Amicus Curiae Brief — Pennsylvania Bd. of Probation and Parole v. Scott

(2) Supreme Court, U.S. |

i ee a

NOV 3 1997;

No. 97-581 oa

In The

SUPREME COURT OF THE UNITED STATES

October Term 1997

PENNSYLVANIA BOARD OF

PROBATION AND PAROLE,

Petitioner,

v.

KEITH M. SCOTT,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

BRIEF OF OHIO, ARIZONA, ARKANSAS,

CALIFORNIA, DELAWARE, DISTRICT OF

COLUMBIA, HAWAII, IDAHO, KANSAS,

KENTUCKY, LOUISIANA, MASSACHUSETTS,

MICHIGAN, NEBRASKA, NEVADA, NEW

HAMPSHIRE, NEW YORK, NORTH CAROLINA,

NORTH DAKOTA, OKLAHOMA, PENNSYLVANIA

AND VERMONT

AS AMICI CURIAE IN SUPPORT OF

PETITIONER

BETTY D. MONTGOMERY

Attorney General

JEFFREY S. SUTTON

State Solicitor

Counsel of Record

TODD R. MARTI

Assistant Attorney General

30 East Broad Street, 17th FI.

Columbus, Ohio 43215-3428

(614) 466-8980

Counsel for Amici States

svt"

GRANT WOODS

Attorney General

State of Arizona

WINSTON BRYANT

Attorney General

State of Arkansas

DANIEL E. LUNGREN

MARGERY S. BRONSTER

Attorney General

State of Hawan

ALAN G. LANCE

Attorney General

State of Idaho

CARLA J. STOVALL

Attorney General

State of Kansas

ALBERT B. CHANDLER, III

Attorney General

State of Kentucky

RICHARD P. IEYOUB

FRANK J. KELLEY

Attorney General

State of Michigan

DON STENBERG

Attorney General

State of Nebraska

FRANKIE SUE DEL PAPA

Attorney General

State of Nevada

PHILIP T. MCLAUGHLIN

Attorney General

State of New Hampshire

DENNIS C. VACCO

Attorney General

State of New York

MICHAEL F. EASLEY

Attorney General

State of North Carolina

i

QUESTION PRESENTED

Whether the exclusionary rule applies to evidence introduced

at a parole revocation proceeding, and if not, whether the

investigator's knowledge of the status of the parolee at the time

of the search warrants an exception to this position?

ii

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED .... 0.0 cc cece cscs cunesees i

TABLE OF AUTHORITIES ...... cc cece cers evenness iil

STATEMENT OF AMICI INTEREST ............... l

REASONS FOR GRANTING THE WRIT ............ 4

1. The Decision Below Exacerbates a Conflict

in the Lower Courts on the Question Presented.... 4

II. The Issues Raised by the Petition Are of Great

Importance to the Public Safety and Effective

Operation of the States’ Parole Systems. ........ 6

lll. The Pennsylvania Supreme Court Erred in

Applying the Exclusionary Rule to Parole

Revocation ProcseGAgh. ... <5.cc ce csesivacense® 9

CONCLAIBION ow. cc ttccc eens a aaeeeee 13

APPUIGIIE . ww. 5 ok iv ce dls cs Sie ee A-1

TABLE OF AUTHORITIES

Cases: Page

Agostini v. Felton,

SN 6s dc be Weck ccs 11

Amiss v. State,

219 S.E.2d 28 (Ga. App. 1975) ............ n>

Anderson v. Commonwealth,

CB . 6

Gagnon v. Scarpelli,

a ss a ad bis bcs 6a dcen’ 10

Greenholtz v. Inmates of Nebraska Penal

and Correctional Complex,

Ye ee 2

Griffin v. Wisconsin,

GE a a 10

Gronski v. State,

DEE OU, BED. ccc cctcccicccsvoce 7

Herrera v. State,

745 §.W.2d 527 (Tex. App. 1988) ............. 5

Immigration and Naturalization Service v. Lopez-Mendoza,

ows cn ccccccccceceesecs 10

Kain v. State,

378 N.W.2d 900 (lowa 1985) ................ 7

Kansas v. Turner,

891 P.2d 317 (Kan. 1995) ................. S11

Mapp v. Ohio,

EE 911

In re: Martinez,

463 P.2d 734 (Cal.), cert. denied,

i oo Li ve ve ekaa eel 5.7.8

Morrisey v. Brewer,

a i kde thee’ s )

