Appendix — Basso v. United States

e Supreme Court, U.S,

«@ FILED

NOV 19 1980

80-823

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

APPENDIX

VOLUME I

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

J. Daniel Sagarin, Esq.

William Barnes, Esq.

Harrigan, Hurwitz, Sagarin

& Rutkin, P.C.

147 North Broad Street

Milford, Connecticut 06460

(203) 877-6071

Counsel for Petitioner

APPENDIX

TABLE OF CONTENTS

Page

Opinion of the United States Court

of Appeals for The Second Circuit

(September 23, 1980) .cccccccccceces la

Order Amending Opinion

(October 22, THOe) 0600066 00s beeen 16a

Hotice of Correct 1088. ccccecteuseesoen Tan

Opinion of the District Court,

District of Connecticut (Novem-

ber ae THIF) 00000606 heoneeeeweene 20a

Amendment to Memorandum of

Decision (November 16, 1979)...... 1l1la

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

oe

No. 1224—September Term, 1979

(Argued: May 14, 1980 Decided: September 23, 1980)

Docket No. 79-1464

=

UNITED STATES OF AMERICA,

Appellant,

—against—

SALVADOR CHARLES BASSO,

Defendant-Appellee.

Before:

LUMBARD, MANSFIELD and MULLIGAN,

Circuit Judges.

>

Appeal by the Government from an order of the

District Court for the District of Connecticut entered

by Judge Ellen Bree Burns quashing a warrant for the

arrest of Salvador Basso issued pursuant to 18 U.S.C.

§ 3653 upon a charge of violation of probation.

Reversed and remanded.

7

5769

2a

5770

CAROLYN L. GAINES, Attorney, Department

of Justice, Washington, DC (Richard

Blumenthal, U.S. Attorney for the

District of Connecticut, Sidney M.

Glazer, Attorney, Department of Jus-

tice, Washington, DC, of counsel), for

Appellant.

J. DANIEL SAGARIN, Esq., Milford, CT

(William B. Barnes, Esq., Harrigan,

Hurwitz, Sagarin & Ruikin, Milford,

CT, of counsel), for Appellee.

>

MANSFIELD, Circuit Judge:

The Government appeals from an order of the

District Court for the District of Connecticut entered

by Judge Ellen Bree Burns quashing an arrest warrant

for violation of probation issued against appellee

Salvador Basso under the authority of 18 U.S.C.

§ 3653.' For the reasons stated below we reverse.

18 U.S.C. § 3653 provides in relevant part as follows:

‘‘At any time within the probation period, the probation officer

may for cause arrest the probationer whenever 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

supervised or if he is no longer under supervision, the court for the

district in which he was last under supervision, may issue a warrant

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 district in

which the warrant was issued or of any district in which the

probationer is found. If the probationer shall be arrested in any

district other than that in which he was last supervised, he shall be

returned to the district in which the warrant was issued, unless

jurisdiction over him is transferred as above provided to the district

3a

5771

Basso was indicted by the grand jury for tax evasion,

and on November 22, 1976, he pleaded nolo contendere

to one count alleging such evasion in 1969. Thereafter,

on January 14, 1977, Judge Zampano of the District of

Connecticut sentenced Basso to a three-year term,

execution of which was suspended, with Basso placed

on two years probation and fined $4,000. Basso

subsequently paid the fine in full.

Basso was initially assigned to Probation Officer

Joseph Gagne, who informed him of the conditions of

his probation. Condition 2 required that “You shall

associate only with law-abiding persons. . . .” Officer

Gagne explained this condition to Basso in detail,.

advising him that he could not associate with persons

who had a criminal record, were engaged in ongoing

criminal activity, or were on probation or parole.

On November 28, 1978, Officer Gagne was trans-

ferred to another probation district and Officer David

Pond took over supervision of Basso’s probation. After

examining Basso’s file Officer Pond spoke to State

Trooper Robert Blair, an undercover policeman investi-

gating a so-called “Pizza Village” drug conspiracy, who

had written a report on January 30, 1978, describing a

meeting attended by Basso and several convicted

criminals and alleged members of the Pizza Village

conspiracy. Trooper Blair stated that Basso had called

in which he is found, and in that case he shall be detained pending

further proceedings in such district.

“As speedily as possible after arrest the probationer shall be

taken before the court for the district having jurisdiction over

him. Thereupon the court may revoke the probation and require

him to serve the sentence imposed, or any lesser sentence, and, if

imposition of sentence was suspended, may impose any sentence

which might originally have been imposed.”

4a

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the meeting, which took place at the Pin-Up Restaurant

in Bridgeport, Connecticut, to mediate a dispute over

certain gambling interests. One week later, Officer

Pond met with Basso, and on the following day,

December 13, 1978, he petitioned Judge Zampano for a

warrant for Basso’s arrest for violating probation.

Officer Pond’s petition for an arrest warrant, which

was made on Probation Form No. 12, stated in

pertinent part:

“Comes now David W. Pond PROBATION

OFFICER OF THE COURT presenting an official

report upon the conduct and attitude of proba-

tioner Salvador Charles Basso. . . .

“RESPECTFULLY PRESENTING PETITION

FOR ACTION OF COURT FOR CAUSE AS

FOLLOWS:

On October 21, 1977, at the Pin-Up Restaurant/

Lounge, Fairfield Avenue, Bridgeport, Connecticut,

probationer Basso is alleged to have met with Ilario

‘Lefty’ Regina, William Herman Dorman and

Arnold Francis Russo, all of whom have criminal

records, all in violation of Condition No. 2 of the

Conditions of Probation, which states that, ‘you

shall associate only with law-abiding per-

’ ”

sons.

“PRAYING THAT THE COURT WILL ORDER a

Warrant to issue, said Warrant to serve as a

temporary mittimus pending arraignment.”

Officer Pond supported Form No. 12 with a two-page

memorandum prepared by him, which detailed what

Trooper Blair had told him and concluded that Basso

was “viewed by law enforcement authorities as a well

insulated and low key Mafia figure. . . .”

5a

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Judge Zampano did not immediately issue the

warrant but suggested that Officer Pond speak with

Assistant U.S. Attorney James Pickerstein, who was

familiar with the Pizza Village investigation. On

December 18 Attorney Pickerstein accompanied the

probation officers to Judge Zampano’s chambers, and

spoke in support of the sufficiency of the allegations.

Judge Zampano then signed the warrant.

Basso appeared voluntarily before a magistrate in

response to the warrant, and was released on his own

recognizance. He then filed several motions, including a

motion to dimiss the petition for revocation of

probation and to quash the arrest warrant for violating

probation on the ground that it was unsupported by

probable cause. At a February 22, 1979, hearing before

Judge Zampano on the motion to dismiss, Judge

Zampano referred to the two-page memorandum

supporting Officer Pond’s application on Form No. 12.

Basso’s attorney advised that he had no knowledge of

the memorandum, which had not been made part of the

court file. Judge Zampano had placed the memorandum

under seal because it contained confidential information

about undercover activity, stating that it could be

unsealed by either court order or consent of the

Government (the document remained sealed until

March 5, 1979, when the Government consented to

unseal it). Judge Zampano then transferred the case to

Judge Burns in the interest of “the appearance of

impartiality,” since he had signed the warrant under

attack. On November 2, 1979, Judge Burns issued a 41-

page Memorandum of Decision quashing the arrest

warrant.

