United States v. Barnett, Curtis W. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3646
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CURTIS BARNETT,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 03 CR 30170—David R. Herndon, Judge.
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ARGUED JUNE 15, 2005—DECIDED JULY 18, 2005
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Before POSNER, COFFEY, and KANNE, Circuit Judges.
POSNER, Circuit Judge. Curtis Barnett pleaded guilty to
being a felon in possession of a gun and was sentenced to 15
months in prison. His plea reserved the right to appeal the
denial of his motion to suppress evidence found in a search
of his home. The question presented by the appeal, left open
in United States v. Knights, 534 U.S. 112, 118, 120 n. 6 (2001);
see also United States v. Lifshitz, 369 F.3d 173, 182 (2d Cir.
2004); United States v. Brown, 346 F.3d 808, 812 (8th Cir.
2003), is the validity of a blanket waiver of Fourth Amend-
ment rights as a condition of probation.
2 No. 04-3646
Convicted in an Illinois state court of aggravated fleeing
from police officers, criminal damage to state property, and
damage to property (the first two of these crimes are felonies
and the third can be either a felony or a misdemeanor, 625
ILCS 5/11-204.1; 720 ILCS 5/21-1,-4), Barnett had been sen-
tenced to a year of “Intensive Probation Supervision” in lieu
of prison. His lawyer acknowledged having bargained for
this disposition, which Barnett preferred to a prison sentence.
Among the conditions of probation set forth in the agreed
decree (that is, the sentence pursuant to the plea bargain)
that imposed them, Barnett was required to “submit to
searches of [his] person, residence, papers, automobile
and/or effects at any time such requests are made by the
Probation Officer, and consent to the use of anything seized
as evidence in Court proceedings.”
United States v. Knights, supra, 534 U.S. at 118, 121, holds
that, given such a waiver, the probation officer, in order to
be authorized to search the probationer’s home without his
consent to the particular search, need have at most a rea-
sonable suspicion that the search will turn up contraband or
evidence of crime. The Court’s reasoning was that the
waiver had diminished the probationer’s expectation of
privacy to a point at which he could not insist on a higher
threshold, such as probable cause. Id. at 119, 122. But as we
said, the Court left open the question whether the waiver
alone could justify the search.
Constitutional rights like other rights can be waived,
provided that the waiver is knowing and intelligent, as it
was here. Barnett didn’t want to go to prison. He preferred
to sacrifice the limited privacy to which he would have been
entitled had he been on ordinary as distinct from intensive
probation (as we’ll see), just as convicted defendants prefer
home confinement to confinement in a jail or prison even if
the home confinement involves monitoring the defendant’s
No. 04-3646 3
activities inside the home and thus invades his privacy. And
since imprisonment is a greater invasion of personal privacy
than being exposed to searches of one’s home on demand,
the bargain that Barnett struck was not only advantageous
to him but actually more protective of Fourth Amendment
values than the alternative of prison would have been. It
was also advantageous to the government, which wouldn’t
have agreed to it otherwise.
Plea bargains are a form of contract, United States v. Cook,
406 F.3d 485, 487 (7th Cir. 2005); United States v. Bradley, 381
F.3d 641, 648 (7th Cir. 2004); United States v. McKinney, 406
F.3d 744, 746 (5th Cir. 2005); United States v. Rubbo, 396
F.3d 1330, 1334 (11th Cir. 2005), and like other contracts are
presumed to make both parties better off and do no harm to
third parties, and so they are enforceable and enforced.
Nothing in the Fourth Amendment’s language, background,
or purpose would have justified forcing Barnett to serve a
prison sentence rather than to experience the lesser restraint
of probation. Nothing is more common than an individual’s
consenting to a search that would otherwise violate the
Fourth Amendment, thinking that he will be better off than
he would be standing on his rights. Often a big part of the
value of a right is what one can get in exchange for giving
it up. Here, given the alternative facing him of a prison
sentence, Barnett gave up nothing.
