Amicus Curiae Brief — Griffin v. Wisconsin

IN THE

Supreme Court of the An

—_ Term, 1986

- we

AY JOSEPH G. GRIFFIN,

q; Petitioner,

vs

STATE OF WISCONSIN,

CLERK

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF WISCONSIN

llleeeeEeESESES=SQQQeeeS5_0_—0_q_30—qQquq™qe eS |

BRIEF OF THE STATES OF NEW YORK,

ARIZONA, CONNECTICUT, DELAWARE,

FLORIDA, IDAHO, ILLINOIS, INDIANA,

MICHIGAN, MINNESOTA, NEW HAMPSHIRE,

NEW , NORTH CAROLINA AND

SO CAROLINA AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

]. Marc HANNIBAL Rosert ABRAMS

Counsel Attorney General of the

New York State Division State of New York

of Parole 120 Broadway

97 Central Avenue New York, New York 10271

Albany, New York 12206 (212) 341-2020

QO. Perer SHERWOOD

Solicitor General

Counsel of Record

LAWRENCE S. KAHN

Deputy Solicitor General

Juprrn T. Kramer

Assistant Attorney General

(Additional List of Counsel On Inside Cover)

————

Supreme Court, US, |

i) FILED

No. 86-5324

MAR 1 2 1987

JOSEPH F. SPANIOL, JR.

Rosert K. Corrin

Attorney General of Arizona

1275 West Washington

Phoenix, Arizona 85007

Joun J. Kewry

Chief, State's Attorney

Division uf Criminal Justice

340 Quinnipiac Street

Wallingford, Connecticut 06492

Cuarces M. Oseacy, III

Attorney General of Delaware

Department of Justice

820 North French Street

Wilmington, Delaware 1980]

Rosert A. BuTTERWORTH

Attorney General of Florida

State Capitol

Tallahassee, Florida 32399-1050

James T. JonEs

Attorney General of Idaho

Statehouse

Boice, Idaho 83720

New F. Hartican

Attorney General of Illinois

100 West Randolph Street

12th Floor

Chicago, Illinois 6060]

Lin.ey E. Pearson

Attorney General of Indiana

219 State House

Indianapolis, Indiana 46204

FRANK J. KeLuey

Attorney General of Michigan

760 Law Building

525 West Ottawa Street

Lansing, Michigan 48913

Husert H. Humpnrey, III

Attorney General of Minnesota

Room 515 Transportation Building

John Ireland Boulevard

St. Paul, Minnesota 55155

STEPHEN E. MERRILL

Attorney General of

New Hampshire

State House Annex

25 Capitol Street

Concord, New Hampshire

0330 1 -6397

E. Cary Epwarps

Attorney General of New Jersey

Richard J. Hughes, Justice Complex

Trenton, New Jersey 08625

Lacey H. THORNBURG

Attorney General of

North Carolina

Department of Justice

P.O. Box 629

Raleigh, North Carolina 27602

T. Travis Mepiockx

Attorney General of

South Carolina

P.O. Box 11549

Columbia, South Carolina 2921]

TABLE OF CONTENTS

Page

Table of Authorities .......................... ii

INTEREST OF THE AMICI .................. l

The Magnitude of the Parolee and Probationer

Populations, and their Characteristics......... 2

SUMMARY OF ARGUMENT .................. 5

ARGUMENT

REASONABLE WARRANTLESS SEARCHES

OF THE RESIDENCES OF PAROLEES AND

PROBATIONERS DO NOT VIOLATE THE

FOURTH AMENDMENT................... 6

EE 15

TABLE OF AUTHORITIES

Cases Page

Camara v. Municipal Court, 387 U.S. 523 (1967) 9

Colonnade Catering Corp. v. U.S., 397 U.S. 72

rere r reer rrr ry or Pee 7

Coolidge v. New Hampshire, 403 U.S. 443 (1971) 7

Chimel v. California, 395 U.S. 752 (1969)...... 7

Donovan v. Dewey, 452 U.S. 594 (1981) ........ 5, 7, 10

Gagnon v. Scarpelli, 411 U.S. 778 (1973)........ 8

Greenholtz v. Inmates of Nebraska Penal and

Correctional Complex, 442 U.S. 1 (1979)...... 8

Hudson v. Palmer, 468 U.S. 517 (1984) ......... 5S, 7,

8, 10

Hyser v. Reed, 318 F.2d 225 (D.C. Cir.), cert.