Judge Burns found no constitutional infirmity in

Probation Condition No. 2’s requirement that Basso

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“associate only with law-abiding persons.” She also

stated that “the United States Probation Office, and

Officer Pond, did not abuse their discretion or act

arbitrarily in prosecuting the charge against Basso, and

that there was probable cause to believe Basso had

violated Condition No. 2.” However, she held that

Basso’s due process and Fourth Amendment rights had

been violated by the warrant for his arrest. In her view

the sufficiency of Officer Pond’s application must be

determined upon his Form No. 12 petition, without

regard to the two-page memorandum supporting it,

because the contents of the memorandum were not

disclosed to the petitioner and were not within the

Form No. 12. She also appears to have acted on the

ground that the warrant application was insufficiently

supported by oath or affirmation. Finally, after

observing that “some factual basis for the arrest

warrant was necessary for the issuing judge to

determine the existence of probable cause,”* she held

that the petition on Form No. 12 failed to contain the

requisite factual basis and quashed the warrant.

The United States appeals from the order quashing

the arrest warrant.

DISCUSSION

The procedural stance of this case is somewhat

uncertain. Although Basso’s motion to quash the arrest

2 Judge Burns recognized that arrest warrants for violations of

probation need not conform exactly to the rigorous standards of

probable cause required in criminal arrest warrants, noting that

“(t]he strict standards of Aguilar [v. Texas, 378 U.S. 108 (1964)] and

Spinelli [v. United States, 383 U.S. 410 (1969)], with respect to

informants, may be lessened in this circumstance.” Memorandum of

Decision at 24.

7a

5775

warrant was granted, the district court took no formal

action with respect to his motion to dismiss all

probation revocation proceedings against him. Absent a

dismissal, the Probation Office can issue an order to

show cause why Basso’s probation should not be

revoked, thereby compelling his appearance without use

of a warrant; in the alternative it can issue a new

warrant for Basso’s arrest, supported by a formal oath

or affirmation and alleging sufficient facts to establish

probable cause under the warrant. Judge Burns

acknowledged that sufficient information exists to

establish probable cause that Basso violated the

conditions of his probation. She quashed the warrant

only because she thought the application for it failed to

allege those facts properly.

The Government has not pursued these courses,’

apparently because it believes that the Memorandum of

Decision below was intended to dismiss the probation

revocation proceedings with prejudice to any further

proceedings based on Basso’s alleged meeting with non-

law-abiding persons at the Pin-Up Restaurant on

October 21, 1977. This belief derives from an ex parte

inquiry by U.S. Special Attorney Abrams, to which

Judge Burns replied that the case was dismissed.

Such a dismissal would clearly be erroneous. “{AJn

illegal arrest, without more, ha{s] never been viewed as

a bar to subsequent prosecution, nor as a defense.”

3 On January 26, 1979, Officer Pond prepared a second application

on Probation Form No. 12, alleging eight additional violations of

Condition No. 2. Memorandum of Decision at p. 4 n.1. Judge

Zampano has apparently never acted on this form, perhaps because

he is awaiting the results of this appeal. The existence of a second

petition to revoke probation on the basis of different alleged

violations does not foreclose inquiry into the validity of the original

proceedings against Basso.

8a

5776

United States v. Crews, ___. U.S. ___, 48 U.S.L.W.

4234, 4327 (March 25, 1980). Accord, Gerstein v. Pugh,

420 U.S. 103, 119 (1975); Frisbie v. Collins, 342 U.S.

519, 522 (1952); Ker v. Illinois, 119 U.S. 436, 441

(1886). The Supreme Court in Crews was unanimous on

this point, see 48 U.S.L.W. at 4328 (Powell, J.,

concurring); id. (White, J., concurring). Though evi-

dence obtained as a direct result of an unlawful arrest

is sometimes suppressed, see Davis v. Mississippi, 394

U.S. 721 (1969); but cf. United States v. Frederickson,

581 F.2d 711, 713, 714 (8th Cir. 1978) (exclusionary

rule does not apply in probation revocation proceed-

ings); United States v. Wiygul, 578 F.2d 577, 578 (5th

Cir. 1978) (same); United States v. Winsett, 518 F.2d

51, 53-55 (9th Cir. 1975) (same); United States uv.

Farmer, 512 F.2d 160, 162-63 (6th Cir.), cert. denied,

423 U.S. 987 (1975) (same); United States v. Delago,

377 F. Supp. 708, 712 (S.D.N.Y. 1974) (same), the

Government in such cases is required only to purge the

taint of illegally obtained evidence from its case, not to

drop the case against the alleged wrongdoer. See

Payton v. New York, 48 U.S.L.W. 4375, 4380 n.34

(April 15, 1980).

Absent prejudice to the arrestee’s defense, then, the

Government may continue its proceedings against him

as if the illegal action had never taken place. In

Gerstein v. Pugh, supra, for example, the defendant

was arrested and jailed pending trial without a finding

of probable cause on the basis of a prosecutor's

information. While the Supreme Court held that every

jailed person has a right to a judicial determination of

probable cause either before or shortly after detention,

it stressed that “a conviction will not be vacated on the

ground that the defendant was detained pending trial

9a

5777

without a determination of probable cause.” 420 U.S. at

119. The defendant’s proper remedy was to demand the

hearing to which he was entitled, not to have the

proceedings against him dismissed. Similarly, in United

States v. Companion, 545 F.2d 308 (2d Cir. 1976), a

probationer ordered to remain in Vermont was arrested

in Arizona and was held in custody for 87 days without

a preliminary hearing to establish probable cause, while

being transported from Arizona back to Vermont which

took a long period of time because on the way he was

detained at various jails. We held there that, although

the probationer’s due process right to a prompt

preliminary hearing “at or reasonably near the place of

the alleged . . . violation or arrest . . . to determine

whether there [was] probable cause,” Morrissey v.

Brewer, 408 U.S. 471, 485 (1972), had been violated,

dismissal of the Government’s petition for revocation of

probation would be unwarranted, given “the established

rule that illegal arrest or de.ention does not void a

subsequent conviction.” 545 F.2d at 313.‘

4 Basso argues in his brief that allowing a revocation proceeding to

proceed after an unlawful arrest would reduce a probationer’s right

not to be arrested illegally to “a formality.” This argument must fail,

for two reasons. First, any significant deprivation of a probationer’s

liberty must be accompanied by a prompt hearing to insure that

probable cause exists to believe that a violation has taken place.

Second, as we noted in United States v. Companion, supra, 545 F.2d

at 313, an unlawfully arrested probationer’s “civil remedies against

those denying him his right may survive. See Bivens v. Six Unknown

Named Agents, 403 U.S. 388 .. . (1971).” See also 28 U.S.C.

