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

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—\ Supreme Court, U.S. “|

) FILED

eg FEB 4 (1998

No. 97-581 eli

In The

Supreme Court of the United States

October Term, 1997

PENNSYLVANIA BOARD OF

PROBATION AND PAROLE,

Petitioner,

KEITH M. SCOTT,

Respondent.

On Writ Of Certiorari To The

Supreme Court Of Pennsylvania

BRIEF FOR RESPONDENT

LEONARD N. SosNov

Counsel of Record

Davip Rupovsky

210 E. Willow Grove Avenue

Philadelphia, PA 19118

(215) 242-5940

QUESTIONS PRESENTED

1. Must a search of a parolee’s residence be based

on teasonable suspicion to be valid under the Fourth

Amendment where the parolee has consented to the

searches as a condition of his parole?

2. Does the exclusionary rule apply to parole

revocation proceedings?

TABLE OF CONTENTS

Page

Siptemmarit OF Ge CBSE. 2... cs cccvescsccccscccesees 1

Summary of argument.............6. 06 eee eee eens 5

Argument:

Il.

Because the record does not present the issue and

because the decision of the court below rests on an

adequate and independent state law ground — that

the parole consent form does not permit searches

without reasonable suspicion — certiorari should be

dismissed on this question .......... 66666600065

When release from prison on parole is depen-

dent on agreeing to an otherwise unconstitu-

tional search condition, acceptance does not

constitute voluntary consent ..............605

A. The Schneckloth voluntariness test: where

saying no to the unconstitutional parole

search condition would result in ten more

years in prison, acceptance does not consti-

tute voluntary consent.............6.6005

B. There is no bargaining process — it is take it

(the unconditional search condition) or

leave it (and remain in prison)............

C. This Court’s role in determining Fourth

Amendment reasonableness will be trans-

ferred to the executive branch if the govern-

ment can require unconstitutional search

conditions to be accepted in return for bene-

OB ki cadu knack ds ewnadesintyubenbeceansss

D. Reasonable + y~ should continue to be

required for the search of a home of a

parolee and his family....................

iil

TABLE OF CONTENTS - Continued

Page

The exclusionary rule should apply to exclude

evidence in parole revocation proceedings

obtained as the result of unconstitutional

searches by parole agents..................5..

A. A parole agent search for evidence of parole

violations is a law enforcement function ..

B. The need for applying the exclusionary rule

at parole revocation hearings for parole

agent searches outweighs the cost.........

ne ii er a a

TABLE OF AUTHORITIES

Page

Cases:

Amiss v. State, 219 S.E. 2d 28 (Ga. Ct. App. 1975) .... 37

Arizona v. Evans, 514 U.S. 1 (1995) .................. 30

Bell v. Wolfish, 441 U.S. 520 (1979) .............0055- 27

Blackburn v. Snow, 771 F.2d 556 (1st Cir. 1985)....... 16

Bordenkircher v. Hayes, 434 U.S. 357 (1978)........... 18

Boykin v. Alabama, 395 U.S. 238 (1969)............... 19

Brady v. United States, 397 U.S. 742 (1970)........... 19

Bumper v. North Carolina, 391 U.S. 543 (1968)........ 14

Cabell v. Chavez-Salido, 454 U.S. 432 (1982)........... 32

Carroll v. United States, 267 U.S. 132 (1925)........... 8

Chandler v. Miller, 117 S. Ct. 1295 (1997)...... 16, 22, 27

City of Boerne v. Flores, 117 S. Ct. 2157 (1997) ....... 23

Commonwealth v. Gibson, 638 A.2d 203 (Pa. 1994) ....11

Commonwealth v. Williams, 692 A.2d 1031 (Pa. 1997)

Pe ee ee EE = Ae LEI 9, 10, 11, 12

Dearth II v. State, 390 So. 2d 108 (Fla. Dist. Ct. App.

PO ov cccssvencdcctucwbusnsehbunesiesbasiyondces 16

Delaware v. Prouse, 440 U.S. 648 (1979) ........... 22, 28

Elkins v. United States, 364 U.S. 206 (1960)....39, 40, 42

Fare v. Michael C., 442 U.S. 707 (1979)............4.. 32

Gagnon v. Scarpelli, 411 U.S. 778 (1973)....... 33, 38, 39

Garrity v. New Jersey, 385 U.S. 493 (1967)............ 17

TABLE OF AUTHORITIES — Continued

Page

Griffin v. Wisconsin, 483 U.S. 868 (1987) ......... passim

Illinois v. Krull, 480 U.S. 340 (1987)............... 30, 39

INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) ...31, 32, 39

Johnson v. Commonwealth, Pennsylvania Board of

Probation And Parole, 532 A.2d 50 (Pa. Commw.

PE ne bic on oer ca enwd diss bene neds adeno os panded 15

Kusza v. Maximonis, 70 A.2d 29 (Pa. 1950)........... 11

LaFrankie v. Miklich, 618 A.2d 1145 (Pa. Commw.

Cay SEED Facckdv nde cnbwenenndehedens $00 tvbannes wis 39

Lefkowitz v. Turley, 414 U.S. 70 (1973)............. 17, 21

Mabry v. Johnson, 467 U.S. 504 (1984)................ 18

Malley v. Briggs, 475 U.S. 335 (1986)................. 39

Mapp v. Ohio, 367 U.S. 643 (1961) ..............-.-.. 29

McGann v. Northeast Illinois Regional Commuter

R.R. Corp., 8 F.3d 1174 (7th Cir. 1993)............. 16

Mee v. Ortega, 967 F.2d 423 (10th Cir. 1992) ......... 39

Michigan v. Long, 463 U.S. 1032 (1983)............... 11

Minnesota v. Murphy, 465 U.S. 420 (1984) .. 9, 14, 25, 32

Morrissey v. Brewer, 408 U.S. 471 (1972)... 26, 28, 34, 37

National Treasury Employees v. Von Raab, 489 US.

Be CED we Sa ncisvactenesnescprcereceedvsdbesvcsces 16

Nelson v. Balazic, 802 F.2d 1077 (8th Cir. 1986)....... 34

New York v. Burger, 482 U.S. 648 (1979)........... 22, 28

O'Hare Truck Service, Inc. v. City of Northlake, 116 S.

Ct. 2353 (1996)

TABLE OF AUTHORITIES - Continued

Page

Ohio v. Robinette, 117 S. Ct. 417 (1996) .............. 12

One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S.

Se Gs pc aceon cde vb omuevednbecdrensevecsnwaess 29

Panik v. Didra, 88 A.2d 730 (Pa. 1952)............... 11

Payton v. New York, 445 U.S. 573 (1980) .......... 27, 28

Piccarillo v. New York, 397 N.E. 2d 354 (N.Y. 1979) .... 37

Richards v. Wisconsin, 117 S. Ct. 1416 (1997)......... 28

Ricketts v. Adamson, 483 U.S. 1 (1987) ............... 18

Rogers v. United States,-118 S. Ct. 673 (1998)........ 8, 9

Santobello v. New York, 404 U.S. 257 (1971)........... 19

Schneckloth v. Bustamonte, 412 U.S. 218 (1973)

Ne Oe ET ee APE Pen ee ee 12, 13, 14, 21

Shadwick v. City of Tampa, 407 U.S. 345 (1972) ....... 38

Shaw v. Pennsylvania Board of Probation And Parole,

671 A.2d 290 (Pa. Commw. Ct. 1996), appeal

denied, 690 A.2d 1165 (Pa. 1997) ............... 15, 20

Silverman v. United States, 365 U.S. 505 (1961)....... 28

State v. Cross, 487 So. 2d 1056 (Fla.), cert. dismissed,

SP TE, Bee ia a oh ccasescdatvepeesidevncedins 37

State v. Lampman, 724 P.2d 1092 (Wash. App. 1986) ... . 37

State v. Marquart, 945 P.2d 1027 (N. Mex. Ct. App.

OUD > cnceve ess vnbasiattasonhds tothe dhgteness< ctx 37

State ex rel. Juvenile Dept. Of Multnomah County v.

Rogers, 836 P.2d 127 (Or. 1992)..........--.--2055- 37

Stone v. Powell, 428 U.S. 465 (1976).................. 30

Vii

TABLE OF AUTHORITIES - Continued

Page

Stringer v. Black, 503 Tf B®. . B, . a 10

Tamez v. State, 534 S.W.2d 686 (Tex. 1976)........... 16

Terry v. Ohio, 392 U.S. 1 COOGEE. oc kctvc ciccvccececs 8, 27

Union Pac. R.R. Co. v. Pub. Service Comm., 248 U.S.

GT (IDED) . oc cccccccccccccncceccesescsevccecersess 17

United States v. Albarado, 495 F.2d 799 (2d Cir.

SIP ccccccnctcvavuccessgucccecsssdesceresesseses 16

United States v. Bazzano, 712 F.2d 826 (3d Cir. 1982)

(en banc), cert. denied, sub nom. Mollica v. United

States, 465 U.S. 1078 (1984) ...... 2... eee eee eee ees 42

United States v. Biswell, 406 U.S. 311 (1972)....... 21, 22

United States v. Calandra, 414 U.S. 338 (1974)

Oo Oe ee ath eh eth eae eel 29, 30, 32, 39

United States v. Gianetta, 909 F.2d 571 (1st Cir.

