting in response

to a tip that the probationer kept guns in his apartment, but

without a warrant, a probation officer searched Griffin’s home

and recovered a gun there. The probationer moved to suppress

the gun in a subsequent felony trial in state court, but the

motion was denied. The Supreme Court affirmed, holding that

the “reasonable grounds” standard satisfied the Fourth

Amendment’s “reasonableness” requirement. Id. at 873. The

Court began by recognizing that “[a] probationer’s home, like

anyone else’s, is protected by the Fourth Amendment’s

requirement that searches be “reasonable.” Id. Although the

Court acknowledged that a search of a home must generally

be authorized by a warrant supported by probable cause, it

reasoned that Wisconsin’s interest in supervising its proba-

tioners constituted a “special need” beyond ordinary law

enforcement, see T.L.O., 469 U.S. at 351, which permitted a

“degree of impingement on privacy that would not be consti-

tutional if applied to the public at large.” 483 U.S. at 875.

Probation is simply one point (or more accurately,

one set of points) on a continuum of possible punish-

ments ranging from solitary confinement in a maxi-

mum security facility to a few hours of mandatory

community service. A number of different options

lie between those extremes, including confinement

MORENO v. BACA 2669

in a medium- or minimum-security facility, work

release programs, “halfway houses,” and probation

— which itself can be more or less confining

depending on the number and severity of restrictions

imposed . . . . To a greater or lesser degree, it is

always true of probationers (as we have said it to be

true of parolees) that they do not enjoy the “absolute

liberty to which every citizen is entitled, but only . . .

conditional liberty properly dependent on obser-

vance of special [probation] restrictions.”

Id. at 874 (quoting Morrissey v. Brewer, 408 U.S. 471, 480

(1972)) (statutory citation omitted) (first ellipsis added; other

alterations in the original).

The Court recently reaffirmed the principle that probation

“significantly diminish[es],” but does not extinguish, an indi-

vidual’s reasonable expectation of privacy. Knights, 534 U.S.

at 119. In Knights, a probationer had explicitly agreed to sub-

mit his person and property to a search “at anytime, with or

without a search warrant, warrant of arrest, or reasonable

cause” as a condition of his release. Id. at 114. The proba-

tioner and his colleague were suspected of having vandalized

several Pacific Gas and Electric (“PG&E”) facilities in con-

nection with an ongoing dispute between Knights and the

company over theft of services. A detective assigned to inves-

tigate noticed that acts of vandalism tended to coincide with

the probationer’s court dates in the theft-of-services dispute,

and decided to place the probationer’s home under surveil-

lance. In the bed of a truck parked in the petitioner’s drive-

way, he saw a gasoline can, a molotov cocktail, and brass

padlocks matching the description of padlocks pried from a

vandalized PG&E transformer vault. At one point he observed

the probationer’s colleague walk out of the house with what

appeared to be pipe bombs. Knowing that the probationer was

subject to the condition that his property may be searched

without cause, the officer conducted a warrantless search of

Knight’s home.

2670 MORENO v. BACA

The probationer successfully moved to suppress the evi-

dence on Fourth Amendment grounds, and we affirmed, but

the Supreme Court reversed. The Court concluded that the

search “was reasonable under our general Fourth Amendment

approach of ‘examining the totality of the circumstances.’ ”

Id. at 118 (quoting Robinette, 519 U.S. at 39). The Court rea-

soned that the probationer’s agreement to submit to suspicion-

less searches “significantly diminished [his] reasonable

expectation of privacy” and that the state had a significant

interest in supervising probationers, who were more likely

than ordinary citizens to violate the law. Id. at 119-21. None-

theless, the Court still held that reasonable suspicion was

required to search the probationer’s house, stating that a

“lesser than probable-cause standard” satisfied the Fourth

Amendment “when the balance of governmental and private

interests makes such a standard reasonable.” Id. at 121. Rely-

ing on the fact that the detective had a “reasonable suspicion”

that evidence of the PG&E crimes would be found, the court

held that the search did not violate the Fourth Amendment

because there was “enough likelihood that criminal conduct is

occurring that an intrusion on the probationer’s significantly

diminished privacy interests is reasonable.” Id.

[5] Because of the similarity of their relationship vis-a-vis

the government, we have treated parolees and probationers

essentially the same for the purpose of Fourth Amendment

analysis. See Kincade, 379 F.3d at 817 n.2 (“Our cases have

not distinguished between parolees, probationers, and super-

vised releasees for Fourth Amendment purposes.”); United

States v. Davis, 932 F.2d 752, 758 (9th Cir. 1991) (“We do

not believe the distinction between the status of parolee and

that of a probationer is constitutionally significant for pur-

poses of evaluating the scope of a search.”); United States v.

Harper, 928 F.2d 894, 896 n.1 (9th Cir. 1991) (“Nor do we

see a constitutional difference between probation and parole

for purposes of the fourth amendment.”). Like probationers,

parolees are entitled to “conditional liberty properly depen-

dent on observance of special . . . restrictions.” Morrisey, 408

MORENO v. BACA 2671

U.S. at 480; see also Penn. Bd. of Probation & Parole v.

Scott, 524 U.S. 357, 365 (1998) (describing parole as a condi-

tion in which “the State accords a limited degree of freedom

in return for the parolee’s assurance that he will comply with

the often strict terms and conditions of his release”). Whereas

a probationer’s release is premised on the idea that he or she

can serve a meaningful sentence without being incarcerated,

a parolee’s release is designed to provide a transition period

between incarceration and complete freedom. But, in either

case, some degree of privacy and autonomy is inherent in the

offender’s status.

The liberty of a parolee enables him to do a wide

range of things open to persons who have never been

convicted of any crime. The parolee has been

released from prison based on an evaluation that he

shows reasonable promise of being able to return to

society and function as a responsible, self-reliant

person. Subject to the conditions of his parole, he

can be gainfully employed and is free to be with

family and friends and to form the other enduring

attachments of normal life.

Morrisey, 408 U.S. at 480; see also Latta, 521 F.2d at 250

(holding that “the parolee’s interest in maintaining his per-

sonal privacy, even as against his parole officer, is in many

respects like that of other citizens”). Thus, the condition of a

parolee is “very different from that of confinement in a pris-

on,” and it “includes many of the core values of unqualified

liberty.” Morrisey, 408 U.S. at 480.

