U.S. v. Richardson

• Decision Date: 14 June 1988
• Docket Number: No. 87-5252,87-5252
• Citation: 849 F.2d 439
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark Samuel RICHARDSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 439

849 F.2d 439

57 USLW 2018

UNITED STATES of America, Plaintiff-Appellee, v. Mark Samuel RICHARDSON, Defendant-Appellant.

No. 87-5252.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 2, 1988.

Decided June 14, 1988.

Carlton F. Gunn, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

Steven E. Zipperstein, Asst. U.S. Atty., Crim. Div., Los Angeles, Cal., for plaintiff-appellee.

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

Before GOODWIN and HALL, Circuit Judges, and SCHNACKE, ^* District Judge.

GOODWIN, Circuit Judge:

Mark Samuel Richardson timely appeals from his conditional plea of guilty to one count of theft of government property in violation of 18 U.S.C. Sec. 641. We affirm.

In April 1987, Detective Mumma of the Corona Police Department began to suspect that Richardson was involved in a service station burglary. Mumma knew that another detective was seeking an arrest warrant for Richardson regarding an older case in Riverside County. Mumma further discovered that Richardson was on parole in both Orange and Riverside counties.

Mumma contacted both of Richardson's probation officers. Carolyn Frazier, Richardson's Riverside probation officer, told Mumma that Richardson was in violation of his probation in Riverside County and also in Orange County. Mumma asked Frazier if there was a search condition attached to Richardson's probation and indicated that he was interested in conducting a search pursuant to the search condition if Frazier agreed. Frazier told Mumma that there was a search condition, and gave her permission to Mumma to conduct a probation search when Mumma arrested Richardson.

Mumma also contacted Deborah Bashara, Richardson's Orange County probation officer. Bashara referred Mumma to the probation officer who was taking over Richardson's case, Darlyne Pettinicchio. Pettinicchio gave her permission to conduct a search if and when Mumma arrested Richardson.

Each probation officer subsequently sought arrest warrants for Richardson's probation violations. On May 4, a warrant was issued for Richardson's probation violation in Riverside County.

On May 6, Mumma obtained an arrest warrant for Richardson. On May 8, Mumma, accompanied by several other law enforcement officers, arrested Richardson at his home while he was seated in his car in front of his residence. No probation officers accompanied them. They then searched the car and the house, and found various coins, stamps, tools, maps and notes. This evidence led Richardson to confess to approximately 20 thefts from post office vending machines.

The district court found that the search conducted by Mumma was a valid probation search, that it was not a subterfuge or a substitute for normal criminal investigation, and that none of Richardson's rights had been violated. The court further found that both Frazier and Pettinicchio authorized the search because they believed the search would serve probationary goals. The court held that there was no requirement that probation officers be on the scene in order to validate a probation search.

In Griffin v. Wisconsin, --- U.S. ----, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), the Court held that probation searches conducted pursuant to state law do not violate the fourth amendment. The Court explained that a state's operation of its probation system presents "special needs" beyond normal law enforcement, such as close supervision of probationers, that may justify departing from the fourth amendment's usual warrant and probable cause requirements. Id. at 3168. The Court ruled that a state probation search satisfies the fourth amendment's general requirement of reasonableness if it is conducted pursuant to a valid state regulation governing probationers. Id. at 3171.

Richardson does not challenge the district court's conclusion that the search of his residence was "authorized by and consistent with California law." California law permits law enforcement officers to conduct probation searches. See People v. Bravo, 43 Cal.3d 600, 238 Cal.Rptr. 282, 738 P.2d 336 (1987), cert. denied, --- U.S. ----, 108 S.Ct. 1074, 99 L.Ed.2d 234 (1988). Richardson suggests, however, that the fourth amendment must place some limitation on state regulations which allow searches of probationers. Richardson contends that the fourth amendment requires a federal court to suppress evidence discovered in a probation search initiated solely by and conducted solely by police officers. He also suggests that the fourth amendment requires adequate supervision of the police search by probation officers.

We have said that a parole search may not be used as a "subterfuge for a criminal investigation." See Latta v. Fitzharris, 521 F.2d 246, 249 (9th Cir.) (en banc ) (plurality opinion), cert. denied, 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975). A probation officer must not act as a "stalking horse" for the police. United States v. Jarrad, 754 F.2d 1451, 1454 (9th Cir.), cert. denied, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985). A parole officer is not a stalking horse "if he, rather than the police, initiate[s] the search in the performance of his duties as a parole [or probation] officer." Id. When, on the other hand, a parole or probation officer conducts a parole or probation search on prior request of and in concert with law enforcement officers, the officer "is in such a case acting, not as the supervising guardian, so to speak, of the parolee, but as the agent of the very authority upon whom the requirement for a search warrant is constitutionally imposed." Smith v. Rhay, 419 F.2d 160, 162-63 (9th Cir.1969).

Whether or not a parole or probation officer is acting as a stalking horse is a question of fact, reviewed for clear error. See Jarrad, 754 F.2d at 1454. The court below found that the probation officers were not acting as stalking horses. Ample evidence supported that conclusion. When contacted by Mumma, Frazier was already concerned about Richardson's probation violations. She approved the search. Furthermore, she sought and obtained a warrant to revoke Richardson's probation in Riverside County before Mumma arrested and searched Richardson. These factors support her testimony that she felt probationary goals would be served by the search and that she would have searched Richardson if Mumma had not.

Similarly, the record indicates that Bashara and Pettinicchio were concerned about Richardson's probation violations, prior to Mumma's call. This concern supports Pettinicchio's testimony that she felt that the search would serve probationary goals, and that she would have searched the defendant even if Mumma had not called. As this court noted in Jarad:

Parole and law enforcement...