IV

People v. Dowery,

312 N.E.2d 682 (Ill. App. 1974) .............. 9

People ex rel Piccarillo v. New York State Bd. of Parole,

SOT ETEBG SOOO U. BOUED cc csccwwcssceccss 5

State ex rel. Stuzik v. Dept. of Health & Social Services,

252 N.W.2d 660 (Wis. 1977)... 2... 6. cece 7

Stone v. Powell,

CR ea we ey Pre 10

United States v. Bazzano,

712 F.2d 826 (3d Cir.), cert. denied,

Sa ee ED cv awawane cereus ox UN 4

U/nited States v. Farmer,

$12 F.2d 160 (6th Cir.), cert. denied,

So Ne ee ee rs ee 4

United States v. Finney,

897 F.2d 1047 (10th Cir. 1990) ............... 4

United States v. Frederickson,

Pe lL eee ee 4

United States v. Hill,

447 F.2d 817 (7th Cir. 1971) ......... 2.0.0... 4

United States v. Montez,

te | |. le Bo 4,7

United States v. Rea,

ie Be ae 45

United States ex rel. Spercing v. Fitzpatrick,

426 F.2d 1161 (2d Cir. 1970)................. 7

United States v. Winsett,

ee es SS BOGOR 0 os om oh cca dee ben 4

United States v. Workman,

$85 F.2d 1205 (4th Cir. 1978) ................ 4

Wyman v. Jones,

Sees Sos... Cate 3

Vv

Other:

The Corrections Yearbook

ED ie ale Oe oa. 2s bold vite once woe 2

The Corrections Yearbook

Sn Mewintiieitings os awis Ghuvidé debocbss. 2,9

Note, Zhe Exclusionary Rule and Probation Revocation

Proceedings, \1 Val. U.L. Rev. 149(1976) .___.. 8

J. Gobert & N. Cohen, 7he Law of Probation and Parole,

SD so bo oun wid ckaekinnst ia tems ese 1,3

STATEMENT OF AMICI INTEREST

Amicus State of Ohio and 21 other amici States write to

urge the Court to grant the petition of the Commonwealth of

Pennsylvania in this case.

At stake is the applicability of the exclusionary rule to

parole revocation proceedings. In applying this principle

outside the context of a criminal proceeding and in excluding

pertinent evidence of a significant parole violation, the

Supreme Court of Pennsylvania has erected a novel principle of

constitutional law, one that is not in keeping with precedent

from this Court, exacerbates a growing conflict among the

lower courts, and unnecessarily intrudes on the sensitive

administration of the States’ parole programs.

The amici States have a considerable interest in the

proper operation of their parole systems. The availability of

parole provides a useful tool for rehabilitating certain offenders

and for preserving sufficient prison space for those others who

for one reason or another continue to pose a danger to the

public. All 50 States and the federal government have some

form of early-release program. And approximately three-

quarters of all adult offenders participate in some form of

conditional release while serving a criminal sentence. J. Gobert

& N. Cohen: The Law of Probation and Parole, § \.0\ (1983).

Parole programs also present unique administrative

challenges.

In parole releases, like its siblings probation

release and institutional rehabilitation, few

certainties exist. In each case, the decision

differs from the traditional mold of judicial

decision-making in that the choice involves a

synthesis of record facts and personal

observation filtered through the experience of

2

the decisionmaker and leading to a predictive

judgment as to what is best both for the

latter conclusion requires the Board to assess

whether, in light of the nature of the crime, the

inmate's release will minimize the gravity of the

offense, weaken the deterrent impact on others

and undermine respect for the administration of

Greenholtz v. Inmates of Nebraska Penal and Correctional

Complex, 442 U.S. 1, 8 (1979) (footnotes omitted).