[6] The conditions of Moreno’s parole are only marginally

relevant to our analysis. At most, the parole agreement is a

“salient circumstance” which we must weigh in determining

whether the search and seizure in this case was reasonable.

Knights, 534 U.S. at 118. In Knights, the court held that the

offender’s probation condition, in which he agreed to submit

to suspicionless searches, “significantly diminished [his] rea-

2672 MORENO v. BACA

sonable expectation of privacy” because the “probation order

clearly expressed the search condition and [he] was unam-

biguously informed of it.” Id. at 120. In this case, by contrast,

although Moreno’s parole agreement provides that officers

may conduct a warrantless search and seizure of his person,

it does not permit officers to conduct a suspicionless arrest

and seizure.4 Random searches not premised on individualized

suspicion are not contemplated by the parole conditions.5 Cf.

Rowe v. Lamb, 130 F.3d 812, 814 (8th Cir. 1997) (holding

that a warrantless search of a probationer’s home was reason-

able where the probationer agreed as a term of his probation

to be subject to warrantless searches with or without probable

cause). Moreno cannot be accused of manifesting a subjective

expectation that he would be vulnerable to suspicionless

searches simply because he signed the parole agreement. And

his agreement to submit to warrantless searches cannot be

said to reduce his privacy rights so severely as to make a

suspicionless search reasonable.

2. The Degree of the Intrusion

Having clarified that parolees are entitled to the protection

of the Fourth Amendment, we must decide the extent to

which the Fourth Amendment protected Moreno from the

intrusion in this case. In doing so, we weigh the intrusiveness

of the search and seizure taking into account the context in

which they occurred, because the “specific content and inci-

dents” of Moreno’s right to privacy depend on “the context in

which it is asserted.” Terry v. Ohio, 392 U.S. 1, 9 (1968).

4

Similarly, in United States v. Crawford, 372 F.3d 1048 (9th Cir. 2004)

(en banc), cert. denied, 125 S. Ct. 863 (2005), in which we assumed with-

out deciding that a search of a parolee violated the Fourth Amendment, id.

at 1054, the parole document provided for “search or seizure by a parole

officer or other peace officer at any time of the day or night, with or with-

out a search warrant, and with or without cause,” id. at 1051 (emphasis

added).

5

For that reason, we find it unnecessary to address Appellants’ alterna-

tive theory that Moreno gave advance consent to the search.

MORENO v. BACA 2673

[7] Whatever the extent of Moreno’s Fourth Amendment

rights, they clearly included the right to walk along a public

sidewalk unmolested by law enforcement.

Personal liberty, which is guaranteed to every citizen

under our constitution and laws, consists of the right

of locomotion, to go where one pleases, and when,

and to do that which may lead to one’s business or

pleasure, only so far restrained as the rights of others

may make it necessary for the welfare of all other

citizens. One may travel along the public highways

or in public places; and while conducting themselves

in a decent and orderly manner, disturbing no other,

and interfering with the rights of no other citizens,

there, they will be protected under the law, not only

their persons, but in their safe conduct. The constitu-

tion and the laws are framed for the public good, and

the protection of all citizens from the highest to the

lowest; and no one may be restrained of his liberty,

unless he has transgressed some law.

Lawson v. Kolender, 658 F.2d 1362, 1368 n.13 (9th Cir.

1981) (quoting People v. De Fillippo, 262 N.W.2d 921, 924

(Mich. Ct. App. 1977) (quoting Pinkerton v. Verberg, 44

N.W. 579, 582-83 (Mich. 1889)), rev’d on other grounds, 443

U.S. 31 (1979); see also United States v. Mendenhall, 446

U.S. 544, 550 (1980) (“There is no question . . . that the

respondent [had a] constitutional right of personal security as

she walked through the Detroit Airport . . . .” ); Terry, 392

U.S. at 9 (“Unquestionably petitioner was entitled to the pro-

tection of the Fourth Amendment as he walked down the

street in Cleveland.”) (citations omitted).

In Terry, the State argued that a pat-down of a suspect’s

body for weapons was a de minimis intrusion for the purpose

of Fourth Amendment analysis. Id. at 16. Although the Court

agreed that a limited stop-and-frisk was less intrusive than a

full-blown arrest and search, it “emphatically rejected” the

2674 MORENO v. BACA

State’s contention that the intrusion was constitutionally

insignificant:

It must be recognized that whenever a police officer

accosts an individual and restrains his freedom to

walk away, he has “seized” that person. And it is

nothing less than sheer torture of the English lan-

guage to suggest that a careful exploration of the

outer surfaces of a person’s clothing all over his or

her body in an attempt to find weapons is not a

“search.” Moreover, it is simply fantastic to urge that

such a procedure performed in public by a policeman

while the citizen stands helpless, perhaps facing a

wall with his hands raised, is a “petty indignity.” It

is a serious intrusion upon the sanctity of the person,

which may inflict great indignity and arouse strong

resentment, and it is not to be undertaken lightly.

Id. at 16-17 (emphasis added). The Court went on to describe

the encounter as an “annoying, frightening, and perhaps

humiliating experience.” Id. at 25; cf. Kincade, 379 F.3d at

836 (plurality opinion) (stating that the intrusion occasioned

by a compulsory blood test was “ ‘not significant’ ” because

it involves “ ‘virtually no risk, trauma, or pain’ ”) (quoting

Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 625

(1989)).

[8] The search to which Moreno was subjected must also

have been annoying, frightening, and humiliating. He was

ordered to assume a vulnerable position for an investigatory

pat-down, his personal effects were emptied onto the hood of

a marked patrol car in full view of the neighborhood, and he

was locked into the back seat of the patrol car. Whereas Terry

involved the comparatively minor intrusion of an investiga-

tory detention and a pat-down for weapons, there is little

doubt that Moreno and his companion were subject to a full-

blown arrest and search. Moreno could not reasonably have

concluded that he was free to go about his business when he

MORENO v. BACA 2675

was locked inside the patrol car. See Bostick, 501 U.S. at 437

(holding that in determining whether one has been seized,

“the crucial test is whether, taking into account all of the cir-

cumstances surrounding the encounter, the police conduct

would ‘have communicated to a reasonable person that he

was not at liberty to ignore the police presence and go about

his business’ ”) (quoting Michigan v. Chesternut, 486 U.S.