DOD)... cc cvcscvccccsscccecccsccscccssceseoesscens 25

United States v. James Daniel Good Real Property, 510

U.S. 43 (1993)... 2... cece cece cere cree er eeneenenes 29

United States v. Janis, 428 U.S. 433 (1976).......-. 30, 31

United States v. Leon, 468 U.S. 897 (1984)..... 29, 30, 40

United States v. Lewis, 71 F.3d 358 (10th Cir. 1995).... 25

United States v. Mendenhall, 446 U.S. 544 (1980)...12, 16

United States v. Mezzanatto, 513 U.S. 196 (1995)...... 19

United States v. Schoenrock, 868 F.2d 289 (8th Cir.

PPPErerirrrrrr Tr rr rr tt rree, 25

Vill

TABLE OF AUTHORITIES - Continued

Page

United States v. Workman, 585 F.2d 1205 (4th Cir.

GOED + veces ccgdceseuaabuesddénetsuidbekkehantetes 42

United States ex rel. Coleman v. Smith, 395 F. Supp.

GEES CUP AANS, We GOGO ov kdeseskecesbesssekesseeee a 16

Vermont v. Lockwood, 632 A.2d 655 (Vt. 1993)..... 20, 25

Vernonia School District v. Acton, 515 U.S. 646

SOVOD <0 veh 6¥s hae Wi bee Kddbs dekhdneee nid 26, 27

Weaver v. Pennsylvania Board of Probation And

Parole, 688 A.2d 766 (Pa. Commw. Ct. 1997)....... 15

Wyman v. James, 400 U.S. 309 (1971).............. 22, 26

Young v. Harper, 117 S. Ct. 1148 (1997) .............. 28

Zap v. United States, 328 U.S. 624 (1946)............. 20

CONSTITUTIONS AND STATUTES:

U.S. Const.:

Ps Cpa 5:kci das tcnnst ibhtibnsed ets 18

RENE. TE csc kcccccb th cvucesd dente pentiadeset passim

ROG. FY oaks cd vices eb ds etka bi De 17, 21

Pe Geet Cet, EO. ob ieeebsider isis bho 11

Se a n't nad sees ivan dena 39

61 Pa. Cons. Stat. Ann. §331.19 (1964)............. i,

61 Pa. Cons. Stat. Ann. §331.21 (1964)............. 1, 15

61 Pa. Cons. Stat. Ann. §331.22 (1964)............... 15

61 Pa. Cons. Stat. Ann. §331.27 (1964)............... 33

61 Pa. Cons. Stat. Ann. §331.27a (Supp. 1997)....... 12

TABLE OF AUTHORITIES - Continued

oP es GE CED i.e vpn: ob aighe Und bd Ouloheesis cone cas

Be Pe Pe I Paes aedbu pu ddn ced aesdeclvkiaehe

Oe ie ME oon 0k seb ned Whbeeedessaed eek,

SF Way CU EE Si vewa vento cide thiakucddawasdwae

De es GN SEE 60 00K 5 n'o-w Gn kdawie'd dddedanddunss

ey TOA Sa vb iin coho senhis sedhadasderl diss

MISCELLANEOUS:

Neil P. Cohen & James J. Gobert, The Law of Proba-

tion and Parole (1983) (Supp. 1997)......... 34, 36, 38

Comment, The Parole System, 120 U. Pa. L. Rev. 284

POPE ob med é souk nshabataddeseacrecevsbertsacss

NR Ascd bbe aas ned bud pieonndeddébebasecaeseste

Hon. Brian L. Crowe, The Exclusionary Rule in

Probation Revocation Proceedings, 13 Loy. U. Chi.

lp f° SRN ipiae ag ipa iit moe

David Dressler, Practice and Theory of Probation and

Se Se Ge, EE 8c pS ob Aa ue Kd eeee cece ccaes

Jeroid Israel, Criminal Procedure, The Burger Court

and the Legacy of the Warren Court, 75 Mich. L.

Se SE CUP RV aN cua becckbeccceéxedveniedunees

Yale Kamisar, A Defense of the Exclusionary Rule, 15

ee ts SP es 6655.4 50 dicdies Gentes s4see

Joan D. Kleinman, Note, Guess Who's Coming To

Dinner: A Critical Look At Home Visits By Parole

Officers, 14 Colum. Hum. Rts. L. Rev. 355

NG Ko ds ebb bn hace gs Kerb iebbbs scene eedvess |

TABLE OF AUTHORITIES - Continued

Page

Wayne R. LaFave, Search and Seizure: A Treatise on

the Fourth Amendment (3d Ed. 1996)........ 16, 37, 42

M. Harris, Observations of a ‘Friend of the Court’ on

the Future of Probation and Parole, Dec. 1987 Fed-

ES I OE 0 4.n55'505.chnvs Keascecbabentcutade 33

John Michael Pelletier, Note, Searches and Seizures:

To Warrant or Not to Warrant in Parole and Proba-

tion Office Searches, 17 Suffolk U. L. Rev. 687

Ss Gaede bey ents band daUNs vc ccccccscemunbebueks 32

S973 Wa. Att. Gon. Op. Ma. S7..........ccssvceccess 33

Pennsylvania Board of Probation and Parole, Fact

Sheet (Administrative Office 1997)................. 25

Pennsylvania Board of Probation and Parole,

Police Procedures In The Handling of Parolees

SP Rid ent bN ay hdr eased wokd epee bbewury ies sews 33

William R. Rapson, Note, Extending Search-and-

Seizure Protection to Parolees in California, 22

on eR Ae ae se erg 26

U.S. Dept. Of Justice, Bureau of Justice Statistics,

Correctional Populations in the United States, 1995

FOOTE ch satin sianidare ish esbdscdinceravatees tia 27, 39

Welsh S. White, The Fourth Amendment Rights of

Parolees and Probationers, 31 U. Pitt. L. Rev. 167

GP so dchendunaddnes ii eueis cdeaeedieeedseaseus 25, 35

Timothy P. Wile, Pennsylvania Law of Probation and

el UING £ 6d k yies bans ols reek Gace cieedeteaee 34

Robert E. Wolin, After Release — The Parolee In

Society, 48 St. John’s L. Rev. (1978)............. 33, 36

STATEMENT OF THE CASE

In addition to the facts set forth by petitioner, the

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

the following are material to consideration of the ques-

tions presented.

Respondent, Keith Scott (“Scott”), became eligible for

parole consideration in 1993, having then served the ten

year minimum portion of his sentence of ten to twenty

years imprisonment. 61 Pa. Cons. Stat. Ann. § 331.21

(1964). After an investigation and consideration of the

circumstances of his offense and his character and history

(61 Pa. Cons. Stat. Ann. § 331.19 (1964)), parole was

granted on August 25, 1993. J.A. 2a. However, release on

parole was subject to his acknowledging that he agreed to

follow the parole conditions set forth in Form PBPP-11,

and any stated special conditions. J.A. 2a; 37 Pa. Code

§§ 65.6 and 67.3. Among the conditions was an agreement

to searches of his person and property by parole agents.

Pet. App. 2a. On August 31, 1993, Scott signed the Condi-

tions Governing Parole/Reparole form and was then

released from priscn on parole. J.A. 4a-8a; Pet. App. 30a

n.3,

On February 4, 1994, a warrant to commit and detain

Scott for violations of parole was issued by the Board

(J.A. 9a) and he was arrested on that date in a diner by

three parole officers, including his parole agent, Floyd

Gallo. Pet. App. 2a. After seizing the key to Scott’s home

from him, the agents went to his house. J.A. 80a. Scott

lived at home with his mother and stepfather, Mr. and

Mrs. McDaniel. Pet. App. 2a. Only after being told by the

agents that they were going to search Scott’s room did

Mrs. McDaniel acquiesce and direct them there. Nothing

was found in the search of his room, but during a search

of an adjacent room, unloaded firearms were found. Scott

was charged with possession of a firearm, a violation of

parole. Pet. App. 3a.

On March 30, 1994, a hearing was held concerning

the alleged violations of parole. J.A. 14a-18a. Scott's

parole agent, Gallo, represented the Board and acted as

prosecutor. His responsibilities included cross-examining

Scott and his witnesses and presenting closing argument

in support of a finding that the parole violations had been

established. J.A. 94a-104a; 129a-131a.!

Agent Mundro testified at the hearing concerning the

search of Scott's home. At the time of the search there

was no regulation or statute in Pennsylvania concerning

the authority or circumstances for parole agents to con-

duct searches of the homes of parolees. Pet. App. 31a.

When asked by the hearing examiner what legal guide-

lines governed the search, the agent responded that the

Board could search any parolee’s approved residence.

Pet. App. 4a.

* One witness, Eric Hahn, called by Gallo to testify

concerning certain alleged parole violations, had executed an

affidavit which was introduced by the Board. Scott introduced a

subsequent affidavit, D-1, “which indicated that his prior

affidavit was executed under pressure by parole agents.” Pet.

App. 20a-21a. Hahn’s subsequent affidavit alleged that Agent

Gallo had told him and his son to “stretch the truth” and that

Gallo had told him he never wanted Scott out of prison.

Reproduced Record 103a; 140a. See J.A. 43a-45a.

Scott’s parole was revoked on the basis of multiple

violations, including possession of the firearms found in

the search of his home. He was recommitted to serve 36

months in prison before becoming eligible for reparole.

Pet. App. 5a. He has not been granted reparole.

Scott appealed to the Commonwealth Court of Penn-

sylvania. That court reversed and remanded for further

proceedings. Pet. App. 39a. The Commonwealth Court

concluded that the search of Scott’s home violated the

Fourth Amendment and that the exclusionary rule was

applicable to his revocation hearing. Pet. App. 26a-37a.

