Amicus Curiae Brief — Griffin v. Wisconsin

No. 86-5324

IN THE :

Supreme Court of the United States

OCTOBER TERM, 1986

>

JOSEPH G. GRIFFIN,

Petitioner,

—Vv.—

STATE OF WISCONSIN,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF WISCONSIN

— — —

—

AMICUS CURIAE BRIEF OF THE AMERICAN CIVIL

LIBERTIES. UNION AND THE ACLU OF WISCONSIN

FOUNDATION IN SUPPORT OF PETITIONER

— —

— —

ARTHUR EISENBERG

Counsel of Record

JOHN A. POWELI

DAVID B. GOLDSTEIN

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

TABLE OF CONTENTS

TABLE OF AUTHORITTEEEUWitlll . 111

INTEREST OF CWG“ 1

STATEMENT OF THE agg —— 4

SUMMARY OF MNGOUEtůk˖W kk... coves eS

ARGUMENT ..ccccccssccvescccesessesessesesesld

I. WARRANTLESS SEARCHES OF THE

HOME VIOLATE THE FOURTH

AMENDMENT UNLESS UNDERTAKEN

WITH CONSENT OR PURSUANT TO

EXIGENT CIRCUMSTANCES ...-.eeeeeeeee-14

Il. WHERE, AS HERE, A SEARCH WAS

UNDERTAKEN WITHOUT A WAR-

RANT, CONSENT OR CIRCUM-

STANCES, THE FOURTH AMEND-

MENT WAS VIOLATED. NO NEW

EXCEPTION TO THE AMENDMENT

SHOULD BE CREATED IN THIS

CASE hh 42

A. A Probationer Has a Sub-

stantial Expectation of

Privacy Within The Home

That Society Recognizes

as Legitin ate 24

B. Warrantless Searches By

Probation Officers Are

Not Essential To Effec-

tive Supervision 330

C. Legal Fictions Created

To Justify Warrantless

Searches By Probation

and Parole Officers Do

Not Withstand Careful

Analysis Or Realistic

RPRCOISRL cccccccccccecccccoccce SD

1. Constructive Custody .......40

2. lee... . . .o oo eee ee

. ee

.

- ji -

TABLE OF AUTHORITIES

Beck v. Ohio, 379 U.S. 89

(1964) EEE EE eee ae a ae oe

Boyd v. United States, 116

U.S. 616 (18890070᷑e11ir-:-- „6 0 0e

Bumper v. North Carolina, 391

U.S. 543 (196030700 3, 45

Camara v. Municipal Court, 387

U.S. 523 (1967) 9000060600000 406. 17, 37, 43

Chimel v. California, 395 U.S.

752 (1969) 2) (ieee ean eae eeeeeeeee ene

Coleman v. Smith, 395 F.Supp.

1155 (N. D. N. I. 197) 46, 47

Colonnade Catering Corp. v.

United States, 397 U.S. 72

(1970) bee eee eee eee oe 43

Dearth v. State, 390 80. 2d 108

(Fla. App. 1980) esse ey

Hudson v. Palmer, 468 U.S. 517

(1984) eee eee eee eee. 32, 40, 41

Johnson v. United States, 333

Bes BO CADER) coccccccccccccccccceelhG, $4

Katz v. United States, 389

U.S. 347 (1967) else ee ene

Marshall v. Barlow's, Inc.,

436 U.S. 307 (1978) ite anne ene 66866 6ne

- iii -

Latta v. Fitzharris, 521 F. 2d

246 (9th Cir. 1975) „ % „ 2 % „ „ „ „„ „ 9060000000

Michigan v. Clifford, 464 U.S.

sl .. pass im

Michigan v. Tyler, 436 U.S.

499 (1978) 5 0000 0 %%% %%% % %%% %%% %%% 0000007

Mincey v. Arizona, 437 U.S.

385 (1978) ‚666565555 „ 4 416, 35

New Jersey v. T. L. O.,

U.S. U 83 L. Ed. Id 720

(1985 0 eee eee eee ee eee eee eee eee eee el

Payton v. New York, 445 U.S.

573 (1980) CoCo „„ „„ „ „ „ „ „1 18, 19

People v. Hernandez, 229

Ca 1. App. 2d 143, 40

Cal.Rptr. 100 (1964) 0 0 0 G 0 e e 0 0 0 0 0060006060660

People v. Santos, 31 A. D. 2d

508, 298 N. 1. 8. 2d 526

(1969) 0 eee eee eee eee eee ee eee eee eee %0e

Schneckloth v. Bus tamonte, 412

U.S. 218 (1973) 6 „ „ „6 „ . „„ „% % „ 46, 47

See v. City of Seattle, 387

U.S. 541 (1967) TOPE 6 „ „ „ „ „ „ 6% %% %% %% %%% 428

Silverman v. United states,

e .

Smith v. Maryland, 442 U.S.

735 (1979) Seeseseeeoosecoosooeeeeseeeeeeenm

State v. Fogarty, 187 Mont.

393, 610 P. 2d 140 (1980))):ʒ 47

-ive-

State v. Griffin, 126 Wis.2d

183, 376 N.W.2d 62 (1988 7

State v. Griffin, 388 N.W.2d

535 (1986) ä

Steagald v. United States, 451

U.S. 204 (198612 4... «.. 8, 16, 19

United States v. Biswell, 406

U.S. 311 (1972) boese eee eee eee 43

United States v. Bradley, 571

F. 2d 787 (4th Cir. 1970))))))))))))):/. . . . 34

United States v. Chadwick, 433

U.S. 1 (1977) eee ryt rT TT TT eT TT TT Pe

United States v. Follette, 282

F.Supp. 10 (S.D.N.Y. 1968) errr reT TTT

United States v. Jarrad, 754

F.2d 1451 (9th Cir. 1983) . 47

United States v.

Martinez-Fuerte, 428 U.S.

543 (1976) .

