Petition — Basso v. United States

| Supreme Court, U. S.

80-823 14 FILED

NOV 19 1980

MICHAEL RODAK, JR., CLERK

No.

In The

Supreme Court of the United States

October Term, 1980

SALVADOR CHARLES BASSO,

. Petitioner

VS.

UNITED STATES OF AMERICA

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

J. Daniel Sagarin, Esq.

William Barnes, Esq.

Solicitor General of

The United States

Department of Justice

Washington, D.C. 20530

Carolyn Gaines

Attorney-at-Law

Department of Justice

P.O. Box 899

Benjamin Franklin Sta.

Washington, D.C. 20044

Counsel for the Government

November 18, 1980

Harrigan, Hurwitz, Sagarin

& Rutkin, P.C.

147 North Broad Street

Milford, Connecticut 06460

(203) 877-6071

Counsel for Petitioner

QUESTION PRESENTED

Whether liberty interests of a mini-

maly supervised probationer in the last

Six weeks of his probation are suffi-

ciently substantial to require that they

not be interfered with except upon ar-

rest procedures which meet Fourth Amend-

ment standards or upon use of an order to

show cause based upon facts supported by

oath or affirmation?

ii

TABLE OF CONTENTS

QUESTION PRESENTED. .cceeeceeceseveces

TABLE OF CONTENTS. ccwcccccveccevecece

TABLE OF AUTHORITIES. .cccecscvcvvvcves

TITLE PAGE. ccc cccccceccesesessecesece

OPINIONS BELOW. .cccccccceccesveccvces

JURISDICTION. .ccecccecceeevesvecssecs

CONSTITUTIONAL AND STATUTORY PRO-

VISIONS BVUUEDc cece cece eeeececeeese

STATEMENT OF THE 0 a ea

Ee STATEMENT OF THE FACTS. eeeeeseee#es

II. STATEMENT OF PROCEEDINGS BE-

) rrr erreLEePePELeELeELey

REASONS FOR GRANTING THE WRIT OF

9 | | rae a ee ee eee

I. THIS CASE PRESENTS THE OP-

PORTUNITY FOR THIS COURT

TO DEFINE THE SCOPE OF PRO-

BATIONERS' LIBERTY INTERESTS

AND THEIR RIGHT TO DUE PRO-~-

CESS AND TO FREEDOM FROM

ARRESTS WITHOUT PROBABLE

Teer. ee ee ee ee

II. THE DECISION OF THE COURT OF

APPEALS IS CONTRARY TO DECI-

SIONS OF THIS COURT DECLAR-

ING THAT PROBATIONERS CANNOT

Page

i

ii

iv

1

19

iii

Page

BE DEPRIVED OF FREEDOM WITH-

OUT DUE PROCESS OF LAW.....2... 24

III. THIS COURT WAS NOT YET DE-

CLARED WHAT PROCEDURES ARE

CONSTITUTIONALLY REQUIRED

BEFORE A PORBATIONER CAN BE

DEPRIVED OF LIBERTY BY A

PROBATION REVOCATION ARREST

WARRANT. cccccccccccccccccccscese 29

APPENDIX (Separate volume)

iv

TABLE OF AUTHORITIES

Constitutional

Provisions and

Statutes

United States

Amendment IV..

United States

Amendment V...

Constitution,

Constitution,

United States Constitution,

Amendment XIV.

18 U.8-C. Be GS Sc he cececececeseeeceses

28 G.8.C. CT ese (Th cccceceesececceeses

Cases

Enomoto v. Wright, 434 U.S. 1052

bi er

Gagnon v. Scarpelli, 411 U.S. 778

(1973) cccccee

Greenholtz v.

Nebraska Penal

Inmates, 442 U.S. 1 Oh y. ) Rarer rere

Henrique v. United States Marshal,

476 F. Supp. 618 (N.D. Cal.

Tere leceseeeks

Hyser v. Reed,

318 F.2d 225 (D.C.

Cir.), cert. denied, 375 U.S. 957

(TSE6Z) ccoceccere

Jarman v. United States, 92 F.2d

309 (4th Cir.

fs OPT TT TTT TTT

Page

i,2

3

3

3

2

24

24

27

28

27

Page

Latta v. Fitzharris, 521 F.2d 246

(9th Cir.), cert. denied, 423 U.S.

