Petition for Writ of Certiorari — United States v. Merchant

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No.

In the Supreme Court of the United States

OCTOBER TERM, 1985

UNITED STATES OF AMERICA, PETITIONER

WILLIAM D. MERCHANT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

PAUL J. LARKIN, JR.

Assistant to the Solicitor General

SIDNEY M. GLAZER

ROBERT J. ERICKSON

KAREN I. SKRIVSETH

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether due process requires personal notice

to a defendant, rather than notice to his attorney,

of a scheduled court hearing.

2. Whether the Fourth Amendment exclusionary

rule requires the suppression of evidence obtained

by law enforcement officers acting in reliance on a

facially valid judgment of probation, where that judg-

ment is subsequently held invalid on the ground that

it was entered at a proceeding that was procedurally

defective.

II /

PARTIES TO THE PROCEEDINGS

In addition to the parties listed in the caption,

Cleo L. Marohn was named in the indictment, but

she was dismissed from the case by the district court

and did not appear in the court of appeals.

TABLE OF CONTENTS

Page

Opinions below

Jurisdiction

Constitutional provisions involved 2

Statement 2

Reasons for granting the petition LO

Conclusion 25

Appendix A la

Appendix B 15a

Appendix C 19a

Appendix D 20a

Appendix E 2la

TABLE OF AUTHORITIES

Cases:

Brookhart v. Janis, 384 U.S. 1 13

Estelle v. Williams, 425 U.S. 501 13

Faretta v. California, 422 U.S. 806 15, 16

Gluck v. United States, 771 F.2d 750 20-21

Greene V. Lindsey, 456 U.S. 444 1]

Henry V. Mississippi, 379 U.S. 443 8

Howard v. Kentucky, 200 U.S. 164 15

Illinois vy. Allen, 397 U.S. 337 14

Illinois Vv. Krull, cert. granted, No. 85-608 (Mar.

24, 1986) 25

Jones V. Barnes, 463 U.S. 745 13

Latta v. Fitzharris, 521 F.2d 246, cert. denied, 423

U.S. 897 23

Cases—Continued: Page

Link v. Wabash R.R., 370 U.S. 626 12

Loyd v. Loyd, 731 F.2d 393 13

Malley v. Briggs, No. 84-1586 (Mar. 5, 1986) 18

Massachusetts v. Sheppard, No. 82-963 (July 5,

L984) 17, 19, 21, 22, 25

Me mpa V. Rhay, 389 U.S. 128

Michian Vv. DeFillippo, 443 U.S. 31

Moran Vv. Burbine. No. 84-1485 (Mar. 10, 1986)

Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306

NLRB vy. Se quoia District Couneil of Carpe nters,

568 F.2d 628

Oliver, In re, 333 U.S. 257

Payton v. New York, 445 U.S. 578

Peopnie Vv. Barbarick. 168 Cal. App. 3d 731, 214

Cal. Rptr. 322 2]

People v. Bremmer, 30 Cal. App. 3d 1058, 106 Cal.

Rptr. 797 20, 21

People v. Britton, 156 Cal. App. 3d 689, 202 Cal.

Rptr. 882 19, 24

People v. Constancio, 42 Cal. App. 3d 533, 116

Cal. Rptr. 910 20

People v. Freund, 48 Cal. App. 3d 49, 119 Cal.

Rptr. 762 20)

People v. Guerrero, 85 Cal. App. 3d, 149 Cal. Rptr.

555 19, 20

People v. Kasinger, 57 Cal. App. 3d 975, 129 Cai.

Rptr. 483 19, 20

People vy. Mason. 5 Cal. 3d 759, 488 P.2d 630, 97

Cal. Rptr. 302, cert. denied, 405 U.S. 1016..19, 20, 22, 2

People V. Palmquist, 123 Cal App. 3d l, 176 Cal.

Rptr. 173 20), 22

Price v. Johnston, 334 U.S. 266 16

Rushen V. Spain 164 U.S. 114 14,15

Salahuddin v. Coughlin, 781 F.2d 24 3

Schwab v. Berggren, 143 U.S. 442 15, 16

Smith v. Ayer, 101 U.S. 320 12

Snyder Vv. Massachusetts, 291 U.S. 97 14,15

Townsend V. Gray Line Bus Co., 767 F.2d 11

United States v. Clark, 407 F.2d 1336

lnited States Vv. Consus lo-Gonzale Be 5? 1 F.2d 259

Cases—Continued : Page

United States v. Everett, 700 F.2d 900 13

United States v. Gagnon, No. 84-690 (Mar. 18,

L985) 14,15

United States v. Graves, 669 F.2d 964 16

United States v. Jarrad, 754 F.2d 1451, cert. de-

nied, No. 84-6659 (Oct. 7, 1985) 23

United States v. Johnson, 722 F.2d 525 19, 23

United States v. Leon, No. 82-1771 (July 5,

1984) 9, 17, 18, 19, 20, 22, 25

United States v. Williams, 622 F.2d 830, cert. de-

nied, 449 U.S. 1127 7

Wainwright v. Sykes, 433 U.S. 72 13

Wainwright v. Witt, No. 83-1427 (Jan. 21, 1985) Ld

Wheeler v. United States, 640 F.2d 1116 16

Constitution, statutes and rules:

U S. Const. :

Amend. | 16

Amend. IV 2, 19, 20

Amend. VI (Confrontation Clause) 11, 14, 16

Amend. XIV (Due Process Clause). _2, 10, 11, 14, 17

Federal Probation Act, 18 U.S.C. 3651 20

18 U.S.C. 922 (h) (1) 25

18 U.S.C. 3432 1]

18 U.S.C. App. 1202 (a) (1) 23

21 U.S.C. 841 (a) (1) 2

21 U.S.C. 841 (b) (1) (B) (5) 2

Cal. Penal Code (West 1982 & Supp. 1986) :

§ 17(b) (4) 3

S 417 (a) 3

S$ 417 (b) 8

S$ 1462 3

Fed. R. Civ. P.:

Rule 4(d) 1]

Rule 5(b) 12

Fed. R. Crim. P.:

tule 4(d) (3) 1]

Rule 6(e) 21

Rule 9(c)

Constitution, statutes and rules—Continued :

Rule 10

Rule 43 (c) (5)

Rule 49 (b)

Miscellaneous:

ABA Model Code of Professional Responsibility

(1980)

ABA Model Rules of Professional Conduct (1983)

° W. LaFave, Search and Seizure (1978)

8A C. Wright, Federal Practice and Procedure:

Criminal (1982)

1C. Wright & A. Miller, Federal Practice and Pro-

cedure: Civil (1969)

Inu the Supreme Court of the United States

OCTOBER TERM, 1985

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

WILLIAM D. MERCHANT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

la-l4a) is reported at 760 F.2d 963. The opinion

of the district court (App., infra, 15a-18a) is un-

reported.

JURISDICTION

The judgment of the court of appeals (App., infra,

20a) was entered on May 14, 1985, and a petition

for rehearing was denied on January i3, 1986 (App..,

infra, 19a). On March 6, 1986, Justice Rehnquist

extended the time within which to file a petition for

(1)

)

a writ of certiorari to and including April 12, 1986.

The jurisdiction of this Court is invoked under 25

U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment provides that:

The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be

violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

The Fourteenth Amendment provides, in pertinent

part:

No State shall * * * deprive any person of life,

liberty, or property, without due process of law

k * *

STATEMENT

Following a bench trial on stipulated facts in the

United States District Court for the Northern Dis-

trict of California, respondent was convicted of man-

ufacturing phencyclidine (PCP), in violation of 21

U.S.C. 841(a)(1) and (b)(1)(B)(5).' Respond-

ent was sentenced to ten years’ imprisonment, was

fined $25,000, and was given a special parole term

of seven years. App., infra, 4a; E.R. 216. The

court of appeals reversed (App., infra, la-14a).

1. a. In 1980, respondent was convicted in Cali-

fornia state court on two misdemeanor counts of

1 Respondent was named in the indictment as William D.

Merchant (Excerpt of Record (E.R.) 1). The court of appeals’

caption is in error.

brandishing a firearm.’ App., infra, 2a, 16a. At the

time of sentencing, the state court placed respondent

on three years’ probation. On one count, the state

court sentenced respondent to one year’s imprison-

ment, with the entire term suspended in favor of pro-

bation; on the other count, the court ordered respond-

ent to serve six months in jail. 11/14/80 Tr. 7-8

(E.R. 54-55) ; see App., infra, 2a, 16a. As additional

conditions of probation, the state court forbade re-

spondent from possessing firearms during his proba-

tionary period and required him to “submit his per-

son, residence or vehicle to search and seizure at any

time of the day or night by a peace officer with or

without a warrant” (11/14/80 Tr. 7-8 (E.R. 54-55):

App., infra, 2a, 16a).*

Immediately after the court had pronounced sen-

tence, a colloquy ensued among the court, respondent,

and respondent’s trial counsel. Respondent protested

that the six-month period of incarceration would be

financially burdensome because, as he put it, “what

this means to me is everything I own. * * * I have

$1,500 a month tractor payments which I cannot

* At the time in question, Cal. Penal Code § 417(a) (West

Supp. 1986) made it a misdemeanor for any person, inter

alia, to draw or exhibit a firearm in the presence of another

person except in self-defense. Section 417(b) made it a felony

knowingly to commit the same acts in the immediate presenc:

of a peace officer engaged in the performance of his duties.

However, violations of Section 417(b) can be, and in this case

were, prosecuted in a California Municipal Court as misde-

meanors. See Cal. Penal Code § 17{b) (4) (West Supp. 1986)

and § 1462 (West 1982). Since then, Section 417(a) and

(b) have been amended, but those amendments are not rele-

vant to this case.

