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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1998
- **Citation:** 524 U.S. 357

## Text

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,

| SD. Abu ok Gabe Wetec cs ncctebesecedeThe 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0127%3A05. Public record. Not legal advice.