U.S. v. Watts

• Decision Date: 28 September 1995
• Docket Number: No. 94-10272,94-10272
• Parties: 95 Cal. Daily Op. Serv. 7587, 95 Daily Journal D.A.R. 12,988 UNITED STATES of America, Plaintiff-Appellee, v. Vernon WATTS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 790

67 F.3d 790

95 Cal. Daily Op. Serv. 7587, 95 Daily Journal

D.A.R. 12,988

UNITED STATES of America, Plaintiff-Appellee, v. Vernon WATTS, Defendant-Appellant.

No. 94-10272.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 14, 1995.

Decided Sept. 28, 1995.

Charles M. Bonneau, Sacramento, California, for defendant-appellant.

Jodi B. Rafkin, Assistant United States Attorney, Sacramento, California, for plaintiff-appellee.

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

Before FLETCHER, POOLE, and O'SCANNLAIN, Circuit Judges.

OPINION

FLETCHER, Circuit Judge:

Vernon Watts appeals his conviction and sentence for possessing with the intent to distribute crack cocaine. We affirm the conviction but vacate Watts's sentence and remand for resentencing.

I. FACTUAL BACKGROUND

The events leading to Watts's arrest and conviction began with the suspicions of Watts's probation officer, John Demmel. Although California's probationers are subject to a condition authorizing warrantless searches of their property, Demmel was well aware that some probationers would lie to their probation officers about where they were living so they could continue to engage in criminal activity without being hindered by probation searches. Demmel had begun to suspect that Watts was one such probationer, telling Demmel that he lived with his mother on Florinda Way while he continued his criminal activity undetected at another residence.

When Demmel mentioned his concern to Detective James Cooper of the Sacramento County Sheriff's Department, Cooper told Demmel that he had learned from a confidential informant that Watts was living on the south side of the county with a woman named Sonja Lee and her children, that he drove a Ford Taurus and a minivan, and that he was selling cocaine. His suspicions raised, Demmel asked Cooper to locate Watts's actual residence by following Watts after he left his next probation meeting.

About a week later, when Watts drove away from Demmel's office in a Ford Taurus, Cooper followed. Although Cooper lost Watts before locating his residence, he did not return to Demmel empty handed: He informed Demmel that Watts was driving a Ford Taurus registered in Watts's name. Demmel found this suspicious because, according to Watts, he was unemployed and had no transportation. Demmel and Cooper discussed the possibility of organizing a larger surveillance team to follow Watts to his residence.

Conveniently, Demmel was one of four probation officers assigned to the Crack Rock Impact Project (CRIP), a federally funded, multi-agency task force devoted to enforcing the laws against crack cocaine. Demmel asked Detective Emanuel Rivera, another member of CRIP, to assist in the surveillance. After a briefing with other members of CRIP, Demmel instructed the participating police officers to conduct a probation search of Watts's residence if they were able to locate it and to stop and search Watts's vehicle if they observed evidence of drug trafficking.

When Watts left Demmel's office in his Ford Taurus after his next scheduled probation interview, Rivera and other CRIP officers followed, staying in contact with Demmel by telephone. The officers hit pay dirt. Watts drove to a house at 8374 Wheatland Way and went inside. Rivera called the electric company and determined that the house's utilities were registered to Sonja Lee. An automobile parked in the driveway also was registered to Lee.

When Watts left the house in his Taurus with a woman and child, Demmel asked the officers to continue their surveillance. Later in the day, Watts dropped the woman and child back at the Wheatland Way address and drove alone to the Florinda Way address where he supposedly lived with his mother. The officers watched Watts walk to the front door, knock, wait a while, and then leave when no one responded.

Watts then went to a house on Bicentennial Circle for approximately one minute. After he left, Watts drove using what the officers believed to be counter-surveillance techniques, such as driving at variable speeds and making numerous, apparently unnecessary turns. Based on his observations, Rivera believed that Watts had participated in a drug deal at the Bicentennial Circle address. Pursuant to Demmel's request at the CRIP briefing session, Rivera stopped Watts to conduct a probation search of his vehicle. Demmel arrived shortly thereafter. In the search of Watts's car, police discovered a set of keys and a garage door opener. Police later determined that one of the keys and the garage door opener were to the front door and the garage of the Wheatland Way house, respectively.