Making these decisions more difficult still is the

frequency with which they must be made. The number of

offenders on probation or parole nationwide has increased by

more than two-thirds since 1987, from 1,798,390 to 2,999,287.

As a result, the average case load of probation officers has risen

from 111 to 301 offenders, a 179% increase, while the average

case load of parole officers has risen from 94 to 164, a 74%

growth. Criminal Justice Institute, Inc., 7he Corrections

Yearbook 68-69, 72-73 (1988), The Corrections Yearbook 140-

42, 148 (1997).

One of the most important tools for running a

responsible early release program is to monitor the offenders’

adjustment to release. Only by following the convict’s

activities outside the prison can the caseworker ensure that the

premise of early release -- that the offender no longer poses a

threat to public safety -- remains warranted. As explained by

a leading commentator on the topic:

The probation or parole officer has the

primary responsibility for supervision of a

parolee’s or probationer’s rehabilitative

progress. This caseworker, charged with

3

monitoring the offender's performance, owes a

responsibility to the public to ensure that

probationers and parolees who pose a threat to

public safety are not permitted to remain free

absent compliance with conditions which

obviate possible danger.

J. Gobert & N. Cohen, supra at § 8.02 (emphasis added)

(footnotes omitted).

In offering this brief for the Court’s consideration, the

amici States do not take the position that the Fourth (and

Fourteenth) Amendment's prohibition against “unreasonable

searches and seizures” has no application to parolees. ‘The

provision of course may well apply to prisoners who receive a

discretionary early release (except of course when the parolee

has agreed in advance to submit to unannounced and

warrantless searches as a condition of parole). See Wyman v.

Jones, 400 U.S. 309 (1971) (permitting government to

condition social welfare benefits on the waiver of Fourth

Amendment rights). Our point is a different one: Even

assuming that the guarantee applies to parolees, the judicially-

created exclusionary rule does not bar the admission of relevant

evidence in a parole revocation proceeding. The deterrent

values served by the rule, as we show below, have little force

in the administrative context of a parole setting.

REASONS FOR GRANTING THE WRIT

L. THE DECISION BELOW EXACERBATES

A CONFLICT IN THE LOWER COURTS

ON THE QUESTION PRESENTED.

The petition should be granted, as an initial matter,

because the decision below adds to a growing conflict of

authority on the issues presented -- (1) the general question

4

whether the exclusionary rule applies to parole revocation

proceedings, and (2) the more specific question whether the

exclusionary rule should apply when the government official

conducting the search has knowledge of the parolee’s status.

With regard to the general question, every federal court

of appeals except three has taken a position on the issue. See

A-7 to A-8. On one side of the conflict, eight courts of appeals

have determined that the exclusionary rule does not generally

apply to such proceedings. See United States v. Montez, 952

F.2d 854 (Sth Cir. 1992); United States v. Finney, 897 F 2d

1047 (10th Cir. 1990); United States v. Bazzano, 712 F.2d 826

(3d Cir. 1983), cert. denied, 465 U.S. 1078 (1984); United

States v. Rea, 678 F.2d 382 (2d Cir. 1982); United States v.

Frederickson, 581 F.2d 711 (8th Cir. 1978); United States v.

Winsett, 518 F.2d 51 (9th Cir. 1975); United States v. Farmer,

512 F.2d 160 (6th Cir.), cert. denied, 423 U.S. 987 (1975)

United States v. Hill, 447 F.2d 817 (7th Cir. 1971). On the

other side of the conflict, just one court of appeals has held that

the exclusionary rule generally applies to parole revocation

proceedings. See United States v. Workman, 585 F.2d 1205

(4th Cir. 1978).

At the State level, our research reveals that 32

jurisdictions have taken a position on this threshold question.

