United States v. Virginia Consuelo-Gonzalez

OPINION

SNEED, Circuit Judge:

Consuelo-Gonzalez appeals from a conviction under 21 U.S.C. § 841(a)(1) for possession of heroin with intent to dis-' tribute. We reverse.

Between November 15, 1972, and December 18, 1972, agents of the Federal Bureau of Narcotics and Dangerous Drugs received information from four different sources that Virginia Consuelo-Gonzalez was actively engaged in the importation and sale of heroin. A check of the records at the United States Attorney’s Office on December 12, 1972, revealed to the agents that Virginia Consuelo-Gonzalez had previously been convicted of heroin smuggling under the name of Virginia Cardenas and was currently on probation. At this time, the agents were also apprised that it was a condition of Consuelo-Gonzalez’ probation 1 that she submit her person and property to search at any time upon request by a law enforcement officer. On December 14, 1972, an independent verification was made of the fact that Virginia Cardenas and Virginia Consuelo-Gonzalez were one and the same person; and on December 19, 1972, the agents reconfirmed the probationary status and condition that she submit to search.

On the morning of December 19, 1972, at approximately 9:30 a. m., federal and local law enforcement officers approached the Consuelo-Gonzalez residence for purposes of conducting a search of the premises. When they arrived, they found the front door of the house ajar. The agents knocked on the door and waited for Consuelo-Gonzalez to appear. When she did so, the lead agent showed her his identification, informed her that he was aware of her probation and the conditions which had been attached to it, and indicated his intention to enter the residence and conduct a search. Consuelo-Gonzalez responded to his request by stepping back and saying “Sure, search my purse.” Upon entering the house, the lead agent made a cursory search of her handbag to determine whether it contained weapons. None were found. The handbag was then placed beside a chair in which Consuelo-Gonzalez was asked to sit.

A thorough search of Consuelo-Gonzalez’ person and residence was then commenced. In the bedroom, the agents found a narcotics injection outfit in a *262dresser; and on a shelf in the living room they discovered a paper sack containing a bundle of notebook papers with brown powder debris on them. Both of these items were seized. A second search of Consuelo-Gonzalez’ handbag revealed two coin purses, inside of which the agents found two white paper bin-dles and seven rubber condoms containing a total of 11.7 grams of brown powder, later proven to be heroin. This evidence was also seized, and subsequently used to provide the basis for the present conviction.

In a timely and appropriate manner, counsel for Consuelo-Gonzalez moved to suppress this evidence. However, the trial judge denied the motion to suppress, relying specifically upon the authorization to search which had been made a condition of the probation to which Consuelo-Gonzalez was subject. Thereafter, defendant was found guilty of possession of heroin with intent to distribute in a proceeding before the court on stipulated facts.

In this appeal, defendant asserts that the trial court erred in failing to suppress the evidence on the ground that the condition of probation requiring her to “submit to search of her person or property at any time when requested by a law-enforcement officer” was improper and thus could not serve to make the search lawful. It is argued that the Fourth Amendment requires this result.

While we are not prepared to embrace the full reach of defendant’s argument, we do believe that the condition employed in the instant case is not in keeping with the purposes intended to be served by the Federal Probation Act.2 It is our view that, even though the trial judge has very broad discretion in fixing the terms and conditions of probation, such terms must be reasonably related to the purposes of the Act. In determining whether a reasonable relationship exists, we have found it necessary to give consideration to the purposes sought to be served by probation, the extent to which the full constitutional guarantees available to those not under probation should be accorded probationers, and the legitimate needs of law enforcement. Having done so, we have concluded that Consuelo-Gonzalez could have been required to submit her person and property to search by a probation officer. We have further concluded that any search made pursuant to the condition included in the terms of probation must necessarily meet the Fourth Amendment’s standard of reasonableness. This requirement follows from our decision in Latta v. Fitzharris, 521 F.2d 246 (9th Cir. 1975) in which under the compulsion of the Fourth Amendment we imposed the standard of reasonableness on searches of California parolees by California parole officers. The reasons we articulated there for imposing the standard are equally applicable here.

