Clifford v. Latta v. C. J. Fitzharris

521 F.2d 246, 32 A.L.R. Fed. 135, 1975 U.S. App. LEXIS 15150

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 15, 1975
• Docket: 71-2909
• Status: Published

Opinions

OPINION

In April, 1966, Latta was on parole from his imprisonment under a California armed robbery conviction. His parole officer, who had reason to believe that he was violating the conditions of his parole, arrested him at the house of an acquaintance. No question is raised as to the validity of this arrest. When arrested, Latta was holding in his hand a pipe containing marijuana. About six hours after the arrest, Latta’a parole officer and two local police officers went to Latta’s home, which was thirty miles away. There is nothing in the record to suggest that the officers accompanied the parole officer for any reason other than to expedite the search, or that they initiated it in any way. Thus this case is not one in which the parole officer was a stalking horse for the police. See United States v. Hallman, 3 Cir., 1966, 365 F.2d 289, 292; People v. Coffman, 1969, 2 Cal. App.3d 681, 687-89, 82 Cal.Rptr. 782, 785 — 87. When the officers arrived at Latta’s home, no one was there. Soon, however, Latta’s stepdaughter arrived and admitted them to the house. They identified themselves, told her that they were there to conduct a search, and in response to her query said that they did not need a warrant. The search proceeded, and a four-and-one-half pound brick of marijuana was discovered in the garage. This evidence was the basis of Latta’s later state conviction for possession of marijuana with intent to distribute it, the conviction that he now attacks. It is undisputed that Latta has exhausted his state remedies.

Latta makes two arguments on this appeal: first, that his parole officer’s warrantless search of his home violated the Fourth Amendment as applied to the states by the Fourteenth, and second, assuming that the search was valid, that the evidence that was seized could only be used as a basis for revoking his parole.

I. The Validity of the Search

A. The Fourth Amendment Applies.

In California, as elsewhere, parole officers have long enjoyed broad powers to search parolees under their supervision. The traditional view of a parolee’s Fourth Amendment rights is summarized in the leading case of People v. Hernandez, 1964, 229 Cal.App.2d 143, 150, 40 Cal.Rptr. 100, 104:

For the purpose of maintaining the restraints and social safeguards accompanying the parolee’s status, the authorities may subject him, his home and his effects to such constant or occasional inspection and search as may seem advisable to them. . . . He may not assert [Fourth Amendment] guaranties against the correctional authorities who supervise him on parole. If this constitutional fact strips him of constitutional protection against invasions of privacy by his parole officer, the answer is that he has at least as much protection as he had within prison walls. He did not possess this guaranty in prison and it was not restored to him when the gates of parole opened.

However, despite this broad rationale, the principle has its limits; under recent decisions parolees are entitled to Fourth Amendment protection in certain discrete situations. See generally White, The Fourth Amendment Rights of Parolees and Probationers, 31 U.Pitt.L.Rev. 167, 172-76 (1969). For example, it has been held, in California and elsewhere, that police, as distinguished from parole officers, cannot initiate searches of parolees under circumstances in which they could not search other citizens. See People v. Coffman, 1969, 2 Cal.App.3d 681, 687-689, 82 Cal.Rptr. 782, 785-87; United States v. Hallman, 3 Cir., 1966, 365 F.2d 289, 292. Likewise, a search by a parole officer has been held invalid where it was for the purpose of harassing or oppressing the parolee. See United States ex rel. Randazzo v. Follette, S.D.N.Y., 1968, 282 F.Supp. 10, 13, aff’d on other grounds 2 Cir., 1969, 418 F.2d 1319. A California court has held that parolees are entitled to the benefit of the rule of announcement necessary to perfect a law enforcement officer’s entry into a house. People v. Rosales, 1968, 68 Cal.2d 299, 66 Cal.Rptr. 1, 437 P.2d 489.

Moreover the theory upon which courts have usually relied to justify stripping parolees of Fourth Amendment protection has been widely criticized. Commentators have repeatedly criticized the notion that the status of parolees is legally comparable to that of prisoners in actual custody as being logically inconsistent and ignoring reality. See e. g., White, supra at 178—81; Note, The Parole System, 120 U.Pa.L.Rev. 282, 289—96 (1971); Note, Parole: A Critique of Its Legal Foundations and Conditions, 38 N.Y.U. L.Rev. 702, 704-08, 711-20 (1963). In holding that parolees are entitled to minimum due process type hearings before their parole may be revoked, the Supreme Court has specifically rejected the theory that parole officers have unfettered discretion in dealing with parolees, and refused to attach so broad a significance to the “custody” theory. Morrissey v. Brewer, 1972, 408 U.S. 471, 477-84, 92 S.Ct. 2593, 33 L.Ed.2d 484.

