Enrique Ortiz Cervantes v. Bill Walker, Superintendent, Banning Road Camp

Cervantes appeals from the dismissal of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (1976). The state trial court had admitted into evidence a statement he made to prison staff members which identified a substance in his possession as marijuana. He was convicted of possession of narcotics in a county jail, a felony under California law. Execution of the sentence was suspended and a three-year period of probation was imposed. As a condition of probation, Cervantes was to submit to a search of his person and property at any time without notice. Cervantes’ petition challenges the search conditions of his probation as unconstitutional, and the admission of his statement at trial as violative of his privilege against self-incrimination. We find the first question moot and affirm on the remaining question.

I

Cervantes’ three-year probationary period expired shortly before oral argument and, therefore, his challenge to the probation conditions is moot. Although Cervantes was in a road camp on new charges at the time he filed the petition, the record does not establish any connection between this confinement and the probation conditions. There is no…

dissenting:

With the firm belief that the distinctions sought to be drawn by the majority are of no substance, I respectfully dissent. Even though in the prison setting everything done by the prison officers gives rise to an inescapable feeling that Cervantes knew, and any reasonable prisoner in a like situation would know, that his change of cells and being taken to the prison library for interview (interrogation), was a change in his custodial situation. When the officer entered the library with the match box for the purpose of asking Cervantes about it, the accusatory stage was reached. The new test constructed by the majority is, in my view, unrealistic and unworkable. Even if this new test should prove to be valid, the facts here bring Cervantes within the “additional imposition on his limited freedom of movement” and Miranda warnings were required.

In Mathis v. United States, 391 U.S. 1 , 88 S.Ct. 1503 , 20 L.Ed.2d 381 (1968), the government sought to distinguish the application of Miranda in the prison setting by urging that it was merely a routine tax investigation and that Mathis was not put in jail by the officers questioning him. Mr. Justice Black, speaking for the…

589 F.2d 424 Enrique Ortiz CERVANTES, Petitioner-Appellant, v. Bill WALKER, Superintendent, Banning Road Camp, Respondent-Appellee. No. 77-3372. United States Court of Appeals, Ninth Circuit. Nov. 8, 1978. Rehearing and Rehearing En Banc Denied Jan. 26, 1979. Stephen J. Perrello, Jr. (argued), San Diego, Cal., for petitioner-appellant. Karl J. Phaler, Deputy Atty. Gen. (argued), San Diego, Cal., Evelle J. Younger, Atty. Gen., Sacramento, Cal., for respondent-appellee. Appeal from the United States District Court for the Southern District of California. Before WALLACE and ANDERSON, Circuit Judges, and INGRAM, * District Judge. WALLACE, Circuit Judge: 1 Cervantes appeals from the dismissal of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (1976). The state trial court had admitted into evidence a statement he made to prison staff members which identified a substance in his possession as marijuana. He was convicted of possession of narcotics in a county jail, a felony under California law. Execution of the sentence was suspended and a three-year period of probation was imposed. As a condition of probation, Cervantes was to submit to a search of his…