See A-1 to A-6. On one side, 29 States have held that the rule

generally does not apply to parole revocation proceedings. See

A-1 to A-S (citing cases). Three States, in contrast, have held

that the rule generally does apply to exclude evidence of parole

violations in this setting. See Herrera v. State, 745 §.W.2d 527

(Tex. App. 1988); People ex rel Piccarillo v. New York State

Bad. of Parole, 397 N.E.2d 354 (N.Y. 1979); Amiss v. State, 219

S.E.2d 28 (Ga. App. 1975). Notably, these three states account

for one-third of all probationers and parolees nationwide.

5

To be sure, with regard to the more specific question --

whether knowledge of the parolee’s status alters the

exclusionary rule calculation -- fewer courts have addressed the

issue. Both the Pennsylvania Supreme Court (in the decision

below) and the Second Circuit have held that the parolee’s

status, when known to the government official conducting the

search, makes the exclusionary rule applicable in the parole

setting. See United States v. Rea, 678 F.2d 382 (2d Cir. 1982).

In addition, 18 State and federal courts, each of which has held

that the exclusionary rule generally does not apply to parole

hearings, have acknowledged that the outcome might be

different if the investigative official knew the parolee’s status.

See A-2 to A-8 (Alabama, Arizona, Colorado, Washington,

D.C., Indiana, lowa, Louisiana, Maine, Massachusetts, North

Carolina, Rhode Island, Virginia, West Virginia, Wisconsin, the

Third, the Ninth, and the Tenth Circuits). None of the other

courts addressing the issue has held that the parolee’s status

changes the outcome. See A-1 to A-8. And one court has held

that knowledge of the parolee’s status does not change matters,

and thus specifically rejected the mode of analysis of the

Second Circuit in Rea and the decision below in this action.

See Kansas v. Turner, 891 P.2d 317 (Kan. 1995).

The breadth of this state-court and federal-court split of

authority favors review. The lower federal and state courts first

began addressing these issues in the early 1970s. See Jn re:

Martinez, 463 P.2d 734 (Cal.), cert. denied, 400 U.S. 851

(1970) (exclusionary rule does not apply to parolees); Anderson

v. Commonwealth, 470 §.E.2d 862 (Va. 1972) (exclusionary

rule does not apply to parolees though the outcome might be

different if the officer knew the parolee’s status). In the 27

years since then, neither the general question (does the

exclusionary rule apply in the parole context?) nor the specific

question (does the rule apply when the investigator has

6

knowledge of the parolee’s status?) has gone away. Little

indication exists that the questions will be uniformly resolved

anytime soon.

Plus, this case potentially gives the Court a chance to

resolve both questions at once. Were the petition granted,

respondent could prevail in this Court on either theory -- that

the exclusionary rule generally applies to parole revocation

hearings or at a minimum that the rule applies when the

investigator knows the status of the object of the search.

We respectfully submit that this conflict of authority on

the issues presented, together with the opportunity presented by

this case potentially to address both issues at once, by itself

warrants review now rather than later.

Il. THE ISSUES RAISED BY THE PETITION

ARE OF GREAT IMPORTANCE TO THE

PUBLIC SAFETY AND EFFECTIVE

OPERATION OF THE STATES’ PAROLE

SYSTEMS.

Not only does the petition present questions that have

divided a large number of lower courts, but it also implicates a

matter of great importance to the States. The impact of these

important federal questions on the States’ parole systems

presents a second justification for review.

Day in and day out, parole officials face a daunting and

sensitive task, one that leaves little room for the certainties of

hindsight. They must decide whether and when convicted

felons have become sufficiently rehabilitated to obtain early

release, then they must ensure that the premise of that release --

that the parolee is not a threat to the public safety -- remains

true throughout the probationary period. The citizenry pays a

steep price when parole officials make miscalculations in this

7

area. See generally Gronski v. State, 700 P.2d 777, 779 (Wyo.

1985); State ex rel. Stuzik v. Dept. of Health & Social Services,

252 N.W.2d 660, 663 (Wis. 1977); Jn Re: Martinez, 463 P.2d

734, 740 (Cal.), cert. denied, 400 U.S. 851 (1970).