’ The state court’s sentencing order is quoted in full in the

court of appeals’ opinion. App., infra, 4a-5a n.3.

—"s

make in jail” (11/14/80 Tr. 8 (E.R. 55)). In re-

sponse to that plea, the state court agreed to “give

you a stay of execution to allow you to enter any

work furlough program. I don’t want anyone to lose

their job” (ibid.). Respondent’s attorney then stated

that he would appeal the conviction on the second

count, on which respondent had been ordered incar-

cerated, and he asked if he could file a notice of

appeal at that time (ibid. (E.R. 55); see also

5/21/81 Tr. 13). The court replied that the sen-

tence would be stayed pending the appeal (11/14/80

Tr. 8-10 (E.R. 55-57)). At the conclusion of the

sentencing proceeding, respondent signed a form ac-

knowledging that he understood and consented to the

search and firearms conditions of probation that the

state court had imposed (E.R. 119; GX G-2-A; see

5/21/81 Tr. 21).*

b. Two months later, in January 1981, the local

prosecutor received several reports from respondent’s

neighbors that they had heard the sound of gunfire

coming from respondent’s property; one neighbor also

reported that he had seen respondent with a rifle

(5/21/81 Tr. 72-73, 76-77, 89-90, 96-100). Believ-

ing that respondent may have violated his probation

by possessing a firearm, the prosecutor examined the

file on respondent’s case and researched the effect of

the stay of respondent’s sentence on the conditions

of his probation (7d. at 100-101, 108-109). Although

she concluded that only the six-month jail term had

been stayed, and not the three-year probationary pe-

* The state court judgment, executed by the clerk and filed

on November 14, 1980, contains a handwritten notation at

the bottom that reads (GX G-2-B): “Confinement date to be

cont. pending appeal.” The district court in this case took

judicial notice of that judgment (5/21/81 Tr. 128, 130-131).

riod or its conditions (id. at 100-101, 113), the prose-

cutor did not immediately order a search of respond-

ent’s residence. Rather, on February 11 she filed

and served on respondent’s counsel a motion seeking

clarification of the court’s stay order, so as to elim-

inate any potential confusion concerning whether the

conditions of respondent’s probation were in effect

(App., infra, 2a). Following the filing of that mo-

tion, respondent’s counsel had several telephone con-

versations with his client, but he did not advise re-

spondent about the hearing (5/21/81 Tr. 5, 15-17,

25-26).°

The prosecutor’s motion came on for a hearing on

February 27 (App., infra, 2a). Shortly before the

hearing began, the prosecutor told respondent’s coun-

sel about the reports of gunfire from respondent’s

property (5/21/81 Tr. 101). At the outset of the

proceeding, the state court noted that respondent’s

counsel was present, but that respondent was not

(App., infra, 22a) Respondent’s counsel did not ob-

ject to conducting the proceeding in respondent’s ab-

sence, and on the merits he consented to the prosecu-

tor’s motion (ibid.). The court then stated that the

“Court will grant the motion for clarification. De-

fendant will be reinstated on the terms of probation”

(ibid.). The court made clear that “[t]he entire pro-

bation order that he signed,” including the provision

forbidding respondent from possessing firearms, was

in effect, although respondent was not yet required

to report for confinement (ibid.). Respondent’s coun-

sel subsequently wrote respondent a letter to inform

° Respondent’s counsel apparently believed that his client’s

presence was unnecessary because the hearing would not

affect his bail status or his appeal on the count as to which he

received the jail term (see 5/21/81 Tr. 14; see also id. at

12-16).

him about the proceeding and the fact that the condi-

tions of his probation were in effect (5/21/81 Tr. 10,

19-20, 21, 22, 23-24).° Respondent, however, never

received that letter (id. at 6, 7, 8-9).

e. Four days later, on March 3, several police offi-

cers, the local prosecutor, and a civil process server

went to respondent’s house to conduct a search for

firearms and to execute a civil judgment against re-

spondent (5/21/81 Tr. 28-29). After the officers

stated their purpose, respondent protested that he

was not on probation and asked to speak with his

lawyer (id. at 31). Respondent was allowed to call

his attorney, who told the prosecutor that respondent

had not been notified of the state court’s February

27 order (App., infra, 3a; 5/21/81 Tr. 10, 22-28,

121-122; E.R. 149-153). The state prosecutor de-

cided that the search should be conducted nonethe-

less. During the ensuing search, the officers discov-

ered approximately 80 firearms scattered throughout

the house, a suitcase containing approximately three

pounds of methaqualone tablets (quaaludes), a large

quantity of chemicals and laboratory equipment that

could be used to manufacture PCP, and approxi-

mately $360,000 in cash (App., infra, 3a, 16a-17a;

0/21/81 Tr. 33-38, 49-50). At that point, the officers

arrested respondent and halted their search in order

to obtain a telephonic search warrant for respond-

ent’s residence (App., infra, 3a; 5/21/81 Tr. 38-39,

46). After obtaining the warrant, the officers dis-

covered additional narcotics and laboratory equip-

ment (App., infra, 3a, 17a).

* The letter stated, in part, that “ ‘[b]Jasically the district

attorney wanted to maintain the probationary order as active

on the first count. The court ordered that the probation remain

effective pending the appeal’ (5/21/81 Tr. 23-24).

(

2. Based on the evidence seized during the search

of respondent’s house, a federal grand jury indicted

respondent on three narcotics charges (E.R. 4-5).

Before trial, respondent moved to suppress the evi-

dence seized from his residence on the ground, inter

alia, that the search could not be justified under the

consent-to-search provision of his probation order,

since he had not been notified of the state court’s

February 27 hearing or order.

The district court denied the motion for two inde-

pendent reasons (App., infra, 15a-18a). First, the

court held that the search was lawful because re-

spondent was on probation at that time (id. at 17a).

The court found that the state court had stayed only

that portion of respondent’s sentence ordering his

incarceration and had not stayed the imposition of

probation (ibid.). Second, the court held that, in

any event, the evidence seized during the search of

respondent’s house should not be suppressed (id. at

18a). The court found that “the law enforcement

personnel involved and, for that matter, [respond-

ent’s] attorney * * * all held a good faith belief that

they had the authority to make a warrantless search

of [respondent’s] residence based on the [state] trial

court’s ruling on the motion for clarification or mod-

ification” (ibid.). Concluding that the exclusionary

rule should not apply where evidence “ ‘is discovered

by officers in the course of actions that are taken in

good faith and in the reasonable, though mistaken], |

belief that they are authorized,’”’ the court denied

respondent’s suppression motion (ibid., quoting

United States v. Williams, 622 F.2d 830, 840 (5th

Cir. 1980) (en bane), cert. denied, 449 U.S. 1127

(1981) ).?

™The municipal court judge who had originally sentenced

respondent later revoked his probation because of the dis-

3. a. The court of appeals reversed (App., infra,

la-14a). At the outset, the court held that respond-

ent had not been placed on probation when he was

sentenced on November 14, 1980, because the state

court had stayed respondent’s entire sentence and not

merely that portion requiring his incarceration (id.

at 5a-6a). The court of appeals then ruled that the

state court’s February 27, 1981, order was invalid

because respondent was not given personal notice of

the proceeding (id. at 6a-10a). Characterizing the

February 27 proceeding as “neither a revocation nor

an extension of probation, but * * * what amounted

to an initial imposition of probation” (id. at 8a), the

court held that the consent-to-search provision of the

probation order constituted a burden on respondent’s

liberty, requiring that he be given personal notice of

the proceeding (id. at 8a-9a). Stating that “[t]he

right to notice under the fifth and sixth amendments

is personal to the defendant” (id. at 9a), the court

concluded that ‘‘[n]otice to and the presence of [re-

spondent’s] attorney does not suffice” for due process

purposes (id. at 10a (footnote omitted)). Because

respondent had not been personally notified of the

February 27 hearing, the court held that the order

the state court entered on that day was “a nullity”

covery of firearms in his residence. However, the Superior

Court Appellate Division reversed that order, on the ground

that respondent was unaware that the conditions of his pro-

bation were in effect. People v. Merchant, No. 296 (Cal.

Super. Ct. Nov. 17, 1981), slip op. 2 (E.R. 117). In so ruling,

however, the court expressly stated that ““[w]e do not in any

respect disagree with the decision of the * * * District Court

* * * Tin this case], * * * which held that the trial court in-

tended to impose probation effective November 14, 1980[,]

and that, in any event, the probation search was lawful.”’

Slip op. 2-3 (E.R. 117-118).

(ibid.). Accordingly, the court concluded that, because

respondent was not actually on probation at the time

of the search of his residence, the search could not be

upheld on the strength of the consent-to-search clause

in the state court’s probation order (7bid.).

b. The court of appeals then turned to the ques-

tion whether the evidence seized from respondent’s

house was nevertheless admissible under United

States v. Leon, No. 82-1771 (July 5, 1984), given the

officers’ reliance on the consent-to-search clause con-

tained in the original probation order. App., infra,

10a-14a. The court held that the evidence was not

admissible because, in he court’s view, “none of the

law enforcement officers reasonably could have be-

lieved that the search related to the interests of ef-

fective probation supervision” (7d. at lla-12a). The

court acknowledged that the prosecutor decided to

conduct the search because of the reports of gunfire

from respondent’s property, which indicated that re-

spondent had violated the condition of his probation

that he not possess firearms during his probationary

period (id. at 12a). However, the court found sig-

nificance in the fact that, at the time of the search,

respondent had not yet been assigned a probation

officer and had not received any counseling or super-

vision, that the prosecutor did not inform either the

probation department or the state court of the re-

ports of gunfire, and that she also did not tell the

state court at the February 27 hearing about her

earlier conversations with local law enforcement of-

ficers regarding her desire to search respondent’s

residence (ibid.). Relying on these facts, the court

of appeals concluded that “the search was a subter-

fuge for conducting a criminal investigation” (ibid.)

and was not “a genuine attempt to enforce proba-

tion” (id. at 18a). Concluding that the officers’ be-

havior “is the type of law enforcement conduct that

ought to be deterred” (ibid.), the court held that

Leon was inapplicable and that the evidence seized

from respondent’s house should be suppressed (7bid.).