§ 2680. We also suggested in Companion that “{iJf a probationer’s

rights are flagrantly abused, or if preliminary hearings are

repeatedly denied to probationers as a group, we reserve, of course,

the authority, as a matter of our supervisory power, to order release

from custody regardless of when the request is made.” 545 F.2d at

313. Here Basso was immediately released on his own recognizance,

suffering no deprivation of liberty at all. Moreover, he demanded

and received a hearing on the issue of probable cause, which the

Supreme Court prescribed in Gagnon v. Scarpelli, 411 U.S. 778

(1973). (footnote continued on next page)

10a

5778

Unlike the probationer in Companion, appellee Basso

never spent a moment in jail as a result of the arrest

that the district court declared invalid. More important

still, his defense has been in no way prejudiced by the

existence of the quashed arrest warrant. The Govern-

ment should remain free to rearrest him for the same

violation of the conditions of his probation. The district

court’s order, insofar as it dismissed the probation

revocation proceeding against Basso with prejudice to

further proceedings on the same violation, must

therefore be reversed.°

Turning to the merits of the district court’s decision

to quash the original warrant for Basso’s arrest,’ we

The issuance of any arrest warrant here could hardly be

characterized as a mere formality. It was issued only after a United

States Probation Officer and an Assistant U.S. Attorney furnished

detailed facts satisfying a United States district judge that probable

cause existed. It would be a gross abuse of discretion to dismiss

probation revocation proceedings with prejudice, or to order full

release from probation, merely because officials acting in good faith

failed to comport with the technical requirements of a valid warrant,

when the resulting arrest did not produce any evidence to be used

against the probationer and when the probationer could and did

protect himself from loss of liberty by obtaining immediate release

and a preliminary hearing.

5 Basso’s susceptibility to arrest and revocation of probation has not

ceased or been mooted because more than two years have passed

since he was placed on two years’ probation on January 14, 1977.

The probation statute, 18 U.S.C. § 3653, explicitly provides, “At any

time within the probation period, or within the maximum probation

period permitted by section 3651 of this title [five years}, the court

. . . May issue a warrant for [a probationer's} arrest for violation of

probation occurring during the probation period.” (Emphasis added).

See also Nicholas v. United States, 527 F.2d 1160 (9th Cir. 1976)

(probation revocation may take place more than five years after

probation has been imposed if arrest warrant was issued before the

five-year period expired).

6 We are not prevented from reaching the merits by the

Government's failure to argue that the quashing of the warrant was

improper in its original brief. Basso did raise the issue of the

lla

5779

recognize that probation may not be revoked without

according the probationer due process. Gagnon uv.

Scarpelli, 411 U.S. 778 (1973); see also Morrissey v.

Brewer, supra (parolees have due process rights to

hearings before their parole is revoked). However, due

process in this context does not demand that the

probation officer establish a violation of probation in

order to obtain an arrest warrant. A showing of

reasonably satisfactory proof of cause is sufficiefit and

it may be less than that required for a search warrant,

since the arrested probationer has the right to an

immediate preliminary hearing after arrest to deter-

mine whether probable cause exists to believe that he

has violated his probation.’ The Court in Gagnon uv.

Scarpelli, supra, recognized that less protections were

necessary for probationers than for defendants in a

criminal trial. See United States v. Nagelberg, 413 F.2d

708, 709 (2d Cir. 1968), cert. denied, 396 U.S. 1010

(1970); United States v. Smith, 571 F.2d 370, 372 (7th

Cir. 1978); United States v. Marron, 564 F.2d 867, 871

(9th Cir. 1977); United States v. Manuszak, 532 F.2d

te ge of the district court order quashing the warrant in his

rief, and the Government, as was its prerogative, responded in its

reply brief. The issue has therefore been fully placed before us. See 9

Moore's Federal Practice Par. 228.02(2.-3] (1980).

7 Several jurisdictions have held that a preliminary hearing is not

required unless the arrested probationer has been incarcerated. See,

e.g., United States v. Sciuto, 531 F.2d 842, 846 (7th Cir. 1976);

United States v. Tucker, 524 F.2d 77, 78 (5th Cir. 1975), cert.

denied, 424 U.S. 966 (1976); United States v. Strada, 503 F.2d 1081,

1084 (8th Cir. 1974). This rule assumes, consistently with much of

what the Supreme Court has said, that a probationer receives

adequate procedural protection through prompt hearing after

confinement. Even if not jailed, probationers are assured swift action

in the scheduling of hearings by the mandate of 18 U.S.C. § 3653

that “[ajs speedily as possible after arrest the probationer shall be

taken before the court for the district having jurisdiction over him.”

12a

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311, 317 (3d Cir. 1976); Roberson v. State of

Connecticut, 501 F.2d 305, 308 (2d Cir. 1974).

The revocation of probation, like revocation of parole,

“deprives an individual, not of the absolute liberty to

which every citizen is entitled, but only of the

conditional liberty properly dependent on observance of

special . . . restrictions.” Gagnon v. Scarpelli, supra,

411 U.S. at 781, quoting Morrissey v. Brewer, supra,

408 U.S. at 480. We have recognized that the

conditional liberty possessed by probationers and

parolees carries with it a less than absolute right not to

be interfered with by law enforcement officials. In

United States v. Polito, 583 F.2d 48 (2d Cir. 1978), for

example, we stated that a local police officer’s detention

of a parolee,® where a valid warrant had been issued but

the relevant federal statute provided that federal

officers should execute the warrant, “was not an ‘arrest’

for Fourth Amendment purposes.” 583 F.2d at 56. We

further observed that the probable cause necessary to

make a warrant valid in parole cases could be

established merely by a presentation of “satisfactory

evidence” that a person had violated the conditions of

his release, a standard looser than that required to

satisfy the probable cause requirements for a criminal

warrant. 583 F.2d at 52; see 28 C.F.R. § 244(a).°

8 The Supreme Court observed in Gagnon v. Scarpelli, supra, 411

U.S. at 782, that it did not perceive “any difference relevant to the

guarantee of due process between the revocation of parole and the

revocation of probation.”

9 See Morrissey v. Brewer, supra, 408 U.S. at 471 (“We begin with

the proposition that the revocation of parole is not part of a criminal

prosecution and thus the full panoply of rights due a defendant in

such a proceeding does not apply to parole revocations”); cf. United

States ex rel. Randazzo v. Follette, 418 F.2d 1319, 1322 (2d Cir.

1969), cert. denied, 402 U.S. 984 (1971) (New York law, under which

warrant necessary to arrest parolees for violation of parole is

13a

5781

Although the district court below indicated awareness

that the requirements for issuance of a. warrant in

probation revocation proceedings are somewhat less

stringent than those for criminal arrest warrants

delineated in Aguilar v. Texas, 378 U.S. 108 (1964),

and Spinelli v. United States, 393 U.S. 410 (1969), it

nevertheless declined to view Officer Pond’s warrant

petition as adequate. First, in evaluating the sufficiency

of the allegations underlying the warrant, it refused to

consider the two-page memorandum accompanying the

petition on Form No. 12, taking the view that the

contents of this memorandum were not part of the

warrant application and had not been disclosed to

probationer Basso or his counsel. In our view this

amounted to undesirably rigid formalism. Judge

Zampano had no difficulty recognizing that the

memorandum was offered in support of the Form No.