*263Although it is doubtful that any formulation of a condition relating to the search of a probationer’s person or property can be drafted that will provide unambiguous guidance to both the probationer and the probation officer, it is suggested that the following condition would properly reflect the views expressed herein:

That she submit to search of her person or property conducted in a reasonable manner and at a reasonable time by a probation officer.

Measured by the authority which the above condition bestows and recognizing, as we must, that no greater authority is consistent with the Federal Probation Act, we hold that the search in this case was improper and that the motion to suppress should have been granted.

As already indicated, the support for, and implications of, this position spring from three sources viz., the underlying purposes which Congress intended to serve in promulgating the Federal Probation Act, the scope of constitutional protections which are available to probationers generally, and certain aspects of the law enforcement process as they relate to probation. To each of these we now turn.

I.

Purposes of the Federal Probation Act.

Because our holding is based in part on our reading of the Federal Probation Act, it is necessary to examine the Act and its purposes. A suitable starting point is United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309 (1928), where the Supreme Court, in reviewing the history of the Act, pointed out that the purpose underlying its enactment in 1925 had been to provide “. . . an amelioration of the sentence by delaying actual execution or providing a suspension so that the stigma might be withheld and an opportunity for reform and repentance be granted before actual imprisonment should stain the life of the convict.”3 Its aim was to complement parole and executive clemency, not to supplant either. The Court said, “Probation is the attempted saving of a man who has taken one wrong step and whom the judge thinks to be a brand who can be plucked from burning at the time of the imposition of the sentence.” 4 Nor has anything in the several amendments to the 1925 Act5 suggested that rehabilitation has ceased to be the central objective of the probation process which it established.6 The theme that rehabilitation underlies probation is mirrored not only in the probation systems established under state law,7 but also in the Model Penal Code, which expressly recognizes rehabilitation by authorizing the imposition of any conditions of probation “reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.” 8

*264Less guidance is provided by the Federal Probation Act as to the actual fixing of probationary conditions. Aside from authorizing fines, restitution, providing for the support of persons the probationer is legally obligated to support, and subjection to certain types of treatment,9 the court is permitted to impose such terms and conditions as it “deems best.” Thus, quite properly this court, as well as others, has construed the Act to vest great discretion with respect to the granting of probation and the fixing of its conditions in the court having jurisdiction over the convicted defendant.10

Nonetheless, limits to the exercise of this discretion have been recognized. For example, in Porth v. Templar, 453 F.2d 330 (10th Cir. 1971), it was held that the Act did not permit the imposition of a condition restricting the defendant’s right to speak so long as he did not urge others to violate the law. Permissible conditions must “have a reasonable relationship to the treatment of the accused and the protection of the public.” 11 Similarly, this court has summarily rejected the condition that the probationer donate a pint of blood to the Red Cross Blood Bank.12 Moreover, it is virtually certain that those restraints that have been held improper when placed on prisoners and parolees will also be unsuitable as probation conditions. As an example, it is unlikely that probation can be conditioned on the probationer refraining from communicating his views on the probation system or receiving and reading certain periodicals which are otherwise lawfully available. Cf. Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971) (prisoner’s right to send letters); Fortune Society v. McGinnis, 319 F.Supp. 901 (S.D.N.Y.1970) (prisoner’s right to receive periodicals).

The guiding principle which has emerged in construing the Probation Act is that the only permissible conditions are those that, when considered in context, can reasonably be said to contribute significantly both to the rehabilitation of the convicted person and to the protection of the public. In Porth v. Templar, supra, the Tenth Circuit has expressed this principle as follows:

The sentencing judge has a broad power to impose conditions designed to serve the accused and the community. The only limitation is that the conditions have a reasonable relationship to the treatment of the accused and the protection of the public. 453 F.2d at 333.