United states v. Rea, 678 F. 2d

382 (2d Cir. 1982) senenseebsesosune 34, 38

United States v. Scott, 678

F.2d 32 (Sth Cir. 1982) —

United States v. United States

District Court, 407 U.S.

297 (1972) — . bes ceusneean

United States v. Workman, 585

F.2d 1205 (4th Cir. 1978) esse e

oe 2

Vale v. Louisiana, 399 U.S. 30

(1970) 0 6 0 % % % %%% % % % % 6e %% % % % % % 0% %% %%% %%% 16

Welsh v. Wisconsin, 466 U.S.

740 (1984) rs ©. i 21

Wolf v. Colorado, 338 U.S. 25

(1949) 6 „%%% %% %%% % %% % % %%% % % % % %%% % 016

Wyman v. James, 400 U.S. 301

(1971) ‚0H— 7777 r 417

Rules and Regulations

U.S. Parole Commission, Rules

and Procedures Manual (Nov.

4, 1985) § 2.40-14(d) „„ 0e % % % 11, 38, A-1l

Wisconsin Administrative Code

§ 328.21(3)(a) 6 0000000 0% % % 0 0% % e e e 000000000

Secondary Sources

4 W. LeFave, Search and

Seizure COC Cee eee eee eeeeeeeseseseeeeeedd

D. Stanley, Prisoners Among

Us, The Problems of Parole

(1976) ‚•K HB 5356666 „ „ „ „ 3336

E. Studt, Surveillance and

Service in Parole: A

Report of the Parole Action

e

INTEREST OF AMICI

The American Civil Liberties Union

(ACLU) is a national organization comprising

more than 250,000 members. The American

Civil Liberties Union of Wisconsin Foundation

is the Wisconsin affiliate of the ACLU with

over 3,500 members statewide. The ACLU and

its affiliates have been traditionally de-

voted to the protection and enhancement of

fundamental liberties and basic civil

rights. Among the most fundamental of

liberties is the Fourth Amendment “right of

the people to be secure in their ... houses

. .. against unreasonable searches and

seizures ...."

In the present case, the Wisconsin

Supreme Court has upheld the search of a home

by law enforcement officials without a war-

rant, consent or exigent circumstances. In

so doing, the Court recognized that it was

creating a new exception to the warrant re-

quirement of the Fourth Amendment. It is the

position of amici that no new exception to

the warrant requirement of the Fourth Amend-

ment should be created or can be justified

under the facts and circumstances of this

case.

With the consent of the parties indi-

cated in letters being lodged with the Clerk,

amici respectfully submit this brief to ad-

vance their position to the Court.

STATEMENT OF THE CASE

This case involves a law enforcement

search of a home by probation officers in the

absence of a warrant, consent or exigent cir-

cumstances.

During the morning of April 5, 1983,

Michael Lew, a probation officer employed by

the Wisconsin Bureau of Community Correc-

tions, received a phone call from the City of

Beloit Police Department. The caller!/ sug-

gested to Officer Lew that Joseph Griffin, an

individual then under probationary supervi-

sion, “may have had guns” at his home.

After receiving this initial phone call

from the Police Department, Officer Lew

waited two to three hours before making fur-

17 Officer Lew could not recall the name of the City

of Beloit police officer who provided the inf orma-

tion. He believed that the information was possibly

provided by Captain Truett Pittner. Captain Pittner

testified, however, that he did not recall contacting

Officer Lew regarding the search of Mr. Griffin's

residence.

ther arrangements with the Police Department

for the purpose of providing officers to ac-

company him and another probation officer,

Joanne Johnson, to the home of Mr. Griffin.

Arrangements were made, however, and later in

the day of April 5, Officers Lew, Johnson and

three officers from the Beloit Police Depart-

ment went to the residence of Mr. Griffin.

Before going to the Griffin household neither

Officer Lew nor any other probation officer

not any police officer attempted to secure a

search warrant from a judge or magistrate.

Upon arriving at the Griffin house,

Officer Lew approached the door and met Mr.

Griffin. Mr. Lew introduced himself as a

probation officer?’ and identified the other

officers as well. At this time, Mr. Lew also

announced: “We are going to search [the]

</ Neither Mr. Lew nor Ms. Johnson were directly

responsible for Mr. Griffin's probationary super-

vision.

residence.” After this exchange at the door,

all five officers entered the Griffin home

where they met Tanya Turner, a woman with

whom Mr. Griffin lived. The police officers

remained with Ms. Turner in the living room.

Officers Lew and Johnson then searched the

entire house.

During the course of the search, the of-

ficers found a handgun in a table drawer

located in the living room. They also found

a quantity of marijuana in the foyer. Upon

discovery of the gun, Officer Lew directed

the police officers to arrest Mr. Griffin.

On April 11, 1983, a criminal complaint

was filed against Mr. Griffin charging him

with possession of a firearm and possession

of a controlled substance. The defendant

moved, inter alia, to suppress all evidence

obtained during the search. The motion to

suppress was denied by the trial court. The

evidence obtained from the search was admit-

ted into evidence at a jury trial. After

trial, the jury found the defendant guilty of

possession of a firearm. The charge of pos-

session of a controlled substance was dis-

missed.

On appeal from the conviction, Mr.

Griffin continued to assert that: (1) the

warrantless search of his home violated the

Fourth Amendment; (2) even if a warrantless

search were constitutionally acceptable the

search conducted here was undertaken upon

less than probable cause and such a search

violates the Fourth Amendment; and (3) the

search in this case did not even satisfy the

“reasonable grounds to believe” standard im-

posed by Wisconsin Department of Health and

Social Services regulations.2/ A divided

section 328.21(3)(a) of the Wisconsin Administra-

tive Code purports to authorize probation officers to

search a probationer's residence “if there are reason-

able grounds to believe that the quarters ... contain

contraband."

Wisconsin Court of Appeals upheld the legal-

ity of the search, State v. Griffin, 126

Wis.2d 183, 376 N.W.2d 62 (1985), as did a

divided Wisconsin Supreme Court, State v.