567, 569 (1988)). And the fact that Moreno was locked in the

car after he was patted down and questioned makes it impos-

sible to argue that the detention was anything but a full custo-

dial arrest. See Dunaway v. New York, 442 U.S. 200, 212

(1979); Florida v. Royer, 460 U.S. 491, 499 (1983) (“In the

name of investigating a person who is no more than suspected

of criminal activity, the police may not carry out a full search

of the person or of his automobile or other effects. Nor may

the police seek to verify their suspicions by means that

approach the conditions of arrest.”). Moreno certainly had a

legitimate expectation of privacy with respect to the contents

of his pockets, especially in light of the fact that a Terry pat-

down had previously been conducted and no weapons or con-

traband were found. See Minnesota v. Dickerson, 508 U.S.

366, 378 (1993); United States v. Miles, 247 F.3d 1009, 1015

(9th Cir. 2001). We are confident that no court would counte-

nance the intrusion to which Moreno was subjected, were it

imposed on an ordinary person unfettered by parole condi-

tions, unless it was supported by probable cause.

3. California’s Interest in Supervising its Parolees

“In most cases, the State is willing to extend parole only

because it is able to condition it upon compliance with certain

requirements. The State thus has an overwhelming interest in

ensuring that a parolee complies with those requirements and

is returned to prison if he fails to do so.” Scott, 524 U.S. at

365.

California’s interest in supervising parolees, like its interest

in supervising probationers, is twofold. First, it has an interest

2676 MORENO v. BACA

in ensuring that its offenders successfully complete their

terms and become integrated back into the community. See

Knights, 534 U.S. at 120; Griffin, 483 U.S. at 875 (noting that

probation conditions are “meant to assure that the probation

serves as a period of genuine rehabilitation”). Second, it has

an interest in protecting the public from the harm that recidi-

vist parolees can cause.6 See Latta, 521 F.2d at 249 (plurality

opinion) (describing the duty of parole officers to “prevent[ ]

possible further antisocial or criminal conduct by the paro-

lee”). The traditional assumption has been that close supervi-

sion promotes the purposes of parole by reducing an

offender’s opportunity to commit another crime or otherwise

violate the terms of his or her release. See Griffin, 483 U.S.

at 875 (holding that “more intensive supervision can reduce

recidivism”) (citing Petersilia, Probation and Felony Offend-

ers, 49 Fed. Probation 9 (June 1985)).

[9] But our task is not simply to weigh the gravity of Cali-

fornia’s interests in rehabilitating its parolees and protecting

its citizens; we must also assess the degree to which suspi-

cionless searches actually advance those interests. See

Knights, 534 U.S. at 118-19. It is not clear that suspicionless

searches advance either the deterrent or rehabilitative purpose

of parole. More recent studies suggest that close supervision

of offenders has relatively little impact on recidivism rates.

Joan Petersilia, A Decade of Experimenting with Intermediate

Sanctions: What Have We Learned? 62 Federal Probation 3,

6 (Dec. 1998) (finding that close supervision “did not

decrease subsequent arrests or overall justice system costs,”

and rejecting the premise that “increased surveillance acts as

a constraint on the offender and that the likelihood of detec-

6

California has the highest recidivism rate in the nation, with 70 percent

of its paroled felons re-offending within the first 18 months of their

release. Crawford, 372 F.3d at 1069 (Trott, J., concurring) (citing Joan

Petersilia, Challenges of Prisoner Reentry and Parole in California, 12

CPRC (June 2000)). A full 68 percent of adult parolees are returned to

prison: 55 percent for a parole violation and 13 percent for the commission

of a new felony offense. Id.

MORENO v. BACA 2677

tion acts as a deterrent to crime”). After all, parole is intended

to provide a transition between prison, which allows for very

little privacy, and freedom, inherent in which is a great deal

of privacy. In sum, the State has not shown that suspicionless

searches, which mimic the conditions of prison, significantly

advances the purposes of parole beyond searches based on a

reasonableness requirement.

4 The Reasonable Suspicion Standard

[10] Apart from cases presenting a “special need, beyond

ordinary law enforcement,” courts have generally required

some level of individualized suspicion in order to meet the

Fourth Amendment’s “reasonableness” test.7 The Supreme

Court emphasized the existence of a “reasonable suspicion”

when it affirmed the probation searches in both Griffin, 483

U.S. at 871, and Knights, 534 U.S. at 121. We cited the “rea-

sonable suspicion” standard when evaluating the constitution-

ality of a parole search in United States v. Dally, 606 F.2d

861, 863 (9th Cir. 1979) (holding that a parole search was

“reasonable” under the Fourth Amendment because the parole

officer had a “reasonable belief” that the parolee had violated

his parole by changing addresses), and after concluding that

the Fourth Amendment rights of parolees and probationers

were indistinguishable, we applied the “reasonable suspicion”

standard when evaluating the search of a probationer in Davis,

932 F.2d at 758 (“The permissible bounds of a probation

search are governed by a reasonable suspicion standard.”).

See also United States v. Stokes, 292 F.3d 964, 967 (9th Cir.

7

Even “special needs” cases have required individualized suspicion in

order to conduct targeted searches of individuals. See T.L.O., 469 U.S. at

347; Griffin, 483 U.S. at 879-880. The only truly suspicionless searches

that have been permitted under the “special needs” doctrine involve cases

in which blanket searches or seizures of broad groups of individuals were

required. See, e.g., Illinois v. Lidster, 540 U.S. 419, 124 S. Ct. 885, 889

(2004) (checkpoint established to question all motorists regarding a crime

in the area); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 665 (1995)

(suspicionless drug testing of student athletes).

2678 MORENO v. BACA

2002) (holding that “the probation officer was entitled to

carry out a search of Stokes’ vehicle with no more than rea-

sonable suspicion that he was engaged in criminal activity”).