denied, 375 U.S. 957 (1963) ................. 8

Latta v. Fitzharris, 521 F.2d 246 (9th Cir. 1975)

(en banc), cert. denied, 423 U.S. 895 (1975) ... 6, 13

Minnesota v. Murphy, 465 U.S. 420 (1985) ...... 8

Morrissey v. Brewer, 408 U.S. 471 (1972) ....... 8, 9, 12

New Jersey v. T.L.O., 469 U.S. 325 (1985) ...... 5, 7,

9,14

Owens v. Kelley, 681 F.2d 1362 (11th Cir. 1982) 6

Payton v. New York, 445 U.S. 573 (1980) ...... 7

Page

People v. Anderson, 189 Colo. 34, 536 P.2d 302

SS a errr re rere 7

People v. Huntley, 43 N.Y.2d 175, 401 N.Y.S.2d

Sl, S71 NW.B.Bed 706 (1G77) . www cece eee 7, 10

People v. Hunt, 38 A.D. 2d 756 (2d Dept. 1972) . 10

People v. Jackson, 39 N.Y.2d 64, 382 N.Y.S.2d

796, 346 N.E.9d S37 (1076) ................. 10

People v. Randazzo, 15 N.Y.2d 526 (1964), cert.

denied, 381 U.S. 953 (1965) ................. 10

Schneckloth v. Bustemonte, 412 U.S. 218 (1973). . 7

State v. Earnest, 293 N.W. 2d 365 (Minn. 1980) . 7

State v. Fields, 67 Haw. 268, 686 P.2d 1379

ee 6

State v. Fogarty, 610 P.2d 140 (1980)........... 2

State v. Perbix, 331 N.W.2d 14 (N.D. 1983) ..... 6

State v. Pinson, 104 Idaho 227, 657 P.2d 1095

errr rrr errr Tere eee 7

State v. Sims, 10 Wash. App. 75, 516 P.2d 1088

er re ry aa 7

State v. Velazquez, 672 P.2d 1254 (Utah 1983)... 6

Terry v. Ohio, 392 U.S. 1 (1968)............... 5, 7, 14

iv

United States v. Bradley, 571 F.2d 787 (4th Cir.

ere er ee ae

United States v. Biswell, 406 U.S. 311 (1972) ....

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

1985), cert. denied, 106 S. Ct. 96 (1985) ......

United States v. Scott, 678 F.2d 32 (5th Cir.

Pre Terre ere rT eeere ee

United States ex rel. Santos v. New York State

Board of Parole, 441 F.2d 1216 (2d Cir. 1971) .

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

ae ae ee a ad vena es

STATUTES AND REGULATIONS

N.Y. Exec. Law § 259-i(2) (McKinney 1987).....

N.Y. Penal Law § 70.40 (McKinney 1975).......

DCs DIED cecccccccveveseseeces

Ps EE Sa wacceccuswsctnsnscves

MISCELLANEOUS

Bureau of Justice Statistics, Department of

Justice, Bulletin, Probation and Parole 1984,

NCJ-100181 (February 1986) ................

New York State Division of Parole, Ann. Rep.,

Fiscal Year 1084-85 ... 0... cc ccc cece eens

No. 86-5324

IN THE

Supreme Court of the United States

Octroser Term, 1986

JOSEPH CG. GRIFFIN,

Petitioner,

VS.

STATE OF WISCONSIN,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF WISCONSIN

Yea —_—_===_=_=_=_==

BRIEF OF THE STATES OF NEW YORK,

ARIZONA, CONNECTICUT, DELAWARE,

FLORIDA, IDAHO, ILLINOIS, INDIANA,

MICHIGAN, MINNESOTA, NEW

NEW , NORTH CAROLINA AND

SO CAROLINA, AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICI

This brief amicus curiae is submitted pursuant to Supreme

Court Rule 36.4 by the States of New York, Arizona, Connec-

ticut, Delaware, Florida, Idaho, Illinois, Indiana, Michigan,

Minnesota, New Hampshire, New Jersey, North Carolina and

South Carolina. These states have a significant interest in per-

mitting probation and parole officers to conduct reasonable war.

rantless searches of the residences of probationers and parvlees.

