Petitioners Brief — Pennsylvania Bd. of Probation and Parole v. Scott

Supreme Court, U.S

EIEER

No. 97-581 JAN ? (996

jn The Supreme Court Of 6 sulted Stites

OCTOBER TERM, 1997

PENNSYLVANIA BOARD OF

PROBATION AND PAROLE,

Petitioner

vs

KEITH M. SCOTT,

Respondent

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

BRIEF FOR PETITIONER

D. MICHAEL FISHER

Attorney General

GREGORY R. NEUHAUSER

Senior Deputy Attorney General

Counsel of Record

CALVIN R. KOONS

Senior Deputy Attorney General

Office of Attorney General

15th Floor, Strawberry Sg. JOHN G. KNORR, III

Harrisburg, PA 17120 Chief Deputy Attorney General

(717) 783-1471 Chief, Litigation Section

QUESTIONS PRESENTED

1. Whether a search of a parolee’s residence by parole

agents must be based on reasonable suspicion to be valid under

the Fourth Amendment, where the parolee has consented to

searches as a condition of parole?

2. Whether the exclusionary rule should apply to parole

revocation proceedings?

LIST OF PARTIES

Petitioner is the Penusylvania Board of Probation and

Parole, an agency of the government of the Commonwealth of

Pennsylvania. Respondent is Keith M. Scott.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................0.00cuees i

i i sscwekcsake MOdSL ED ii

EES ee ee iii

TABLE OF AUTHORITIES ...............00c0cceees v

REA ER a EE RCE l

STATEMENT OF JURISDICTION .................5. 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ................0.0005: 3

oS re 5

SUMMARY OF ARGUMENT ................0.000. 13

ARGUMENT

I. ABSENT EVIDENCE THAT THE SEARCH

OF SCOTT’S RESIDENCE WAS FOR AN

ILLEGITIMATE PURPOSE, HIS CONSENT

ENTITLED THE PAROLE AGENTS TO

SEARCH HIS HOME WITHOUT A

PARTICULAR LEVEL OF SUSPICION. ....... 15

Il. RELIABLE EVIDENCE SHOULD NOT BE TABLE OF AUTHORITIES

EXCLUDED FROM CONSIDERATION BY

PAROLE AUTHORITIES, EVEN IF THE CASES Page(s)

EVIDENCE WAS OBTAINED IN VIOLATION |

OF THE FOURTH AMENDMENT............. 26 | Black v. Romano,

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177 ~~ Ra SEE

Tumer v. Safley,

a 23, 24

112 F-24 826 (24 Cu, 1983), cere. donied sub nom. Mollica v.

United States, 465 U.S. 1078 (1984) ............00005. 29

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S15US. 1158.01 2306 (1995) ...-.--c.----. 16,22

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vii

CONSTITUTION

U.S. Constitution Amend. IV ..................005- 3,15

STATUTES

BO CRRDFED cevceveudeevrvscelendedseuaeess 2

3, 58 8 & be ere oe mee) ee 10

3 Se FR eee ee ee 8

Pa. Stat. Ann. tit. 61, §331.21 (Purdon Supp. 1997) ..... 3,5

Pa. Stat. Ann. tit. 61, §331.21(b) (Purdon 1964) ..... 4, 5, 20

Pa. Stat. Ann. tit. 61, §331.22 (Purdon Supp. 1997) ....... 4

Pa. Stat. Ann. tit. 61, §331.23 (Purdon 1964) ............ 4

MISCELLANEOUS

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

GR AUR Khe 66 cnczentodavicnath hen sekeneen 21

OPINIONS BELOW

The opinion of the Supreme Court of Pennsylvania is

reported at 698 A.2d 32 (1997) and is reprinted in the Appendix

to the Petition for Writ of Certiorari (Pet. App.) at la. The

opinion and order of the Commonwealth Court of Pennsylvania

are reported at 668 A.2d 590 (1995), and are reprinted in the Pet.

App. at 19a.

STATEMENT OF JURISDICTION

The judgment of the Supreme Court of Pennsylvania was

filed on July 3, 1997, and the petition for writ of certiorari was

filed within ninety days thereafter on September 30, 1997. The

Court granted certiorari by order of November 26, 1997, and has

jurisdiction to review the decision of the state supreme court

pursuant to 28 U.S.C. §1257(a). See Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469, 481 (1975) (judgment is final and

reviewable where federal issue is finally decided, with further

proceedings in state tribunals to come, but in which later review

of federal issue cannot be had).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Fourth Amendment to the Constitution of the

United States provides that, "The right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated. . . .". U.S. Const.

Amend. IV.

2. Pennsylvania statutes provide in relevant part as

follows:

The board [of probation and parole] is hereby

authorized to release on parole any convict

confined in any penal institution of this

to death or serving life imprisonment, whenever

in its opinion the best interests of the convict

justify or require his being paroled and it does not

appear that the interests of the Commonwealth

will be injured thereby.

Pa. Stat. Ann. tit. 61, §331.21 (Purdon Supp. 1997).

Any parolee under the jurisdiction of the

Pennsylvania Board of Parole released from any

penal institution in the Commonwealth who,

during the period of parole, violates the terms and

conditions of his parole, . . . may be recommitted

Such prisoner shall be subject to reparole by the

board whenever in its opinion the best interests of

the prisoner justify or require his being reparoled

3

and it does not appear that the interests of the

Commonwealth will be injured thereby.

Pa. Stat. Ann. tit. 61, §331.21(b) (Purdon 1964).

. . . In granting and revoking paroles, and in

discharging from parole, the members of the

board acting thereon shall not be required to

personally hear or see all the witnesses and

evidence submitted to them for their action, but

they may act on report submitted to them by their

agents and employes [sic], together with any

pertinent and adequate information furnished to

them by fellow members of the board or by

others.

Pa. Stat. Ann. tit. 61, §331.22 (Purdon Supp. 1997).

The board shall have the power, and it shall be its

duty, to make general rules for the conduct and

supervision of persons heretofore or hereafter

placed upon parole. In addition to the power to

make general rules and regulations hereby

granted, the board may, in particular cases, as it

deems necessary to effectuate the purpose of

parole, prescribe special regulations for particular

parolees.

