United States of America Ex Rel. Herbert Sperling, Relator-Appellant v. Walter v. Fitzpatrick, Warden, West Street House of Detention

IRVING R. KAUFMAN, Circuit Judge

(concurring in the result).

I concur in the result reached in my brother Hays’s opinion, and in much of what my brother Lumbard says in his concurring opinion. I add only a few words to indicate what I believe would be the preferred manner to resolve the conflicts in purpose and means bared by this case.

There is not, I take it, any basic dispute over the proposition that one is not divested of all his constitutional rights once he is sent to prison. See e. g., Wright v. McMann, 387 F.2d 519 (2d Cir. 1967); United States ex rel. Schuster v. Herold, 410 F.2d 1071 (2d Cir. 1969). Cf. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 , 67 S.Ct. 374 , 91 L.Ed. 422 (1947). Nor is there any question of the validity of the principle that “[t]he Bureau of Prisons and the Parole Board operate from the basic premise that prisoners placed in their custody are to be rehabilitated and restored to useful lives * * Hyser v. Reed, 115 U.S.App.D.C. 254 , 318 F.2d 225, 237 (1963) (en banc), cert. denied, Jamison v. Chappell, 375 U.S. 957 , 84 S.Ct. 447 , 11 L.Ed.2d 316 (1963). See also Note, Constitutional Law: Parole Status and the Privilege Concept, 1969 Duke L.J. 139 , 142-43. In order to effectuate these purposes, the United States Parole Board is vested with broad discretion to set the terms and conditions on which a parolee may be released. See 18 U.S.C. § 4203 (1964). 1 That *1167 authority extends with equal force to mandatory releasees, who are “deemed as if released on parole.” 18 U.S.C. § 4164 (1964). Courts presented with the question of determining what conditions may be imposed on a parolee, have deferred to the judgment of the Parole Board. See, e. g., United States v. Binder, 313 F.2d 243 (6th Cir. 1963). See also Note, Parole Revocation in the Federal System, 56 Geo.L.J. 705, 707-709 (1968). Such deference is justified not only on the ground that Congress has given the Parole Board wide discretion in this instance, but because the underlying policy of parole — to restore the individual to productive citizenship— demands uniform and expert treatment, which the Board is believed best equipped to provide. Hence if I were presented with a case in which a condition of parole required the parolee to give a satisfactory account of himself to parole officers, or to permit a search of his person by parole officers, I would be inclined to give that determination by the Parole Board considerable weight. See Holtzoff, The Power of Probation and Parole Officers to Search and Seize, 31 Federal Probation 3, 7 (December 1967) (suggesting consent to searches as a condition of parole) . 2 In such circumstances we could safely assume that the Board has fully weighed the competing considerations of public safety and personal rehabilitation, and had arrived at what it, in its informed discretion, believed to be the proper resolution. We *1168 would have the support of a body of experts in effect declaring that the dangers of harassment had been properly evaluated, and that on balance, this type of surveillance must take precedence over parolees’ privacy.

There are good practical reasons for preferring an antecedent determination that spells out the conditions on which a parolee is set at liberty. Parole is far more apt to be successful when limitations on the parolee’s freedom are delineated with some degree of certainty. How does one stay gainfully employed if there remains an ever-present anticipation of virtually unbridled questioning and searches? How does one maintain the semblance of a normal home life under such conditions? The Chief Justice of the United States recently remarked in a related context, “We take on a burden when we put a man behind walls, and that burden is to give him a chance to change.” He went on to say that “If we deny him that, we deny him his status as a human being and to deny that is to diminish our humanity and plant the seeds of future anguish for ourselves.” Address of Chief Justice Warren Burger at the Association of the Bar of the City of New York, Feb. 17, 1970, reported in the New York Times, Feb. 18, 1970, p. 16. Certainly, these interests are rarely absolutes, particularly in the case of one who owes his liberty to Congressional grace — but they are real interests nonetheless, and we ought not to assume lightly that Congress or its agent the Parole Board meant them to be entirely subordinated to the whims of local police officers.

The underlying rationale for excluding evidence seized after an unreasonable search is to impose “a restraint upon the activities of sovereign authority,” Burdeau v. McDowell, 256 U.S. 465, 475 , 41 S.Ct. 574, 576 , 65 L.Ed. 1048 (1921). The interests involved when we balance individual liberty against the aim of reducing crime are difficult enough to define, and are perhaps even less receptive to evaluation and definition when applied to parolees. 3 For that reason, as well as those I have already mentioned, I would prefer to have the Parole Board, the agency Congress has charged with striking that balance in the first instance, spell out in precise terms — before release — its determination that searches like the one to which Sperling was subjected were reasonable in terms of both overall goals of parole and the dangers of harassment or worse.