12 application and accordingly evaluated the warrant

application in light of it. Moreover, the contents of the

memorandum were disclosed to the appellees, albeit at

a later time. In any event, non-disclosure of the

memorandum’s contents before the preliminary hearing

did not in any way prejudice Basso or render the

warrant invalid. This is not a case where the neutral

magistrate was left unapprised of either the identity or

the reliability of the confidential source conveying the

needed information. See, e.g., Aguilar v. Texas, supra,

378 U.S. at 113. So long as Judge Zampano had

“administrative” and does not depend upon probable cause but upon

lesser “reasonable cause,” is “sufficient to provide for the lawful

arrest of a parolee”); Alger v. Page Cty. Sheriff's Ofc., 408 F. Supp.

978, 979 (W.D. Va. 1976) (“The purpose of the warrant is merely to

restore [a parolee] to custody and to advise him of the purpose of his

reincarceration”).

14a

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sufficient information to issue a warrant, Basso did not

have to be provided with that information, or given an

opportunity to confront his accusers, until hearings on

his alleged violation.'®

Judge Burns’ second objection to the warrant

application, that it was inadequately supported by oath

or affirmation, is somewhat vague, and Basso presses

no specific objection to the form of the application.

Officer Pond’s application was admittedly unsworn, but

it clearly contained a representation on his behalf that

the facts he was stating were true to the best of his

knowledge and belief. Even if the warrant application

was faulty in some narrow technical sense (and we are

not convinced that it was), this defect should not be

sufficient to void the warrant when the facts alleged in

the petition and the accompanying memorandum

established probable cause, as the district judge

conceded, to believe that a violation had taken place,"

10 Trooper Blair's identity might even have been concealed at a

preliminary hearing without impropriety. Morrissey v. Brewer,

supra, 408 U.S. at 487, explicitly stated the reservation that “if the

hearing officer determines that an informant would be subjected to

risk of harm if his identity were disclosed, he need not be subjected

to confrontation and cross examination.”

11 Last year, we held in United States v. Broward, 594 F.2d 345 (2d

Cir.), cert. denied, 442 U.S. 941 (1979), that an arrest made under an

invalid warrant was nonetheless valid if the arresting officers had

probable cause to believe that a crime had taken place. Under the

logic of that case, Basso’s warrant could not be quashed once Judge

Burns found that his arrest was supported by probable cause,

provided the arrest was made in a public place. United States v.

Watson, 423 U.S. 411 (1976). If it occurred in Basso’s home it could

be invalidated under the rule of Payton v. New York, 48 U.S.L.W.

4375 (April 15, 1980), which held that non-exigent arrests in a

person’s home could not take place without a valid warrant. The

record does not disclose whether Basso was served with the warrant

at his home or in a public place, but does indicate that he came to

the magistrate’s office voluntarily and without police escort. In any

15a

5783

and when the warrant was subject in any case to the

somewhat looser requirements accompanying arrest for

violation of probation conditions.

Reversed and remanded.

event, we do not rely on Broward in this case, since we think that

the warrant application filed by Officer Pond was sufficient to make

the warrant for Basso’s arrest a valid one.

16a

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

As a Stated Term of the United States

Court of Appeals in and for the Second

Circuit, held at the United States Court

House, in the City of New York on the

twenty-second day of October, One Thou-

sand Nine Hundred and Eighty.

Present: HONORABLE J. EDWARD LUMBARD,

HONORABLE WALTER R. MANSFIELD,

HONORABLE WILLIAM H. MULLIGAN,

Circuit Judges.

UNITED STATES OF AMERICA,

Appellant,

-against-

SALVADOR CHARLES BASSO,

Defendant-Appellee.

ORDER AMENDING OPINION

It is hereby ordered that the Court's

decision filed September 23, 1980, in the

17a

above case is amended as follows:

Slip Op. page 5769, last line: Change

"Reversed and remanded" to "Remanded."

Slip Op. page 5775: Strike the last

sentence of the first full paragraph,

which reads: "This belief derives from

an ex parte inquiry by U.S. Special

Attorney Abrams, to which Judge Burns

replied that the case was dismissed."

Slip Op. page 5775, beginning of last

paragraph: Strike the words "Such a" and

Substitute "A",

Slip Op page 5778, lines 7-11: Strike

the sentence beginning "The district

court's order...." and move the footnote

number 5 call to the end of the sentence

on line 7, the last word of which is

"probation."

Slip Op. page 5783, line 4: Change

"Reversed and remanded" to "Remanded."

/s/ J. Edward Lumbard, U.S.C.J.

J. Edward Lumbard, U.S.C.J.

18a

/s/ Walter R. Mansfield, U.S.C.J.

Walter R. Mansfield, U.S.C.J.

/s/ William H. Mulligan, U.S.C.J.

William H. Mulligan, U.S.C.J.

19a

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

UNITED STATES COURTHOUSE

FOLEY SQUARE

NEW YORK’ 10007

A. DANIEL FUSARO

CLERK

U.S.A. v. Basso September Term, 1979

Docket No. Decided September

79-1464 23, 1980

Page 5769, 2d line from bottom of page -

delete "Reversed and remanded" and in-

sert "“Remanded" in place thereof.

Page 5775, lines 22, 23 and 24 - delete

entirely and insert "October 21, 1977."

in place thereof.

Page 5775, line 25 - delete "Such a" and

insert "A" in place thereof.

A. DANIEL FUSARO

Clerk

ADF/hjd

20a

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA

CRIMINAL NO.

B-75-4

Ve

SALVADOR CHARLES BASSO

MEMORANDUM OF DECISION

The federal probationer in this revo-

cation proceeding raises several novel

arguments concerning the issuance of an

arrest warrant for probation violation

under 18 U.S.C. §3653. He also chal-

lenges the constitutionality of Proba-

tion Condition No. 2, requiring him to

"associate only with law-abiding per-

sons," as well as the actions of the

United States Probation Office for the

District of Connecticut in the handling

of his case. The court agrees with

probationer Basso that the fourth amend-

ment places certuin requirements upon the

21a

issuance of an arrest warrant pursuant to

18 U.S.C. §3653, although such require-

ments are minimal. The Probation Form

No. 12 at issue here, failing to surpass

these minimal hurdles, must be quashed.

However, the court finds that under the

facts of this case, Condition No. 2 is

not unconstitutionally vague, tht the

United States Probation Office, and

Officer Pond, did not abuse their discre-

tion or act arbitrarily in the mainten-

ance of Basso's case, and that there was

probable cause to believe Basso has

committed an act which would constitute a

violation of Condition No. 2.

