# Amicus Curiae Brief — Griffin v. Wisconsin

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1255%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1987
- **Citation:** 483 U.S. 868

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1255%3A09. Public record. Not legal advice.