Unpublished Disposition, 935 F.2d 275 (9th Cir. 1990)

MEMORANDUM^** 

Nowlin appeals the district court's grant of summary judgment against him in his Sec. 1983 action. We affirm.

FACTS

On April 21, 1987, several state officials arrived at Nowlin's property with an inspection warrant issued under the California Code of Civil Procedure Sec. 1822.50 et seq. The officials inspected Nowlin's property for zoning violations and took photographs.

Nowlin was charged in twelve counts for violating the County Building Code and other ordinances. Nowlin moved the criminal court to quash the inspection warrant, but his motion was denied. In addition, Nowlin objected at trial to the introduction of the photographs as the "fruit of an illegal search." The court overruled his objection.

A jury convicted him on nine of the twelve counts. Nowlin was fined and placed on probation. The terms and conditions of probation allowed for subsequent inspections of the property.

On April 20, 1990 and May 4, 1990, state officials returned to inspect Nowlin's property pursuant to the terms of probation. Mr. Nowlin was absent, and his wife did not consent to the search.

Nowlin brought this Sec. 1983 action alleging that the original inspection warrant was invalid and that the probation inspections violated his rights because they occurred without the consent of Mrs. Nowlin. The district court granted summary judgment for defendants.

The court held that Nowlin was precluded from challenging the validity of the inspection warrant because the issue had been determined as part of the criminal proceedings against him. The court also held that Mrs. Nowlin's consent was not required for the probation searches.

DISCUSSION

Nowlin attempts to raise both the preclusion and consent issues on appeal. He also argues that the district judge should have recused himself.

* Nowlin insists that the inspection warrant was invalid. Rulings in a state criminal proceeding, however, are conclusive in a subsequent civil action. Allen v. McCurry, 449 U.S. 90 (1980). Nowlin argues that the district court erred, and preclusion does not apply, because the issue of the warrant's validity was not actually litigated. This argument, however, ignores the uncontroverted facts. Nowlin attempted but failed to have the inspection warrant quashed. His objection at trial to the introduction of photographs as the "fruit of an illegal search" was overruled. His appeals were unsuccessful. The district court did not err in finding no material dispute of fact over the preclusion issue.

II

Nowlin argues that the probation inspections were illegal because he was absent at the time they took place and Mrs. Nowlin did not consent to them. We disagree.

A. Did Mrs. Nowlin's lack of Consent make the Inspections Illegal Per Se?

Nowlin consented to searches of his person and property as a condition of probation. He does not claim that his consent was involuntary or that the probation condition itself was unreasonable. See Griffin v. Wisconsin, 483 U.S. 868, 875 (1987) ("Supervision [of probationers] is a 'special need' of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large.").

California courts interpreting the Fourth Amendment have indicated that permission obtained from an absent joint occupant may authorize officers to enter and search the premises without the express consent of other joint occupants who are present at the time.¹  See People v. Veiga, 214 Cal. App. 3d 817, 828-30, 262 Cal. Rptr. 919, 925-27 (1989), and cases cited therein; see also United States v. Matlock, 415 U.S. 164, 171 n. 7 (1974) (" [A]ny of the co-inhabitants has the right to permit the inspection in his own right and ... the others have assumed the risk that one of their number might permit the common areas to be searched."); United States v. Koehler, 790 F.2d 1256, 1259 (5th Cir. 1986) (consent by a person who possesses common authority over premises or effects is valid as against a non-consenting person with whom that authority is shared."). Thus, the district court was correct in its conclusion that lack of consent did not invalidate the inspections.

B. Did the Inspection Violate the Fourth Amendment Because It Was Unreasonable or Pretextual?

A search pursuant to valid consent does not violate the Fourth Amendment; thus, it is not unreasonable unless it exceeds the scope of the consent. People v. Bravo, 43 Cal. 3d 600, 609, 238 Cal. Rptr. 282, 288, 738 P.2d 336 (1987), cert. denied, 485 U.S. 904 (1988).

At the same time, a waiver of Fourth Amendment rights as a condition of probation does not permit searches undertaken for harassment or searches for arbitrary or capricious reasons. Bravo, 43 Cal. 3d at 610, 238 Cal. Rptr. at 288, 738 P.2d at ----. "A parole [or probation] search may not be used as a 'subterfuge for a criminal investigation.' " United States v. Richardson, 849 F.2d 439, 441 (9th Cir.), cert. denied, 488 U.S. 866 (1988).

In Richardson, this court suggested that a probation search conducted without authorization from a probation officer might be evidence of a subterfuge for a criminal investigation. Id. at 442; accord Davis, Nos. 89-10415-16, slip op. at 4875 n. 4 (dicta). The absence of such authorization, however, is not by itself sufficient to prove the search was pretextual. See People v. Palmquist, 123 Cal. App. 3d 1, 7-8, 176 Cal. Rptr. 173, 177 (1981) (Where probationer consented to search by any law enforcement officer, "the search need not have been instigated by appellant's probation officer nor must she have accompanied the officers on the search.").

Nowlin has failed to meet his burden on summary judgment. The searches in this case did not exceed the scope of Nowlin's consent. The searches appear to have been for the purpose of ensuring that Nowlin was complying with the terms of his parole. Viewed in the light most favorable to Nowlin, see Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989), the evidence fails to create a genuine issue of material fact. See Anderson v. Liberty Lobby, 477 U.S. 242, 249-50 (1985) ("If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.").

III

Nowlin failed to raise the issue of recusal before the district court. Therefore we will not address it on appeal. See United States v. Oregon, 769 F.2d 1410 (9th Cir. 1985).

AFFIRMED.