REASONS FOR GRANTING THE PETITION

1. A longstanding and previously unquestioned

feature of both criminal and civil litigation in our

legal system is the practice of providing notice of

scheduled judicial proceedings to the affected parties

through their attorneys. This practice, which is codi-

fied in the Federal Rules of Criminal and Civil Pro-

cedure, is bottomed upon concerns of practicality and

efficiency, as well as the determination that in an

adversary system an attorney can and should be

trusted with the responsibility of providing his client

with the information necessary to a just defense or

the prosecution of his cause.

In this case, the court of appeals held that the Due

Process Clause requires personal notice to a defend-

ant of a scheduled judicial proceeding, even though

the defendant’s attorney has been notified of the time

and nature of the proceeding. This ruling constitutes

a departure from the principles of representative

litigation and is inconsistent with provisions of the

Federal Rules of Criminal and Civil Procedure. Be-

yond that, the court of appeals’ ruling has the poten-

tial for considerable mischief. It creates needless

uncertainty as to whether a defendant has been af-

forded actual notice of scheduled proceedings. !t im-

poses on the prosecutor or the court the burden of

duplicating steps that should properly be left to de-

fense counsel. And it invites claims that the defend-

ant was not personally notified and that any ensuing

proceeding, as the court of appeals put it, is a “nul-

lity,” even though, as here, defense counsel has had

an ample opportunity to inform his client of the

proceeding. Given the substantial burdens that may

result from the court of appeals’ ruling on the notice

issue, review by this Court is warranted.

a. The Due Process Clause generally requires per-

sonal service of the pleading that commences a civil

action because that manner of service ensures that a

person will be notified of the pendency of the suit

and will have the opportunity to ‘‘choose for himself

whether to appear or default, acquiesce or contest”

a claim against him (Mullane v. Central Hanover

Bank & Trust Co., 339 U.S. 306, 314 (1950)). See.

e.g., Greene v. Lindsey, 456 U.S. 444, 449 (1982).

For much the same reason, the Sixth Amendment re-

quires that a defendant in a criminal case “be in-

formed of the nature and cause of the accusation”’

(U.S. Const. Amend. VI). See, e.¢., In re Oliver, 333

U.S. 257, 273 (1948). The Federal Rules of Civil

and Criminal Procedure implement these principles

by requiring that the defendant be served with the

pleading, such as the complaint, »1mmons, or indict-

ment, that commences a civil suit or a criminal prose-

cution. See Fed. R. Civ. P. 4(d); Fed. R. Crim. P.

4(d) (3), 9(e), 10; 18 U.S.C. 3432."

Once a party has retained counsel, due process does

not require that the party be personally served with

subsequent pleadings or be given personal notice of

subsequent proceedings. On the contrary, it is well

settled that in our system of representative litigation

pleadings may be served on counsel rather than on a

’ Even with respect to the original charging document in a

criminal case, the courts have not insisted on personal service

on the defendant, as long as the defendant receives notice of

the charges. See United States v. Clark, 407 F.2d 1336, 1337

(4th Cir. 1969).

party, even when a motion contemplates or calls for

a hearing. In fact, the Federal Rules of Criminal

and Civil Procedure expressly require that all sub-

sequent motions be served on counsel rather than on

a party. See Fed. R. Crim. P. 49(b); Fed. R. Civ.

P. 5(b).® It is likewise clear that notice to a party’s

counsel of the pendency of a proceeding is equivalent

to notice to the party himself. As this Court has ex-

plained, once a party voluntarily chooses an attorney

as his representative in the action, he “is considered

to have ‘notice of all facts, notice of which can be

charged upon [his] attorney.’” Link v. Wabash R.R.,

370 U.S. 626, 634 (1962) (quoting Smith v. Ayer,

101 U.S. 320, 326 (1879)). And as Link itself held,

the “facts” that may properly be charged to a party

include the dates and nature of scheduled hearings.

See 370 U.S. at 633-635 (counsel’s failure to attend

a scheduled pretrial conference, coupled with other

®See 4 C. Wright & A. Miller, Federal Practice and Pro-

cedure: Civil § 1145, at 583 (1969) (footnote omitted)

(“{t]he requirement of service on the attorney [in Fed. R.

Civ. P. 5(b)] is to be followed literally; service upon a party

represented by an attorney does not comply with the rule’) ;

3A C. Wright, Federal Practice and Procedure: Criminal

§ 822, at 234-235 (1982) (stating that Fed. R. Crim. P. 49(b)

should be construed in the same manner as Fed. R. Civ. P.

5(b)).

Indeed, the legal profession frowns on direct communica-

tions between an attorney and an opposing party. See Moran

v. Burbine, No. 84-1485 (Mar. 10, 1986), slip op. 31 n.52

(Stevens, J., dissenting); ABA Model Rules of Professional

Conduct 4.2 (1983) (“‘[i]n representing a client, a lawyer

shall not communicate about the subject of the representation

with a party the lawyer knows to be represented by another

lawyer in the matter, unless the lawyer has the consent of

the other lawyer or is authorized by law to do so”); ABA

Model Code of Professional Responsibiilty DR 7-104(A) (1)

(1980).

proof of dilatoriness, may justify dismissal of a suit

with prejudice) .*°

It is immaterial that the February 27 hearing took

place during a criminal prosecution, rather than a

civil suit. The role of defense counsel as the repre-

sentative designated to receive notice does not differ

in the two types of proceedings. See Jones v. Barnes,

463 U.S. 745, 751-754 & n.6 (1983)."" Nor does it

‘©The courts of appeals have reitzrated and applied this

principle in a wide variety of circumstances. See, e.g., Sala-

huddin Vv. Coughlin, 781 F.2d 24, 27 (2d Cir. 1986) (prison

officials are charged with knowledge of court orders entered in

a case); Townsend v. Gray Line Bus Co., 767 F.2d 11, 19

(1st Cir. 1985) (counsel’s failure to appear at a status con-

ference and to object to the substitution of a new judge is

charged to his client) ; Loyd v. Loyd, 731 F.2d 393, 400 (7th

Cir. 1984) (notice to counsel of scheduled probate hearing is

deemed to be notice to his client); United States v. Everett,

700 F.2d 900, 902 n.5 (3d Cir. 1983) (notice to defense coun-

sel that the government has taken an appeal and has filed its

brief is deemed to be notice to the defendant). Prior to this

case, the Ninth Circuit had also applied this principle. See

NLRB v. Sequoia District Council of Carpenters, 568 F.2d

628, 633 (1977) (notice to counsel of entry of an order binds

his client).

1! For example, the decision how to respond to legal motions

is a judgment for defense counsel, not the defendant, to make.

See, e.g., J nes V. Barnes, 463 U.S. at 751-754; see also Wain-

wright Vv. Sykes, 433 U.S. 72, 91 n.14 (1977) ; id. at 93 (Bur-

ger, C.J., concurring) ; Estelle v. Williams, 425 U.S. 501, 512

(1976) ; id. at 515 n.4 (Powell, J., concurring) ; Brookhart v.

Janis, 384 U.S. 1, 8 (1966) (Harlan, J., concurring) ; Henry

V. Mississippi, 379 U.S. 443, 451 (1965). Moreover, a lawyer’s

ethical obligation to consult with his client regarding the con-

duct of the defense has no less force in criminal than in civil

cases. See Jones, 463 U.S. at 753 n.6 (“an attorney’s duty

is to take professional responsibility for the conduct of the

case, after consulting with his client’).

matter for the purpose of notice whether the Feb-

ruary 27 hearing is characterized as a sentencing

hearing, as the court of appeals described it (App.,

infra, 8a), or merely as a proceeding to clarify the

court’s previous order. The Constitution imposes no

special requirement of notice with respect to sentenc-

ing, beyond what is required for other proceedings.

And a defendant has the same right to the assistance

of counsel at sentencing that he has at other stages of

the crimiual process. See Mempa v. Rhay, 389 U.S.

128 (1967). Accordingly, notice to counsel is consid-

ered to be notice to the client with regard to a sen-

tencing proceeding, just as in the case of any other

type of hearing. Because respondent’s counsel had

notice of the February 27 hearing, neither the prose-

cutor nor the court was constitutionally required to

notify respondent personally.”

12 The court of appeals left open the question whether re-

spondent had a constitutional right to be present at the Febru-

ary 27 proceeding. App., infra, 10a n.5. Therefore, there is

no need for the Court to decide that issue in the first instance.

However, there are substantial reasons to doubt that respond-

ent had a constitutional right to be present at the hearing

and that his absence rendered the hearing invalid.

A defendant’s right to be present at trial is rooted in part

in the Confrontation Clause of the Sixth Amendment. See

United States v. Gagnon, No. 84-690 (Mar. 18, 1985), slip op.

4: Illinois v. Allen, 397 U.S. 337, 338 (1970). That right has

no application here, since no witness testified at the hearing.

Snyder v. Massachusetts, 291 U.S. 97, 107 (1934) ; see Gagnon,

slip op. 4; see also Rushen v. Spain, 464 U.S. 114, 129-130 n.8

(1983) (Stevens, J., concurring).