897 (TOTS) cccccececceeseeeseeeoceosees 22

Morrissey v. Brewer, 408 U.S. 471

CUPP adececoeseoeeeessecesceseceeeeseace 19

Story v. Rives, 97 F.2d 182 (D.C.

Cir.), cert. denied, 305 U.S. 595

(1938) cccccceccesccecceseceseescooce 27

United States ex rel. Nicholson v.

Dillard, 102 F.2d 94 (4th Cir.

TPS 65 06 060666868 06066060666046686668 27

United States ex rel. Randazzo v.

Follette, 282 F. Supp. 10 (S.D.N.Y.

1968), aff'd. in part, 418 F.2d

1319 (2d Cir. 1969), cert. denied,

462 U.B. BBS CUDTU) cccesccsesesccese 20

United States ex rel. Santos v.

New York State Board of Parole,

441 F.2d 1216 (2d Cir. 1971),

cert. denied, 404 U.S. 1025

LUStadccetcceteococescresesesesncesoscs OF

United States v. Bradley, 571 F.2d

787 (4th og bo, ) rere se 22

United States v. Jackson, 22

Foemels 38 (S.D.N.Y. io ) eee 28

United States v. Langford, 369 F.

Supp. 1107 (N.D. Ill. bo. ) re 33

United States v. Polito, 583 F.2d

48 (2d Cir. bo: ) rer TT 25

United States v. Sciuto, 531 F.2d

842 (7th os TP 197000666 086086846586688 31

vi

United States v. Workman, 585 F.2d

1205 (4th og FF Cg ) errr ee eee

Vitek v. Jones, U.S. ’

100 BeGee 1254 PT eels ee beh 6s 6460000840

Wolff v. McDonnell, 418 U.S. 539

(1974) wcrcccccccccccccccccccccccccccs

24

24

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

SALVADOR CHARLES BASSO,

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent —

Petition for a Writ of Certiorari to

the United States Court of Appeals for

the Second Circuit.

TO THE HONORABLE CHIEF JUSTICE AND

ASSOCIATE JUSTICES OF THE SUPREME COURT

OF THE UNITED STATES:

The above-named Petitioner respect-

fully prays that a Writ of Certiorari

issue to review the judgment and opinion

of the United States Court of Appeals for

the Second Circuit entered in this pro-

ceeding on September 23, 1980.

OPINIONS BELOW

The opinion of the court of appeals is

not yet reported. Excerpts appear in 28

Cr. L. Rptr. 2104 (Oct. 29, 1980). The

Slip Opinion is attached as Appendix A.

The opinion of the district court was not

reported, and is attached as Appendix B.

JURISDICTION

The opinion of the court of appeals

was issued on September 23, 1980. The

jurisdiction of this court is invoked

under 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the United

States Constitution provides, in perti-

nent part, as follows:

The right of the people to be se-

cure in their persons, houses,

papers and effects, against un-

reasonable searches and seizures,

shall not be violated, and no

Warrants shall issue, but upon

probable cause, supported by Oath

or affirmation, and particular-

ly describing the place to be

searched, and the persons or

things to be seized.

The Fifth Amendment to the Constitu-

tion of the United States provides, in

pertinent part, as follows:

No person shall be ... deprived of

life, liberty or property without

due process of law.

The Fourteenth Amendment to the Con-

stitution of the United States provides,

in pertinent part, as follows:

No State shall make or enforce any

law which shall abridge the privi-

leges or immunities of the citi-

zens of the United States; nor

shall any State deprive any person

of life, liberty or property with-

out due process of law.

18 U.S.C. §3653 provides, in perti-

nent part, as follows:

At any time within the probation

period, the probation officer may

for cause arrest the probationer

wherever found, without a warrant.

At any time within the probation

period, or within the maximum

probation period permitted by

section 3651 of this title, the

court for the district in which

the probationer is being super-

vised, or if he is no longer un-

der supervision, the court for the

district in which he was last un-

der supervision, may issue a war-

rant for his arrest for violation

of probation occurring during the

probation period. Such warrant

may be executed in any district

by the probation officer or the

United States marshal of the dis-

trict in which the warrant was

issued or of any district in which

the probationer is found.

STATEMENT OF THE CASE

A. STATEMENT OF THE FACTS.

Petitioner Salvador Charles Basso was

charged on March 11, 1975 with two counts

of income tax evasion in violation of 26

U.S.C. §7201. The petitioner entered

into a plea bargain. The United States

Attorney agreed that the government would

not protest if the petitioner pleaded

nolo contendere and got a suspended sen-

tence. Def's Ex. 3."