(1986).

SUMMARY OF ARGUMENT

The right of privacy within the home

stands at the very heart of the Fourth Amend-

ment. To guarantee nis fundamental right

the Court has consistently held that, absent

consent or exigent circumstances, “the entry

[by government officials] into a home to con-

duct a search or make an arrest is unreason-

able under the Fourth Amendment unless done

pursuant to a warrant.” Steagald v. United

States, 451 U.S. 204, 211 (1981).

In the present case, the Wisconsin

Supreme Court has upheld the search of a pro-

bationer's home by probation officers who

were performing law enforcement functions and

who were proceeding without a warrant, con-

sent or exigent circumstances. In so doing,

the Wisconsin Court recognized that it was

creating a new exception to the warrant

requirement of the Fourth Amendment. The

Court appeared to base its conclusion upon

two interrelated grounds: First, given the

“nature of probation", State v.- Griffin, 388

N.W.24 535, 541 (1986), a probationer can

have no legitimate expectation that he or she

will remain free from warrantless searches of

the home. Second, warrantless searches by

probation officers are essential to effective

supervision.

Neither of these reasons can survive

careful analysis. The claim that a proba-

tioner can have no legitimate expectation

that he will remain free from warrantless

searches of the home is inconsistent with the

core principles and values articulated by

this Court's Fourth Amendment jurisprudence.

The claim drastically undervalues the import~-

ance that our society and this Court's Fourth

Amendment rulings give to the concept of

domestic privacy. The claim undervalues, 4s

well, the importance of the warrant require-

ment itself and the decisions of this Court

which carry the Fourth Amendment warrant re-

quirement even beyond the confines of the

home to commercial property. Finally, this

claim unreasonably discounts the privacy in-

terests shared by friends and family members

who reside with probationers.

The second rationale of the Wisconsin

Supreme Court is equally flawed. In the con-

text of warrantless searches of the home this

Court has never weighed the interests of ad-

ministrative efficiency against the privacy

rights of the individual. Given the primacy

of the right of domestic privacy within our

Fourth Amendment jurisprudence, such a calcu-

lus does not seem appropriate. But even if

appropriate, the Wisconsin Court provided no

real support for its conclusion that the

practice of conducting warrantless searches

is essential to the administration of a pro-

bation system. It provided no empirical data

to justify the claim that warrantless

— 190 -

searches are essential to the rehabilitative

goals of probation. Moreover, such a conten-

tion conflicts with common intuition. For,

if anything, warrantless searches of the home

undermine the trusting relationship that

should exist between the officer and the pro-

bationer if probation is to fulfill its

proper rehabilitative role.

Finally, the claim that warrantless

searches by probation officers are essential

to the reasonable administration of a proba-

tion system is further undercut by examining

the operation of the federal probation system

which does not permit probation officers to

conduct warrantless searches within the homes

of probationers. See U.S. Parole Commission,

Rules and Procedures Manual § 2.40-14(d)

(Nov. 4, 1985). There is no evidence that

this limitation has incapacitated federal

probation offices from the proper administra-

tion of their responsibilities.

- ll -

Although rejected by the court below,

other courts have invented legal fictions to

justify warrantless searches of the homes of

probationers and parolees. The fictions most

frequently invoked are commonly described as

the “constructive custody" theory and the

theory of “implied waiver."

Under the “constructive custody" theory,

it is asserted that probation is simply a

form of “jail on the street" and that, there-

fore, the Fourth Amendment rights of proba-

tioners should be measured by referring to

the rights of prisoners. This theory ignores

the real and substantial differences between

the life of a probationer and that of a pris-

oner. Indeed, the life of a probationer

comes much closer to resembling the life of

an ordinary citizen than that of a prisoner.

The "waiver" theory is Similarly without

merit. It ignores the inherently coercive

nature of probation and the clear holding of

2 12 «

this Court that the waiver of Fourth Amend-

ment rights must be entirely uncoerced and

voluntary. Bumper v. North Carolina, 391

U.S. 543, 548 (1968).

In short, there is no justification in

law or policy for creating a new exception to

the Fourth Amendment warrant requirement in

this case. These matters will be amplified

in the Argument below. 4/

4/ In focusing upon the warrantless quality of the

search in this case, amici do not mean to suggest that

petitioner's other claims relating to the constitu~

tional deficiencies of the instant search are without

merit. Indeed, law enforcement searches for criminal

contraband, whether conducted in accordance with the

warrant requirement or pursuant to one of its excep-

tions, are “reasonable” under the Fourth Amendment

only if based upon "probable cause. Beck v. Ohio,

379 U.S. 89 (1964). Therefore, even if a warrantless

search of a probationer's home is constitutional, the

lower court decision should, nonetheless, be reversed

upon the ground that the search at issue here was not

supported by “probable cause."

- 13 —

TO EXIGENT CIRCUMSTANCES

The personal freedoms guaranteed by our

federal Constitution embody fundamental

values respecting the relationship between

government and its citizens. Among the

values most deeply rooted within our common

law, our common culture, and our constitu-

tional tradition is the notion that the home

serves as a vital sanctuary of personal pri-

vacy. As early as 1886, this Court spoke of

t jhe sanctity of a man's home" and “the

privacies of life,“ Boyd v. United States,

116 U.S. 616, 630 (1886), and demonstrated

that privacy and the home are closely bound

together as a matter of cultural expectations

as well as constitutional doctrine. Thus,

whatever may be the outer reaches of Fourth

- 14 —

*

Amendment jurisprudence, the right of privacy

within the home lies at or near its core.

The Court's opinions have reflected this

sensibility on many occasions. In United

States v. Martinez-Fuerte, 428 U.S. 543, 561

(1976), the Court observed that “the sanctity

of private dwellings [is] ordinarily afforded

the most stringent Fourth Amendment protec-

tion.” In United States v. United States

District Court, 407 U.S. 297, 313 (1972), the

Court stated that “physical entry of the home

is the chief evil against which the wording

of the Fourth Amendment is directed.” And in

Silverman v. United States, 365 U.S. 505, 511

(1961), the Court announced that “at the very

core [of the Fourth Amendment] stands the

right of a man to retreat into his own home

and there be free from unreasonable govern-

mental intrusion.”