In several states, successful challenges to the legality of such sear-

ches have impaired the States’ ability to supervise probationers

In jails or prisons 685,681

On parole. 268,515

On probation 1,711,100

For example. in New York. the Seoond Circuit has held that in the absence

of exigent cireumstances the Fourth Amendment a warch warrent

Pp gpm a4 ey - US © Ree, O78 F Od tHe

Also, in © ponding lawsuit, Diss ©. Word. No. TS 1104

7, 1080), app. dietered, O58 F Bd 55 (Bd Cir 1081), the

4

z2

ri

, Pag P Bd 140 (1080), of United States ox rel San.

tor o., New York State of Parole, 441 F Od 1016 (Od Cir 1971), core

dented, 404 US 1085 (1972) (upholding warranties: warch of parolees

' Bureau of Justice Statistics Department of Justice Bulletin Probation and

, NO} 1, 4 and Table |

sentenced —

period of incarceration — under some form of community super:

vision.’ All of these immediate or early releases involve an

* Bureau of Justion Statistics. Department of Justice Bulletin Probation and

Porote 1984, Bulletin NC} 100181 (February 1086) at |

+ Por Fiscal Year 1084-45, of the 12.215 individuals released from New Yorks

State New York State Department of Corrections Statistical Table,

hep Das

to serve the larger portion of their sentences

out of prison. In New York, this is the

will engage in unlawful activity their parole period In

addition, many states have a mandatory release mechanism bas

ed upon a formula which credits the inmate's earned “good time”

of his sentence. See ¢.g., N.Y.

under

risk to the

calculated

and is not based upon an evaluation of the inmate's ability to

reintegrate into society:

Amict’s interest in being permitted to conduct reasonable war

rantless searches of releasees’ residences is further illuminated

, seventy-five percent had been of the

violent crimes of murder or manslaughter (11%), assault (4%),

or robbery (36%), of of the serious crimes of

SUMMARY OF ARGUMENT

As most state and federal courts have held, the Fourth Amend.

New Jersey 0. T.L.O., 400 U.S. 325, 397 (1085). Applying this

standard, this Court has in various contexts authorized war.

rantless searches on less than probable cause New Jersey

T.L.O.; Hudson ©. Palmer, 468 U.S. 517 (1084); Donovan ov.

Dewey, 452 U.S, 504 (1081), Terry». Ohio, 302 U.S. | (1068),

It is @ majority view of the courts of this nation that « policy

of conducting reasonable warranties searches of probationers

United States 0. Jarrad, 754 F.2d 1451 (Oth Cir. 1085), cert

denied, 106 8. Ct. 96 (1085), United Lsates ©. Scott, 678 F Od

32 (Sth Cir, 1982), Owens 0. , O81 F Od 1968 (Lith Cir

1082), United States o , 571 F Bd 787 (4th Cir, 1078),

Latta ©. Pitaharris, 521 F.2d 246 (Oth Cir. 1975) (en bane), cert

denied, 423 U.S. 805 (1975); United States ox rel. Santos». New

York State Board of Parole, 441 F Od 1216, 1218 (2d Civ. 1071).’