In order to perform this difficult task, it is exceedingly

important that authorities be able to consider all relevant

information. United States ex rel. Spercing v. Fitzpatrick, 426

F.2d 1161, 1165 (2d Cir. 1970) (Lombard, J., concurring);

United States v. Montez, 952 F.2d 854, 859 (Sth Cir. 1992);

Kain v. State, 378 N.W.2d 900, 902 (Iowa, 1985). A

constitutional interpretation that limits access to relevant

information undermines parole officials’ efforts to do their job.

8

this time the . . . exclusionary rules are not

applicable to Adult Authority proceedings.

In re: Martinez, 463 P.2d at 740 (emphasis added).

Commentators have come to a similar conclusion in

considering the issue.

Furthermore, society needs to be protected by

preventing the commission of additional

offenses. A recent Illinois de: ision noted:

[a] court sentencing an offender

[T]he social consequences of imposing the

exclusionary rule upon the authority can be

disastrous. Conceivably, if the improperly

obtained evidence were the sole basis for parole

revocation, the authority might find itself

unable to act in the case of the paroled

murderer whom the police improperly

discovered had cached a minor armory for

future use or the parole narcotics peddler who

had collected a quantity of heroin for future

sale. Although we recognize of course, that

such evidence would not be admissible in a

court of law, we believe that an agency whose

delicate duty is to decide when a convicted

offender can be safely allowed to return to and

remain in society is in a different posture than

the court which decides his original guilt. Zo

blind the authority to relevant facts in this

special context is to incur a risk of danger to the

public which, at least as of this date, outweighs

the competing considerations of a problematical

gain in deterrence. We thus conclude that at

to probation takes a calculated

risk that the offender’s

rehabilitation will progress

better and that society will be

adequately protected by the

offender's return to the

community under supervision.

Obviously, the dangers inherent in this

“calculatea risk” fall primarily upon the public.

When the probationer has in fact violated the

conditions of his probation, the danger to

society is no longer a possibility but a certainty.

Thus, where verified factual information has

shown the court’s confidence to be misplaced,

such evidence should not be excluded. Rather,

the evidence should be admitted so that

immediate steps can be taken to protect the

public from the commission of additional

offenses.

Note, 7he Exclusionary Rule and Probation Revocation

Proceedings, 11 Val. U.L. Rev. 149, 156 (1976) (emphasis

9

added) (footnotes omitted) (quoting People v. Dowery, 312

N.E.2d 682, 685 (Ill. App. 1974)).

The sheer number of cases in this area, see infra, also

points to the magnitude of this federal question. So too does

the number of parolees affected by the issue. As of January 1,

1997, the States had nearly three million individuals on

probation or parole. Corrections Yearbook 142 (1997). In the

end, whether one looks at the impact of this issue through the

lens of public safety, the frequency with which the issue arises

or the number of parolees it affects, all illustrate the

overwhelming significance of the federal question.

il. THE PENNSYLVANIA SUPREME COURT

ERRED IN APPLYING THE

EXCLUSIONARY RULE TO PAROLE

REVOCATION PROCEEDINGS.

The lower court also erred in resolving the federal issue.

This, too, favors review.

The Court has never held that the exclusionary rule

applies to parole revocation proceedings, whether the offiicer

knows the status of the parolee or not. Nor is there anything in

the Court’s opinions that supports such a wide-ranging

expansion of Mapp v. Ohio, 367 U.S. 643 (1961). Quite to the

contrary, what the Court has said on this score points in an

opposite direction. In Morrisey v. Brewer, 408 U.S. 471, 489

(1972), the Court came close to endorsing the very distinction

Pennsylvania has advanced in this case by emphasizing the

administrative, non-adversarial nature of a parole revocation

hearing:

We emphasize there is no thought to equate this

second stage of parole revocation to a criminal

prosecution in any sense. It is a narrow inquiry,

i

10

the process should be flexible enough to

consider evidence . . . that would not be

admissible in any adversary criminal trial.

