Clifford V. LATTA v. C. J. FITZHARRIS et al.
No. 71-2909
United States Court of Appeals, Ninth Circuit
April 15, 1975
The District Court correctly stated the law that a principal can be held liable for even fraudulent acts of its agent if the agent had apparent authority. Mechanical Wholesale, Inc. v. Universal-Rundle Corp., 5 Cir., 1970, 432 F.2d 228, 230. The evidence substantially supports the District Court‘s finding of apparent authority. Everett was registered with the Court as an agent of Surety and the Court had no reason to know of the in-house limitation.
There is a caveat, however, to the principle of apparent authority. The principal is liable only if the third party “reasonably believed the agent was acting within the scope of his authority.” Bankers Life Insurance Co. v. Scurlock Oil Co., 5 Cir., 1971, 447 F.2d 997, 1005 n. 12. This belief can be based on the fact that the agent‘s actions were not a substantial departure from his usual methods and conduct of business so as to warn an ordinary prudent person that he lacked the authority to act. Great American Insurance Co. v. Sharpstown State Bank, Tex.1970, 460 S.W.2d 117, 122. Everett‘s usual business was to execute bonds and the Court knew only of his $50,000 limit. The District Court found, therefore, that the magistrate, the Court official accepting the powers, reasonably believed that the powers were valid and that he was not derelict in failing to detect the alterations. While some observers of the powers might more readily conclude that the powers were altered,2 we cannot say that the conclusion of the District Court on this question of fact was clearly erroneous. See Volkswagen of America, Inc. v. Jahre, 5 Cir., 1973, 472 F.2d 557, 558-59. Therefore, as between two innocent parties, the District Court correctly decided that the loss must be borne by Surety. Bankers Life Insurance Co. v. Scurlock Oil Co., supra, at 1006.
Affirmed.
James F. Hewitt, Asst. Federal Public Defender (argued), San Francisco, Cal., for plaintiff-appellant.
OPINION
Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges.
DUNIWAY, Circuit Judge, with whom Circuit Judges KOELSCH, TRASK, GOODWIN and SNEED concur:
In April, 1966, Latta was on parole from his imprisonment under a California armed robbery conviction. His parole officer, who had reason to believe that he was violating the conditions of his parole, arrested him at the house of an acquaintance. No question is raised as to the validity of this arrest. When arrested, Latta was holding in his hand a pipe containing marijuana. About six hours after the arrest, Latta‘s parole officer and two local police officers went to Latta‘s home, which was thirty miles away. There is nothing in the record to suggest that the officers accompanied the parole officer for any reason other than to expedite the search, or that they initiated it in any way. Thus this case is not one in which the parole officer was a stalking horse for the police. See United States v. Hallman, 3 Cir., 1966, 365 F.2d 289, 292; People v. Coffman, 1969, 2 Cal.App.3d 681, 687-89, 82 Cal.Rptr. 782, 785-87. When the officers arrived at Latta‘s home, no one was there. Soon, however, Latta‘s stepdaughter arrived and admitted them to the house. They identified themselves, told her that they were there to conduct a search, and in response to her query said that they did not need a warrant. The search proceeded, and a four-and-one-half pound brick of marijuana was discovered in the garage. This evidence was the basis of Latta‘s later state conviction for posses-
Latta makes two arguments on this appeal: first, that his parole officer‘s warrantless search оf his home violated the
I. The Validity of the Search
A. The Fourth Amendment Applies.
In California, as elsewhere, parole officers have long enjoyed broad powers to search parolees under their supervision. The traditional view of a parolee‘s
For the purpose of maintaining the restraints and social safeguards accompanying the parolee‘s status, the authorities may subject him, his home and his effects to such constant or occasional inspection and search as may seem advisable to them. . . . He may not assert
[Fourth Amendment] guaranties against the correctional authorities who supervise him on parole. . . . If this constitutional fact strips him of constitutional protection against invasions of privacy by his parole officer, the answer is that he has at least as much protection as he had within prison walls. He did not possess this guaranty in prison and it was not restored to him when the gates of parole opened.
