UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 98-30893

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

VERSUS

JOSHUA LEE FRANCIS,

Defendant - Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

August 2, 1999

Before GARWOOD, DUHÉ, and BENAVIDES, Circuit Judges.

DUHÉ, Circuit Judge:

BACKGROUND

In May 1997, Joshu a Francis (“Defendant”) pled guilty to a

state cocaine felony. The Louisiana court sentenced the Defendant

to two years in the parish jail with no obj ection to home

incarceration with electronic monitoring. The Defendant signed a

cont ract with Louisiana Home Detention Services, Inc. (“LHD”), a

private company designated b y the State of Louisiana to monitor

individuals placed in home incarceration. The contract contained

several categories of prohibited activities and required the

Defendant to submit to a search of his home “when LHD has probable2

cause to believe that [he was] storing illegal contraband in his

home.” The contract further provided that the Defendant would be

re-incarcerated for failing to submit to such searches.

During the Defendant’s home detention, Officer Judice stopped

the Defendant for a traffic violation in an area known for drug

trafficking. Officer Judice performed a pat-down search and

discovered that the Defendant had $1,000 in cash and was wearing an

ankle bracelet. A drug dog sniffed the car’s exterior but did not

alert sufficiently to establish probable cause to search the

vehicle. Later that day, Lafayette Crime Stoppers received an

anonymous tip advising that a “black male named Josh, under house

arrest at this time, lives at 407 Scottsdale in Ille des Canne

. .

. is trying to hide approximately nine cookies of crack cocaine.”

After learning of the tip, Officer Judice inquired about LHD’s

rights to search the Defendant’s home.

Gobb Williams (“Williams”), LHD’s director, also suspected

that the Defendant was dealing drugs and advised the police that

LHD had probable cause to search the Defendant’s home. Williams’

suspicion was premised on t he following information: (1) three

anonymous phone calls advising Williams that the Defendant was

dealing drugs; (2) the Defendant recently tested positive for drug

use; (3) Williams’ belief that one of the Defenda nt’s co-workers

was dealing drugs; (4) the Lafayette Crime Stoppers tip; and (5)

various “bits and pieces” of informatio n about the Defendant’s

activities.3

LHD requested police assistance and a drug dog to conduct the

search. Upon arriving at the Defendant’s apartment, Roland

Sparrow, an LHD employee, advised the Defendant that he was there

to check the monitoring equipment, that LHD would search pursuant

to its contract with the Defendant, and that the police would

assist in the search. Later, the police arrived, read the

Defendant his Miranda rights, and asked for consent to search. The

Defendant informed the police that th e apartment belonged to his

girlfriend, Telicha Hills (“Hills”), and that they would need her

consent. When Hills initially refused to consent, Officer Langley

informed her that police would search whether she consented or not.

The Defendant eventually signed the conse nt to search and Hills

signed as a witness.

T he search yielded a .45 caliber firearm, $1060 in cash,

marijuana, and “crack” cocaine. The Government charged the

Defendant under federal law with possession of a firearm by a

conv icted felon. The Defendant moved to suppress the evidence,

arguing that the search violated the Fourth Amendment. The

magistrate judge recommended suppression because (1) the “special

needs” exception to the Fourth Amendment warrant and probable cause

requirements did not apply, (2) there was not probable cause for

the search, and (3) the Defendant did not voluntarily consent to

the search. The Government appealed to the district court. The

Government argued that there was probable cause to search and the

Def endant voluntarily consented to the search. Adopting the1 The Government chose not to pursue two other avenues of appeal:

(1) the Defendant’s consent to the search and (2) the special needs

exception to the warrant requirement. As to the latter, s ee United

States v. Scott

, 678 F.2d 32, 34-35 (5th Cir. 1982); United States

v. Hill , 967 F.2d 902, 908-910 (3rd Cir. 1992); State v. Patrick

, 381 So.2d 501, 503 (La. 1980).

