Volume 71 Number 3
Federal Probation
 
     
     
 
Looking at the Law—Probation Officers’ Authority to Require Drug Testing
 

By Joe Gergits
Assistant General Counsel
Administrative Office of the U.S. Courts

Probation Officers’ Authority to Require Drug Testing
I. Officers’ Authority Under 18 U.S.C. ’3603 to Require Drug Testing
II. Officers’ Authority to Administer Drug Testing as a Component of Drug Treatment
III. The Mandatory Testing Condition and Judicial Perceptions that it Conflicts with ’3603
IV. The Seventh Circuit Applies the Mandatory Condition Standard to a Special Treatment Condition
V. Implications for Drug Testing in the First, Seventh, and Ninth Circuits

Probation Officers’ Authority to Require Drug Testing

This article addresses the anomalous jurisprudence concerning three statutory bases for probation officers’ authority to direct offenders to submit to drug testing: 1) implied authority under 18 U.S.C. ’3603 (“Duties of probation officers”); 2) delegated drug testing authority in a court-imposed drug or alcohol (collectively “drug”) treatment special condition under 18 U.S.C. ’3603(b)(9) and 3583(d); and 3) delegated authority in a mandatory drug testing condition imposed under ’3603(a)(5) and 3583(d).

A fair reading of these three statutory bases for drug testing discloses no irreconcilable conflicts that would preclude officers from continuing to direct offenders to submit to testing under ’3603 due to exigent circumstances, to exercise delegated authority under a special condition requiring drug treatment, or to determine the extent of testing required by a mandatory drug testing condition. Notwithstanding that these provisions can be read harmoniously, some circuit courts have held that 1) district judges cannot delegate authority to a probation officer in a mandatory condition, 2) enactment of legislation creating the mandatory condition pre-empted probation officers’ authority under ’3603, and 3) the exclusive basis for determining the propriety of delegated authority to administer testing pursuant to a treatment condition is to apply the language of the statute authorizing mandatory testing conditions. This article reminds officers of the constraints imposed by these questionable holdings and identifies flawed reasoning running through the jurisprudence.

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I. Officers’ Authority Under 18 U.S.C. ’3603 to Require Drug Testing

Long before Congress specifically authorized courts to impose conditions requiring drug testing based on a mandatory or special condition, courts recognized that officers had authority under 18 U.S.C. ’36551 (the Federal Probation Act provision specifying officers’ duties) and its Sentencing Reform Act of 1984 (“SRA”)2 successor, ’3603 to direct offenders to submit to testing to ensure compliance with the standard condition to obey all laws.3 This was so notwithstanding that the Federal Probation Act, like the SRA, only allowed courts to impose conditions of supervision. Until 1994, no court questioned probation officers’ authority to require offenders to submit to drug testing as one method for carrying out officers’ general duties to: 1) “keep informed, to the degree required by the conditions specified by the sentencing court, as to the conduct and condition of . . . a person on supervised release, who is under …supervision”; 2) “use all suitable methods, not inconsistent with the conditions specified by the court, to aid… a person on supervised release who is under… supervision, and to bring about improvements in his conduct and condition”; and 3) “keep informed concerning the conduct, condition, and compliance with any condition of probation… of each probationer under his supervision.”4 Courts recognized that drug testing was simply a “suitable method” for keeping informed of an offender’s conduct and compliance with other conditions imposed by the court.

The most thorough discussion of officers’ authority to require drug testing as a means of carrying out these general statutory responsibilities is found in United States v. Duff,5 in which the Ninth Circuit held that a probation officer’s duties under ’3655 were sufficient justification for requiring an offender to accede to drug testing in the absence of a drug testing special condition. The court endorsed the supervising officer’s requirement that the offender submit to drug testing because testing was a “suitable method[] not inconsistent with” the court-imposed condition that the offender comply with all laws. Because the officer had not petitioned the court to revoke probation until the offender had failed three drug tests over the course of three months and had admitted using illegal drugs, the Duff panel interpreted the testing requirement as an intended deterrent against continued drug use. Had this deterrent been successful, it would have improved the offender’s condition and conduct, one of a probation officer’s primary duties under ’3655 and ’3603.