22a

I. PROCEDURAL HISTORY

The following facts were elicited from

testimony and documentary evidence

submitted at the March 12, 1979, hearing

before this court: On March 26, 1975,

probationer Basso was indicted by a

federal grand jury in this district for

tax evasion for the calendar yers 1968

(Count 1) and 1969 (Count 2). At all

times during this prosecution he was

represented by Attorney J. Daniel Sagar-

in, his present attorney. Basso origi-

nally pled not guilty; extensive pre-

trial motions and discovery followed. On

November 22, 1976, Basso pled nolo

contendere to Count 2. On January 14,

1977, the Honorable Robert C. Zampano,

United States District Judge for the

District of Connecticut, sentenced

probationer Basso to a three-year term,

execution of which was suspended, with

23a

two years' probation and a $4,000 fine to

be paid within thirty days. Ten days

thereafter, Count 1 was dismissed and

Basso eventualy paid the fine in full.

Basso was assigned to Joseph H. Gagne,

a federal probation officer in Bridge-

port, Connecticut, who has eleven years'

experience. On the day of sentencing,

Basso met with Gagne and signed Probation

Form No. 7, entitled "Conditions of

Probation." Above Basso's signature are

the following sentences, "I have read or

had read to me the above conditions of

probation. I fully understand them and I

will abide by them." Among the seven

conditions was Condition No. 2, which

reads in full, "You shall associate only

with law-abiding persons and maintain

reasonable hours." Basso was to report

to Gagne on a monthly basis. In July,

1978, Gagne advised Basso that he need

24a

only report to him on a quarterly basis.

Thereafter Gagne met with Basso again in

November, 1978.

In November, 1978, the federal judges

of this district ordered certain person-

nel changes within the United States

Probation Office. In order to fill

vacancies created thereby, Gagne was

transferred from the Bridgeport office to

the New Haven office on November 6, 1978.

On November 28, 1978, Basso's file was

transferred from Gagne to David W. Pond,

a federal probation oficer with four

years' experience. Pond met with Basso

on December 12, 1978.

The following day, Pond and his

supervisor, Tommaso D. Rendino, met with

Judge Zampano. The probation officers

presented a Probation Form No. 12 and a

two-page memorandum prepared by Pond.

The probation form provided in pertinent

part:

25a

COMES NOW David W. Pond PROBA-

TION OFFICER OF THE COURT present-

ing an official report upon the

conduct and attitude of proba-

tioner Salvador Charles Basso...

RESPECTFULLY PRESENTING PETITION

FOR ACTION OF COURT FOR CAUSE AS

FOLLOWS:

On October 21, 1977, at the Pin-up

Restaurant/Lounge, Fairfield

Avenue, Bridgeport, Connecticut,

probationer Basso is alleged to

have met with Ilario “Lefty”

Regina, William Herman Dorman and

Arnold Francis Russo, all of whom

have criminal records, all in

violation of Condition No. 2 of

the Conditions of Probation, which

states that, "you shall associate

only with law-abiding per-

sons” ..« e

PRAYING THAT THE COURT WILL

ORDER a Warrant to issue, said

Warrant to serve as a temporary

mittimus pending arraignment.

The two-page memorandum gave greater

detail of the alleged meeting of October

21, 1977. Pond's knowledge came from a

report, prepared January 30, 1978, by

State Trooper Robert N. Blair, who had

acted as an undercover agent in what has

been termed the "Pizza Village" investi-

ere en ea

| 26a

gation. This investigation, centering

around the Pizza Village Restaurant in

Bridgeport, involved narcotics and

gambling activity in the greater Bridge-

port area. According to Blair, the

purpose of the October 21, 1977, meet-

ing, held in a restaurant owned by Basso,

was to settle a dispute over certain

illegal gambling interests, with Basso

acting in the capacity of a mediator.

After reciting these facts, Pond made the

following observation in his memorandum:

Reliable sources have advised that

Basso controls a major portion of

the illegal gambling activity in

the Bridgeport area. He is viewed

by law enforcement authorities as

well insulated and low key Mafia

figure, as evidenced by his

limited prior record and the

nature of his daily activities.

Judge Zampano did not sign the probation

form, but rather suggested that the

probation officers speak with James

Pickerstein, Chief Assistant United

27a

States Attorney, for his legal opinion on

the sufficiency of the allegations. The

probation officers returned on December

18, 1978, with Attorney Pickerstein, who

spoke in support of the form. Judge

Zampano signed the warrant on that date.

Both the probation form and the two-page

memorandum were placed in Basso's file by

Judge Zampano's law clerk. !

On December 19, 1978, Basso, accom-

panied by counsel, was presented before

Magistrate Arthur H. Latimer, and was re-

leased with the agreement of the govern-

ment. The probationer had appeared vol-

untarily, reserving the right to assert

jurisdictional defects. On January 4,

1979, Attorney Sagarin wrote a letter to

Judge Zampano in which he requested the

preliminary hearings be conducted by the

magistrate, as Judge Zampano had signed

the warrant and ultimately would conduct

28a

the final probation revocation hearing.

The probationer thereafter filed numerous

motions, including a motion for disclos-

ure and production of documents, a motion

to dismiss the petition for revocation of

probation and to quash the probation

violation arrest warrrant for lack of

probable cause, and an application for an

order directing the probation department

to produce certain departmental manuals.

On January 17, 1979, Magistrate Latimer

sent letters to Attorney Sagarin and to

Donald L. Abrams, Special Attorney for

the United States Government, stating

that an evidentiary hearing addressed to

the issue of probable cause would be held

on the morning of February 22, 1979. Up-

on his arrival at this hearing, Attorney

Sagarin insisted that the hearing be

limited to the motion to dismiss. In

light of the confusion, a conference was

29a

scheduled for that afternoon with Judge

Zampano.

At 2:30 p.m., February 22, 1979, a

conference was held in Judge Zampano's

chambers, with Attorney Sagarin, Attorney

Abrams, Pond, and Magistrate Latimer in

attendance. Judge Zampano suggested that

an evidentiary hearing be held on Basso's

motion to dismiss. He further stated

that due to his congested calendar and in

the interest of "the appearance of im-

partiality," because he had signed the

warrant, he would transfer the case to

this judge. During the course of the

discussion, Judge Zampano made reference

to the two-page memorandum prepared by

Pond. Attorney Sagarin, describing this

memorandum as a “document of which I had

no previous knowledge until the moment

the Court mentioned it," asked to inspect

Pond's report. Pond replied that the

30a

memorandum was a communication for the

court's purposes only and was not a

part of the official court file. Attor-

ney Abrams, who had not seen the memoran-

dum, analogized it to a pre-sentence

investigation, in which the court is

"privy to more information than the

defense attorney and the prosecutor."

Following a brief recess, Judge Zampano

placed the memorandum under seal, with

the following inscription on the enve-

lope, "This may be unsealed either by

order of a court of competent jurisdic-

tion or by written consent of the govern-

ment."

On March 5, 1979, Attorney Abrams

Signed a consent to unseal the document,

in the presence of this judge. A copy

was hand delivered to Attorney Sagarin

the following day. An evidentiary hear-

ing was scheduled for March 12, 1979, on

this matter.

31a

On the morning of March 12, 1979,

Attorney Sagarin stated that, having seen

this document, he now requested a prelim-

inary hearing for determination of

probable cause as well as on the motion

to dismiss. Attorney Abrams voiced

objection, at which time a recess was

called in which the government attorney

could prepare himself for a probable

cause hearing. The hearing continued for

the remainder of that day on both issues

of probable cause and the motion to

dismiss, with considerable overlapping

with respect to testimony and documentary

evidence.

