MEMORANDUM*

Michael R. Martin (Martin) appeals from the district court's denial of his motion to suppress evidence found during a search, pursuant to a probation search clause, of his car and apartment. Appellant contends the search is in violation of the Fourth Amendment and that the evidence must be excluded. We reverse.

Martin was convicted of a misdemeanor in 1985. He was placed on three years probation and as one condition, consented to

submit person, vehicle, place of residence or area over which he had control to search and seizure of narcotics, drugs or other contraband at any time of day or night, with or without search warrant as directed by peace officer or Probation officer.

On May 11, 1987, Martin was arrested by Officer Silas of the San Francisco Police Department. That case was eventually dismissed, but during the arrest procedures Officer Silas discovered that Martin had assented to the search clause as part of his probation. Following the arrest, Officer Silas informed fellow officers of the Ingleside Police Station that Martin was selling cocaine in that precinct and that he was subject to the search condition.

On June 17, 1987, Officer Maxwell of the Ingleside Station observed Martin in a 1977 Porsche parked in an area known for narcotics trafficking, with a group of young people crowded around the car. As Officer Maxwell approached Martin, the youths, some of whom Maxwell recognized as suspected drug dealers, fled. Asked why the youths had been around the vehicle, Martin stated that they were listening to music. No music was playing in the Porsche. Officer Maxwell then requested to search the vehicle, citing the search clause. Martin said, "Sure. Go ahead." Maxwell observed part of a brown paper bag extruding from the front hood compartment (the vehicle's engine being in the rear). He asked Martin what was in the bag. Martin stated he did not know. Maxwell then asked Martin if he could look in the trunk. Martin said, "Go ahead." Maxwell requested Martin to open the trunk. Martin complied without voicing a protest. In the trunk, Maxwell found approximately 110 grams of cocaine. Martin was arrested at approximately 5:30 P.M. The vehicle was registered to Martin's brother, Lance Martin.

Officer Silas met Maxwell and Martin at the Ingleside station after the arrest. Silas told Martin that, under the authority of the search clause, he was going to search Martin's residence. Martin occupied an apartment in San Leandro, the lease of which was signed by Martin's father and brother. At approximately 12:30 A.M. on June 18, 1987, police searching the apartment uncovered an additional quantity of cocaine and an unregistered "sawed-off" shotgun. In the apartment were mail and documents addressed to Martin. Although Martin did not consent to the search of the apartment, he was present and voiced no objection. Martin was indicted for possession of cocaine with intent to distribute, 21 U.S.C. Sec. 841(a)(1), and for the unlawful possession of a "sawed off" shotgun, 26 U.S.C. Sec. 5861(d).

Having waived a jury trial, Martin was tried by the district court. At trial, Martin moved for suppression of the cocaine and shotgun found during the searches. The court denied the motion. The court found the police had reasonable cause to search the Porsche, pursuant to the probation search clause, and that the apartment search was a lawful "probation search." Martin was convicted and sentenced to 10 years imprisonment. He timely appeals.

The district court's conclusion of the validity of the probation search clause is subject to de novo review. United States v. Duff, 831 F.2d 176, 177 (9th Cir.1987). The findings of fact in a suppression hearing are reviewed under a clearly erroneous standard. United States v. Feldman, 788 F.2d 544, 550 (9th Cir.1986), cert. denied 479 U.S. 1067 (1987).

Martin argues the district court erred in denying the motion to suppress. He contends that reasonable suspicion and consent of the probation officer was required before a warrantless search of the Porsche and apartment could be undertaken. Additionally, he challenges the finding that he had control of the Porsche and of the apartment, and thus contends the evidence was insufficient to convict him.

At the time his apartment was searched, Martin was in custody. Although he voiced no objection, Martin did not consent to the search. The officer's justification for searching the apartment was the consent form signed by Martin at the time of his 1985 misdemeanor conviction. Ordinarily, a warrantless search is presumed unreasonable "subject only to a few specifically and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). "[W]arrants are generally required to search a person's home or his person unless 'the exigencies of the situation' makes the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment." Mincey v. Arizona, 437 U.S. 385, 393-394 (1978) (citations omitted).