(Emphasis added). The decision below is equally inconsistent

with similar observations in Griffin v. Wisconsin, 483 U.S.

868, 873-874 (1987) (“A state’s operation of a probation

system ... presents ‘special needs’ beyond normal law

enforcement that may justify departures from the usual . . .

requirements.”). See also Gagnon v. Scarpelli, 411 U.S. 778

(1973).

The Court also previously has held that the exclusionary

rule does not apply to administrative proceedings, a view that

further undermines the Pennsylvania Supreme Court’s decision.

In Jmmigration and Naturalization Service v. Lopez-Mendoza,

468 U.S. 1032 (1984), the Court specifically held that the rule

does not apply to an administrative hearing in an area (like

probation and parole) where officials must make a large

number of difficult decisions in order to prevent ongoing

violations of law. /d. at 1046 (“Applying the exlusionary rule

in proceedings that are intended not to punish past

transgressions but to prevent their continuances or renewal

would require [decisionmakers] to close their eyes to ongoing

violations of the law.”) See also Stone v. Powell, 428 U.S. 465

(1976) (declining to apply exclusionary rule to habeas

petitions).

In addition to these statements from the Court’s

decisions, the underlying rationale of the exclusionary rule does

not extend to a parole revocation administrative hearing. The

essential explanation for engrafting the exclusionary rule onto

the Fourth Amendment was to deter future police misconduct.

Mapp v. Ohio, 367 U.S. 643 (1961). Contrary to the lower

court’s conclusion, that concern simply does not apply

whenever an officer knows the status of the parolee.

1]

Imagine a law enf>rcement officer who sees what may

or may not be a drug deal, knows one participant as a parolee,

sees the other as a stranger, then conducts a warrantless search

of both of them without probable cause. When the search

produces evidence of a parole violation and it later turns out

that the stranger also is a parolee, a knowledge-based approach

would allow the fruits of the search to be admitted against the

one but not the other. This makes little sense. See Kansas v.

Turner, 891 P.2d 317, 323 (Kan. 1995).

The main justification for a knowledge-based limitation,

moreover, is the specter that without one caseworkers could

malevolently violate parolees’ constitutional rights. Aside from

improperly assuming that government officials will lightly

breach their constitutional duties, see Agostini v. Felton, 66

U.S.L.W. 3253 (1997), this view contains a number of flaws.

To begin with, nothing about our position indicates that the

Fourth Amendment does not apply to parolees; only the

exclusionary rule does not.

What is more, the continued existence of the

exclusionary rule for criminal proceedings already acts as a

strong deterrent against unconstitutional searches of all

parolees, whether the police know their status or not. An

officer that suspects criminal activity may be afoot is as apt to

be interested in getting an arrest (and conviction) as a parole

revocation. Only the oddest of fact patterns would tempt an

officer to sacrifice a potential criminal conviction in order to

obtain a parole revocation.

Finally, and perhaps most importantly, a knowledge-

based approach does not in fact offer any additional deterrence

against unauthorized searches. A police officer who conducts

an unauthorized search violates the Constitution in one of two

ways: Either the violation was inadvertent (i.e., negligent) or it

12

was intentional. In the event the violation was negligent, no

extra deterrence follows from a knowledge-based limitation.

The whole point of such a limitation is to prevent intentional,

not negligent, unconstitutional searches -- in other words, to

prevent just those searches that occur because the officers know

the individuals to be parolees and think they can get away with

the violations because the evidence may be used in a parole

revocation proceeding. Under these circumstances, a

knowledge-based limitation simply will not deter inadvertent

violations, it will just exclude pertinent evidence.

No doubt, the same is not true for intentional violations.

A knowledge-based limitation might well deter such

transgressions, but it still offers no more deterrence than

already exists. When police officers intentionally violate a

citizen’s consitutional rights, the exclusionary rule is the least

of their worries. Such conduct exposes officials to individual-

liability claims, internal discipline and worse. These threats

provide all the deterrence anyone needs. Indeed, a contrary

view posits a law enforcement officer more concerned about

the potential exclusion of evidence than the potential for a

money-damages action and self-advancement. While such

concern for the public welfare is the hallmark of being a police

officer, it hardly applies to the malevolent probation or parole

officer that some lower courts have conjured in addressing this

issue.