The Ninth Circuit rejected the offender’s claim that he had been denied due process (as embodied in Federal Rule of Criminal Procedure 32.1) because the officer had not sought a modification of conditions to include drug testing. The court deemed this a desirable formality under most circumstances, but one that inevitably notifies an offender when testing would begin. The Ninth Circuit held that notice of the court’s condition against violating the law, which the officer had advised the offender prohibited the use of illegal drugs, was sufficient notice to satisfy the due process requirement of giving fair warning of acts that may lead to a loss of liberty.6 The court noted that “[d]ue process does not require that prior notice be given of the techniques through which noncompliance will be detected.”7

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II. Officers’ Authority to Administer Drug Testing as a Component of Drug Treatment

Whether they imposed them as a component of drug treatment or as a stand-alone condition, courts traditionally have had authority to impose special drug-testing conditions if they furthered the dual goals of supervision: rehabilitating the offender and protecting the community.8 Section 212 of the SRA created the first specific statutory authority for imposing special conditions prohibiting drug use and requiring drug treatment. This discretionary treatment authority is codified at 18 U.S.C. ’3563(d)(9) as a discretionary condition of probation, which ’3583(d) incorporates as a potential condition of supervised release.9 With one recent exception, circuit courts have held that district courts are authorized to impose a treatment condition that includes a delegation to probation officers of the responsibility for determining where, when, and how the condition will be satisfied (including the number and frequency of drug tests).

In United States v. Stephens,10 the Ninth Circuit considered the propriety of imposing a drug treatment condition that included an unspecified number of drug tests. The condition ordered the offender to “participate in a drug and alcohol abuse treatment and counseling program, including urinalysis testing, as directed by the Probation Officer,” as well as a “program of mental health treatment as directed by the probation officer.”11 The Stephens court observed that, unlike its approach when drafting the mandatory drug testing provision in ’3583(d), Congress did not require courts to micro-manage drug treatment programs by setting a maximum number of in-treatment tests:

The requirement of ’3563(b)(9), incorporated by reference into ’3583(d), that the drug treatment be specified “by the court,” does not require the district court itself to specify the details of the treatment. As we stated in the context of psychological treatment for a sex offender, “the court cannot be expected to design the particularities of a treatment program. That the court allowed a therapist to do so does not mean the court delegated its authority to impose conditions of release.”12

The statutory analysis of ’3563(d)(9) underlying the Ninth Circuit’s holding is consistent with prior cases acknowledging that probation officers, in consultation with treatment providers, may administer the details of a treatment condition, but only the court may determine whether the condition applies to an offender.13

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III. The Mandatory Testing Condition and Judicial Perceptions that it Conflicts with ’3603 Authority

Ten years after the SRA amended ’3603(b) and 3583(d) to create specific statutory authority for imposing special conditions prohibiting drug use and requiring drug treatment, section 20414 of the Violent Crime Control and Law Enforcement Act of 1994 (“VCCA”)14 established a mandatory drug testing condition at 18 U.S.C. ’3603(a)(5) and 3583(d) distinct from district courts’ pre-existing general authority to order drug testing of offenders as a part of drug treatment.15 Within a few years of enactment, offenders challenged district courts’ practice of imposing the mandatory condition with a minimum number of tests, but delegating the determination of what additional tests would be needed to probation officers. In addition to challenging the delegation of additional testing under the mandatory condition, offenders contended that, by enacting the VCCA mandatory condition, Congress had eliminated probation officers’ authority to require testing under ’3603 in favor of making courts the sole authority for requiring drug tests.