These cases recognize that « parole cause of warrant requirement

' Accord, State ©. Fields, @T Haw O68, G86 P Od 1970 (1084), State © Per.

be, MIN WO ND 10RD), Sete o Velacques, O72 P Od 1884 (Utah

footnote continued.

dards have been against .

ches E.g., Donovan 0. Dewey, 452 U.S. 504 (1081). Searches

of ordinary citizens in the absence of a warrant are lawful if

are on consent, Schneckloth © Bustemonte, 412U S 218

(1973), incident to a lawful arrest, Chimel » California, 395

U S$. 752 (1060), where the object seized is in plain view, Coo-

lidge © New Hampshire. rupra. there are exigent cir

cumstances, o. New York, 445 U.S. 573 (1080), of, more

governmental

jersey 0. T.L.O., 0 US. at 10.

footnote continued:

1089), State © Pinson, 104 idaho 227, 657 F dd 1008 (Or 1083) State

© Barnet, ON W Od 365 (Minn 1060), People © onve

175, 401 NY 6.04 91, ST) NB Bd 706 (1077), People © Anderson, 189 Cote

4. G06 F Od B08 (107S), State © Sime, 10 Wash App 75, 510 F Od lone

ere

——

It is well established that parolees and probationers’ are en-

titled to some constitutional

probationer or « parolee

. Polite, WAS F Ad 48, 54

'* Hyser ©. Reed, 018 F 2d 295, 235 (D.C.

375 U.S. O57 (1069). This Court has held

and parole boards have broad discretion to deter-

mine what rights an inmate will upon release Greenholtz

Inmates of Nebraska Penal and Correctional Complex, 442

S. 1 (1979). Thus, parolees and probationers do not have the

. The case ot bar involves the march of « probationers residence as opposed

to that of « perctee Amici wabenit thet there & a0 distinetion ter this Fourth

yy However, to the extent thet the satus of ¢ probationer dif-

# afl from thet of « parctee, Ne FED 0 GENES exgumant

herve sentenc-

od, incarcerated and until the dey of their release, have hed ao liberty in-

terest ond were net free trom werrention werches in thety coils Hudson v.

Palmer, RUS SIT (10Re) Moreover whihe they regain some liberty in-

torent upon their release, this Court has held that thetr Wherty i aot restored

probation officers are not considered police officers in most

states. This is because the basic purpose of the Fourth Amend-

ment “is to safeguard the privacy and security of individuals

against arbitrary invasions by governmental officials.” New

Jersey v. T.L.O., 469 U.S. at 335 (1981), quoting Camara v.

Municipal Court, 387 U.S. 523, 528 (1967).

But, as this Court counseled in T.L.O., a determination that

the Fourth Amendment is applicable to a certain class of sear-

ches is only the beginning of an inquiry into the standard gover-

ning such searches. The central command of the Fourth Amend-

ment is that searches be reasonable. T.L.O., 469 U.S. at 337.

The ultimate issue requiring resolution thus is whether a war-

rantless search based upon a reasonable belief of wrongdoing

meets the test of reasonableness. Id. The balancing process utiliz-

ed in this analysis pits the parolee’s and probationer’s legitimate

expectations of privacy and personal security against the govern-

ment’s need for effective methods of protecting the public.

Because parolees and probationers can reasonably have only

modest expectations of privacy, and because the states have a

compelling need to police potential breaches of public order by

persons serving sentences for serious crimes, amici submit that

warrantless searches, based upon reasonable suspicion, comp-

ly with the Fourth Amendment.

Determining whether a parolee’s or probationer’s expecta-

tion of privacy is legitimate itself requires a balancing of society's

(footnote continued )

to the same degree as that of an ordinary citizen. Morrissey v. Brewer, 408

U.S. 471 (1972). They are persons who have been found guilty of serious and

violent crimes; who are serving prison terms in the community; and who pose

a degree of danger to other members of the community. Id. at 483. If this

Court holds that reasonable warrantless searches of probationers are ap-

under the Fourth Amendment, such a standard would certainly app-

ly to individuals under parole supervision. If, however, this Court finds such

searches impermissible for probationers, amici submit that the risk involved

with parolees is such that reasonable warrantless searches are constitutional

for this group.

10

interest in security and the individual's reasonable interest in his

privacy. Hudson v. Palmer, 468 US. 517, 527-528 (1984).

Although a parolee's interest in the privacy of his home is clearly

greater than was his interest in the privacy of his prison cell, of

id. at 530, the parolee is still well aware that he has been releas.

ed on condition that he survive “the close and continual

surveillance”, id., necessary to a determination that he is capable

if.

Donovan v. Dewey, 452 U.S. at 600, citing United States v.

