650 F.2d 189 (9th Cir. 1981), 80-1788, United States v. Cordova

Docket Nº:80-1788.
Citation:650 F.2d 189
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gandelia M. CORDOVA, Defendant-Appellant.
Case Date:July 06, 1981
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 189

650 F.2d 189 (9th Cir. 1981)

UNITED STATES of America, Plaintiff-Appellee,

v.

Gandelia M. CORDOVA, Defendant-Appellant.

No. 80-1788.

United States Court of Appeals, Ninth Circuit

July 6, 1981

Argued and Submitted May 8, 1981.

Rehearing and Rehearing En Banc Denied Aug. 25, 1981.

Page 190

Sheldon Sherman, San Diego, Cal., for defendant-appellant.

Bruce R. Castetter, Asst. U. S. Atty., argued, M. James Lorenz, U. S. Atty., Bruce R. Castetter, Asst. U. S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before BROWNING, Chief Judge, FERGUSON, Circuit Judge, and QUACKENBUSH, [*] District Judge.

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...

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