This proposal was presented to United

States District Judge Robert C. Zampano,

who said he would go along if the govern-

ment disavowed any claim that the untaxed

money came from organized crime. Def's

Ex. 1. At Judge Zampano's request this

agreement was confirmed in a letter to

the United States Attorney. A copy was

sent to Judge Zampano. Def's Ex. 3; Tr.

180-183.

On January 14, 1977 the petitioner was

sentenced on the second count to three

years imprisonment and a $4,000.00 fine,

the first count to be dismissed, with

sentence suspended. Tr. 48. The Court

1

The Transcript of the combined probable

cause and motion to dismiss hearing held on

March 12, 1979 is cited: "Tr. 0" Ex-

hibits offered at that hearing are cited as

such, without date. References to trans-

cripts of other proceedings below are cited

by date and page: "2/22/79 Tr. .

then imposed two years of probation.

Def's Ex. 2.

The petitioner was placed under the

supervision of U.S. Probation Officer

Joseph Gagne. Tr. 21. In January, 1977

Officer Gagne presented petitioner with

"Probation Form No. 7" which gave the

term and the conditions of petitioner's

probation. Tr. 22-23, Tr. 147. Condi-

tion No. 2 read "You shall associate only

with law abiding persons and maintain

reasonable hours." Tr. 101. Officer

Gagne recalled giving the petitioner his

customary warning to probationers, which

was: ncc to associate with persons who

were on probation or parole, or who had

criminal records, or who were presently

engaging in criminal activity, er who

were the probationer's co-defendants in

the case in which he was convicted. Tr.

156.

Officer Gagne did not tell the peti-

tioner how to avoid association with

persons of this description who were

customers of the petitioner's active

restaurant and oil businesses. Tr. 157.

Officer Gagne showed his confidence in

the petitioner by informing him on July

27, 1978 that henceforth he would report

in person only once every three months,

as Supervising U.S. Probation Officer

Tommaso D. Rendino and Officer Gagne had

concluded petitioner's would be a "“mini-

mum supervision case". Tr. 58-59. The

last meeting with Officer Gagne would

thus arise in November, 1978. Tes

148.

It was at around this time, late July

1978, that another probation officer, Of-

ficer Pond, decided that the petitioner

had violated his probation. Pond was

Supervising Francis Curcio, a probationer

Suspected of complicity in a drug ring.

Tr. 73, 127-28. Pond read an undercover

report which said that three men with

tangential relationships with Curcio had

eaten lunch in petitioner's restaurant.

One of the three had reported a talking

to Basso about illegal gambling. Tr.

88-89, 73, 127-28. Officer Pond men-

tioned this report to Officer Gagne. Tr.

SS, 150, 1586, Officer Gagne made no

record in petitioner's file and never

mentioned the report to the petitioner.

Tr. 89.

In October, 1978 Pond met with Officer

Gagne and Officer Rendino to discuss the

report. A notation indicating possible

violation of Condition No. 2 was made in

petitioner's file. Tre. t30;. However,

Officer Gagne neither contacted peti-

tioner for an explanation nor started

revocation proceedings. Tr. 1151. Of-

ficer Gagne testified that in fact he

had had no problem with the petitioner

during the entire period of supervision,

Tr. 152, 162, and had learned nothing new

connecting him with organized crime. Tr.

163.

Officer Gagne learned in late October

that he would be transferred. Tr. 159.

On November 28, 1978, before any gen-

eral disposition of Officer Gagne's case-

load, Pond took over the petitioner's

file. Tr. 50, 88, 152. Neither Officer

Gagne nor Officer Pond could explain

later why the petitioner's file was

transferred before the rest. The peti-

tioner's case was the only one, out of

all the cases transferred by Officer

Gagne, with only a few weeks remaining in

the period of probation. Tr. 162.

10

In November the petitioner visited

Officer Gagne for the next to last time.

Although Officer Gagne had possessed for

a month all of the facts later adduced to

justify revocation proceedings, and the

report was sitting in petitioner's file,

Officer Gagne did not raise the problem

with petitioner, ask for an explanation,

or even hint that probation might be

revoked. Tr. 151. Officer Gagne also

kept silent about his departure and the

impending transfer of the petitioner's

file.