The first published opinion addressing these issues was authored by District Judge Myron H. Thompson in United States v. Smith.16 In Smith, the district court held that: 1) a probation officer’s authority under ’3603 corresponds to that described in repealed ’3655; 2) the authority under ’3603 is independent of any authority to require testing under a mandatory testing condition; and 3) courts, after requiring a minimum of at least three drug tests as required by statute, could delegate to probation officers the authority to determine the maximum number of drug tests appropriate for an offender bound by the court’s mandatory testing condition. The district court held that delegation regarding the maximum number of tests was lawful because the VCCA requirement of one drug test fifteen days after supervised release commences and at least two more thereafter “(as determined by the court)” simply “provides the court with discretion to alter the minimum or total number of drug tests. It does not preclude a court from setting only a minimum number of tests.”17

In addition to holding that courts could delegate the determination of the maximum number of tests needed to the probation officer under a mandatory testing condition, the court held that Congress’s recodification of ’3655 as ’3603 preserved the authorizing language in ’3655 that the Ninth Circuit in Duff had relied upon when it held that probation officers had significant discretion in the means they used to enforce and monitor compliance with a court-imposed condition that offenders comply with all laws. The district court noted that when Congress enacted the VCCA in 1994, it presumably was aware that probation officers had considerable discretion under ’3603 and its predecessor ’3655 to require drug testing. Nonetheless, Congress did not amend ’3603, or enact any other statutory language, to alter this existing practice. Instead, Congress retained language authorizing officers to use “all suitable methods, not inconsistent with the conditions specified by the court, to aid . . . a person on supervised release who is under his supervision, and to bring about improvements in his conduct and condition.”18 The district court therefore found that the VCCA’s mandatory drug testing condition did not preclude officers from requiring offenders to submit to more than the minimum of three or more tests ordered by the court. In any event, the court held, officers retained their pre-existing ’3603 authority to require testing independent of the mandatory condition.

Undeterred by the plain language of the 1994 mandatory testing conditions added to ’3603(a) and 3583(d), three courts of appeals have construed the amendment as confining probation officers’ authority. In United States v. Bonanno,19 the Seventh Circuit reversed a mandatory drug-testing condition of supervised release imposed under ’3583(d) because the district court had ordered the two offenders to submit to one test within fifteen days “and random testing thereafter at the direction and discretion of the probation officer.” The Seventh Circuit did not analyze the language of the 1994 amendment. Instead, it relied upon the reasoning of its holding in United States v. Boula20 that 18 U.S.C. ‘3663 precluded district courts from delegating the setting of a schedule for fine and restitution payments to a probation officer.21 Bonanno did not explain why a prior case construing the language of a restitution statute should determine the outcome of a case involving a different statute whose plain language would not preclude probation officers from determining the maximum number of drug tests.

Deeming the Boula holding as conclusive was questionable because the restitution statute, unlike the mandatory testing statute, clearly precluded delegation. Unlike the mandatory drug testing provisions in ’3603(a)(5) and 3583(d), the restitution statute in Boula required district courts to order payment of restitution “within a specified period or in specified installments,” and stated that “[i]f not otherwise provided by the court” the offender had to pay restitution immediately.22 Contrary to this unambiguous statutory mandate, the district court in Boula had stated simply that the offenders had to pay restitution if they generated income, thereby thrusting the determination of a future payment obligation onto the probation officer, contrary to ‘3663. The Bonanno panel’s reliance on Boula as determinative of the legality of delegation under ’3583(d), a statute whose language the Seventh Circuit did not analyze in Bonanno, is problematic.

Although it did not analyze the language regarding the mandatory testing condition required by ’3583(d), Bonanno held that the mandatory drug testing provision required district courts to specify the number of random drug tests. Bonanno did not suggest that its holding regarding non-delegation of drug testing authority under ’3583(d) precluded probation officers from continuing to require drug tests pursuant to ’3603 or as a component of a drug treatment condition imposed by a court at sentencing. In United States v. Guy,23 the court subsequently clarified Bonanno by holding that a district court may establish a range for testing (for example, “not to exceed 104 tests per year”) instead of a specific maximum, and allow a probation officer to exercise discretion to determine the number of tests to be performed within the range.

