U.S. v. Merchant

Decision Date14 May 1985
Docket NumberNo. 83-1135,83-1135
PartiesUNITED STATES of America, Plaintiff-Appellee, v. David William MERCHANT, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

John F. Penrose, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Christina Arguedas, Penelope M. Cooper, Cooper, Newhouse, Hertz & Lyons, Berkeley, Cal., for defendant-appellant.

Appeal from the United States District Court for the Northern District of California.

Before MERRILL, FLETCHER, and CANBY, Circuit Judges.

FLETCHER, Circuit Judge:

David Merchant appeals his conviction for manufacturing PCP. He challenges the district court's denial of his motion to suppress laboratory equipment and chemical supplies seized by law enforcement officers during a warrantless search ostensibly conducted pursuant to a condition of his state probation. Merchant contends the district court erred in finding that he was on probation at the time of the search. We reverse.


On November 14, 1980, Merchant was convicted in state court on two counts of brandishing firearms in violation of Cal.Penal Code Sec. 417 (West 1970 & Supp.1985). The state court suspended imposition of sentence and placed Merchant on three years probation. As a condition of probation, Merchant was required to serve eighteen months in jail, twelve months suspended. The court also conditioned Merchant's probation on his consent to searches by probation or law enforcement officers and on the requirement that he not possess any weapons.

Merchant protested the jail detention as unduly harsh, and after some discussion, Merchant's counsel stated his intention to appeal. The court granted a stay of the sentence pending the outcome of Merchant's appeal. No probation officer was ever assigned to Merchant's case.

On February 11, 1981, the assistant district attorney who prosecuted the state action moved for a clarification or modification of the stay. On February 27, the sentencing judge granted the prosecution's motion, stating, "[D]efendant will be reinstated on the terms of probation." Merchant was not present at the hearing. His counsel was present but did not object to the motion.

Four days later, the assistant district attorney and nine state law enforcement officers went to Merchant's home to execute a civil judgment and conduct a probation search. When the officers arrived, Merchant protested that he was not on probation and would not give permission to search. The officers permitted Merchant to phone his attorney, who told the assistant district attorney that Merchant had not received notice of the sentencing judge's February 27 order.

Despite the protests of Merchant and his attorney, the officers conducted a thorough search of the residence. They found over eighty firearms. They also found chemical equipment and supplies for manufacturing phencyclidine ("PCP"). At this point, the officers halted the search and obtained a telephonic search warrant. Thereafter, the officers found other evidence of PCP manufacturing.

Based on the evidence obtained in the search, a federal grand jury indicted Merchant for manufacturing PCP, 21 U.S.C. Sec. 841(a)(1) (1982), possessing PCC 1 with intent to manufacture PCP, 21 U.S.C. Sec. 841(b)(5), and possessing piperidine with intent to manufacture PCP, 21 U.S.C. Sec. 841(d).

Merchant moved to suppress the PCP evidence seized in the search of his house. After an evidentiary hearing, the district court denied the motion, finding that Merchant was on probation at the time of the search and had been on probation since November 14, 1980. Alternatively, the court held that even if Merchant was not on probation, the officers' reasonable good faith belief that Merchant was subject to a probation search precluded the application of the exclusionary rule.

Merchant was tried on stipulated facts on the manufacturing PCP count, found guilty, and sentenced to ten years imprisonment, a special parole term of seven years, and a $25,000 fine.

A. Merchant's Probation

Whether Merchant was on probation when the state officers searched his house turns on whether the state court judge stayed the entire sentencing order or only that portion imposing a jail term as a condition of probation. The district court held that Merchant had been on probation since November 14, 1980, because it found that the state judge intended to stay only the jail sentence. This issue is governed by state law. See United States v. Johnson, 722 F.2d 525, 527 (9th Cir.1983) (validity of state probation condition is governed by state law).

In its November 14 order, the state court sentenced Merchant to a three-year prison term, suspended; a three-year term of probation, effective immediately; and a six-month jail term, 2 as a condition of probation. 3 At that hearing, Merchant and his attorney protested the probation order as unduly harsh. Merchant's attorney stated, "What I would like to do, you Honor, I do feel strongly about the second count so I would like to file a Notice of Appeal, if I could at this time." The trial judge responded, "Yes. The sentence will be stayed pending your appeal."

