U.S. v. Sutton, 79-1489

• Decision Date: 19 October 1979
• Docket Number: No. 79-1489,79-1489
• Parties: UNITED STATES of America, Appellee, v. Lawrence SUTTON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 220

607 F.2d 220

UNITED STATES of America, Appellee, v. Lawrence SUTTON, Appellant.

No. 79-1489.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 14, 1979.

Decided Oct. 19, 1979.

Doris Gregory Black, St. Louis, Mo., for appellant.

Robert D. Kingsland, U. S. Atty., and Mark A. Helfers, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before HEANEY and ROSS, Circuit Judges, and LARSON, ^* Senior District Judge.

LARSON, Senior District Judge.

Lawrence Sutton appeals from an order of the United States District Court, ¹ revoking his probation for violation of court imposed conditions of probation. Sutton claims that the court erred in failing to conduct a preliminary hearing to determine whether probable cause existed to believe appellant had violated the terms of his probation. We affirm.

Appellant pled guilty on February 24, 1978, to one count of mail theft, in violation of 18 U.S.C. § 1702. Imposition of sentence was suspended and appellant was placed on probation for a period of three years. Special conditions of Sutton's probation required him to reside and participate in a residential community treatment center for a period of 120 days, to undergo a program of drug surveillance, to be regularly and gainfully employed, and not to possess firearms or other weapons or related items.

On September 11, 1978, October 30, 1978, and November 17, 1978, laboratory tests done at the direction of the probation office revealed the presence of drugs in appellant's urine. Additionally, Marvin Hyman, appellant's probation officer, testified at the probation revocation hearing that appellant failed to report to the probation office on November 13 and 14, and on December 1, 1978, as required under the terms of appellant's probation. On April 16, 1979, appellant pled guilty to a charge of "stealing more than $50.00," in violation of Missouri law, and was sentenced to five months in the St. Louis City workhouse.

In April of 1979, Sutton's probation officer filed a superseding petition with the district court, which alleged that appellant had violated his probation by failing to appear and undergo testing for drug use, by illegally using drugs, and by violating the laws of the State of Missouri. A probation violator's warrant was issued on April 26, 1979. At that time appellant was serving his five month sentence in St. Louis City workhouse; he was taken into federal custody on a writ of habeas corpus ad prosequendum, appearing at an identity hearing before a United States magistrate on May 31, 1979. Counsel was appointed to represent appellant at that time. The final probation revocation hearing, originally scheduled for June 1, 1979, was postponed until June 8, 1979, at the request of appellant's counsel to give counsel time to become acquainted with appellant's case. Sutton apparently remained in the custody of the United States marshal during this period. After taking testimony from four witnesses, the district court imposed a two year prison sentence on the appellant, giving him credit for time already served in relation to the mail theft charge.

In this appeal, appellant contends that his constitutional rights were violated when the district court failed to hold a preliminary hearing to determine whether probable cause to believe that appellant had violated his probation existed.

In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the United

States Supreme Court held that due process requires that a preliminary hearing to determine whether probable cause exists to believe that a probation violation has occurred must be held at the time of, or as near as possible to, arrest and detention of the probationer. See id. at 781-82, 93 S.Ct. at 1756. Applying the due process requirements of parole revocation hearings adopted in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. at 2593, 33...