United States v. Merchant – Oral Argument – March 04, 1987

Media for United States v. Merchant

Audio Transcription for Opinion Announcement – March 24, 1987 in United States v. Merchant


William H. Rehnquist:

We will hear arguments first this morning in No. 85-1672, United States against William D. Merchant.

Mr. Larkin, you may proceed whenever you’re ready.

Paul J. Larkin, Jr.:

Thank you, Mr. Chief Justice, and may it please the Court:

This case is here on a writ of certiorari to the United States Court of Appeals for the Ninth Circuit.

The issues in this case stem from the March 3, 1981 search of respondent’s farmhouse.

That search was carried out under the authority granted not by a search warrant but by a consent-to-search clause in the judgment of probation and due to the respondent’s sentencing proceeding.

That proceeding followed respondent’s convictions on two firearms charges.

And that sentence, as we now know, was stayed.

The stay led to the second proceeding that was involved in this case, the February 27, 1981 hearing, that came on the prosecutor’s motion for clarification or modification of the original order of a stay entered by the trial court.

At that hearing, respondent’s counsel was present, and he had been notified.

Respondent, however, had not been notified of the hearing, and he was not there.

At the hearing, which was very brief, the state municipal court stated that it would grant the motion for clarification and that the conditions of probation were reinstated.

The search of respondent’s farmhouse was carried out four days later.

During the search, the members of the team discovered a large cache of firearms and ammunition, and a narcotics laboratory.

After respondent was prosecuted in federal court on several narcotics charges, he moved to suppress the evidence seized in the search.

The district court denied the suppression motion for two, independent reasons.

First, the district court concluded that respondent was on probation at the time of the search, and that the search was lawful under the consent to search clause in his judgment of probation.

Second, and in any event, the district court concluded that the members of the search team, and indeed, even respondent’s own attorney, all held a reasonable and good faith belief that they were authorized to conduct a search by virtue of the February 27 order entered by the municipal court.

The Court of Appeals for the Ninth Circuit reversed.

At the outset, the court concluded that respondent was not, in fact, on probation at the time of the search, because the original sentence had been stayed in its entirety, and not just to period of confinement.

The court then went on to address the order entered at the February 27 hearing.

The Ninth Circuit held that the order entered at that proceeding, and its terms, was a nullity because respondent was not personally notified about the hearing.

The Court of Appeals, after entering that ruling, went on to address the government’s argument that the good faith exception that this Court adopted in Leon should be applicable to this type of search.

The Court of Appeals concluded that it should not, because it believes that the offices could not have had an objectively reasonable belief that this was a search related to probation.

In the Court of Appeals view, this was a subterfuge for a criminal investigation.

The Court of Appeals granted our petition, which presented both the notice and the good faith questions.

Respondent has sought to defend the judgment below on an additional grounds, namely–

William H. Rehnquist:

You mean, this Court granted your petition, not the Court of Appeals?

Paul J. Larkin, Jr.:

–Oh, if I misspoke, I’m sorry.

This Court granted the petition limited to those two questions.

Paul J. Larkin, Jr.:

And respondent has sought to defend the judgment below on the additional ground that the February 27 hearing was invalid because he wasn’t present.

Now, there are several different ways this Court could resolve the issues in this case.

Technically speaking, if this Court were to disagree with the Ninth Circuit insofar as the Ninth Circuit held personal notice of a hearing is required, this Court could reverse the judgment below on that ground alone.

However, the Court could also, we believe, decide the case solely on the good faith grounds that the Court of Appeals rested its decision in part on.

Antonin Scalia:

Don’t we have to get to the good faith ground anyway?

I don’t understand how the Court of Appeals felt it had to do both of those issues.

If it wasn’t a good faith probation search, it didn’t matter whether he was on probation or not.

Paul J. Larkin, Jr.:

Well, the Court of Appeals analysis in that part of its opinion contained several different elements, we believe.

The Court started out its analysis by talking about whether the officers could have reasonably relied on the February 27 order.

And it ended up its analysis by saying that the good faith exception should not apply because this is the type of conduct we want to deter.

But in between the Court of Appeals added in two additional elements into its consideration.

The Court of Appeals seemed to say that this was an invalid probation search because it went beyond the scope of the authority that a police officer has.

Antonin Scalia:

Isn’t that the end of the matter, though?

If… if it was a pretextual search, wouldn’t it be unnecessary to reach the other issues?

Or would it still be necessary to reach some of the others?

Paul J. Larkin, Jr.:

Well, the way the Court of Appeals seemed to address the case–

Antonin Scalia:

Never mind how they did it.

I mean, as a real world matter.

If you find that it was a pretextual search, wouldn’t that be an end of the case?

Paul J. Larkin, Jr.:

–And if the pretextual nature of the search was important to this case.

We haven’t challenged the Court of Appeals’ assumption that the pretextual nature of a search would invalidate a probation search.

Antonin Scalia:


Paul J. Larkin, Jr.:

That deals with the substantive law of probation searches.

Antonin Scalia:


Paul J. Larkin, Jr.:

And that’s a question that the Court will address in the Griffin case.

Insofar as this case goes, given that assumption, if this Court were to find that it was pretextual, I believe you would be right; that would end it.

But there is no basis in fact or in law for the Court of Appeals’ conclusion that this was a pretextual search.

William H. Rehnquist:

Mr. Larkin, what do you mean when you use the word “pretextual”?

Paul J. Larkin, Jr.:

Well, the Court of Appeals seemed to be believing that the purpose of this search was not to enforce his probation, but was to conduct a criminal investigation of something else.

William H. Rehnquist:

Are those totally distinct?

Paul J. Larkin, Jr.:

In our view, they shouldn’t be.

The reason is, here, for example, if respondent… if there was reasonable cause to believe that he had violated some of the law, then it perhaps would be possible to conduct a probation search on that ground.

The Court of Appeals seemed to be adding into the calculus on this part of the issue certain factors that are just wrong under California law that’s clearly established; and it also seemed to be making a factual finding that’s inconsistent with what the district court found.

The district court found that the police officers and the prosecutor had an objectively reasonable and a subjectively reasonable good faith belief that this was valid.