The Board sought review in the Pennsylvania

Supreme Court, which affirmed the judgment of the

Commonwealth Court. The Pennsylvania Supreme Court

concluded that there was no reasonable suspicion for the

search of Scott’s home by the parole officers. Pet. App.

10a. That conclusion has not been challenged here, nor

was it ever claimed in the state courts that reasonable

suspicion supported the search. The Board’s sole claim

for sustaining the validity of the search in the Pennsylva-

nia courts and in its petition for a writ of certiorari to this

Court was that Scott had consented to the search by

signing the Conditions of Parole/Reparole form. In perti-

nent part, this form states:

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 the possession of

which constitutes a violation of parole/reparole

shall be subject to seizure, and may be used as

evidence in the parole revocation process.

Pet. App. 2a.

The Pennsylvania Supreme Court, relying exclusively

on another Pennsylvania Supreme Court decision, con-

strued this standard Pennsylvania parole conditions form

as an acknowledgment by the parolee that the Board can,

as stated in the form, conduct warrantless searches, but

not that it also can conduct searches without reasonable

suspicion. Pet. App. 9a-10a. Accordingly, the court held

that the Fourth Amendment requires reasonable suspi-

cion for a warrantless search of a parolee’s home. Finding

no reasonable suspicion for the search of Scott’s home by

his parole agent, it held that his Fourth Amendment

rights were violated. Pet. App. 10a.

The Pennsylvania Supreme Court also concluded that

the exclusionary rule should apply to revocation proceed-

ings in those limited circumstances where the searching

officer knows or has reason to know of the parolee’s

status. Pet. App. 14a-17a. It held that “there is a need to

apply the exclusionary rule to the 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.

This Court granted the Board's petition for a writ of

certiorari, limited to its first question of whether the

exclusionary rule applies to parole revocation proceed-

ings. In addition, the parties were invited to brief and

argue the following question: “Must a search of a

parolee’s residence be based on reasonable suspicion to

be valid under the Fourth Amendment where the parolee

has consented to searches as a condition of his parole?”

118 S. Ct. 554 (1997).

SUMMARY OF ARGUMENT

1. Certiorari should be dismissed on the question of

whether reasonable suspicion is required for the search of

a parolee’s home when he agrees to such a search as a

condition of being released on parole. The search provi-

sion which was signed as a condition of parole stated

only that it permitted warrantless searches. It did not

provide for searches without reasonable suspicion. The

record, therefore, does not present the issue.

The Pennsylvania Supreme Court construed the pro-

vision in accordance with Pennsylvania law to permit

only warrantless searches, and not searches without rea-

sonable suspicion. There is an adequate and independent

state ground for the state court’s interpretation of a state

law administrative provision.

2. Consent to an otherwise unconstitutional parole

search imposed as a condition for release from prison on

parole is not voluntary. The price in this case for refusing

to sign the search provision contained on the parole

conditions form was ten more years in prison rather than

release on parole. In true consent cases, where there is no

coercion, an individual can refuse to consent without

suffering substantial adverse consequences from the

state.

The attempt to analogize the acceptance of the terms

of parole release to plea bargaining fails as a matter of

law and logic. The circumstances attendant to the signing

of the parole conditions form manifest no form of bar-

gaining, and the “bargaining chips” are all in the hands

of the government.

This Court has already decided that the Fourth

Amendment does not allow the search of a parolee’s

home in the absence of reasonable suspicion. The state

may not condition receipt of a benefit, like parole, upon

acceptance of an unconstitutional search condition.

Otherwise, the state, rather than this Court, through the

fiction of voluntary consent, would be the final authority

on the reasonableness of searches under the Fourth

Amendment.

3. The exclusionary rule has been applied in crimi-

nal trial proceedings to exclude evidence obtained by

police as the result of unconstitutional searches. There is

a significant deterrent value in that context given police

law enforcement motivation and the lack of meaningful

alternative remedies.

In this case parole agents, peace officers with police

powers under state law, arrested a parolee for violating

his parole conditions and then searched his home for

evidence of violations of parole. The agents were per-

forming a core law enforcement function and their pri-

mary zone of interest was the enforcement of parole

conditions and the detection of violations. There are no

meaningful alternative remedies to deter parole agents

from conducting unconstitutional searches of the homes

of parolees and their families.

The parole revocation proceeding will not be signifi-

cantly burdened by permitting parolees to contest a

search on the basis that there is no reasonable suspicion.

The standard is the lowest under the Fourth Amendment,

and the parties to the proceedings will only have to

understand and apply this uncomplicated Fourth

Amendment concept.

The benefits clearly outweigh the costs of the exclu-

sionary rule witnin this context. Without the sanction of

exclusion, parole agents will be a law unto themselves.

With no requirement of a warrar.t before they search the

home of a parolee and his family and no exclusionary

rule after the fact, there will be no oversight by a neutral

authority. As a practical matter, the Fourth Amendment

reasonable suspicion requirement will be a dead letter

and millions of parolees and their families will be vulner-

able to unlimited governmental intrusions into their

homes.

ARGUMENT

I. BECAUSE THE RECORD DOES NOT PRESENT

THE ISSUE AND BECAUSE THE DECISION OF

THE COURT BELOW RESTS ON AN ADEQUATE

AND INDEPENDENT STATE LAW GROUND -

THAT THE PAROLE CONSENT FORM DOES NOT

PERMIT SEARCHES WITHOUT REASONABLE

SUSPICION - CERTIORARI SHOULD BE DIS-

MISSED ON THIS QUESTION.

In Griffin v. Wisconsin, 483 U.S. 868 (1987), this Court

held that a warrantless search of a probationer’s home

conducted pursuant to a state statutory framework which

required reasonable grounds to believe that there was a

probation violation did not violate the Fourth Amend-

ment. Id., at 872-73, 880. In granting certiorari, the Court

invited the parties to brief the question of whether the

Fourth Amendment nevertheless permits searches of a

parolee’s home without reasonable suspicion where the

parolee accepts parole on the condition he consents to

such searches. This question assumes that the Fourth

Amendment normally requires reasonable suspicion for a

search of a parolee’s residence and that the Pennsylvania

parole consent form in fact expresses a consent by the

parolee to a search without reasonable suspicion. How-

ever, because “the record does not fairly present the

question that . . . [the Court] granted certiorari to

address”, Rogers v. United States, 118 S. Ct. 673, 677 (1998)

(plurality opinion), certiorari should be dismissed as to

this question. The parole condition at issue provides in

pertinent part:

“lL expressly consent to the search of my person,

property and residence without a warrant by

agents of the Pennsylvania Board of Probation

and Parole.”

Pet. App. 2a.

A condition which permits warrantless home

searches does not, of course, automatically decide the

separate question of what quantum of information the

government must possess to justify the search. See, ¢.g.,

Griffin v. Wisconsin, supra (although no warrant necessary,

reasonable grounds required for parolee home search

pursuant to state regulation); Terry v. Ohio, 392 US. 1

(1968) (although no warrant required, police must have

reasonable suspicion for stop and frisk); Carroll v. United

States, 267 U.S. 132 (1925) (although no warrant required,

car search only permissible with probable cause). The

plain language of the search condition, as drafted by the

Board, does not inform the parolee that searches may be

made by parole agents without reasonable suspicion.

In Minnesota v. Murphy, 465 U.S. 420 (1984), even in

the absence of any state court guidance, this Court

refused to construe a state probation condition to waive

Fifth Amendment rights where the purported waiver was

not explicitly stated. The condition there required a pro-

bationer to be truthful with his probation officer “in all

matters.” Id., at 422. “Without the benefit of an authorita-

tive state-court construction of the condition, we are hesi-

tant to read into the truthfulness requirement an

obligation that Murphy refrain from raising legitimate

objections to furnishing information that might lead to

his conviction for another crime.” Id., at 437.

Here, too, there is no justification for reading into

Scott’s parole condition an additional provision requiring

him to waive a constitutional right. Consistent with this

Court's practice of “avoiding the unnecessary or prema-

ture adjudication” of constitutional issues, Rogers v.

United States, 118 S. Ct. 673, 676 (1998) (plurality opinion),

certiorari should be dismissed.

Certiorari should also be dismissed because the inter-

pretation of this state regulatory provision is within the

sole province of the Pennsylvania courts, and here, unlike

Murphy, the state supreme court did construe the state

law provision. The Pennsylvania Supreme Court looked

only to its decision in Commonwealth v. Williams, 692 A.2d

1031 (Pa. 1997), to resolve the question of the construction

of the parole search provision. Pet. App. 7a. It followed

and quoted Williams:

[T]he parolee’s signature acts as acknowledg-

ment that the parole officer has a right to con-

duct reasonable searches of his residence listed

in the parole agreement without a warrant. Op.

[Williams] at ___, 692 A.2d at 1036.

We went on to say that a search will be deemed

reasonable if . . . the parole officer had a reason-

able suspicion.

Pet. App. 9a-10a.

Thus, the Pennsylvania Supreme Court relied exclu-

sively on Pennsylvania law to construe the meaning of

this state law parole regulation. The Board does not dis-

pute that the Pennsylvania Supreme Court's construction

of the search condition provision was an independent

state law interpretation. To the contrary, it complains only

that the Pennsylvania Supreme Court “distorts the plain

meaning of the provision, . . . [and] fails to afford the

deterence due those who administer a vital part of the

State’s penological system.” Brief for Petitioner 23. The

Board thus loses sight of what this Court said in Griffin.