Pa. Stat. Ann. tit. 61, §331.23 (Purdon 1964).

STATEMENT OF THE CASE

The issues presented are whether the Fourth Amendment

requires a search of a parolee’s residence by parole agents to be

based on reasonable suspicion, where the parolee has consented

to searches as a condition of parole, and whether the

exclusionary rule should apply to parole revocation proceedings

to exclude evidence found to have been obtained in violation of

the Fourth Amendment. The case arises from parole revocation

proceedings before a state parole board. Petitioner is the

Pennsylvania Board of Probation and Parole (“Board”);

respondent is Keith Scott, a parolee supervised by the Board.

1. The Board is an agency of the Commonwealth of

Pennsylvania authorized to parole certain classes of convicted

offenders whenever the best interests of the offender justify or

require it and the interests of the Commonwealth are not injured

thereby. Pa. Stat. Ann. tit. 61, §331.21 (Purdon Supp. 1997). A

parolee who violates the terms and conditions of his parole may

be recommitted to prison after a hearing. Jd. at §331.21(b)

(Purdon 1964). On September 1, 1993, Scott was paroled by the

Board from a 10-20 year term of imprisonment for conviction of

third degree murder. J.A. 2a-3a. As a condition of his parole,

Scott signed an agreement expressly consenting to searches of

his person, property or residence by Board agents without a

warrant. J.A. 4a,7a. In particular, his agreement stated:

In consideration of being granted the privilege of

parole/reparole by the Pennsylvania Board of

Probation and Parole, I hereby agree that: ... I

expressly consent to the search of my person,

property and residence, without a warrant by

agents of the Pennsylvania Board of Probation

and Parole. Any items, in [sic] the possession of

5

which constitutes a violation of parole/reparole

shall be subject to seizure, and may be used as

evidence in the parole revocation process.

J.A. 6a-7a. Other conditions of Scott’s parole included his

agreement to reside with his mother and not change his residence

without parole staff permission, to maintain regular contact with

the parole staff, to abstain from the use of alcohol and controlled

substances, to refrain from any assaultive behavior, and to refrain

from “owning or possessing any firearms or other weapons.”

J.A. 4a-8a. ,

On February 4, 1994, the Board issued an order to detain

Scott, together with a notice charging him with several violations

of the terms and conditions of his parole. J.A. 9a-1la. Among

the conditions alleged to have been violated was the prohibition

against the ownership or possession of any firearms or other

weapons. J.A. 10a. This violation was supported by three

counts, one of which charged that on February 4, 1994 several

weapons — including three shotguns, a semi-automatic rifle, and

a bow and arrows -— were found in Scott’s residence by parole

agents.’ J.A. 10a.

A hearing examiner for the Board conducted a hearing on

the allegations of parole violations on March 30, 1994. J.A. 18a.

At the hearing, Scott argued that the parole agents’ search of his

residence violated his right to be free from unreasonable searches

and seizures because of a lack of consent to search. J.A. 79a,82a.

The hearing examiner overruled Scott’s objection to introduction

‘Besides the charges of violation of the firearms condition, Scott

also was charged with violating the prohibition against assaultive

behavior and consumption of alcohol. J.A. 10a-1 la.

6

of evidence concerning the search and its results, and allowed a

parole agent to testify about the search. J.A 84a-85a.

The testimony revealed that on February 4, 1994, parole

agents decided to search Scott's residence for firearms. J.A. 83a.

The agents had received information previously that Scott had

used firearms while on parole, J.A. 42a-43a, and they had

discussed the possibility of the presence of weapons in Scott’s

home. J.A. 83a,92a. The agents located Scott at a diner near his

residence and, after obtaining a key to his residence from Scott,

proceeded to the residence accompanied by a female friend of

Scott’s, entered the residence in the presence of the friend, and

asked the friend to telephone Scott’s mother (who owned the

residence). J.A. 80a-82a. Until Scott’s mother arrived, the

parole agents remained in the kitchen of the house. J.A. 81a.

When she arrived, the agent in charge explained to Scott’s

mother that the agents intended to search Scott’s room. J.A. 81a.

Scott’s mother at first hesitated to tell the agent where Scott’s

room was located but, when informed that the agents intended to

find it, she escorted them upstairs and directed them to Scott’s

bedroom.’ J.A. 81a.

The parole agents discovered four shotguns and a semi-

automatic rifle under a sofa in a room next to Scott’s bedroom.

J.A. 86a-88a. In a closet in the same room, they also discovered

a camouflage-colored bow and three arrows. J.A. 87a.

>The agent advised the hearing examiner that he believed he had the

authority to search Scott’s bedroom and common living areas in the

residence, with or without the mother's approval, based on the

parolee’s being supervised by the Board and living in a residence that

had been “approved” by the Board at the time of his release on parole.

J.A. 82a-83a. Scott’s mother’s residence was Scott’s Board-approved

residence. J.A. 4a,80a.

Although Scott’s mother did not testify at the hearing before the

hearing examiner, the parole agent informed the examiner that,

when the weapons were discovered, Scott’s mother advised the

agent that they belonged to her husband, J.A. 88a-89a, and her

husband so testified. J.A. 98a-99a.

2. The Board relied in part on the evidence obtained

from Scott’s residence when it revoked Scott’s parole. J.A.

137a-140a. It relied on evidence other than the results of the

search with respect to certain violations,’ but with respect to the

violation concerning the shotguns, rifle and bow and arrows, the

Board relied upon the testimony of the parole agent who

conducted the search. J.A. 137a. The Board returned Scott to

prison to serve thirty-six additional months of imprisonment for

the parole violations. J.A. 137a. Scott’s request for further

administrative review of the Board’s recommitment decision was

denied, J.A. 142a, and he then appealed to the Commonwealth

Court of Pennsylvania.’ J.A. 143a.

