U.S. v. McCarty

• Decision Date: 24 April 1996
• Docket Number: No. 95-8030,95-8030
• Citation: 82 F.3d 943
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles John McCARTY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 943

82 F.3d 943

UNITED STATES of America, Plaintiff-Appellee, v. Charles John McCARTY, Defendant-Appellant.

No. 95-8030.

United States Court of Appeals Tenth Circuit.

April 24, 1996.

Appeal from the United States District Court for the District of Wyoming (D.C. No. 94-CR-0048) Alan B. Johnson, J.

Christopher A. Crofts, Assistant United States Attorney, District of Wyoming, Casper, Wyoming, (David D. Freudenthal, United States Attorney, District of Wyoming, Casper, Wyoming, with him on the brief) for Plaintiff-Appellee.

Maynard D. Grant, Grant & Newcomb, Cheyenne, Wyoming, for Defendant-Appellant.

Before KELLY, BARRETT and JONES , Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Mr. McCarty appeals his conviction on five counts of federal firearms violations alleging that the search upon which his convictions are predicated violated the Fourth Amendment of the United States Constitution; the district court violated his Sixth Amendment right to confrontation by prohibiting cross examination of two prosecution witnesses for bias; and the district court erred in applying the Sentencing Guidelines by ordering Mr. McCarty to serve his federal sentence consecutively to a previously imposed state criminal sentence.

Background

In October 1991, Mr. McCarty was arrested and charged with assaulting his former girlfriend and her brother. He pled guilty to reckless endangering, a misdemeanor for which he served a year in prison, and felony aggravated assault and battery, for which the state court placed him on probation for five years and prohibited Mr. McCarty from either contacting his former girlfriend or possessing firearms. In March 1993, the former girlfriend informed state officials that she had received mail apparently sent by Mr. McCarty. After the Wyoming State Crime Lab discovered Mr. McCarty's fingerprint on a portion of the suspect mail, a search warrant was issued to the Worland police alleging Mr. McCarty had violated a condition of his probation by contacting the victim by letter. During the search of Mr. McCarty's residence, police discovered a rifle equipped with a silencer. 11 R. 71-72. On April 13, 1993, the state court revoked Mr. McCarty's probation and sentenced him to a five to seven year term of imprisonment.

In March 1994, on the basis of the search of the residence, Mr. McCarty was charged with making a false statement in connection with the purchase of a firearm, 18 U.S.C. §§ 922(a)(6), 924(a)(1), receiving a firearm while under indictment for a felony, id. §§ 922(n), 924(a)(1), possession of a sawed-off rifle, 26 U.S.C. §§ 5841, 5845, 5861(d), 5871, possession of a silencer, id. §§ 5841, 5845, 5861(d), 5871, and possession of a silencer not identified with a serial number, id. §§ 5841, 5842, 5845, 5861(i), 5871. In December 1994, Mr. McCarty was convicted of all five federal firearms violations and sentenced to 71 months, to be served consecutively to his state sentence received for his assault conviction.

Discussion

A. Fourth Amendment

In reviewing the district court's denial of a motion to suppress, we apply the clearly erroneous standard of review to the district court's findings of fact and view the evidence in the light most favorable to the government. United States v. Baker, 30 F.3d 1278, 1280 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 273, 130 L.Ed.2d 190 (1994). The reasonableness of a search and seizure under the Fourth Amendment is a question of law we review de novo. United States v. Martinez-Cigarroa, 44 F.3d 908, 910 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 1386, 131 L.Ed.2d 238 (1995). To assess the validity of a search warrant under the Fourth Amendment, we review whether the totality of the circumstances in the affidavit provided the judicial officer " 'a substantial basis for finding a fair probability that contraband or other evidence of a crime would be found' " at the searched premises. Baker, 30 F.3d at 1280 (quoting United States v. Hager, 969 F.2d 883, 887 (10th Cir.), cert. denied, 506 U.S. 964, 113 S.Ct. 437, 121 L.Ed.2d 357 (1992)).

This case involves the question of whether a suspected violation of a condition of probation constitutes probable cause for which a search warrant may issue, particularly where the probation violation in question would not constitute a crime beyond the confines of the defendant's probation agreement. This presents a question of first impression in this circuit. To assist our assessment of the reasonableness of the search in this case, we turn first to an analysis of a probationer's rights under the Fourth Amendment.