Recognizing that the right of the people

to be secure in their houses is “basic to a

- 15 -

free society,” Wolf v. Colorado, 338 U.S. 25,

27 (1949), the Court has consistently applied

a firm rule regarding searches of the home by

government officials. The Court has an-

nounced that such officials may not search a

person's home absent a search warrant, con-

sent or exigent circumstances. See, e.g.,

Welsh v. Wisconsin, 466 U.S. 740 (1984);

Steagald v. United States, 451 U.S. 204

(1981); Mincey v. Arizona, 437 U.S. 385

(1978); United States v. Chadwick, 433 U.S. 1

(1977); Vale v. Louisiana, 399 U.S. 30

(1970); Chimel v. California, 395 U.S. 752

(1969); Camara v. Municipal Court, 387 U.S.

523 (1967). This view was articulated, for

example, in Mincey, where the Court observed:

The Fourth Amendment proscribes all

unreasonable searches and seizures,

and it is a cardinal principle that

“searches conducted outside the

judicial process, without prior ap-

Pproval by judge or magistrate, are

per se unreasonable under the

Fourth Amendment -- subject only to

a few specifically established and

— 16 —

well-delineated exceptions" [cita-

tions omitted].

437 U.S. at 390.

Moreover, the Court has not limited its

affirmation of this Fourth Amendment warrant

requirement to residential searches conducted

by police officers. The Court has also im-

posed this requirement upon health and safety

officials, see Camara v. Municipal Court,

supra, and upon fire officials, see Michigan

„. Clifford, 464 U.S. 287 (1984).2/

Justice Jackson best described the rea-

son for the Court's firm insistence on a

5/ only in Wyman v. James, 400 U.S. 309 (1971) has

the Court even permitted a warrantless entry into a

residence by a government official. In so doing, the

Court emphasized that the entry was undertaken not by

a law enforcement official but by a social worker.

The Court further noted that the entry was not under-

taken to “search” but merely to conduct a “home

visit.” Accordingly, in reaching its result, the

majority opinion stated that "we are not concerned

here with any search by the New York social service

agency in the Fourth Amendment meaning of that term.”

Id. at 317.

— 17 —

judicial warrant as a necessary condition

precedent to a search:

The right of officers to thrust

themselves into a home is coe @

grave concern, not only to the in-

Gividual but to a society which

chooses to dwell in reasonable

ance. When the right of Privacy

must reasonably yield to the —

of search is, as a rule, to be de-

cided by judicial officers, not by

Johnson v. United States, 333 U.s. 10, 14

(1948).

The force of this reasoning has not

diminished over time. And in recent years

this Court has consistently adhered to the

Principle that a warrantless search of the

home represents a fundamental violation of

the Fourth Amendment in the absence of con-

sent or exigent circumstances. In Payton v.

New York, 445 U.s. 573 (1980), for example,

the Court held that the warrantless arrest of

@ suspect in his home is unconstitutional.

Summarizing its ruling, the Court concluded

— 18 -

that “the Fourth Amendment has drawn a fine

line at the entrance to the house. Absent

exigent circumstances, that threshhold may

not reasonably be crossed without a war-

rant." Id. at 590.

One year later, the Court returned to

this theme in Steagald v. United States, 451

U.S. 204 (1981). Unlike Payton, the police

in Steagald had an arrest warrant. The de-

fendant's home was searched, however, in the

execution of a warrant to arrest a third

party. Under these circumstances, the Court

held that the arrest warrant was inadequate

and a search warrant was necessary because of

the privacy interests at stake. Specific-

ally, the Court emphasized that an arrest

warrant focused on the rights of the suspect,

but did “absolutely nothing to protect [the

homeowner's] privacy interest in being free

from an unreasonable invasion and search of

his home.” Id. at 213. Echoing Payton,

- 19 -

Steagald reiterated the Court's guiding view

of the Fourth Amendment. “Except in spe-

cial situations,” the Court observed, “we

have consistently held that the entry into a

home to conduct a search or make an arrest is

unreasonable under the Fourth Amendment un-

less done pursuant to a warrant." Id. at

211.

More recently, in Michigan v. Clifford,

Supra, the Court suppressed the fruits of a

warrantless search by fire inspectors inside

a home hours after the actual fire had been

brought under control. The Court acknowl-

edged that fire inspectors perform a dual

function: for safety reasons, they seek to

prevent potential fires and to assess the

Origin of specific fires; as law enforcement

officers, they seek to gather evidence of

Criminal activity when arson is suspected.

But the Court rejected the assertion that

this dual function permitted fire inspectors

- 20 -

to ignore the warrant requirement. Taking

the warrant requirement as a given prior to

searching a home, the Court suggested, in-

stead, that the nature of the search might be

relevant in determining the level of probable

cause. 464 U.S. at 294. Clifford empha-

sized, however, that the most stringent level

of probable cause applies when government of-

ficials, whatever their title, are investi-

gating crime with the prospect that the te-

sults of their investigation may lead to the

incarceration of the individuals under suspi-

cion. Id.

Finally, in Welsh v. Wisconsin, supra,

this Court held that, absent exigent circum-

stances, the warrantless entry into an indi-

vidual's home to make an arrest for a traffic

offense was prohibited by the Fourth Amend-

ment. In reaching this result, the Court

once again observed that:

Prior decisions of this court

have emphasized that exceptions to

- 21 -

the warrant requirement are “few in

number and carefully delineated”

[citation omitted], and that the

police bear a heavy burden when at-

tempting to demonstrate an urgent

need that might justify warrantless

searches or arrests. Indeed, the

Court has recognized only a few

such emergency conditions ....