Even were we free to do so, we see no reason to abandon that

standard here. 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.8

[11] Viewing the evidence in the light most favorable to

Moreno, we conclude that Appellants lacked reasonable sus-

picion to detain and search him. Neither Banks nor Garcia had

received any information that would cause them to suspect

Moreno of any illegal activity. Banks asserts that Moreno was

in a high crime area and looked nervous on seeing the police

car. But Moreno denies reaching into his pocket, or bending

to his side and placing anything on the ground. These facts,

when viewed in the light most favorable to Moreno, do not

give rise to reasonable suspicion. See United States v. Chavez-

Valenzuela, 268 F.3d 719, 726 (9th Cir. 2001) (holding that

“nervousness alone” does not give rise to reasonable suspi-

cion), amended by 279 F.3d 1062 (9th Cir. 2002); United

States v. Garcia-Camacho, 53 F.3d 244, 247 (9th Cir. 1995)

(holding that a “surprised” and “terrified” look on the defen-

dant’s face when pulled over by law enforcement does not

give rise to reasonable suspicion); United States v. Rodriguez,

976 F.2d 592, 595-96 (9th Cir. 1992) (holding that the defen-

dant’s repeated glances at law enforcement officers through a

8

The concurring opinion relies heavily on Judge Trott’s concurring

opinion in Crawford that the applicable standard should be that a parole

search not be “arbitrary, capricious, or harassing.” Concurrence at 2692,

2693. Regardless of Judge Trott’s reasoning in his Crawford concurrence,

however, the court’s opinion in Crawford explicitly declined to consider

what level of suspicion was required to justify the search at issue. See

Crawford, 372 F.3d at 1054.

MORENO v. BACA 2679

rear-view mirror did not give rise to reasonable suspicion),

amended by 997 F.2d 1306 (9th Cir. 1993); cf. Stokes, 292

F.3d at 967-68 (holding that the reasonable suspicion standard

was met where the officer knew the defendant, knew that the

defendant was on probation subject to a search condition, and

had reliable information linking defendant to the theft of guns

from his co-worker).

B. Did the Existence of the Outstanding Bench

Warrant Retroactively Justify the Arrest and

Search?

[12] Appellants argue in the alternative that the search was

reasonable under the Fourth Amendment because there was

an outstanding misdemeanor warrant for Moreno’s arrest. We

agree that, depending on its contents and the manner in which

it was executed, the existence of an arrest warrant could have

rendered Moreno’s arrest “reasonable,” cf. United States v.

Leon, 468 U.S. 897, 914 (1984), and that a search incident to

a lawful arrest would have been permissible under United

States v. Robinson, 414 U.S. 218, 235 (1973). It is undisputed,

however, that Deputies Banks and Garcia were not aware of

Moreno’s outstanding arrest warrant at the time of the seizure.

Thus, we must confront the question of whether a search or

seizure can be considered “reasonable” if the fact that ren-

dered the search “reasonable” (in this case, the outstanding

arrest warrant) was unknown to the officer at the time of the

intrusion.9 We hold that it cannot.

9

We need not reach the separate question of whether the search was

retroactively justified by the existence of a parole condition that rendered

the suspicionless search reasonable, because we hold that the search would

not have been reasonable even if the officers knew of Moreno’s status as

a parolee and the conditions of his parole at the time of the arrest and

search. But we note that the California Supreme Court rejected an identi-

cal argument in People v. Sanders, 73 P.3d 496 (Cal. 2003), when it held

that the “police cannot justify an otherwise unlawful search of a residence

because, unbeknownst to the police, a resident of the dwelling was on

parole and subject to a search condition.” Id. at 505. The court concluded

2680 MORENO v. BACA

It is well established that under the Fourth Amendment, to

arrest a suspect on probable cause, the “facts and circum-

stances within the officer’s knowledge [must be] sufficient to

warrant a prudent person, or one of reasonable caution, in

believing, in the circumstances shown, that the suspect has

committed, is committing or is about to commit an offense.”

Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). “[A]lmost

without exception in evaluating alleged violations of the

Fourth Amendment the Court has first undertaken an objec-

tive assessment of an officer’s actions in light of the facts and

circumstances then known to him.” Scott v. United States, 436

U.S. 128, 137 (1978); see also Ornelas v. United States, 517

U.S. 690, 696 (1996) (“We have described reasonable suspi-

cion simply as ‘a particularized and objective basis’ for sus-

pecting the person stopped of criminal activity, and probable

cause to search as existing where the known facts and circum-

stances are sufficient to warrant a man of reasonable prudence

in the belief that contraband or evidence of a crime will be

found.”) (emphasis added) (citation omitted); Illinois v.

Rodriguez, 497 U.S. 177, 188 (1990) (holding that “factual

determinations bearing upon search and seizure” must be

judged against an “objective standard” based on “facts avail-

able to the officer at the moment”).10

that while parolees have a reduced expectation of privacy, they “need not

anticipate that officers with no knowledge of the probationer’s existence

or search condition may freely invade their residence in the absence of a

warrant or exigent circumstances.” Id. at 504 (quoting People v. Robles,

3 P.3d 311, 317 (Cal. 2000)). The court noted that its decision “flows from

the rule that whether a search is reasonable must be determined based

upon the circumstances known to the officer when the search is conduct-

ed.” Id. at 505.

10

See also Thacker v. City of Columbus, 328 F.3d 244, 261 (6th Cir.

2003); United States v. Castro, 166 F.3d 728, 733 (5th Cir. 1999)

(“Probable cause exists when the totality of facts and circumstances within

a police officer’s knowledge at the moment of arrest are sufficient for a

reasonable person to conclude that the suspect had committed, or was in

the process of committing, an offense.”) (emphasis added); Taylor v.

MORENO v. BACA 2681

In United States v. Luckett, 484 F.2d 89 (9th Cir. 1973) (per

curiam), we held that a police officer’s knowledge that a man

was subject to an outstanding bench warrant, which he

acquired only after unlawfully seizing the man, did not retro-

actively render the seizure of that man “reasonable” under the

Fourth Amendment. Id. at 90-91. In that case, the officer spot-

ted a man jaywalking and summoned him to his police car.

After reviewing the man’s identification, the officer detained

the man long enough to write a jaywalking citation. We held

that the temporary seizure during which the police checked

the man’s identification and wrote the citation was reasonable

under the Fourth Amendment because it was “ ‘strictly tied to

and justified by’ the circumstances which rendered its initia-

tion permissible.” Id. at 90 (quoting Terry, 392 U.S. at 16,

19). But the officer continued to detain the man after the cita-

tion was written for the sole purpose of running a warrant

check on him. The warrant check turned out positive, and the

officer arrested him on that basis. A search incident to that

arrest revealed a package of counterfeit money orders. We

held that the detention of the man for the purpose of running

the warrant check was “unreasonable,” and the evidence was

properly suppressed at trial, because at the time it was con-

ducted, the officer “had no reasonable grounds to be suspi-

cious that there might be a warrant outstanding against him.”