Following the Seventh Circuit’s lead in Bonanno, the First Circuit in United States v. Melendez-Santana24 distinguished between delegation of testing authority as part of a drug treatment condition and delegation of authority to establish the number of tests required by a non-treatment mandatory testing condition. As to the former, the court held that the district court had improperly delegated to the probation officer the judicial responsibility of deciding whether treatment was required, but that the officer had authority to determine the details of the treatment (which would include the number of drug tests required).25 With regard to the mandatory condition, however, the First Circuit was confronted with the government’s secondary argument that probation officers had independent authority to require testing under ’3603, and therefore were not prevented from requiring additional testing under a ’3583(d) mandatory testing condition.

The First Circuit acknowledged that ’3603 authorized probation officers to require drug testing in the absence of a court-imposed condition, but the court held that Congress had superseded this authority in 1994 when it enacted the VCCA mandatory drug testing provisions.26 The court concluded that Congress intended to alter the existing practice because the VCCA amendments included the parenthetical phrase “(as determined by the court),” which the First Circuit interpreted as unambiguous congressional intent to require district judges to prescribe the number of tests, or a range, in all circumstances other than drug treatment.27 The court stated that Congress knew that probation officers traditionally had broad discretion to require testing without any directive from a district court, yet Congress “refused” to include probation officers in the ’3583(d) parenthetical.28 According to the First Circuit, this meant that Congress thereby “manifest[ed] its intent to alter the existing practice.”29

As it sounded the death knell for probation officer authority to require drug testing under ’3603 and the mandatory testing condition, the First Circuit emphatically criticized the Smith court’s contrary conclusion, stating, “We frankly find Smith’s reading of the statutory language difficult to follow.”30 The analysis in Smith, however, was a model of clarity and careful reasoning compared with the Melendez-Santana panel’s flawed interpretation. The district court in Smith had held that the plain language of the statute would allow a district judge to set a minimum greater than three tests and order that a probation officer determine whether more tests should be required depending on the offender’s performance during supervision.31 The district court ruled that Congress’ requirement of a minimum number of drug tests in most cases under a mandatory condition did not preclude officers from determining the maximum number of tests needed in the course of supervision either under a ’3583(d) mandatory testing condition or under ’3603.

The First Circuit’s difficulty in understanding the district court may be attributable to its own erroneous rendition of the Smith analysis. The Melendez-Santana panel stated that the district court in Smith had construed ’3583(d) as requiring a minimum of three tests and a grant of “discretion to reduce the minimum number of drug tests below three without requiring courts to set the maximum number of tests.”32 Nothing in the Smith opinion, however, supports the First Circuit’s contention that the district court had interpreted the statute as granting district judges discretion to require fewer than three tests. Thus, it is unlikely that some flaw in the Smith opinion was the source of the Melendez-Santana panel’s discomfiture. Although neither the VCCA nor its legislative history evinced a congressional intent to usurp probation officers’ pre-existing authority, the First Circuit held that the VCCA superseded the more general statutory authority in ’3603.33

The First Circuit premised its holding that the VCCA abolished probation officers’ authority to direct offenders to drug testing on a questionable application of a rule of statutory construction. The Melendez-Santana panel stated that this rule required the “most recent and more specific Congressional pronouncement [to] prevail over a prior, more generalized statute.”34 Critical limitations on the rule not mentioned in Melendez-Santana are that: 1) it may be applied only when a court is confronted with two “irreconcilably conflicting statutes”; 2) repeals by implication are not favored; and 3) the intent to repeal must be clear and manifest.35 Sections 3583(d) and 3603, however, are not two irreconcilably conflicting statutes. In addition, nowhere in the VCCA did Congress suggest, let alone express a “clear and manifest” intent, that the amendment to ’3583(d) was designed to 1) repeal ’3603, 2) alter judicial interpretation of that provision, or 3) preclude officers from invoking their ’3603 authority to require testing in addition to that required by the district court’s mandatory testing condition. The Melendez-Santana panel did not mention, and could not have satisfied, these stringent prerequisites. Instead of making the necessary findings of irreconcilable conflict and “clear and manifest” congressional intent to repeal, the court relied exclusively on an unsupported “conclu[sion] that Congress’s refusal to include probation officers in the section of the 1994 Act that became 18 U.S.C. ’3583(d) manifests its intent to alter the existing practice.”36 The Melendez-Santana panel mentioned neither the contrary holding in Duff (notwithstanding that Duff was discussed at great length by the district court in Smith) nor that its holding created a circuit split with the Ninth Circuit’s Duff holding.