II. THE LEGAL GUIDELINES OF

PROBATION REVOCATION

A. INTRODUCTION

The statutory authority governing

probation is the Federal Probation Act of

1925, as amended. 16 0.8.C. $3653 pro-

vides in pertinent part:

32a

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 sec-

tion 3651 of this title (i.e.,

five years), the court ... may

issue a warrant for his arrest for

violation of probation occurring

during the probation period. Such

warrant may be executed ... by the

probation officer or the United

States marshall...

As speedily as possible after

arrest the probationer shall be

taken before the court for the

district having jurisdiction over

him. Thereupon the court may

revoke the probation and require

him to serve the sentence imposed,

Or any lesser sentence, and, if

imposition of sentence was sus-

pended, may impose any sentence

which might originally have been

imposed.

The requirements for probation revoca-

tion were altered substantially by the

United States Supreme Court in the early

1970's. In Morrissey v. Brewer, 408 U.S.

471 (1972), the Court held that the due

process clause of the fourteenth amend-

ment requires that two hearings be held

33a

prior to revocation of parole of a state

inmate. The Court described the first

hearing as follows:

(D)ue process would seem to re-

quire that some minimal inquiry be

conducted at or reasonably near

the place of the alleged parole

violation or arrest and as prompt-

ly as convenient after arrest

while information is fresh and

sources available.... Such an

inquiry should be seen as in the

nature of a "preliminary hearing"

to determine whether there is

probable cause or reasonable

ground to believe that the ar-

rested parolee has committed acts

that would constitute a violation

of parole conditions....

Id. at 485 (citations omitted). This

preliminary hearing is to -e held before

a "neutral and detached" officer. Id. at

486. Sometime thereafter, if the parolee

desires, a formal revocation hearing is

to be held, for which the parolee would

have a wide range of procedural rights,

including written notice of the claimed

violations, disclosure of evidence

against him, opportunity to be heard and

34a

to present witnesses and documentary evi-

dence, right to confront and cross-exam-

ine adverse witnesses, a "neutral and

detached" tribunal, and a written state-

ment as to reasons for revoking parole.

Id. at 487-89,

The next term, the Supreme Court con-

ferred these same due process rights upon

suspected violators of probation, in

Gagnon v. Scarpelli, 411 U.S. 778 (1973).

There the Court concluded:

(The Warden) does not contend

that there is any difference rele-

vant to the guarantee of due pro-

cess between the revocation of

parole and the revocation of pro-

bation, nor do we perceive one.

Probation revocation, like parole

revocation, is not a stage of a

criminal prosecution, but does

result in a loss of liberty.

Accordingly, we hold that a pro-

bationer, like a parolee, is en-

titled to a preliminary and a

final revocation hearing under the

conditions specified in Morrissey

v. Brewer, Supra.

Id. at 782 (footnotes omitted). Thus,

the provisions of 18 U.S.C. §3653 must

35a

be read with due regard for the consti-

tutional mandates of the Morrissey and

Gagnon opinions.

Although significant liberty interests

are involved, the Supreme Court has made

clear that a parole or probation revoca-

tion proceeding is not part of a criminal

prosecution, and thus the "full panoply"

of constitutional rights due a criminal

defendant does not apply to parolees and

probationers. Morrissey v. Brewer,

supra. 408 U.S. at 480. For example,

the government's burden of proof is not

"beyond a reasonable doubt," as in

criminal prosecutions; rather, all that

is required for revocation of probation

is that the court be reasonably satisfied

that the probationer has abused the op-

portunity given him or her to avoid in-

carceration, by violating local, state,

or federal law or by violating one or

36a

more conditions of probation. United

States v. Smith, 571 F.2d 370, 372 (7th

Cir. 1978); United States v. Marron, 564

F.2d 867, 871 (9th Cir. 1977); United

States v. Manuszak, 532 F.2d 311, 317

(3d Cir. 1976); United States v. Francis-

chine, 512 F.2d 82, 829 (5th Cir. 1975);

United States v. Nagelberg, 413 F.2d

708, 709 (2d Cir. 1969), cert. denied,

396 U.S. 1010 (1970). See also Roberson

v. State of Connecticut, 501 F.2d 305,

308 (2d Cir. 1974) (same standard applied

for state probation revocations). Simi-

larly, indigent probationers do nct have

a sixth amendment right to counsel at

revocation hearings, as the Supreme Court

in Gagnon held that appointment of coun-

sel is to be made on a case-by-case ba-

sis. 411 U.S. at 783-91. In addition,

Fed. R. Evid. 1101(d)(3) specifically

provides that the federal rules of evi-

37a

dence are inapplicable in proceedings for

"granting or revoking probation." A ma~

jority of courts also has rules that the

exclusionary rule for suppression of

evidence does not apply in probation

revocation proceedings. E.g., United

States v. Frederickson, 581 F.2d 711,

713-14 (8th Cir. 1978); United States v.

Wiygul, 578 F.2d 577, 578 (5th Cir.

1978); United States v. Winsett, 518 F.2d

51, 53-55 (9th Cir. 1975); United States

v. Farmer, 512 F.2d 160, 162-63 (6th

Cir.), cert. denied, 423 U.S. 987 (1975);

United States v. Delago, 397 F. Supp.

708, 712 (S.D.N.Y. 1974). Contra, United

States v. Workman, 585 F.2d 1205, 1208-11

(4th Cir. 1978). Lastly, a probationer

is not entitled to a preliminary hearing

unless he or she has been taken into

custody and deprived of freedom awaiting

the final revocation hearing. United

38a

States v. Sciuto, 531 F.2d 842, 846 (7th

Cir. 1976); United States v. Tucker, 524

F.2d 77, 78 (5th Cir. 1975), cert. de-

nied, 424 U.S. 966 (1976); United States

v. Strada, 503 F.2d 1081, 1084 (8th Cir.

1974); United States v. Langford, 369 F.

Supp. 1107 (N.D. Ill. 1973).

B. PROBATION REVOCATION ARREST WAR-

RANTS AND THE FOURTH AMENDMENT

Probationer Basso's first argument is

that the issuance of an arrest warrant

for probation revocation without suffi-

cient basis to determine probable cause

is violative of his fourth amendment

2 Probationer correctly observes

rights.

that Probation Form No. 19, entitled,

"Warrant for Arrest of Probationer,"

instructs the United States Marshall as

follows:

You are hereby commanded to ar-

rest Salvador Charles Basso and

bring him forthwith before the

United States District Court for

the District of Connecticut in the

39a

city of New Haven to answer to

charges that he had violated the

conditions of probation imposed by

the United States District Court

for the District of Connecticut on

Jan. 14, 1977.