The Court of Appeals seemed to say that because there were certain elements not present in this type of search that it believed should be present, it couldn’t have been a probation search.

The Court of Appeals pointed to the fact that he hadn’t been assigned a probation officer, but that’s irrelevant under California law.

A police officer doesn’t need the authorization of a probation officer to carry out a search of this type, and a probation officer doesn’t need to accompany a police officer.

In addition, the facts under California law that a probation officer has not been assigned to a probationer doesn’t invalidate the judgment of probation.

That type of fact the Court of Appeals relied on is irrelevant.

Thurgood Marshall:

Mr. Larkin, do you think the pretext issue–

Paul J. Larkin, Jr.:

That it first knew of the order on February 27?

Thurgood Marshall:


Paul J. Larkin, Jr.:

I believe when he was told at the door was probably the first time.

He didn’t know of–

Thurgood Marshall:

That was the first he knew about it?

Paul J. Larkin, Jr.:


Now, that is not in our view–

Thurgood Marshall:

That doesn’t give you any problem, does it?

Paul J. Larkin, Jr.:

–It would give me a problem if they tried to revoke his probation for violating a condition of his probation.

Because then it would be unfair to punish him for something he didn’t know about.

But we’re not prosecuting him in this case for possessing firearms.

We’re prosecuting him in this case for having a narcotics lab.

And that’s a matter that, independently of this, he should know that he’s not entitled to possess in his house.

So the fact that he didn’t know of the entry of the February 27 order–

Thurgood Marshall:

So he lost his rights without even knowing that he had lost them?

Paul J. Larkin, Jr.:

–No, I would disagree with that, Your Honor.

He was sentenced on November 14.

At that time, the trial judge clearly told him that the probation conditions included, one, that he not possess firearms; two, that he consent to a search.

He was there.

He did not object to either of those.

Paul J. Larkin, Jr.:

He objected only to the six month period of incarceration.

In fact, at the next page of the Joint Appendix, he also objected to the trial judge’s order that the firearm that was–

Thurgood Marshall:

I’m not talking about when he was there.

I’m talking about when he was not there.

Paul J. Larkin, Jr.:

–Well, he was not at the February 27 hearing, and he was not notified about it.

Thurgood Marshall:

And he didn’t know about that until they came to his door?

Paul J. Larkin, Jr.:


But that–

Thurgood Marshall:

And two minutes later they went to search him?

Paul J. Larkin, Jr.:

–That’s correct.

It’s our position that the California Superior Court appellate division got it right when it said that he couldn’t have his probation revoked for failing to comply with the terms of his probation; but that didn’t mean that a probation officer, in this case a police officer, could not cross threshold of his home once the February 27 order was entered.

Thurgood Marshall:

0 xxx.

Paul J. Larkin, Jr.:

That’s right.

But under California law, either a probation officer or a police officer can conduct a search.

Thurgood Marshall:

Well, we aren’t interested in the California law as it… at least I’m not… apply to probation.

I want to know how it applies to the people that did this.

They were police officers.

Paul J. Larkin, Jr.:

Well, at the time of the search in this case, Your Honor, and I will directly address now the good faith argument that we’ve made in our brief.

I will not address the notice argument that we’ve made in our brief, because I think there’s virtually nothing that can be said in defense of the Court of Appeals’ ruling, and respondent has made no serious effort to do so.

Sandra Day O’Connor:

But may I verify, Mr. Larkin, if we felt that the Court of Appeals was wrong on the notice rule that it made, we could reverse on that ground, and that would be the end of the matter?

Paul J. Larkin, Jr.:

I believe technically speaking that would end the matter at this time.

However, the Court of Appeals in our view has clearly signalled, for the reasons I explained to Justice Scalia, how it views this case.

And I think there’s no doubt that if the case goes back on remand, the Court of Appeals will rely on some of the reasons given in the second part of its opinion to find that the search here was unlawful nonetheless.

But I will not address the notice point any further, and will speak now only to the good faith point.

Byron R. White:

Well, on the notice point, do you ask us to disagree with the Court of Appeals that under California law, the judge stayed the entire sentence rather than… stayed the entire judgment, rather than just a sentence?

Paul J. Larkin, Jr.:

We do not ask the Court to disagree with that.

We have not petitioned on that issue.

We have not challenged the Court of Appeals’ ruling.

Our only argument on the notice issue is that, for the reasons we’ve explained, notice to a defendant’s attorney in a criminal case of any proceeding that occurs during that case is sufficient to satisfy any due process notice requirement.

Byron R. White:

So that even if… even if this was an original sentencing hearing, notice to the attorneys is enough?

Paul J. Larkin, Jr.:

It would be enough for the purpose of notice.

Byron R. White:

Yes, exactly.

Paul J. Larkin, Jr.:

It may not be for the purpose of presence.

The defendant may have a valid claim if he wasn’t present at the sentencing hearing.

But for purpose of notice, that would be sufficient in our view.

John Paul Stevens:

Mr. Larkin, before you leave the notice aspect of the case, let’s assume that you’re dead right, that the order is not a nullity.

But rather, perhaps, one could ask, what is the effective date of the order, insofar as it imposes conditions of probation on the defendant?

And I understood you… I want to be sure I get this right… that if the probation had, say, two conditions in it, one, may not associate with certain undesirable characters, and they name them, and two, you have to consent to a search.

And if he didn’t get actual notice of the order, just in the interval between the Friday and the Tuesday when they came out, and in the meantime had associated with people that he was forbidden to associate by terms of the order, I think you have said he could not have his probation revoked because he wouldn’t have known that that was in effect yet.

Paul J. Larkin, Jr.:

That’s right.


John Paul Stevens:

Well, then, aren’t you saying that the… that the… insofar as the conditions of the probation affect his personal conduct, he’s entitled to notice of that before the order becomes effective as to him?

And if so, how do you distinguish between associating with other people and taking care of the privacy of his home and rearranging his affairs if he knows somebody might bust in without a warrant?

Paul J. Larkin, Jr.:

–Well, the order in this case, the February 27 order, was… dealt with a stay that had originally been imposed.

John Paul Stevens:

I understand.

But you’ve in effect said it did not become effective, as to conditions which might require affirmative conduct on his part, until he had notice of it.