Of course, Melendez-Santana could not undermine Duff as binding precedent in the Ninth Circuit. Dicta in the majority and dissenting opinions in United States v. Stephens,37 however, indicated that the Ninth Circuit had doubts about Duff ’s continuing viability. Stephens addressed the propriety of conditions of supervised release that delegated the district court’s authority to specify the number of drug tests under a ’3583(d) mandatory condition and as a component of a special condition requiring drug treatment. The Stephens majority agreed with the First and Seventh Circuits’ holdings in Melendez- Santana and Bonanno, respectively, that district courts, and not probation officers, must determine either the maximum number of drug tests under ’3583(d) or a range within which a probation officer would have discretion to test. As in Melendez‑Santana, determining whether a probation officer may determine the extent of mandatory drug testing above the court-imposed minimum implicated officers’ traditional independent authority to require testing under ’3603.38 If ’3603’s authority endured, it should not matter if an officer must rely upon her own authority rather than judicial delegation contained in a mandatory condition. Nonetheless, the majority gave only fleeting mention of the issue to deflect the dissenter’s concerns.

The Stephens dissenter contended that the majority’s holding implied that probation officers were precluded from requiring further drug testing under ’3603 to supplement the ’3583(d) mandatory minimum of three tests. The dissent noted that Duff had established probation officers’ authority under provisions in ’3655 that were indistinguishable from its successor ’3603, and that this independent authority for testing should have allowed continued testing after the three ’3583(d) tests had occurred.39 The dissenter stated that, by refusing to address this probation officer prerogative established by Duff, the majority opinion suggested, but refused to forthrightly hold, that “the authority that we held [in Duff that] probation officers possess under ’3655—authority that is preserved under ’3603—was stripped from probation officers by the enactment of ’3583.”40

As the dissent noted in Stephens, and the district court had observed in Smith, nothing in the VCCA suggests that Congress designed the ’3583(d) mandatory drug testing provision to confine or eliminate pre-existing authorities for drug testing. The better view expressed by the district court in Smith and the dissenter in Stephens is that Congress enacted a mandatory testing provision to insure that testing occurs more frequently, particularly when offenders begin their term of supervision. Rather than address the dissent’s contention that the majority had implied that the ’3583(d) mandatory drug testing condition had repealed Duff, the majority avoided the issue as one not directly raised on appeal. By abstaining from careful analysis of the implied repeal issue, the majority ignored the full implications of its statement that there were only two bases for drug testing: the ’3583(d) mandatory condition and testing as a component of treatment. The majority refused to address whether the ’3583(d) mandatory drug testing requirement supplanted the pre-existing general authority for drug testing implicit in ’3655 (and its successor ’3603) that had been endorsed by Duff. Rather, the majority declared that this preexisting authority derived from “an entirely different statute” than ’3583(d).41

By passing on this issue, the majority may have intended to defer it to a future panel. The most likely consequence in the Ninth Circuit, however, is that probation officers will forego exercising their authority to require drug testing under ’3603 when they suspect an offender is using drugs. Alternatively, they will rarely direct an offender to submit to testing, and will abandon the requirement in individual cases whenever the offender balks. Under either scenario, however, officers increasingly will petition courts to impose special conditions requiring drug testing or courts will authorize an excessive number of drug tests at sentencing for all ’3583(d) mandatory conditions. Abandoning the ’3603 authority results in an uneconomical use of judicial resources and paradoxically will expose offenders to more drug testing. This conflict between Duff and Stephens will likely remain unresolved as officers and courts opt to forego ’3603 authority in favor of drug testing required by special and mandatory conditions authorizing a greater number of tests.42