This must be, as the Act indicates, a very flexible standard. Nor could it be otherwise in the light of our uncertainty about how rehabilitation is accomplished. See, e. g., The Challenge of Crime in a Free Society: A Report by the President’s Commission on Law Enforcement and Administration of Justice 159 — 185 (1967); Task Force Report: Corrections 1 — 16 (1967); Pettibone, Community-Based Programs: Catching up with Yesterday and Planning for Tomorrow, 37 Fed.Prob. 1 (Sept., 1973); Pepper, Prisons in Turmoil, 36 Fed.Prob. 3 (Dec., 1972); Morris and Hawkins, Rehabilitation: Rhetoric and Reality, 34 Fed.Prob. 9 (Dec., 1970); Jorgensen, Crime in a Free Society: Choice or Challenge, 34 Fed.Prob. 14 (March, 1970).

II.

Scope of Constitutional Protections Available to Probationers.

This guiding interpretive principle plainly suggests the manner in which the Act’s administration should be accommodated to the constitutional *265guarantees of the Bill of Rights. While it must be recognized that probationers, like parolees and prisoners, properly are subject to limitations from which ordinary persons are free, it is also true that these limitations in the aggregate must serve the ends of probation.13 Conditions that unquestionably restrict otherwise inviolable constitutional rights may properly be subject to special scrutiny to determine whether the limitation does in fact serve the dual objectives of rehabilitation and public safety. But this is not to say that there is any presumption, however weak, that such limitations are impermissible.14 Rather, it is necessary to recognize that when fundamental rights are curbed it must be done sensitively and with a keen appreciation that the infringement must serve the broad purposes of the Probation Act. This burden cannot be avoided by asserting either that the probationer has voluntarily waived his rights by not objecting in a proper manner to the conditions imposed upon him or that he must accept any condition the court “deems best” as a consequence of being “in custody.”15

Turning to the Fourth Amendment rights that Consuelo-Gonzalez insists were infringed, two things are obvious. The first is that some forms of search by probation officers are not only compatible with rehabilitation, but, with respect to those convicted of certain offenses such as possession and distribution of narcotics, are also essential to the proper functioning of a probationary system. The second is that the condition imposed on Consuelo-Gonzalez literally permits searches which could not possibly serve the ends of probation. For example, an intimidating and harassing search to serve law enforcement ends totally unrelated to either her prior conviction or her rehabilitation is authorized by the terms of the condition. Submission to such searches should not be the price of probation. A probationer, like the parolee, has the right to enjoy a significant degree of privacy. See Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

It is our view that the approach which we adopted in Latta v. Fitzharris, 521 F.2d 246 (9th Cir. 1975) in fixing the proper limits of search by a parole officer is applicable here. In Latta, it was recognized that there was often a conflict between the very practical needs of the parole system, which required both visits and searches, and the parolee’s right to privacy. The conceptual framework within which we balanced these interests recognized the uniqueness of the relationship between the parole officer and his parolee and was fashioned from the raw material provided by the rules relating to both ordinary and administrative searches. Id. at 249-250. Our use of this framework yielded the conclusions that a parole officer need not have probable cause and that a warrant need not be obtained prior to the search. We recognized that the “parole authorities [have] a special and unique interest in *266invading the privacy of parolees under their supervision.” Id. at 249.

The conclusions are equally applicable to the situation before us. Probation authorities also have a special and unique interest in invading the privacy of probationers. This special and unique interest does not extend to law enforcement officers generally. To interpret the Federal Probation Act in such an expansive manner would not be reasonably related to the Act’s purposes. For this reason we interpret the Act to require that searches of probationers not otherwise in compliance with the usual standards of the Fourth Amendment be by, or under the immediate and personal supervision of, probation officers. Inasmuch as the search of Consuelo-Gonzalez’ residence and handbag occurred neither during the course of a probation visit by a probation officer nor pursuant to a proper warrant, the evidence must be suppressed.

