521 F.2d 246 (9th Cir. 1975), 71-2909, Latta v. Fitzharris

Docket Nº:71-2909.
Citation:521 F.2d 246
Party Name:Clifford V. LATTA, Plaintiff-Appellant, v. C. J. FITZHARRIS et al., Defendants-Appellees.
Case Date:April 15, 1975
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 246

521 F.2d 246 (9th Cir. 1975)

Clifford V. LATTA, Plaintiff-Appellant,


C. J. FITZHARRIS et al., Defendants-Appellees.

No. 71-2909.

United States Court of Appeals, Ninth Circuit

April 15, 1975

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James F. Hewitt, Asst. Federal Public Defender (argued), San Francisco, Cal., for plaintiff-appellant.

Sanford Svetcov, Deputy Atty. Gen. (argued), for defendants-appellees.



DUNIWAY, Circuit Judge, with whom Circuit Judges KOELSCH, TRASK, GOODWIN and SNEED concur:

Latta, a California prisoner, appeals from an order of the district court denying his application for a writ of habeas corpus. We affirm.

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

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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

  1. 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

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    muster under the Fourth Amendment test of reasonableness. 1

  2. 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

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    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...

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