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IV. The Seventh Circuit Applies the Mandatory Condition Standard to a Special Treatment Condition

In United States v. Tejeda,43 the Seventh Circuit became the first court to apply the case law restrictions regarding delegation under a ’3583(d) mandatory condition to special drug treatment conditions. The court thereby created a circuit split with the Ninth Circuit’s Stephens holding, and effectively eliminated probation officers’ discretion to determine the number of tests that may occur during treatment for offenders within the supervision jurisdiction of a district court in the Seventh Circuit. Pursuant to ’3563(b)(9), as incorporated by ’3583(d), two district judges in separate cases had imposed special conditions of supervised release requiring the offenders (Jose Tejeda and Daniel Dropik) to “participate in a program of testing and residential or outpatient treatment for drug and alcohol abuse, as approved by the supervising probation officer.”44 The special condition imposed no limit on the number of drug tests that could be required incidental to treatment. Neither defendant objected to the conditions when they were imposed at sentencing.

On appeal, the offenders relied upon United States v. Bonanno,45 and argued that district courts are obliged to set a maximum number of drug tests that are incidental to a special drug treatment condition. The government noted in its brief that the offenders’ reliance on Bonanno was inappropriate because it only applied to mandatory drug testing conditions, and not to special treatment conditions where delegation of the administrative details of the treatment program to probation officers has been approved by every court to consider the matter. In addition, the Bonanno opinion never suggested that ’3583(d) was the exclusive authority for all drug testing.

The Tejeda panel nonetheless accepted the offenders’ position, thereby becoming the first court to hold that the case law requiring that district courts set a maximum number of drug tests when imposing a mandatory drug testing condition also requires district courts to specify all details of drug testing when it is a component of a drug treatment special condition.46 In its analysis, the Tejeda panel quoted the statutory language for the ’3583(d) mandatory drug testing condition as the exclusive authority for ordering an offender to submit to drug testing.47 The Seventh Circuit relied on the ’3583(d) statutory language regarding the mandatory condition notwithstanding that drug testing is also generally required as a component of drug treatment special conditions, and is independently authorized by ’3563(b)(9) (as incorporated by ’3583(d)), and U.S.S.G. ‘5D1.3(d)(4).48

The Tejeda court also did not mention the Ninth Circuit’s holding in United States v. Stephens49 that district courts must establish a maximum number of mandatory drug tests, but probation officers are authorized to make such administrative determinations if testing is required as part of a special drug treatment condition. The Stephens panel noted that, unlike its approach when drafting the ’3583(d) mandatory drug testing provision, Congress did not require courts to micro-manage drug treatment programs by setting a maximum number of in-treatment tests.50 While the Seventh Circuit did not discuss Stephens and its common-sense analysis of treatment conditions, the Tejeda panel did equivocate when it stated:

Bonanno aside, it is not necessarily a foregone conclusion that every hint of discretion given to a probation officer constitutes error. It may be that in a proper case we would agree with the Court of Appeals for the Ninth Circuit that if a defendant is ordered into a treatment program, it would not be error to grant the probation officer discretion to designate testing which is incidental to the program. United States v. Maciel-Vasquez, 458 F.3d 994 (9th Cir. 2006). In the cases before us, however, the condition regarding drug testing seems to be boilerplate language, which grants too much discretion to the probation agent.51

The Seventh Circuit did not state why the conditions in Tejeda “seem[ed] to be boilerplate.” Nor did it propose language or procedural changes that might properly give a “hint of discretion” to a probation officer. Although the Seventh Circuit suggested that some special conditions giving minimal discretion to probation officers could pass muster, the special condition that was approved in Stephens,52 which is typical of drug treatment conditions imposed by every district court, is virtually identical to the special condition characterized as impermissible boilerplate in Tejeda.