It is thus too late in the day to assert that searches of parolees by their parole officers present no Fourth Amendment issues. Rather, such searches may be held illegal and the evidence obtained therefrom suppressed unless they pass muster under the Fourth Amendment test of reasonableness.¹

B. The Standard of Reasonableness.

The search of Latta’s home cannot be justified on the basis of the traditional standard of probable cause, and California does not argue that it can. It does not follow, however, that the search is invalid. A California parolee is in a different position from that of the ordinary citizen. He is still serving his sentence. He remains under the ultimate control of the Adult Authority and the immediate control of his parole officer. His parole is subject to revocation for reasons that would not permit the arrest or incarceration of other persons. Many of the conditions of his parole relate to noncriminal conduct that is thought likely to make his rehabilitation more difficult. See generally Cal.Penal Code §§ 3040— 3065; 5077; 2943. In a sense, the parole officer stands in loco parentis to the parolee.

The overriding goal of the parole system is to give the parolee a chance to further and to demonstrate his rehabilitation while serving a part of his sentence outside the prison walls. It is hoped that he will never return to prison. An excellent statement of the working of the system appears in Morrissey v. Brewer, supra, 408 U.S. at 477 — 79, 92 S.Ct. 2593; see also R. Dawson, Sentencing, 316-26 (1969).

To the extent that there is a “law enforcement” emphasis, it is to deter the parolee from returning to a life of crime. See id. There is a risk that persons who have once been committed to prison will commit additional antisocial acts, and the commission of a crime is generally sufficient reason to revoke parole. See Morrissey v. Brewer, supra, 408 U.S. at 479, 483, 92 S.Ct. 2593; R. Dawson, supra at 370. Thus California properly argues: “Parole is a risky business. Recidivism is high. If parole fails too often, it may lose viability as a corrective institution. . . . When, as here, a parolee is in violation of his parole, the parole agent’s higher duty is to protect the parole system and to protect the public.” (Br. p. 4.) However, this feature of the parole system, important as it is, does not predominate. Between 35% and 45% of parolees are returned to prison, but in only one-third of these cases is the parolee returned to prison for committing a criminal offense, see President’s Comm, on Law Enforcement and Admin, of Justice, Task Force Report: Corrections 62 (1967); presumably fewer still are prosecuted on the new charge. See Morrissey v. Brewer, supra. The fact that crimes are detected during the administration of the parole system does not convert what is essentially a supervisory and regulatory program into a subterfuge for criminal investigations.

The purposes of the parole system give the parole authorities a special and unique interest in invading the privacy of parolees under their supervision. In order to fulfill his dual responsibilities for helping the parolee to reintegrate into society and evaluating his progress, and for preventing possible further antisocial or criminal conduct by the parolee, it is essential that the parole officer have a thorough understanding of the parolee and his environment, including his personal habits, his relationships with other persons, and what he is doing, both at home and outside it. It is equally important that this information be kept up to date. See R. Dawson, supra at 326, 332 — 33; Newman, Concepts of Treatment in Probation and Parole Supervision, 25 Fed.Prob. 11 (March 1961); Note, Observations on the Administration of Parole, 79 Yale L.J. 698, 699-700 (1970). Much of this information can be obtained by methods which necessitate little or no invasion of the parolee’s privacy, such as interviews with the parolee himself or with his employer, family, or friends and visits to his house. However, these techniques have inherent limitations. See R. Dawson, supra at 326-32; Newman, supra at 15 — 16. For example, it may be impossible to determine whether a parolee is using alcohol or narcotics, whether he is keeping weapons or other contraband in his home, whether he is using or preparing to use his home as a base for improper or unlawful activities, whether he is making a real effort to obtain employment, or the general nature of his home environment, without conducting some type of search.

On the other hand, the parolee’s interest in maintaining his personal privacy, even as against his parole officer, is in many respects like that of other citizens. As Chief Justice Burger has succinctly stated:

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. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison. Morrissey v. Brewer, supra, 408 U.S. at 482, 92 S.Ct. at 2600.

As the quotation recognizes, although the conditional nature of the parolee’s release does not place him at the unfettered mercy of the parole authorities, he is justifiably subjected to restrictions not applicable to the population as a whole. Many of these restrictions relate to matters which the parolee might otherwise be entitled to preserve as private. See generally Note, supra, 38 N.Y.U.L.Rev. at 720-33. To this extent, therefore, his reasonable expectations of privacy are less than those of other citizens. Cf. In re Martinez, 1 Cal.3d 641, 83 Cal.Rptr. 382, fn. 6, 463 P.2d 734; United States v. Biswell, 1972, 406 U.S. 311, 316, 92 S.Ct. 1593, 32 L.Ed.2d 87.

