Opposition — Schneider v. Arkansas

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NO. 80-542

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IN THE

Supreme Court Of The United States

OCTOBER TERM, 1980

DIANNA SCHNEIDER

Petitioner

vs.

STATE OF ARKANSAS

Respondent

On PETITION FoR Writ oF CERTIORARI

To THE SUPREME CourRT oF ARKANSAS

BRIEF FOR RESPONDENT

IN OPPOSITION TO PETITION

STEVE CLARK

Attorney General of Arkansas

By: Jack W. Dickerson

Assistant Attorney General

Justice Building

Little Rock, Arkansas 72201

(501) 371-2007

Attorneys for Respondent

P.C.--B-055 50 COPIES

Ey ——————————————

NO. 80-542

Supreme Court Of The United States

OCTOBER TERM, 1980

DIANNA SCHNEIDER

Petitioner

Vs.

STATE OF ARKANSAS

Respondent

On PETITION FOR WRIT oF CERTIORARI

To THe SuPREME CourT oF ARKANSAS

BRIEF FOR RESPONDENT

IN OPPOSITION TO PETITION

QUESTION PRESENTED FOR REVIEW

WHETHER IN STATE COURT REVOCATION OF

PROBATION PROCEEDINGS IT IS PERMISSIBLE FOR

THE STATE TO ADMIT EVIDENCE SEIZED PURSUANT

TO A VALD SEARCH WARRANT (ALLEGED HERE TO

BE INVALID) IN SUPPORT OF ITS PETITION TO

REVOKE PROBATION.

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW .............. i

TABLE OF AUTHORITIES .......... Soneen en ea veel iii

CPE BA is cc kc nnscedaart vnvevnsctaanaues Vv

JURISDICTIONAL GROUNDS .........ccccceeeeeeeee v

CONSTITUTIONAL PROVISIONS INVOLVED ........ v

STATEMENT OF THE CAGE 2... cccccsccssccvcctcces vi

REASON FOR DENYING THE WRIT ................. 1

CY vs eck a nvnswseeesbes

iii

TABLE OF AUTHORITIES

CASES:

Congress of Industrial Organizations v. McAdry,

ED fa pW aisd sick vvesseescevees

Elkins v. United States, 364 U.S. 206 (1960) .......

Fay v. Noia, 372 U.S. 391 (1963) ..................

Frad v. Kelley, 302 U.S. 312 (1937) ...............

Grogan v. United States, 262 F.2d 78 (5th Cir. 1958)

Harris v. New York, 401 U.S. 222 (1971) ...........

Morrissey v. Brewer, 443 F.2d 942, cert. denied, 404

ELS |

Quong Ham Wah Co. v. Industrial Acc. Commission,

MED Si doe iswscesesccsveccesews

Raley v. Ohio, 360 U.S. 423 (1959) ................

Rice v. Sioux City Memorial Park Cemetery, 349

LES RS ee

Schneider v. State, 269 Ark. 245, 599 SW2d 730

SERRE Sih sa bedvvsonsevacesesacee’s

Stone v. Powell, 428 U.S. 465 (1976)

U.S. ex rel. Lombardino v. Heyd, 318 F. Supp. 648

(E.D. La. 1970), aff’d 438 F.2d 1027 (5th Cir.

1970), cert. denied, 404 U.S. 880 (1971) .......

United States v. Brown, 488 F.2d 94 (5th Cir. 1973)

United States v. Calandra, 414 U.S. 338 (1974)

United States v. Farmer, 512 F.2d 160 (6th Cir.

1975), cert. denied, 423 U.S. 987 (1975) ............ 3

United States v. Hill, 447 F.2d 817 (7th Cir. 1971) ....... 3

United States v. Janis, 428 U.S. 433 (1976) .............. 5

United States v. Rushlow, 385 F. Supp. 795 (D.C.

Cal. 1974), aff'd, 541 F.2d 287 (1976), cert. den.,

i Ae ee SE hi lodé cen keke deen s dd acu cusses 4

United States v. Vandemark, 522 F.2d 1019 (9th Cir.

SE o'0sebe Seu niod 01 ER eReas 6 1S dERCEOKS OSC SiaN ES 3

United States v. Winsett, 518 F.2d 51 (9th Cir. 1975) ..... 3

United States v. Wiygul, 578 F.2d 577 (5th Cir. 1978) ..... 3

CONSTITUTIONAL PROVISIONS AND STATUTES:

United States Constitution, Fourth Amendment ........ vi

Ark. Stat. Ann. §41-1209(3) (b) (Repl. 1977) ...... v, vi, 1

MISCELLANEOUS:

Rules of the Supreme Court of the United States,

effective June 30, 1980, Rule 17 .................... 1

OPINION BELOW

The opinion of the Arkansas Supreme Court is found

at 269 Ark. 245, 599 SW2d 730 (1980), and is reproduced in

the appendix to the Petition for Writ of Certiorari at page

A-l.