Id. at 91; see also United States v. Johnson, 256 F.3d 895, 903

(9th Cir. 2001) (en banc) (Ferguson, J., joined by Schroeder,

Pregerson, and Paez, JJ.) (“We have never held that an officer

lacking any prior objective knowledge of the use of an out-

Waters, 81 F.3d 429, 434 (4th Cir. 1996) (“In assessing the existence of

probable cause, courts examine the totality of the circumstances known to

the officer at the time of the arrest.”) (emphasis added). Indeed, in

addressing the converse situation, in which law enforcement officers

arrested a man because they reasonably believed that an outstanding arrest

warrant existed when in fact it did not, the Supreme Court found that the

seizure was “reasonable” (for the purpose of applying the “good faith”

exception to the exclusionary rule) precisely because it was justified based

on the facts known to the officers at the time. Leon, 468 U.S. at 926.

2682 MORENO v. BACA

building may approach it free of Fourth Amendment con-

straints.”); United States v. DiCesare, 765 F.2d 890, 899 (9th

Cir. 1985) (“[T]he acquisition of probable cause during an

unlawful seizure does not cure the illegality and does not con-

stitute an independent source of probable cause.”), amended

by 777 F.2d 543 (9th Cir. 1985).

Appellants cite to Whren v. United States, 517 U.S. 806

(1996), for the proposition that the underlying intent or moti-

vation of the police is irrelevant for Fourth Amendment

search and seizure purposes. Id. at 813. But Whren held only

that the illegitimate subjective motivation of a police officer

will not invalidate an otherwise constitutional seizure that is

“objectively justifiable” based on facts known to the officer.

Id.; see also United States v. Cervantes, 219 F.3d 882, 890

(9th Cir. 2000) (“It is important to remember that the founda-

tion of the Court’s position in Whren is that ‘where the search

or seizure is based upon probable cause’ there is with rare

exception no balancing to be done or reasonableness determi-

nation to be made because the probable cause itself serves as

the exclusive ‘measure of the lawfulness of enforcement.’ ”)

(quoting Wayne R. LaFave, Search and Seizure: A Treatise

on the Fourth Amendment § 1.4 (3d ed. 1996) (footnote omit-

ted)); United States v. Wallace, 213 F.3d 1216, 1219 (9th Cir.

2000) (“The fact that the alleged traffic violation is a pretext

for the stop is irrelevant, so long as the objective circum-

stances justify the stop.”). In other words, although Whren

stands for the proposition that a pretextual seizure based on

the illegitimate subjective intentions of an officer may be per-

missible, it does not alter the fact that the pretext itself must

be a constitutionally sufficient basis for the seizure and the

facts supporting it must be known at the time it is conducted.

Whren, 517 U.S. at 813. In this case, as in Luckett, it is undis-

puted that Appellants were not aware of the fact that Moreno

was subject to an outstanding arrest warrant at the time they

arrested him. Therefore, there are no facts from which we can

conclude that the suspicionless arrest and search in this case

were objectively justifiable.

MORENO v. BACA 2683

Appellants’ reliance on cases dealing with one’s “standing”

to bring a Fourth Amendment challenge, Minnesota v. Carter,

525 U.S. 83 (1998), United States v. Padilla, 508 U.S. 77

(1993), and Rawlings v. Kentucky, 448 U.S. 98 (1980), is like-

wise unavailing. In each of those cases, there was a question

as to whether the person challenging the search had standing

because he or she lacked a legitimate expectation of privacy

in the place searched or the thing seized. See Carter, 525 U.S.

at 91 (holding that respondent lacked standing to bring Fourth

Amendment challenge based on police search of another per-

son’s home because respondent had no expectation of privacy

therein); Padilla, 508 U.S. at 81-82 (remanding for factual

determination as to whether petitioner had a legitimate pri-

vacy interest in a seized automobile in which he had no own-

ership interest and was not a passenger); Rawlings, 448 U.S.

at 105-06 (holding that petitioner could not challenge the

search of another person’s purse because he lacked a reason-

able expectation of privacy therein). By contrast, there is no

question that Moreno had standing to challenge the search and

seizure of his own person. See Terry, 392 U.S. at 9 (“No right

is held more sacred, or is more carefully guarded, by the com-

mon law, than the right of every individual to the possession

and control of his own person, free from all restraint or inter-

ference of others, unless by clear and unquestionable author-

ity of law.”) (quoting Union Pac. Ry. v. Botsford, 141 U.S.

250, 251 (1891)). And, in any case, Appellants’ argument

relies on the assumption, which we reject, that as a result of

the outstanding arrest warrant, Moreno had no Fourth Amend-

ment rights at all.

C. Were the Constitutional Rights at Issue Clearly

Established?

[13] Having established that Appellants violated Moreno’s

constitutional rights when they conducted the suspicionless

search and seizure, we must evaluate whether those rights

were clearly established at the time of the incident and

whether the “unlawfulness [of Appellants’ conduct] was

2684 MORENO v. BACA

apparent in light of preexisting law.” Malik v. Brown, 71 F.3d

724, 727 (9th Cir. 1995).

It is not necessary that the alleged acts have been

previously held unconstitutional, as long as the

unlawfulness [of defendants’ actions] was apparent

in light of preexisting law. Closely analogous preex-

isting case law is not required to show that a right

was clearly established. In other words, while there

may be no published cases holding similar policies

constitutional, this may be due more to the obvious-

ness of the illegality than the novelty of the legal

issue.

Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir. 2002). “[W]hen

an officer’s conduct ‘is so patently violative of the constitu-

tional right that reasonable officials would know without

guidance from the courts that the action was unconstitutional,

closely analogous pre-existing case law is not required to

show that the law is clearly established.’ ” Boyd v. Benton

County, 374 F.3d 773, 781 (9th Cir. 2004) (quoting Deorle v.

Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001)).