Paul J. Larkin, Jr.:

No, I said he couldn’t be… if the conditions–

John Paul Stevens:

Well, why couldn’t you revoke it if it was effective?

I mean, I don’t understand that.

If the order is effective to govern his conduct, and he violates a term of the probation, you can revoke his probation.

Now why is it effective for some purposes and not others?

Paul J. Larkin, Jr.:

–In our view, it would be effective for bringing into play the authorization that was contained in the November 14 sentencing order.

Respondent, in our view, at that time–

John Paul Stevens:

But why wouldn’t it also be effective as to saying you can’t associate with Mr. X?

I don’t understand how it can be partially effective and not totally effective.

Paul J. Larkin, Jr.:

–Because of the different things, the consequences, that flow from the order coming into being.

The… it’s our position–

John Paul Stevens:

It’s important to know about some but not others?

He’s supposed to know that he can’t associate with someone, but he’s not supposed to know that someone can walk into his living room?

Paul J. Larkin, Jr.:

–Well, he’s… it would be, I’m sure, important to him to know both of these.

Paul J. Larkin, Jr.:

But the question is whether the officer who then walks into the room has committed a Fourth Amendment violation.

In this case, he waived his rights–

John Paul Stevens:

Well, he hasn’t, because the man has consented to it, under your–

Paul J. Larkin, Jr.:

–That’s right.

John Paul Stevens:

–But hasn’t he also consented not to associate with Mr. X?

Paul J. Larkin, Jr.:

Well, I’m not sure I understand the difference, Your Honor, that you’re… the point that you’re making.

Because it seems to me it would be unfair to penalize him for something he didn’t know about.

But you’re not penalizing him by–

John Paul Stevens:

Well, he’s going to go to jail.

Paul J. Larkin, Jr.:

–conducting a probation search.

John Paul Stevens:

Let’s say he had private things there he didn’t want the officers to see.

You wouldn’t consider that a penalty to just have to expose to view things he considered private.

That’s not a penalty?

That’s the difference?

Paul J. Larkin, Jr.:

That’s the… it’s not part of any type of affirmative disability that you’re imposing on him for violating some type of condition that’s been imposed on his liberty.

If he can’t associate with someone and doesn’t know about it, it would be unfair to penalize him for it.

But you’re not penalizing him by allowing the probation officer, or in this case, the police officer, simply to cross the threshold–

John Paul Stevens:

You don’t think there are adverse consequences in an unwarranted search?

Paul J. Larkin, Jr.:

–Well, the adverse consequences in this case flowed–

John Paul Stevens:

I mean, just assuming he doesn’t go to jail for it, just, you go into his living room when he doesn’t expect anybody to walk in?

Why is that different?

Well, I guess I understand.

Paul J. Larkin, Jr.:

–Well, I think it’s… maybe it’s not a difference in… even if it’s not a difference in kind, it’s certainly at least a difference in degree between a probation officer just entering your home, and then a probation officer using the information against you to serve as the basis for revoking your probation and putting you in jail.

Antonin Scalia:

I thought the point you were making, Mr. Larkin, was that you need notice for those matters that would affect your primary conduct.

And whether he can own firearms or not affects his primary conduct.

But whether he has drugs on his property or not is totally unaffected by this order, isn’t it?

He’s not supposed to have drugs on his property anyway.

There’s another law that already makes it improper for him to do that.

Paul J. Larkin, Jr.:

No, I agree.

I’m not taking that point in anyway.

Paul J. Larkin, Jr.:

I was just trying to address Justice Stevens’ point that–

Antonin Scalia:

It isn’t that you weren’t taking it back.

I thought… didn’t think you were explaining it.

I thought that that was the… I thought that that was the distinction here.

Paul J. Larkin, Jr.:

–Well, that certainly is one of the distinctions.

But Justice Stevens, I thought, was focussing on whether it’s somehow unfair to allow the probation officer just to cross the threshold.

And to that extent–

John Paul Stevens:

Well, and also, to what extent is the order effective.

And Justice Scalia suggests it’s effective to the extent it affects his primary conduct.

And I suppose that means that a person is not… his primary conduct is unaffected by knowledge that his home can be entered at anytime by a law enforcement officer.

I question… I wonder if that’s a valid distinction.

Paul J. Larkin, Jr.:

–In our view, for the reasons that I’ve tried to explain, the fact that you’re just entering is not sufficiently comparable to the fact that you are ultimately put in prison, to say that the entry is itself a type of penalty of which you need some type of notice.

Sandra Day O’Connor:

Mr. Larkin, I’m getting confused by this discussion.

Now, I thought the defendant was personally present at his original sentencing hearing, when the terms and conditions of probation were presented to him; and he looked it over and accepted it and consented to the probation terms.

Is that correct or not?

Paul J. Larkin, Jr.:

That’s our position, Your Honor, yes.

Sandra Day O’Connor:

Well, and the record seems to support that.

He was also given a companion jail sentence of six months.

His lawyer objected to the jail sentence.

Following that, the court entered a stay of his sentence, and it was the position taken by the Court of Appeals later that that stay apparently was effective for both probation and the jail term.

The state moved for a clarification of that, and the defendant was not personally present at the hearing on clarification.

But if we conclude that he didn’t have to be present, and if the court then vacated its stay or corrected itself so that the stay was not effective on the probation, then why wouldn’t the probation be in full effect from that moment on?

Paul J. Larkin, Jr.:

If there is no procedural flaw in the February 27 hearing–

Sandra Day O’Connor:


Paul J. Larkin, Jr.:

–either of notice or presence, the order in our view would be valid.

Sandra Day O’Connor:


Paul J. Larkin, Jr.:

Respondent has challenged, in the lower courts but not in this court, that order to the consent to search provision entered at the original proceeding on the ground that that’s substantively invalid.

But that issue isn’t before the Court–

Sandra Day O’Connor:

But that’s not before us at all?

Paul J. Larkin, Jr.:

–in this case; no, that’s correct.

Paul J. Larkin, Jr.:

So in our view, if there were no procedural obstacles to that, the order would be valid at that time.

But for the purpose of the good faith exception, there are at least I think three questions, or at least three positions we’ve taken that relate to this type of problem.