4 magistrate’s findings and recommendations, the district court

suppressed the evidence. The Government appeals, arguing: (1) LHD

had probable cause to search the Defendant’s apartment; (2) the

Defendant’s contract with LHD obviated the need for a search

warrant, and (3) even if the search was unlawful, the good faith

exception to the exclusionary rule applies.

DISCUSSION

For the purposes of this appea l, we assume without deciding

that the Government h ad probable cause to search the Defendant’s

home. The remaining issues are whether the Defendant’s contract

with LHD obviated the need for a search w arrant and, if not, the

district court committed plain error in failing to apply the good

faith exception to the exclus ionary rule. For the following

reasons, we hold that the contract did not obviate the need for a

search warrant and th at there was no plain error in failing to

app ly the good faith exception. Our holding is limited to the

facts in this case and the issues raised by the parties in this

appeal. 1

I. The Defendant’s Contract with LHD

Under Loui siana law, the sentencing court must “specify the2 In felony cases, “the home incarceration sentence is not

available to the sentencing court

. . . unless the probation

division of the Department of Corrections recommends it.” S tate v.

Rome , 696 So.2d 976, 979 (La. 1997).

5 conditions of home incarceration when it imposes such sentence upon

the defendant.” La. Code Crim. Proc. Ann. art. 894.2 (West 1999). 2

In this case, the court did not impose a search condition.

Therefore, the search condition in the contract was illegal and a

nullity under Louisiana law. Because there are no Louisiana cases

directly on point, we look to probation cases in reaching our

conclusion. Article 895 lists certain probation conditions that

“shall” be imposed by the court and others that “may” be imposed by

the court. S ee La. Code Crim. Proc. Ann. art. 895 (West 1999).

Louisiana cases prohibit sentencing courts from delegatin g their

authority to impose conditions of probation. See State v. Hardy

,

432 So.2d 865, 866 (La. 1983) (vacating a condition of probation

that ordered the amount of restitution to be set by the probation

department) S tate v. Dassau

, 534 So.2d 467, 469 (La.App. 5 Cir.

1988) (same); State v. Absent , 578 So.2d 571, 573 (La.App. 3 Cir.

1991) (stating that the sentencing judge “may not legally delegate

[the authority to impose conditions of probation] to the probation

and parole office; and if he does, the sentence of probation is

illegal.”). An Oregon court reached the same conclusion in a case

with facts similar to this case. See State v. Stephens , 614 P.2d

1180, 1182-84 (Or.Ct.App. 1980) (holding that a probation officer

exceeded his authority by imposing a search condition because,6

under the probation statute, only the court had the authority to do

so).

II. Good Faith Exception to the Exclusionary Rule

The Governm ent alternatively argues that the evidence is

admissible based on the good faith exception to the exclusionary

rule because of a good faith belief that probable cause existed and

the contract thus justified the search and because of a good faith

belief the search was consented to at the a partment. S ee United

States v. Williams

, 622 F.2d 830 (5th Cir. 1980) (en banc).

Although it appears the Government raised this issue in its motion

to reconsider the magistrate’s report, it did not appeal the issue

to the district court. Because the magistrate’s report advised the

Government of our forfeiture rule, we review the “good faith” issue

only for plain error. S ee Douglass v. United Services Auto.

Assoc. , 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

In Willia ms , we concluded that “evidence is not to be

suppressed under the exclusionary rul e where it is discovered by

officers in the course of actions that are taken in good faith and

in the reasonable, though mistake n, belief that they are

auth orized.” W illiams

, 622 F.2d at 840. In this case, the

officers did not have a subjective good faith belief that the

contract authorized the search. Officer Judice testified that he

did not believe the contract allowed the search. Further, the

o fficers belief that the Defendant voluntarily consented to the7

search wa s objectively unreasonable. Officer Langley told the

Defendant’s girlfriend that the officers were going to search

whether the Defendant consented or not. The officers also knew

that the Defendant would be sent to jail if he refused to allow the

search. Therefore, even if there were error in refusing to apply

the good faith exception on the grounds now urged by the

Government, it was not plain error.

CONCLUSION

We affirm the district court’s suppression of the evidence.

AFFIRMED.