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Case o' The Week: Promises, promises - Franklin, Pleas, Probation & Parole Searches

How much is a D.A.'s promise to stave off the feds worth? Not much -- and even less if the promise isn't in writing. United States v. Franklin,__ F.3d __, 2010 WL 1711497 (9th Cir. April 29, 2010), decision available here.

Players: Decision by Judge Clifton (above left), joined by Judges Alarcón and Kleinfeld.

Facts: Franklin was on ?community custody? in Washington (akin to probation or parole). Id. at *1. He reported that he was homeless, then failed to call his ?Community Corrections Officer? (?CCO?). Id. Franklin?s baby?s mother called the CCO and said he was living in a specific hotel room, and had a gun and ammo. Id. A hotel clerk confirmed that Franklin had rented the room and was staying there; a search revealed the gun. Id. Franklin pleaded guilty in state court pursuant to a plea agreement to unlawful possession of a firearm. Id. In the plea agreement was a handwritten change that stated, ?The sentence holds Mr. Franklin accountable for his actions.? Id. at *4.

Franklin was then brought federal on a felon-in-possession charge. Id. at *1. ?He filed a motion to suppress evidence obtained in the search of the motel room and a motion to dismiss based on the state plea agreement.? Id. at *2. Both motions were denied, and Franklin entered a ?conditional plea? (like Bigfoot, something that is rumored to exist in the N.D. Cal., but with few confirmed sightings).

Issue(s): 1. Search: ?Franklin appeals the denial of his motion to suppress on the ground that officers lacked probable cause to believe that he was residing in the motel room searched without a warrant.? Id. at *1. ?The contested issue is whether the officers had sufficient basis to believe that Room 254 was Franklin?s residence.? Id.

2. Plea Agreement: ?Franklin also argues that the federal charges should have been dismissed because the agreement which led to his guilty plea in state court provided that no federal charges would be pursued.? Id. at *4.

Held: 1. Search: ?There was ample evidence to support the district court?s finding that officers had probable cause to believe that Room 254 was Franklin?s residence at the time of the search. The motion to suppress was properly denied.? Id. at *4.

2. Plea Agreement: ?We agree with the district court that the plea agreement was unambiguous and did not reflect any agreement not to prosecute Franklin on federal charges. Under Clark, that ends the matter, and there is no need or basis for us to consider extrinsic evidence.? Id. at *5.

Of Note: Missing from the opinion is a key, troubling fact: Franklin?s public defender swore in affidavit that the D.A. agreed, in plea negotiations, ?that the federal government would not be pursuing charges out of this case.? 2009 WL 6083056, *9, (Appellant's Opening Brief). That promise, swore the P.D., was reflected in the handwritten change to the plea agreement. Id.

For folks practicing in state court in Trigger Lock districts, Franklin is a real problem and deserves a close look. With the Petite Policy effectively in abeyance, Franklin makes for grim reading.

How to Use: Probation and parole searches are interesting beasts. While the searches for probationers and parolees themselves are subject to much lower Fourth Amendment standards, when these folks are staying at residences belonging to others the Ninth has ?applied a relatively stringent standard in determining what constitutes probable cause that a residence belongs to a person on supervised release.? Id. at *3 (internal citations and quotations omitted). The rationale for this heightened standard is ?at least some concern for the rights of that other person.? Id.

While Franklin has a disappointing result, Judge Clifton is careful in the opinion to acknowledge and explain the different standard that applies when probationers/parolees are staying in someone else?s home. Id. (collecting authority). Keep an eye out for this better Fourth Amendment standard when battling a probation, parole, or supervised release search.

For Further Reading: The Ninth?s involvement with homelessness isn?t limited to affirming the denial of suppression motions. For years Judge Harry Pregerson has been a tireless advocate for the homeless, helping to build shelters, transitional housing, child care centers, and job training centers for folks down on their luck. He was recognized for his half-century of work by the University of California last Friday, when he received the Peter E. Haas Public Service award. See article here.His acceptance speech should be available on-line soon (though that well-edited script bears little resemblance to the spontaneous, inspiring, and hilarious remarks that the Honorable HP actually delivered at Cal.)

Image of the Honorable Richard R. Clifton from http://www.law.asu.edu/?id=1163

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Full post as published by Ninth Circuit Blog on May 03, 2010 (boomark / email).