However, despite this broad rationale, the principle has its limits; under recent decisions parolees are entitled to
Moreover the theory upon which courts have usually relied to justify stripping parolees of
It is thus too late in the day to assert that searches of parolees by their parole officers present no
B. The Standard of Reasonableness.
The search of Latta‘s home cannot be justified on the basis of the traditional standаrd of probable cause, and California does not argue that it can. It does not follow, however, that the search is invalid. A California parolee is in a different position from that of the ordinary citizen. He is still serving his sentence. He remains under the ultimate control of the Adult Authority and the immediate control of his parole officer. His parole is subject to revocation for reasons that would not permit the arrest or incarceration of other persons. Many of the conditions of his parole relate to non-criminal conduct that is thought likely to make his rehabilitation more difficult. See generally
The overriding goal of the parole system is to give the parolee a chance to further and to demonstrate his rehabilitation while serving a part of his sentence outside the prison walls. It is hoped that he will never return to prison. An excellent statement of the working of the system appears in Morrissey v. Brewer, supra, 408 U.S. at 477-79; see also R. Dawson, Sentencing, 316-26 (1969).
To the extent that there is a “law enforcement” emphasis, it is to deter the parolee from returning to a life of crime. See id. There is a risk that persons who have once been committed to prison will commit additional antisocial acts, and the commission of a crime is generally sufficient reason to revoke parole. See Morrissey v. Brewer, supra, 408 U.S. at 479, 483; R. Dawson, supra at 370. Thus California properly argues: “Parole is a risky business. Recidivism is high. If parole fails too often, it may lose viability as a corrective institution. . . . When, as here, a parolee is in violation of his parole, the parole agent‘s higher duty is to protect the parole system and to protect the public.” (Br. p. 4.) However, this feature of the parole system, important as it is, does not predominate. Between 35% and 45% of parolees are returned to prison, but in only one-third of these cases is the parolee returned to prison for committing a criminal offеnse, see President‘s Comm. on Law Enforcement and Admin. of Justice, Task Force Report: Corrections 62 (1967); presumably fewer still are prosecuted on the new charge. See Morrissey v. Brewer, supra. The fact that crimes are detected during the administration of the parole system does not convert what is essentially a supervisory and regulatory program into a subterfuge for criminal investigations.
The purposes of the parole system give the parole authorities a special and unique interest in invading the privacy of parolees under their supervision. In order to fulfill his dual responsibilities for helping the parolee to reintegrate into society and evaluating his progress, and for preventing possible further antisocial or criminal conduct by the parolee, it is essential that the parole officer have a thorough understanding of the parolee and his environment, including his personal habits, his relationships with other persons, and what he is doing, both at home and outside it. It is еqually important that this information be kept up to date. See R. Dawson, supra at 326, 332-33; Newman, Concepts of Treatment in Probation and Parole Supervision, 25 Fed.Prob. 11 (March 1961); Note, Observations on the Administration of Parole, 79 Yale L.J. 698, 699-700 (1970). Much of this information can be obtained by methods which necessitate little or no invasion of the parolee‘s privacy, such as interviews with the parolee
On the other hand, the parolee‘s interest in maintaining his personal privacy, even as against his parole officer, is in many respects like that of other citizens. As Chief Justicе Burger has succinctly stated:
The parolee has been released from prison based on an evaluation that he shows reasonable promise of being able to return to society and function as a responsible, self-reliant person. Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison. Morrissey v. Brewer, supra, 408 U.S. at 482.
As the quotation recognizes, although the conditional nature of the parolee‘s release does not place him at the unfettered mercy of the parole authorities, he is justifiably subjected to restrictions not applicable to the population as a whole. Many of these restrictions relate to matters which the parolee might otherwise be entitled to presеrve as private. See generally Note, supra, 38 N.Y.U.L. Rev. at 720-33. To this extent, therefore, his reasonable expectations of privacy are less than those of other citizens. Cf. In re Martinez, 1 Cal.3d 641, 83 Cal.Rptr. 382, fn. 6, 463 P.2d 734; United States v. Biswell, 1972, 406 U.S. 311, 316.
We think that one of these restrictions, necessary to the effective operation of the parole system, is that the parolee and his home are subject to search by the parole officer when the officer reasonably believes that such search is necessary in the performance of his duties. The parole officer ought to know more about the parolee than anyone else but his family. He is therefore in a better position than anyone else to decide whether a search is necessary. His decision may be based upon specific facts, though they be less than sufficient to sustain a finding of probable cause. It may even be based on a “hunch,” arising from what he has learned or observed about the behavior and attitude of the parоlee. To grant such powers to the parole officer is not, in our view, unreasonable under the
C. The Warrant Requirement.
California has long held that a parole officer need not obtain a warrant before searching his parolee or his parolee‘s home. The rule was succinctly stated in People v. Limon, 1967, 255 Cal.App.2d 519, 63 Cal.Rptr. 91, 93, as follows: “Costa, as Limon‘s parole officer, was entitled to search Limon and his apartment without a search warrant, without Limon‘s consent and without probable cause.” See also People v. Taylor, 1968, 266 Cal.App.2d 14, 71 Cal.Rptr. 886.