“Whether or not we would choose to interpret a similarly

worded federal regulation in that fashion, we are bound

by the state court's interpretation, which is relevant to

our constitutional analysis only insofar as it fixes the

meaning of the regulation.” Griffin, 483 U.S. at 875.

Indeed, “it would be a strange rule of federalism that

ignores the view of the highest court of a State as to the

meaning of its own law.” Stringer v. Black, 503 U.S. 222,

235 (1992).

In addition to Commonwealth v. Williams, supra,? the

decision below is fully consistent with previous rulings of

? Williams looked to Fourth Amendment considerations,

Pennsylvania law and other states for guidance before deciding

the Pennsylvania Supreme Court interpreting the state

law of consent. As a matter of state law, the Pennsylvania

Supreme Court requires that “in order for consent to an

otherwise illegal search to be valid, the consent must be

unequivocal, specific, and voluntary.” Commonwealth v.

Gibson, 638 A.2d 203, 207 (Pa. 1994). The parole condition

search provision neither specifically nor unequivocally

allows searches without reasonable suspicion. Indeed,

there is no suggestion whatsoever in the form that such

searches would be permitted. And, as a matter of statu-

tory construction, the Pennsylvania Supreme Court has

long held that it will not “supply omissions in a statute.”

E.g., Panik v. Didra, 88 A.2d 730, 733 (Pa. 1952); Kusza v.

Maximonis, 70 A.2d 329, 331 (Pa. 1950).

Given Pennsylvania’s construction of its own state

provision on state law grounds, there is an adequate and

independent state ground for its decision. Michigan v.

Long, 463 U.S. 1032 (1983). Coupled with the fact that the

parole condition does not provide for suspicionless

searches, this case is a particularly poor vehicle to answer

the question of whether a parolee can consent to searches

on its state law interpretation of the consent provision, 692 A.2d

at 1036-37, and, to the extent that the Pennsylvania Supreme

Court in Williams considered both Fourth Amendment and state

constitutional principles on some of the claims in that case, it

ultimately made an independent analysis under Art. I, Sec. 8 of

the Pennsylvania Constitution. 692 A.2d at 1038-39. Thus, even

if, as suggested by the Brief for the United States at 24 n.6, that

Williams is somehow relevant to the nature of the decision made

in this case by the Pennsylvania Supreme Court, there still exists

an independent state law basis for the decision. Of course, the

judgment in Williams is not before this Court.

without reasonable suspicion.’ Certiorari should be dis-

missed as to this question.

Il. WHEN RELEASE FROM PRISON ON PAROLE IS

DEPENDENT ON AGREEING TO AN OTHER-

WISE UNCONSTITUTIONAL SEARCH CONDI-

TION, ACCEPTANCE DOES NOT CONSTITUTE

VOLUNTARY CONSENT

Assuming that Scott’s parole condition purports to

authorize searches without reasonable suspicion, this

Court should hold that Scott did not voluntarily consent

to that parole condition. Schneckloth v. Bustamonte, 412

U.S. 218 (1973), a case not discussed by the Board, pro-

vides the framework for analysis of the issue of consent.

See, e.g., Ohio v. Robinette, 117 S. Ct. 417, 421 (1996); United

States v. Mendenhall, 466 U.S. 544, 557-58 (1980).

The Board and amici argue that the circunistances

under which Scott signed the parole search consent form

were not coercive in a constitutional sense and that his

choice to “consent” to searches without a warrant and

without reasonable suspicion is one that is tolerated by

the Constitution. There are fundamental flaws in these

3’ The situation will not arise again in Pennsylvania

regardless of this Court's decision. Subsequent to the search in

this case, the legislature enacted a provision permitting parole

agent searches “in accordance with the provisions of this

section.” 61 Pa. Cons. Stat. Ann. § 331.27a.(b) (Supp. 1997). The

Act further provides that reasonable suspicion is required for

the search of a parolee’s home, and has been so construed by the

Pennsylvania Supreme Court. 61 Pa. Cons. Stat. Ann.

§ 331.27a.(d)(2), (g) (Supp. 1997); Commonwealth v. Williams, 692

A.2d 1031, 1035 n.9 (1997).

arguments. First, under the established test for determin-

ing whether consent is voluntary, articulated in Schnec-

kloth v. Bustamonte, 412 U.S. 218 (1973), there can be no

finding that the decision to sign the form was the result

of an “essentially free and unconstrained choice.” Id., at

225. For the potential parolee, a refusal to sign means

years more in custody rather ‘han freedom. In .elated

contexts, this Court has not accepted the fiction of con-

sent. When the government conditions receipt of a benefit

on an agreement to surrender constitutional rights, this

Court has consistently found that the situtation is coer-

cive. Second, the attempt to analogize the acceptance of

the terms of parole release to plea bargaining fails as a

matter of law and logic. We will show that the circum-

stances attendant to the signing of the parole conditions

form involve no bargaining, and that the “bargaining

chips” are all in the hands of the government. Third, the

Court has determined the legitimacy of an invasion of

privacy mandated by the government under the Fourth

Amendment's “reasonableness” test, an inquiry that

requires the applicable balancing of interests. Thus, the

government may condition certain benefits or entitlement

on the reciprocal power to search only if, considering all

of the factors, the search is reasonable. A reasonableness

test here would require that a search of a parolee’s resi-

dence be supported by reasonable suspicion.

A. The Schneckloth Voluntariness Test: Where Say-

ing No To The Unconstitutional Parole Search

Condition Would Result In Ten More Years In

Prison, Acceptance Does Not Constitute Volun-

tary Consent.

The Government “has the burden of proving that the

consent was, in fact, freely and voluntarily given.”

Schneckloth, 412 U.S. at 222 (quoting Bumper v. North

Carolina, 391 U.S. 543, 548 (1968)). This Court observed

that the question is one of whether there is an “essentially

free and unconstrained choice.” Id., at 225. Considering

the totality of the circumstances, the test is whether “a

search was in fact ‘voluntary’ or was the product of

coercion, express or implied.” I[d., at 227. This Court

emphasized in Schneckloth that the defendant there was

not in custody (/d., at 248), and “that other courts have

been particularly sensitive to the heightened possibilities

for coercion when the ‘consent’ to a search was given by a

person in custody.” Id., at 241 n.29.

Further, in assessing the totality of the circumstances,

consideration must be given to “the possibly vulnerable

subjective state of the person who consents.” Schneckloth,

412 U.S. at 229. It is clear that when liberty is at stake, the

pressures on an individual making a decision are partic-

ularly powerful. Thus, in Minnesota v. Murphy, 465 U.S.

420 (1984), this Court had little difficulty concluding that

if a probation condition required waiver of the privilege

against self-incrimination, the state “would have created

the classic penalty situation, the failure to assert the

privilege would be excused, and the probationer’s

answers would be deemed compelled and inadmissible in

a criminal prosecution.” Id., at 435 (footnote omitted). In

United States v. Watson, 423 U.S. 411 (1976), this Court

determined that an individual who had just been arrested

had voluntarily consented to a search of his car. Id., at

425. The defendant was “on a public street, not in the

confines of a police station,” id., at 424, and “[t]here were

no promises made to him and no indication of more

subtle forms of coercion that might flaw his judgment.”

Id., at 424.

There was nothing subtle about the coercion inherent

in Scott’s situation. He had been in prison for ten years

when he became eligible under Pennsylvania law to

apply for parole on his ten to twenty year sentence. 61 Pa.

Cons. Stat. Ann. § 331.21 (1964). The decision to grant or

deny parole is discretionary after an application is filed.

61 Pa. Cons. Stat. Ann. § 331.22 (1964). See, e.g., Weaver v.

Pennsylvania Board of Probation and Parole, 688 A.2d 766

(Pa. Commw. Ct. 1997) (en banc). In this case, after the

appropriate investigation, 61 Pa. Cons. Stat. Ann. § 331.19

(1964), Scott was approved for parole on August 25, 1993,

with an actual release date of September 1, 1993. J.A.

2a-3a. As a potential parolee, Scott would not attain the

actual status of parolee (and his release from prison)

unless he signed the form containing the conditions of

parole, including the search condition at issue here. 37 Pa.

Code §§ 65.6 and 67.3. See Shaw v. Pennsylvania Board of

Probation and Parole, 671 A.2d 290, 292 (Pa. Commw. Ct.

1996), appeal denied, 690 A.2d 1165 (Pa. 1997); Johnson v.

Commonwealth, Pennsylvania Board of Probation and Parole,

532 A.2d 50, 52 (Pa. Commw. Ct. 1987).

Thus, the price of saying no to the government's

search condition was ten more years of imprisonment for

Scott. For good reason, Professor LaFave has concluded

that “to speak of consent in this context is to resort to a

manifest fiction.” 4 Wayne R. LaFave, Search and Seizure:

A Treatise on the Fourth Amendment § 10.10(b) at 764 (3d

Ed. 1996).4 In true consent to search cases, where this

Court has found that the Government met its burden of

showing an absence of coercion, see, e.g., United States v.

Mendenhall, 446 U.S. 544, 557-58 (1980); United States v.

Watson, 423 U.S. 411, 424-25 (1976), there is the free and

unconstrained choice to say no to the government with-

out adverse consequences from the government directly

following as a result of that decision.°

4+ Some courts have reached the same conclusion. See, ¢.g.,

United States ex rel. Coleman v. Smith, 395 F. Supp. 1155 (W.D.N_Y.