13

All things considered, the petition presents issues that

have divided a wide number of lower courts, that implicate

important federal questions, and that were incorrectly decided

below.

CONCLUSION

For the foregoing reasons, we respectfully urge the

Court to grant the writ.

Respectfully submitted,

BETTY D. MONTGOMERY

Attorney General

JEFFREY S. SUTTON

State Solicitor

Counsel of Record

TODD R. MARTI

Assistant Attorney General

30 E. Broad Street, 17th Floor

Columbus, Ohio 43215-3428

(614) 466-8980

A-l

STATE AND FEDERAL DECISIONS ON THE

APPLICABILITY OF THE FOURTH AMENDMENT

EXCLUSIONARY RULE TO PROBATION/PAROLE

REVOCATION PROCEEDINGS

I. State Decisions

A) Jurisdictions Applying the Exclusionary Rule

NUMBER OF

PERSONS ON

PROBATION OR

STATE DECISION PAROLE*

Georgia Amiss v. State, 152,681

219 S.E.2d 28 (Ga.

App. 1975)

New York Piccarillo v. New 231,551

York Board of

Parole, 397 N.E.2d

354 (N_Y. 1979)

Texas Herrera v. State, 745 509,655

S.W.2d 527

(Tex. App. 1988)

Total Number on Probation and Parole* 893,870

Percentage of All State Probationers/Parolees* W.9%

A-2

B) Jurisdictions Declining to Apply the Exclusionary Rule

STATE

** Alabama

** Arizona

Arkansas

Califorma

**Colorado

Connecticut

**)D istrict of

Columbia

DECISION

Ex Parte Caffie,

516 So.2d 831

(Ala. 1987)

State of Arizona v.

Towle, 609 P.2d

1097 (Ct. App.

1980)

Dabney v. State,

278 Ark. 375, 646

S.W.2d 4 (Ark.

1983)

In Re: Martinez,

463 P.2d 734

(Cal.), cert. denied,

400 U.S. 851

(1970)

People v.

Wilkerson, 541

P.2d 896 (Colo.

1975)

Payne v. Robinson,

541 A.2d 504

(Conn.), cert.

denied, 488 US.

898 (1 988)

Thompson v.

United States, 444

A.2d 972 (DC.

App. 1982)

NUMBER OF

PERSONS ON

PROBATION OR

PAROLE*

21,015

46,499

29,176

450,935

30,903

55,652

11,829

STATE

**Indiana

**lowa

**] oulsiana

**Maine

**Massachusetts

1974)

Dulin v. State, 169

Ind. App. 211, 346

N_E.2d 746 (Ind.

App. 1976)

Kain v. State, 378

N.W _.2d 900 (lowa

1985)

State v. Turner, 259

Kan. 864, 915 P.2d

753 (Kan. 1995)

State v. Davis, 375

So.2d 69 (La.

1979)

State v. Caron, 334

A.2d 495 (Me.

1975)

Chase v. State, 522

A.2d 1348 (Md.

1975)

Commonwealth v.

Olsen, 405 Mass.

491,541 NE.2d

1003 (Mass. 1989)

People v. Perry,

201 Mich. App.

347, 505 N.W.2d

909 (Mich. 1993)

NUMBER OF

PERSONS ON

PROBATION OR

PAROLE*

113,614

93,033

18,035

23,042

50,701

7,753

46,707

49,038

60,333

STATE

Montana

New Hampshire

New Jersey

**North Carolina

Ohio

Oklahoma

**Rhode Island

Tennessee

A-4

DECISION

Thorsness v. State,

165 Mont. 321, 528

P.2d 692 (Mont.