To the extent that the right to be present stems from the

Due Process Clause (see Gagnon, slip op. 4), that provision is

likewise inapplicable in this case. As the Court recently noted,

“a defendant has a due process right to be present at a pro-

ceeding ‘whenever his presence has a relation, reasonably

b. The court of appeals’ decision is not supported

by either of the cases it cited (App., infra, 9a).

substantial, to the fulness of his opportunity to defend against

the charge. ... [T]he presence of a defendant is a condition

of due process to the extent that a fair and just hearing would

be thwarted by his absence, and to that extent only.’ ”’ Gagnon,

slip op. 4 (quoting Snyder, 291 U.S. at 105-106, 107-108) ; see

Spain, 464 U.S. at 129-130 n.8 (Stevens, J., concurring) (‘‘we

have viewed a potential for prejudice as a necessary element

of a violation of the right to be present’); Faretta v. Cali-

fornia, 422 U.S. 806, 819 n.15 (1975) (the defendant “has a

right to be present at all stages of the trial where his absence

might frustrate the fairness of the proceedings’’); see also

Snyder, 291 U.S. at 106-107 (due process does not “assure[]

the privilege of presence when presence would be useless, or

the benefit but a shadow”). There is no reason to suppose

that respondent’s presence at the ministerial and perfunctory

proceeding on February 27 could have contributed to his de-

fense, particularly in light of the concession by respondent’s

counsel that the prosecutor’s motion was well taken. Cf.

Snyder, 291 U.S. at 109. Nor does it matter if the effect of

the state court’s order was to advance the date on which the

conditions of respondent’s probation, which had already been

imposed at sentencing, would go into effect. See Schwab v.

Berggren, 143 U.S. 442, 451 (1892) (defendant has no right

to be present when an appellate court fixes the date of execu-

tion on a sentence imposed by the trial court). And even if

the absence of an objection at the hearing by respondent’s

counsel does not constitute a waiver of respondent’s claim

(but cf., e.g., Howard v. Kentucky, 200 U.S. 164, 173 (1906)

(due process not violated by trial court’s in camera question-

ing of juror in absence of defendant and defense counsel

where defense counsel had agreed to that procedure) ), the

absence of an objection by respondent’s counsel adds support

to the conclusion that respondent was not prejudiced (see

Wainwright v. Witt, No. 83-1427 (Jan. 21, 1985), slip op. 18

&n.11).

Finally, it is well settled that a defendant has no right to

attend a proceeding that is devoted to purely legal questions.

See, e.g., Fed. R. Crim. P. 43(c) (3) (defendant need not be

Faretta v. California, 422 U.S. 806 (1975), stated

that. under the Sixth Amendment, “[i]t is the ac-

cused, not counsel, who must be ‘informed of the

nature and cause of the accusation’” (id. at 819).

That principle, however, has no bearing on the ques-

tion whether the accused has the right to personal

service of all pleadings filed during the course of a

criminal case or to personal notice of all subsequent

hearings on such motions. Wheeler v. United States,

640 F.2d 1116 (9th Cir. 1981), is also beside the

point. There, the district court, acting ex parte, en-

tered an order directing a warden to prevent a pris-

oner from communicating with the witnesses at his

trial. The prisoner, who was not represented by

counsel, did not become aware of the order until four

years after its eftry. Relying on its supervisory

powers (id. at 1122 n.14), the court of appeals ruled

that the district court, absent compelling circum-

stances, should have held a hearing before entering

the order, since the order restricted the prisoner’s

First Amendment rights (id. at 1122). Because

Wheeler involved an ex parte proceeding—not one in

which defense counsel was notified and appeared at

the proceeding—that case is not even remotely rele-

vant here.

present “{a]t a conference or argument upon a question of

law’): Price v. Johnston, 334 U.S. 266, 285 (1948) (defend-

ant has no right to attend appellate proceedings) ; Schwab Vv.

Berggren, supra (same); United States v. Graves, 669 F.2d

964, 972-973 (5th Cir. 1982) (defendant has no right to attend

a bench conference on jury instructions) (collecting cases).

The February 27 hearing involved a purely legal matter—the

effect of the state court’s stay order—of the sort that would

not give rise to a constitutional right to be present.

ce. Although we do not mean to overstate the prac-

tical effect of the court of appeals’ decision, that rul-

ing, if applied broadly, would impose a needless bur-

den on the criminal trial process. The court’s deci-

sion would require the prosecutor to advise the ac-

cused of the developments in the litigation, at the

risk that the defense will claim that the prosecutor

has interfered with the attorney-client relationship.

Alternatively, the court of appeals’ ruling would re-

quire the district courts to engage in the formality

of sending a defendant personal notice of every up-

coming proceeding. In either case, unless personal

service rather than the mail is used to provide notice,

the court of appeals’ ruling invites litigation over the

questions of whether and when a defendant in fact

received notice of a proceeding.

At the same time, requiring the accused to be per-

sonally notified of every hearing will not appreciably

increase the likelihood that he will be present at pro-

ceedings at which his presence is essential but which

he would otherwise not attend. It is most unlikely

that defense counsel will fail to inform the defendant

of such proceedings and that both the court and the

prosecutor will also overlook his absence. However,

it is only that narrow category of cases in which the

court of appeals’ ruling will have any appreciable

benefit. The court of appeals’ ruling thus will lead

to needless makework in the vast majority of cases,

without substantially contributing to the purposes for

which the Due Process Clause ordinarily requires no-

tice.

2. The court of appeals’ ruling is also inconsistent

with this Court’s decisions in United States v. Leon.

No. 82-177] (July 5, 1984), and Massachusetts V.

Sheppard, No. 82-963 (July 5, 1984). In those cases,

the Court held that evidence obtained by law enforce-

ment officers who reasonably relied on a facially valid

search warrant should not be suppressed at trial, even

if the warrant is subsequently found to be defective.

The Court noted that evidence so acquired should not

be suppressed as long as the officers’ reliance on the

warrant was “objectively reasonable.” Leon, slip op.

23- accord Malley v. Briggs, No. 84-1586 (Mar. 5,

1986), slip op. 5, 8-9. Here, the court of appeals dis-

regarded this principle. The court ruled that evidence

obtained by police officers in reliance on a facially

valid probation order must be suppressed because of

a procedural defect in the proceeding at which that

order was issued. Moreover, in ruling that suppres-

sion was required because the search was a subterfuge

for a criminal investigation, the court of appeals

ionored the prosecutor’s reasonable course of conduct

in obtaining clarification of the state court’s order.

he court also ignored the officers’ adherence to well-

settled principles of state law and the goals of the

California probation system in executing the search.

Because the court of appeals’ decision disregards the

principles underlying this Court’s ruling in Leon,

the Court should also review this question as well.

a. In Leon, the Court explained that the exclu-

sionary rule “is designed to deter police misconduct

rather than to punish the errors of judges and mag-

istrates” (slip op. 16) and that “[p]enalizing th

officer for the magistrate’s error, rather than his own,

cannot logically contribute to the deterrence of Fourth

Amendment violations” (id. at 22 (footnote omit-

ted)). Accordingly, the Court concluded that “the

marginal or nonexistent benefits produced by sup-

pressing evidence obtained in objectively reasonable

reliance on a subsequently invalidated search warrant

cannot justify the substantial costs of exclusion” (/d.

t 22-23). See Sheppard, slip op. 5-8; see also Mich-

1gan v. DeFillippo, 443 U.S. 31, 37-38 (1979)

The principles set forth in Leon and Sheppard are

fully applicable to this case. Just as a search or an

arrest warrant can authorize a police officer to enter

and search the residence of a probationer (see, e.g.,

Payton v. New York, 445 U.S. 573 (1980) ), the Cali-

fornia courts have long held that the “consent-to-

search” clause involved here, which authorized any

peace officer to enter and search respondent’s resi-

dence, may be imposed by the courts as a condition

of probation and is valid under the Fourth Amend-

ment. See, e.g., People v. Mason, 5 Cal. 3d 759, 488

P.2d 630, 97 Cal. Rptr. 302 (1971), cert. denied,

405 U.S. 1016 (1972).* In both cases, it is the re-

'S Under California law, probation orders commonly contain

a provision, such as the one here, requiring probationers to

submit to warrantless searches “ ‘whenever requested to do

so’”’ by a probation officer “ ‘or any law enforcement officer.’ ”

See, e.g., People v. Mason, 5 Cal. 3d at 762, 488 P.2d at 631,

97 Cal. Rptr. at 303. The constitutionality of such a con-

dition in California is “beyond dispute” (5 Cal. 3d at 764,

488 P.2d at 632, 97 Cal. Rptr. at 304). See also 3 W. La-

Fave, Search and Seizure § 10.10, at 422-423 (1978) (not-

ing that “there is considerable authority” that courts may

validly impose warrantless search provisions in probation

orders). However, there must be reasonable grounds to “trig-

ger” a search, and any resulting search must be conducted in

a Patrggnnenenen manner. See United States v. Johnson, 722 F.2d

5, 527-528 (9th Cir. 1983) ; People v. Guerrero, 85 Cal. App.

3d 572, 581-582, 149 Cal. Rptr. 555, 560 (1978): People v.

Kasinger, 57 Cal. App. 3d 975, 978, 129 Cal. Rptr. 483, 485

(1976). The reports of gunfire coming from respondent's

property provided reasonable grounds here. See People v.

Britton, 156 Cal. App. 3d 689, 696, 202 Cal. Rptr. 882, 887

(1984).

Moreover, California law does not require that it be a

probation officer who conducts the search of a probationer.