It is now argued that the
As we have seen, the relationship between the parole officer and his parolee is a special one. We find it to be sui
Our refusal to impose the warrant requirement departs from the principles аpplicable to ordinary searches but is consistent with the Supreme Court‘s refusal to require a warrant in certain types of administrative searches. See, e. g., United States v. Biswell, 1972, 406 U.S. 311 (warrantless but non-forcible search under the Gun Control Act,
Of course, the force behind the warrant argument, welcome to the one asserting it, is the fact that it would have to rest upon probable cause, and probable cause in the welfare context, as Mrs. James concedes, requires more than the mere need of the caseworker to see the child in the home and to have assurance that the child is there and is receiving the benefit of the aid that has been authorized for it. In this setting the warrant argument is out of place.
There appear to be several justifications for not requiring a warrant in the foregoing cases. One is the pervasiveness of the regulation to which the person or premises to be searched is subject. As we have seen, the authority of the parole officer is pervasive indeed. Another is the presence of express statutory authorization for a warrantless search. There is no such express statute here, but there is long standing judicial authority in California, and we can perceive no constitutional reason for failing to give weight to that authority. Another is the extent to which a justified expectation of privacy is present. In the case of a parolee, that expectation is severely diminished. Another is the necessity for unannounced and frequent searches, which certainly applies to the parole officer-parolee relationship.
Of great importance is the extent to which the warrant requirement might frustrate the purposes of the search and of the regulatory scheme of which it was a part. The choice frequently has been between dispensing with the warrant requirement altogether or departing from the standard of probable cause in determining the sufficiency of the showing necessary to obtain a warrant. Compare Biswell, supra, with Camara v. Municipal Court, 1967, 387 U.S. 523, and See v. City of Seattle, 1967, 387 U.S. 541.
We think it indisputable, in view of the nature of parole and of the parole agent‘s responsibilities as we have analyzed them, that were a warrant required, the showing necessary to obtain it would have to be substantially different from probable cause to avoid frustrating the purposes of parole. A magistrate required to issue a warrant on the basis of the parole officer‘s “hunch” serves little or no purpose properly related to the parole system. Whether “founded suspicion” in this context could be more demanding than “hunch” is at best uncertain. The judicial energy that review of the affidavits that these аlmost gossamer standards would require
This is not to say that we will uphold every search by a parole officer. In a given case, what is done may be so unreasonable as to require that the search be held to violate the
D. The Search in this Case.
Applying these principles to the facts of this case, we readily conclude that thе search of Latta‘s home was not unreasonable in a constitutional sense. His parole officer‘s interest in inspecting his place of residence did not terminate upon his arrest; if anything, it intensified. Revocation is not a necessary consequence of a parole violation; frequently the parolee merely receives counselling and is released under the same or additional conditions. In making their decision regarding disposition, the parole authorities need to know the number and seriousness of all violations, as well as other current information about the parolee‘s progress. See Morrissey v. Brewer, supra, 408 U.S. at 479-80; R. Dawson, supra at 367-74; Note, supra, 120 U.Pa.L.Rev. at 342-43, 356-58. When Latta was arrested he was in possession of a small quantity of marijuana. In evaluating this evidence to determine whether Latta was still a good parole risk, it was critical for the parole authorities to know whether he was a regular user of marijuana or other drugs, and if so, whether he was a frequent or casual user, or whеther he was engaged in distribution. As California argues, “[p]ossession of narcotics for sale by a parolee threatens both the parole system and the public since such activity is both a violation of parole and a separate crime.” (Br. p. 4-5.) It is unlikely that such information could be obtained from outside sources, or that it would be revealed by a brief inspection of Latta‘s home. Cf. R. Dawson, supra at 342. Under the circumstances it was not unreasonable for Latta‘s parole officer to conduct a search.2
II. Use of the Evidence
Latta‘s second contention—that, even if the search were valid, the evidence could only be used in a parole revocation hearing—is without merit. As the above discussion demonstrates, Latta‘s possession of a sizeable quantity of contraband was a matter of legiti-
Affirmed.
