Motley

We took this case en banc to clarify a number of issues in this circuit surrounding parole-related searches. We hold that, before conducting a warrantless search pursuant to a properly imposed parole condition, law enforcement officers must have probable cause to believe that the parolee resides at the house to be searched. In this case, they did. We do not, however, decide whether law enforcement officers also need particularized suspicion of wrong-doing before conducting such a search because, while this appeal was pending, the Supreme Court granted certiorari on that issue. It is sufficient for us to conclude that, at the time the officers searched plaintiffs’ home, it was not clearly established that any suspicion of wrongdoing on the part of the parolee was needed.

Accordingly, we affirm the grant of summary judgment in favor of the officers on the illegal search claim. Also, we affirm the dismissal of the Monell claims against former LAPD police chiefs Parks and Gates, but reverse the summary judgment to Officer Kading on the excessive force claim.

Facts And District Court Proceedings

The material facts, as construed in the light most favorable to plaintiffs, are as…

join, dissenting.

I agree with the majority that because the Supreme Court has granted certiorari in a case that will likely resolve a question that we have consistently avoided — whether reasonable suspicion is required for the search of the home of a probationer or parolee who has executed a standard consent form as a condition of his probation or parole — we are justified in proceeding directly to the second prong of the Saucier test. I also agree for similar reasons that the pertinent law is not clearly established and, thus, that qualified immunity applies with respect to the search of a probationer’s' or parolee’s residence without reasonable suspicion. I further agree that probable cause to believe that a probationer or parolee lives in a particular place is required in order to search that location. Thus, my disagreement with the majority opinion is narrow. I disagree only with respect to the holding that probable cause existed for the officers to believe that Jamerson lived in Motley’s home. Contrary to the majority, I would hold that the officers did not have probable cause to believe that Jamerson currently resided there and would therefore reverse the district…

FACTS AND DISTRICT COURT PROCEEDINGS

The material facts, as construed in the light most favorable to plaintiffs, are as follows.1 On February 20, 1998, Janae 1 We recognize that some of the material facts are contradicted by the officers’ deposition testimony and declarations, but accept Motley’s reci- MOTLEY v. PARKS 16829 Jamerson, a member of the Four Trey Crips gang, was released on parole from state prison. As a condition of his parole, Jamerson was required to consent that his person, resi- dence, and any property under his control could be searched at any time, by any agent of the Department of Corrections or any other peace officer, with or without a warrant. See Cal. Penal Code § 3067.

During the month of January 1999, Darla Motley, Jamer- son’s then-girlfriend, moved into an apartment located at 416 East 40th Place in Los Angeles. At some point, Jamerson also lived there. However, Motley testified that “everything” was in her name and that she paid the rent and all bills associated with the apartment. Jamerson’s mother and brother lived in another apartment at that address. On February 3, 1999, Jamerson was taken back into custody as a result…