U.S. v. Consuelo-Gonzalez

• Decision Date: 15 April 1975
• Docket Number: No. 73-2122,CONSUELO-GONZALE,A,73-2122
• Citation: 521 F.2d 259
• Parties: UNITED STATES of America, Appellee, v. Virginiappellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 259

521 F.2d 259

UNITED STATES of America, Appellee, v. Virginia CONSUELO-GONZALEZ, Appellant.

No. 73-2122.

United States Court of Appeals Ninth Circuit.

April 15, 1975.

Charles Sevilla, Federal Defender, Inc. (argued), San Diego, Cal., for appellant.

Stephen Peterson, and James W. Meyers, Asst. U. S. Attys. (argued), for appellee.

OPINION

Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges.

SNEED, Circuit Judge:

Consuelo-Gonzalez appeals from a conviction under 21 U.S.C. § 841(a)(1) for possession of heroin with intent to distribute. 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 dresser; 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 bindles 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.

Although 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 Act ⁵ 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 Less 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...