United States v. Virginia Consuelo-Gonzalez

Consuelo-Gonzalez appeals from a conviction under 21 U.S.C. § 841 (a)(1) for possession of heroin with intent to dis-' tribute. We reverse.

Between November 15, 1972, and December 18, 1972, agents of the Federal Bureau of Narcotics and Dangerous Drugs received information from four different sources that Virginia Consuelo-Gonzalez was actively engaged in the importation and sale of heroin. A check of the records at the United States Attorney’s Office on December 12, 1972, revealed to the agents that Virginia Consuelo-Gonzalez had previously been convicted of heroin smuggling under the name of Virginia Cardenas and was currently on probation. At this time, the agents were also apprised that it was a condition of Consuelo-Gonzalez’ probation 1 that she submit her person and property to search at any time upon request by a law enforcement officer. On December 14, 1972, an independent verification was made of the fact that Virginia Cardenas and Virginia Consuelo-Gonzalez were one and the same person; and on December 19, 1972, the agents reconfirmed the probationary status and condition that she submit to search.

On the morning of December 19, 1972, at approximately 9:30 a.…

with whom Circuit Judges BROWNING and ELY join, concurring specially:

I agree with the majority that the search was illegal. I disagree with the majority’s dictum that the search would have been legal if it had been made by a probation officer.

I concur in the majority’s rationale that (1) the district court’s broad discretion in imposing conditions of probation is subject to the limitations that no condition of probation can be imposed that is not reasonably related to the rehabilitative purposes of the Federal Probation Act ( 18 U.S.C. § 3651 ) and to the legitimate needs of law enforcement in protecting the public; and (2) a condition of probation that infringes a probationer’s constitutionally protected right to be free from unreasonable searches and seizures cannot be deemed to be reasonable. 1 The condition of probation in question failed on both counts and therefore could not be relied upon to justify this search. That determination disposes of this case because no ground exists, other than the probation condition, which arguably could validate the search.

I cannot concur in the majority’s essay purporting to validate warrantless searches of probationers’ persons and…

joined by GOODWIN and WALLACE, Circuit Judges, dissenting:

I respectfully dissent.

After her conviction, under the name of Virginia Cardenas, for smuggling heroin, this appellant was placed on probation on November 21, 1971. In suspending execution of appellant’s one-year prison sentence, the district judge imposed certain conditions on the probation order which are detailed in footnote one of the plurality opinion. These conditions, deemed appropriate by the district judge in the exercise of his discretion, made clear to the defendant that she must lead a law-abiding life, refrain from the possession or use of narcotics, and not enter Mexico during the period of her probation. They also included a requirement that she “submit to search. of her person or property at any time when requested by a law-enforcement officer.”

In the following few months appellant took no appeal from the judgment and probation order, and made no motion to the district court to have the sentence modified or clarified under Fed.R. Crim.P. 35. See generally ABA Project on Standards for Criminal Justice, Standards Relating to Probation (Approved Draft 1970) at 43 — 44. In short, she accepted probation and…

I concur in the majority opinion except as to the statement at page 266 reiterating the approbation given in the majority opinion in Latta v. Fitzharris to mere hunch as a basis of reasonable belief for a warrantless search by a parole/probation officer of a parolee’s/probationer’s residence.

For the reasons stated in my concurring opinion in Latta, I think the statement is ill-advised.

Circuit Judge MERRILL concurs in this concurring opinion.

(dissenting):

The Fourth Amendment proscribes unreasonable searches. For one who is in partial custodia legis, I do not think it is an unreasonable search for an officer to politely go without a warrant and search, so long as there is no evidence of harassment. And, there was none here.

The majority decision will result in more trial judges sending more defendants to prison where they will have very little Fourth Amendment rights.

Unless we belong to the school that believes probation is overdone now, I think the majority’s result comes out the wrong way.

I have a little trouble with letting probation officers conduct searches and denying police officers the same right. The probation officer should play the role of being the defendant’s pal and not his jailer.

521 F.2d 259 UNITED STATES of America, Appellee, v. Virginia CONSUELO-GONZALEZ, Appellant. No. 73-2122. United States Court of Appeals, Ninth Circuit. April 15, 1975. Charles Sevilla, Federal Defender, Inc. (argued), San Diego, Cal., for appellant. Stephen Peterson, and James W. Meyers, Asst. U. S. Attys. (argued), for appellee. OPINION Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges. SNEED, Circuit Judge: 1 Consuelo-Gonzalez appeals from a conviction under 21 U.S.C. § 841 (a)(1) for possession of heroin with intent to distribute. We reverse. 2 Between November 15, 1972, and December 18, 1972, agents of the Federal Bureau of Narcotics and Dangerous Drugs received information from four different sources that Virginia Consuelo-Gonzalez was actively engaged in the importation and sale of heroin. A check of the records at the United States Attorney's Office on December 12, 1972, revealed to the agents that Virginia Consuelo-Gonzalez had previously been convicted of heroin smuggling under the name of Virginia Cardenas and was currently on probation. At this time, the agents were also apprised…