However, we wish to make clear that our interpretation of the Federal Probation Act countenances activities by probation officers other than those specifically before us in Latta v. Fitzharris. For example, it may well be necessary during the course of a probation visit to conduct a pat-down search for weapons or contraband, to examine the probationer’s arms to ascertain whether drugs are being used, or take the probationer into custody. When done reasonably and humanely by probation officers, no question concerning the appropriateness of their actions should arise. Moreover, a thorough search of a probationer’s residence incident to, or following, a probation visit is not dependent upon the establishment of probable cause. A reasonable belief on the part of the probation officer that such a search is necessary to perform properly his duties is sufficient. As we said in Latta v. Fitz-harris, this belief may be based on a “hunch” having its origin in what the probation officer has learned or observed about the behavior and attitude of the probationer.

It is our belief that reasonable restraints on probationers are necessary to promote the use of probation as an alternative to incarceration. The absence of such controls would unnecessarily increase the hazards to the public resulting from the generous use of probation. This would in turn only create public resistance to such use, and ultimately lead to an increase in the bitter harvest we have come to expect as the consequence of imprisonment. It is obvious, however, that opinions differ as to what controls are improper, and we express no opinion here regarding the extent to which the states constitutionally may impose conditions more intrusive on the probationer’s privacy than those we here have indicated are proper under the Federal Probation Act.16 For this reason we express no opinion regarding the decision of the Supreme Court of California in People v. Mason, 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630 (1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1289, 31 L.Ed.2d 478 (1972), which permitted con-' traband, discovered by means of a search by police officers pursuant to a probation condition similar to that before us, to be used in obtaining the conviction of a probationer for the offense to which the contraband related.17

III.

Law Enforcement Aspects.

In describing the purposes of the Federal Probation Act, the emphasis to this point has been upon the rehabilitation of the probationer. Probation, how*267ever, has law enforcement aspects. Because of this, conditions which serve to protect the public from recidivism by the probationer or to deter others by way of example are not contrary to the purposes of the Act so long as all the conditions construed together serve substantially the purpose of rehabilitation.

Moreover, nothing said here is intended to preclude mutually beneficial cooperation between probation officers and other law enforcement officials. For example, a proper visitation by a probation officer does not cease to be so because he is accompanied by a law enforcement official. Nor is an ordinary law enforcement official precluded from seeking the probationer’s consent to conduct a search provided no coercion, actual or threatened, is employed. The probationer’s refusal to accede to such a request makes it necessary either that the matter be referred to the probation officer or that a warrant be obtained. However, under no circumstances should cooperation between law enforcement officers and probation officers be permitted to make the probation system “a subterfuge for criminal investigations.” See Latta v. Fitzharris, 521 F.2d 246 (9th Cir. 1975).

Finally, nothing said here is intended to pass on the issue of whether contraband found as a result of an improper probation search may be considered in a probation revocation proceeding. All that is decided here is that such contraband can not be used to obtain a new conviction for the offense with respect to which probation has not been granted.

The defendant’s motion to suppress should have been granted.

Reversed.

. The judgment and probation order of the district court reads in pertinent part as follows: It is adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of one (1) year and execution of sentence is suspended and defendant is placed on probation for a period of three (3) years on condition that she obey all laws, Federal, State and Municipal, that she comply with all lawful regulations of the Probation Department, that she not possess or use narcotics, marihuana, LSD, or dangerous drugs in any form, that she not enter Mexico nor approach the Mexican border, that she submit to search of her person or property at any time when requested by a law-enforcement officer and that she remain fully employed, (emphasis added)

. Title 18 U.S.C. § 3651 reads in part as follows:

§ 3651. Suspension of sentence and probation.

Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.

S(S S)< ^5 jfc *

The court may revoke or modify any condition of probation, or may change the period of probation.

The period of probation, together with any extension thereof, shall not exceed five years.

While on probation and among the conditions thereof, the defendant' — •

May be required to pay a fine in one or several sums; and

May be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had; and May be required to provide for the support of any persons, for whose support he is legally responsible.

* * * * * *

. 275 U.S. at 357, 48 S.Ct. at 149.

. Id. at 358, 48 S.Ct. at 149.