Deputies Banks and Garcia detained and searched Moreno

based on his nervous behavior when he spotted the patrol car

in an area known for high crime.11 They contend that their

actions were justified (1) because, as a result of Moreno’s

parole status and his outstanding arrest warrant, no level of

suspicion was required in order to arrest and search him, and

(2) even if reasonable suspicion was required to search

Moreno, the officers had reasonable suspicion based on More-

no’s nervous behavior in a high crime area. Both contentions

are untenable.

11

Because we view the facts in the light most favorable to the nonmov-

ing party, we do not consider the officers’ contention, which Moreno

denies, that Moreno removed an object from his pocket and placed it on

the ground.

MORENO v. BACA 2685

Appellants’ first argument in favor of qualified immunity

— that it was not clearly established that Moreno had any

right to be free from suspicionless searches because of his

parole status and his outstanding arrest warrant — relies on

the two alternate assertions discussed above, both of which

must fail. When evaluating whether a law enforcement officer

was on notice that his conduct was unlawful in a particular

instance, we look only to the “circumstances presented to

[the] officer.” Saucier, 533 U.S. at 209. The “relevant, dispo-

sitive inquiry is whether it would be clear to a reasonable offi-

cer that his conduct was unlawful in the situation he

confronted.” Id. at 202 (emphasis added).

[14] Appellants’ first assertion — that the parole search

condition stripped Moreno of “a normal scope of Fourth

Amendment protection” — does not justify the suspicionless

search and seizure. While Moreno’s parole status may have

rendered it unclear what level of suspicion was required to

conduct such a warrantless search, it was clearly established

that a parolee was not stripped of all Fourth Amendment pro-

tection whatsoever. Cf. Griffin, 483 U.S. at 873 (stating that

“[a] probationer’s home, like anyone else’s, is protected by

the Fourth Amendment’s requirement that searches be ‘reason-

able’ ”)12; United States v. Guagliardo, 278 F.3d 868, 873 (9th

Cir. 2002) (rejecting the argument that a probation condition

requiring submission to any search by law enforcement or

probation officers was overbroad on the basis that such a

search is valid if supported by reasonable suspicion); United

States v. Conway, 122 F.3d 841, 844-45 (9th Cir. 1997) (dis-

cussing, but declining to decide, whether the search of a pro-

bationer’s residence required probable cause or only

reasonable suspicion); Davis, 932 F.2d at 758 (stating that

“[t]he permissible bounds of a probation search are governed

by a reasonable suspicion standard”); Latta, 521 F.2d at 248

12

As discussed above, we have recognized that there is no “constitu-

tional difference between probation and parole for purposes of the fourth

amendment.” Harper, 928 F.2d at 896 n.1.

2686 MORENO v. BACA

(stating that “[i]t is . . . too late in the day to assert that

searches of parolees . . . present no Fourth Amendment

issues”).

[15] Second, because the Deputies did not know of More-

no’s parole status and his outstanding arrest warrant at the

time they searched and seized him, those circumstances can-

not justify their conduct. And in any case, at the time of the

incident in this case, it was clearly established that the facts

upon which the reasonableness of a search or seizure depends,

whether it be an outstanding arrest warrant, a parole condi-

tion, or any other fact, must be known to the officer at the

time the search or seizure is conducted. Rodriguez, 497 U.S.

at 188; Luckett, 484 F.2d at 90-91.

[16] Appellants’ other argument — that the officers reason-

ably believed that the facts known to them constituted “rea-

sonable suspicion” — is also unpersuasive. It was well-

established at the time of Moreno’s detention that nervousness

in a high crime area, without more, did not create reasonable

suspicion to detain an individual. In Chavez-Valenzuela, 268

F.3d at 725, we noted that although the Ninth Circuit had not

yet ruled on whether nervousness alone constitutes reasonable

suspicion, the Sixth, Seventh, and Eleventh Circuit had con-

cluded (prior to 2000) that appearing nervous is only one of

several factors for finding reasonable suspicion. See United

States v. Hill, 195 F.3d 258, 272 (6th Cir. 1999); United

States v. Finke, 85 F.3d 1275, 1280 (7th Cir. 1996). We also

noted that “no circuit has held that nervousness alone suffices

to create reasonable suspicion.” Chavez-Valenzuela, 268 F.3d

at 726; see also Brown v. Texas, 443 U.S. 47, 52 (1979)

(holding that officers did not have reasonable suspicion for an

investigatory stop when they detained two men who were

walking away from each other in an alley in an area known

for drug trafficking because “the . . . activity was no different

from the activity of other pedestrians in that neighborhood”).

The Supreme Court has held that in some circumstances an

individual’s flight from law enforcement in a high crime area

MORENO v. BACA 2687

can justify an investigatory seizure. Illinois v. Wardlow, 528

U.S. 119, 125 (2000). But Moreno’s simple act of walking

away from the officers could not have been reasonably mis-

taken for the type of “flight” the officers confronted in War-

dlow. See United States v. Valentine, 232 F.3d 350, 357 (3d

Cir. 2000) (“Walking away from the police hardly amounts to

the headlong flight considered in Wardlow and of course

would not give rise to reasonable suspicion by itself, even in

a high-crime area[.]”). Interpreting all disputed issues of fact

in favor of Moreno, as we must, we hold that no reasonable

officer could have concluded that the circumstances con-

fronted by Appellants in this case gave rise to “reasonable

suspicion.”

CONCLUSION

For the foregoing reasons, we affirm the district court’s

denial of qualified immunity and remand for further proceed-

ings.

AFFIRMED and REMANDED.

CLIFTON, Circuit Judge, concurring in the judgment:

I agree with my colleagues that the district court properly

denied Defendants’ motion for summary judgment based on

their qualified immunity defense, and thus I concur in the

judgment affirming the decision of the district court. I write

separately, however, because I disagree with the majority’s

stated conclusion that the Defendants’ actions violated More-

no’s constitutional rights on the theory that reasonable suspi-

cion is required to justify a search or seizure of a parolee,

even though the relevant terms of Moreno’s parole would

appear to permit a warrantless search or seizure. The majori-

ty’s conclusion to that effect is entirely irrelevant to the result

reached in this case and should appropriately be disregarded.

2688 MORENO v. BACA

Defendants’ motion for summary judgment is based on a

claim of qualified immunity. As the majority correctly notes,

ante at 2665, the Supreme Court, in Saucier v. Katz, 533 U.S.