1975); Dearth II v. State, 390 So.2d 108 (Fla. Dist. Ct. App. 1980);

Tamez v. State, 534 S.W. 2d 686, 691-92 (Tex. 1976).

5 In less inherently coercive circumstances, federal circuit

courts have correctly refused to indulge the fiction that an

individual voluntarily consented to a government search when

a search was required as a condition of engaging in an activity

and the person still chose to do the activity. E.g., McGann v.

Northeast Illinois Regional Commuter R.R. Corp., 8 F.3d 1174,

1179-1181 (7th Cir. 1993) (parking in government garage with

notice that cars parked there are subject to search); Blackburn v.

Snow, 771 F.2d 556, 567-69 (1st Cir. 1985) (entering prison to visit

relative after signing required form consenting to strip search);

United States v. Albarado, 495 F.2d 799 (2d Cir. 1974) (choosing to

board airplane with notice that magnetometer search necessary

to do so). In each of these cases the court held that whether the

search complied with the Fourth Amendment should be judged

on the reasonableness of the government's actions. Likewise,

this Court has noted that searches at airports and entrances to

courts are reasonable, and therefore constitutional, because of

the public safety concerns involved, not on a theory that there is

voluntary consent. Chandler v. Miller, 117 S. Ct. 1295, 1305

(1997). See also National Treasury Employees v. Von Raab, 489 U.S.

656, 675 n.3 (1989).

Even where freedom is not at stake, and the individ-

ual is threatened only with adverse economic conse-

quences, this Court has recognized the inherent coercion

and a lack of voluntariness associated with the purported

consent.

Eighty years ago, finding a Commerce Clause viola-

tion, the Court rejected the argument that a corporation’s

application to a government agency for a needed certifi-

cate was “voluntary,” and that therefore there could be no

complaint about the fee charged for the certificate which

was found by this Court to be unconstitutional. Union

Pac. R.R. Co. v. Pub. Service Comm., 248.U.S. 67, 69 (1918).

“Were it otherwise, as conduct under duress involves a

choice, it always would be possible for a state to impose

an unconstitutional burden by the threat of penalties

worse than it in case of a failure to accept it, and then to

declare the acceptance voluntary .. . ” Id., at 70.

Likewise, in Garrity v. New Jersey, 385 U.S. 493 (1967),

where a police officer answered questions after he was

threatened with losing his job if he did not answer, the

Court held that incriminating answers were obtained in

violation of the officer’s constitutional right against self-

incrimination. Id., at 498-500. “We think the statement

was infected by the coercion inherent in this scheme of

questioning and cannot be sustained as voluntary under

our prior decisions.” Id., at 498-99 (footnotes omitted).

This Court has consistently held that “a waiver secured

under threat of substantial economic sanction cannot be

termed voluntary.” Lefkowitz v. Turley, 414 U.S. 70, 82-83

(1973) (provision which requires independent contractors

to waive Fifth Amendment rights in return for having

contracts with the government is unconstitutional).

Most recently, this Court found a First Amendment

violation where an independent contractor was denied

the opportunity to do business with the government

because he had refused demands to provide political

support. O'Hare Truck Service, Inc. v. City of Northlake, 116

S. Ct. 2353, 2358 (1996). (“We see nothing to distinguish

this from the coercion exercised in our other unconstitu-

tional conditions cases”).

Scott’s choice to sign the parole search condition was

not made in the absence of governmental coercion.

B. There Is No Bargaining Process - It is Take It

(The Unconstitutional Search Condition) or

Leave It (And Remain In Prison)

Amici urge this Court to find voluntariness here by

asserting that the signed Conditions of Parole form is no

different than a defendant choosing to accept a guilty

plea agreement with the government. See, e.g., Brief for

the United States 9-10, 22-28; Brief for the Criminal Jus-

tice Legal Foundation 12-13, 18-20. There are several sig-

nificant features which distinguish the two situations and

which demonstrate the inaptness of the analogy.

In the plea bargaining context, there is a “give-and-

take negotiation . . . between the prosecution and

defense, which arguably possess relatively equal bargain-

ing power.” Bordenkircher v. Hayes, 434 U.S. 357, 362

(1978). “[Blecause each side may obtain advantages when

a guilty plea is exchanged for sentencing concessions, the

agreement is no less voluntary than any other bargained

for exchange.” Ricketts v. Adamson, 483 U.S. 1, 9 n.5 (1987)

(quoting Mabry v. Johnson, 467 U.S. 504, 508 (1984)).

A defendant can use his “bargaining chips” to “maxi-

mize what he has to sell.” United States v. Mezzanatto, 513

U.S. 196, 208 (1995). What a defendant has to sell some-

times includes information, and always includes his con-

stitutional rights. The defendant’s constitutional right to

insist on a trial gives her the bargaining chip of offering

the prosecutor the opportunity to have “scarce judicial

and prosecutorial resources . . . conserved” by avoiding

trial with a plea agreement. Brady v. United States, 397

U.S. 742, 752 (1970). More importantly, since the constitu-

tional right to insist that a factfinder be convinced

beyond a reasonable doubt will lead to acquittal in some

cases, the bargain gives the prosecutor the certainty of

obtaining a guilty verdict and a sentence.

This is a true bargaining process. Defendants often

turn down plea agreements when, upon consultation

with their attorneys, they conclude that a trial is the

better alternative. If an agreement is reached, constitu-

tional procedural safeguards ensure that the plea agree-

ment is knowing, intelligent and voluntary. Boykin v.

Alabama, 395 U.S. 238 (1969). Significantly, the agreement,

once accepted by the court, is binding on both parties,

and the government has no unilateral power to change its

conditions. Santobello v. New York, 404 U.S. 257 (1971).

Scott’s acceptance of the search condition bears no

relationship to the plea bargain process. See Brady v.

United States, 397 U.S. 742, 750 (1970) (distinguishing plea

agreements from promises of leniency to uncounseled

defendants in custody who are questioned). The potential

parolee has no counsel and there are no proceedings in

open court or otherwise. There is no bargaining and no

give and take. Unlike the untried defendant, the inmate

approved for parole has nothing to sell; he has no bar-

gaining chips. There are no constitutional rights he can

rely on to bargain with the government.

When the parole conditions form (with the waiver of

his Fourth Amendment rights) is put in front of him, the

inmate has the choice only to sign and go home, or to

refuse and remain in prison. Unlike the defendant in a

criminal prosecution who may do better by rejecting a

plea agreement and taking his chances at trial, there is the

certainty here of more years of confinement if he refuses.

The inmate will opt for his freedom.

The signing of the parole conditions sheet constitutes

nothing more than the inmate’s acknowledgment of

notice and receipt of the unilateral restrictions imposed

on his life if he is released.® It is not an agreement in any

sense of the word; unlike a plea bargain, the conditions

can be unilaterally changed by the government later if the

inmate is released on parole. See 37 Pa. Code § 63.5(a)

(“Parolees shall comply with special conditions which are

imposed by the Board or which are subsequently

imposed by the parole agent.”).”

* That is why the document signed by the parolee is not

labeled a “parole agreement”. It is a “Conditions Governing

Parole/Reparole” form. J.A. 4a. “[T]he prisoner signs an

acknowledgment of the conditions of parole.” Shaw v.

Pennsylvania Board of Probation and Parole, 671 A.2d 290, 292 (Pa.

Commw. Ct. 1996) (footnote omitted), appeal denied, 690 A.2d

1165 (Pa. 1997).

” For the same reasons, acceptance of parole conditions is

not a contract between two parties. See Vermont v. Lockwood, 632

A.2d 655, 658 (Vt. 1993). See and compare, Zap v. United States, 328

U.S. 624 (1946). In sustaining a search provision contained in a

——

ae em

In essence, the Board's argument must be that Scott's

act of signing the parole conditions sheet was voluntary

and uncoerced because he had the opportunity to refuse.

Schneckloth rejected that simplistic analysis — “[e)xcept

where a person is unconscious or drugged or otherwise

lacks capacity, all choices can be termed ‘voluntary’ in the

sense of representing a choice of alternatives.” “Schnec-

kloth, supra, 412 U.S. at 224. Because an individual, in

order to gain his freedom, is willing to accept unconstitu-

tional conditions which would otherwise violate Fourth

Amendment rights and seriously compromise his and his

family’s rights of privacy does not make the choice vol-

untary in the constitutional sense.

contract between the government and a contractor this Court

spoke of waiver of Fourth Amendment rights but ultimately did

not decide “the limits of that power” because it concluded that

the search was reasonable. Id., at 628. Subsequent cases in the

Fourth and Fifth Amendment contexts have made clear that the

limits of government power are te be determined by the

constitutionality of the government provision, and not on a

theory of voluntary consent. E.g., Lefkowitz v. Turley, 414 U.S. 70

(1973) (public contracts requiring contractor to waive Fifth

Amendment rights are unconstitutional); United States v. Biswell,

406 U.S. 311, 315 (1972) (regulatory schemes should be

evaluated based on validity of the statute, not a consent theory).

C. This Court’s Role In Determining Fourth

Amendment Reasonableness Will Be Trans-

ferred To The Executive Branch If the Govern-

ment Can Require Unconstitutional Search

Conditions To Be Accepted In Return For Bene-

fits.