The first is that it’s objectively reasonable for the officers to rely on the authority that they were granted by–

William H. Rehnquist:

But I think Justice O’Connor’s question is, if you… or at least that’s the way I understood it… if you find that the consent to search provision and the probation decree has no flaw in it, you don’t need to get to any good faith exceptions.

Paul J. Larkin, Jr.:

–You could end the case at this time simply by ruling on the notice and/or the presence grounds.

William H. Rehnquist:


Paul J. Larkin, Jr.:

This Court would not need to go further than that.

But for the reasons I’ve given you earlier, it seems to me the Court of Appeals has clearly signalled how they view this case.

William H. Rehnquist:

Well, if we say this was a valid search, I would think the Court of Appeals would have difficulty saying it was an invalid search after our opinion.

Paul J. Larkin, Jr.:

No, by that what I mean, Your Honor, is, respondent has an issue that he raised in the Court of Appeals that he’s not reasserted here.

He has raised in the Court of Appeals the question, whether the consent to search provision is substantively invalid under the Fourth Amendment.

William H. Rehnquist:

Well, if we decided it wasn’t, I doubt that the Court of Appeals would contradict us.

Paul J. Larkin, Jr.:

I fully agree.

But that question is not before the Court in this case.

The notice and presence questions relate to the procedural regularity of the February 27 hearing.

The other question that I mentioned that is mentioned in the last footnote of the Court of Appeals’ opinion deals with the substantive validity of these conditions at all.

Sandra Day O’Connor:

And that’s coming up in another case this term.

Paul J. Larkin, Jr.:


That will come up in the Griffin case.

So the Court will decide… perhaps decide that type of issue in the Griffin case.

But I don’t think that issue is before the Court in this particular case.

Now, it’s our view that the officers, as I said, had an objectively reasonable belief that the consent to search clause imposed in respondent’s November 14 judgment of probation authorized a search in this case.

These types of conditions are not unique to this type of proceeding.

They’re well established in California law.

For nearly a decade prior to the search in this case, consent to search conditions had been helf to be valid both as legitimate conditions of probation and as lawful under the Fourth Amendment.

California Supreme Court expressly addressed the validity under the Fourth Amendment of these types of conditions in the Mason case in 1971, and between the date of that case and the date of the search in this case, neither the California Supreme Court nor any lower California court said that these were disfavored sources of authority.

In these circumstances, we believe that the principles that the Court discussed in Leon are fully applicable.

In our view, the two central principles on which the Court decision there rested were, first, that the purpose of the exclusionary rule is to deter police misconduct; and second, that the exclusionary rule cannot serve that purpose where the officers act in an objectively reasonable belief that their conduct is lawful.

It’s also our belief that the officers will not be… should not be required to draw distinctions among the different types of authority that they are given, between the authority granted by a statute or the authority granted by a search warrant or the authority granted by consent to search clause.

But even if we’re wrong in that, and even if there should be some type of distinctions police officers should be required to make, it would be unreasonable to demand that a police officer distinguish between the types of authority that a judge gives him to search, between a search warrant and a consent to search clause.

Paul J. Larkin, Jr.:

And that’s particularly true in this case, where there had been… a substantial number of years had intervened, showing that this type of condition was lawful.

Now respondents and amici have argued that the reasonable mistake exception should not apply to this type of authority for several reasons.

We believe those contentions are unpersuasive.

Respondent and amici first argue that the decision in Leon rested on the proposition of encouraging the police officers to secure warrants.

In our view, that misreads the decision.

The decision in Leon, we believe, rested on the deterrent effect of the exclusionary rule in different contexts, and not on the question whether or not the police should be required to resort to warrants, because that’s a question of substantive Fourth Amendment law.

Respondent argues that it’s too difficult to determine whether a police officer acted in good faith in this context, to decide whether or not the good faith exception should apply.

And we believe he’s greatly overstated the difficulty.

The orders are presumptively valid, and a police officer can be required to know of any intervening developments in the law.

In this case there were none.

The decision on which the Court of Appeals relied to rule that respondent was not on probation from the outset was handed down after the search in this case; and therefore, no member of the search team can reasonably be deemed to have been aware of it.

Respondent and amici also argue that there are already exceptions to the warrant requirement that authorizes reasonable police conduct.

In our view, that misfocuses the inquiry.

If as we believe Leon rested on a deterrent rationale, then a police officer will not be deterred from engaging in objectively reasonable conduct, with or without a warrant.

If that’s true, the fact that there are types of warrantless police actions that are themselves lawful does not mean that the exclusionary rule should be an effective deterrent in other types of circumstances.

Thurgood Marshall:

Mr. Larkin, there weren’t just police there.

There was a prosecutor there, wasn’t there?

Paul J. Larkin, Jr.:

Correct, Your Honor.

Thurgood Marshall:

So I mean they weren’t without legal advice?

Paul J. Larkin, Jr.:

That’s true.

They had a law enforcement there.

Thurgood Marshall:

Who knew the facts of the case.

Paul J. Larkin, Jr.:

That’s correct.

Thurgood Marshall:

And who knew that the respondent was not in court.

Paul J. Larkin, Jr.:

That’s correct.

But there’s no reason for those facts, for her to have assumed that the February 27 order was invalid.

It was a purely legal hearing.

The prosecutor introduced no facts to support her motion.

She introduced none at the hearing.

Respondent’s counsel said… did not say that any factual development was necessary.

Thurgood Marshall:

xxx objects to the legality of the hearing.

The respondent objects to not knowing about the hearing.

Those are two different points, I think.

Paul J. Larkin, Jr.:

Well, I think he also objects to the–

Thurgood Marshall:

If he had been at the hearing, he would have no case at all, right?

Paul J. Larkin, Jr.:

–I believe so.

Thurgood Marshall:

But if he wasn’t at the hearing, that doesn’t help him at all, you say?

Paul J. Larkin, Jr.:


Thurgood Marshall:

Well, why should he be there?

Paul J. Larkin, Jr.:

Well, it’s a purely legal hearing on a stay; the same type of hearing that could take place in an appellate court.

If the prosecutor had appealed a trial court order to an appellate court, the defendant would not have the right to be present.