466 U.S. at 749-750.

In sum, this Court has consistently held

that warrantless searches of the home violate

the Fourth Amendment unless undertaken with

consent or pursuant to exigent circum-

Stances. There is no reason to deviate from

that rule and to create a new exception to

the Fourth Amendment warrant requirement in

this case.

There is no dispute but that the search

undertaken in this case did not rest upon a

warrant or upon any of the recognized excep-

- 22 -

tions to the warrant requirement. This fact

was plainly acknowledged by the Wisconsin

Supreme Court. State v. Griffin, 388 N. . 28

535, 538 (1986). Therefore, in upholding the

constitutionality of the search in this case,

the state court was constrained to develop a

new exception to the warrant requirement.

According to the Wisconsin Supreme

Court, this new exception derives from the

“nature of probation.” Id. at 541. In

reaching this conclusion, the Court touched

upon two aspects of probation that — in its

view -- justified an abandonment of the

Fourth Amendment warrant requirement. The

court s principal reason rested upon the

sense that probationers have a diminished en-

pectation of privacy and that this diminished

expectation renders warrantless searches con-

stitutionally acceptable. As a related but

secondary reason, the Wisconsin Supreme Court

seemed to conclude that probation officers

- 23 -

must retain the right to engage in warrant-

less searches in order to supervise proba-

tioners effectively.®/

Neither of these reasons can withstand

careful analysis. Indeed, there is no justi-

fication in law or policy for creating a new

exception to the warrant requirement in this

A. A Probationer Bas a Substantial

Probationers remain at liberty following

their conviction of a crime. In Wisconsin,

2s in most jurisdictions, probation signifies

that à judicial determination has been made

27 The Wisconsin Supreme Court declined te rely upon

a variety of legal fictions that have been used by

other courts to justify warrantless searches of the

homes of probationers and perolees. Thus, the Wiscon-

Sim Court did not seek to justify werrantiess searches

upon the claim that probationers are in “constructive

custody” or that they may be deemed to have "waived"

their Fourth Amendment rights and "consented" to war-

rant less searches. See Part II. c., infra.

- 26 -

that imprisonment is an inappropriate penal-

ty. Accordingly, probationers are permitted

-- indeed encouraged -- to live with family

and friends and to form and retain the tradi-

tional and enduring attachments of normal

life.

In the present case, for example, peti-

tioner Griffin was sharing his home with a

female friend and his child. In this re-

spect, it is fair to conclude that peti-

tioner's sense of domestic privacy was no

different from that held by other citizens.

Nothing in the record of this case suggests

that petitioner behaved in a manner inconsis-

tent with this expectation of domestic pri-

vacy. Indeed, the Wisconsin Supreme Court

did not identify any behavior on the part of

Mr. Griffin that would permit the conclusion

that petitioner's „subjective“ expecta-

27 rether ing Fourth Amendment rights to "subjective"

and “objective” expectations of privacy occurred first

[footnote cont'd)

- 25 -

tion of privacy was diminished in any

respect.

Instead, the court below seemed to base

its decision upon the claim that, by opera-

tion of law, probationers as a class suffer

from a diminution in their objective“ expec-

tation of privacy. In this respect, the

State court implicitly concluded that a pro-

bationer's expectation that he will remain

free from warrantless searches of his home is

Simply not one which society is prepared to

accept as "legitimate". Amici believe that

this conclusion is wrong.

Such a conclusion drastically under-

values the importance that our society and

in Justice Harlan's concurring opinion in Katz v.

United States, 389 U.S. 347, 360-361 (1967). In re-

cent years, however, the Court has appeared to empha-

size the “objective” prong of the test. See Hudson v.

Palmer, 468 U.S. 517, 525 n.7 (1984). Thus, with in-

creasing frequency the predominant question posed by

the Court has been whether the expectation of privacy

ina particular case is one which "society is prepared

to recognize as reasonable“, Katz, supra at 360-361,

or “legitimate”, Smith v. Maryland, 442 U.S. 735, 740

(1979).

— 26 —

our Fourth Amendment jurisprudence bestow

upon the concept of domestic privacy. That

concept was discussed in Point I above and

needs no extensive rehearsal here.

Moreover, if one compares a proba-

tioner's interest in domestic privacy with

other privacy interests that this Court has

found sufficient to trigger the Fourth Amend-

ment's warrant requirement, it is difficult

to conclude that probationers can have no

legitimate expectation that they will remain

free from warrantless searches of their

homes. In Marshall v. Barlow's, Inc., 436

U.S. 307 (1978), for example, an employer's

privacy expectation in the “employee area of

his business" or “working areas" was suffi-

cient to prohibit warrantless searches by

OSHA inspectors. In Michigan v. Tyler, 436

U.S. 499 (1978), a lessee of a burned furni-

ture store had a sufficient privacy expecta-

tion to bar fire officials investigating

— 27 —

arson from making warrantless searches of the

charred remains. And in See v. City of

Seattle, 387 U.S. 541 (1967), a businessman's

expectation of privacy in a locked commercial

warehouse was sufficient to bar a warrantless

search by fire inspectors engaged in a city-

wide canvass to obtain compliance with the

city's fire code.

If society is prepared to acknowledge

the expectations of privacy in commercial

premises which, unlike the home, have not

been considered to be “at the very core“ of

the Fourth Amendment, Silverman, 365 at 511,

and if the Court is, therefore; prepared to

prohibit warrantless searches by fire and

OSHA inspectors, it must surely accord simi-

lar constitutional protection where, as here,

law enforcement officials seek to search the

homes of probationers and their family mem-

bers.

- 28 -

Furthermore, the state court conclusion

that probationers can have no legitimate ex-

pectation to remain free from warrantless

searches ignores the privacy interests of

family members or friends with whom proba-

tioners typically reside. Such family mem-

bers and friends are frequently encouraged to

share their homes with probationers and, to

the extent that the maintenance of family

ties furthers the rehabilitative process, it

is of benefit to society that they do so. In

light of this societal interest, it is sense-

less for society to turn around and insist

that family members living with probationers

must also expect to sacrifice their right to

remain free from warrantless searches by gov-

ernment officials.