The government contends that when Merchant's attorney referred to the "second count," he was indicating his intention to appeal only the six-month jail confinement, and when the judge responded that the sentence would be stayed, he too was referring only to the jail term. In light of In re Kennick, 128 Cal.App.3d 959, 180 Cal.Rptr. 731 (1982), we disagree.

In Kennick, the California Court of Appeal held that a stay of execution of a judgment stays the entire judgment, unless the trial court specifies otherwise. 128 Cal.App.3d at 963. That case, like the one before us, involved whether a trial judge had stayed both probation and a jail term or only the latter. The court concluded that an intention to stay the jail term by itself cannot be assumed; there must be "a specific statement of the trial court to that effect." Id.

We do not find any such specific statement in the record before us. The trial judge stayed "the sentence;" we cannot speculate that he meant to stay only the jail term. Moreover, at no time from the November 14 hearing to the date of the search was Merchant ever assigned a probation officer or required to report to one. And finally, when the state court granted the prosecution's motion for modification or clarification of Merchant's probation terms it stated that it was "reinstat[ing]" the probation, and not that it had been in effect all along.

These facts, viewed in light of Kennick, compel us to conclude that the probationary terms did not go into effect at the November 14 sentencing. The district court's conclusion to the contrary was error.

We next consider the effect of the state court's February 27 order. The court's stay of execution divested it of jurisdiction to modify the judgment during the pendency of the appeal, Kennick, 128 Cal.App.3d at 962, 180 Cal.Rptr. 731, but did not divest it of jurisdiction to revoke the stay of execution, Stuart v. Superior Court, 94 Cal.App.3d 182, 184-85, 156 Cal.Rptr. 289, 291 (1979). However, the court's attempt to modify the stay was ineffective because Merchant was not given adequate notice.

When the assistant district attorney moved for a modification or clarification of the probation terms, she notified Merchant's attorney, but did not notify Merchant. At the motion hearing, Merchant's attorney was present, but Merchant was not. No waiver of his presence appears in the record. The motion argument occurred on a Friday and the search was conducted just four days later, on Tuesday. During the interim, the assistant district attorney apparently did not make any effort to contact Merchant, and Merchant's attorney did not contact him either. Merchant had no idea that his probation had been "reinstated" or that he was subject to a warrantless search until the officers arrived at his door.

Notice is perhaps the most fundamental of due process rights. See Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972) (notice is one of the "minimum requirements of due process"); Groppi v. Leslie, 404 U.S. 496, 502, 92 S.Ct. 582, 586, 30 L.Ed.2d 632 (1972); Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 242, 2 L.Ed.2d 228 (1957); Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934); see also Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233, 17 L.Ed. 531 (1864) ("Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified."). The principle of adequate notice is interwoven throughout our system of criminal justice. It applies at all stages of a criminal prosecution, from institution of criminal proceedings, see, e.g., Salinas v. United States, 277 F.2d 914, 916 (9th Cir.1960) (due process requires that an indictment be sufficiently clear to apprise accused of the crime charged), to sentencing, see, e.g., Gardner v. Florida, 430 U.S. 349, 358, 362, 97 S.Ct. 1197, 1204, 1206, 51 L.Ed.2d 393 (1977) (plurality opinion) (denial of due process to sentence defendant to death on basis of presentence report he was not allowed to see).

In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Supreme Court held that the loss of liberty entailed in a probation revocation hearing is a serious deprivation requiring that the probationer be accorded due process protections. Id. at 781-82, 93 S.Ct. at 1759. Although a probationer is not entitled to the full panoply of trial-type protections, he is entitled to a preliminary probable cause hearing and a more comprehensive final revocation hearing. Id. at 786, 93 S.Ct. at 1761. The probationer must be given notice of each hearing and an opportunity to be heard at each. Id.

Several other circuits have concluded, however, that Gagnon does not apply...

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