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Submission Withdrawn October 8, 2003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.