The Fourth Amendment protects a probationer's home, like that of any other citizen, from unreasonable searches. Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709 (1987). However, the special needs and benefits presented by a state's probation system compels a probationer to occupy the unusual status of a citizen with only conditional, rather than absolute liberty. Id. at 873-74, 107 S.Ct. at 3168-69; see also United States v. Lewis, 71 F.3d 358, 361-62 (10th Cir.1995). It is clear that a probation officer may search a probationer's home or even arrest a probationer without a warrant and with less than probable cause. Griffin, 483 U.S. at 877-78, 107 S.Ct. at 3170-71; Lewis, 71 F.3d at 362. It is equally well established that a probation officer cannot act as a "stalking horse" on behalf of police to assist police in evading the Fourth Amendment's warrant requirement. United States v. Watts, 67 F.3d 790, 793-94 (9th Cir.1995); United States v. Martin, 25 F.3d 293, 296 (6th Cir.1994). According to Wyoming law, a probation officer may arrest a probationer without a warrant "if the agent has probable cause to believe the person has violated the terms of his probation or parole," Wyo.Stat. § 7-13-411(a)(iii), or conduct a warrantless search of a probationer's home upon reasonable suspicion of probation violation, Pena v. Wyoming, 792 P.2d 1352, 1357 (Wyo.1990).

In many cases, the police may arrest a probationer or search a probationer's premises without a warrant at the behest of the parole officer. See, e.g., Lewis, 71 F.3d at 361, 363 (search by parole officers and police, who were acting at the request of parole officers but without a warrant, did not offend the Fourth Amendment); United States v. Shephard, 21 F.3d 933, 936 n. 6 (9th Cir.1994) (under Montana law, violation of probation constitutes an offense for which police may arrest probationer without a warrant but at the written request of parole officer); United States v. Cardona, 903 F.2d 60, 66 (1st Cir.1990) ("police officers and parole officers are fungible when the former serve as mere implimentors of decisions already made by the latter"), cert. denied, 498 U.S. 1049, 111 S.Ct. 758, 112 L.Ed.2d 778 (1991). Such is the case in Wyoming, where state law empowers the police to "arrest without [a] warrant an alleged probation or parole violator after receiving a written statement from a probation and parole agent setting forth that the probationer or parolee has, in the judgment of the probation and parole agent, violated the conditions of his probation or parole." Wyo.Stat. § 7-13-411(b). Furthermore, in Wyoming, to determine if a probationer has violated a condition of his probation, the police may conduct a warrantless search of probationer's home on less than probable cause and without written consent of the probation officer if accompanied by the probation officer. Sanderson v. Wyoming, 649 P.2d 677, 678-79 (Wyo.1982). This is true even where the police initiate contact with the probation officer and only the probation officer had received consent to search. Id. By informing the probation officer of an alleged probation violation and conducting the search in the presence of the probation officer, the police "become the probation officer's agents when they gave assistance to the probation officer at her request." Id. at 679.

This case, however, does not involve a probation officer's warrantless search of a probationer's home but rather a search conducted by the police pursuant to a warrant. Accordingly, the question that concerns us is whether, in light of Mr. McCarty's status as a probationer, the warrant satisfies the probable cause requirement of the Fourth Amendment.

Mr. McCarty concedes that the affidavit upon which the warrant was based contained sufficient grounds under Griffin to allow a Wyoming probation officer to conduct a warrantless search of Mr. McCarty's home. Aplt.Br. at 13. However, Mr. McCarty argues that because mailing a letter is not per se illegal, Mr. McCarty's alleged parole violation constituted a non-criminal act that is insufficient as a matter of law to constitute probable cause for which a search warrant may issue. We disagree. Violation of probation constitutes indirect contempt of court under Wyoming law and constitutes a crime punishable by imprisonment. Criminal contempt emanates from the common law axiom that a court inherently possesses the power to punish transgressions of its orders. See generally International Union, UMWA v. Bagwell, --- U.S. ----, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994) (discussing case law development of criminal contempt). Although not codified in the Wyoming statutes, criminal contempt finds solid support in Wyoming case law, see e.g., Connors v. Connors, 769 P.2d 336 (Wyo.1989); Skinner v. Wyoming, 838 P.2d 715 (Wyo.1992), and is specified in the Wyoming Rules of Criminal Procedure, where is it defined as an act "not committed in the immediate presence of the court, and of which it has no personal knowledge, including ... [d]isobedience of any lawful judgment, order, or process of the court." Wyo.R.Crim.P. 42(a)(2)(C). Conviction of criminal contempt may result in imprisonment for up to six months if the defendant is convicted by a judge, or longer if convicted by a jury. Wyo.R.Crim.P. 42(e). The act of mailing a letter, unaffiliated...