903 F.2d 60 (1st Cir. 1990), 88-1537, United States v. Cardona

Docket Nº:88-1537.
Citation:903 F.2d 60
Party Name:UNITED STATES of America, Appellee, v. Edward CARDONA, Defendant, Appellant.
Case Date:May 10, 1990
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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903 F.2d 60 (1st Cir. 1990)

UNITED STATES of America, Appellee,


Edward CARDONA, Defendant, Appellant.

No. 88-1537.

United States Court of Appeals, First Circuit

May 10, 1990

Heard Jan. 10, 1990.

Francis X. Mackey, Providence, R.I., for defendant, appellant.

Margaret E. Curran, Asst. U.S. Atty., Providence, R.I., with whom Lincoln C. Almond, U.S. Atty., was on brief, for appellee.

Before TORRUELLA and SELYA, Circuit Judges, and BOWNES, Senior Circuit Judge.

SELYA, Circuit Judge.

This case requires us, for the first time, to explore the interstices and margins of the Court's opinion in Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). Having completed this journey into fourth amendment jurisprudence, we hold that a parolee may be arrested in his own home by a police officer not possessing a judicial warrant when the police officer acts in good faith at the request of parole authorities who, in accordance with a parole regulation, have found reasonable cause to order the individual's detention as a suspected parole violator.


Defendant-appellant Edward Cardona, previously convicted of a felony in New York, was on parole in Rhode Island pursuant to an interstate parole compact. After defendant's Rhode Island parole officer reported problems, a parole violation warrant (PVW) was issued by the New York parole

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board. Issuance of the PVW did not require a finding of probable cause, but only a lesser showing, tantamount to reasonable cause, that Cardona had violated the terms of his parole. 1 The PVW's terms authorized any person who could serve process to execute it. N.Y.Exec.Law Sec. 259-i(3)(a)(iii) (1982). Accordingly, the New York authorities forwarded the PVW to their Rhode Island counterparts.

When the PVW arrived in Rhode Island, the Rhode Island parole officer, following routine procedure, solicited the local police to assist in implementing it. The parties agree that the request was made in the ordinary course; in Rhode Island, parole officers are neither armed nor trained to effectuate arrests, and do not typically involve themselves in that activity. Indeed, the standing policy of the state administration is, and has been, that parole officers should not make arrests.

After securing teletype confirmation that the PVW was outstanding, the local police department acted. Unaccompanied by a parole official, three police officers went to Cardona's residence for the sole purpose of executing the PVW. Upon arriving there, they knocked on the front door (which was ajar), announced their presence twice over, and, hearing noises, entered the apartment. The officers found defendant squatting on the floor of a closet; next to him, in plain view, was a sawed-off shotgun. The officers arrested defendant and seized the gun.

A few months later, a federal grand jury in the District of Rhode Island indicted Cardona on two counts arising out of his custody of the weapon. Cardona moved to suppress the evidence. The district court denied the motion. Cardona thereafter pled guilty to being a convicted felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g), preserving his right to appeal from the denial of the suppression motion. See Fed.R.Crim.P. 11(a)(2).


Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), is our polestar. In an effort to measure its ultimate significance, we first address its essential aspects.

Joseph Griffin was convicted in a Wisconsin state court of resisting arrest, disorderly conduct, and obstructing an officer. He was placed on probation. Id. at 870, 107 S.Ct. at 3166. Under Wisconsin law, probation officers are permitted to search probationers' homes without a warrant as long as the officer obtains a supervisor's prior approval and has "reasonable grounds" for a belief that there is contraband on the premises. Id. at 870-71, 107 S.Ct. at 3166-67. Well into Griffin's probationary term, a local police detective informed Michael Lew, the supervisor of Griffin's probation officer, that he (the detective) suspected Griffin of secreting guns in his apartment. Unable to obtain the assistance of Griffin's probation officer, Lew went to the apartment with another probation officer and three policemen. Id. at 871, 107 S.Ct. at 3167. Although the callers had neither a judicial warrant nor probable cause, their visit complied with an administrative regulation permitting warrantless searches of a probationer's home. Id. at 870-71, 107 S.Ct. at 3167-68. When Griffin answered the door, Lew identified the party and informed Griffin that they planned to search his apartment. During the inspection, a handgun was discovered. Id. at 871, 107 S.Ct. at 3167.

