Case o' The Week: First Impression, Depression - Cervantes and Cali "Mandatory Supervision" Searches

  Jaywalk, stopped, searched, hotel room key found -- then room secretly searched without a warrant or reasonable suspicion of crime.

   Jaywalking is dangerous.

United States v. Steven Cervantes, 2017 WL 2622776 (9th Cir. June 19, 2017), decision available here.

The Honorable Judge Paul Watford

Players: Decision by Judge Watford, joined by Judges McKeown and Trott. 

  Hard-fought appeal by CD Cal AFPD Michael Tanaka.

Facts: Cervantes pleaded guilty to felony drug and counterfeiting charges in California. Id. at *1. He received a split sentence under the 2011 California “Realignment Act.” That suspended the second part of the term: a period called “mandatory supervision.” Id. Those on “mandatory supervision” are supervised in the same manner as those on probation. Id. Cervantes agreed to mandatory terms of supervision, including a warrantless, suspicionless search condition. Id. at *2. 

  After Cervantes was released from his initial custody, he was stopped for jaywalking. The officer learned Cervantes was on probation (actually, mandatory supervision), searched him, and found a hotel room key. Id. Without a warrant or any suspicion of criminal activity, officers searched the hotel room and found counterfeit currency. Id. 

  Cervantes was charged federally, the suppression motion was denied, and Cervantes was convicted after a stipulated facts bench trial. Id.

Issue(s): “On appeal, Cervantes renews his contention that the warrantless, suspicionless search of his hotel room violated the Fourth Amendment. As it did below, the government defends the legality of the search primarily by relying on the search condition imposed during Cervantes’ term of mandatory supervision.” Id. “Our main task is to determine whether the search of Cervantes' hotel room was in fact authorized by the clear and unambiguous terms of his search condition; if so, the search will likely be deemed reasonable.” Id. at *4.

Held: “Although the issue is admittedly a close one, for Fourth Amendment purposes we think mandatory supervision is more akin to parole than probation. Id. at *3.

  “[L]ike parole, mandatory supervision is more akin to imprisonment than probation is to imprisonment, . . . and the State’s interest in supervising offenders placed on mandatory supervision is comparable to its interest in supervising parolees. California courts concur: They have held that a split sentence under § 1170(h)(5) is akin to a state prison commitment, and that mandatory supervision is therefore more similar to parole than probation. . . . Given the similarities between mandatory supervision and parole, and the State’s comparably weighty interest in supervising offenders placed on both forms of supervision, we conclude that the Fourth Amendment analysis in this case is governed by the line of precedent applicable to parolees.” Id. at *4 (internal quotations and citations omitted).

  “No Fourth Amendment violation having been shown, the district court properly denied Cervantes' motion to suppress the evidence found in his hotel room.” Id. at *6.

Of Note: In the ’06 Samson decision, the Supremes created the great Fourth divide for those on supervision: probationers versus parolees. See id. at *3 (discussing Samson decision). 

  In Cervantes, Judge Watford queries whether to slot California “mandatory supervision” folks into the (more protected) “probation” category, or the (anything goes) “parole” category. This Ninth question of first impression breaks bad. The Court concludes that Cali “Mandatory supervision” is more akin to “parole” (with the very limited Fourth Amendment protections due parolees). 

  A disappointing outcome with broad impact, given the number of defendants affected by California Realignment.

How to Use: Even a parolee (or someone on “mandatory supervision") has some rights to Fourth Amendment reasonableness protections. Was it reasonable for officers to weasel their way into this hotel room, with no suspicion of criminal activity, while Cervantes was not even in or near the room? Judge Watford expressly avoids deciding that issue because it wasn’t briefed: a potential factual twist for another day. Id. at *5.

                                               

For Further Reading: In the first year after Realignment, over 560 California felony offenders were sentenced to split terms, per month. 

  For an interesting discussion on split sentences after Realignment, and links to data on its use - broken down by California county, see briefing here. 

Image of the Honorable Judge Paul Watford from United States Court of Appeals for the Ninth Circuit - United States Court of Appeals for the Ninth Circuit, Annual Report, pg 11, Public Domain, https://commons.wikimedia.org/w/index.php?curid=48278795

Image of jaywalking man from https://www.thestar.com/content/dam/thestar/news/gta/2013/09/05/data_shows_torontonians_love_to_jaywalk_and_sometimes_pay_the_price/jaywalking_man.jpg

Steven Kalar, Federal Public Defender. Website at www.ndcalfpd.org

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