Thus, in assessing the privacy rights of

probationers within their homes the concom-

itant rights of persons living with proba-

tioners should not be ignored. For to hold

- 29 -

that probationers, as a class, have no legi-

timate expectation to remain free from war-

rantless home searches requires that we con-

clude, as well, that persons living with pro-

bationers can have no legitimate expectation

that they will remain free from warrantless

intrusions. This is an unreasonable and un-

desirable result.

B. Warrantless Searches By Probation

Officers Are Not Essential To

Effective Supervision

In upholding the warrantless search in

this case the Wisconsin Supreme Court appar-

ently balanced the probationer'’s interest in

domestic privacy against the state's inter-

ests in administering its probation system.

In this regard, the Wisconsin Court concluded

that "(ijt is the nature of probation and the

Guties placed on probation that justify such

searches." State v. Griffith, Supra, 388

N.W.2d at 341.8

- 30 —

In the context of searches of the home,

this Court has never balanced administrative

interests against the privacy rights of the

individual the way the Wisconsin Court did

here. Given the primacy of the home within

our Fourth Amendment jurisprudence, such a

calculus is not appropriate. But even if

proper, the Wisconsin Supreme Court provided

no support for its conclusion that the prac-

tice of conducting warrantless searches is

essentiz! to the administration of a proba-

tion system.

Were it appropriate to engage in such a

calculus in the context of a home search, the

question the Wisconsin Court would have had

to ask was whether the Fourth Amendment war-

8/ the Wisconsin Supreme Court opinion reached this

conclusion without much explanation. Thus, it is un-

clear as to how the Wisconsin Court engaged in this

calculus. It is also unclear whether the Court under

took this balancing test as part of its evaluation of

whether probationers have a legitimate expectation of

privacy.

- 31

rant requirement is fundamentally incompati-

ble with administrative interests that the

State must pursue. For when engaging in such

inquiries in other contexts, this Court has

consistently held that fourth Amendment pri-

vacy interests must be respected to the

degree that such interests are not fundamen-

tally incompatible with powerful administra-

tive needs. New Jersey v. . . o. U.S.

, 83 L. Ed. 2d 720, 735-736 (1985); Hudson

v. Palmer, supra, 468 U.S. at 523.9/

If the Wisconsin Court had framed the

inquiry in these terms it would have con-

cluded that no fundamental sncompatibility

exists between a probat ionet s interests in

2/ 10 Mew Jersey v. T.L.0., supra at 735-736, the

Court urged — of the Fourth Amendment issue

in such a way as to “ensure that the [privacy] inter-

ests of students will be invaded no more than is

necessary to achieve the legitimate end of preserving

order in the schools.” In Hudson v. Palmer, a at

523 the Court noted: lle have insisted that prison-

ers be accorded those rights not fundamentally incon-

sistent with imprisonment itself or incompatible with

the objectives of incarceration.”

- 32 -

remaining free from warrantless home searches

and the state's reasonable administrative

needs. This is so because warrantless

searches by probation officers are simply not

essential to the reasonable administration of

a probation system.

The Second Circuit, which addressed this

precise question in United States v. Rea, 678

F. 2d 382 (2d Cir. 1982), supports this con-

clusion. The Court in Rea stressed that even

a probationer “retains ... the rights of an

ordinary citizen except those expressly, or

by necessary implication, taken from him by

law." Id. at 386 (citations omitted). And

it concluded that probation and retention of

the right to remain free from warrantless

searches were not inherently incompatible.

In this regard, the Court specifically re-

jected the claim “that requiring a probation

officer to obtain a warrant prior to search-

ing a probationer's home would interfere in

- 33 -

any significant way with the dual rehabili-

tative and law enforcement functions of the

probation officer.” Id. at 387.

Further analysis of the dual functions

of probation reinforces the correctness of

the Second Circuit decision. / as the Rea

court observed, probation officers generally

perform a rehabilitative function by serving

as counselors or advisors for probationers.

The officers are also required to serve a

policing function designed to prevent proba-

tioners from committing further crimes.

Surely, the State of Wisconsin does not

claim that warrantless searches are necessary

to permit probation officers to perform their

policing cet ons more efficiently. For if

efficient law enforcement requires the aban-

10/

See also United States v. workman, 585 F. 24 1205

(4th Cir. 8); United States v. Bradley, 571 f. 20

787 (4th Cir. 1978); t see, ited States v. Scott,

678 F. 24 32 (Sth Cir. 1982); rn

F.2d 246 (9th Cir. 1975).

- 34 «-

donment of the Fourth Amendment's warrant te

quirement in some home searches, such a jus-

tification can be applied more generally to

all law enforcement searches. This Court,

however, has never accepted law enforcement

efficiency as a reason to permit warrantless

searches of a home absent exigent circum-

stances. Indeed, the Court has observed that

“the mere fact that law enforcement may be

made more efficient can never by itself jus-

tify disregard of the Fourth Amendment.”

Mincey, 437 U.S. at 393 (emphasis supplied).

yherefore, if probation officers are to

be treated any differently from other law en-

forcement officials for Fourth Amendment pur

poses, the distinction must somehow rest upon

the claim that limiting the officers’ capa~

city to conduct warrantless searches will un-

dercut the rehabilitative purp ses of pt oba

tion. But, in fact, there is no vidence to

support such a claim. The Wiscons. Supreme

= 3$ -

Court has pointed to none. Indeed, such a

Claim seems essentially counter-intuitive.

This is so because the requirement that

warrants be obtained prior to searching a

Pprobationer's home can be said to interfere

with the helping function of Probation only

if it is assumed that warrantless searches

promote a probationer's rehabilitation. In

this respect, it is hard to see how warrant-

less searches of the home enhance a proba-

tioner's familial relationships, improve his

financial security or employment opportuni-

ties, or upgrade his housing. If anything,

such searches undermine the trusting rela-

tionship that should exist between the of-

ficer and the probationer if probation is to

fulfill its proper rehabilitative tole.