See, e.g., People Vv. Mason, supra; People v. Palmquist, 123

sponsibility of a judicial officer to determine whether

an intrusion on a person’s privacy is justified and, if

so, to issue an order, whether in the form of a war-

rant or a judgment of probation, comporting with

Fourth Amendment requirements. In both cases, a

police officer cannot reasonably be expected to ques-

tion the judicial officer’s judgment that the order is

legally sound. See Leon, slip op. 21-22. And in both

eases, once the order is entered, “ ‘there is literally

nothing more the policeman can do in seeking to

comply with the law.’” Jd. at 22 (citation omit-

ted). Accordingly, there is no material difference for

present purposes between a search warrant issued by

a magistrate and a consent-to-search clause imposed

as a condition of probation in the sentence handed

down by a trial court. Cf. Guick v. United States,

Cal. App. 3d 1, 7-8 & n.3, 176 Cal. Rptr. 173, 177 & n.3 (1981).

Compare United States v. Consuelo-Gonzalez, 521 F.2d 259,

262-266 (9th Cir. 1975) (en banc) (construing Federal Pro-

bation Act, 18 U.S.C. 3651, as imposing on probation officers

the primary responsibility for conducting searches of proba-

tioners). Nor, under California law, is the “legality of a

probation search * * * determined by the relationship, or lack

thereof, of the probation offense to the conduct relied upon to

justify the search.” People v. Constancio, 42 Cal. App. 3d 533,

539, 116 Cal. Rptr. 910, 913 (1974). At most, it is sufficient

that officers perceive the existence of “circumstances indicat-

ing that in connection with effective probation supervision a

search is advisable” (People v. Guerrero, 85 Cal. App. 3d at

582, 149 Cal. Rptr. at 560; People v. Kasinger, 57 Cal.

App. 3d at 978, 129 Cal. Rptr. at 484-485 ; People v. Bremmer,

30 Cal. App. 3d 1058 1065-1066, 106 Cal. Rptr. 797, 802

(1973) ) and that they announce their authority and purpose

prior to entering a residence to conduct a search pursuant to

a probation order (see People v. Freund, 48 Cal. App. 3d 49,

57-58, 119 Cal. Rptr. 762, 767-768 (1975) ).

771 F.2d 750, 757-758 (3d Cir. 1985) (summons

issued in good faith reliance on a Fed. R. Crim. P.

6(e) disclosure order later held to be defective) ;

People v. Barbarick, 168 Cal. App. 3d 731, 214 Cal.

Rptr. 322, 328 (1985) (good faith reliance on a

consent-to-search clause in a release-on-recognizance

order; “[h]ere a detached and neutral magistrate

issued a facially valid search condition” )."

The officers’ reliance on the consent-to-search clause

contained in the probation order was also objectively

reasonable. Here, as in Sheppard, the prosecutor

and the police officers “took every step that could

reasonably be expected of them” (Sheppard, slip op.

6). The prosecutor sought to clarify respondent’s

status by filing a motion with the judge who had im-

posed his sentence. She served the motion on respond-

ent’s attorney, who appeared at the hearing and who

did not object to going forward in respondent’s ab-

sence. The officers were advised that the state court

had ruled that respondent was on probation and that

he was forbidden from possessing firearms during his

probationary period. Even if the hearing was invalid

because respondent had not been personally notified

of its occurrence, the officers were not responsible for

respondent’s absence from the proceeding or for his

failure to receive notice, and neither the officers nor

the prosecutor could reasonably be charged with

'* As the California Court of Appeals explained in People

v. Bremmer, supra, a challenge to the reasonableness of a

search conducted pursuant to the terms of a probation order

“is analogous to that arising from a claim that a search

warrant has been issued by a magistrate on less than probable

cause or an arrest warrant on less than reasonable cause. Our

present concern is with judicial power rather than police

power.” 30 Cal. App. 3d at 1062-1063, 106 Cal. Rptr. at 800.

knowledge that the hearing was invalid for the rea-

son given by the court of appeals. In that respect,

this case is not materially different from Sheppard,

in which the Court refused to apply the exclusionary

rule because of the magistrate’s technical mistake in

preparing a search warrant. Finally, both the state

municipal court and the district court in this case

(App., infra, 17a) ruled that respondent was in fact

on probation, which is powerful evidence that the offi-

cers’ actions were objectively reasonable. See Leon,

slip op. 27.

b. The court of appeals held that Leon was inap-

plicable because “the search was a subterfuge for

conducting a criminal investigation” (App., infra,

12a) and the participants “apparently had a motive

of avoidance of Fourth Amendment requirements”

(id. at 18a). That conclusion is both legally and fac-

tually erroneous.

As a legal matter, the court of appeals ignored the

fact that the California law enforcement officers were

acting not only in accordance with the terms of a

facially valid probation order, but also consistently

with well-settled California law regarding the execu-

tion of probation searches under consent-to-search

clauses. Although the court of appeals charged the

officers with conducting a bad faith, pretextual search,

the California courts have long held that consent-to-

search clauses can validly serve as the basis for pro-

bation searches, and that a probation officer need not

be a party to the search. See, e.g., People v. Mason,

supra; People v. Palmquist, 123 Cal. App. 3d 1, 7-8,

176 Cal. Rptr. 178, 177 (1981).’° Because the officers

1° The cases on which the court of appeals relied in criti-

cizing the state authorities (App., infra, 12a) stated that there

must be a reasonable factual predicate for conducting a pro-

were acting consistently with the terms of the proba-

tion order and settled state law construing such

orders, the search cannot fairly be considered a

“subterfuge” conducted in bad faith.

There is also no factual basis for the court’s con-

clusion that the officers used the search as a subter-

fuge for a criminal investigation. Indeed, based on

the same record the district court found that the off-

cers acted in good faith (App., infra, 18a). The un-

disputed evidence showed that the sole purpose for

the search was to determine whether respondent pos-

sessed a firearm in violation of the condition of his

probation (5/21/81 Tr. 49, 72, 738, 77, 82, 96-100).

The court of appeals also failed to identify the crime

that was the supposedly true purpose for the search,

and the record does not suggest what that offense

was. It was not a crime for respondent to own a

firearm, since he had not been convicted of a felony.

Pages 2-3, supra; see 18 U.S.C. 922(h)(1); 18

U.S.C. App. 1202(a)(1). It was also not a crime for

a person to discharge a weapon in the rural area

where respondent lived (5/21/81 Tr. 46). Only the

conditions of respondent’s probation condition made

his possession of a firearm relevant. And the officers

had no reason to suspect that respondent had a nar-

cotics laboratory in his basement; the officers inad-

vertently discovered the equipment in plain view

while searching for weapons (id. at 33-39).

bation search. See United States v. Johnson, 722 F.2d at

927-528. Cf. United States v. Jarrad, 754 F.2d 1451, 1454

(9th Cir. 1985), cert. denied, No. 84-6659 (Oct. 7, 1985)

(parole search); Latta v. Fitzharris, 521 F.2d 246, 251-252

(9th Cir.) (en banc), cert. denied, 423 U.S. 897 (1975)

(same). In light of the information possessed by the law

enforcement officers about the gunfire coming from respond-

ent’s property, the probation search in this case would not

run afoul of any of those cases.

Finally, the facts on which the court of appeals

relied in concluding that the search was a subterfuge

(App., infra, 12a), are entirely inconsequential. That

respondent had not been assigned a probation officer

and had not received any counseling or supervision

at most may suggest that the state had not yet made

any active effort towards rehabilitating respondent,

but it does not mean that the search was unrelated to

the purposes of probation. The protection of the pub-

lic is an important goal of the California probation

process. See, e.g., People v. Mason, 5 Cal. 3d at 764,

488 P.2d at 632, 97 Cal. Rptr. at 304; People v. Brit-

ton, 156 Cal. App. 3d 689, 697, 202 Cal. Rptr. 882,

887 (1984). Determining whether respondent had

firearms was directly related to this aspect of proba-

tion. After all, he had recently been convicted of

brandishing firearms, and the judge who had im-

posed his probation had made clear at the time of

sentencing his concern that respondent not possess

firearms.”

For much the same reason, it is immaterial that

the prosecutor did not inform the sentencing judge at

the February 27 hearing of the reports of gunfire on

respondent’s property or her intent to search his

residence for weapons. Given the judge’s stated con-

cern that respondent not possess weapons, this in-

formation surely would not have dissuaded the judge

from granting the prosecutor’s motion for clarifica-

tion. And the prosecutor informed respondent’s coun-

‘6 Before imposing sentence, the state trial court com-

mented that “!w]hat really scares me, Mr. Merchant, in my

role in protecting the community|[,] is that you are just that

close in certain instances to violence being committed, and you

are just not a man that should have or be near any guns at all”

(11/14/80 Tr. 6-7 (E.R. 53-54) ).

sel before that hearing began of those reports (page

5, supra), so it is clear that she was not attempting

to keep any information from respondent. Accord-

ingly, even if the search could not be justified on the

basis of the consent-to-search clause in respondent’s

sentence, the evidence seized from his residence by

the officers during a search undertaken in reasonable

reliance on the state court’s February 27 order and

the governing principles of state law should not be

subject to suppression.*’

CONCLUSION

The petition for a writ of certiorari should be

granted.

tespectfully submitted.

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

PAUL J. LARKIN, JR.

Assistant to the Solicitor General

SIDNEY M. GLAZER

ROBERT J. ERICKSON

KAREN I. SKRIVSETH

Attorneys

APRIL 1986

17 In Illinois Vv. Krull, cert. granted, No. 85-608 (Mar. 24,

1986), this Court has before it the related question whether

the exclusionary rule requires the suppression of evidence

seized in reasonable reliance on a statute authorizing war-

rantless administrative searches that is later held unconsti-

tutional. However, we do not suggest that the Court should

hold this petition pending the disposition of Krull. The cir-

cumstances there make it unlikely that the Court’s decision

will directly control the disposition of this case, which more

closely resembles the situation in Leon and Sheppard.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 83-1135

D:C. No. 81-109-SW

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

Vv.

