909 F.2d 571 (1st Cir. 1990), 89-2005, United States v. Giannetta

Docket Nº:89-2005.
Citation:909 F.2d 571
Party Name:UNITED STATES, Appellee, v. James William GIANNETTA, Defendant, Appellant.
Case Date:July 20, 1990
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 571

909 F.2d 571 (1st Cir. 1990)

UNITED STATES, Appellee,

v.

James William GIANNETTA, Defendant, Appellant.

No. 89-2005.

United States Court of Appeals, First Circuit

July 20, 1990

Heard May 9, 1990.

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Judy Potter, Portland, Me., for defendant, appellant.

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Margaret D. McGaughey, Asst. U.S. Atty., Portland, Me., with whom Richard S. Cohen, U.S. Atty., Augusta, Me., and William H. Browder, Jr., Asst. U.S. Atty., Bangor, Me., were on brief, for appellee.

Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and TORRUELLA, Circuit Judge.

BOWNES, Senior Circuit Judge.

This is an appeal from an order of the district court revoking defendant-appellant James Giannetta's probation. 717 F.Supp. 926. Giannetta raises a number of fourth amendment challenges regarding two searches of his residence that were performed by his probation officer and that uncovered much of the evidence used to support the revocation. For the reasons that follow, we affirm.

I. BACKGROUND

In December, 1986 and March, 1987, Giannetta pled guilty to charges of conspiracy to possess with intent to distribute approximately two kilograms of cocaine and conspiracy to import approximately 8,000 pounds of hashish. At a deferred sentencing hearing in February, 1988, Giannetta was placed on probation for two concurrent terms of five years on each charge. The relatively mild sentence was due to Giannetta's extensive cooperation with law enforcement authorities in other drug trafficking investigations.

Fourteen standard conditions were imposed as part of Giannetta's probation agreement, including bans on unauthorized travel outside the judicial district of Maine, association with any persons convicted of a felony or engaged in criminal activity, and the commission of any crimes during the term of probation supervision. In addition, a special condition of probation required that Giannetta "at all times during his period of probation, readily submit to a search of his residence and of any other premises under his dominion and control, by his supervising probation officer, upon the officer's request." In imposing the special search condition, the district court expressed concern about Giannetta's admitted attraction to the risk and excitement of criminal activity and explicitly stated his intention to subject Giannetta to rigorous scrutiny and supervision by his probation officer.

Shortly after the imposition of probation, Giannetta's probation officer, Vincent Frost, began to suspect that Giannetta was violating several conditions of his probation. Frost's suspicions rested on information received from South Portland Police Detective Reed Barker as well as on the results of his own investigation and surveillance of Giannetta. From this information, Frost concluded that Giannetta had probably violated his probation conditions in the following ways. First, evidence indicated that Giannetta was engaged in the crime of automobile insurance fraud--stripping cars and reporting them stolen so that he could collect the insurance, purchase the salvage rights and then rebuild the cars with the stripped parts. Second, Giannetta appeared to be involved in a fraudulent credit card scheme involving the purchase of items at one store on credit and the return of them at another for cash. Third, in the course of investigating this credit card scheme, Frost also learned that Giannetta had violated the probation condition prohibiting travel outside the judicial district of Maine without authorization. Fourth, Frost discovered that Giannetta had made false statements on a loan application involving the purchase of a Pontiac Fiero. Investigation of this crime also uncovered instances of unauthorized travel by Giannetta outside Maine.

In addition to these activities, Frost acquired information indicating several other probation violations. He assembled telephone documentation of unauthorized contact by Giannetta with at least one convicted felon. He received informant information that Giannetta had been seen in Florida (unauthorized travel) and always carried a gun (illegal for a felon). He observed Giannetta driving (unlawfully) after his license had been suspended. And he personally received overtures from Giannetta that he interpreted as an attempt to

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bribe him for permission to travel outside the district of Maine.