Unless it matters that the consent was given not to a
specific search but to any search over a specified interval of
time. Barnett argues that to enforce such a blanket consent
would invite abuse—for what if the probation officer de-
cided to camp in Barnett’s home and search him every five
minutes? This argument ignores not only the alternative
facing Barnett—the even greater deprivation of privacy
entailed by most forms of imprisonment, though this de-
pends on the specific rules and conditions of the particular
4 No. 04-3646
prison—but also that contracts (and remember that the plea
bargain, containing the consent to searches, is to be inter-
preted as a contract) contain implicit as well as explicit
terms. Haslund v. Simon Property Group, Inc., 378 F.3d 653,
655 (7th Cir. 2004); Omron Healthcare, Inc. v. Maclaren Exports
Ltd., 28 F.3d 600, 602 (7th Cir. 1994); Hill v. Norfolk & Western
Ry., 814 F.2d 1192, 1198 (7th Cir. 1987); Eskra v. Provident Life
& Accident Ins. Co., 125 F.3d 1406, 1415-16 (11th Cir. 1997).
Especially implicit terms necessary to head off absurdities.
E.g., Bank of America v. Moglia, 330 F.3d 942, 946 (7th Cir.
2003). “[A] contract will not be interpreted literally if doing
so would produce absurd results, in the sense of results that
the parties, presumed to be rational persons pursuing
rational ends, are very unlikely to have agreed to seek.”
Beanstalk Group, Inc. v. AM General Corp., 283 F.3d 856, 860
(7th Cir. 2002); see also Nelson v. Schellpfeffer, 656 N.W.2d
740, 743 (S.D. 2003); Bohler-Uddeholm America, Inc. v. Ellwood
Group, Inc., 247 F.3d 79, 96 (3d Cir. 2001).
The purpose of the blanket waiver in this case was not
to permit probation officers to harass probationers, but
to excuse the officers from having to justify a search by
establishing that it was based on probable cause, suspicion,
or some other standard that might invite litigation. It is a
reasonable assumption that the “contract” implicitly for-
bids—equivalently, the waiver of Fourth Amendment rights
does not extend to—searches that have no possible law-
enforcement objective, or that so far exceed any legitimate
enforcement needs as to compel an inference that the pur-
pose and only effect were harassment. Restatement (Second)
of Contracts § 203 (1981). “There is no novelty in interpreting
contractual language in light of common sense.” McElroy v.
B.F. Goodrich Co., 73 F.3d 722, 726-27 (7th Cir. 1996).
Barnett’s fear that he might be subjected to continual,
harassing searches is chimerical.
No. 04-3646 5
The probation office’s policy manual states that “to search
an individual’s home or auto, the officer must have some
reasonable suspicion to suspect a violation of probation or
a crime is being committed or has been committed.” Barnett
argues that this provision should be considered an implicit
term of his probation. But it is apparent from the caption of
his probation decree—“Conditions of Intensive Probation
Supervision”—that he was being subjected to restrictions
that went beyond what the policy manual provides for
ordinary probation. He argues that the inconsistency
between the search provisions in the manual and in the
decree makes his “contract” indefinite and it therefore
should not be enforced. A contract can be denied enforce-
ment by virtue of indefiniteness. E.g., Baker O’Neal Holdings,
Inc. v. Massey, 403 F.3d 485, 488 (7th Cir. 2005); Haslund v.
Simon Property Group, Inc., supra, 378 F.3d at 655; Echols v.
Pellullo, 377 F.3d 272, 275 (3d Cir. 2004). But in such a case
the contract is rescinded, meaning that the parties are put
back in the positions they would have occupied had there
never been a contract. United States v. Cook, supra, 406 F.3d
at 488; United States v. Bradley, supra, 381 F.3d at 648; Griggs
v. E.I. DuPont de Nemours & Co., 385 F.3d 440, 447 (4th Cir.
2004). So Barnett’s bargained-for probation would be down
the drain and presumably (though this would depend on
particulars of state law that we have not investigated) he
would be sent back to the state court for resentencing—and
the new sentence might be a prison term tacked on to his 15-
month federal term. United States v. Bownes, 405 F.3d 634,
637 (7th Cir. 2005); United States v. Wagner, 103 F.3d 551, 552
(7th Cir. 1996); United States v. Moulder, 141 F.3d 568, 571
(5th Cir. 1998); United States v. Caldwell, 88 F.3d 522, 526 (8th
Cir. 1996). He clearly doesn’t want that and so in response
to a question from the bench told us that he was abandoning
the argument.
AFFIRMED.
6 No. 04-3646
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-18-05