*For example, the Board relied upon Scott’s admission that he had

been target practicing with a firearm, upon testimony from a co-

worker that Scott had threatened another co-worker, and upon an

affidavit of another person that Scott had consumed alcohol and had

used a weapon to target practice. J.A. 137a.

“Although not of record, we inform the Court that Scott was refused

reparole in April 1997 and his status is scheduled to be reviewed by

the Board in March 1998.

*The Commonwealth Court is the intermediate appellate court in

Pennsylvania vested with jurisdiction to hear appeals from state

administrative agencies, including the Board of Probation and Parole.

See 42 Pa. Cons. Stat. §763.

3. On appeal, Scott raised a number of issues including

the argument that the weapons violation was the product of an

illegal search. J.A. 147a. While his petition for review did not

mention the Fourth Amendment specifically, it raised as issues

the absence of a warrant and consent, J.A. 147a, and the Fourth

Amendment issues were briefed by the parties. A panel of the

Commonwealth Court concluded that, although parole

prosecutions, a parole agent may not conduct a warrantless

search of a parolee’s residence in the absence of consent of the

owner or what it termed a “statutory or regulatory framework

that satisfies the reasonableness requirement of the Fourth

Amendment.” Pet. App. 29a. Declaring that Scott’s previously-

executed written consent to a search of his residence and to

seizure of items found by parole agents did not comport with the

Fourth Amendment, the Commonwealth Court panel decided

that Scott’s Fourth Amendment rights had been violated. Pet.

App. 30a-3la. The court went on to hold that the exclusionary

rule should apply to parole revocation hearings, Pet. App. 37a,

and that it was “necessary” to apply it to the weapons seized

from Scott’s residence. Pet. App. 37a. As a result, the court

decided that the hearing examiner should have excluded

evidence concerning ‘Le weapons, and it reversed the parole

revocation decision and remanded the matter for a new

revocation hearing. Pet. App. 37a.

4. The Board then petitioned the Supreme Court of

Pennsylvania for allowance of appeal to address the Fourth

Amendment issue, and the state supreme court granted the

petition.® J.A. la. Between the time of the state supreme court’s

granting of the petition and its decision in the case, the

Commonwealth Court issued a decision en banc which overruled

its panel decision in this case. See Kyte v. Pennsylvania Board

of Probation and Parole, 680 A.2d 14, 18 n. 8 (Pa. Cmwith. Ct.

1996) (en banc). The Board brought this intervening decision to

the attention of the state supreme court and requested the court

to remand the case to the Commonwealth Court. The state

supreme court denied the request and proceeded to decide the

The state supreme court affirmed the panel decision of

the Commonwealth Court. Pet. App. la. Relying upon

App. 7a-10a, the court held that Scott “has a Fourth Amendment

right against unreasonable searches and seizures that is

unaffected by his signing of the consent to search provision”

when he was paroled. Pet. App. 10a. The court went on to hold

that Scott’s Fourth Amendment right was violated because, in its

view, the search of his residence “was conducted without

reasonable suspicion.” /d. Furthermore, the state supreme court

concluded that the exclusionary rule should be “extended” to

parole revocation proceedings because of its “deterrent effect.”

Pet. App. 10a, 16a.

While recognizing that a majority of the United States

Courts of Appeals has concluded that the exclusionary rule is

inapplicable to parole revocation proceedings, id. at 12a-13a, and

that this Court had yet to address the issue, id. at 13a n. 8, the

“Under Pennsylvania law, the state supreme court’s decision

whether to accept an appeal from an intermediate appellate court, in

a matter originally commenced in an administrative agency, is a

discretionary decision. See 42 Pa. Cons. Stat. §724.

10

state supreme court nonetheless concluded that “there is a need

to apply the exclusionary rule to the [parole] revocation process

since otherwise there is nothing to deter a parole agent from

conducting an illegal search or engaging in other illegal activity

to obtain evidence.” Pet. App. 15a. Thus, notwithstanding

Scott’s written consent to searches by parole agents as a

condition of his parole, and notwithstanding the settled

differences between a criminal prosecution and an administrative

parole revocation, the state supreme court concluded:

In the Fourth Amendment context, when an

officer is aware or has reason to be aware of a

suspect’s [sic] parole or probationary status, he

must have reasonable suspicion of a parole

violation in order to conduct a search. If a

exclusionary rule will apply in the parole

revocation hearing. This holding modifies our

per se bar against the application of the

exclusionary rule in parole revocation hearings

. . . and applies the exclusionary rule in

revocation hearings when the officer who

engaged in the misconduct is aware of the

parolee’s status.

Pet. App. 16a-17a (footnotes omitted). The court then held that

the exclusionary rule applied to Scott's parole revocation hearing

and that the evidence obtained from the search of his residence

should be suppressed.’ Pet. App. 17a.

’The court specifically stated that its decision was “premised solely

upon federal constitutional grounds,” and it left “for another day” the

question of the applicability of Pennsylvania’s constitutional

counterpart to the Fourth Amendment. Pet. App. 17a n.13.

11

The Court granted the Board’s petition for wnt of

certiorari on November 26, 1997.

12

SUMMARY OF ARGUMENT

1. The suy* -vision of parolees by parole authorities falls

into that small class of cases, recognized by the Court, in which

nevertheless “reasonable” within the meaning of the Fourth

Amendment. The Court has upheld such searches — of closely

regulated businesses, for example — where a diminished

expectation of privacy, plus an important governmental need met

by the search, combine to justify them.

Certainly, parolees have a diminished expectation of

conditionally released on parole, to a variety of restrictions, some

of which would not be constitutional if applied to the general

public, and violation of which is grounds for immediate

recommitment. Parolees may, for example, be forbidden to

change their residence without permission, to consume alcoholic

beverages or illegal drugs, to possess weapons, or to commit

further crimes; they may be required to undergo treatment for

drug or alcohol dependence, or to avoid certain persons or

locations. Parolees are thus, like probationers, in a supervisory

relationship with the government quite unlike that of free

citizens.

Nor can the importance of the governmental interest be

overstated. As the Court has recognized, such restrictions on

parolees serve the dual purpose of protecting the public safety

from further harmful behavior, and of furthering the

rehabilitation and reintegration of the offender into society. The

Court has likewise recognized the overwhelming interest of the

government in promptly recommitting parolees who do not

comply with the conditions of their parole.