Like my brother LUMBARD, however, I am unwilling at this time to say that the Parole Board’s failure to set conditions for searches on parolees requires us to order Sperling released. While I am perhaps less, inclined than he to believe that there is any considerable likelihood that sporadic searches by police officers have any great effect on the allocation of parole officers’ time between supervision and rehabilitation, I would be reluctant at this time in view of the substantial possibility of disruption of the parole system to rule retroactively that the Parole Board may act only through conditions imposed in advance.

. Present conditions, which are the same for youthful offenders, ordinary parolees, and mandatory releasees like Sperling, are set out on the reverse side of the parolee’s certificate of parole and are as follows:

CONDITIONS OF PAROLE

1. You shall go directly to the district shown on this CERTIFICATE OF PAROLE [underlined words deleted on form for mandatory releasee] (unless released to the custody of other authorities). Within three days after your arrival, you shall report to your adviser if you have one, and to the United States Probation Officer whose name appears on this Certificate.

2. If you are released to the custody of other authorities, and after your release from physical custody of such authorities, you are unable to report to the United States Probation Officer to whom you are assigned within three days, you shall report instead to the nearest United States Probation Officer.

3. You shall not leave the limits fixed by this CERTIFICATE OF PAROLE without written permission from the probation officer.

4. You shall notify your probation officer immediately of any change in your place of residence.

5. You shall make a complete and truthful written report (on a form provided for that purpose) to your probation officer between the first and third day of each month, and on the final day of parole. You shall also report to your probation officer at other times as he directs.

6. If in any emergency you are unable to get in touch with your parole adviser, or your probation officer or his office, you shall communicate with the United *1167 States Board of Parole, Department of Justice, Washington, D. C. 20537.

7. You shall not violate any law. You shall get in touch immediately with your probation officer or his office if you are arrested or questioned by a law-enforcement officer.

8. You shall not enter into any agreement to act as an “informer” or special agent for any law-enforcement agency.

9. You shall work regularly unless excused by your probation officer and support your legal dependents, if any, to the best of your ability. You shall report immediately to your probation officer any changes in employment.

10. You shall not drink alcoholic beverages to excess. You shall not purchase, possess, use, or administer marihuana or narcotic or other habit-forming or dangerous drugs, unless prescribed or advised by a physician. You shall not frequent places where such drugs are illegally sold, dispensed, used or given away.

11. You shall not associate with persons who have a criminal record unless you have permission of your probation officer. Nor shall you associate with persons engaged in criminal activity.

12. You shall not have firearms (or other dangerous weapons) in your possession without the written permission of your probation officer, following prior approval of the United States Board of Parole.

I have read, or had read to me, the foregoing conditions of parole. I fully understand them and know that if I violate any of them, I may be recommitted. I also understand that special conditions may be added or modifications of any condition may be made by the Board of Parole at any time.

New York recently amended its parole conditions. See 9 N.Y.C.R.R. § 155.15(c), which provides that a parolee “hereby consents to any search of his person, his residence, or any property or premises under his control which the Board of Parole or any of its representatives may see fit to make at any time in their discretion.” See also United States ex rel. Randazzo v. Follette, 418 F.2d 1319 (2d Cir. 1969), at 1320 n. 4. Without necessarily approving the New York regulation, it is interesting to note that all such searches must be made by a representative of the New York Board of Parole.

. “Waiver” or “consent” language may be inappropriate, although it is occasionally relied upon. See Holtzoff, supra, at 7. Although the parolee is required to sign the form, and assent to the conditions contained on it, see note 1, supra, the conditions apply whether he signs the form or not. See, e. g., Welch v. Taylor, 292 F.2d 481, 482 (10th Cir. 1961) ; Hicks v. Reid, 90 U.S.App.D.C. 109 , 194 F.2d 327, 329 (mandatory release), cert, denied, 344 U.S. 840 , 73 S.Ct. 51 , 97 L. Ed. 653 (1952) ; United States ex rel. Ostin v. Warden, 296 F.Supp. 1135 (S.D. N.Y.1969). Arguably, the releasee consents by leaving the prison. More practically, the conditions may be viewed as reasonable incidents to parole status, with no fictional consent or waiver required to support them.

. Recent Supreme Court decisions have underlined the use of a balancing test to determine whether a search is “unreasonable” for fourth amendment purposes. See, e. g., Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed .2d 889 (1968) (warrantless “frisk” permissible) ; Sibron v. New York, 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968) (“frisk” impermissible). See also See v. City of Seattle, 387 U.S. 541 , 87 S.Ct. 1737 , 18 L.Ed. 2d 943 (1967); Camara v. Municipal Court, 387 U.S. 523 , 87 S.Ct. 1727 , 18 L.Ed.2d 930 (1967) (requiring warrants for administrative searches, but imposing a lower standard of probable cause) ; LaFave, “Street Encounters” and the Constitution: Terry, Gibson, Peters and Beyond, 67 Mich.L.Rev. 39, 55-59 (1968) ; The Supreme Court, 1967 Term, 82 Harv.L.Rev. 63, 181 (1968).