Thurgood Marshall:

0 xxx.

Paul J. Larkin, Jr.:


Antonin Scalia:

Mr. Larkin, wasn’t it that the effect of the second hearing was to confer his agreement?

I mean, was it clear that he would have agreed to the probation if he had known that the terms of it included that he couldn’t have guns and consented to a search, both?

Paul J. Larkin, Jr.:

–Yes, it’s our view that the record and the state law makes it clear that he consented at the time the order was originally entered November 14.

The judge told him about the conditions.

He didn’t object to those.

He objected only going to jail and having to get rid of one of his guns.

Antonin Scalia:

What if I agree with you that notice was not necessary so long as the attorney was advised, but I think he should have had a right to be present at the second hearing.

How would that affect my decision in this case?

Paul J. Larkin, Jr.:

The next question then is whether the officers had an objectively reasonable belief that the order entered was valid and therefore authorized the search.

You would move on to the second question.

Lewis F. Powell, Jr.:

May I just ask this final question?

Did I understand you earlier to say that you do not challenge the finding of the Court of Appeals under California law that the order of February 27 was the order that we have to look at primarily here?

In other words, that was the order, as I understand it, that the court below considered to be the initial imposition of probation.

Do you challenge that?

Paul J. Larkin, Jr.:

I agree, Your Honor, that the Court of Appeals said that the November 14 order was stayed in its entirety.


Paul J. Larkin, Jr.:

And we have not challenged that.

Paul J. Larkin, Jr.:

So that it’s correct to look to the February 27 order.

Byron R. White:

Mr. Larkin, do you read the Court of Appeals as holding that the search was objectively unreasonable because it was pretextual?

Paul J. Larkin, Jr.:


What they said was–

Byron R. White:

So if we reach the Leon matter, for you to win, we have to say the Court of Appeals was wrong on holding, what, that it was pretextual, or that what?

Paul J. Larkin, Jr.:

–Well, the Court of Appeals added that type of scienter inquiry into the analysis.

And we think it’s unsupported in the record, and it’s completely inconsistent with the district court’s finding.

Byron R. White:

So we do have to disagree with it, say the Court of Appeals was wrong in finding that it was pretextual and therefore unreasonable?

Paul J. Larkin, Jr.:

If you get to that second question.

Byron R. White:


Well, we would have to say the Court of Appeals was wrong in finding that it did not comply with the good faith objectives, and whatever the word “pretextual” might mean.

Paul J. Larkin, Jr.:

That’s right.

John Paul Stevens:

Mr. Larkin, before you sit down, on the good faith issue, is the test… because there was a lawyer who was involved in the decision to make the search, as I understand… is the test… and assume for a moment that the lawyer knew that the… A, that there was no actual notice to the defendant, and B, that the Court of Appeals might at least think there’s a question about whether, given the absence of notice to the defendant, the search would be proper.

But the police officers didn’t realize that.

The police officers just rely on the face of the order.

Do we test it by the judgment of the lawyer, or by the judgment of the police officers?

Paul J. Larkin, Jr.:

The lawyer.

John Paul Stevens:

The lawyer.

Paul J. Larkin, Jr.:

It’s the same way as if one police officer knew of that problem.

John Paul Stevens:

So the question then is whether a lawyer, having knowledge that there wasn’t actual notice to the defendant, might have thought there was a question about the validity of the search?

Paul J. Larkin, Jr.:

I think that would be reasonable.

I’d like to reserve the balance of may time.

William H. Rehnquist:

Thank you, Mr. Larkin.

We’ll hear now from you, Ms. Cooper.

Penelope M. Cooper:

Mr. Chief Justice, and may it please the Court:

The facts and the law in this case establish that there was not a lawful probation search under the law of the State of California; that the respondent in this case was never on probation under California law; and that he never waived his Fourth Amendment rights.

Further, the facts and the law establish that the search was conducted in bad faith, and was objectively unreasonable.

This Court would not even have to look at the notice issue, this Court would not have to look at whether or not the February 27th order was effective, and I direct this specifically to Justice O’Connor, because regardless… regardless of what this Court decides about the effectiveness of the order that was arrived at on February 27, this search was not justified as a probation search.

Under the law of the State of California, there must be reasonable belief that a person is in violation of a condition of probation, and the alleged violations that were brought to the court in this case all occurred prior to February 27th, prior to the date of that order.

There was never any allegation that there was any violation of probation or any terms thereof during the term of probation, which in this case, assuming the best for the government, is between February 27, and the date of the search, March 3rd.

William H. Rehnquist:

Ms. Cooper, did the Court of Appeals rest its judgment on the ground that you’ve just stated?

Penelope M. Cooper:

The Court of Appeals rested in judgment in part on the ground–

William H. Rehnquist:

On the ground… I asked you a question I think you can answer by yes or no.

Penelope M. Cooper:

–They did, Your Honor.

But they couched this under the rubric of good faith.

And you’ll find that all of the discussion about good faith, when the Court has asked before about pretextual search, that’s precisely what it’s talking about.

This was not a search that was taken for the purposes of probation supervision or violation, because there was absolutely allegation of any violation that took place from the date of the reinstatement order.

And the Court of Appeals’ decision is replete with this information.

But they discussed it under the objects of good faith.

And I think this goes to both good faith, but it also goes to the grounds that this is not a proper probation search under California law.

It provides this Court with an independent State ground to disregard every other issue in this case and to affirm the decision below.

And the case law is absolutely clear on this.

People v. Bremmer.

United States v. Johnson.

The suspicion must be grounded on present activity.

xxx state law ground.

Penelope M. Cooper:

The Court of Appeals used this in their decision to show why these officers were not objectively in good faith.

They were talking about the Fourth Amendment.

Penelope M. Cooper:

They were talking about the Fourth Amendment.

But it’s clear from all the facts in this case that it wasn’t a probation search, and it can’t be justified.

And that would end the matter.


Well, what if the officers thought that the… that the original probation order was the one that was valid?

Penelope M. Cooper:

–The officer–

Than… then the… then the information that they had, which they’d acquired earlier about his having firearms, would in their mind have been a violation of probation.

Penelope M. Cooper:

–The officer in this case was in fact Ms. Bazar, the prosecutor.