Griffin was charged with possession of a firearm by a convicted felon (itself a felony). After moving unsuccessfully to suppress the weapon, he was found guilty by a jury. Id. at 872, 107 S.Ct. at 3168. On appeal, the Wisconsin Supreme Court upheld the conviction, opining that the "reasonable grounds" standard for probationer searches satisfied the fourth amendment

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because of the lesser expectation of privacy enjoyed by a probationer. State v. Griffin, 131 Wis.2d 41, 52-64, 388 N.W.2d 535, 539-44 (1986). The Court granted certiorari, 479 U.S. 1005, 107 S.Ct. 643, 93 L.Ed.2d 699 (1986), and thereafter affirmed.

The majority first reviewed the "special needs" exception to the warrant and probable-cause requirements imposed by the fourth amendment on most governmental searches and seizures. Noting that the Court had historically "permitted exceptions [to traditional fourth amendment standards] when 'special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable,' " 483 U.S. at 873, 107 S.Ct. at 3167 (quoting New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S.Ct. 733, 747, 83 L.Ed.2d 720 (1985) (Blackmun, J., concurring)), Justice Scalia concluded that the operation of a state probation system, and particularly the need for close and ongoing supervision of participants, presented just such a "special need." Id. 483 U.S. at 875, 107 S.Ct. at 3169. The dichotomous goals to which probation is dedicated--rehabilitation and public safety--coalesced to justify substantial restrictions upon probationers. Id. Hence, the special needs of the situation "permitt[ed] a degree of impingement upon privacy that would not be constitutional if applied to the public at large." Id.

The Court likened the reduced-liberty status of probationers to that of parolees. Id. at 874, 107 S.Ct. at 3168 (citing and quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484 (1972)). The Court emphasized that probation, as "a form of criminal sanction," disenfranchises the recipient of at least some rights enjoyed by law-abiding citizens, probation being "simply one point (or, more accurately, one set of points) on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service." Id. Yet, although the existence of post-conviction monitoring allowed greater trespasses upon privacy than would normally be the case, the "permissible degree [of impingement] is not unlimited." Id. 483 U.S. at 875, 107 S.Ct. at 3169. The Court proceeded, therefore, to evaluate the extent to which "the special needs of Wisconsin's probation system make the warrant requirement impracticable and justify replacement of the standard of probable cause by 'reasonable grounds.' " Id. at 876, 107 S.Ct. at 3170.

The outcome of this evaluation proved to the Court's satisfaction that the situational "needs" were sufficiently "special." Justice Scalia wrote that a warrant and probable-cause requirement would interfere with the proper operation of the probation system, render it "more difficult for probation officials to respond quickly to evidence of misconduct and would reduce the deterrent effect that the possibility of expeditious searches would otherwise create." Id. (citation omitted). Throughout, the Court underscored the hybrid role of the probation officer, who, "while assuredly charged with protecting the public interest, is also supposed to have in mind the welfare of the probationer." Id. The absence of an unqualifiedly adversarial relationship between probationer and probation officer allowed access to information otherwise unobtainable and served to make the probation officer the best available barometer for gauging the likelihood that the conditions of probation had been transgressed. Id. at 878-79 & n. 6, 107 S.Ct. at 3170-71 & n. 6.

Taking all of these factors into account, the Court decided that it was "both unrealistic and destructive of the whole object of the continuing probation relationship to insist upon the same degree of demonstrable reliability of particular items of supporting data, and upon the same degree of certainty of violation, as is required in other contexts." Id. at 879, 107 S.Ct. at 3171. On this basis, the Court found the Wisconsin regulation authorizing probation officers to conduct searches of a probationer's home without a judicial warrant and in the absence of exigent circumstances to be constitutionally sound. Id. at 880, 107 S.Ct. at 3171. 2

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The issue before us is largely unclouded by extraneous considerations. It is undisputed that the PVW was validly issued; that New York's "reasonable cause" standard for its issuance was fulfilled and does not differ materially from Wisconsin's "reasonable grounds" criterion; that when the PVW was sworn out there was no "probable cause" for appellant's arrest in the classical sense, see, e.g., O'Connor v. Ortega, 480 U.S. 709, 724, 107 S.Ct. 1492,...

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