Biswell, 406 U.S. 31), 316 (1972).

Furthermore, in analyzing the legitimacy of a releasee’s expec-

tation of privacy, great weight should be given to longstanding

state judicial authority upholding warrantless searches of parolees

parolee’s residence, provided it is reasonably related to the per-

formance of the job and duties of the parole officer); People v.

Jackson, 39 N.Y.2d 64, 382 N.Y.S.2d 736, 346 N.E.2d 537 (1976)

(upholding warrantless search of probationer in office of proba-

tion officer). See also People v. Hunt, 38 A.D. 9d 756 (2d Dept.

1972); People v. Randazzo, 15 N.Y.2d 526 (1964), cert. denied,

381 U.S. 953 (1965); cases cited supra at 6-7 n. 7.

to be immune from warrantless searches based on reasonable suspi-

cion inasmuch as states generally expressly condition parole or pro-

bation upon the releasee’s consent to warrantless searches.’

° In New York, every parolee, pursuant to 9 NYCRR 8003. 1(c) (1986), must

expressly agree to the following conditions of release:

(footnote continued)

Further, the governmental interest in effectuating the parole

or probation system outweighs parolees and probationers’

(footnote continued )

(a) A releasee will proceed directly to the area to which he has

been released and, within 24 hours of his release, make his ar-

rival report to that office of the Division of Parole unless other

instructions are designated on his release agreement.

(b) A releasee will make office and/or written reports as

directed.

(c) A releasee will not leave the State of New York or any other

state to which he is released or transferred, or any area defined

in writing by his parole officer without permission.

(d) A releasee will permit his parole officer to visit him at his

residence and/or place of employment and will permit the search

and inspection of his person, residence and property. A releasee

will discuss any proposed changes in his residence, employment

or program status with his parole officer. A releasee has an im-

mediate and continuing duty to notify his parole officer of any

changes in his residence, employment or program status when

circumstances beyond his control make prior discussion

impossible.

(e) A releasee will reply promptly, fully and truthfully to any

inquiry of or communication by his parole officer or other

of the Division of Parole.

(f) A releasee will notify his parole officer immediately any time

he is in contact with or arrested by any law enforcement agency.

A releasee shall have a continuing duty to notify his parole of-

ficer of such contact or arrest.

(g) A releasee will not be in the company of or fraternize with

any person he knows to have a criminal record or whom he knows

to have been adjudicated a youthful offender except for acciden-

tal encounters in public places, work, school or in any other in-

stance with the permission of his parole officer.

(h) A releasee will not behave in such manner as to violate the

provisions of any law to which he is subject which provides for

penalty of imprisonment, nor will his behavior threaten the safety

or well-being of himself or others.

(i) A releasee will not own, possess or purchase any shotgun,

rifle or firearm of any type without the written permission of his

parole officer. A releasee will not own, possess or purchase any

deadly weapon as defined in the Penal Law or any dangerous

knife, dirk, razor, stiletto, or imitation pistol. In addition, a

(footnote continued )

12

diminished privacy interests. See Morrissey at 480. The dual

purnoses of parole are: (1) to assist persons under supervision

to adjust to and reintegrate into the community, and (2) to pro-

vide protection to the community by ensuring that persons under

supervision abide by the conditions of release and if they do

not, are returned to prison. See Morrissey at 477-479. In order

to be effective and to achieve these goals, the supervision pro-

cess must be flexible and must include a variety of mechanisms

to monitor the adjustment of the parolee. Although parolees

are regarded as less of a risk than persons still incarcerated for

serious or violent crimes, the element of risk is far from non-

existent. See Morrissey v. Brewer, 408 U.S. at 483. To manage

the risk inherent in every release decision, New York like the

other amici states, requires significant and varied contacts bet-

ween parole officers and parolees. These contacts include in-

(footnote continued)

releasee will not own, possess or purchase any instrument readi-

ly capable of causing physical injury without a satisfactory ex-

planation for ownership, possession or purchase.