13

To ensure compliance with these restrictions, government

thus requires broad discretion to define the conditions under

which the persons and property of parolees may be searched. The

government may therefore require that convicted criminals, as a

condition of parole, submit to searches without any need for an

individualized suspicion of wrongdoing, as long as those

searches are related to some legitimate penological objective,

such as ensuring that parolees are complying with the conditions

of their release.

2. Even if respondent’s consent did not authorize the

search of his residence and the search did not meet a

reasonableness standard, evidence obtained from the search

should not be excluded from consideration by parole authorities.

The exclusionary rule, adopted to safeguard Fourth Amendment

rights in the criminal prosecution context, exacts substantial

social costs by impeding the search for truth. The Court has

declined to extend application of the rule beyond criminal trials

and direct review, and should do likewise in this case. The

States have a great interest in receipt of all information bearing

upon the question whether the parolee is successfully

reintegrating into society; this interest should not be frustrated by

the exclusion of relevant information especially in a case where

the rationale of deterrence of police behavior is inapplicable.

The Pennsylvania Supreme Court gave undue weight to

the importance of the parolee’s limited interest and blurred the

significant distinctions between a criminal prosecution and a

parole revocation. The court thus inappropriately extended

application of the exclusionary rule to suppress evidence

concerning respondent’s compliance with parole conditions. The

judgment of the court, therefore, should be reversed.

14

ARGUMENT

I. ABSENT EVIDENCE THAT THE SEARCH

OF SCOTT’S RESIDENCE WAS FOR AN

ILLEGITIMATE PURPOSE, HIS CONSENT

ENTITLED THE PAROLE AGENTS TO

SEARCH HIS HOME WITHOUT A

PARTICULAR LEVEL OF SUSPICION.

While the Supreme Court of Pennsylvania acknowledged

that respondent Scott had consented to searches by parole agents

as a condition of his parole, and purported to examine the

consent provision in the context of a balance of the relative

interests involved, the court failed to recognize the importance

of parole conditions to society’s interest in managing criminal

offenders. Instead of focusing on the special need of the

government to place legitimate parole conditions — like a

consent to search provision — on parolees, the state supreme

court summarily dismissed the provision and equated the

parolee’s interest with that of a free citizen. The court thus erred

in its analysis of both the importance of legitimate parole

conditions in general and the value of a consent to search

condition in particular.

1. The Fourth Amendment to the Constitution provides

that the “right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated... .” U.S. Const. Amend. IV. The

prohibition against unreasonable searches and seizures is

applicable to state officers. Elkins v. United States, 364 U.S.

206, 213 (1960). Although the Court usually has required that,

in order to satisfy the Fourth Amendment, a search of an

individual’s home should be undertaken only pursuant to a

warrant (and thus supported by probable cause), the Court also

15

has recognized that special needs of the government — beyond

the normal need for law enforcement — permit exceptions to the

usual requirements of the Fourth Amendment. Indeed, as the

Court reiterated just last Term, the “touchstone” of the Fourth

Amendment is reasonableness, and reasonableness in turn is

“measured in objective terms by examining the totality of the

circumstances.” Ohio v. Robinette,519U.S.___, 117 S.C.

417, 421 (1996).

a. To be reasonable under the Fourth Amendment, a

search ordinarily must be based on individualized suspicion of

wrongdoing. Chandler v. Miller, _U.S.__, 117 S.Ct. 1295,

1301 (1997). The Court has recognized, however, that in some

cases suspicionless searches are permissible. /d., citing Vernonia

School District v. Acton, 515 U.S. ___, 115 S.Ct. 2386, 2399

(1995) (random drug tests of student-athletes); Skinner v.

Railway Labor Executives Association, 489 U.S. 609, 619 (1989)

(drug and alcohol tests for railway employees involved in train

accidents); National Treasury Employees Union v. Von Raab,

489 U.S. 656, 665-66 (1989) (drug tests as condition of

promotion in Customs Service); Michigan Dept. of State Police

v. Sitz, 496 U.S. 444, 447 (1990) (sobriety checkpoints along

highways). The exceptions are based on “special needs, beyond

the normal need for law enforcement.” Skinner, 489 U.S. at 619.

In addition, the Court has held that in certain situations probable

cause is not necessary to effect a search. The Court has held, for

example, that government employers and supervisors may

conduct warrantless searches of employees’ desks and offices

without probable cause. O'Connor v. Ortega, 480 U.S. 709,

721-25 (1987). Similarly, the Court has held that government

investigators conducting searches of closely-regulated businesses

need not adhere to the warrant or probable cause requirements as

long as the searches meet reasonable legislative or administrative

standards. New York v. Burger, 482 U.S. 691, 702 (1987)

16

(automobile dismantling business). Accord Donovan v. Dewey,

452 U.S. 594, 600 (1981) (coal mining); United States v. Biswell,

406 U.S. 311, 316 (1972) (firearms sales); Colonnade Catering

Corp. v. United States, 397 U.S. 72, 77 (1970) (catering business

engaged in liquor sales). In addition, the Court has held that the

search of a high school student’s purse by school officials does

not require a warrant or probable cause, New Jersey v. T.L.O.,

469 U.S. 325, 340-41 (1985), as well as that, because of the

extraordinary needs of those charged with administering prisons,

the Fourth Amendment is inapplicable to the search of a prison

inmate's cell. Hudson v. Palmer, 468 U.S. 517, 526 (1984). The

Court also has held that law enforcement officials may stop

individuals for questioning or observation at fixed border

checkpoints without a particular level of suspicion. United

States v. Martinez-Fuerte, 428 U.S. 543, 545-50 (1976). Finally,

and closely analogous to this case, the Court has held that the

search of a probationer's home by state probation officers,

pursuant to a regulation requiring “reasonable grounds,” does not

require a warrant supported by probable cause. Griffin v.

Wisconsin, 483 U.S. 868, 876-77 (1987).