Demmel directed the officers to conduct a probation search of the Wheatland Way house. When police entered the house with Watts's key, Lee was inside. She told police that she and Watts lived there together. Officers searched the house and found crack cocaine in the kitchen cabinet and two loaded firearms and ammunition in a bedroom closet. After the search, Watts confessed that the guns and drugs were his.

Watts was indicted for possessing cocaine base with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1), and for using a firearm in relation to a drug offense, in violation of 18 U.S.C. Sec. 924(c). Watts moved to suppress the evidence obtained in the search of the house, arguing that the probation search was a subterfuge for a criminal investigation and that Demmel and police lacked sufficient reason to believe that he lived at Wheatland Way. The district court denied Watts's motion after a hearing.

After a jury trial, Watts was convicted on the narcotics charge and acquitted on the weapons charge. The district court sentenced Watts to 262 months in prison and 60 months of supervised release. He appeals.

II. LAWFULNESS OF THE PROBATION SEARCH

Watts argues that the district court should have suppressed the fruits of the probation search because Demmel was acting as a "stalking horse" for police and because Demmel lacked a reasonable basis for believing that Watts lived at the Wheatland Way address. We disagree, and we affirm Watts's conviction.

A

Because a state's operation of its probation system presents "special needs" beyond normal law enforcement which render impracticable the Fourth Amendment's usual warrant and probable cause requirements, probation searches conducted pursuant to state law satisfy the Fourth Amendment's reasonableness requirement. Griffin v. Wisconsin, 483 U.S. 868, 872-80, 107 S.Ct. 3164, 3167-72, 97 L.Ed.2d 709 (1987). However, a probation 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), cert. denied, 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975). Watts argues that the district court should have suppressed the fruits of the probation search because Demmel was acting as a "stalking horse" for police when he authorized the search. We review for clear error the district court's factual determination that Demmel was not acting as a stalking horse. See United States v. Butcher, 926 F.2d 811, 815 (9th Cir.), cert. denied, 500 U.S. 959, 111 S.Ct. 2273, 114 L.Ed.2d 724 (1991); 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 probation officer acts as a stalking horse if he conducts a probation search on prior request of and in concert with law enforcement officers. United States v. Richardson, 849 F.2d 439, 441 (9th Cir.), cert. denied, 488 U.S. 866, 109 S.Ct. 171, 102 L.Ed.2d 141 (1988); Smith v. Rhay, 419 F.2d 160, 162-63 (9th Cir.1969). However, collaboration between a probation officer and police does not in itself render a probation search unlawful. See United States v. Harper, 928 F.2d 894, 897 (9th Cir.1991) (parole officer was not a stalking horse simply because police helped him locate parolee); Jarrad, 754 F.2d at 1454 (fact that police investigation preceded parole search does not render the search a subterfuge); United States v. Gordon, 540 F.2d 452, 453 (9th Cir.1976) (finding a lawful probation search even though Narcotics Task Force agents accompanied the probation officer to expedite the search). The appropriate inquiry is whether the probation officer used the probation search to help police evade the Fourth Amendment's usual warrant and probable cause requirements or whether the probation officer enlisted the police to assist his own legitimate objectives. Harper, 928 F.2d at 897. A probation officer does not act as a stalking horse if he initiates the search in the performance of his duties as a probation officer. Butcher, 926 F.2d at 815; Jarrad, 754 F.2d at 1454.

The district court determined that Demmel, not the police, decided to conduct the probation search. Normally this finding would be sufficient to support the determination that Demmel was not a stalking horse. See Harper, 928 F.2d at 897; Butcher, 926 F.2d at 815; Richardson, 849 F.2d at 441; Jarrad, 754 F.2d at 1454. However, Demmel's dual role as both probation officer and member of the concededly "enforcement oriented" CRIP team renders the relevant inquiry more difficult. Watts argues that Demmel was acting more as a police officer than a probation officer.

We share the district court's concern that the participation of a probation officer on a project devoted to law enforcement carries the risk of abusing the probation officer's ability to conduct searches without a warrant and with less than probable cause, a power that is constitutionally permissible only because of the probation system's " 'special needs' beyond normal law enforcement." Griffin, 483 U.S. at 873-74, 107 S.Ct. at 3168-69 (emphasis added). We are especially troubled by the district court's express finding that "at least one of the purposes of the CRIP Team is to allow for probation searches in cases where police officers want to search the...