# Appendix — Basso v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0826%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1981 - **Citation:** 450 U.S. 965 ## Text 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 5772 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 5773 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 6a 5774 “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 5780 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 5782 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0826%3A2. Public record. Not legal advice.