Thus, the Court clearly has recognized situations where

the usual requirements of the Fourth Amendment simply do not

apply or the particular circumstances and needs permit

“exceptions” to the general rule. Griffin, 483 U.S. at 873. When

such special needs exist, the Court has undertaken a “context-

specific” inquiry, examining the competing interests at stake.

National Treasury Employees Union v. Von Raab, 489 U.S. at

665-66; Skinner, 489 U.S. at 624.

b. In Griffin v. Wisconsin, the Court premised its

conclusion that a state’s operation of a probation system presents

special needs, justifying departures from the usual requirements,

on the fact that probation — like incarceration — is a “form of

17

criminal sanction imposed by a court upon an offender after

verdict, finding, or plea of guilty;” it represents one of several

options on a “continuum of possible punishments ranging from

solitary confinement in a maximum security facility to a few

hours of mandatory community service.” 483 U.S. at 874

(citations omitted).

The operation of a system of supervised release on parole

— just as a probation system — presents special needs justifying

departure from the usual Fourth Amendment requirements. As

the Court has recognized, the “essence” of parole is release from

prison, before completion of the sentence, on the condition that

the prisoner abide by certain rules during the balance of the

sentence. Morrissey v. Brewer, 408 U.S. 471, 477 (1972).

Parole has become an “integral part” of the nation’s overall

system of managing offenders. /bid. The Court has described

parole as follows:

Rather than being an ad hoc exercise of

clemency, parole is an established variation on

imprisonment of convicted criminals. Its purpose

is to help individuals reintegrate into society as

constructive individuals as soon as they are able,

without being confined for the full term of the

sentence imposed. It also serves to alleviate the

costs to society of keeping an individual in

prison.

Ibid. In recognition of the conditional liberty restored to an

offender by parole, the Court has held that revocation of parole

deprives him not of an “absolute” interest but of an interest

“properly dependent on observance of special parole

restrictions,” id. at 480, and that revocation needs to be

accompanied by only informal procedural protections. Jd. at

18

487-88.

Furthermore, as the Court recognized in Morrissey, to

accomplish the purpose of parole, those who are granted

permission to leave prison early properly may be subjected to

very specific conditions. These conditions “restrict their

by law on an individual citizen,” id. at 478, and can include such

restrictions as the need to seek permission to change residences,

a prohibition against consumption of alcohol, and the direction

to refrain from association with certain individuals or engaging

in certain activities. Jbid.

Supervision of parolees, therefore, plainly is a “special

need” of the States “permitting a degree of impingement upon

privacy that would not be constitutional if applied to the public

at large.” Griffin v. Wisconsin, 483 U.S. at 875. While

restrictions upon a free citizen’s right to travel or to associate

with others of his choosing certainly could present significant

constitutional concerns, the Court has recognized that the

diminished expectation of privacy of probationers and parolees,

together with society’s need to supervise them closely, permits

these restrictions. The Court has stated:

To a greater or lesser degree, it is always true of

probationers (as we have said it to be true of

parolees) that they do not enjoy “the absolute

liberty to which every citizen is entitled, but only

conditional liberty properly dependent on

observance of special . . . restrictions.”

Griffin, 483 U.S. at 874, quoting Morrissey, 408 U.S. at 480.

As such, parolees are subject to conditions governing

19

their activities that could not be imposed upon the general public

but which, because of the special importance of monitoring their

behavior, are appropriate and thus constitutional. Griffin, 483

U.S. at 874-75.

2. Among the several conditions of parole to which Scott

agreed in this case was an express consent to searches of his

person, property and residence by agents of the Board without a

warrant. J.A. 6a-7a. Scott further consented to the seizure and

use as evidence of any items the possession of which constituted

a violation of his parole. Jd. The particular parole condition

found by the Board to have been violated by Scott when the

weapons were discovered by the agents was the condition

directing him to refrain from “owning or possessing any firearms

or other weapous....” J.A. 5a, 137a.

In exchange for his early release from prison, therefore,

Scott agreed to certain conditions a violation of which would

permit the Board to revoke his parole and recommit him to

prison. See Pa. Stat. Ann. tit. 61, §331.21(b) (Purdon 1964).

There is, of course, no requirement that a parolee accept the

parole conditions; he is free to reject the conditions and serve out

his sentence in prison. Scott in this case not only agreed to

certain parole conditions governing his behavior and activities

while on parole, J.A.4a-8a, but he also expressly consented to

warrantless searches by parole agents. Jd. at 7a.

These types of conditions are no different than conditions

requiring substance abuse treatment, mental health treatment or

other rehabilitative programming, all of which demonstrate

diminished privacy expectations by a parolee over his conduct

and his person. Morrissey v. Brewer, 408 U.S. at 478-79. As the

Court noted in Morrissey, “. .. conditions of parole serve a dual

purpose; they prohibit, either absolutely or conditionally,

20

behavior that is deemed dangerous to the restoration of the

individual into normal society. And through the requirement of

reporting to the parole officer and seeking guidance and

permission before doing many things, the officer is provided

with information about the parolee and an opportunity to advise

him.” Jd. at 478. As further explained by a leading

commentator:

The probation or parole officer has the primary

responsibility for supervision of a parolee’s or

probationer's rehabilitative process. This

caseworker, charged with 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, The Law of Probation and Parole, §8.02

(1983) (footnotes omitted).

It is thus apparent that the parole agent performs an

extremely important function in a State's overall penological

system: he or she not only must monitor the parolee’s activities

so as to assist the parolee’s reintegration into society, but also

must protect the public by taking action, where appropriate, to

remove the parolee from society if the parole conditions are not

met. There can be little doubt that, just like conditions requiring

treatment or restricting his association with other offenders, an

express agreement by a parolee to permit searches by parole

agents is a significant tool to aid the agent in fulfilling the

agent’s responsibility to the parolee and to society. The

parolee’s consent allows the agent to make unannounced

inspections of the parolee’s residence to assure compliance with

21

parole conditions.

The Court’s decisions addressing suspicionless searches

in the drug-testing area and in closely-regulated businesses

provide an apt analogy to the parole situation. In New York v.