On November 28, 1978 Pond officially

became the petitioner's probation of-

ficer. The day after transfer Pond put

the case for revocation before Supervis-

ing Officer Rendino. Tr. 139.

The petitioner came in at Pond's re-

quest on December 12th. Tr. 107. It

was their first and only meeting. Tr.

11

95. The petitioner told Pond that the

meeting had concerned debts owed him; two

of the men were customers of the peti-

tioner's oil business, Tr. 97, and had

failed to pay their bills.

Pond did not ask for corroboration or

investigate the petitioner's explanation,

though he had never spoken to the peti-

tioner before and had no basis on which

to judge his credibility. Tr. 124. Pond

did not mention to petitioner the matters

revealed to him in his Curcio investiga-

tions. The very next day Pond made out a

Form 12 application to District Judge

Robert C. Zampano for a warrant for the

petitioner's arrest and revocation of

probation. Tr. 107. The application was

accompanied by a two page secret memoran-

dum which purported to state the grounds

for revocation.

12

Only a small portion of the memoran-

dum, however, was devoted to the restau-

rant meeting. The remainder told of the

petitioner's supposed ties to organized

crime and the background of a totally

unrelated drug conspiracy. The thrust of

Pond's memo was that the petitioner, a

major organized crime figure intimately

involved with a drug conspiracy, had

initiated a meeting with other criminals

to further that conspiracy. Tr. 45. The

memorandum was not sworn under oath, Tr.

84, and contained no indication of the

source of Officer Pond's information or

his basis for considering the source

reliable. Tr. 85-86.

Judge Zampano was not shown the re-

ports underlying Officer Pond's state-

ments. 2/22/79 Tr. 9-11. Nor did Of-

ficer Pond tell Judge Zampano of the

petitioner's explanation for the meeting,

13

Tr. 97, or the fact that no-one had ever

connected Basso with the drug conspiracy.

Tr. 97.

Officer Pond and Supervising Officer

Rendino met privately with Judge Zampano.

Tr. 44. The deficiencies of the memoran-

dum were not made up at the meeting. Of-

ficer Pond mentioned the reports on which

he relied, but he did not say why he

credited his informants' conclusion that

Basso was part of a Mafia "family," or

connect the petitioner to the drug con-

Spiracy.

Later that week Pond described the al-

leged violation to a U.S. Attorney, who

in turn gave Judge Zampano an oral opin-

ion that this was a violation of Condi-

tion 2 which, if proved, would support

revocation. Tr. 45-47, 127. Officer

Pond resubmitted the Form 12 application

for revocation and an arrest warrant.

14

Both were signed on December 18, 1978.

Tr. 47.

B. STATEMENT OF PROCEEDINGS BELOW.

On December 18, 1978, the petitioner

was informed of the outstanding probation

revocation arrest warrant by the Proba-

tion Office, surrendered to the United

States Marshals Service, and was released

On personal recognizance. The petitione

was “arraigned" on December 19, 1978 be-

fore District Judge Zampano, at which

time his request for a preliminary hear-

ing was granted.

The petitioner moved to dismiss the

application and quash the warrant on

Fourth Amendment grounds, and for dis-

covery, on January 5, 1979. At a cham-

bers conference Judge Zampano mentioned

in passing Officer Pond's confidential

memorandum, which had not been provided

to the petitioner with the arrest war-

15

rant. The petitioner asked for the

memorandum, but Judge Zampano placed

it under seal at the government's re-

quest.

On March 12, 1979 another District

Judge, Ellen B. Burns, held a combined

hearing on both the constitutional issues

and probable cause. The petitioner re-

quested that the hearing encompass prob-

able cause because Pond's confidential

memorandum, which had been unsealed the

previous week, suggested misconduct by

Officer Pond in obtaining the warrant.

On November 2, 1979, Judge Burns

issued a lengthy and comprehensive ruling

quashing the probation violation arrest

warrant for failure to meet the require-

ments of the Due Process clause and the

Fourth Amendment. Appendix B. The

Government appealed on November 30,

1979,

16

On September 23, 1980 the Second Cir-

cuit, through Judges Lumbard, Mansfield

and Mulligan, reversed the district court

order and remanded for further proceed-

ings. Appendix A. On October 22, 1980

the same panel, without explanation,

issued an “Order Amending Opinion"

changing the court's disposition from

"Reversed and remanded" to "“Remanded."”