We think that one of these restrictions, necessary to the effective operation of the parole system, is that the parolee and his home are subject to search by the parole officer when the officer reasonably believes that such search is necessary in the performance of his duties. The parole officer ought to know more about the parolee than anyone else but his family. He is therefore in a better position than anyone else to decide whether a search is necessary. His decision may be based upon specific facts, though they be less than sufficient to sustain a finding of probable cause. It may even be based on a “hunch,” arising from what he has learned or observed about the behavior and attitude of the parolee. To grant such powers to the parole officer is not, in our view, unreasonable under the Fourth Amendment. The principal protection against abuse of this authority is the “helping” function of the parole officer’s job, and the training that he has received to fit him for that job. A good parole officer does not regard himself as a policeman.

C. The Warrant Requirement.

California has long held that a parole officer need not obtain a warrant before searching his parolee or his parolee’s home. The rule was succinctly stated in People v. Limon, 1967, 255 Cal.App.2d 519, 63 Cal.Rptr. 91, 93, as follows: “Cos-ta, as Limon’s parole officer, was entitled to search Limón and his apartment without a search warrant, without Limon’s consent and without probable cause.” See also People v. Taylor, 1968, 266 Cal.App.2d 14, 71 Cal.Rptr. 886.

It is now argued that the Fourth Amendment requires that Latta’s parole officer should have obtained a warrant before making the search involved in this case, and that his failure to do so makes the search unconstitutional, so that the evidence should have been suppressed. We do not think it appropriate to require that a parole officer obtain a warrant.

As we have seen, the relationship between the parole officer and his parolee is a special one. We find it to be sui generis so far as the warrant requirement is concerned. For that reason, we conclude that the propriety of warrant-less searches by parole officers pursuant to proper conditions affixed to the status of parole cannot be determined by automatic reference to the law of ordinary search and seizure or to that of administrative searches. It follows that, although the law relating to both ordinary and administrative searches provides some raw material to be considered in framing rules pertaining to parole searches, such searches must be governed by unique, separate, and distinct rules.

Our refusal to impose the warrant requirement departs from the principles applicable to ordinary searches but is consistent with the Supreme Court’s refusal to require a warrant in certain types of administrative searches. See, e. g., United States v. Biswell, 1972, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (warrantless but non-forcible search under the Gun Control Act, 18 U.S.C. § 921 et seq., held valid); Colonnade Catering Corp. v. United States, 1970, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (warrantless forcible entry under 26 U.S.C. § 5146(b) is not authorized, but warrantless non-forcible entry would be lawful); Wyman v. James, 1971, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (dictum; warrant not required for home visit by welfare worker). Much of the rationale of the Wyman opinion at pp. 322-324, 91 S.Ct. 381 is applicable to the parole officer-parolee relationship. As Mr. Justice Black-mun says (p. 324, 91 S.Ct. at p. 389):

Of course, the force behind the warrant argument, welcome to the one asserting it, is the fact that it would have to rest upon probable cause, and probable cause in the welfare context, as Mrs. James concedes, requires more than the mere need of the caseworker to see the child in the home and to have assurance that the child is there and is receiving the benefit of the aid that has been authorized for it. In this setting the warrant argument is out of place.

There appear to be several justifications for not requiring a warrant in the foregoing cases. One is the pervasiveness of the regulation to which the person or premises to be searched is subject. As we have seen, the authority of the parole officer is pervasive indeed. Another is the presence of express statutory authorization for a warrantless search. There is no such express statute here, but there is long standing judicial authority in California, and we can perceive no constitutional reason for failing to give weight to that authority. Another is the extent to which a justified expectation of privacy is present. In the case of a parolee, that expectation is severely diminished. Another is the necessity for unannounced and frequent searches, which certainly applies to the parole officer-parolee relationship.

Of great importance is the extent to which the warrant requirement might frustrate the purposes of the search and of the regulatory scheme of which it was a part. The choice frequently has been between dispensing with the warrant requirement altogether or departing from the standard of probable cause in determining the sufficiency of the showing necessary to obtain a warrant. Compare Biswell, supra, with Camara v. Municipal Court, 1967, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930, and See v. City of Seattle, 1967, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943.