Burger, 482 U.S. 691 (1987), for example, the Court recognized

that, as in other situations of special need, where the individual's

privacy interest is weakened and the government's interest in

regulation of behavior is heightened, a warrantless surprise

inspection is reasonable if it meets certain criteria: a substantial

governmental interest; a need for warrantless inspections to

further the regulatory purpose; and the absence of unlimited

discretion on the part of the inspection officers. 482 U.S. at 702-

03. Accord Vernonia School District v. Acton, 515 U.S. at __,

115 S.Ct. at 2395; Skinner, 489 U.S. at 627. The Court thus has

recognized the value of unannounced suspicionless searches in

the context of State regulation of commercial enterprises and

other related situations where “an important governmental

interest furthered by the intrusion would be placed in jeopardy by

a requirement of individualized suspicion ....” Skinner, 489 U.S.

at 624. In holding that warrantless inspections of junkyards by

police officers did not violate the Fourth Amendment, the Court

in Burger noted, “if inspection is to be effective and serve as a

credible deterrent, unannounced, even frequent, inspections are

essential.” Jd., quoting United States v. Biswell, 406 U.S. at

316. Indeed, as the Court stated in Burger, surprise is “crucial”

if the governmental regulatory scheme is to function. Jbid.

If unannounced suspicionless searches are “essential” and

“crucial” in the context of commercial regulation, they surely are

equally as important — if not more so — in the context of

managing a State parole system charged with protecting the

public. As the agent who conducted the search in this case

testified, the value of the search depends upon the agents’ ability

22

to locate any contraband before the parolee or a person with

whom he is living has an opportunity to remove it. J.A. 8la-82a.

A consent to search provision — like the unannounced

inspection in the commercial regulatory situation and

suspicionless drug testing in the railway transportation situation

— thus enables the agent to conduct a search that serves as a

“credible deterrent.” Burger, 482 U.S. at 710; accord Skinner,

489 U.S. at 628.

3. The state supreme court’s decision in this case

summarily dismissed the importance of the consent condition

and the value of unannounced searches. Pet. App. 9a-10a.

Indeed, it converted an express consent into what it termed a

simple “acknowledgment that the parole officer has a right to

conduct reasonable searches. . . without a warrant.” Jd. Such a

characterization not only distorts the plain meaning of the

consent provision but, more importantly, fails to afford the

deference due those who administer a vital part of the State’s

penological system. As the Court often has stated in the related

context of corrections administration, it should not be for the

courts to second-guess the need for a penal regulation or policy

as long as it is “reasonably related to legitimate penological

interests.” O'Lone v. Estate of Shabazz, 482 U.S. 342, 349

(1987); Turner v. Safley, 482 U.S. 78, 89 (1987). The consent to

search provision, agreed to by Scott as a condition of parole,

certainly meets this standard.

This is not to suggest, however, that such a consent

provision should authorize all searches no matter when or how

conducted. Just as prison inmates should be governed by

policies and rules that are “reasonably related to legitimate

penological objectives,”* so too should parolees be entitled to

expect that searches of their residence and person are reasonably

related to the legitimate penological objectives of parole

supervision. Accord Griffin v. Wisconsin, 483 U.S. at 876-77

(reasonable state regulation governing searches of probationers’

homes satisfies Fourth Amendment).

The record in this case supports the notion that the search

of Scott’s residence was reasonably related to legitimate parole

Scott had been using weapons while on parole, and they went to

his home with the purpose of attempting to locate firearms; they

knew they were looking specifically for such weapons. J.A.

42a,43a,83a. Ownership or possession of firearms by Scott was

specifically prohibited by a condition of his parole. J.A.5a.

Preventing a parolee from having access to such weapons —

particularly a parolee who has been convicted of murder, J.A. 2a

— clearly is a legitimate penological objective. An unannounced

search for firearms which may be in the possession or control of

a parolee already convicted of murder plainly is reasonably

related to a legitimate parole objective.’

*O'Lone v. Estate of Shabazz, 482 U.S. at 349; Turner v. Safley, 482

U.S. at 89.

*While the record demonstrates that the weapons found in Scott’s

home actually were owned by his mother’s husband, J.A. 99a , this

does not detract from the legitimate objective of the search.

Regardless whether Scott customarily entered the room where the

weapons were found, J.A. 103a, or whether they were “owned” by

him, J.A. 99a, the fact remains they were available to him. J.A. 104a-

10S5a. Moreover, even if the evidence supported the proposition that

Scott never used the weapons or that he did not enter the room where

they were located, it nonetheless was objectively reasonable for the

24

The value of parole agents’ searches of parolees’

residences is eliminated if parolees know that the agents must

have a particular suspicion of a violation or must obtain a

warrant before searching. The Court in Griffin acknowledged

the value of such a search, even on the basis of an

“unauthenticated tip,” 483 U.S. at 878, and held that the search

of a probationer’s residence based on such a tip was reasonable.

Id. at 879.

In such circumstances it is both unrealistic and

destructive of the whole object of the continuing

probation relationship to insist upon the same

degree of demonstrable reliability of particular

items of supporting data, and upon the same

degree of certainty of violation, as is required in

other contexts. In some cases — especially those

involving drugs or illegal weapons — the

probation agency must be able to act based upon

a lesser degree of certainty than the Fourth

Amendment would otherwise require in order to

intervene before a probationer does damage to

himself or society. The agency, moreover, must

be able to proceed on the basis of its entire

experience with the probationer, and to assess

probabilities in the light of its knowledge of his

life, character, and circumstances.

Id. at 879 (emphasis added).

agents to search for weapons in common areas accessible to a

convicted murderer. Ohio v. Robinette,519U.S.at__, 117 S.Ct. at

421 (reasonableness is measured in objective terms by examining

totality of circumstances).

25

Absent evidence that the search of Scott’s residence was

for a purpose unrelated to legitimate parole supervision, his

consent to searches — as one of several permissible restrictions

upon his behavior — was reasonable and entitled the state parole

agents to search his home without a particular level of suspicion.