EUGENE A. WRIGHT, Circuit Judge, joined by CHAMBERS and WALLACE, Circuit Judges, concurring:
I concur in the holding that the search here was reasonable, not oppressive or harassing, and that there should be no requirement that a parole officer obtain a warrant to search his parolee or the parolee‘s home. I note, too, that the majority believes that “A good parole officer does not regard himself as a policeman.” Majority op. at 250. In my dissenting opinion in United States v. Consuelo-Gonzalez, 521 F.2d 268 (9th Cir. 1975), I made the same observation as to probation officers and their role and relationship vis-à-vis probationers.
But I have some doubt about the majority‘s observation that “the parole officer ought to know more about the parolee than anyone else but his family. He is therefore in a better position than anyone else to decide whether a search is necessary.” Majority op. at 250. The majority also assumes that much of the information about parolees comes from interviews and home visits. Id. at 249-250.
As my dissent in Consuelo-Gonzalez attempted to make clear, in many instances such extensive contact between probationers and parolees and their supervisors is untenable. In those cases as well as others, those best able to decide whether a search is necessary are law enforcement personnel. Town marshals, city police, sheriffs and state and federal law enforcement officers will often have made observations and reports that would provide a parole officer with the basis for making his decision to search, and be in the best position to advise him when and how to do so effectively and safely.
The majority suggests that there would be something improper about a parole officer searching at the suggestion of the police. Who would be in a better position to suggest it? The majority recognizes the need to prevent further “antisocial or criminal conduct by the parolee” and, surely, law enforcement personnel would have as much concern for those ends as would a parole officer.
In actual practice, parole and probation officers don‘t ordinarily have to proceed on the basis of “hunches.” Rather, they act on reliable information from agencies which are set up for that purpose.
CHOY, Circuit Judge, joined by MERRILL, Circuit Judge, concurring:
I fully concur in the majority opinion except as to the dicta at pages 250 and 251-252 voicing this court‘s approbation of mere hunch as a basis of reasonable belief for a warrantless search by a parole officer of a parolee‘s home and person. Hunch carries with it a license to abuse; it gives a parole officer carte blanche to make such searches.
I am concerned about the liberality with which рarole officers and the district courts may apply “hunch” as used in the foregoing opinion. I would prefer that that language be omitted. That would leave the opinion saying, as it otherwise does, that a parolee and his home are subject to search by the parole officer when the officer reasonably believes that such search is necessary in the performance of his duties and that his decision to search may be based upon specific facts though they be less than sufficient to sustain a finding of probable cause.
Hunch was not the basis for Latta‘s arrest by his parole officer who knew that Latta was violating a condition of his parole by associating with known ex-
HUFSTEDLER, Circuit Judge, with whom BROWNING and ELY, Circuit Judges, join, dissenting:
The majority of the court and I agree on many points in the analysis of the legality of this search: The
The majority offers three intertwined justifications for jettisoning the warrant requirement: (1) the probable cause component of the warrant procedure cannot be applied without reducing warrants to useless formalities or seriously impairing effective parole supervision; (2) the parole officer‘s relationship to the parolee is an adequate substitute for a warrant because the officer‘s intimate knowledge of the parolee, his training in rehabilitative techniques, his concern for the well-being of his charge, and his unusual intuitive capacity will deter unreasonable searches; and (3) even if a parole officer conducts an unreasonable search, subsequent review by higher parole authorities or by the courts will protect the parolee from the consequences of such a search and will deter future unreasonable searches.
The majority‘s conclusion that applying the warrant requirement necessitates a choice between unduly impairing the concept of probable cause and unduly impairing the parole officer‘s functions reflects a fundamental misunderstanding of probable cause. The concept of probable cause is not rigid. It is flexible enough to be adapted to parole searches to give the parolee meaningful protection and to preserve the functions of parole. If the question were whether to adapt the warrant requirement as the general rule, rather than as an exception to it, and if the only alternatives in enforcing the warrant procedure were those assumed, the majority‘s rationale would be forceful, although not necessarily convincing; but that is not the question, and those are not the only choices.
A warrantless search is per se unreasonable, “subject only to a few specifically established and well-delineated exceptions.” (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219; United States v. United States District Court (1972) 407 U.S. 297, 315; Camara v. Municipal Court (1967) 387 U.S. 523, 528-29; Jones v. United States (1958) 357 U.S. 493, 499.2 The majority fails to confront this basic proposition. It as-
Although the
The organic quality of the probable cause requirement is reflected by the developing law controlling administrative searches. In Camara v. Municipal Court, supra, the Supreme Court adhered to the warrant requirement but declined to limit the showing of antecedent justification to probable cause to believe “that a particular dwelling contains violations of the minimum standards prescribed by the code being enforced” (387 U.S. at 534), holding instead that probable cause could be established on an area-wide basis when “reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards, which will vary with the municipal program being enforced, may be based upon the passage of time, the nature of the building . . . or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling” (387 U.S. at 538). The Court expressly rejected the contention that modification of the probable cause standard to meet the problem arising from this type of administrative search would authorize “‘a synthetic search warrant’ . . . If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant. . . . Such an approach neither endangers time-honored doctrines applicable to criminal investigations nor makes a nullity of the probable cause requirement in this area.” (387 U.S. at 538-39.)