This Court’s Fourth Amendment jurisprudence in

cases, like the one at bar, where the government requires

an individual to submit to a search or seizure either

directly under the government's asserted power to do so

or as a condition of some benefit or program, derives

most fundamentally from the Fourth Amendment's rea-

sonableness provision. Thus, for example, in deciding

whether compelled drug testing, e.g., Chandler v. Miller,

117 S. Ct. 1295 (1997), home visits for welfare recipients,

Wyman v. James, 400 U.S. 309 (1971), automobile stops,

e.g., Delaware v. Prouse, 440 U.S. 648 (1979), or administra-

tive searches, e.g., New York v. Burger, 482 U.S. 691 (1987),

are constitutional, the Court has not indulged in the

fiction that the individual has “consented” to the govern-

mental demand.* Rather, the analysis has focused on the

traditional Fourth Amendment balancing of the interests

of the government and the individual in determining the

overall reasonableness of the governmental conduct. Not

surprisingly, the outcome differs with the relative weight

given to the interests. We believe that the Court has

already answered this question in the context of parole

8 See, e.g., United States v. Biswell, 406 U.S. 311, 315 (1972)

(“In the context of a regulatory inspection system of business

premises that is carefully limited in time, place and scope, the

legality of the search depends not on consent but on the

authority of a valid statute.”).

Miata oP:

searches (requiring reasonable suspicion, but no war-

rant), and that the issue is not presented in this case.

However that question is resolved, it ought to be on the

merits of the constitutional issue, and not on the fiction of

consent. See Section D, infra, 24-29.

Application of a consent theory will result in a

wholesale transfer to the executive branch of this Court's

constitutionally mandated prerogative of deciding what

the Constitution requires. See, ¢.g., City of Boerne v. Flores,

117 S. Ct. 2157, 2172 (1997). Where, as here, there can be

no voluntary consent under established Fourth Amend-

ment doctrine, expansion of the consent doctrine to all

cases in which an individual who has no bargaining

power accepts a governmental demand at the price of his

liberty or other constitutional rights, will negate this

Court’s responsibility to determine the reasonableness of

searches and seizures. If the action of Scott here is consid-

ered consensual and this Court therefore determines that

a reasonableness inquiry is not necessary, what would

prevent the government from requiring applicants for

driver’s licenses to agree to suspicionless stops or

searches of their cars, candidates for public office to agree

to searches of their offices or bodies, welfare recipients to

agree to full searches of their homes, or any licensed

business to agree to any type of search or seizure of its

premises? We do not mean to suggest that in any of these

circumstances or the scores of other similar hypothetical

situations, that the government could never prevail on a

“reasonableness” analysis. Rather, acceptance of the con-

sent theory pretermits this analysis and renders all

Fourth Amendment rights vulnerable to executive branch

mandates.

This Court should reject such a radical change in

Fourth Amendment jurisprudence.

D. Reasonable Suspicion Should Continue To Be

Required For The Search Of A Home Of A

Parolee And His Family.

The Board's principal argument is that even in the

absence of voluntary consent by a parolee, the Fourth

Amendment should permit “state parole agents to search

his home without a particular level of suspicion.” Brief

for Petitioner 26. Counsel does not construe this Court's

grant of certiorari as encompassing this issue but, out of

an abundance of caution, it will be briefly addressed.

In essence, the Board requests this Court to overrule

Griffin v. Wisconsin, 483 U.S. 868 (1987). In Griffin, this

Court left unanswered the question of whether reason-

able suspicion without a regulatory framework would

permit a search of a probationer’s home, while holding

that the Wisconsin statutory scheme which required such

searches to be based on reasonable grounds did comport

with the Fourth Amendment. /d., at 872, 880. The Wiscon-

sin regulations specified the types of information that the

searching officer should consider in determining whether

reasonable grounds were present. Id., at 878-79.

This Court rejected the probable cause standard in

Griffin because it concluded that “the probationer would

be assured that so long as his illegal (and perhaps socially

dangerous) activities were sufficiently concealed as to

give rise to no more than reasonable suspicion, they

would go undetected and uncorrected.” Id., at 878. It

further noted that the search “should be supportable by a

a < l E t y n algly n mey ag. a

lesser quantum of concrete evidence justifying suspicion

than would be required to establish probable cause.” Id.,

at 879 n.8. The dissenting Justices also agreed that the

special needs of a probation system “may justify a search

by a probation officer on the basis of a “reasonable suspi-

cion”. Id., at 881. Griffin has been understood by lower

courts as requiring reasonable suspicion to search the

home of a probationer or parolee.®

There has been no showing that “a special need” has

now developed for states to conduct full searches of the

homes of probationers and parolees without reasonable

suspicion, rather than use alternative methods to monitor

their activities.'° This case involves a full blown search of

a parolee’s home for evidence of parole violations. It

stands in stark contrast to a home visit. “Homes can be

* See, e.g., United States v. Lewis, 71 F.3d 358, 362 (10th Cir.

1995); Vermont v. Lockwood, 632 A.2d 655, 662 (Vt. 1993); United

States v. Gianetta, 909 F.2d 571, 575-76 (1st Cir. 1990); United

States v. Schoenrock, 868 F.2d 289, 292 (8th Cir. 1988).

10 “[M]ethods of supervision used by agents in order to

monitor the actions of parolees .. . include: field

contacts: ... collateral contacts: . . . telephone contacts: .. . group

supervision contacts: .. . [and] office contacts... . ”

Pennsylvania Board of Probation and Parole, Fact Sheet

(Administrative Office 1997). After reviewing those means

available for parole agents to investigate the parolee in society,

Professor White concluded that “no compelling need can be

shown to justify such [home] searches.” Welsh S. White, The

Fourth Amendment Rights of Parolees and Probationers, 31 U. Pitt.

L. Rev. 167, 194 (1969).

In addition, the parolee has no constitutional rig.t to refuse

to answer, or not to answer truthfully, questions concerning

possible probation or parole violations. Minnesota v. Murphy,

465 U.S. 420, 435-36 n. 7 (1984).

visited without embarrassment to occupants.” David

Dressler, Practice and Theory of Probation and Parole 254 (2d

Ed. 1969). In Wyman v. James, 400 U.S. 309 (1971), this

Court upheld as reasonable a statute which permitted

home visits to gather information concerning welfare

recipients, carefully contrasting home visits with those

cases involving “a true search for violations.” Id., at 325.

Indiscriminate intrusions into a parolee’s home

undercut the ability of the parolee to develop a stable

home life and to reintegrate into society. They can be

detrimental to the relationship between the parolee and

the agent, and they demonstrate that a parolee is not to

be treated with respect in his own home no matter how

exemplary a life he lives.'! Treating the parolee fairly in a

non-arbitrary manner also benefits society because it

“will enhance the chance of rehabilition by avoiding reac-

tions to arbitrariness.” Morrissey v. Brewer, 408 U.S. 471,

484 (1972). Intrusions into the home also seriously com-

promise the privacy of any family members or others

11 See, e.g., William R. Rapson, Note, Extending Search-and-

Seizure Protection to Parolees in California, 22 Stan. L. Rev. 129, 140

(1969); Joan D. Kleinman, Note, Guess Who's Coming To Dinner: A

Critical Look At Home Visits By Parole Officers, 14 Colum. Hum.

Rts. L. Rev. 355, 381 (1982-83); Comment, The Parole System, 120

U. Pa. L. Rev. 284, 336-37 (1971). Justice O'Connor has made this

point generally about the value of a reasonable suspicion

standard. “Searches based on individualized suspicion also

afford potential targets considerable control over whether they

will, in fact, be searched because a person can avoid such a

search by not acting in an objectively suspicious way.” Vernonia

School District v. Acton, 515 U.S. 646, 667 (1995) (O’Connor, J.,

dissenting).

PU ay eae a A Maa

with whom the parolee is living.'? Millions of people not

on parole or probation could also be subjected to suspi-

cionless home searches. See U.S. Dept. of Justice, Bureau

of Justice Statistics, Correctional Populations in the United

States, 1995 iii (1997) (3.8 million people on probation or

parole).

This is not to denigrate the legitimate concern for the

risk of recidivism on the part of parolees. However,

parolees have been found fit for release into society

before completion of their maximum sentences. Those

found unfit for release and who serve their entire sen-

tences before being released are at least as likely to pose a

risk, yet they cannot be stopped and frisked on the street

without reasonable suspicion, Terry v. Ohio, 392 U.S. 1

(1968), and their homes cannot be entered without proba-

ble cause and a warrant. See, e.g., Payton v. New York, 445

U.S. 573 (1980). There is a limited and “closely guarded

category of constitutionally permissible suspicionless

searches.” Chandler v. Miller, 117 S. Ct. 1295, 1298 (1997).

Except for the prison setting, “a unique place fraught

with serious security dangers”, Bell v. Wolfish, 441 US.

520, 559 (1979), suspicionless searches have been toler-

ated only when there has been an important government

interest and the intrusion is a “negligible” invasion of

privacy. Vernonia School District v. Acton, 515 U.S. 646, 658

'2 This in turn could cause serious problems for the person

found suitable for release who needs an approved home plan. A

parolee may lose the opportunity for parole or to continue on

parole simply because others, who would otherwise welcome

him into their home, refuse to do so because they are not willing

to tolerate full searches of their homes without reasonable

grounds.

(1995). As this Court has recognized, the parolee’s “con-

dition is very different from that of confinement in a

prison.” Young v. Harper, 117 S. Ct. 1148, 1152 (1997)

(quoting Morrissey v. Brewer, 408 U.S. 471, 482 (1972)).