. The Act has been amended five times since it was initially promulgated by Congress in 1925. Mar. 4, 1925, ch. 521, § 1, 43 Stat. 1259; June 25, 1948, ch. 645, 62 Stat. 842; June 20, 1958, Pub.L. 85 — 463, § 1, 72 Stat. 216; Aug. 23, 1958, Pub.L. 85-741, 72 Stat. 834; Oct. 22, 1970, Pub.L. 91-492, § 1, 84 Stat. 1090; May 11, 1972, Pub.L. 92-293, § 1, 86 Stat. 136. In none of these amendments was the concept of rehabilitation as the ultimate goal of probation undercut. Rather, it seems evident that the changes which occurred were aimed at broadening the availability of probation and emphasizing its rehabilitative theme.

. The centrality of this objective has been recognized both by the Supreme Court, see, e. g., Roberts v. United States, 320 U.S. 264, 272, 64 S.Ct. 80, 88 L.Ed. 459 (1943); Korematsu v. United States, 319 U.S. 432, 435, 63 S.Ct. 1124, 87 L.Ed. 1497 (1942), and by those who comment on the probation process. See, e. g., Note, Judicial Review of Probation Conditions, 67 Colum.L.Rev. 181 (1967); Best and Birzan, Conditions of Probation: An Analysis, 51 Geo. L.J. 809 (1963).

. See, e. g., People v. Keller, 245 Cal.App.2d 711, 54 Cal.Rptr. 154 (1966); People v. Taylor, 178 Cal.App.2d 472, 3 Cal.Rptr. 186 (1960); Delaney v. State, 190 So.2d 578 (Fla.1966); People v. Molz, 415 Ill. 183, 113 N.E.2d 314 (1953); People v. Thomas, 121 Ill.App.2d 422, 257 N.E.2d 480 (1970); Mottram v. State, 232 A.2d 809 (Me. 1967); State v. Shannon, 60 Wash.2d 883, 376 P.2d 646 (1962).

. Model Penal Code, § 301.1(2)(1), Proposed Official Draft (1962).

. 18 U.S.C. § 3651.

. See Burns v. United States, 287 U.S. 216, 220-22, 53 S.Ct. 92, 77 L.Ed. 511 (1932). See also Trueblood Longknife v. United States, 381 F.2d 17, 19 (9th Cir. 1967); Kaplan v. United States, 234 F.2d 345, 348 (8th Cir. 1956).

. 453 F.2d at 333.

. Springer v. United States, 148 F.2d 411, 416 (9th Cir. 1945).

. See Note, Judicial Review of Probation Conditions, 67 Colum.L.Rev. 181, 203 (1967).

. Merely because a convicted individual’s fundamental rights are involved should not make a probation condition which limits thoss rights automatically suspect. The development of a sensible probationary system necessarily requires that the trial court be vested with broad discretionary powers. It also requires that any condition which is imposed following conviction, whether or not it touches upon “preferred” rights, must be viewed in the context of the goals underlying the Act. Thus, the crucial determination in testing probationary conditions is not the degree of “preference” which may be accorded those rights limited by the condition, but rather whether the limitations are primarily designed to affect the rehabilitation of the probationer or insure the protection of the public.

. Compare, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (prescribing minimum procedural safeguards required by due process when a state seeks to revoke parole). Implicit in Morrissey is a rejection of the custody and contract theories as justifications for summary revocations of parole. The Supreme Court, 1971 Term, 86 Harv.L.Rev. 1, 96 n. 7 (1972). See generally Comment, The Parole System, 120 U.Pa.L.Rev. 282, 286-300 (1971). We feel that the custody and contract theories are equally inappropriate when applied in the probation setting.

. Cf. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J. concurring); Kent v. Dulles, 357 U.S. 116, 129, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958).

. There exists some dispute about the scope of the holding of People v. Mason. See, People v. Constancio, 42 Cal.App.3d 533, 116 Cal.Rptr. 910 (1974); People v. Bremmer, 30 Cal.App.3d 1058, 106 Cal.Rptr. 797 (1973). Whatever its precise holding may be, it is not our intention to express an opinion concerning its constitutionality.