(j) In the event that a releasee leaves the jurisdiction of the State

of New York, the releasee waives his right to resist extradition

to the State of New York from any state in the Union and from

any territory or country outside the United States. This waiver

shall be in full force and effect until the releasee is discharged

from parole or conditional release. While a release has the right

under the Constitution of the United States and under law to con-

test an effort to extradite him from another state and return him

to New York, a releasee freely and knowingly waives this right

as a condition of his parole or conditional release.

(k) A releasee will not use or possess any drug paraphernalia

Or use OF possess any controlled substance without proper medical

authorization.

9N.Y.C.R.R. §8003.2 (emphasis added). This consent is typical

of those required by many other states.

13

warrant or a probable cause requirement would inordinately

delay and limit an officer's ability to monitor compliance and

protect the community.

Parole supervision must also include a mechanism to protect

individuals who have agreed to live and work with a parolee,

as well as society at large. They all have a right to expect that

the parole officers will be able to respond rapidly to informa-

tion concerning violations of the conditions of release, or of

criminal activity.

Often, interested family members, neighbors or employers

detect inappropriate parolee conduct, such as weapon posses-

sion or drug usage, and share the information with the parole

officer. Such family-related “tips” are most frequently provid-

ed with a request for anonimity, and thus would generally not

meet the standard of probable cause required for a search war-

rant. Similarly, a parole officer may have reason to believe, bas-

ed upon information that the parolee has been absent repeatedly

from work or has otherwise been acting erratically, that he is

using alcohol or narcotics, or is using his home as a base for

unlawful activities. See Latta v. Fitzharris, 521 F.2d at 250.

This information would generally not rise to the level of pro-

bable cause. Unless the parole officer is able to search in such

circumstances, however, he will be unable to ensure that the

parolee is complying with the terms of his parole, or to take

appropriate steps if the parolee is not in compliance.

The supervisory process is an ongoing one not easily compart-

mentalized into small, individual tasks . ; suggested by peti-

tioner. Petitioner concedes that a warrant would not be

for a home visit or other “routine” tasks but contends

that one should be required prior to an investigation of a “tip”

of criminal wrongdoing. The drawing of such a line would

undermine the ability of parole and probation officers to in-

sure that the public and persons living and working with

parolees and probationers are protected at all times and not just

during routine visits.

” Virtually the same analysis applies to searches of a probationer’s residence.

14

A requirement that a search be based upon a reasonable suspi-

cion that the parolee or probationer is violating the conditions

of his release, see Terry v. Ohio, supra and New Jersey v.

T.L.O., supra, would properly safeguard the releasee’s modest

interest in privacy. Under this standard, a supervising officer

would not be able to search a residence in the absence of

“specific, articulable facts” which would form the basis of a ra-

tional inference that a condition of parole has been violated.

United States v. Scott, 678 F .2d at 35. Parolees and probationers

could thus not be subjected to an arbitrary search based solely

upon whim or an intent to harrass.

In New Jersey v. T.L.O., 469 U.S. 325, this Court, in

upholding a warrantless search by school administrators of a

student’s purse, recognized the need to “strike a balance between

some legitimate expectation of privacy by students and the state's

equally legitimate right to maintain an environment where lear-

ning can take place.” It was evident to this Court that some

easing of the restrictions to which searches by public authorities

are ordinarily subject was appropriate in schools and that a war-

rant requirement was unsuited to the school environment. Here,

too, it is evident that such restrictions should be eased. A search

of the home of a parolee or probationer based upon reasonable

cause to believe a condition of release has been violated is a

reasonable accomodation of the rights of society and of persons

who have been convicted of crimes but who are permitted to

serve all or a portion of their sentence outside of prison.

HF ee

CONCLUSION

This Court should hold that the Fourth Amendment permits

warrantless searches, upon reasonable suspicion, of the

residences of probationers.

J. Marc HanniBac Ropert ABRAMS

Counsel Attorney General of the

New York State Division State of New York

of Parole 120 Broadway

97 Central Avenue New York, New York 10271

Albany, New York 12206 (212) 341-2020

O. Peter SHerwoop

Solicitor General

Counsel of Record

Lawrence S. KAHN

Deputy Solicitor General

Juprrn T. Kramer

Assistant Attorney

General