Jaime Portillo v. United States District Court for the District of Arizona, United States of America, Real Party in Interest

15 F.3d 819 62 USLW 2522 Jaime PORTILLO, Petitioner, v. UNITED STATES DISTRICT COURT FOR the DISTRICT OF ARIZONA, Respondent, United States of America, Real Party in Interest. No. 93-70879. United States Court of Appeals, Ninth Circuit. Submitted Nov. 18, 1993. Decided Jan. 19, 1994. Deborah M. Fine and John R. Hannah, Assistant Federal Public Defenders, Phoenix, AZ, for Petitioner. Charles F. Hyder and Roslyn Moore-Silver, Assistant United States Attorneys, Phoenix, AZ, for Respondent and Real Party in Interest. Petition for Writ of Mandamus to the United States District Court for the District of Arizona. Before: SCHROEDER, D.W. NELSON and THOMPSON, Circuit Judges. PER CURIAM. BACKGROUND 1 On October 21, 1993, petitioner Jaime Portillo pled guilty to stealing a vacuum cleaner, a baby stroller, a child's car seat and a cellular telephone from a military base in violation of 18 U.S.C. Sec. 661 . The matter was scheduled for sentencing on January 3, 1994. 1 At that time the district court directed the probation officer to prepare a presentence report and ordered Portillo to assist the probation officer in the preparation of the presentence report. 2 2 On November 2, 1993, Portillo…

BACKGROUND

On October 21,1993, petitioner Jaime Por-tillo pled guilty to stealing a vacuum cleaner, a baby stroller, a child’s car seat and a cellular telephone from a military base in violation of 18 U.S.C. § 661 . The matter was scheduled for sentencing on January 3,1994. 1 At that time the district court directed the probation officer to prepare a presentence report and ordered Portillo to assist the probation officer in the preparation of the pre-sentence report. 2

On November 2, 1993, Portillo moved in the district court to set aside General Order 221 and to stay the district court’s order. 3 On November 3, 1993, the district court denied the motion and ordered Portillo to submit to urine testing, stating that General Order 221 was not the basis for the order and that any adverse results obtained from the testing would not be used against Portil-lo. Portillo then filed with this court an emergency motion for stay and the present petition for writ of mandamus. On November 3, 1993, we stayed the district court’s order pending resolution of the petition for a writ of mandamus.

*822 ANALYSIS

In determining whether to grant mandamus relief, we consider the factors set forth in…

concurring separately:

I concur in the result. In my view, a district court’s sentencing decision should not be based in any way upon results of drug testing, unless the court has probable cause to believe the defendant is using illegal drugs. Here, the law enforcement authorities lacked even an individualized suspicion that the subject had ever engaged in illegal drug activities. Contrast State v. Guzman, 480 N.W.2d 446 (Wis.1992) (approving pre-sentencing urinalysis of a defendant convicted of illegal drug dealing over a strong dissent).

I cannot agree with the majority’s view that sentencing is an integral part of the probation system and that sentencing concerns may fall within the “special needs” exception to the probable cause requirement of the Fourth Amendment whenever a probation is a sentencing possibility. Contrast United States v. Duff, 831 F.2d 176 (9th Cir.1987) (upholding drug testing of a probationer convicted of a drug offense upon reasonable suspicion that he had been violating the terms of his probation). I also must disagree with the majority’s conclusion that the “special need” requirement may be satisfied by the government somehow correlating the…