1 Studies of the parole officer-paroclee rela-

tionship suggest that excessive surveillance -- in-

cluding unannounced searches -- by a parole officer

impedes the establishment of « trusting relationship

between parole officer and parolee. See, D. Stanley,

Frese Among oF The Problems of Parole, 100-10)

ootnote cont

- 3% -

So understood, warrantless searches are, in

all likelihood, dysfunctional to the rehabil-

itative purposes of probation.

Moreover, in considering the impact of a

warrant requirement upon the ability of pro-

bation officers to monitor the activities of

probationers, it is useful to remember that

barring warrantless searches is not the same

as barring all searches. As this Court noted

in Camara v. Municipal Court, supra at 533:

"(t)he question is not ... whether these in-

spections may be made, but whether they may

de made without a warrant.*!2/ A warrant te-

quirement simply serves as a procedural check

(1976); k. Studt, Surveri tance 26 Service in rerole:

A Report of the Parole Action Study 0

84 warrant requirement would also not disable

probation officers from using other techniques that

permit the officers to monitor the activities of pro-

bationers. <A probation officer could still require

probationers to attend regular meetings with probt ten

officers. They could still wisit the probationers at

their places of emp) t. They could still inter-

view the probationers’ employers as well as members of

the probationers’ families.

- 37 -

against the broad discretionary authority

possessed by probation officers. As the

Second Circuit wrote in Rea, supra at 387:

“We are unaware of any means, other than the

warrant requirement, by which the right to be

free of unreasonable searches can be effec-

tively protected.*

Finally, in support of the conclusion

that warrantless searches are not essential

to the reasonable administration of a proba-

tion system, it is worth examining the prac-

tice of federal probation officers. Simply

stated, the United States Parole Commission

does not permit probation or parole officers

to conduct warrantless searches. See U.S.

Parole Commission, Rules and Procedures

Manual § 2.40-14(¢) (Nov. 4, 1985).13/ ana

there is no evidence that this limitation has

LY Section 2.40-14 of the U.S. Parole Commission

Rules = Procedure e (e, 4, 1985) is set forth

n an = te this ief.

incapacitated federal probation officers from

the proper administration of their responsi-

bilities.

E. Legal Fictions Created To Justify

Warrantless Searches By Probation

and Parole Officers Do Not With-

stand Careful Analysis Or Realistic

Appraisal

In its opinion, the Wisconsin Supreme

Court noted that some courts have created

legal fictions to justify warrantless

searches of the homes of probationers and

parolees. State v. Griffin, supra, 376

N.W.2d at 67 n.4. The fictions most fre-

quently invoked are commonly described as

"the constructive custody” theory and the

rationale of “waiver.” The Wisconsin Court

was correct to reject these inventions be-

cause neither of these theories can withstand

careful analysis or realistic appraisal.

- 39 -

Re Constructive Custody

Under the “constructive custody" theory,

probation and parole are considered simply a

form of “jail in the street" and, therefore,

the Fourth Amendment rights of probationers

and parolees must be measured by reference to

the rights of prisoners. See, e.g., People

Hernandez, 229 Cal.App.2d 143, 40

Cal.Rptr. 100 (1964); People v. Santos, 31

A.D.2d 508, 298 N.Y¥.S.2d 526 (1969), aff'd,

Since prisoners have no Fourth Amendment

rights in their cells, see Hudson v. Palmer,

Supra, so the argument goes, the constitu-

tional privacy rights of probationers should

be comparably diluted -- at least to the ex-

tent that no warrant should be required be-

fore their homes are searched. See Santos,

Supra.

There are several short answers to this

argument. First, the life of a probationer

— 40 -

is, in virtually every aesthetic, physical

and emotional sense, very different from the

life of a prisoner. Though both probationers

and prisoners are subject to certain legal

restraints, in most cases the life of a pro-

bationer comes much closer to resembling the

life of an ordinary citizen than that of a

prisoner.

In this regard, reliance upon Hudson v.

Palmer, supra, is clearly misplaced. The

holding in that case was explicitly based on

the need to maintain institutional security

within a prison setting. 468 U.S. at

526-27. Specifically, the Court concluded

that the state's indisputable interest in

keeping weapons and drugs away from prisoners

living side by side ina “volatile” community

could not be accomplished "if inmates re-

tained a right to privacy in their cells."

Id. This is not to say that the state has no

interest in keeping weapons and drugs away

- 41 -

from probationers. But the particular con-

cerns created by a group of prisoners living

in close and constantly supervised confine-

ment simply do not apply to a probationer

living in his own home like an Ordinary citi-

zen.

Another variation on the “constructive

custody" theme is the claim that probation is

akin to a regulated industry and that, there-

fore, a probationer's home can be searched

without a warrant for the same reason that

warrantless searches of regulated industries

were upheld by this Court in United States v.

Biswell, 406 U.S. 311 (1972), and Colonnade

Catering Corp. v. United States, 397 U.S. 72

(1970). The doctrine announced in those

cases, however, has never been applied to a

private home. Given the primacy of the home

in Fourth Amendment jurisprudence that dis-

tinction should not be lightly dismissed.

- 42 —

Moreover, this Court has been presented

with several opportunities to extend the reg-

ulatory rationale of Biswell and Colonnade to

private dwellings, and has consistently de-

clined to do so. Camara v. Municipal Court,

supra, upheld the Fourth Amendment right of a

homeowner to deny entry to a housing inspec-

tor without a warrant. Recently, in Michigan

v. Clifford, supra, the Court ruled that fire

officials engaged in a regulatory inspection

required a warrant before entering a home.