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V. Implications for Drug Testing in the First, Seventh, and Ninth Circuits

Officers supervising offenders in the First, Seventh, and Ninth Circuits53 have no or limited authority to direct offenders to submit to drug testing absent a court-imposed condition. Officers outside those circuits may ignore those questionable holdings interpreting the statutes as authorizing the mandatory condition, the drug treatment special condition, and the ’3603 authority to require drug testing. Instead, they should rely upon the plain language of the statutes and their courts’ direction. The plain language of the 1994 amendment to ’3603(b)(5) and 3583(d) adding the mandatory testing condition does not diminish a probation officer’s authority under ’3603. Instead, it requires a district court to impose a minimal testing regimen in every case unless waiver of the condition is appropriate because the offender has a low risk of future substance abuse. The mandatory testing provision also does not require a court to impose a maximum number of drug tests.54 Instead, the amendment specifies a presumptive minimum number of three drug tests for defendants on supervised release. The parenthetical “(as determined by the court)” is best understood as allowing a sentencing court to exercise discretion by varying the minimum number of drug tests ordered so long as it is more than three. This statutory language ensures that more offenders receive drug testing while on supervised release, but it does not alter probation officers’ independent authority to administer additional tests under ’3603 or to determine the number of tests required as a component of a drug treatment condition. Although the plain language of ’3583(d) is unambiguous (which thereby precludes any reference to legislative history), the congressional record is bereft of evidence that Congress intended that its amendment to ’3583(d) diminish probation officers’ traditional discretion and authority.55

Melendez-Santana and its First Circuit lineage require that: 1) district courts determine the maximum number of drug tests under a mandatory testing condition and forego delegation of this function to a probation officer; 2) officers confine testing to the statutory default minimum of three mandatory tests if the court failed to set a maximum number or a range of permissible tests; 3) probation officers decide the number of tests to be performed within a range set by the district court; and 4) officers relinquish the pre-existing general authority for drug testing implicit in ’3603, which was trumped by the specific authority for district courts to require mandatory drug testing.

Officers supervising offenders within the Ninth Circuit may continue to rely upon Duff and ’3603 as authorities for drug testing in the absence of a condition, subject to the caveat that doing so will invite challenges to such a testing requirement and petitions for revocation based on positive test results. As in the First and Seventh Circuits, a district court’s failure to specify a maximum or range of mandatory tests will limit officers to requiring the statutory limit of three. If the court did not establish a maximum number of tests or a range at sentencing, the best option if more than the default of three tests is needed is to discern if the offender will agree to a modification pursuant to Federal Rule of Criminal Procedure 32.1(c) and either ’3583(e)(2) (supervised release) or ’3563(c) (probation) and waive a hearing. If the offender declines to waive a hearing, an officer may request that the court modify the mandatory drug testing condition to establish a maximum number or a range of tests after a hearing. Officers may require testing within the range established by the court. Alternatively, officers could petition the court to add a special condition requiring drug testing.56

Unless a future Seventh Circuit decision rectifies the Tejeda panel’s contention that district courts err if they delegate the selection of the number of tests needed for a drug treatment special condition, officers in the Seventh Circuit should recommend that courts impose a specific number or a range of drug tests incidental to a drug treatment special condition for all offenders in accordance with the Tejeda panel’s reading of ’3583(d). While Tejeda addressed only the ’3583(d) special drug treatment condition, the holding applies equally to special drug treatment conditions imposed on probationers under 18 U.S.C. ’3563(a)(9). If a special condition requiring testing was imposed prior to Tejeda that did not include a maximum or a range, no action is required if the offender failed to object when the condition was imposed or he objected but failed to file a timely appeal. This is so because the Seventh Circuit in Tejeda held that such forfeited errors do not affect an offender’s substantial rights and therefore are not plain errors that must be remedied.57 By holding that the plain error rule does not apply when a district judge delegates too much authority to a probation officer in the context of a drug treatment condition, the Seventh Circuit established that such errors are too inconsequential to be considered in future appeals if the offender neglected to object before the district court.

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