The Supreme Court has permitted warrantlеss administrative searches in a single context under severely limiting circumstances. An administrative search may be made of business premises of licensed dealers in liquor or firearms pursuant to statute or ordinance supported by sufficiently detailed regulations so far describing the dealer‘s obligations and defining the inspector‘s authority that neither inspector nor dealer is “left to wonder about the purposes of the inspector or the limits of his task.” (United States v. Biswell (1972) 406 U.S. 311, 316; Colonnade Catering Corp. v. United States (1970) 397 U.S. 72.)
The majority‘s effort to squeeze parole searches into the Biswell-Colonnade mold and out of Camara-See‘s,4 distorts both sets of opinions.5 No statutory authority for parole searches exists here, and there are no regulations of any kind defining
Wyman v. James (1971) 400 U.S. 309 sharply distinguishes home visits from searches;6 it cannot be used to turn a search into a home visit. As Wyman takes pains to point out, Camara and See are “significantly different” because those cases “arose in a criminal context where a genuine search was denied and prosecution followed” (400 U.S. at 325). The instant case arose in a criminal context where a genuine search was made and prosecution followed.
Our decision in United States v. Davis (9th Cir. 1973) 482 F.2d 893, upholding warrantless airport search programs, suggests a helpful analytical framework for determining whether an administrative search can be conducted without a warrant. The court took the following factors into account: (1) airport searches are conducted as part of “a general regulatory scheme in furtherance of an administrative purpose, rather than as part of a regular criminal investigation to secure evidence of crime” (482 F.2d at 908); (2) the decision to search a particular passenger‘s luggage “is not ‘subject to the discretion of the official in the field‘” (482 F.2d at 910); (3) a warrant requirement would effectively frustrate the governmental purpose behind the search; (4) the public has a very substantial interest in preventing skyjacking; and (5) a warrantless search is nevertheless unreasonable if it is unnecessarily intrusive (undue intrusiveness is avoided if a passenger can prevent a search by electing not to board the plane).
The parole system is a regulatory scheme embodying both rehabilitative and crime prevention components, in each of which the public has a very substantial interest. However, sеarches of the parolee‘s home are not a necessary ingredient of every parolee‘s supervision, nor are such searches the subject of promulgated regulations. The decision to search, absent a warrant, rests on the parole officer‘s discretion. Unlike the airline passenger, the parolee is not given a choice whether to submit to a search. Undoubtedly there are occasions when a parole officer must search his charge‘s home to fulfill the purposes of the parole system. But the majority opinion fails to explain (1) why the power to search should not be confined to those cases in which less intrusive means will not adequately serve the public interest in parole supervision, or (2) why the appropriate method of determining whether a search shall be made and how extensive it shall be should not be a warrant procedure. When probable cause is adapted to the speсial circumstances of parole, the warrant requirement fulfills constitutional mandates without unreasonably restricting parole supervision.
A warrant should issue to a parole officer to search his parolee‘s residence upon the officer‘s showing that the described home to be searched is the residence of his parolee, in which he lives alone or in the company of persons identified or otherwise described; that the
In deciding whether to issue the warrant and in defining its terms, the magistrate would take into account the strength of the showing of reasonable cause and such additional factors as the nature of the parole violations suspected, the extent to which persons other than the parolee would have their privacy invaded by the search, and the existence of means less intrusive than the search to meet the parole officer‘s supervisory responsibilities.