DAVID WILLIAM MERCHANT, DEFENDANT-APPELLANT

Appeal from the United States District Court

for the Northern District of California

Hon. Spencer M. Williams, Presiding

[Filed May 14, 1985]

OPINION

BEFORE: MERRILL, FLETCHER, and CANBY,

Circuit Judges.

FLETCHER, Circuit Judge:

David Merchant appeals his conviction for manu-

facturing PCP. He challenges the district court’s

denial of his motion to suppress laboratory equip-

ment and chemical supplies seized by law enforce-

(la)

ment officers during a warrantless search ostensibly

conducted pursuant to a condition of his state proba-

tion. Merchant contends the district court erred in

finding that he was on probation at the time of the

search. We reverse.

I. BACKGROUND

On November 14, 1980, Merchant was convicted in

state court on two counts of brandishing firearms in

violation of Cal. Penal Code §§ 417, 417B (West

1982). The state court suspended imposition of sen-

tence and placed Merchant on three years probation.

As a condition of probation, Merchant was required

to serve eighteen months in jail, twelve months sus-

pended. The court also conditioned Merchant’s proba-

tion on his consent to searches by probation or law

enforcement officers and on the requirement that he

not possess any weapons.

Merchant protested the jail detention as unduly

harsh, and after some discussion, Merchant’s counsel

stated his intention to appeal. The court granted a

stay of the sentence pending the outcome of Mer-

chant’s appeal. No probation officer was ever as-

signed to Merchant’s case.

On February 11, 1981, the assistant district attor-

ney who prosecuted the state action moved for a

clarification or modification of the stay. On Febru-

ary 27, the sentencing judge granted the prosecu-

tion’s motion, stating, “[D]efendant will be rein-

stated on the terms of probation.’”’ Merchant was not

present at the hearing. His counsel was present but

did not object to the motion.

Four days later, the assistant district attorney and

nine state law enforcement officers went to Merchant’s

home to execute a civil judgment and conduct a pro-

bation search. When the officers arrived, Merchant

protested that he was not on probation and would

not give permission to search. The officers permitted

Merchant to phone his attorney, who told the assist-

ant district attorney that Merchant had not received

notice of the sentencing judge’s February 27 order.

Despite the protests of Merchant and his attorney,

the officers conducted a thorough search of the resi-

dence. They found over eighty firearms. They also

found chemical equipment and supplies for manufac-

turing phencyclidine (“PCP”). At this point, the

officers halted the search and obtained a telephonic

search warrant. Thereafter, the officers found other

evidence of PCP manufacturing.

Based on the evidence obtained in the search, a

federal grand jury indicted Merchant for manufac-

turing PCP, 21 U.S.C. § 841(a)(1) (1982), possess-

ing PCC‘ with intent to manufacture PCP, 21 U.S.C.

§ 841(b)(1)(B)(5), and possessing piperidine with

intent to manufacture PCP, 21 U.S.C. § 841(d).

Merchant moved to suppress the PCP evidence

seized in the search of his house. After an eviden-

tiary hearing, the district court denied the motion,

finding that Merchant was on probation at the time

of the search and had been on probation since No-

vember 14, 1980. Alternatively, the court held that

even if Merchant was not on probation, the officers’

reasonable good faith belief that Merchant was sub-

ject to a probation search precluded the application

of the exclusionary rule.

'“PCC” is an abbreviation for 1-piperidinocyclohexanecar-

bonitrile, a Schedule II controlled substance. See 21 C.F.R.

§ 1308.12(f) (2) (.384).

Merchant was tried on stipulated facts on the man-

ufacturing PCP count, found guilty, and sentenced

to ten years imprisonment, a special parole term of

seven years, and a $25,000 fine.

II. DISCUSSION

A. Merchant’s Probation

Whether Merchant was on probation when the

state officers searched his house turns on whether the

state court judge stayed the entire sentencing order

or only that portion imposing a jail term as a con-

dition of probation. The district court held that

Merchant had been on probation since November 14,

1980, because it found that the state judge intended

to stay only the jail sentence. This issue is governed

by state law. See United States v. Johnson, 722 F.2d

525, 527 (9th Cir. 1983) (validity of state probation

condition is governed by state law).

In its November 14 order, the state court sen-

tenced Merchant to a three-year prison term, sus-

pended; a three-year term of probation, effective im-

mediately; and a six-month jail term,* as a condition

of probation.* At that hearing, Merchant and his

* Under California law, when jail detention is ordered as a

condition of probation, the jail term is not regarded as a

sentence in itself, but rather as part of the supervised effort

towards rehabilitation. Petersen v. Dunbar, 355 F.2d 800, 802

(9th Cir. 1966) ; In re Kennick, 128 Cal. App. 2d 959, 963, 180

Cal. Rptr. 731 (1982).

3’ The sentence was as follows:

THE COURT: Well, I am going to impose sentence at

this time. I am going to place the Defendant on three

years of formal probation. As a condition of probation

Defendant is to—will receive a one year jail sentence for

attorney protested the probation order as unduly

harsh. Merchant’s attorney stated, “What I would

like to do, your Honor, I do feel strongly about the

second count so I would like to file a Notice of

Appeal, if I could at this time.” The trial judge

responded, “Yes. The sentence will be stayed pend-

ing your appeal.”

The government contends that when Merchant’s

attorney referred to the “second count,” he was in-

dicating his intention to appeal only the six-month

jail confinement, and when the judge responded that

the sentence would be stayed, he too was referring

only to the jail term. In light of In re Kennick, 128

Cal. App. 3d 959, 180 Cal. Rptr. 731 (1982), we

disagree.

In Kennick, the California Court of Appeal held that

a stay of execution of a judgment stays the entire

judgment, unless the trial court specifies otherwise.

128 Cal. App. 3d at 963. That case, like the one

before us, involved whether a trial judge had stayed

both probation and a jail term or only the latter. The

court concluded that an intention to stay the jail

term by itself cannot be assumed; there must be

violation of 417(b) of the Penal Code. That sentence will

be suspended. The Court will impose a jail sentence of

six months on the violation of Section 417 which sentence

is to be served as a condition of probation which means

there will be a total of eighteen months and twelve months

will be suspended. One of the conditions of probation will

be that the Defendant submit his person, residence or

vehicle to search and seizure at any time of the day or

night by a peace officer with or without a warrant. As

having in the probation report [sic] to participate in a

counseling program as directed by the Probation Officer

and not to possess any firearms during the period of

probation.

‘“‘a specific statement of the trial court to that effect.”

Id.

We do not find any such specific statement in the

record before us. The trial judge stayed “the sen-

tence;’”’ we cannot speculate that he meant to stay

only the jail term. Moreover, at no time from the

November 14 hearing to the date of the search was

Merchant ever assigned a probation officer or re-

quired to report to one. And finally, when the state

court granted the prosecution’s motion for modifica-

tion or clarification of Merchant’s probation terms it

stated that it was “reinstat[ing]” the probation, and

not that it had been in effect all along.

These facts, viewed in light of Kennick, compel us

to conclude that the probationary terms did not go

into effect at the November 14 sentencing. The dis-

trict court’s conclusion to the contrary was error.

We next consider the effect of the state court’s

February 27 order. The court’s stay of execution di-

vested it of jurisdiction to modify the judgment dur-

ing the pendency of the appeal. Kennick, 128 Cal.

App. 3d at 692, but did not divest it of jurisdiction

to revoke the stay of execution, Stuart v. Superior

Court, 94 Cal. App. 3d 182, 184-85, 156 Cal. Rptr.

289, 291 (1979). However, the court’s attempt to

modify the stay was ineffective because Merchant

was not given adequate notice.

When the assistant district attorney moved for a

modification or clarification of the probation terms,

she notified Merchant’s attorney, but did not notify

Merchant. At the motion hearing, Merchant’s attor-

ney was present, but Merchant was not. No waiver

of his presence appears in the record. The motion

argument occurred on a Friday and the search was

conducted just four days later, on Tuesday. During

the interim, the assistant district attorney appar-

ently did not make any effort to contact Merchant,

and Merchant’s attorney did not contact him either.

Merchant had no idea that his probation had been

“reinstated” or that he was subject to a warrantless

search until the officers arrived at his door.

Notice is perhaps the most fundamental of due

process rights. See Morrissey v. Brewer, 408 U.S.

471, 489 (1972) (notice is one of the “minimum re-

quirements of due process’); Groppi v. Leslie, 404

U.S. 496, 502 (1972); Lambert v. California, 355

U.S. 225, 228 (1957); Snyder v. Massachusetts, 291

U.S. 97, 105 (1934); see also Baldwin v. Hale, 68

U.S. (1 Wall.) 223, 233 (1864) (‘Parties whose

rights are to be affected are entitled to be heard; and

in order that they may enjoy that right they must

first be notified.”). The principle of adequate notice

is interwoven throughout our system of criminal jus-

tice. It applies at all stages of a criminal prosecution,

from institution of criminal proceedings, see, e.g.,

Salinas v. United States, 277 F.2d 914, 916 (9th Cir.

1960) (due process requires that an indictment be

sufficiently clear to apprise accused of the crime

charged), to sentencing, see, e.g., Gardner v. Florida,

430 U.S. 349, 358, 362 (1977) (plurality opinion)

(denial of due process to sentence defendant to death

on basis of presentence report he was not allowed to

see).