194, 201 (2001), established a two-step analysis for determin-

ing whether a law enforcement officer is entitled to qualified

immunity. The first question is whether the facts alleged,

taken in the light most favorable to the party asserting the

injury, meaning Moreno in the current case, “show the offi-

cer’s conduct violated a constitutional right.” Id. The second

question is “whether the right was clearly established.” Id. In

order to deny Defendants’ summary judgment motion based

on a defense of qualified immunity, we must conclude not

only that Defendants violated Moreno’s constitutional right,

but also that the right at issue was clearly established.

As the majority notes, Defendants have argued that More-

no’s Fourth Amendment rights were not violated by the

detention and search in this case because these actions were

consistent with Moreno’s parole condition. In order to reach

this question, however, the court must first determine whether

Defendants can retroactively justify the arrest and search of

Moreno based on his parole condition and outstanding arrest

warrant, even though the officers were unaware of these facts

at the time.

In addressing this question, the majority correctly con-

cludes that

because the Deputies did not know of Moreno’s

parole status and his outstanding arrest warrant at the

time they searched and seized him, those circum-

stances cannot justify their conduct. And in any case,

at the time of the incident in this case, it was clearly

established that the facts upon which the reasonable-

ness of a search or seizure depends, whether it be an

outstanding arrest warrant, a parole condition, or any

other fact, must be known to the officer at the time

the search or seizure is conducted. [Illinois v. Rodri-

MORENO v. BACA 2689

guez, 497 U.S. 177, 188 (1990) Rodriguez, 497 U.S.

at 188; United States v. Luckett, 484 F.2d 89, 90-91

(9th Cir. 1973) (per curiam)].

Ante at 2686. On this basis alone, the court must deny Defen-

dants’ qualified immunity defense, at this stage of the case,

and affirm the judgment of the district court. There is no rea-

son to consider whether Plaintiff’s parole condition altered his

Fourth Amendment rights because Defendants were not aware

he was on parole when they conducted the search.

Regardless, the majority reaches out to address this ques-

tion and to try to announce a new rule of law — specifically,

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.”

Ante at 2678 (emphasis added). The majority supports its

announcement by asserting that in United States v. Knights,

534 U.S. 112, 121 (2001), the Supreme Court held that “rea-

sonable suspicion was required to search the probationer’s

house.”1 See ante at 2670. That is plainly wrong.

In Knights, the Supreme Court held that “no more than rea-

sonable suspicion” is required to conduct a search of a proba-

tioner’s house. 534 U.S. at 121 (emphasis added). Since it had

already been determined that reasonable suspicion existed in

that case, the Court did not need to consider whether the

search in question could be supported by something less. And

the Court did not simply leave that for readers to infer. It said

as much, in so many words:

We do not decide whether the probation condition so

diminished, or completely eliminated, Knights’ rea-

1

As the majority notes, we have treated probationers and parolees the

same for purposes of Fourth Amendment analyses. See ante at 2670 (cit-

ing United States v. Kincade, 379 F.3d 813, 817 n.2 (9th Cir. 2004)).

2690 MORENO v. BACA

sonable expectation of privacy (or constituted con-

sent) that a search by a law enforcement officer

without any individualized suspicion would have sat-

isfied the reasonableness requirement of the Fourth

Amendment. The terms of the probation condition

permit such a search, but we 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 (internal citation omitted). Knights does not

support the rule which the majority opinion attempts to build

on top of it.

The history of this issue before our court further explains

why the majority opinion’s declaration is unnecessary and

inappropriate in the current case. In order to hold that Defen-

dants are not entitled to qualified immunity, the court has to

determine that Defendants violated a constitutional right that

was “clearly established.” See Saucier, 533 U.S. 195, 201

(2001). It is impossible to conclude that, at the time of the

incident in question, it was clearly established that a parolee

had a right to be free of any search or detention that was not

supported by reasonable suspicion. The Knights footnote

quoted above indicates as much. The Knights decision was

announced in December 2001. If the issue remained open at

that point in time, the rule of law which the majority opinion

in this case purports to apply here surely was not “clearly

established” twenty-three months earlier, in January 2000,

when the events at issue in this case occurred.

Moreover, the members of our court, including specifically

the members who make up the majority in this case, are very

aware of that fact, because we have history with this issue. A

three-judge panel of this court issued an opinion in May 2003

which adopted the same view as the majority in this case, that

“reasonable suspicion” was required to justify a search of a

parolee, despite parole terms which permitted search without

MORENO v. BACA 2691

such suspicion, and that a search without such reasonable sus-

picion violated the constitutional right of the parolee. See

United States v. Crawford, 323 F.3d 700 (9th Cir. 2003). The

panel was split 2-to-1, with one judge dissenting. The author

of the majority opinion in the current case was one of the two

judges who formed the majority in the Crawford three-judge

panel opinion. To be sure, that decision was not announced

until more than three years after the January 2000 events at

issue in this case, so it could not support any claim that the

doctrine in question was clearly established at the time rele-

vant to this matter. More importantly, that opinion was set

aside when a majority of all the active judges of this court

voted to rehear the case en banc. See United States v. Craw-

ford, 343 F.3d 961 (9th Cir. 2003). Since the subsequent en

banc panel decided not to adopt its reasoning, the opinion of

the original three-judge panel has no precedential effect

today.

On rehearing en banc, our court resolved that case without

determining whether a suspicionless search of a parolee’s res-

idence violated the Fourth Amendment: “We need not and do

not decide . . . whether suspicionless parole searches violate

the Fourth Amendment.” United States v. Crawford, 372 F.3d

1048, 1054 (9th Cir. 2004) (en banc). It became unnecessary

to reach that issue in Crawford because we concluded that,

even assuming that reasonable suspicion was required to

search a parolee’s residence, the confession later given by the

defendant in that case was too far removed from the allegedly

improper search to require suppression of Crawford’s confes-

sion.