Il. RELIABLE EVIDENCE SHOULD NOT BE

EXCLUDED FROM CONSIDERATION BY

PAROLE AUTHORITIES, EVEN IF THE

EVIDENCE WAS OBTAINED _IN

VIOLATION OF THE # £=FOURTH

AMENDMENT.

The Pennsylvania Supreme Court has held that the Fourth

Amendment requires application of the exclusionary rule to

parole revocation proceedings. There is no need for the Court to

address the exclusionary rule issue if, as we have argued in the

preceding section, Scott’s consent provided a proper basis for the

parole agents’ search of his residence. Even if Scott’s consent

did not authorize the search and the search did not meet a

reasonableness standard, however, the Court should conclude

that reliable evidence concerning a parole violation should not be

excluded from consideration by parole authorities. The state

supreme court’s holding that application of the exclusionary rule

is necessary in these circumstances should be reversed.

1. The Fourth Amendment, of course, “contains no

provision expressly precluding the use of evidence obtained in

violation of its commands. . . . “ United States v. Leon, 468 U.S.

897, 906 (1984). The exclusionary rule, first applied to the

federal government in Weeks v. United States, 232 U.S. 383

(1914), and much later to the States in Mapp v. Ohio, 367 U.S.

643 (1961), is “a judicially created remedy designed to

safeguard Fourth Amendment rights generally through its

26

deterrent effect, rather than a personal constitutional right of the

party aggrieved.” Id., citing United States v. Calandra, 414 U.S.

338, 348 (1974). The Court has stated that whether the

exclusionary rule is appropriate in a particular case is a question

“separate from the question whether the Fourth Amendment

rights of the party seeking to invoke the rule were violated by

police conduct,”"® Leon, 468 U.S. at 906, and is to be resolved by

“weighing the costs and benefits of preventing the use . . . of

inherently trustworthy tangible evidence. . . . ” Jd. at 907.

The cost/benefit analysis has long been a source of

concern to the Court. Leon, 468 U.S. at 907-08. In Leon, for

example, the Court held that evidence obtained by police in

reasonable reliance upon a defective search warrant should not

be excluded from the criminal defendant's trial. 468 U.S. at 922.

In so doing, the Court noted its longstanding concern over the

“substantial social costs exacted by the exclusionary rule,” id. at

907, and that an “unbending application of the exclusionary

sanction to enforce ideals of governmental rectitude would

impede unacceptably the truth-finding functions of judge and

jury.” Ibid., quoting United States v. Payner, 447 U.S. 727, 734

(1980).

While proposed extensions of the exclusionary rule to

proceedings other than the criminal trial itself have been

evaluated under the same cost/benefit approach, Leon, 468 U.S.

at 909, the Court has restricted application of the rule to criminal

trials and direct appeals, and has not extended it to exclude

We note Scott’s argument below, J.A. 79a, 82a, apparently

abandoned in this Court, Brief in Opposition to Petition, that the

exclusionary rule should be applied to protect his mother’s interest.

Scott lacks standing to offer such an argument. United States v.

Payner, 447 U.S. 727, 735 (1980).

27

evidence from a civil proceeding, federal or state. Jmmigration

and Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032,

1041-42 (1984). See also Calandra, 414 U.S. at 348 (declining

to allow grand jury witness to refuse to answer questions based

on unlawful search or seizure); United States v. Janis, 428 U.S.

433, 454 (1976) (permitting use in federal civil proceedings of

evidence illegally seized by state officials). Indeed, even in a

situation involving a criminal prosecution, the Court has rejected

application of the rule to exclude evidence against a defendant

where the evidence was obtained from a third person. United

States v. Payner, 447 U.S. 727, 735 (1980).

Accordingly, “[a]s with any remedial advice,” the

application of the exclusionary rule “has been restricted to those

areas where its remedial objectives are thought most

efficaciously served.” Leon, 468 U.S. at 908, quoting Calandra,

414 U.S. at 348. The Court has acknowledged that “the

suppression of probative but tainted evidence exacts a costly

toll” upon the truth-finding process in criminal cases, Payner,

447 U.S. at 734, and thus has refused to adopt an “unbending

application of the exclusionary sanction to enforce ideals of

governmental rectitude. . . .” Jbid.

2. The analysis of whether the rule should apply in a

given situation thus focuses on the purpose underlying the rule,

the deterrent effect of its application, and the societal costs of

preventing use of the challenged evidence. Leon, 468 U.S. at

907-11. A proper application of the balancing approach required

by the Court’s decisions results in the conclusion that the

exclusionary rule should not apply to parole revocation

proceedings. As the Court noted in Lopez-Mendoza, the

framework for determining in what types of proceedings

application of the rule is appropriate is a balance of deterrence of

unlawful police conduct against the “loss of often probative

28

evidence and all of the secondary costs that flow from the less

accurate or more cumbersome adjudication that therefore

occurs.” 468 U.S. at 1041. While application of the rule may

have some deterrent effect upon parole officers, it undoubtedly

would interfere significantly with the State’s ability to see that

parole conditions are being met. Because evidence of a violation

of parole conditions would be excluded by application of the

rule, “the state’s ability to protect society from additional

antisocial acts committed by [parolees], and ultimately its ability

to achieve the remedial purposes of the [parole] system, would

be impaired.” United States v. Bazzano, 712 F.2d 826, 834 (3d

Cir. 1983) (in banc), cert. denied sub nom. Mollica v. United

States, 465 U.S. 1078 (1984).

The Court has stated that empirical determinations of the

deterrent effect of the exclusionary rule are of little help on the

questions presented. Janis, 428 U.S. at 449-53. Thus, the Court

instead has relied “on its own assumptions of human nature and

the interrelationship of the various components of the law

enforcement system.” Jd. at 459. In contrast to the police, parole

agents under the circumstances of this case are not seeking to

convict the parolee of new criminal offenses; therefore,

application of the exclusionary rule in this situation would have

no deterrent effect whatsoever on police behavior or a criminal

prosecution. A parole revocation proceeding in Pennsylvania —

as we suspect is the case in most jurisdictions — is not part of a

criminal prosecution; and on the record of this case no police

officers were involved and no criminal charges were brought

against Scott. J.A. 110a, 137a. The Court's repeated concern

about extending the exclusionary rule to situations other than

criminal trials thus would be eroded by applying it here. In the

absence of “convincing indication[s]” that such an extension is

warranted, Lopez-Mendoza, 468 U.S. at 1046, the Court should

adhere to its well-established framework and apply the

29

exclusionary rule sparingly. Janis, 428 U.S. at 454.