The prosecution contends that the probation search clause authorized the police to search Martin's apartment without either a warrant or the existence of exigent circumstances. We disagree. As we stated in United States v. Consuelo-Gonzalez, 521 F.2d 259, 266 (9th Cir.1975) (en banc), with respect to the Federal Probation Act, "searches of probationers not otherwise in compliance with the usual standards of the Fourth Amendment [must] be by, or under the immediate and personal supervision of, probation officers." We cannot accept the conclusion that the Fourth Amendment protections are not applicable to state probation officers' searches. While the probation officer need not actually be physically present at the site of the search, the probation officer must be notified and must authorize the intended search of a home. United States v. Richardson, 849 F.2d 439, 442 (9th Cir.1988), cert. denied 488 U.S. 866 (1988), (upholding a probation search by police because the probation officers were notified prior to and authorized the search of the defendant's home). In United States v. Duff, 831 F.2d at 179, we stated, "the search must be reasonable and must be based upon the probation officer's reasonable belief that it is necessary to the performance of her duties." (Emphasis added).

The search of the apartment was unreasonable. As this court stated in United States v. Merchant, 760 F.2d 963, 969 (9th Cir.1985), cert. granted 478 U.S. 1003 (1986), cert. dismissed 480 U.S. 615 (1987):

We have condemned the practice of using a search condition imposed on a probationer as a broad tool for law enforcement. Because the search here clearly was not a genuine attempt to enforce probation but apparently had a motive of avoidance of Fourth Amendment requirements, it is the type of law enforcement conduct that ought to be deterred. Consequently, the exclusionary rule applies with full force. (Citations omitted.)

In the instant case, the police did not search Martin's apartment in order to enforce probation, but rather to gather evidence after he was already under arrest. In the six hour period between the arrest and the apartment search, the police neither contacted Martin's probation officer for authorization to search nor attempted to obtain a search warrant. We cannot distinguish such behavior from that condemned in Merchant.

Martin also challenges the search of the Porsche. The district court found the probation search of the car was legitimate and that the police had reasonable suspicion to search. The court also concluded that Martin gave consent to the car search. Although the consent matter is disputed, we cannot say that such finding of fact is clearly erroneous. Under these circumstances, we sustain the validity of the seizure of the contraband found in the Porsche. Martin claims that this proof was insufficient to show his control over the substance in the car which was not registered to him and therefore the evidence is insufficient to support his conviction on that count. As we are remanding this case, he may present that argument to the district court.

We conclude the apartment search was neither justified as a probation search nor made pursuant to a valid search warrant. As it constituted a violation of the Fourth Amendment, the evidence seized at the apartment was not admissible. The district court's ruling thereon is reversed and that evidence is ordered suppressed.

REVERSED and REMANDED.

In United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir.1975) (en banc), we expressly limited our holding to the Federal Probation Act, id. at 262, and expressed no opinion regarding the extent to which the states constitutionally may impose conditions more intrusive than those which are proper under that Act, id. at 266. See United States v. Cordova, 650 F.2d 189, 190 (9th Cir.1981) (per curiam) (distinguishing Consuelo-Conzalez on this basis), cert. denied, 454 U.S. 1145 (1982). In my view, the consensual nature of the search at issue here distinguishes it from such cases as United States v. Duff, 831 F.2d 176 (9th Cir.1987), and United States v. Merchant, 760 F.2d 963 (9th Cir.1985), cert. dismissed, 480 U.S. 615 (1987). I cannot reconcile the majority's holding with the applicable line of California cases. See People v. Bravo, 43 Cal.3d 600, 738 P.2d 336, 238 Cal.Rptr. 282 (1987) (7-0 decision), cert. denied, 485 U.S. 904 (1988); People v. Mason, 5 Cal.3d 759, 488 P.2d 630, 97 Cal.Rptr. 302 (1971), cert. denied, 405 U.S. 1016 (1972).

I respectfully dissent.