Clifford v. Latta v. C. J. Fitzharris

521 F.2d 246 32 A.L.R.Fed. 135 Clifford V. LATTA, Plaintiff-Appellant, v. C. J. FITZHARRIS et al., Defendants-Appellees. No. 71-2909. United States Court of Appeals, Ninth Circuit. April 15, 1975. James F. Hewitt, Asst. Federal Public Defender (argued), San Francisco, Cal., for plaintiff-appellant. Sanford Svetcov, Deputy Atty. Gen. (argued), for defendants-appellees. OPINION Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges. 1 DUNIWAY, Circuit Judge, with whom Circuit Judges KOELSCH, TRASK, GOODWIN and SNEED concur: 2 Latta, a California prisoner, appeals from an order of the district court denying his application for a writ of habeas corpus. We affirm. 3 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'a parole officer and two local…

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’a 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…

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 Fourth Amendment governs parole searches; older authorities excluding parolees from the Fourth Amendment’s protection against unreasonable searches and seizures are constitutionally defunct. 1 A parolee has a legitimate expectation of privacy, although his expectation is not the same as that of other citizens who are not enmeshed in the parole system. In his dealings with law enforcement personnel other than his parole officer, a parolee is entitled to the same expectation of privacy as a wholly free citizen, but the parolee cannot expect the same privacy bulwark to be erected between him and his parole officer. To exercise his responsibilities of supervision, a parole officer must have considerable latitude in observing the parolee in and out of his home and, under some circumstances, he must be able to search the parolee’s person and home. However, I cannot agree with the majority that a parole officer may search his parolee’s home without probable cause and without a warrant, subject only to the restriction that…

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-á-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…

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 parole 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- *254 convicts. When arrested, Latta held a pipe containing marijuana. On these facts the…