Balanced against the marginal deterrence that would be

created by application of the rule is the “potential injury” to the

purposes of parole revocation proceedings. Calandra, 414 U.S.

at 349. In this regard, the Court has recognized that the State has

a great interest in receiving all information available on the

question whether the parolee has observed the conditions of his

parole. As the Court stated in Morrissey v. Brewer,

The State has found the parolee guilty of a crime

against the people. That finding justifies

imposing extensive restrictions on _ the

individual's liberty. Release of the parolee before

the end of his prison sentence is made with the

recognition that with many prisoners there is a

risk that they will not be able to live in society

without committing additional antisocial acts.

Given the previous conviction and the proper

imposition of conditions, the State has an

overwhelming interest in being able to return the

individual to imprisonment without the burden of

a new adversary criminal trial if in fact he has

failed to abide by the conditions of his parole.

408 U.S. at 483.

The costs to the States from application of the

exclusionary rule to revocation proceedings are not limited to the

specific result of exclusion of evidence in particular revocation

hearings. As the Court has recognized, the government has an

overwhelming interest in being able to return a parolee to

imprisonment without the procedural burdens associated with a

new trial if the parolee has failed to abide by the conditions of

30

parole. Morrissey, 408 U.S. at 480. Indeed, the Court repeatedly

has stated that the decision to revoke probation or parole is an

administrative one and is to be a flexible and informal process

that “does not require the full panoply of procedural safeguards

associated with a criminal trial.” Black v. Romano, 471 U.S.

606, 613 (1985). See also Gagnon v. Scarpelli, 411 US.

778,787-90 (1973); Morrissey, 408 U.S. at 489-90. As the

transcript of the revocation hearing in this case demonstrates,

e.g., J.A. 28a-29a, 60a, 67a, 110a, parolees and their counsel

often attempt to equate the hearings with trials. To apply the

exclusionary rule to what should be a purely administrative

decision converts an informal, information-gathering proceeding

into an adversarial trial and changes the role of the parole

authorities to one “more akin to that of a judge at trial, and less

attuned to the rehabilitative needs of the individual probationer

or parolee.” Gagnon, 411 U.S. at 787-88.

At bottom, the States’ ability to protect the public from

additional offenses committed by parolees, as well as to assure

that parolees are reintegrating appropriately into society, should

not be frustrated by the exclusion of relevant evidence. As a

majority of the federal Courts of Appeals has recognized, Pet. at

9 n. 5, the exclusionary rule should not apply to parole

revocation proceedings.

3. While acknowledging that this Court’s decisions

require a balancing approach, the Pennsylvania Supreme Court

gave undue weight to the deterrent effect on the police in

applying the exclusionary rule. Pet. App. 13a. Apparently

seeing no distinction between the purposes of a criminal

prosecution and the purposes of a parole revocation, id., the state

supreme court was persuaded by the reasoning of decisions

where police officers conduct searches and the results are sought

to be used both in probation revocation proceedings and in new

31

criminal trials. Pet. App. 13a.

In what only may be described as a myopic view of the

situation, the state supreme court concluded that the balance tips

in favor of the parolee — and thus in favor of applying the

exclusionary rule — when the officer “knows or has reason to

know that the suspect [sic] is a parolee or probationer.” Pet.

App. 15a. Such a crabbed view of the situation makes no sense,

especially in a case such as this one. The state parole agents

who went to Scott’s home to conduct the search obviously knew

he was a parolee; the very purpose for their detaining Scott and

going to his home was to search for weapons, the pocsession of

which was a violation of his parole conditions. J.A. 5a,83a. The

application of the rule hardly should turn on whether parole

agents “know” the person is a parolee. Indeed, in situations like

the present case the agents always know the person is a parolee;

otherwise, the agents would not be interested in his activities or

what he may have in his residence.'' The agents thus would be

required always to have particularized suspicion or the results of

''While not expressly so stating, the state supreme court apparently

believed that police officers were involved — or that the parole agents

were serving as “stalking horses" for the police — and that a criminal

prosecution was brought against Scott along with a parole revocation

proceeding. While some courts have expressed concern when the

searching agents are police officers, rather than exclusively agents of

an administrative board, see United States v. Harper, 928 F.2d 894,

897 (9th Cir. 1991), the Court has rejected the argument in the

regulatory inspection context. New York v. Burger, 482 U.S. at 717

(so long as regulatory scheme is properly administrative, it is not

rendered illegal by the fact that inspecting officer has power to arrest

individuals for violations other than those created by scheme itself).

In any event, no police officers were involved in this case and no

criminal prosecution was brought against Scott.

32

the search would be excluded. As we have discussed above, this

view fails to accord the proper weight to the States’ interests in

revocation proceedings and disregards the distinction between a

criminal prosecution and a parole revocation.

The state supreme court’s view thus is more medicine

than is necessary. Janis, 428 U.S. at 454 n. 29. The existence of

the exclusionary rule in criminal prosecutions protects parolees

against new prosecutions based on unconstitutional searches;

there is no need to blur the recognized distinctions between

prosecutions and parole revocations especially where, as in this

case, there was no attempt to prosecute the parolee criminally.

The decision of the Supreme Court of Pennsylvania that

the exclusionary rule is applicable to parole revocation

proceedings should be reversed.

33

CONCLUSION

For these reasons, the Court should reverse the judgment

of the Supreme Court of Pennsylvania.

Respectfully submitted,

Attorney General

Counsel of Record

Office of Attorney General

15th Fl., Strawberry Square

Harrisburg, PA 17120

(717) 783-1471