U.S. v. Workman, 77-1884

• Decision Date: 04 December 1978
• Docket Number: No. 77-1884,77-1884
• Citation: 585 F.2d 1205
• Parties: UNITED STATES of America, Appellee, v. Perlie Donald WORKMAN, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1205

585 F.2d 1205

UNITED STATES of America, Appellee, v. Perlie Donald WORKMAN, Appellant.

No. 77-1884.

United States Court of Appeals, Fourth Circuit.

Argued July 21, 1978.

Decided Sept. 21, 1978.

Rehearing Denied Dec. 4, 1978.

Sam J. Ervin, Jr., and Joe K. Byrd, Morganton, N.C., for appellant.

Phillip G. Kelley, Asst. U.S. Atty., Charlotte, N.C. (Harold M. Edwards, U.S. Atty., Asheville, N.C., and Susan S. Craven, Asst. U.S. Atty., on brief), for appellee.

Before BUTZNER, RUSSELL and WIDENER, Circuit Judges.

BUTZNER, Circuit Judge:

Perlie Donald Workman appeals from the district court's order revoking his probation. We vacate the order and remand the case for further proceedings because revocation was based on evidence obtained by searches that violated the fourth amendment.

I

Workman was convicted in May of 1973 on his guilty pleas to two counts of an indictment charging possession of a distillery and bootleg whiskey. The court suspended his sentences aggregating five years and placed him on probation for five years. Two of the conditions of his probation were that he not possess, manufacture, sell, or buy any illegal whiskey and that he not violate any law of the United States or North Carolina.

In a complaint filed in February, 1977, a probation officer asked the court to revoke Workman's probation for violation of these conditions. The complaint alleged that in the previous December, police officers destroyed an illegal distillery found in Workman's home. The complaint also disclosed that in a state prosecution based on this incident, the North Carolina court ruled that the search of Workman's residence was illegal because the warrant on which it was based did not comply with the fourth amendment. The state court suppressed the evidence and dismissed the case.

Two months later, the probation officer filed a second complaint alleging that Workman possessed an illegal distillery in a building located on his property. This complaint was based on evidence discovered during a warrantless search in April, 1977, by the probation officer and an Alcohol Beverage Control agent. The officer testified that he searched the storage shed because he had a report that Workman kept a still there. He said that he did not obtain a search warrant because he believed that he did not need one.

The district court ruled that a "federal probation officer in the performance of his duties may conduct reasonable searches of a probationer and his premises without a warrant when probable cause exists." Consequently, it considered the evidence discovered during the officer's April search. The court also held that the exclusionary rule does not apply to probation revocation proceedings. It therefore concluded that it could also consider the evidence concerning the December incident notwithstanding the state court's determination that it had been illegally obtained. ¹ Based on all the evidence, the court revoked Workman's probation and imposed concurrent two-year sentences.

II

The first issue is whether a probation officer can conduct warrantless searches of his probationer's premises whenever he has probable cause. Relying primarily on United States v. Bradley, 571 F.2d 787 (4th Cir. 1978), decided after the district court rendered its decision in this case, and on Martin v. United States, 183 F.2d 436 (4th Cir. 1950), we conclude that he cannot. ²

In Bradley we held "that unless an established exception to the warrant requirement is applicable, a parole officer must secure a warrant prior to conducting a search of a parolee's place of residence even where, as a condition of parole, the parolee has consented to periodic and unannounced visits by the parole officer." 571 F.2d at 789. We also ruled that the special relationship between a parolee and his parole officer and society's interest in close supervision of the parolee serve to lower the standard for determining probable cause to obtain a search warrant but that they do not eliminate the warrant requirement. This approach is consistent with the Supreme Court's admonition that exceptions to the warrant requirement "are few in number and carefully delineated . . . ; in general, they serve the legitimate needs of law enforcement officers to protect their own well-being and preserve evidence from destruction." United States v. United States District Court, 407 U.S. 297, 318, 92 S.Ct. 2125, 2137, 32 L.Ed.2d 752 (1972).