We think it indisputable, in view of the nature of parole and of the parole agent’s responsibilities as we have analyzed them, that were a warrant required, the showing necessary to obtain it would have to be substantially different from probable cause to avoid frustrating the purposes of parole. A magistrate required to issue a warrant on the basis of the parole officer's “hunch” serves little or no purpose properly related to the parole system. Whether “founded suspicion” in this context could be more demanding than “hunch” is at best uncertain. The judicial energy that review of the affidavits that these almost gossamer standards would require can better be spent determining whether the particular search in question was reasonable. We have no desire to reduce the warrant to a paper tiger. Yet that is what we would do if we were to impose a warrant requirement. Because of the necessarily broad nature of the parole officer’s authority, in most cases the magistrate would have to take the parole officer’s word for it when the parole officer asks for a warrant. This affords no real protection to the parolee; it makes the warrant a mere piece of paper.

This is not to say that we will uphold every search by a parole officer. In a given case, what is done may be so unreasonable as to require that the search be held to violate the Fourth Amendment. For example, harassment or intimidation is no part of a parole officer’s job. In short, we do not accept the notion that parole officers may conduct full-blown searches of parolees’ homes whenever and as often as they feel like it. To do so would practically gut the principle that parolees are entitled to some privacy. Moreover, it would not advance the goals of the parole system. Indeed, it has been suggested that providing parole authorities with an unlimited power to conduct indiscriminate searches actually undermines the rehabilitation process. Note, Extending Search-and-Seizure Protection to Parolees in California, 22 Stan.L.Rev. 129, 134—35 (1969). Cf. Morrissey v. Brewer, supra, 408 U.S. at 484, 92 S.Ct. 2593. Primary responsibility for seeing that this does not happen, however, rests upon the parole authorities, and, in this case, the California courts, not the federal courts. We have no reason to doubt that the California courts will be vigilant in protecting parolees against unreasonable searches.

D. The Search in this Case.

Applying these principles to the facts of this case, we readily conclude that the search of Latta’s home was not unreasonable in a constitutional sense. His parole officer’s interest in inspecting his place of residence did not terminate upon his arrest; if anything, it intensified. Revocation is not a necessary consequence of a parole violation; frequently the parolee merely receives counselling and is released under the same or additional conditions. In making their decision regarding disposition, the parole authorities need to know the number and seriousness of all violations, as well as other current information about the parolee’s progress. See Morrissey v. Brewer, supra, 408 U.S. at 479—80, 92 S.Ct. 2593; R. Dawson, supra at 367—74; Note, supra, 120 U.Pa.L.Rev. at 342—43, 356—58. When Latta was arrested he was in possession of a small quantity of marijuana. In evaluating this evidence to determine whether Latta was still a good parole risk, it was critical for the parole authorities to know whether he was a regular user of marijuana or other drugs, and if so, whether he was a frequent or casual user, or whether he was engaged in distribution. As California argues, “[possession of narcotics for sale by a parolee threatens both the parole system and the public since such activity is both a violation of parole and a separate crime.” (Br. p. 4r-5.) It is unlikely that such information could be obtained from outside sources, or that it would be revealed by a brief inspection of Latta’s home. Cf. R. Dawson, supra at 342. Under the circumstances it was not unreasonable for Latta’s parole officer to conduct a search.²

II. Use of the Evidence

Latta’s second contention — that, even if the search were valid, the evidence could only be used in a parole revocation hearing — is without merit. As the above discussion demonstrates, Latta’s possession of a sizeable quantity of contraband was a matter of legitimate concern to his parole officer. We have specifically rejected the rule urged by Latta in similar circumstances. See United States v. Davis, 9 Cir., 1973, 482 F.2d 893 at 909, n. 44. See also United States ex rel. Santos v. New York Bd. of Parole, 2 Cir., 1971, 441 F.2d 1216, 1218. Even when the evidence seized is unrelated to the purpose of the regulatory search, our cases do not support Latta’s contention. See, e. g., United States v. Schafer, 9 Cir., 1972, 461 F.2d 856. See also United States v. Biswell, supra.

Affirmed.

1 . California raises the question whether it can constitutionally expressly condition parole upon a waiver of the parolee’s Fourth Amendment rights. It does not argue that any waiver took place. We therefore do not consider the question that California seeks to present. Compare Holtzoff, The Power of Probation Officers to Search and Seize, 31 Fed.Prob. 3, 7 (Dec. 1967) with Note, supra, 120 U.Pa.L.Rev. at 330-39.

2 . We express no view about a parole officer’s power forcibly to enter a home without a warrant. Cf. Colonnade Catering Corp. v. United States, 1970. 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60. No forcible entry was made in this case.