U.S. v. Jarrad
| Decision Date | 04 March 1985 |
| Docket Number | Nos. 84-5101,84-5109,s. 84-5101 |
| Parties | 17 Fed. R. Evid. Serv. 974 UNITED STATES of America, Plaintiff-Appellee, v. Stephen JARRAD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles McMANAMY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David W. Wiechert, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
John P. Gyorgy, Deputy Federal Public Defender, Los Angeles, Cal., Hector C. Perez, Newport Beach, Cal., for defendant-appellant.
Appeal from the United States District Court for the Central District of California.
Before SNEED, ANDERSON, and FERGUSON, Circuit Judges.
This is a consolidated appeal from judgments entered against the two defendants for one armed and two unarmed robberies of three Riverside, California banks. Defendant McManamy was convicted under 18 U.S.C. Secs. 2113(a) and (d) on three counts of robbing a federally insured bank. Defendant Jarrad was convicted under 18 U.S.C. Secs. 2(a) and 2113(a) on three counts of aiding and abetting in the same three bank robberies. Jarrad was on parole during all three robberies; McManamy was a parolee at the time of the second and third robberies. The two defendants were each sentenced to concurrent twenty-year terms on each count.
We affirm the district court's judgment as to both defendants.
Three issues are raised in this appeal. Both defendants challenge the district court's refusal to suppress evidence which was obtained under a state parole officer's authority to conduct warrantless searches. Jarrad, alone, raises two additional issues. He contends that the trial court erred in permitting an in-court identification allegedly tainted by infirmities in the pretrial identification process. Jarrad also argues that an FBI agent was improperly allowed to testify regarding a witness' alleged out-of-court identification of him when the witness, at trial, denied making the identification.
Both McManamy and Jarrad challenge the district court's refusal to suppress evidence obtained by the government in warrantless parole searches.
As the sole issue in his appeal, McManamy asserts that the trial court erred by failing to suppress the introduction into evidence of shotgun shells discovered in a search of his residence. The search was authorized by McManamy's newly-assigned parole officer, Gary Kenan. McManamy and parole officer Kenan had no contact prior to the search. Officer Kenan was familiar with defendant McManamy's case, however, through work with McManamy's previous parole officer. The search was conducted in parole officer Kenan's presence by Riverside detectives whom officer Kenan had asked to accompany him on the search. The shotgun shells discovered in the search were later linked to a shotgun used in one of the bank robberies.
Defendant Jarrad challenges the district court's refusal to bar from evidence a shotgun discovered in the trunk of a car he was driving at the time of his arrest. Fontana police impounded the car and, pursuant to a telephone request by parole officer Kenan, Riverside detectives searched it. No parole officer was present at the search. Although he was not Jarrad's assigned parole officer, Kenan worked closely with Jarrad's individual parole officer on Jarrad's case prior to Kenan's authorization of the trunk search. There was no contact between Jarrad and parole officer Kenan before the search took place. The shotgun discovered in the search was later shown to be the same shotgun used in one of the bank robberies.
Warrantless searches conducted by parole officers in the performance of their duties are subject to modified Fourth Amendment restrictions. In Latta v. Fitzharris, 521 F.2d 246 (9th Cir.) (en banc), cert. denied, 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975), we held that a warrantless parole search does not run afoul of the Fourth Amendment when the parole officer reasonably believes such search is necessary in the performance of his duties. Id. at 250. Excepted from the parole standard, however, are those cases in which the parole officer acts as a "stalking horse" to facilitate police investigations by circumventing the warrant requirement. See id. at 247.
Each defendant argues that the warrantless search conducted in his case was an invalid parole search on two grounds. First, the defendants contend that they did not validly consent to restrict their Fourth Amendment rights as a condition of their parole. Second, the defendants rely on Latta v. Fitzharris and claim that the parole officer authorizing the challenged searches, parole officer Kenan, was in fact a "stalking horse" for the police. The warrantless searches were not parole searches conducted to enforce their parole, the defendants assert, but were instead investigatory police searches conducted in violation of their Fourth Amendment rights.
Defendants' first contention is without merit. The modification of Fourth Amendment protections afforded to parolees in their relationship with parole officials is not based on consent. The limitation on parolees' search protections arises from the unique status of the parolee and the dual responsibilities of the parole officer to aid in parolee rehabilitation and to protect society. See Latta, 521 F.2d at 249-50; see also United States v. Gordon, 540 F.2d 452 (9th Cir.1976) ().
The second basis of invalidation, viz. that the parole officer was a "stalking horse" for the police in the search, presents a more difficult issue. Officer Kenan was not a "stalking horse" if he, rather than the police, initiated the search in the performance of his duties as a parole officer. Latta, 521 F.2d at 247; see United States v. Hallman, 365 F.2d 289, 292 (3d Cir.1966); Smith v. Rhay, 419 F.2d 160, 162-63 (9th Cir.1969).