Her sins must be visited on the other executing officers, as I’m sure we’ll all agree.

She was present at the February 27th hearing.

And she knew what the order of the court was reinstated.

And as a matter of fact, when she got to the door and she had an exchange with the defendant, she corroborated this, not by saying, you’ve always been on probation, Mr. Merchant.

Penelope M. Cooper:

But what she said was, notice last week to your lawyer was notice to you.

She knew that he hadn’t been on probation prior to February 27th.

And it’s clear from her conversation that there wasn’t any question but that he was on probation.

I thought that it was not clear at all in the record whether she had conceded the position that the original order wasn’t effective, and that the later one was just to make doubly sure, so to speak.

Penelope M. Cooper:

Well, what she really–

Is it clear from the record that she had conceded that there was nothing in effect until February 27?

Penelope M. Cooper:

–Well, she heard the judge.

She was in court on February 27th, and she heard the judge say, reinstate it.

Further, her… she indicated she didn’t know–

What does “reinstated” mean?

Penelope M. Cooper:

–“Reinstated” means to start from now.

Start from now?

I think to the contrary.

I would think it means, it’s been around and I’m renewing it now.

Penelope M. Cooper:

Well, she knew that he had never been assigned a probation officer.

The Solicitor General’s argument that this is common in California is absolutely contrary to California law, because there is no case of formal probation where a person isn’t assigned a formal probation.

The record in this case indicates that when the probation department received the document on the sentencing proceedings of November 14th, that they made a notation that all of the proceedings were suspended pending appeal.

Because he wasn’t on probation.

He had no probation officer.

She knew that.

And when she saw him on March 3rd, she didn’t say, you’ve always been on probation.

She said, didn’t your lawyer tell you about the hearing last week when you were placed on probation.

And the reason she didn’t do a search originally was because she knew he wasn’t on probation.

Well, I think it’s at least a hard question.

Did the Court of Appeals make a… hold on the point as to what she knew?

Penelope M. Cooper:

They did not.

They just indicated that he didn’t have notice of the proceeding on February 27th.

But she’s absolutely responsible to know what the state of the law in California is.

She’s a lawyer.

And the state of the California law is clear–

But she can make a mistake, just the way police officers can mistakes.

Penelope M. Cooper:

–She can also, though, be in bad faith and try to get a search when she has no probable cause or no exigency, which is precisely what we claim she did in this case.

Because when she went to the court on February 27, she did not for a moment tell the court what her intention was; not that she should be subject to probation supervision, Justice Scalia, but that she wanted to do search.

And the record and the Joint Appendix in this case indicates that she knew she wanted to do a search before she went down there to reinstate.

And she had an obligation, if she was unsure, to say to that judge on February, your honor, are you ruling that he was on probation, or are you putting him on probation now.

She purposely didn’t do that.

She couched that motion, clarification, reinstatement, both.

She got an order reinstating.

She didn’t tell the judge what she was going to do.

She didn’t tell the lawyer what she was going to do.

But she told her buddies in the police department before she got there, I’ll go get this thing done in court because I’m not sure, and then we’ll do a search.

Is it clear that she didn’t advise… I thought she had advised the court that she wanted to–

Penelope M. Cooper:

She did not, Your Honor.

The government in its reply brief and in part in its opening brief misstates the basis for the California law regarding individuals’ rights with respect to probation.

And it’s clear that it is a contract theory on which the State of California proceeds.

In other words, it’s a quid pro quo.

We give up a little bit maybe in terms of doing time, and we accept certain conditions of probation.

It is not the situation where your parole search is slapped on you like it is in the case that he cites, the Bergerman case, and that you have absolutely no question about whether or not you have to comply.

You must consent.

And I say that there is absolutely no consent in this record to the terms and conditions of probation.

–Well, what about the… the record that indicates that at the original sentencing, the respondent was present and signed the form acknowledging that he understood and consented to the search and firearm conditions of probation?

Penelope M. Cooper:

No, he did not sign anything, Your Honor, that said that he consented.

He said, I have received, I have read, I ave understood.

He never consented.

And the reason he didn’t consent, and it should be noted, that he signed that form after the stay was granted, knowing of course that the stay would be granted.

Because bail on appeal is a matter of right on a misdemeanor in California.

After the stay is granted, he signs.

Never a consent.

And it’s critical to note that one of the rights he has under the State of California law, and I cite In re Osslo, is that he can reject the terms of probation, and he need not do that at the time of the initial sentencing; he can do that after the appeal.

And that’s a very, very, very substantial right that he knew that he possessed.

Penelope M. Cooper:

And there is absolutely no specific knowing waiver in the record of this case that he ever consented to the terms of probation.

The fact that he received and he read and he–

Well, I guess the courts below didn’t deal with that state law question.

Penelope M. Cooper:

–That is true, Justice.

And so conceivably that could be open on any remand.

Penelope M. Cooper:

That’s true.

But I don’t think that that would necessarily govern our decision on whether notice to defendant’s counsel of the February 27th hearing was sufficient for purposes of due process.

Penelope M. Cooper:

Well, it’s our position, that hearing that was conducted on February 27th, first of all the order that the judge gave confirmed that he was not on probation prior to February 27th, because it reinstated.

Second, the order was defective for five reasons.

First of all, it violated the state law of this case in People v. Merchant, that he had a right to have notice.

It basically was the time set for an initial imposition of sentencing, and there’s no way an attorney, without a waiver on file, can proceed in that fashion, when he has a right to defend and be present, and where there are very, very substantial rights to be taken away in such a proceeding.

Is that a… is your statement there based on what you conceive federal constitutional law to be?

Penelope M. Cooper:

It is, Your Honor.

It’s based on both federal constitutional law and it’s based on state law.

And it’s based on the line of federal cases which say that whenever rights to defend and to be present are implicated, that you have a right to be there.

Insofar as it’s based on state law, our Court, I think, is very unlikely to decide this case here in this Court on any state law basis that was not a basis for the Court of Appeals decision.

Penelope M. Cooper:

Well, it was a very important part of the Court of Appeals’ decision.