JURISDICTION

The petitioner relies upon 28 U.S.C. §1257(3) as the

basis for this Court’s jurisdiction. That section provides

discretionary review by this Court, “where the validity of a

State statute is drawn in question on the grounds of its

being repugnant to the Constitution... of the United

States.” This Court has held that where the issue raised on

certiorari has not been previously presented to, or decided

by the State Supreme Court, the Court is without jurisdic-

tion to review the issue on certiorari. Raley v. Ohio, 360

U.S. 423, 436 (1959); Congress of IndustrioL Organizations

v. McAdry, 325 U.S. 472, 477 (1944).

In the present case, petitioner did not raise the alleged

unconstitutionality of Ark. Stat. Ann. §41-1209(3) (b>

(Repl. 1977) in her appeal to the Arkansas Supreme Court,

raising rather the admissibility and sufficiency of evidence

presented at her revocation hearing. Since the State Court

resolved these issues against petitioner, it specifically

stated that it did not address the issue raised herein. Since

the State Court did not decide the issue raised here, juris-

diction for certiorari does not lie.

CONSTITUTIONAL PROVISIONS INVOLVED

The petitioner has adequately set forth the constitu-

tional provisions involved.

STATEMENT OF THE CASE

On January 25, 1977, the petitioner pled nolo contendere

to possession of heroin, amphetamines, and marijuana with

the intent to deliver. She was sentenced to five years

probation. On February 5, 1979, the State filed a petition to

revoke petitioner’s probation contending: that petitioner

had committed the offense of possession of marijuana; that

during her probation period petitioner had actively engaged

in the selling of marijuana and other illicit drugs; and that

she had committed the offense of felon in possession of a

firearm.

At petitioner’s revocation hearing, the State admitted

evidence seized pursuant to a valid search warrant for the

search of petitioner’s house. The court hearing the revoca-

tion petition specifically upheld the validity of the search

warrant. Petitioner appealed that finding alleging that the

search warrant was in violation of a State procedural rule.

She did not allege at that time that the search was con-

ducted in violation of the Fourth Amendment to the United

States Constitution. Nor did she challenge the constitu-

tionality of Ark. Stat. Ann. §41-1209(3)(b) (Repl. 1977),

which allows the admissibility of relevant evidence in

probation revocation proceedings regardless of its admissi-

bility in a criminal trial.

On appeal, the Arkansas Supreme Court found that the

search warrant was valid and proper and therefore found

it unnecessary to address the issue of the constitutionality

of §41-1209(3) (b). In her pettion for certiorari, petitioner

is asking this Court to review a decision not reached by the

Arkansas Supreme Court.

REASONS FOR DENYING THE WRIT

Numerous reasons exist for this Court to refuse to

review the issue raised in Dianna Schneider’s petition. It is

noted in Rule 17 of the Rules of the Supreme Court that a

review on a writ of certiorari is not a matter of right, but

of judicial discretion, and will be granted only when there

are special and important reasons therefor. Rule 17(1)

goes on to set out the general considerations governing

review of state court decisions as follows:

(b) when a state court of last resort has decided

a federal question in a way in conflict with

the decision of another state court of last

resort or of a federal court of appeals.

portant question of federal law which has not

been, but should be, settled by this Court, or

has decided a federal question in a way in

conflict with applicable decisions of this

Court.

(Emphasis added.)

The decision which petitioner asks the Court to review

is one which has not yet been made. The Arkansas Supreme

Court specifically declined to address the constitutionality

of §41-1209(3)(b) because the evidence admitted at peti-

tioner’s revocation hearing was legally seized pursuant to

a valid search warrant. (See the Court’s decision at pages

A-9, A-10 of petitioner’s brief.) The petitioner does not

seriously contest this finding on admissibility of the evi-

dence, but rather, merely tells the Court that “it will have

no problem” circumventing the State’s Court ruling on

admissibility of the evidence, if the Court deems that

necessary to resolve the issue raised in his petition. (Her

brief page 6) Although this contention may be correct, for

practical purposes, it better shows the reasons why this

Court should deny certiorari.

Special and important reasons require that certiorari

be granted. Fay v. Noia, 372 U.S. 391 (1963). Special and

important reasons are those which reach issues of constitu-

tional dimensions, Rice v. Sioux City Memorial Park Ceme-

tery, 349 U.S. 70 (1955), and which present a real not a

fictitious, federal issue. Quong Ham Wah Co. v. Industrial

Acc. Commission, 255 U.S. 445 (1921).

A probation revocation proceeding is administrative in

nature. It is not an adversarial proceeding, being neither a

civil action nor a criminal prosecution. U.S. ex rel. Lom-

bardino v. Heyd, 318 F. Supp. 648, 652 (E.D. La. 1970), aff'd,

438 F.2d 1027 (5th Cir. 1970), cert. denied, 404 U.S. 880

(1971).

