United States v. Gandelia M. Cordova

650 F.2d 189 UNITED STATES of America, Plaintiff-Appellee, v. Gandelia M. CORDOVA, Defendant-Appellant. No. 80-1788. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 8, 1981. Decided July 6, 1981. Rehearing and Rehearing En Banc Denied Aug. 25, 1981. Sheldon Sherman, San Diego, Cal., for defendant-appellant. Bruce R. Castetter, Asst. U. S. Atty., argued, M. James Lorenz, U. S. Atty., Bruce R. Castetter, Asst. U. S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before BROWNING, Chief Judge, FERGUSON, Circuit Judge, and QUACKENBUSH, * District Judge. PER CURIAM: 1 Cordova was convicted in the Superior Court of the State of California for possession of heroin and placed on three years' probation with the condition that she "submit her person, property, place of residence or abode, vehicle, personal effects to search at any time, with or without a search warrant, by the probation officer or any law enforcement officer." During the probationary period agents of the San Diego Integrated Narcotics Task Force arrested Cordova and searched her residence without a…

Cordova was convicted in the Superior Court of the State of California for possession of heroin and placed on three years’ probation with the condition that she “submit her person, property, place of residence or abode, vehicle, personal effects to search at any time, with or without a search warrant, by the probation officer or any law enforcement officer.” During the probationary period agents of the San Diego Integrated Narcotics Task Force arrested Cordova and searched her residence without a warrant with the assistance of federal agents from the Drug Enforcement Administration. They found heroin.

Cordova was indicted for heroin possession and tried in the United States District Court for the Southern District of California. She moved, to suppress statements made and evidence seized during the probation search of her residence. The district court denied her motion and Cordova appeals.

In United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975) (en banc), we held that a search conducted by federal and local law enforcement officers pursuant to a condition of probation imposed under the Federal Probation Act, 18 U.S.C. §§ 3651-3656 , was invalid because the federal Act…

sitting by designation, concurring in part and dissenting in part:

I agree that the Federal Probation Act is irrelevant to the search of Cordova’s residence. However, I dissent in disposing of this matter solely on that basis.

The state court condition of probation, in effect, furnished every law enforcement officer a key to Mrs. Cordova’s front door. The questionable condition allows any law enforcement officer or probation officer “the right to search Cordova’s person, property, place of residence or abode, vehicle, personal effects — at any time, with or without a search warrant,” regardless of probable or even some reasonable cause. (Emphasis supplied). Admittedly, and for some unexplained reason, Cordova did not raise the obvious Fourth Amendment issue in district court or in her brief to this court. The government, however, recognized the issue and dealt with the constitutional questions at pp. 10-12 of its brief. Since I feel that the Fourth Amendment issues should be addressed by this court, I would direct that supplemental briefs be filed and argument heard on this question. I would also allow the State of California to file an amicus brief pursuant to Rule 29 of the…