This is a question of fact subject to the "clearly erroneous" standard of review, even though the ultimate issue of whether the search conforms to the Fourth Amendment presents a mixed question of fact and law. See Pullman-Standard v. Swint, 456 U.S. 273, 288, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982); United States v. McConney, 728 F.2d 1195, 1203 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).
The district court's questioning and the facts thereby adduced indicate that the district court properly found that the parole officer independently initiated both parole searches. McManamy was formally under parole officer Kenan's supervision before the contested search was authorized. Parole officer Kenan also had worked previously in Jarrad's parole, and was authorized by Jarrad's individual parole officer to act in the case. Due to his work on both defendants' cases prior to the contested searches, parole officer Kenan had an adequate knowledge of the suspicions regarding the defendants' involvement in the robberies to independently determine the necessity for the searches in carrying out his duties. The district court could conclude from the evidence presented that the police officers became involved in the searches only upon parole officer Kenan's request for assistance.
Appellants argue that the parole searches were not initiated by officer Kenan because he became involved only after a police investigation of the robberies was already underway. Parole and law enforcement officials frequently cooperate in the course of their work. Parole officers often receive information concerning their parolees that is uncovered in police criminal investigations. The fact that police investigation of the bank robberies in this case preceded the involvement of parole officials does not in itself indicate that the search was initiated by police officers.
Appellants cite Smith v. Rhay, 419 F.2d 160 (9th Cir.1969), in support of their argument that parole officer Kenan acted solely as the agent of investigating police officers. The situation in the present case, however, is distinguishable from that in Smith. In Smith, the parole officer was enlisted by the police to locate the parolee as part of their criminal investigation. The police officers then accompanied the parole officer on the search at their own request. Id. at 162-63. In contrast, investigating detectives in the present case were asked by parole officer Kenan to search the impounded car and to assist in the search of McManamy's residence. See Appellant's Excerpt of Record 35-42.
Based on the evidence presented at the suppression hearing, the district court correctly concluded that the two contested warrantless searches were initiated by parole officer Kenan and that they were valid parole searches. The district court's refusal to bar evidence discovered in these searches was, therefore, without error.
Defendant Jarrad contends that the trial court erred by denying his motion in limine to bar an in-court identification of him by a witness. Jarrad alleges the in-court identification was "tainted" by comments from a detective during a pretrial photospread identification session. Following her pretrial identification of the defendant, the witness, when she appeared frightened, was told by the detective that "they were in custody." The defendant argues that the remark suggested to the witness that her identification was correct, and that the remark therefore so tainted the witness' later in-court identification that "a very substantial likelihood of irreparable misidentification" was raised, depriving the defendant of due process. See Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).
The presence of impermissible taint is determined by...
To continue reading
Request your trial
-
Tyrell J., In re
...903 F.2d 60, 63; U.S. v. Richardson (9th Cir.1988) 849 F.2d 439, 441; U.S. v. Merchant (9th Cir.1985) 760 F.2d 963; U.S. v. Jarrad (9th Cir.1985) 754 F.2d 1451, 1454; Owens v. Kelley (11th Cir.1982) 681 F.2d 1362, 1369.) That view is shared by the state courts that have addressed the issue.......
-
U.S. v. Jordan, 86-3005
...would have returned a verdict of guilty. See United States v. Hasting, 461 U.S. at 510-11, 103 S.Ct. at 1981-82; United States v. Jarrad, 754 F.2d 1451, 1456-57 (9th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985); United States v. Coachman, 727 F.2d 1293, 1297-98 App......
-
State v. Reichert
...search depends upon a showing that the search was a true probation search and not an investigation search"); United States v. Jarrad, 754 F.2d 1451, 1453 (9th Cir.) (probation officer may not act as a "stalking horse" for the police to evade the Fourth Amendment warrant requirement), cert. ......
-
U.S. v. Cardona
...guardian, so to speak, of the parolee, but as the agent of the [police]," fruits of search must be suppressed); cf. United States v. Jarrad, 754 F.2d 1451, 1454 (9th Cir.) (probation officer may not act as "stalking horse" for police), cert. denied, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78......
-
§ 32.04 Statements of Identification: FRE 801(d)(1)(C)
...at trial"); United States v. O'Malley, 796 F.2d 891, 899 (7th Cir. 1986) (prior identification repudiated); United States v. Jarrad, 754 F.2d 1451, 1456 (9th Cir. 1985) (prior identification denied).[29] See United States v. Anglin, 169 F.3d. 154, 159 (2d Cir. 1999) ("Crowl's testimony to t......
-
§ 32.04 STATEMENTS OF IDENTIFICATION: FRE 801(D)(1)(C)
...at trial"); United States v. O'Malley, 796 F.2d 891, 899 (7th Cir. 1986) (prior identification repudiated); United States v. Jarrad, 754 F.2d 1451, 1456 (9th Cir. 1985) (prior identification denied).[26] See United States v. Anglin, 169 F.3d. 154, 159 (2d Cir. 1999) ("Crowl's testimony to t......