This Court has emphasized that “at the very core [of

the Fourth Amendment] stands the right of a man to

retreat into his own home and there be free from unrea-

sonable governmental intrusions.” Payton v. New York, 445

U.S. 573, 589-90 (1980) (quoting Silverman v. United States,

365 U.S. 505, 511 (1961)). Business regulatory cases relied

on by the Board, Brief for Petitioner 22, 23, are inapposite

because “an expectation of privacy in commercial prem-

ises ... is different from, and indeed less than a similar

expectation in an individual’s home.” New York v. Burger,

482 U.S. 691, 700 (1987). Griffin recognized that “[a] pro-

bationer’s home, like anyone else’s, is protected by the

Fourth Amendment requirement that searches be reason-

able.” Griffin, 483 U.S. at 873. An objective quantum of

proof, as required by Griffin, should not be abandoned in

favor of leaving parolees and their families “subject to

unfettered governmental intrusion”, Delaware v. Prouse,

440 U.S. 648, 662 (1979), into their homes.

The constitutional test proposed by the Board asks

only whether the “search was for a purpose unrelated to

legitimate parole supervision.” Brief for Petitioner 13-14,

26. But this standard imposes no limit at all since the

entry and search can always be justified as a check on

compliance with parole conditions. Further, the govern-

ment already has broad ranging powers under the rea-

sonable suspicion standard where the “showing

[required] is not high.” Richards v. Wisconsin, 117 S. Ct.

1416, 1422 (1997).

If the Court reaches this issue it should hold that the

Fourth Amendment requires reasonable suspicion for a

search of a parolee’s home. And, because there was a

finding of no reasonable suspicion here, and there was no

voluntary consent to home searches without reasonable

suspicion, the Pennsylvania Supreme Court's holding

that the search violated the Fourth Amendment should be

affirmed.

Ill. THE EXCLUSIONARY RULE SHOULD APPLY TO

EXCLUDE EVIDENCE IN PAROLE REVOCATION

PROCEEDINGS OBTAINED AS THE RESULT OF

UNCONSTITUTIONAL SEARCHES BY PAROLE

AGENTS.

In order to ensure that the Fourth Amendment would

not be “an empty promise”, the Court held in Mapp v.

Ohio, 367 U.S. 643, 660 (1961), that evidence obtained

from an individual by police in violation of the Fourth

Amendment must be excluded from that person’s crimi-

nal trial. The exclusionary rule has also been applied to

forfeiture proceedings where the proceedings were

designed to punish the individual for criminal conduct.

One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693,

700-01 (1965). See also United States v. James Daniel Good

Real Property, 510 U.S. 43, 49 (1993).

Because the exclusionary rule is not viewed as a

personal constitutional right, but instead is “a judicially

created remedy designed to safeguard Fourth Amend-

ment rights generally through its deterrent effect”, United

States v. Leon, 468 U.S. 897, 906 (1984) (quoting United

States v. Calandra, 414 U.S. 338, 348 (1974)), this Court has

held that it is constitutionally required only “where its

remedial objectives are thought most efficaciously

served.” Arizona v. Evans, 514 U.S. 1, 11 (1995). Accord-

ingly, “where the exclusionary rule does not result in

appreciable deterrence, then clearly its use . . . is unwar-

ranted.” Id. (quoting United States v. Janis, 428 U.S. 433,

454 (1976)). This Court has refused to apply the exclu-

sionary rule to proceedings where the deterrent value

would be “marginal”, for example where the police

search was not motivated in any meaningful way by the

potential outcome of that proceeding. See, e.g., United

States v. Janis, 428 U.S. 433, 453, 455 (1976) (another sover-

eign’s civil tax proceeding); United States v. Calandra, 414

U.S. 338, 342 (1974) (grand jury proceeding); Stone v.

Powell, 428 U.S. 465, 493 (1976) (federal habeas corpus

proceedings).

Likewise, significant deterrence of police unconstitu-

tional action is absent when police reasonably rely on

another state actor in deciding to conduct the search.

United States v. Leon, 468 U.S. 897 (1984) (warrant issued

by neutral and detached magistrate); Illinois v. Krull, 480

U.S. 340 (1987) (statute passed by legislature); Arizona v.

Evans, 514 U.S. 1 (1985) (computer arrest records pre-

pared by court clerks). Of course, since these other state

actors were ultimately responsible for the unconstitu-

tional searches which occurred, the exclusionary rule was

not applied only after examining their role in such

searches. In each instance, they were viewed as com-

pletely neutral, as the magistrates (Leon) and court clerks

(Evans), or at least, as the legisiators in Krull, not

“adjuncts to the law enforcement team.” Krull, 480 U.S. at

350-51 (quoting Leon, 468 U.S. at 917).

on eee heen Meee anes oe

ee a

The only case decided by this Court directly address-

ing the question of whether evidence should be excluded

at a proceeding where police did not conduct the search

and seizure is INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).

The Court ruled that the exclusionary rule should not be

applied to exclude evidence seized by INS agents for

deportation proceedings but recognized the crucial differ-

ence between that situation and one such as that pre-

sented by Janis, where the exclusionary rule already

operates in criminal proceedings to deter the police:

“(T]he arresting officer’s primary objective, in

practice, will be to use evidence in the civil

deportation proceeding. Moreover, here, in con-

trast to Janis, the agency officials who effect the

unlawful arrest are the same officials who sub-

sequently bring the deportation action. As rec-

ognized in Janis, the exclusionary rule is likely

to be most effective when applied to such ‘intra

sovereign’ violations.”

Id., 468 U.S. at 1043.

However, on balance, in INS the exclusionary rule

was held not to apply in deportation proceedings for

several reasons not applicable here. First, it was a purely

civil proceeding not involving punishment. Second, the

INS was a single government agency which had the

capacity to deter Fourth Amendment violations, and had

done so through Fourth Amendment training programs,

and punishment of officers for Fourth Amendment viola-

tions. Third, the illegal alien’s very presence in this coun-

try was a continuing offense. Id., 1043-1047.

Applying these factors, parole agent searches and

parole revocation proceedings, with their potential for

loss of liberty and criminal punishment, should be subject

to the exclusionary rule. “The need for deterrence and

hence the rationale for excluding the evidence is stron-

gest where the Government's unlawful conduct would

result in imposition of a criminal sanction on the victim

of the search.” United States v. Calandra, 414 U.S. 338, 348

(1974) (footnote omitted). As will be demonstrated, the

parole agent search is in essence a law enforcement func-

tion. Its primary objective is to gather evidence for use

against the parolee at revocation proceedings and, unlike

INS, there are no effective alternative remedies to deter

unconstitutional parole agent searches of the homes of

parolees and their families.

A. A Parole Agent Search For Evidence Of Parole

Violations Is A Law Enforcement Function.

This Court has observed that in general a parole

officer’s job, with its search and arrest powers, has a

significant law enforcement aspect. The parole or proba-

tion officer “is a peace officer, and as such is allied to a

greater or lesser extent, with his fellow peace officers.”

Minnesota v. Murphy, 465 U.S. 420, 432 (1984) (quoting

Fare v. Michael C., 442 U.S. 707, 720 (1979)). See Cabell v.

Chavez-Salido, 454 U.S. 432, 443-44 (1982) (“The general

law enforcement character of all California ‘peace offi-

cers’ (including parole agents) is underscored by the fact

that all have the power to make arrests”).'°

13 See also John Michael Pelletier, Note, Searches And

Seizures: To Warrant or Not to Warrant in: Parole and Probation

Officer Searches, 17 Suffolk U. L. Rev. 687, 706 (1983) (“studies

1k ey tt ee

ee ee 2 ene

The law enforcement character of the parole officer's

job in Pennsylvania is mandated by law. Parole officers

are “declared to be peace officers and are hereby given

police power and authority” to arrest for parole viola-

tions. 61 Pa. Cons. Stat. §331.27. They may carry firearms,

37 Pa. Code §§69.1 and 69.2, and are considered law

enforcement officers. 1971 Pa. Att. Gen. Op. No. 57.

“While the Board places heavy emphasis on client control

and rehabilitation, it nevertheless shares with police the

primary goals of law enforcement, community protection

and crime prevention.” Pennsylvania Board of Probation

and Parole, Police Procedures In The Handling Of Parolees 1

(1972). “Parole agents are peace officers first.” Id., at 15.

Even if the parole officer’s role includes a counseling

aspect, there is no doubt that role is “surely compro-

mised”, Gagnon v. Scarpelli, 411 U.S. 778, 785 (1973), once

there has been a decision to recommend revocation and a

return to prison. If the relationship was “at least not

entirely adversarial” before, Griffin v. Wisconsin, 483 U.S.

868, 879 (1987), that is dramatically changed by the deci-

sion to arrest the parolee. See 37 Pa. Code §71.1(a) (if

indicate that most parole and probation officers consider law

enforcement their first responsibility, despite commentators’

emphasis on rehabilitation.”) (footnote omitted); Robert E.

Wolin, After Release —- The Parolee In Society, 48 St. John’s L. Rev. 1,

18 (1973) (“Their official status is that of a peace officer, and this

is how they tend to regard their jobs.”) (footnote omitted); M.

