Appeal from the United States District Court for the Southern District of California. D.C. No. CR-92-0285-01-EBG. Earl B. Gilliam, District Judge, Presiding
Before: Bright,*fn* Wiggins, and T.g. Nelson, Circuit Judges
FACTS AND PRIOR PROCEEDINGS
On February 25, 1992, DEA Special Agent Robert Dias received information from a confidential source that one Guillermo Barba ("Appellant") was conspiring to smuggle and import cocaine from Mexico. From utility and telephone company records, Dias located Appellant's house, where Dias and other then began surveillance. Surveillance continued through February 27th. As of the 27th, Dias thought he still lacked sufficient information to obtain a search warrant.
Dias learned, however, that Appellant was on probation. On the 27th, Dias called Appellant's probation officer, Joyce Spicer. At the time, Spicer was responsible for about 600 probationers. She had never heard Appellant's name before Dias called. (Spicer had taken over Appellant's case in December, 1991.) Dias asked Spicer whether Appellant was subject to fourth amendment waiver conditions. She said he was. The waiver conditions stated that Appellant submitted "his person, property, place of residence, vehicle, [and] personal effects to search at any time, warrant, and with or without a search warrant, and with or without reasonable cause, when required to do so by the probation officer or any law enforcement officer." ER 12, 68-69.
Then Dias informed Spicer that he had "information [that] suggested" Appellant was conspiring to import and distribute cocaine and that "perhaps a search of his residence might be a good idea." ER 64. Spicer agreed. Possession of drugs would be a violation of Appellant's probation. When Dias suggested Spicer conduct the search, Spicer said she did not have time. Spicer said that if the search was to be done, Dias should go ahead and do it, and contact Spicer when the search was completed. Spicer faxed Dias a copy of Appellant's probation conditions.
On the afternoon of February 27th, Dias and about seven other agents and officers initiated the search. No probation officer was present. The group approached the house with guns drawn as Appellant was coming out the front door. Agents confronted Appellant and informed him they were there "to conduct a state fourth waiver search." ER 67. Appellant said nothing. Agents detained Appellant outside the house.
Then agents, with guns still drawn, made a quick search of the residence, supposedly to check for people and guns. They found another man in the house. They also found three duffel bags. After the house was "secured," ER 86-87, Dias went back to Appellant. Dias asked Appellant if he lived in the house. Appellant answered, "Yeah." ER 87. Dias showed Appellant a copy of the probation order containing the search condition. Then Dias said, "Even though we can search your house, will you give us consent to search inside?" Appellant again said, "Yeah." Id. Dias indicated that at this time Appellant was cooperative. From the time agents first approached the house to the time Appellant said "Yeah" a second time, approximately 30 seconds had elapsed. Dias testified that he, Dias, did not find the duffel bags himself and did not know that the duffel bags had been found when he sought consent from Appellant to search the house. The duffel bags contained contraband.
In the ensuing criminal proceeding, Appellant moved to suppress evidence obtained in the search of the house. Even though Appellant had violated his probation, the state took no steps by the time of the suppression hearings to charge Appellant with a probation violation or revoke his probation. Spicer indicated she would wait until Appellant was convicted of importing and dealing drugs. The district court denied the motion to suppress, ruling that the search was not a subterfuge for a criminal investigation (and thus that Spicer was not a stalking horse for the agents), that Appellant had given a valid consent, and that Appellant's probation conditions waived his fourth amendment rights. Following entry of judgment of conviction, Barba timely appeals.
"Whether a parole officer is a 'stalking horse' . . . is a question of fact subject to the clearly erroneous standard of review." United States v. Butcher, 926 F.2d 811, 815 (9th Cir.), cert. denied, 114 L. Ed. 2d 724, 111 S. Ct. 2273 (1991); United States v. Richardson, 849 F.2d 439, 441 (9th Cir.), cert. denied, 488 U.S. 866, 102 L. Ed. 2d 141, 109 S. Ct. 171 (1988). The district court's decision should stand unless we have a "definite and firm conviction" that the decision was erroneous. Anderson v. Bessemer City, 470 U.S. 564, 573, 84 L. Ed. 2d 518, 105 S. Ct. 1504 (1985).
Generally, a parole or probation officer authorized by state law may search a parolee or probationer if the officer "reasonably believes that such search is necessary in the performance of his duties." Latta v. Fitzharris, 521 F.2d 246, 250 (9th Cir.) (en banc) (plurality), cert. denied, 423 U.S. 897, 46 L. Ed. 2d 130, 96 S. Ct. 200 (1975); id. at 253 (Choy, J., Concurring). Such an officer needs neither a warrant nor probable cause. Id. at 250-51. However, "police may not use a parole [or probation] officer as a 'stalking horse' to evade the fourth amendment's warrant requirement." United States v. Harper, 928 F.2d 894, 897 (9th Cir. 1991); United States v. Merchant, 760 F.2d 963, 969 (9th Cir. 1985), cert. dismissed, 480 U.S. 615, 94 L. Ed. 2d 614, 107 S. Ct. 1596 (1987). "[A] parole [or probation] search may not be used as a subterfuge for a criminal investigation." Richardson, 849 F.2d at 441 (internal quotations omitted); Butcher, 926 F.2d at 815; Merchant, 760 F.2d at 969.
"Who initiated the search?" is a question central to whether the search was a subterfuge. E.g., United States v. Jarrad, 754 F.2d 1451, 1454 (9th Cir.), cert. denied, 474 U.S. 830, 88 L. Ed. 2d 78, 106 S. Ct. 96, and cert. denied sub nom., McManamy v. United States, 474 U.S. 830 (1985). Moreover, the purpose of the search is relevant: "The proper question is whether the parole officer used her authority to help the police evade the fourth amendment's warrant requirement or whether the parole officer cooperated with ...