1974)

Stone v. Shea, 113

N.H. 174, 304 A.2d

647 (N._H. 1973)

State v. Bickman,

285 N.J. Super 365,

666 A.2d 1386

(N.J. App. 1995)

State v. Lombardo,

295 S.E.2d 399

(N.C. 1982)

State ex rel. Wright

v. Ohio Adult

Parole Authority,

75 Ohio St.3d 82,

661 N E.2d 728

(Ohio 1996)

Richardson v.

State, 841 P.2d 603

(Okla. 1992)

State v. Spratt, 386

A.2d 1094 (R.L.

1978)

Barker v. State, 483

S.W.2d 586 (Tenn.

Crim. App. 1972)

NUMBER OF

PERSONS ON

PROBATION OR

PAROLE*

5,354

5,480

128,087

117,067

17,828

23,521

19,121

34,079

STATE

Utah

** Virginia

**West Virginia

** Wisconsin

Wyoming

DECISION

Reeves v. Turner,

28 Utah 310, 501

P.2d 1212 (Utah

1972)

Anderson v.

Commonwealth, 5|

Va. 437, 470

S.E.2d 862 (Va.

1972)

Hughes v. Gwinn,

290 S.E.2d 5

(W.Va. 1981)

State ex rel. Struzik

v. Dept. of Health

and Social

Services, 252

N._W.2d 660 (Wis.

1977)

Gronski v. State,

700 P.2d 777 (Wy.

1985)

NUMBER OF

PERSONS ON

PROBATION OR

PAROLE*

Total Number on Probation and Parole*

Percentage of All State Probationers/Parolees*

12,756

39,538

831

52,463

3,755

1,568,145

54.2%

C) Jurisdictions That Have Not Decided Whether the

Exclusionary Rule Applies

NUMBER OF PERSONS ON

STATE PROBATION OR PAROLE*

Alaska 3,754

Delaware 16,058

A-6

NUMBER OF PERSONS ON

STATE PROBATION OR PAROLE*

Florida 138,302

Hawai 6,833

Idabo 6,580

Kentucky 16,310

Minnesota 10,185

Mississipp! 12,154

Missour 49,492

Nebraska 15,220

Nevada 12,976

New Mexico 9,262

North Dakota 2,673

Oregon 29,488

South Carolina 36,998

South Dakota 4,421

Vermont 8,779

Washington 51,440

Total Number on Probation and Parole* 430,925

Percentage of All State Probationers/Parolees* 14.9%

Il. Federal Decisions

A) Circuits Applying the Exclusionary Rule

CIRCUIT

***2nd U.S. Cir.

4th US. Cir.

DECISION

United States v. Rea, 678 F.2d

382 (2d Cir. 1982)

United States v. Workman, 585

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

B) Circuits Declining to Apply the Exclusionary Rule

CIRCUIT

**3rd U.S. Cir.

Sth U.S. Cir.

6th U.S. Cir.

7th U.S. Cir.

8th U.S. Cir.

**9th US. Cir.

**10th US. Cir.

DECISION

United States v. Bazzano, 7\2

F.2d 826 (3rd Cir. 1983)

United States v. Montez, 952 ¥ 2d

854 (5th Cir. 1992)

United States v. Farmer, 5\2

F.2d 160 (6th Cir. 1975)

United States v. Hill, 447 ¥ 2d

817 (7th Cir. 1971)

United States v. Frederickson,

581 F.2d 711 (8th Cir. 1978)

United States v. Winsett, 518 F 2d

51 (9th Cir. 1975)

United States v. Finney, 897 ¥ 2d

1047 (10th Cir. 1990)

A-8

Cc) Circuits That Have Not Decided the Issue

CIRCUIT

Ist U.S. Cir.

11th U.S. Cir.

District of Columbia Cir.

Key

*As of January 1, 1997, as reported in the Corrections

Yearbook (1997)

**Recognizes, but does not answer, the question of the

relevance of knowledge of the probationer’s/parolee’s status

***Recognizes that the rule is generally not applicable, but

applies the rule based on knowledge of the probationer’s status.