If a home inspection is truly adminis-

trative in nature, a warrant may be obtained

on something less than the traditional prob-

able cause standard. See Camara, 387 U. 8. at

534-536. An administrative search may not be

used, however, as a subterfuge to gather evi-

dence for law enforcement purposes. See

Clifford, 464 U.S. at 294. This latter con-

cern is especially serious in the case of

government agents like probation officers who

- 43 -

perform a dual function. Id. at 294-95. It

is precisely because the line between regula-

tory inspection and criminal investigation

can be easily obscured by officerls] engaged

in the often competitive enterprise of fer-

reting out crime," Johnson v. United States,

333 U.S. at 13, that warrantless home

searches have never been allowed, absent exi-

gent circumstances, no matter what title gov-

ernment gives to its law enforcement offi-

cial.

Applying these principles, it seems

clear that where, as here, probation officers

entered the home of a probationer in order to

search for criminal contraband a warrant

based upon “probable cause" was necessary. /4/

14/ On the facts of this case, the Court need not

reach the question of the appropriate Fourth Amendment

standard that would be applied if probation officers

sought to enter the probat ioner s home not to search

but to meet with the probationer or his family.

- 44 -

we

2. Waiver

Some courts have argued that when an in-

dividual agrees to enter into a probationary

or parole relationship he has implicitly

waived his Fourth Amendment rights and con-

structively consented to submit to warrant-

less searches by probation or parole offi-

cers. See, e.g., United States v. Foliette,

282 F. Supp. 10, 15 (S.D.N.¥. 1968). So

understood, probation represents a blanket

and anticipatory waiver of all Fourth Amend-

ment rights, not only for the probationer but

for any person who may reside in the same

home with the probationer.

Again, such an argument is unrealistic

and at odds with the thrust of this Court's

precedent. In Bumper v. North Carolina, 391

U.S. 543, 548 (1968), the Court hr id that

“(w)hen [the state) seeks to rely upon con-

sent to justify the lawfulness of a search,

lit! has the burden of proving that the con-

2 4 <-

sent was, in fact, freely and voluntarily

given.” The determination of voluntariness

depends upon the totality of circumstances.

Schneckloth v. Bustamonte, 412 U.S. 218

(1973). Im making a judgment about voluntar-

iness, however, “the Fourth and Pourteenth

Amendments require that a consent not be

coerced, by explicit or implicit means, by

implied threat or covert force.” Id. at 228.

But a defendant seeking release on pro-

bation, like a prisoner seeking release on

parole, is in an inherently coercive situa-

tion. The overwhelming pressures that oper-

ate were aptly described by the District

Court in Coleman v. Smith, 395 F. Supp. 1155,

1157 (W.D.N.Y¥. 1975):

When Coleman was given the “agree-

ment“ to sign, parole had been

granted. However parole is char-

acterized, “the liberty is valu-

able” and a return to a lifestyle

approximating normalcy is cher-

ished “ee Only Coleman's signa-

ture on the dotted line could

secure the benefits of parole. A

refusal to sign slammed the cell

— 46 -

1

door shut [for] more than eight

years .... Under these circum-

stances, I find sufficient coercion

present to invalidate the consent

to search executed.

The court in Coleman is not alone in

reaching this conclusion. See United States

v. Jarrad, 754 F. 2d 1451, 1454 (9th Cir.

1985); Dearth v. State, 390 80. 2d 108

(ria. App. 1980); State v. Pogarty, 187 Mont.

393, 610 P. 2d 140 (1980) ("choice cannot be

termed voluntary when the alternative is

prison and even more restrictions"); see

generally 4 W. LeFave, Search and Seizure,

§ 10.10 (1986). To permit an inference of

consent in this context “would be no more

than a pretext for the unjustified ... in-

trusion against which th ourth Amendment is

directed.” Schneckloth, 412 U.S. at 228.

In short, the fictive theory of waiver

— like the doctrine of “constructive cus~

tody” -- ignores reality and the thrust of

this Court's precedents. It provides no ade

- 47 -

quate justification for warrantless home

searches of the sort at issue here.

CONCLUSION

The court below clearly recognized that

the search at issue here could not be based

upon consent or exigent circumstances. c-

cordingly, it fashioned a new exception to

the Fourth Amendment warrant requirement. In

this respect the Wisconsin Supreme Court

erred, for the new exception it created can-

not be supported as a matter of law or pol-

icy. The decision of the Wisconsin Supreme

Court should be reversed.

Respectfully submitted,

Arthur Eisenberg

(Counsel of Record)

John A. Powell

David B. Goldstein

AMERICAN CIVIL LIBERTIES

UNION POUNDATION

132 West 43rd Street

New York, N.Y. 10036

(212) 944-9800

February 6, 1987 Attorneys for Amici

- 408

United States Parole Commission

1 P 1

1 „

Section 2. 40-1.

izur c in Plain Vi

Where specifically authorized as a con-

dition of parole (either at the time of

release or as a special condition later

added) a Probation Officer may require

the parolee to surrender to him mate-

rials which the Probation Officer de-

lieves may constitute contraband ard

thus a violation of parole conditions

(e.g., dangerous drugs, weapons), and

which he observes in plain view in the

course of his contacts with tne pat

olee. The Commission shall be promptly

notified of any such seigure of contra~

band. A receipt for any material con-

fiecated must be given to the parolee.

(c)

Safety cf all parties involved, cr in

the vicinity. is the prime consideration

in the seizure of contrabanc. Thus, any

use of force is prohibited and consent

do the confiscation is requires. Re-

fusal of consent shall be a basis for a

request by the Probation Officer for a

warrant.

Where possession of contraband material

constitutes a criminal offense, such

must be reported to the appropriate law

enforcement autmority with delivery to

then of the contraband. Probation Offi-

cers should obtain from the law enforce-

ment authorities in their District in-

struction in proper identification and

chain of custody procedures to permit

ese of the materials for criminal pro-

ceedings and/or revocation of parole.

(8) Contraband materials must be in plain

view (open sight). Plain view cannot be

the result of a search by the Probation

Officer. Thus, the Probation Officer may

not conduct a search (e.g., enter rooms

uninvited or open bureau drawers, glove

boxes, or trunks of cars) to cause

‘plain view' of contraband articles.