This Order was supplemented with another

making minor changes. This petition

addresses that portion of the court of

appeals ruling which reverses the order

guashing the arrest warrant, as that

portion of the opinion reversing the

district court order dismissing the

probation revocation proceeding is now

dicta.

17

REASONS FOR GRANTING

THE WRIT OF CERTIORARI

This Court should grant the writ for

the following reasons:

1. This case offers the Court the op-

portunity to clarify the relationship

between probationers' liberty interests

and their rights to due process of law

and arrests not based on probable cause.

2. The decision of the court of ap-

peals is contrary to decisions of this

Court guaranteeing that probationers

cannot be deprived of freedom without due

process of law.

3. This Court has not yet declared

what procedures are constitutionally re-

quired before a probationer can be

deprived of his or her interest in

liberty by a probation revocation arrest

warrant.

These questions raise important issues

of federal law, and the opinion of the

18

court of appeals calls for the exercise

of this Court's power of supervision.

19

I. THIS CASE PRESENTS THE OPPORTUNITY

FOR THIS COURT TO DEFINE THE SCOPE OF

PROBATIONERS' LIBERTY INTERESTS AND

THEIR RIGHT TO FREEDOM FROM ARRESTS

WITHOUT PROBABLE C.:1USE AND IN DUE

PROCESS.

This court has repeatedly held that

parolees and probationers have substan-

tial liberty interests. See, e.g., Gag-

non v. Scarpelli, 411 U.S. 778 (1973);

Morrissey v. Brewer, 408 U.S. 471 (1972).

These liberty interests are determined by

the actual degree and type of liberty

enjoyed by the parolee or probationer,

not formulas such as “constructive cus-

tody," or the discredited "right/privi-

lege" distinction. The probationer here

had a strong expectation of liberty. He

was a “minimum supervision" probationer

in the last month of a two year probation

period imposed as the result of a plea

bargain. He had heard no criticism of

his conduct from his probation officer.

At the time of arrest the incident relied

20

upon a revoke probation - a technical

violation of conditicns - was over four-

teen months old. All these factors sug-

gest that the petitioner's liberty inter-

ests approached those of an ordinary

citizen.

Yet the record shows the Probation

Office stripping the petitioner of his

liberty, by issuing a warrant for his

immediate arrest, without any of the

elementary due process protections

accorded ordinary citizens. The warrant

application was non-factual, conclusory,

and unsworn. It was supplemented with a

secret memorandum, also non-factual and

unsworn, and off the record conversa-

tions. Material information negating

probable cause to arrest was intentional-

ly omitted from the memorandum and ap-

Plication. Any one of these defects

would invalidate a normal warrant, yet

21

the court of appeals approved, asserting

that the detention of a probationer is

"not an ‘arrest' for Fourth Amendment

purposes." Slip Cp. at 5780, App. 12a,

quoting United States v. Polito, 583 F.2d

48, 56 (2d Cir. 1978). The court of

appeals essentially held that the peti-

tioner was not entitled to any due pro-

cess protections because the arrest of a

probationer does not trigger the Fourth,

Fifth and Fourteenth Amendments.

This situation demands correction. At

best the court of appeals opinion so mini-

mizes the liberty interests of probation-

ers as to render them meaningless, At

worst, it denies them entirely. The dis-

trict court held that the petitioner's

' rights entitled him to protection from

being taken into custody for revocation

of probation without basic due process:

either by a warrant, issued on facts

22

showing probable cause supported by oath

or affirmation, or by an order to show

cause initiated by an affidavit. Numer-

ous other federal courts (significantly

not cited by the court of appeals here)

have ruled that parolees and probationers

have similar rights against unreasonable

searches. See, e.g., United States v.

Workman, 585 F.2d 1205 (4th Cir. 1978);

United States v. Bradley, 571 F.2d 787

(4th Cir. 1978); Latta v. Fitzharris, 521

F.2d 246 (9th Cir.), cert. denied, 423

U.S. 897 (1975) (Hufstedler, J. dissent-

ing); United States ex rel. Santos v. New

York State Board of Parole, 441 F.2d 1216

(2d Cir. 1971), cert. denied, 404 U.S.