Separately, though, five members of that Crawford en banc

panel, most of whom also joined in the Crawford en banc

panel majority opinion authored by Judge Graber, proceeded

to address the issue of a parolee’s Fourth Amendment rights

and reached a conclusion different from that of the two judges

who make up the majority in the current case. Specifically, as

expressed in the separate concurring opinion of Judge Trott,

2692 MORENO v. BACA

those five judges concluded 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.” Id. at 1063

(Trott, J., concurring). In so concluding, the Crawford concur-

rence explicitly rejected the notion, embraced by the majority

in the current case, that a parolee cannot be searched absent

a degree of individualized suspicion. Id. at 1076. I was one of

the five judges who joined Judge Trott’s concurring opinion,

and I continue to adhere to the position expressed there. Thus,

I disagree with the reasoning and conclusion on that subject

expressed in the majority opinion in the current case. Rather

than repeat what Judge Trott has already written, I incorporate

his discussion by reference. It is important to note that the

view expressed in the Crawford concurrence, though not

adopted by the en banc panel in that case, was not rejected by

our court in that case, either.

As it happens, the two judges who support the majority

opinion in the current case were also members of the en banc

panel in Crawford.2 They were two of the three judges who

joined a dissenting opinion in Crawford, authored by Judge

William Fletcher. 372 F.3d at 1082. The principal thrust of

that dissent was the same position asserted by the majority

opinion here, that a parolee search without reasonable suspi-

cion violated the Fourth Amendment. That position was not

adopted by the remaining eight members of the 11-judge en

banc panel.

Having joined a dissenting opinion which took the same

position just a few months ago, my colleagues are well aware

that the “constitutional right” which they purport to identify

in this case could not fairly be characterized as “clearly estab-

lished,” under the Saucier test. The history of the Crawford

case makes such a conclusion impossible.

2

Although that might be unremarkable in other circuits, our court uti-

lizes a “limited en banc” court system, under which an en banc panel con-

sists of 11 judges and does not include all active judges of our court. See

9th Cir. R. 35-3.

MORENO v. BACA 2693

Under these circumstances, the majority’s digression to

assert that the Constitution requires reasonable suspicion to

search a parolee, regardless of the terms of parole, amounts to

no more than a frolic. Since no such “right” was “clearly

established,” the purported existence of such a right could

never support the resolution of this case.

The majority attempts to evade this problem by stating that

it was “clearly established that a parolee [is] not stripped of

all Fourth Amendment protection whatsoever.” Ante at 2685.

But that is a far cry from the proposition that it was “clearly

established” that a parolee search requires reasonable suspi-

cion. Judge Trott’s concurring opinion in Crawford, which

staked out a position opposed to that of the majority here,

illustrates. Judge Trott did not assert that a parolee was

stripped of all Fourth Amendment protection. To the contrary,

he specifically recognized that a parolee search could not be

“arbitrary, capricious, or harassing.” 372 F.3d at 1063. That

a parolee may benefit from Fourth Amendment protection

does not necessarily mean that a search cannot be conducted

without reasonable suspicion. For the majority opinion here to

say that it was clearly established that a parolee has not lost

all Fourth Amendment protection falls far short of what is

needed to sustain the rule it attempts to announce.

Moreover, the cases cited in the majority opinion do not

actually support the new doctrine it announces here, because

the question of whether a parolee could be searched or

detained on less than reasonable suspicion did not have to be

resolved in those cases, just as it did not have to be resolved

in Knights. See Griffin v. Wisconsin, 483 U.S. 868, 880 (1987)

(concluding that search of probationer’s home was reasonable

within the meaning of the Fourth Amendment); United States

v. Guagliano, 278 F.3d 868, 873 (9th Cir. 2002) (affirming

probation requirement requiring probationer to submit to

searches without considering whether particular search vio-

lated the Fourth Amendment); United States v. Conway, 122

F.3d 841, 845 (9th Cir. 1997 (determining that officers had

2694 MORENO v. BACA

probable cause to search probationer’s residence); United

States v. Davis, 932 F.2d 752, 760 (9th Cir. 1991) (concluding

that police had reasonable suspicion to conduct search); Latta

v. Fitzharris, 521 F.2d 246, 252 (9th Cir. 1975) (finding that

search was not unreasonable).

Since the “right” purportedly announced by the majority

opinion here could not be held to have been clearly estab-

lished in January 2000, the recognition of such a “right” can-

not be the basis for denying Defendants’ qualified immunity

defense and for affirming the judgment of the district court.

The majority’s assertion that a constitutional right of Moreno

was violated because reasonable suspicion is required to jus-

tify a search and seizure of a parolee is simply irrelevant to

the resolution of this case.

We have held that “ ‘where a panel confronts an issue ger-

mane to the eventual resolution of the case, and resolves it

after reasoned consideration in a published opinion, that rul-

ing becomes the law of the circuit, regardless of whether

doing so is necessary in some strict logical sense.’ ” Miranda

B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir. 2003) (per

curiam), quoting United States v. Johnson, 256 F.3d 895, 914

(9th Cir. 2001) (en banc). But see Miller v. Gammie, 335 F.3d

889, 902 (9th Cir. 2003) (Tashima, J., concurring) (arguing

that when a three-judge panel reaches a conclusion that in

unnecessary to the resolution of the case, this conclusion is

non-binding dicta). As discussed above, the majority’s con-

clusion in this case that a law enforcement officer must, at

minimum, have a reasonable suspicion before searching or

detaining a parolee has nothing to do with the resolution of

this case, and so it should not qualify as germane.

Furthermore, as the officers were not aware of Moreno’s

parole condition at the time of his search and detention, the

facts in this case only present the hypothetical question of

what level of suspicion is required when an officer searches

or detains a parolee and knows of the parole status and of the

MORENO v. BACA 2695

terms or conditions of parole which appear to authorize a

search without warrant or “reasonable suspicion.” This court

has previously observed that “ ‘an opinion advising what the

law would be upon a hypothetical state of facts’ ” is advisory

and thus, non-binding. See Cornejo-Barreto v. Siefert, 379

F.3d 1075, 1082 (9th Cir. 2004) (quoting North Carolina v.

Rice, 404 U.S. 244, 246 (1971)), vacated as moot on other

grounds 389 F.3d 1307 (2004).

Consequently, as the majority’s statement that reasonable

suspicion is required to justify a search and seizure of a paro-

lee is unnecessary to resolve this case and is a discussion

regarding a hypothetical set of facts, that announcement

should be treated as a bit of dictum, which should have no

binding or precedential impact in future cases. That question

will not be resolved by this panel, of course. The next panel

of this court to encounter the underlying question may con-

sider it. But I feel compelled to make clear my disagreement

with the view expressed in the majority opinion and suggest

that it be both read with caution and paid no heed in the

future.