The issuance of a warrant on this kind of showing is no “paper tiger“;8 neither is it an undue burden on the functioning of parole. Even if we were to assume, as does the majority, that “in most cases the magistrate would have to take the parole‘s officer‘s word for it,”9 which I interpret as referring to the factual recitals of the parole officer, the protection afforded by the warrant is by no means negligible. The requirement that an officer articulate his reasons for making a search before he searches is a substantial deterrent to impulsive and arbitrary official conduct and a real safeguard against after-the-fact justifications. (See Greenberg, The Balance of Interests Theory and the Fourth Amendment, 61 Calif. L.Rev. 1011, 1025 n.60 (1973).)10
Moreover, the assumption is dubious at best that magistrates “in most cases” will exercise no independent judgment in issuing search warrants to parole officers. A neutral magistrate is not and should not be assumed to be an automaton. “[T]he procedure of antecedent justification . . . is central to the
Post search reviews of reasonableness neither deter unreasonable searches nor remedy those that have occurred. In all but the most egregious cases, the searching officers will be able retrospectively to point to specific facts that justified the search. (Beck v. Ohio (1964) 379 U.S. 89, 96; see United States v. United States District Court, supra, 407 U.S. at 317-18.) Unreasonable searches that yield nothing incriminating do not sur-
Thе majority‘s reliance upon the expertise of parole officers and their supposed knowledge of the standards of reasonableness developed in numerous decisions of appellate courts is misplaced. Of course, there are parole officers who maintain ideal relationships with parolees and who are well trained in the rehabilitative arts. There may even be parole officers who keep up with advance sheets. But surely they are not representative of the mine run of parole officers. “In a number of parole systems, too many parole officers still see their major role as that of policeman-enforcer.” (National Advisory Commission on Criminal Justice Standards and Goals, Corrections 434 (1973).) Parole systems are more often than not characterized by inadequate training programs and by individual workloads so burdensome that parole officers, no matter how well trained and dedicatеd, cannot function effectively. (Id. at 435.) To the extent that there is a check on unreasonable searches, it is more attributable to case overload than to a regard for
The rehabilitative goals of parole would be advanced, not impeded, by a warrant requirement. As the majority concedes, indiscriminate searches undermine the rehabilitative process. The Constitution places primary responsibility for preventing indiscriminate searches on the warrant requirement and not, as the majority concludes, on the parole authorities or the courts in later criminal proceedings.
The warrant requirement does not deprive the parole officer of any legitimate tool that he needs to practice his craft. He needs no warrant to visit his charge‘s home. (Cf. Wyman v. James, supra.) If during the course of a home visit and without a search a parole officer оbserves evidence leading him reasonably to believe that his parolee is in violation of the conditions of parole, he may seize that evidence. His observations during a home visit could provide probable cause to search the residence forthwith, if the circumstances appear exigent. In short, the parole officer has all the leeway to conduct a warrantless search that is accorded a police officer, with the substantial advantage that the parole officer, unlike a policeman, can gain warrantless entry for visiting purposes.
The need for a warrant is vividly demonstrated by the facts of the case before us. At the time the parole officer, accompanied by a police officer, searched the parolee‘s residence, the parolee was in custody. Violation of his parole had theretofore been established. No exigent circumstances existed justifying any immеdiate search. The only purpose served was to gather evidence of crime. The search invaded the privacy of the
The majority opinion says that post-search review of the reasonableness of the search is an adequate substitute for a warrant. The unsoundness of that conclusion is illustrated by the majority‘s application of its rule to uphold the search in this case. The search would have been patently unreasonable, as the majority tacitly concedes, if it had been made by a lone policeman. It becomes reasonable solely by virtue of the fact that it was made by a parole officer, accompanied by a police officer. The unarticulated majority rule is thаt all searches of a parolee‘s home by his parole officer are reasonable unless the particular search later is deemed to have been harassing, or intimidating, or too overblown. In short, the majority creates a presumption of reasonableness in respect of searches by parole officers, to be dispelled, if ever, upon subsequent review of a particular search. Under a warrant requirement, the burden would be on the government official to establish the reasonableness of the prospective search. Under the majority‘s rule, the parolee has the burden of establishing the unreasonableness of the search. Since the parolee would have to establish unreasonableness after a search has presumably turned up something incriminating, his burden is practically insurmountable. How can the majority‘s reasoning be squared with its conclusion that its reasonableness standard is an acceptablе substitute for a warrant? The impact of the majority‘s rule is to obliterate
The warrant requirement must not be unjustifiably and easily cast aside. We should be ever mindful of the truth and wisdom of Mr. Justice Frankfurter‘s observation: “The history of liberty has largely been the history of observance of procedural safeguards.” (McNabb v. United States (1943) 318 U.S. 332, 347.)
I would reverse.
UNITED STATES of America, Appellee, v. Virginia CONSUELO-GONZALEZ, Appellant.
No. 73-2122.
United States Court of Appeals, Ninth Circuit.
April 15, 1975.