1025 (1972). The district court con-

cluded: "“[i]f a probationer has certain

protectible Fourth Amendment rights

vis-a-vis searches and seizures, albeit

these rights are less than those accorded

23

an ordinary citizen, a probationer simi-

larly must have some protectible rights

regarding arrests." App. 52a. The

petitioner urges this Court to clarify

the law and confirm that the Fourth,

Fifth and Fourteenth Amendments apply

to the arrest of a probationer.

24

II. THE DECISION OF THE COURT OF APPEALS

IS CONTRARY TO DECISIONS OF THIS

COURT DECLARING THAT PROBATIONERS

CANNOT BE DEPRIVED OF FREEDOM WITH-

OUT DUE PROCESS OF LAW.

The due process guaranteed prisoners,

parolees, and probationers by the Fifth

and Fourteenth Amendments is the product

of careful and sensitive balancing. See

Vitek v. Jones, U.S. , 100 S,.

Ct. 1254, 1263-65 (1980), citing, inter

alia, Greenholtz v. Nebraska Penal In-

mates, 442 U.S. 1 (1979) (sufficient ex-

pectancy of parole to require constitu-

tional protection); Enomoto v. Wright,

434 U.S. 1052 (1978) (due process in

solitary confinement decisions); Wolff

Vv. McDonnell, 418 U.S. 539 (1974) (loss

Of good-time credit; solitary confine-

ment; due process protection of liberty

interests); Gagnon v. Scarpelli, 411 U.S.

778 (1973) (due process in probation

revocation decision); Morrissey vy.

25

Brewer, 408 U.S. 471 (1972) (due process

in parole revocation).

The court of appeals opinion does not

employ the balancing of Vitek, Gagnon,

and Morrissey. The court of appeals

instead extrapolated from a static,

preconceived notion of the lowly status

and reduced liberty interests of proba-

tioners. Slip. Op. at 5780, App. 12a.

These interests were so insignificant, in

the court's view, that a probation vio-

lation warrant could issue without formal

process or probable cause. The Fourth

Amendment did not apply because the de-

tention of a probationer did not rise to

the level of an "arrest."

It cited only one case for tnis du-

bious proposition: United States v.

Polito, 583 F.2d 48 (2d Cir. 1978). That

case concerned the authority to detain a

parolee conferred on local police by an

26

Outstanding parole violation warrant di-

rected to federal marshals. The govern-

ment appealed an order suppressing evi-

dence seized at the time of detention.

The Second Circuit reversed, holding that

the detention was warranted, and that the

local officer could search to protect his

Own safety. 583 F.2d at 53, 56. In

dicta it was asserted that the detention

of a parolee was "not an arrest for

Fourth Amendment purposes." 583 F.2d at

56.

Polito does not support the court of

appeals conclusion here. First, the

language cited was dicta containing a

specific denial that it encompassed a

ruling on the grounds or procedure for

Obtaining a parole violator arrest

warrant. 3603 F.26 at 42a. 3 Indeed,

the detention was sanctioned in part

because the existence of a valid warrant

27

issued on satisfactory evidence of

parole violation diminished Polito's

liberty interests. * See 583 F.2d at 55;

accord, Henrique v. United States Mar-

shal, 478 F.Supp. 618, 627 (N.D.Cal.

1979).

In the second place, the Polito court

relied upon obsolete dicta to support the

claim that the Fourth Amendment did not

apply to a parole arrest warrant. Polito

cited: Jarman v. United States, 92 F.2d

309, 311 (4th Cir. 1937); Story v. Rives,

97 F.2d 182, 188 (D.C. Cir.), cert. de-

nied, 305 U.S. 595 (1938); United States

ex rel. Nicholson v. Dillard, 102 F.2d

94, 96 (4th Cir. 1939); United States v.

The flaw in Probation Form 12 here - that

the application did not show the source of

Officer Pond's information or his reasons for

thinking it reliable - was not present in

Polito, since the parolee was accused, inter

alia, of not reporting on time, a violation

within the personal knowledge of the officer

making out Parole Form H~-20.

28

seeneon, 22 F.R.D. 38, 41 (8. DN.Y.

1958); Hyser v.Reed, 318 F.2d 225 (D.C.

Cir.), cert. denied, 375 U.S. 957 (1963);

United States ex rel. Randazzo _ v. Fol-

lette, 282 F.Supp. 10 (S.D. N.Y. 1968),

aff'd in part, 418 F.2d 1319 (2d Cir.