Because what happened is, the Superior Court, the appellate department of the Superior Court in the county in which this probation violation took place, issued its appellate decision in the case of People v. Merchant, Superior Court, which said that he had no notice of these proceedings and it violated California law.

And that is a major part of the decision in the Ninth Circuit.

Further, it’s our position that it violated state law… his state law right to be present at the proceedings.

And he has an absolute right to be present under the state law of California.

There was no waiver on file, nor at that proceeding did the judge ever stop, or did counsel ever say–

No, he had a right to be present.

No one deprived him of his right to be present.

His lawyer was advised.

If it was anyone’s fault, it was his lawyer’s fault.

Penelope M. Cooper:

–Well, it was–

There are a lot of rights that you have at a trial which are not exercised.

And so long as your lawyer is advised that the proceeding is to be held, if he doesn’t tell you, is that the state’s fault?

Penelope M. Cooper:

–It’s our position that the trial judge and the court has to proceed in a fair manner, and has to be assured that the defendant’s rights are protected.

Penelope M. Cooper:

In this case, there was never any inquiry at all about whether or not Mr. Merchant had consented; whether or not the lawyer had permission for him to be there.

xxx innumerable things that go on in a trial, civil or criminal, where the court relies on the attorney to advise the client.

Does the court have to call up the client everytime and say, has your lawyer told you thus and such?

Penelope M. Cooper:

The answer is, when constitutional rights are being implicated, as they were here, the right to give up his right to be free from unreasonable searches and seizures, his right to bear arms, which was quite critical to him, being a gun collector, those are not the kinds of things that under state or federal law, that the state… that the judge can do without at least an inquiry as to whether or not this is in his interest.

That’s your test, when constitutional rights are implicated?

How are you going to draw that line?

When are constitutional rights not implicated in a criminal trial?

What stages of the criminal trial won’t the court have to check to see that the client was advised of everything by the lawyer?

Penelope M. Cooper:

Well, I think one of the cases cited by… cited in the briefs is United States v. Gagnon.

There was an inquiry into, for example, the jury room for a second, where nobody was being examined, there was some inquiry about the conduct of a juror.

The defendant wasn’t present.

The court rules no problem.

But here, this is very, very critical.

Because the defendant in this case basically could dictate the outcome of those proceedings by rejecting probation, or seeking a modification.

And he had a right to ensure that that would not occur until his stay had evaporated, until his appeal was over.

He had a contract with the court.

If he has… if the court rules that there was a consent, he had a contract.

And the contract is, was a condition precedent.

I don’t have to give up these rights until my appeal is over.

I understand all that.

But what I find it hard to discover is why it’s the state’s fault.

No maybe it’s his lawyer’s fault for not telling him.

Surely he didn’t have to be there.

The court could go ahead.

If the lawyer had told him and he had said, I don’t want to go to that hearing; you go for me.

That would have been legal, right?

There’s nothing in the Constitution that says the trial can’t proceed without him present at that moment?

Penelope M. Cooper:

I think as long as it’s voluntary on the defendant’s part.

Right, okay.

So the judge doesn’t know that the defendant must be there.

Maybe he just didn’t want to come.

So why isn’t it the lawyer’s fault?

And maybe he has a cause of action against his lawyer for… for malrepresentation?

Maybe he has some remedy for inadequate assistance of counsel.

But why is it the state’s fault?

Penelope M. Cooper:

Because the court has the obligation to ensure that the proceedings are fair.

And without that inquiry by anybody, by the prosecutor or by the court, Mr. Merchant’s constitutional rights were terribly implicated when he had a right at that hearing to dictate the outcome by refusing that probation.

xxx probation and insist on going to jail.

Is that what you’re saying?

Penelope M. Cooper:

He could.

And as a matter of fact, in this case, they couldn’t have imposed the jail sentence, because he has an automatic right to bail, pending appeal, on a misdemeanor.

And the appeal was pending at the time.

It’s clear in this case that the government was guided by bad faith all along.

And I think if the Court looks at the transcript of the hearing and determines what Ms. Bazar, who is in fact law enforcement in this case, what her purpose was.

Her purpose was always to do a search.

Never, ever, to be sure that he was complying with the actual terms of probation.

She got a court order to do a search without a warrant, without probable cause, and without any emergency.

It was not assist in compliance with any of the terms of probation.

Now, she was in court, and she knew the sentence had been stayed on November 14th.

She said she was unclear what that meant.

She also knew on February 11th that he had never been assigned to a probation officer.

And it’s totally disingenuous for the Solicitor General… for the court to say that that is typical; because it’s not typical.

And she knew it.

And she knew he wasn’t on probation.

And she even testified that one of the officers said, does he have a probation officer.

This is a search of a private residence based on a pretextual probation search without a probation officer.

This is not a circumstance where somebody wants to do a probation search out in the field, a moving vehicle, and they’ve got to act on the moment.

This is a considered decision to do a search.

And she had it in her mind prior to the reinstatement proceedings.

Counsel, could… suppose the judgment and the sentence had not been stayed at all.

There had just been an appeal, but she was on probation.

Penelope M. Cooper:

I’m sorry, suppose there had been no stay?


And this prosecutor took the police out, and knowing that there was a probation… that probation was in existence, just carried out this same search, but there hadn’t been any probation officer assigned, and her whole purpose was to search for criminal–

Penelope M. Cooper:

The case was pending on appeal, but there hadn’t been a stay?


Penelope M. Cooper:

And the judge had denied a stay, and said you’re on probation?


Penelope M. Cooper:

And there’d been no probation officer.

Then I think it’s a case where you’d have to look into the objectively reasonable acts that occurred on that–

That’s what I’m asking you.

What about the case then?

Penelope M. Cooper:

–Well, if she… if in fact there was–

She knows… she knows that the defendant is on probation.

Penelope M. Cooper:

–The answer to the question is, what complaints did she have?

What reasonable cause did she have to search between the time of the imposition of probation and the time of that search?

If she has reasonable cause, that’s a factor.

And the fact that he doesn’t have a probation officer is a major factor–

No, but that reasonable cause requirement is a state law, isn’t it?

Penelope M. Cooper:


Do you think that’s Fourth Amendment law?

You don’t know that yet, do you?

Penelope M. Cooper:

I don’t know that, yet.