No case law concerning the application

of the fourth amendment to arrest war-

rants for probationers has been cited by

the government or the probationer and the

fourt has found none. Therefore, analo-

gies must be drawn from cases involving

searches, with or without a warrant, of

parolees and probationers. While many

circuits agree that probationers and

parolees have fourth amendment rights

with respect to searches, there is con-

siderable controversy concerning the

scope of this constitutional right. The

Second Circuit has maintained the "“rea-

sonable grounds" test developed in 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

40a

(1972). There a New York City detective

had "received information which provided

him with reasonable grounds to believe

that appellant, a parolee, was 'dealing'

in sto’en goods." 441 F.2d at 1217. When

informed of this by the detective, the

parolee's parole officer “obtained a

parole violation warrant, believing that

there was more than reasonable grounds to

conclude that Santos had lapsed into

criminal activity." Id. The parole of-

ficer, accompanied by a detective, sub-

sequently visited the parolee's apartment

for purposes of executing the arrest

warrant and the parole officer then

searched the apartment without a search

warrant, finding several items of

stolen property. In a new prosecution,

Santos unsuccessfully moved to suppress,

arguing that his fourth amendment rights

were "coextensive with those guaranteed

to ordinary citizens." Id. at 1217-18.

The Second Circuit rejected this conten-

tion, finding that a parolee's fourth

amendment rights were somewhat dimin-

ished:

Without attempting to define

precisely the extent of Fourth

Amendment protection against

searches and seizures which a

parolee might have in the ab-

stract, it is indisputable that

the Fourth Amendment affords pro-

tection only against an unreason-

able search. A search which would

be unlawful if directed against an

ordinary citizen may be proper if

conducted against a parolee.

Id. at 1218.

The Ninth Circuit took a somewhat dif-

ferent view in two companion cases, Latta

v. Fitzharris, 521 F.2d 246 (9th Cir.),

cert. denied, 423 U.S. 897 (1975) and

United States v. Consuelo-Gonzalez, 521

F.2d 259 (9th Cir. 1975).>% In Latta,

the state parolee had been arrested with-

out a warrant when his parole officer

discovered him holding a pipe with mari-~

42a

juana. Approximately six hours later,

the parole officer conducted a warrant-

less search of Latta's home, where he

discovered a four-and-a-half pound brick

of marijuana in Latta's garage. While

the plurality opinion held that parol-

ees were entitled to the fourth amend-

ment prohibition against unreasonable

searches, this right was somewhat min-

imal and did not require the obtaining

of a search warrant:

‘T)he parolee and his home are

subject to search by the parole

officer when the officer reasonab-

ly believes that such search is

necessary in the performance of

his duties.... His decision may

be based upon specific facts,

though they be less than suffi-

cient to sustain a finding of

probable cause. i jaa

521 F.2d at 250.

In dicta, not supported by a majority

of the court, Id. at 253-54 (concurring

opinions), the plurality observed,

[The officer's decision] may even

be based on a “hunch," arising

from what he had learned or ob-

served about the behavior and at-

titude of the parolee. To grant

such powers in the parole officer

is not, in our view, unreasonable

under the Fourth Amendment. The

principal protection against abuse

of this authority is the "helping"

function of the parole officer's

job, and the training that he has

received to fit for that job. A

good parole officer does not re-

gard himself as a policeman.

Id. at 250.

In light of this position, it is not

surprising that the court ruled the

search there was unreasonable and that a

parole officer is not required to obtain

a search warrant for an otherwise reason-

able search. The court relied upon

several Supreme Court cases in which the

Court refused to require a warrant in

certain types of administrative searches.

Id. at 251, citing United States v. Bis-

well, 406 U.S. 311 (1972) (warrant not

required for search under Gun control

44a

Act); Wyman v. James, 400 U.S. 309 (1971)

(dicta) (warrant not required for home

visit by welfare worker). In dismissing

a warrant requirement, the plurality ob-

served:

We think it indisputable, in

view of the nature of parole and

of the parole agent's responsibil-

ities as we have analyzed them,

that were a warrant required, the

showing necessary to obtain it

would have to be substantially

different from probable cause to

avoid frustrating the purposes of

parole. A magistrate required to

issue a warrant on the basis of

the parole officer's "hunch"

serves little or no purpose prop-

erly related to the parole system.

Whether "founded suspicion" in

this context could be more demand-

ing than "hunch" is at best un-

certain. The judicial energy that

review of the affidavits that

these almost gossamer standards

would require can better be spent

determining whether the particular

search in question was reasonable.

We have no desire to reduce the

warrant to a paper tiger. Yet

that is what we would do if we

were to impose a warrant require-

ment. Because of the necessarily

broad nature of the parole of-

ficer's authority, in most cases

the magistrate would have to take

the parole officer's word for it

45a

when the parole officer asks for a

warrant. This affords no real

protection to the parolee; it

makes the warrant a mere piece of

paper.

521 F.2d at 251-52.

The same analysis was applied in

United States v. Consuelo-Gonzalez,

Supra, to obtain a different result with

respect to a federal probationer. The

distinguishing factor was that the search

in Consuelo-Gonzalez had been conducted

by police officers rather than by proba-

tion officers. The court made clear that

had the searching party been probation

officials, the search would have been

reasonable. 521 F.2d at 265-66.

A strong dissent was filed by Judge

Hufstedler, in which two judges concur-

red, in the Latta case. The dissent took

special exception to the plurality's

willingness to rely upon a parole of-

ficer's "hunches" and to dismiss the need

for a warrant:

46a

A warrant should issue to a par-

ole officer to search his parol-

ee's residence upon the officer's

showing that the described home to

be searched is the residence of

his parolee, in which he lives

alone or in the company of persons

identified or otherwise described;

that the parole officer has rea-

sonable cause to believe that the

parolee is violating, or is in im-

minent danger of violating, one or

more specified conditions of his

parole; and that he has reasonable

cause to believe that evidence of

such actual or impending viola-

tions will be found in the home to

be searched. Evidentiary support

for the probable cause showing

need not meet the high standards

of Aguilar-Spinelli (Aguilar v.

Texas, 378 U.S. 108 (1964); Spin

elli v. United States, 393 U.S.

410 (1969)), but it could not be

based on the officer's hunches un-

Supported by articulated facts.

Rather, the standard should be

sufficiently flexible to accomo-

date the parole officer's super-

visory obligations, but not so

loose as to offer the parolee and

his family no protection from ar-

bitrary intrusions by the parole

officer or from searches that are

unjustifiably broad. To this end,

the officer's showing need not be

confined to evidence admissible in

a courtroom. It could even in-

clude information from others

whose reliability had not been

tested.

521 F.2d at 1256-57 (footnote omitted)

(Hufstedler, J., dissenting).

The dicta in the plurality opinions in

Latta and Consuelo-Gonzalez have met with

little acceptance in other circuits. For

example, within this circuit, Chief Judge

Curtin of the Western District of New

York questioned the appropriateness of

the Ninth Circuit's rulings in United

States v. Smith, 396 F. Supp. 1155, 1159

(W.D.N.Y. 1975). Judge Haight of the

Southern District of New York, after

careful analysis of the plurality and

dissenting opinions in Latta and the

Second Circuit's prior ruling in Santos,

fully endorsed Judge Hufstedler's concept

of reasonableness, namely that a parole

officer must have reasonable cause to

believe that the parolee is violating, or

is in imminent danger of violating, one

Or more specified conditions of his par-

a

48a

Ole, in Diaz v. Ward, 437 F. Supp. 678,

686 (S.D.N.Y. 1977). However, Judge

Haight refrained from deciding whether in

this context the fourth amendment re-

quires the issuance of a search warrant.