In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the

Supreme Court held that the loss of liberty entailed in

a probation revocation hearing is a serious depriva-

tion requiring that the probationer be accorded due

process protections. Jd. at 781-82. Although a proba-

tioner is not entitled to the full panoply of trial-type

protections, he is entitled to a preliminary probable

cause hearing and a more comprehensive final revoca-

tion hearing. Jd. at 786. The probationer must be

given notice of each hearing and an opportunity to be

heard at each. Z/d.

Several other circuits have concluded, however,

that Gagnon does not apply in the context of a pro-

ceeding to extend probation. These courts have held

that the liberty interest at stake in an extension pro-

ceeding is less significant than in a revocation pro-

ceeding, and, therefore, a preextension hearing is not

a constitutionally mandated right. See, e.g., Forgues

v. United States, 636 F.2d 1125, 1127 (6th Cir.

1980) (per curiam); United States v. Cornwell, 625

F.2d 686, 688 (5th Cir.), cert. denied, 449 U.S. 1066

(1980): United States v. Carey, 565 F.2d 545, 547

(8th Cir. 1977) (per curiam), cert. denied, 435 U.S.

953 (1978); Skipworth v. United States, 508 F.2d

598, 601 (3d Cir. 1975).*

We deal here with neither a revocation nor an ex-

tension of probation, but with what amounted to an

initial imposition of probation. The liberty interests

at stake here are not as significant as those involved

in a revocation proceeding, for the February 27 order

did not make Merchant immediately subject to in-

earceration. But they are considerably more signifi-

cant than those involved in an extension proceeding,

for Merchant was not subject to any restrictions on

his liberty prior to the court’s order.

The terms of Merchant’s probation imposed sub-

stantial burdens on his fourth amendment rights to

be free from unreasonable searches and seizures. The

4 However, in three of these four cases, the courts, under

their supervisory powers required notice and hearings for all

future extensions of probation. Forgwes, 636 F.2d at 1127;

Cornwell, 625 F.2d at 689; Skipworth, 508 F.2d at 602-03.

terms of probation required Merchant to submit to

searches at any time, by any law enforcement officer,

with or without probable cause. Such terms impose a

substantial burden on a fundamental right. This was

a sufficient intrusion upon Merchant’s liberty to re-

quire that he be given notice.

We find support for our conclusion in Wheeler v.

United States, 640 F.2d 1116 (9th Cir. 1981). There,

the trial court issued an order restricting Wheeler’s

correspondence privileges in prison, in order to pro-

tect several trial witnesses from harrassment. Wheeler

was not notified that the order had been sought, was

not present when the court issued the order, and was

not formally notified of the order until four years after

it was issued. Jd. at 1118. This court concluded that

the order imposed a substantial burden on Wheeler’s

first amendment rights, and, therefore, due process

required that “‘[u]nless the circumstances were un-

usually compelling, the trial court should have held

a hearing, with prior notice to Wheeler, before it is-

sued the order.” Jd. at 1122 (footnote omitted).

The government contends that because Merchant’s

attorney was present at the February 27 hearing, “‘it

was certainly reasonable... to infer that [Merchant]

was aware” of the court’s order before the search was

conducted. We cannot be satisfied with inference of

notice; we must have proof of it. Merchant’s counsel

admiis that he did not notify Merchant. Nor does the

government assert that state authorities made any ef-

forts to notify Merchant directly.

The right to notice under the fifth and sixth amend-

ments is personal to the defendant. See Faretta v.

California, 422 U.S. 806, 819 (1975); cf. Wheeler,

640 F.2d at 1118 & n.3, 1122-23 (notice and hearing

required before prisoner’s correspondence privileges

restricted even though prisoner probably was aware

10a

of restriction shortly after it was imposed). More-

over, a defendant has a constitutional right to be

present at all stages of a criminal proceeding against

him. See Bustamonte v. Eyman, 456 F.2d 269, 272-

73 (9th Cir. 1972). This right is protected by rule

in federal courts, Fed. R. Crim. P. 43, and by statute

in California, Cal. Penal Code § 1043 (West 1970 &

1984 Supp.). Merchant was not present at the Feb-

ruary 27 hearing, the record does not show any

waiver, and the court did not even inquire about his

absence. Notice to and the presence of Merchant’s

attorney does not suffice.’

Finally, we find no reasons why Merchant could not

have been notified of the motion or the February 27

hearing. Merchant had not absconded after the initial

sentencing: the state authorities knew exactly where

he was. The state could have contacted Merchant to

tell him of the court’s order, or could have postponed

the search until it could be sure that Merchant had

received notice from the court.

On the facts before us we conclude that Merchant

was not on probation on March 3, when the state au-

thorities arrived to search his home. The absence of

notice to Merchant renders the February 27 order a

nullity.

B. Reasonableness of Officers’ Conduct

The district court alternatively held that even if

Merchant was not subject to probation on March 3,

5 We need not decide whether Merchant’s presence was

required at the February 27 hearing, because we decide that

the failure to give him notice of that hearing invalidated the

order. We allude to the constitutional right of a defendant to

be present at proceedings against him as support for our

conclusion that the defendant, not merely his counsel, must be

given notice.

lla

the search conducted on that date was still valid be-

cause the state authorities relied in good faith on the

state court’s February 27 order. We disagree.

The Supreme Court established the so-called “good

faith” exception to the exclusionary rule in United

States v. Leon, 104 S. Ct. 3405 (1984). Leon held

that a court should admit all evidence obtained by an

officer acting in reasonable reliance on a search war-

rant ® issued by a neutral and detached magistrate.

The standard is objective reasonableness; subjective

good faith is not enough. Jd. at 3421 & n.23.' Ap-

plying de novo review, United States v. Hendricks,

743 F.2d 653, 656 (9th Cir. 1984), cert. denied, 105

S.Ct. 1362 (1985), we conclude that the officers’ con-

duct in the present case was not objectively reason-

able.

The facts show that none of the law enforcement

officers reasonably could have believed that the search

* In this case, the initial entry and search were warrantless.

In analyzing this case under Leon, we do not suggest that the

“good faith’ exception applies beyond the warrant context.

Courts have rejected extension of the good faith rule to war-

rantless searches. See, e.g., United States v. Morgan, 743 F.2d

1158, 1165 (6th Cir. 1984) ; United States v. Rule, 594 F. Supp.

1223, 1238-39 (D. Maine 1984) ; see also Note, Leading Cases

of the 1983 Term, 98 Harv. L. Rev. 87, 115-18 (1984). Be-

cause we decide here that the state authorities’ conduct was

not objectively reasonable, the evidence should be suppressed

regardless of whether a Leon good-faith analysis is applicable.

7 Leon has been applied retroactively in this circuit, albeit

without discussion of the retroactivity issue. United States

v. Hendricks, 743 F.2d at 653, 656 (9th Cir. 1984). The

Eighth Circuit has considered the issue and expressly decided

that Leon should be given retroactive effect. United States v.

Sager, 743 F.2d 1261, 1263-65 (8th Cir. 1984), cert. deniec,

105 S. Ct. 1196 (1985).

12a

related to the interests of effective probation super-

vision. See United States v. Johnson, 722 F.2d 525,

528 (9th Cir.-1983). There is no showing that the

state ever made any efforts toward rehabilitating

Merchant. He did not receive supervision or counsel-

ing. In fact, he was never even assigned a probation

officer.

The search was conducted because the assistant dis-

trict attorney had received reports of gunfire on Mer-

chant’s property. After receiving the reports, she did

not contact the probation department but instead filed

the motion for clarification or modification of Mer-

chant’s probation. She did not inform the court of

Merchant’s suspected activity, nor of her earlier con-

versations with law enforcement officers about con-

ducting a search of Merchant’s residence if the pro-

bation search condition was in effect.* The search

was hastily organized shortly after the order was

issued.

These facts strongly suggest that the search was

a subterfuge for conducting a criminal investigation.

We have condemned the practice of using a search

condition imposed on a probationer as a broad tool for

law enforcement. See Johnson, 722 F.2d at 527;

Latta », Fitzharris, 521 F.2d 246, 251-52 (9th Cir.)

(en banc), cert. denied, 423 U.S. 897 (1975); ef.

United States v. Jarrad, 754 F.2d 1451, 1453-54 (9th

Cir. 1985) (parole search upheld because parole offi-

cer was not acting as a “stalking horse” for police

8 In the absence of an assigned probation officer, it was the

sentencing judge who retained the power to require super-

vision of the probationer, to punish violations of the condi-

tions, and to revoke probation. Jn re Osslo, 51 Cal. 2d 371,

334 P.2d 1 (1958).

l3a

investigation). Because the search here clearly was

not a genuine attempt to enforce probation but ap-

parently had a motive of avoidance of Fourth Amend-

ment requirements, it is the type of law enforcement

conduct that ought to be deterred. Consequently, the

exclusionary rule applies with full force. See Leon,

104 S.Ct. at 3419.° Therefore, the laboratory equip-

ment and chemical supplies seized during the search

must be suppressed.”

®The government additionally argues that two California

cases, People v. Washington, 131 Cal. App. 3d 434, 186 Cal.

Rptr. 3 (1982), and People v. Tellez, 128 Cal. App. 3d 876,

modified on other grounds, 129 Cal. App. 3d 722, 180 Cal.

Rptr. 579 (1982), support their argument that the conduct in

this case falls within the good faith exception to the exclu-

sionary rule. We disagree.

In Tellez and Washington, officers conducted probation

searches after the probations had ended, but believing that

they were still in effect. The courts admitted the evidence

seized on the basis that the officers reasonably had relied on

representations of probation officers and of the probationers

themselves that the probations were still in effect.