But I know that the… that the federal courts protect their probationers, because under federal law, without a probation officer, this search would be totally illegal.

You don’t think it could possibly be objectively reasonable on the facts I posited?

Penelope M. Cooper:

If she had reasonable cause to believe that there was a violation, postdating the date of the imposition of probation, I say fine.

Why didn’t he have a probation officer?

That’s just one inquiry to be made.

But it’s possible that the reason–

You mean then… then you could always consider it to be a probation search?

Penelope M. Cooper:

–There are certain standards to make a probation search legitimate.

One is that it has to be reasonably related to probation supervision.

And there has to be a reasonable suspicion of a probation violation.

If there was a reasonable suspicion of a violation, post-sentencing, and prior to the time that he was able to connect up with his probation officer, I think it could be reasonable.

But suppose the Fourth Amendment… suppose the Fourth Amendment just permits probation officers to make random searches?

Penelope M. Cooper:

Then I think it’s reasonable, if the Fourth Amendment says you can do that.

That isn’t what happened in this case.

But again, assuming that the probation was in effect, and if one of the conditions of probation were that he obey the law, and the probation search… or the search was based on reasonable grounds to think that he was manufacturing illegal drugs, would you say that that was not connected with a condition of his probation?

Penelope M. Cooper:

Oh, that would certainly be connected with a condition of his probation.

In view of that condition, I suppose?

Penelope M. Cooper:

Sure, he has to obey all laws, of course.

The consent to search is just a consent to search without a warrant, it’s not a consent to search without reasonable suspicion?

Penelope M. Cooper:

It’s couched in different ways in different clauses.

And the courts have been–

Well, what was this consent… what was the consent to search in this case?

Penelope M. Cooper:

–The consent to search in this case was, with or without reasonable cause by a police officer or probation officer… excuse me, with or without probable cause, but there must be reasonable cause.

Under California law.

Penelope M. Cooper:


Even if there’s consent, that’s only… that consent does not waive reasonable cause?

Penelope M. Cooper:

That’s correct.

For all of the reasons in the cases cited in our brief.

Or reasonable suspicion, or whatever you call it.

Penelope M. Cooper:

There must be a reasonable suspicion of a probation violation.

It must be reasonably related to probation supervision.

And the scope must be appropriate.

On February 27th in this… again, going to the good faith issue… when Ms. Bazar was in court, she knew the defendant wasn’t present.

She knew that there was absolutely no waiver on file.

She knew that the judge had issued an order reinstating him.

She never told the judge what she intended to do, not to make sure he was abiding by probation, but to do a search.

She basically, in our view, committed a fraud upon the court because what she really wanted was a warrantless search of his house, and she didn’t tell the judge.

Penelope M. Cooper:

All of the complaints, by the time that March 3rd rolls around, all of the complaints are post… are pre-February 27.

There are no current complaints.

As a matter of fact, the complaints were in January and very early February.

They’re at least a month old.

She knows when she gets to the door that the defendant does not think that he is on probation.

And what happens at the door in… at the door of the search in this case is quite extraordinary.

This is not a case where there’s knock knock knock, bang right in and do your search.

There is a 20-minute… not two or three minutes… 20-minute colloquy between this prosecutor and various other individuals.

One of the people is Mr. Merchant.

This is supposed to be a consent search.

Mr. Merchant says, I didn’t consent, and I’m not on probation.

She didn’t say, forget that, we’re doing this search.

She said, didn’t your lawyer tell you?

He says, no, and then he calls his lawyer, and that lawyer confirms to that prosecutor right then and there, prior to the search, that he is not on probation.

This Court just last week ruled in Maryland v. Garrison that the objectively reasonable facts are critical.

And this court commented that in that case the two individuals that were seen in the hallway, neither of them said anything, neither of them warned these officers that there were really two apartments there, not one apartment.

Mr. Merchant said, no, I don’t have notice.

Mr. Foster, the lawyer, I don’t have notice.

She knew it.

She didn’t say, oh, you’ve had notice all along.

She said, too bad.

In my legal judgment, notice to your lawyer is notice to you.

But that isn’t the end of this case.

Because then what happened is the lawyer, Mr. Foster, in a state of frenzy, called the judge.

And the judge had a conversation with this prosecutor, prior to the instigation of this search, which puts new meaning of the word, bad faith.

And what this judge said, prior to the instigation of this search was, quote, and he said it many times, according to the prosecutor: Don’t take this conversation to mean that I have any opinion as to whether you should or should not be doing this search.

I liked this to the case of United States v. Leon, and I say, can you imagine the judge in Leon signing a document that’s supposed to make out probable cause.

And he gives him a piece of paper, and he says, don’t take this piece of paper to mean that I have any opinion as to whether or not you should or should not be doing this search.

The judge’s imprimatur was totally lacking on this search.

It lacked good faith.

And this is all in the record, I take it?

Penelope M. Cooper:

It is indeed.

If there are no other questions?

William H. Rehnquist:

Thank you, Ms. Cooper.

Mr. Larkin, you have one minute remaining.

Paul J. Larkin, Jr.:

Thank you, Your Honor.

The first thing I’d like to say is, there plainly was reasonable cause to believe that a probation search was related to probation.

There’d been gunfire reported on the respondent’s neighborhood.

In the Britton case we cited in our brief is virtually on all fours with this type of case.

Yes, but that was before he was on probation.

The gunfire was back in January, wasn’t it?

Paul J. Larkin, Jr.:

The gunfire was at a time when the prosecutor could have reasonably believed that he was on probation.

Anyway, it was in January.

It wasn’t after February 27th?

Paul J. Larkin, Jr.:

That’s right.

But that’s just a recasting of their stale evidence argument.

Well, but means that it’s essential for you to establish not merely that the prosecutor when she went in thought that the February 27th order was valid without notice, but also that she thought when she went in that that order did not do anything new; that the probation was in effect way back from, when was it, January.

Paul J. Larkin, Jr.:

Well, she had… which… as part of that, she had a reasonable belief that he still had firearms.

To that extent, I think under either interpretation she would have a reasonable belief.

Thank you very much.

William H. Rehnquist:

Thank you, Mr. Larkin.

The case is submitted.