United States v. Gandelia M. Cordova

650 F.2d 189

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 25, 1981
• Docket: 80-1788
• Status: Published

Opinions

PER CURIAM:

Cordova was convicted in the Superior Court of the State of California for possession of heroin and placed on three years’ probation with the condition that she “submit her person, property, place of residence or abode, vehicle, personal effects to search at any time, with or without a search warrant, by the probation officer or any law enforcement officer.” During the probationary period agents of the San Diego Integrated Narcotics Task Force arrested Cordova and searched her residence without a warrant with the assistance of federal agents from the Drug Enforcement Administration. They found heroin.

Cordova was indicted for heroin possession and tried in the United States District Court for the Southern District of California. She moved, to suppress statements made and evidence seized during the probation search of her residence. The district court denied her motion and Cordova appeals.

In United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975) (en banc), we held that a search conducted by federal and local law enforcement officers pursuant to a condition of probation imposed under the Federal Probation Act, 18 U.S.C. §§ 3651-3656, was invalid because the federal Act required that probation searches be conducted by or under the immediate and personal supervision of a probation officer. 521 F.2d at 266. Cordova argues that because the search of her home was not conducted under the supervision of a probation officer, as required by the Federal Probation Act as construed in Consuelo-Gonzalez, the evidence should not have been admitted in federal court.

The Federal Probation Act is irrelevant to the search of Cordova’s residence. The probation condition underlying the search was imposed by a California court and was valid under California law. The California Supreme Court has held that under the California probation statute a probationer may be required to submit to search “by the Probation Officer or any law enforcement officer.” People v. Mason, 5 Cal.3d 759, 762, 766, 488 P.2d 630, 97 Cal.Rptr. 302 (1971) (emphasis added). The admissibility in federal court of evidénce seized by state officers is governed by state standards of admissibility, subject to limitations imposed by the federal Constitution. United States v. Fisch, 474 F.2d 1071, 1075 (9th Cir. 1973). Under state standards the evidence was admissible.

Cordova relies upon the holding in United States v. Sotomayor, 592 F.2d 1219, 1223-27 (2d Cir. 1979) that the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2520, controls the admissibility in federal court of evidence seized by state officers pursuant to a state-authorized wiretap. This federal statute, however, expressly applies to wiretaps authorized by state courts and conducted by state officers. 18 U.S.C. §§ 2510(3), (6), (7), and (9); 2511(2)(a)(ii); 2515; 2516(2); 2518(7); and 2519(2). See United States v. Sotomayor, 592 F.2d at 1225 n.13. The Federal Probation Act applies only to probation imposed by federal courts. 18 U.S.C. § 3651.

Cordova does not challenge the constitutionality of the search under the Fourth Amendment of the United States Constitution. We therefore do not consider that issue.

AFFIRMED.