It has not been the practice of the Federal courts to

concern themselves with areas which have traditionally

been matters of State concern. See, Morrissey v. Brewer,

443 F.2d 942, cert. denied, 404 U.S. 999 (1971). Respondent

submits that administrative procedures are matters of State

concern and are not proper considerations of this Court.

Petitioner had previously been found guilty of a felony

so the criminal prosecution was completed. Frad v. Kelley,

302 U.S. 312 (1937). Her guilty verdict is not at issue here,

only the revocation of her probated sentence, an issue this

Court has previously refused to entertain. Lombardino,

supra.

If petitioner’s petition is granted, she will be asking the

Court to rule that the exclusionary rule is applicable to

probation revocation hearings. Federal courts have con-

sistently refused to apply this judicially created rule to

federal probation revocation proceedings. See, Grogan v.

United States, 262 F.2d 78 (5th Cir. 1958); United States v.

Brown, 488 F.2d 94 (5th Cir. 1973); United States v. Farmer,

512 F.2d 160 (6th Cir. 1975), cert. denied, 423 U.S. 987

(1975); U.S. ex re’ Lombardino v. Heyd, 318 F. Supp. 648,

aff'd, 438 F.2d 1027 (5th Cir. 1970), cert. denied, 404 U.S.

880; United States v. Hill, 447 F.2d 817 (7th Cir. 1971);

United States v. Winsett, 518 F.2d 51 (9th Cir. 1975); United

States v. Vandemark, 522 F.2d 1019 (9th Cir. 1975); United

States v. Wiygul, 578 F.2d 577 (5th Cir. 1978).

These cases reason that since the avowed purpose of

the exclusionary rule is to deter police misconduct, Elkins v.

United States, 364 U.S. 206 (1960), the maximum deterrent

purpose is achieved by excluding the evidence from the

criminal prosecution. Any deterrent effect which might be

achieved by excluding the evidence from probation revoca-

tion hearings would be minimum. See, Harris v. New York,

401 U.S. 222 (1971), where this Court said:

Assuming that the exclusionary rule has a deter-

rent effect on proscribed police conduct, sufficient

deterrence flows when the evidence in question is

made unavailable to the prosecution in its case in

chief.

(Emphasis added) 401 U.S. at 225.

Since the exclusionary rule prevents the use of good

reliable evidence, allowing the guilty to go free, minimum

(if not non-existent) deterrence does not justify the exclu-

sion of reliable evidence from the revocation proceeding.

The federal courts have balanced the potential benefits

of thus expanding the exclusionary rule against the poten-

tial injury to the functioning of probation revocation

proceedings, and have found the injury to outweigh the

benefits. Since the purpose of probation is to promote the

rehabilitation of the criminal, allowing him to re-integrate

into society, it is of utmost importance for the courts to be

allowed to consider all reliable evidence to determine

whether probation requirements are complied with. Failure

to meet those conditions may indicate that the probationer

is incapable of rehabilitation by integration.

This was the case in petitioner’s case. Convicted for

selling controlled substances, the State in its grace, placed

her on probation hoping to accom»lish rehabilitation.

Petitioner capitalized on this misplaced leniency by con-

tinuing her illicit trade.

The federal courts have provided an exception to the

general rule that illegally seized evidence is admissible at

revocation hearings. If the evidence seized results from

police harassment or intentional police misconduct aimed

at creating a probation revocation, the evidence will not be

admitted. See, e.g., United States v. Rushlow, 385 F. Supp.

795 (D.C. Cal. 1974p cert. denied, 429 U.S. 984 (1976),

aff'd, 541 F.2d 287 (1976).

Although certiorari may be grante' on this issue in a

proper case, this is not such a case. In the petitioner’s case

legally seized evidence was admitted rather than evidence

seized in violation of the constitution. Here no bad faith or

illegality on behalf of the law enforcement authorities is

alleged or proven. Rather, the police concientiously sought

to comply with the warrant requirement of the Fourth

Amendment and the Supreme Court of Arkansas has found

that the warrant was properly obtained and executed. This

is not a case when police authorities flaunted the Fourth

Amendment’s mandate, secure in the knowledge that the

fruit of this action would nonetheless be admissible.

This Court has shown a disinclination to extend the

impact of the exclusionary rule. Stone v. Powell, 428 U.S.

465 (1976); United States v. Janis, 428 U.S. 433 (1976);

United States v. Calandra, 414 U.S. 338 (1974). This is not

the type of case which will justify further expansion of the

rule.

CONCLUSION

This Court should not grant certiorari to review an

issue not first addressed to, or decided by the State Supreme

Court. Petitioner should not be allowed to anticipate how

the State Court would rule on the issue if properly raised

and then argue that this hypothetical ruling is in conflict

with established rulings of other states.

The scope of the exclusionary rule should not be

expanded to include probation revocation. The facts of the

instant case certainly do not justify such an expansion.

Respectfully submitted,