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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, Joshua Francis ("Defendant") pled guilty to a
state cocaine felony. The Louisiana court sentenced the Defendant
to two years in the parish jail with no objection to home
incarceration with electronic monitoring. The Defendant signed a
contract with Louisiana Home Detention Services, Inc. ("LHD"), a
private company designated by 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 probable

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 the 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 Defendant's co-workers
was dealing drugs; (4) the Lafayette Crime Stoppers tip; and (5)
various "bits and pieces" of information about the Defendant's
activities.
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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 the 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 consent to search and Hills
signed as a witness.
The 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
convicted 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
Defendant voluntarily consented to the search. Adopting the
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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 appeal, we assume without deciding
that the Government had 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 warrant and, if not, the
district court committed plain error in failing to apply the good
faith exception to the exclusionary rule. For the following
reasons, we hold that the contract did not obviate the need for a
search warrant and that there was no plain error in failing to
apply 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 Louisiana law, the sentencing court must "specify the
1The 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, see 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).
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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. See La. Code Crim. Proc. Ann. art. 895 (West 1999).
Louisiana cases prohibit sentencing courts from delegating 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) State 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,
2In felony cases, "the home incarceration sentence is not
available to the sentencing court . . . unless the probation
division of the Department of Corrections recommends it." State v.
Rome, 696 So.2d 976, 979 (La. 1997).
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under the probation statute, only the court had the authority to do
so).
II.
Good Faith Exception to the Exclusionary Rule

The Government 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 apartment. See 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. See Douglass v. United Services Auto.
Assoc., 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
In Williams, we concluded that "evidence is not to be
suppressed under the exclusionary rule where it is discovered by
officers in the course of actions that are taken in good faith and
in the reasonable, though mistaken, belief that they are
authorized." Williams, 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
officers belief that the Defendant voluntarily consented to the
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search was 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.

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