1969), cert. denied, 402 U.S. 984 (1971).

None of these cases supports the opinion,

either because their facts are not com-

parable to those present here, or because

they are all determined by the "“right/

privilege" distinction previously deter-

mined by this Court not to be useful.

29

III. THIS COURT HAS NOT YET DECLARED

WHAT PROCEDURES ARE CONSTITUTION-

ALLY REQUIRED BEFORE A PROBATIONER

CAN BE DEPRIVED OF LIBERTY BY A

PROBATION REVOCATION ARREST WARRANT.

This Court has yet to set forth the

constitutionally required procedures for

issuance of a probation revocation arrest

warrant. The petitioner respectfully

Suggests that the district court identi-

fied the procedures which properly ac-

commodate both the needs of the state and

the liberty interests of probationers. A

probationer should not be detained with-

Out either a warrant, issued from a fact-

ual application showing probable cause,

Supported by oath or affirmation, or an

order to show cause initiated by an af-

fidavit. App. 54a-56a; 66a-68a. The

preliminary revocation hearing mandated

by Morrissey and Gagnon cannot substitute

for a prior determination of probable

30

cause to arrest or issuance of an order

to show cause.

The facts of this case show that these

protections are fundamental. There must

be a single unitary warrant application.

The magistrate cannot accept secret memo-

randa and conversations. To do so would

prevent impartial evaluation of probable

cause, render a sworn Form 12 application

useless, and make it impossible to later

evaluate the warrant. This is especially

true since there is virtually no pre-rev-

ocation hearing discovery. Any other

rule would subject a probationer to ar-

rest on the basis of permanently hidden

falsehoods and innuendo. Only through

luck did the petitioner here learn of

Officer Pond's secret memorandum. App.

29a.

The Form 12 application must also be

factual and under oath. Probation of-

31

ficers sometimes abandon the neutral

helping role foreseen by Gagnon and

Morrissey, and become partners with

Other law enforcement officers in fer-

reting out crime. The district court

opinion shows that Officer Pond perceived

himself as a member of a federal-state

drug investigation team. Such officers

cannot be neutral factfinders. The re-

quirement of sworn facts prevents abuse

of discretion, deters arbitrariness, and

insulates the judge from improper influ-

ences. Cf. United States v. Sciuto, 531

F.2d 842, 846 (7th Cir. 1976).

The preliminary hearing is no substi-

tute for the prior determination of

probable cause. Issuance of a probation

revocation arrest warrant creates the

Substantial likelihood that the _ proba-

tioner will suffer a loss of liberty.

32

The arrest ends the probationer's peace-

ful reintegration into the community and

severs the rehabilitative probationer/

officer relationship extolled in Mor-

rissey, Gagnon, and other cases. Under

these circumstances arbitrary action

would cause the probationer substantial

harm. A post-arrest hearing cannot take

the place of a prior determination of

probable cause.

The government interest in unsworn,

non-factual warrant applications is

negligible. In emergencies §3653 permits

warrantless arrests "for cause." The

probation officer should otherwise get a

proper warrant. In cases where the

officer could not swear to information

showing probable cause, he could never-

theless articulate grounds for revocation

under oath in an application for an order

to show cause why probation should not be

33

revoked. Se. United States v. Langford,

369 F.Supp. 1107 (.D.I1l1. 1973). Since

no disruptive loss of liberty would oc-

cur, the preliminary hearing would be a

sufficient safeguard. There is absolute-

ly no justification for any procedure

which does not require some facts under

Oath.

The petitioner respectfully urges that

these procedures respect the liberty in-

terest of probationers and their rights

under the Fourth, Fifth and Fourteenth

Amendments. The court of appeals "“pro-

cedure" ignores these rights, without

serving any genuine governmental inter-

est. This Court should vindicate the

rights of petitioner, and all other pro-

bationers, by implementing the procedures

34

devised by the district court.

Respectfully submitted,

THE PETITIONER

By

J. Daniel Sagarin, Esq.

A Member of the Bar of

The Supreme Court of the

United States

Dated November 18, 1980.

CERTIFICATION

This is to certify that three (3)

copies of the foregoing petition, and of

the Appendix thereto, were mailed first

Class mail, postage prepaid, to all coun-

sel of record and the Solicitor General

of the United States, this 18th day of

November, 1980.

J. Daniel Sagarin, Esq.