We have a different situation. Merchant and his attorney

loudly protested that probation was not in effect. Merchant

had never been on probation and he had no reason to believe

that he was on probation on March 3. The state authorities

not only took no steps to notify Merchant of the “reconsidera-

tion” of his probation or the “reinstatement” order, they engi-

neered the “reinstatement” in order to conduct the search.

1 The government has admitted that the search warrant,

secured after the initial warrantless entry, was premised on

information obtained as a result of the initial entry. There-

fore, the evidence seized pursuant to the warrant was a

“fruit” of the original illegality, and all the evidence must be

suppressed. Wong Sun v. United States, 371 U.S. 471, 484

(1963).

l4a

III. CONCLUSION

We conclude that Merchant was not on probation

on March 3 when the state officers came to search his

house because he was not given notice of the Febru-

ary 27 hearing at which his probation ostensibly was

“reinstated.” Additionally, we conclude that the offi-

cers’ conduct was not objectively reasonable. There-

fore, the evidence seized in the search must be sup-

pressed.”

REVERSED.

11 We need not reach Merchant’s alternative argument, that

the consent to search clause of his probation violates the

fourth amendment.

lda

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT

OF CALIFORNIA

CR No. 81-0109 SW (SJ)

UNITED STATES OF AMERICA, PLAINTIFF

VS.

WILLIAM DAVIDSON MERCHANT

and CLEO L. MAROHN, DEFENDANTS

[Filed Oct. 28, 1981]

ORDER DENYING DEFENDANTS’

MOTION TO SUPPRESS

Defendants’ motion to suppress contests the validity

of a warrantless search of their residence on March

3, 1981 as well as other subsequent searches of their

property and belongings. The government claims that

the search was valid under the terms of probation im-

posed on defendant Merchant in a prior state proceed-

ing. In addition, they claim they had authority to

enter the residence to execute a civil levy in connec-

tion with prior judgment held against defendant Mer-

chant. An evidentiary hearing on this matter was

held on October 20, 1981. For the reasons outlined

below, the court hereby denies defendants’ motion.

16a

In 1980, defendant Merchant was convicted on two

counts of brandishing firearms. As to count one, the

court imposed a one year suspended sentence. As to

count two, the court imposed a six month jail term.

In addition, defendant Merchant was placed on three

years probation on the condition that he “submit his

person, residence or vehicle to search and seizure at

any time of the day or night by a peace officer with

or without a warrant.”

At the sentencing hearing held on November 14,

1980 defendant claimed that a jail sentence would

cause him severe financial hardship. While fearful

of the potential danger defendant posed to the public,

it appears the court was willing to stay imposition

of the jail term to give defendant a chance to enter

a work furlough program. In addition, it appears

that the court stayed the sentence pending defend-

ant’s appeal of the conviction on the second count.

The main dispute between the parties is whether the

stay applied to the jail sentence alone or to both the

jail sentence and the probation.

Between the date of the sentencing hearing and

February 1981, the authorities received a’ number of

reports concerning possible probation violations at de-

fendant Merchant’s residence. In February, the Dis-

trict Attorney filed a Motion for Clarification /Modifi-

cation of the sentencing to prevent any disagreement

over whether defendant Merchant was under proba-

tion. At the hearing held on the motion, defendant

Merchant did not appear, but his attorney, Mr. Foster

did. Mr. Foster did not object to the motion and the

court therefore granted it.

Five days later, the authorities conducted the

search of defendants’ residence. A number of guns

l7va

were found at the residence, in violation of the terms

of the probation. In addition, during this and subse-

quent searches, the police seized a number of illicit

drugs and drug manufacturing supplies and equip-

ment.

The court disagrees with the arguments of defend-

ants and finds that the stay originally granted applied

only to the count carrying the jail sentence. A read-

ing of the entire transcript from the sentencing hear-

ing makes this abundantly clear. The trial court

judge was obviously deeply concerned about the poten-

tial danger defendant Merchant posed. He wanted to

ensure that Merchant would not have access to guns

in the near future. The stay of the jail term was

granted only because of the immediate economic hard-

ship it might pose to the defendant and so the second

count of the conviction could be appealed. In addi-

tion, the record clearly indicates that the defendant

and his lawyer, Mr. Foster were concerned only with

an immediate stay of the jail sentence. There was no

objection to the term or conditions of the probation.

The fact that the District Attorney sought a clarifi-

cation or modification of the sentence does not change

what happened at the hearing. Whether the judge

felt he was clarifying or modifying the sentence im-

posed is admittedly not entirely clear from the brief

transcript of the hearing. This lack of clarity is sim-

ply not enough, however, to challenge the conclusion

that defendant Merchant was under probation from

November 14th on. Since the court finds that preba-

tion for defendant Merchant began in November, it

need not address the question of whether his absence

from the February 27th hearing nullifies that pro-

ceeding.

18a

Assuming arguendo that defendant was not under

the terms of the probation at the time of the search,

it is clear that at least from February 27th on, the

law enforcement personnel involvea and, for that mat-

ter, defendant’s attorney Mr. Foster, all held a good

faith belief that they had the authority to make a

warrantless search of defendant’s residence based on

the trial court's ruling on the motion for clarification

or modification. A number of recent cases hold that

the exclusionary rule does not apply where evidence

“is discovered by officers in the course of actions that

are taken in good faith and in the reasonable, though

mistaken belief that they are authorized.” United

States v. Williams, 622 F.2d 830, 840 (5th Cir. 1980),

cert. denied, 101 S.Ct. 946 (1981). Under this stand-

ard then, defendants’ motion to suppress would be

defeated.

II]

The court therefore denies defendants’ motion in

so far as it applies to the initial search of defendants’

residence. The court also finds that the subsequent

searches of defendants’ residence and other property

conformed to the requirements of the Fourth Amenda-

ment and are therefore not subject to the Exclusion-

ary Rule.

For the reasons given, and for the good cause

appearing, IT IS HEREBY ORDERED that de-

fendants’ motion to suppress be DENIED.

DATED: 10-28-81

s/ Spencer Williams

United States District Judge

19a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 83-1135

LINITED STATES OF AMERICA, PLAINTIFF-APPELLEE

US.

DAVID WILLIAM MERCHANT, DEFENDANT-APPELLANT

(Filed Jan. 13, 1986]

ORDER

Before: MERRILL, FLETCHER and CANBY, Cir-

cuit Judges

The panel in this case voted to deny the petition

for rehearing, and to deny the petition for rehearing

en banc.

The full court has been advised of the en banc sug-

gestion and no judge of the court has requested a vote

on it. Fed. R. App. P. 35(b).

The petition for rehearing is denied and the sug-

gestion for rehearing en banc is rejected.

20a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 83-1135

DC No. Cr 81-109-1 SW

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

US.

WILLIAM DAVIDSON MERCHANT,

DEFENDANT-APPELLANT

[Filed May 14, 1985]

JUDGMENT

Appeal from the United States District Court

the Northern District of California (San Jose)

THIS CAUSE came on to be heard on the Tran-

script of the Record from the United States District

Court for the Northern District of California (San

Jose) and was duly submitted.

ON CONSIDERATION WHEREOF. It is now

here ordered and adjudged by this Court, that the

judgment of the said District Court in this Cause be,

and hereby is Reversed.

Filed and entered May 14, 1985.

2la

APPENDIX E

MUNICIPAL COURT OF THE

SANTA CRUZ COUNTY

JUDICIAL DISTRICT

COUNTY OF SANTA CRUZ,

STATE OF CALIFORNIA

No.

PEOPLE OF THE STATE OF CALIFORNIA, PLAINTIFF

Us.

DAVID WILLIAM MERCHANT, DEFENDANT

REPORTER’S TRANSCRIPT OF PROCEEDINGS

COURTHOUSE ANNEX,

WATSONVILLE, CALIFORNIA

FEBRUARY 27, 1981

BEFORE THE

HONORABLE JOHN A. MARLO, JUDGE

APPEARANCES

For the People:

PATRICIA BAZAR, ESQ.,

Deputy District Attorney

For the Defendant:

SAMUEL FOSTER, ESQ.,

Attorney at Law

Reported by:

CORINNE M. KAITZ

Shorthand Reporter

Case No. CR 15714

aaa

Watsonville, California February 27, 1981

PROCEEDINGS

THE COURT: David Merchant, CR 15714. Mr.

Foster is present. The Defendant is not present.

MR. FOSTER: I would state that I do agree on

the first count. My appeal is very weak and I would

agree that the motion is well taken as far as proba-

tion is concerned. .

THE COURT: Court will grant the motion for

clarification. Defendant will be reinstated on the

terms of probation.

MS. BAZAR: Including no guns?

THE COURT: The entire probation order that

he signed.

MS. BAZAR: Fine, Your Honor.

THE COURT: He doesn’t have to report for con-

finement yet.

COUNTY OF SANTA CRUZ)

STATE OF CALIFORNIA )

I, CORINNE M. KAITZ, a Shorthand Reporter in

and for the State of California, do hereby certify:

That I am the Reporter, duly appointed and sworn

who reported the above and foregoing proceedings in

the matter entitled PEOPLE OF THE STATE OF

CALIFORNIA, Plaintiff, vs. DAVID WILLIAM

MERCHANT, Defendant, at the time and place first

therein mentioned:

That I reported said proceedings fully and cor-

rectly, to the best of my ability, and the foregoing

pages numbered 1 to 2, inclusive, are a full, true,

complete and correct transcription of my shorthand

notes taken at said time and place, prepared under

my direction and supervision; and that the said

pages constitute a full, true, complete and correct

statement of said proceedings then and there had.

Dated this

day of March, 1981.

CORINNE M. KAITZ

Shorthand Reporter

vw GO. S&S. GOVERNMENT PRINTING OFFice; 1966 491507 20174

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.