I agree with everything Judge Berzon says here. Every caveat, every distinction, every expression of concern. Every single word.
It's not that Judge Watford doesn't have a point in his concurrence. He does. He notes that it's a bit anomalous that a parolee might have a higher expectation of privacy in someone else's home than in their own home.
That's right. It's somewhat weird.
But it's not that weird. Or, more accurately, it's the natural consequence of where we are. And unlike Judge Watford, I don't think that's a reason to rethink -- or overrule -- existing circuit precedent.
We are where we are because of the deal the state made. The state granted parole -- and the parolee accepted it -- on the condition that he subject his residence to search at the request of the police. His residence. As a result, he can't object when the police search his residence. Acceptable.
But he can, however, object to a police search of places that aren't his residence. Because he didn't consent to that.
That's the deal. That's the contract. Maybe it makes sense. Maybe it doesn't. But if it's the latter, it's not our fault. It's the deal the parties made.
Let me put this in a slightly different way than Judge Berzon does. Imagine that Grandberry had only consented to the search of his residence as a condition of parole. Thereafter, the police -- without any reasonable suspicion of a crime -- searched (1) his vehicle, (2) his computer, (3) his girlfriend's place, (4) a Target at which he shopped once, and (5) his anal cavity. You can see why Grandberry might well complain, right? Why he might, indeed, move to suppress any evidence arising therefrom. And why he'd be entirely right to do so.
Judge Watford would be correct that it'd be somewhat strange to say that Grandberry was entitled to feel more secure in his car (or at his girlfriend's place) than in his "castle" -- his home. But that's not a surprising result at all given the deal that was struck. Grandberry gave up his security in his castle. But he didn't give up his security elsewhere.
The present case is absolutely no different. Indeed, it involves (3). Grandberry couldn't object to a search of his home because he waived that as a condition of parole. But he didn't agree to permit the police to search his girlfriend's place, which was neither his residence nor (with the caveats explained by Judge Berzon) was it a place under his control. It was her place. The police couldn't invade her home without a warrant merely because they were allowed to invade his.
Judge Watford notes -- and I think he's right about this -- that this provides a way for criminals (like Grandberry, allegedly) to circumvent the law. To avoid the search condition, they can simply sell crack out of their girlfriend's place rather than out of their own.
That's true. Though that's, again, the result of the deal. The same would be true if the parole deal covered a parolee's residence but not his car. That'd similarly allow a criminal to circumvent the law by selling crack out of his car rather than his home. Fair enough. But that fact wouldn't allow us to say that someone who's agreed to permit his home to be searched automatically permits a warrantless search of his car. That's not, in fact, what the conditions say.
How could the state get around this? Well, it could perhaps condition parole on an agreement to allow everyplace the defendant has ever been to be searched without a warrant. Would a potential parolee agree to that condition? Maybe. Though, for the reasons Judge Berzon notes, maybe not. Maybe a parolee would be willing to have his own place searched without any suspicion of a crime but would not similarly sacrifice his girlfriend's constitutional rights.
Or perhaps the state wouldn't be willing to do so either. Maybe voters might not like it were a state to say that whenever you let a parolee in your home, the state might use the parolee's search condition to encourage the police to search your home without a warrant. That might simply go to far.
Yet that's pretty much exactly what the state here is contending the standard warrant conditions say. Judge Berzon properly rejects that view, and I think for good reason.
If there's an anomaly here, it's not really the one that Judge Watford identifies. At least in my mind. It's instead the fact that we use purported standing requirements to prevent people from challenging searches that directly target them. Judge Watford says that Grandberry shouldn't have standing to contest a search of his girlfriend's place, since it's not his. Despite the fact that the only reason the police searched this place was to get evidence against Grandberry, the only basis of this search was Grandberry's parole condition, and the only evidence ever obtained was against Grandberry.
Yes, the Supreme Court says you sometimes can't challenge the invasion of the rights of someone else. But in circumstances like these, that's silly. Grandberry should be able to say that the police exceeded their legitimate authority and hence that the evidence they deliberately (and illegally) obtained should be excluded. Judge Watford says that to so hold would be anomolous, but it seems to me that a contrary holding would be even more anomalous.
So, again, I think that Judge Berzon (joined by Judge Rakoff, sitting my designation) gets this one exactly right. I might have expressed certain points slightly -- ever so slightly -- differently. With alternative analogies, perhaps.
But everything she says resonates with me. Perfectly.