Because of the information indicating numerous probation violations, 1 Frost, accompanied by Detective Barker, conducted an extensive search of Giannetta's residence on June 30, 1988. The search was undertaken pursuant to the probation search condition to look for evidence of the suspected violations. It uncovered, among other things: a false identification card; an envelope containing blank birth certificates, seals and blank identification cards; a large number of bank statements and checks for different accounts in different names at different banks; hundreds of charge slips; and notes containing various bank account information. Believing these items to be evidence of widespread bank fraud, Frost seized them. He also seized other documents and papers that he suspected could constitute or contain evidence of bank fraud, credit card fraud, or automobile insurance fraud. He reviewed the seized items the following day and then departed on a three-week vacation.

Upon returning from vacation, Frost enlisted the assistance of the Federal Bureau of Investigation ("FBI") and continued his investigation. Based on the investigation's results and the items seized in the June 30 search, he obtained a warrant for Giannetta's arrest for probation violations. Giannetta was arrested on September 2, 1988 at his house, at which time Frost conducted a second extensive search pursuant to the probation search condition and seized a number of additional items, primarily documents and papers, also believed to be evidence of probation violations.

Probation revocation proceedings subsequently were held before the district court to determine: first, whether Giannetta had violated any conditions of his probation; and second, what sanctions to impose if the court found that Giannetta had done so. During these proceedings, Giannetta moved on fourth amendment grounds to suppress the items seized by Frost in the two searches, arguing that Frost had lacked probable cause either to search Giannetta's residence or to seize any items from it. Giannetta also challenged the broad scope of both the searches and the seizures. The district court denied the motion to suppress. It ruled that under Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), Frost needed only reasonable suspicion to search and seize evidence from a probationer's residence pursuant to a probation search condition and that Frost had met this standard. The court also upheld the scope of the searches and seizures.

The district court then determined that Giannetta had committed serious violations of a number of his probation conditions. The court found, inter alia, that Giannetta had traveled outside the judicial district numerous times without authorization, committed bank and automobile insurance fraud, filed a false automobile loan application and associated with persons convicted of felonies. The court based its determinations on the results of the two searches, the information assembled by Frost prior to the searches and the testimony of Keith Lorentsen and Alice Cuneo--two associates of Giannetta who testified at length at the revocation hearing as to Giannetta's fraudulent bank and insurance schemes. On the basis of these violations, the court revoked Giannetta's probation and sentenced him to fifteen years in prison on the original drug offenses. Giannetta now appeals, raising a host of fourth amendment challenges to the searches and seizures conducted by Frost.

II. CONSTITUTIONAL AVOIDANCE

At the outset, we consider the government's contention that several of the probation violations found by the district court were supported by evidence independent of the searches conducted by Frost. Because these violations would be sufficient alone to support revocation of Giannetta's probation, the government argues

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that we need not reach the fourth amendment issues presented by the searches and seizures.

Although it may be true that certain of the non-search-related violations, such as the unauthorized travel violations, could be sufficient alone to ground revocation, see United States v. Morin, 889 F.2d 328, 331-32 (1st Cir.1989), it is equally true that a trial judge's decision to revoke upon finding probation violations is discretionary rather than mandatory. Given the number of probation violations in this case that rested on evidence uncovered in the challenged searches, we are unwilling to speculate whether the trial judge would still have exercised his discretion and revoked Giannetta's probation in the absence of the search results. See Higdon v. United States, 627 F.2d 893, 900 (9th Cir.1980). Put another way, we cannot conclude that the search results did not contribute to the judge's decision to revoke Giannetta's probation or to impose a fifteen-year prison sentence. Cf. Satterwhite v. Texas, 486 U.S. 249, 256-59, 108 S.Ct. 1792, 1797-99, 100 L.Ed.2d 284 (1988) (phrasing the harmless error inquiry in a capital sentencing proceeding as whether the constitutional error contributed to the verdict)...

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