We recognize the similarity between searches by probation officers and administrative searches by officials to enforce civil regulations. But as we made clear in Bradley, this analogy affords no reason for dispensing with a warrant. This conclusion has been buttressed by Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), in which the Court declared unconstitutional a provision of the Occupational Safety and Health Act which authorized warrantless searches of commercial premises by safety inspectors. In that case, the Court reaffirmed the important function served by warrants even when probable cause in the criminal sense is not required to obtain them.

In Martin v. United States, 183 F.2d 436, 439 (4th Cir. 1950), involving a forfeiture proceeding against a probationer's automobile, Judge Soper wrote There is no doubt that the Fourth Amendment protects all persons suspected or known to be offenders as well as the innocent, and it unquestionably extends not only to the persons but also to the houses of the people, whether they be residences or places of business. . . . The Amendment applies in this case to Martin, a probationer, and to his garage located near his home, although his status is a circumstance to be taken into consideration; but the question remains whether the search and seizure were unreasonable and therefore a violation of the right conferred upon him to be secured against such a search.

Consequently, in determining whether evidence seized by a probation officer without a warrant was admissible, the Martin court applied a traditional exception to the fourth amendment's requirement of a warrant. It admitted the evidence because the probation officer acting on probable cause made the search as an incident to his lawful apprehension of the probationer. The court did not rest its opinion on the theory that a probation officer can search a probationer's property without a warrant in the absence of exigent circumstances.

Congress has granted broad authority to probation officers, including the power to arrest without a warrant. 18 U.S.C. § 3653. Significantly, however, Congress has not authorized probation officers to conduct warrantless searches. This absence of legislative authority distinguishes probation officers from inspectors who are empowered by statute to conduct searches of certain regulated businesses without warrants. Cf. United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970).

The restriction on a probation officer's authority to search does not preclude warrantless visits to the probationer's home or place of employment. Inherent in the probation officer's duty to "use all suitable methods . . . to aid probationers and to bring about improvements in their conduct and condition" ³ is authority to visit the probationer. A visit, however, is not a search. Cf. Wyman v. James, 400 U.S. 309, 317-18, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971); Latta v. Fitzharris, 521 F.2d 246, 256 (9th Cir. 1975) (Hufstedler, J., dissenting).

Nor does the lack of authority to conduct a warrantless search prohibit a probation officer from acting as any other officer in exigent circumstances. Thus he may search and seize articles as an incident to a lawful arrest. Martin v. United States, 183 F.2d 436 (4th Cir. 1950). Since his authority to visit places him lawfully in the probationer's home, he can seize contraband and instruments or evidence of crime in plain view. Coolidge v. New Hampshire, 403 U.S. 443, 464-73, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). For his own safety, he can frisk the probationer without consent, and he can conduct a search with consent. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

Although probation officers have been accorded broad authority so they may effectively discharge their duties, Bradley and Martin establish that they must obtain search warrants in the absence of recognized exceptions to the requirements of the fourth amendment. We find in this case no occasion for departing from the precedent of those decisions.

III

The government next argues that even if Workman is entitled to the protection of the fourth amendment, the evidence obtained in an illegal search should nevertheless be admitted. In support, it relies on a number of cases which have not applied the exclusionary rule to proceedings involving probationers. ⁴ Application of this rule excludes evidence seized in violation of the fourth amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Its "prime purpose is to deter future unlawful police conduct" by removing the incentive to disregard the fourth amendment. United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974). Another purpose, which is accorded less significance by the Supreme Court, is to preserve judicial integrity by precluding courts from basing convictions on illegally obtained evidence. Stone v. Powell, 428 U.S. 465, 485, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); Elkins v. United States,364 U.S. 206, 222-23, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960).

The preliminary question posed by this issue is whether a probationer has standing to invoke the exclusionary rule. Standing is restricted to the victim of a search against whom the government...