Id. at 686 n. 15.4

A similar result was reached by the

Fourth Circuit, in United States v.

Bradley, 571 F.2d 787 (4th Cir. 1978).

One condition of Bradley's state parole

was that he refrain from possessing any

firearm without permission. Bradley's

parole officer received a telephone call

at approximately 3:00 a.m. from Bradley's

landlady that Bradley was in the posses-

Sion of a loaded firearm. Approximately

six hours later, two parole officers

conducted a search of the parolee's room,

without warrant or consent, where they

found a loaded firearm hidden in a

Suitcase. Bradley's parole was revoked

— ee eee —— LE IS OE TO TE TT I Ie

49a

and he later was convicted for violation

of federal firearms laws. Upon appeal of

his conviction, Bradley argued that the

search by the parole officer was in

violation of the fourth amendment. The

government relied upon the plurality

opinion in Latta that a warrantless

search was permissible. The Fourth

Circuit rejected this contention, ruling

that Judge Hufstedler's "well-reasoned

aiseent eee represents the preferable

approach." Id. at 789. The court

rejected the Latta plurality position for

two basic reasons. First, it found fault

with the plurality's interpretation of

the administration search cases, relying

instead upon Camara v. Municipal Court,

387 U.S. 523 (1967), in which the Supreme

Court ruled that, absent certain narrow

exceptions, warrants are necessary for

conducting administrative searches.

50a

Second, the Fourth Circuit agreed with

Judge Hufstedler's analysis in her

dissent, 521 F.2d at 257-58, that abuse

of discretion by parole officers is more

easily preventable by prior judicial

approval than by post hoc judicial

review. 571 F.2d at 790. The Bradley

court thus concluded:

We therefore hold that unless an

established exception to the

warrant requirement is applicable,

a parole officer must secure a

warrant prior to conducting a

search of a parolee's place of

residence even where, as a condi-

tion of parole, the parolee has

consented to periodic and unan-

nounced visits by the parole

officer.

id. at 789. Some seven months later, the

Bradley holding was applied to federal

probationers as well, in United States v.

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

where the court was impressed by the

absence of statutory approval for war-

rantless searches, in sharp contract to

tat tilncatial a jn Pree oo

5la

18 U.S.C. §3653's authorization of war-

rantless arrests. Id. at 1208.

This court agrees with the viewpoint

expressed in the Diaz, Bradley, and

Workman decisions that Judge Hufstedler's

dissent in Latta is in closer harmony

with the fourth amendment than is the

plurality opinion. This is particularly

true in light of the Supreme Court's

recent decision in Marshall v. Barlow's

Inc., 436 U.S. 307 (1978) which held that

members of the Department of Labor must

obtain a warrant prior to conducting

searches of commercial premises for

suspected violations of the Occupational

Safety and Health Act of 1970.

The more difficult question is the

impact of these decisions upon the issue

at hand, for Latta, Consuelo-Gonzalez,

Diaz, Bradley and Workman all involved a

parolee's or probationer's fourth amend-

52a

ment rights concerning searches and sei-

zures whereas the instant case involves a

probationer's fourth amendment rights

with respect to arrests. The court finds

the above opinions analogous to the in-

Stant case: if a probationer has certain

protectible fourth amendment rights vis-

a-vis searches and seizures, albeit these

rights are less than those accorded an

ordinary citizen, a probationer similarly

must have some protectible fourth amend-

ment rights regarding arrests. The

court's principal concern is the liberty

interest of the probationer, which

interest the Supreme Court sought to

preserve in Morrisey and Gagnon. In

Morrissey the Court found a parolee's

liberty “although indeterminate, in-

Cludes many of the core values of un-

qualified liberty." 408 U.S. at 482.

Refusing to adhere to the right-privilege

53a

distinction, the Court found the liberty

interest valuable and within the protec-

tion of the Fourteenth Amendment. Obvi-

ously, a probationer's "liberty" has been

diminished by a conviction and imposition

of conditions of probation. However, a

probationer's liberty interest does not

evaporate totally once he or she is

placed on probationer status. As men-

tioned in Part IIA supra, a probationer

is not entitled to a preliminary hearing

unless deprived of liberty by subsequent

incarceration pending a revocation hear-

ing. Such a hearing can be eliminated

for the judge at that point in time knows

that the probationer is not confined.

However, the same cannot be said when a

federal district judge issues an arrest

warrant for probation revocation. It is

not significant in this case that proba-

tioner Basso was released on his own

54a

recognizance at the presentment before

Magistrate Latimer on December 19, 1978.

The significant factor is that the possi-

bility of confinement existed when Judge

Zampano signed the Probation Form No. 12

on December 18. A different result would

attach if this district used a summons or

an order to show cause to compel a proba-

tioner's appearance at a formal or infor-

mal meeting at federal court. This dis-

tinction was illustrated in United States

v. Langford, 369 F. Supp. 1107 (N.D. Ill.

1973), where, upon the request of the

Probation Office, the United States At-

torney issued an order to show cause why

Langford's probation should not be re-

voked. Here the court held that the

probationer was not entitled to a prelim-

inary hearing under Morrissey and Gagnon

as he had not been arrested:

In the case at bar, probationer

has not been arrested or incar-

55a

cerated and he will not be unless

and until his probation is re-

voked. In accordance with the

usual practice in this District,

no arrest warrant has been is-

sued. Instead the Probation

Office has requested the United

States Attorney to move for a rule

to show cause. The Gagnon re-

quirement of a preliminary hearing

is inapplicable, since ordering a

probationer to show cause, unlike

an arrest, does not deprive him of

his liberty. Like process in a

civil suit, it merely requires his

appearance in court.

Id. at 1108. The import of Langford is

that an arrest, which carries a potential

deprivation of liberty, requires a judge

Or magistrate to conduct a preliminary

hearing after the arrest has occurred.

Such a preliminary hearing is a mechanism

to protect a probation'ers liberty inter-

est during the pendency of the revocation

proceeding. While its importance is not

to be disparaged, the preliminary hearing

is a post hoc remedy. This Court be-

lieves that some ante hoc protections are

necessary as well. Judge Hufstedler's

56a

dissent in Latta and the Bradley opinion

both advocate prior judicial consent

rather than after-the-fact review. 521

F.2d at 257-58; 571 F.2d at 790. #£=This

court strongly agrees that it is far

preferable for a judge to be able to

abort possible abuse of discretion by a

probation officer than to wait in a pas-

sive position with only post hoc reme-

dies. Charges of abuse of discretion

can have a devastating impact not only

upon the individual relationship between

a probationer and his officer, but also

upon the perception of the effectiveness

of an entire department by its present

and potential clientele.

In addition, the Supreme Court re-

quired that revocation be made by a

"neutral and detached" tribunal. Mor-

rissey v. Brewer, supra, 408 U.S. at

489. The impartiality of a district