Harris, Observations of a ‘Friend of the Court’ on the Future of

Probation and Parole, Dec. 1987 Federal Probation 12, 21 (“As

exemplified by the motto of one probation office I visited — ‘Trail

‘em, nail ‘em, and jail ‘em’ - the themes of probation today seem

to involve more concern about coercion, containing and

collecting than about caring.”).

parole agent believes action of the Board is necessary he

may apply for arrest warrant). See also Nelson v. Balazic,

802 F.2d 1077, 1079 (8th Cir. 1986) (when parole agent

arrested parolee, his “actions were functionally equiva-

lent to those of a police officer”). “The first stage [of

parole revocation] occurs when the parolee is arrested

and detained, usually at the direction of his parole offi-

cer.” Morrissey v. Brewer, 408 U.S. 471, 485 (1972). The

authorities deciding to arrest the parolee “may be any-

thing but neutral and detached.” Neil P. Cohen & James J.

Gobert, The Law of Probation and Parole §11.04 at 533

(1983). In Pennsylvania, after the arrest, the parole agent

then “serves in the role of a prosecutor” at the revocation

hearing. Timothy P. Wile, Pennsylvania Law of Probation

and Parole §5.12 at 89 (1993).

In this case, Scott had been arrested for alleged

parole violations by his parole agent and he was in cus-

tody when the decision was made to search his house.

Pet. App. 2a; J.A. 9a-10a. The “sole purpose for conduct-

ing the search was to uncover evidence of additional

violations.” Pet. App. 37. See Brief for Petitioner 32. The

parole agents were thus performing a classic law enforce-

ment function, attempting to gather evidence to introduce

14 The adversarial posture in these proceedings was

demonstrated by Scott’s parole agent, Floyd Gallo, cross-

examining Scott and his witnesses at the parole revocation

hearing, and making closing argument urging revocation. J.A.

94a-106a; 126a-127a; 129a-13la. One witness Gallo called, Eric

Hahn, asserted that Gallo had asked him to stretch the truth,

and he asserted in an affidavit admitted into evidence (D-1) that

Gallo said he never wanted Scott out of prison. See Pet. App.

20a-21a; Reproduced Record 103a, 140a; J.A. 43a-45a.

at a parole revocation hearing to secure Scott's incarcera-

tion. Parole agents conduct searches and look for evi-

dence of parole violations for use at parole violation

proceedings because it is their responsibility to try and

remove the parolee from society if necessary.'5 Like

police, they are subject to the institutional pressures of

effectively performing their peace officer role of protect-

ing the safety of the community. The pressures are partic-

ularly intense because the entire population they deal

with is sentenced offenders.

Since the parole officer will probably be primar-

ily interested in the question of whether his

parolee’s parole will be continued — not whether

the parolee will be convicted of a new offense -

he will have a strong incentive to obtain evi-

dence by illegal means so long as he knows the

evidence will be admissible at the parole revoca-

tion hearing.

Welsh S. White, The Fourth Amendment Rights of

Parolees and Probat. »ers, 32 Univ. Pitt. L. Rev.

167, 201 (1969).

The parole agent is a far cry from the court clerk, the

magistrate, or the legislator whom this Court has con-

cluded are not in need of deterrence from conducting

unconstitutional searches. He is like a police officer when

he searches and should be deterred from conducting

unconstitutional searches.

8 Over two-thirds of all probationers and parolees

returned to custody in 1996 were for technical violations not

involving the commission of new crimes. Criminal Justice

Institute, The Corrections Yearbook 154 (1997).

B. The Need For Applying The ««c'usionary

Rule At Parole Revocation Hearings For Parole

Agent Searches Outweighs The Costs.

The Board concedes that “application of the [exclu-

sionary] rule may have some deterrent effect upon parole

officers”, but urges that the costs are too high to protect

the Fourth Amendment rights of parolees and their fami-

lies in their homes. Brief for Petitioner 29.

There are costs to be sure. There will sometimes be

the loss of otherwise reliable evidence, and there will

occasionally be parolees whose parole will not be

revoked solely because of the operation of the exclusion-

ary rule. The loss of otherwise reliable evidence is the

price whenever it is necessary to have the exclusionary

rule operate to make Fourth Amendment protections

meaningful. However, because the burden of proof at a

revocation proceeding is typically only by a prepon-

derance of the evidence,'® rather than beyond a reason-

able doubt, and because many parole conditions subject

the parolee to possible revocation for violation,’” fewer

parolees are likely to avoid revocation than those who

16 This is the standard of proof in Pennsylvania. Pet. App.

16a n.10. See generally, Neil P. Cohen & James J. Gobert, The Law

Of Probation And Parole §14.08 at 632.

17 “In most cases both probationers and parolees are given

an extensive list of conditions which can affect most aspects of

their lives.” Neil P. Cohen & James J. Gobert, supra, §5.02 at 185.

See also Robert E. Wolin, After Release, The Parolee In Society, 48

St. John’s L. Rev. 1, 13 (1973) (“In New York, both parole officers

and parolees have expressed the view that a parolee would have

to be in a comatose state not to violate his parole rules in some

respect.”) (footnote omitted).

avoid conviction at trial by operation of the exclusionary

rule. Moreover, as we have noted, the reasonable suspi-

cion standard provides broad search powers for the

parole agent.

As Professor LaFave has observed, “surely the proba-

tion and parole systems are not so weak that it must be

assured that only through police illegality can they effec-

tively function.” 1 Wayne R. LaFave, Search and Seizure: A

Treatise On The Fourth Amendment §1.6(g) at 183 (3d Ed.

1996). In those states which have been applying the exclu-

sionary rule to revocation proceedings,'* there has been

no showing that the parole system is not effectively func-

tioning or that fewer paroles are being granted.'9

The argument that the revocation hearing will be

overly burdened applies to any rights of the parolee and

has been rejected in other contexts. See Morrissey v.

Brewer, 408 U.S. 471, 483 (1973). It should be rejected here

as well because there are no additional significant bur-

dens. The state will usually require but one witness on

1S See, e.g., State ex rel. Juvenile Dept. of Multnomah County v.

Rogers, 836 P.2d 127 (Or. 1992); State v. Lampman, 724 P.2d 1092

(Wash. App. 1986); State v. Cross, 487 So. 2d 1056 (Fla.), cert.

dismissed, 479 U.S. 805 (1986); Piccarillo v. New York State Board of

Parole, 397 N.E.2d 354 (N.Y. 1979); Amiss v. State, 219 S.E.2d 28

(Ga. Ct. App. 1975); State v. Marquart, 945 P.2d 1027 (N. Mex. Ct.

App. 1997). The cases around the country for and against

exclusion are collected in Marquart. Id., at 1029-30.

'? While not addressing this point in particular, the Court

made the same general point in Morrissey v. Brewer, 408 U.S. 471

(1972). “Serious studies have suggested that fair treatment on

parole revocation will not result in fewer grants of parole.” Id.,

408 U.S. at 483 (footnote omitted).

the suppression issue, the searching agent who often is

the parole agent who will testify concerning any alleged

parole violations. There is no complex body of law to be

learned by the agents conducting the searches or the

hearing examiners making the Fourth Amendment rul-

ing, because they need to understand only the common

sense standard of reasonable suspicion. See, e.g., Shadwick

v. City of Tampa, 407 U.S. 345, 351-52 (1972) (clerks have

capacity to determine probable cause for arrest for minor

offenses). Probation and parole violation hearings are

often conducted by judges who are already schooled in

the Fourth Amendment. Neil P. Cohen & James J. Gobert,

The Law Of Probation And Parole §14.07 at 628 (1983).7°

The need for application of the exclusionary rule to

parole agent searches exceeds the costs. The Fourth

Amendment rights of not only over three million proba-

tioners and parolees, but also their families, will be left

without any meaningful protection in their homes if the

Fourth Amendment exclusionary rule is not applied to

20 In Gagnon v. Scarpelli, 411 U.S. 778 (1973), this Court held

that counsel was not constitutionally required in all revocation

proceedings, while noting that the state had to determine

whether counsel was required in that case because of a claim

that a confession introduced was involuntary and false. /d., 411

U.S. at 791. Whether counsel would be necessary to aid in

pressing a Fourth Amendment claim is not an issue in this case,

and is unlikely to arise in the future. Most jurisdictions, like

Pennsylvania, now provide for representation by counsel at

parole and probation revocation proceedings. Neil P. Cohen &

James J. Gobert, The Law Of Probation And Parole §91.8 at 451

(1983) and 347-49 (Supp. 1997).

deter unconstitutional searches.?! The rule is calculated to

prevent, not to repair. Its purpose is to deter — to compel

respect for the constitutional guaranty in the only effec-

tive available way - by removing the incentive to disre-

gard it.” United States v. Calandra, 414 U.S. 338, 347 (1974)

(quoting Elkins v. United States, 364 U.S. 206, 217 (1960)).

There are no alternative remedies meaningfully avail-

able to deter parole agents from conducting unconstitu-

tional searches. Significantly, the Board does not claim

that there are any other remedies that will deter uncon-

stitutional conduct, and none of the amici cite any

instances where a parole agent has been sanctioned for

violating the Fourth Amendment rights of a parolee. In

Pennsylvania, parole agents, as a matter of Pennsylvania

law, have absolute tort immunity for their actions in

searching and arresting parolees, even when they violate

rights intentionally.22 See and compare INS v. Lopez-

21 In the past, this Court has considered probationers and

parolees in the same manner in assessing their rights. Gagnon v.

Scarpelli, 411 U.S. 778, 782 (1973). 3.8 million adults are on

probation and parole in the United States. U.S. Dept. of Justice,

Bureau of Justice Statistics, Correctional Population in the United

States, 1995 iii (1997). “[T]he number of individuals affected

may be considered when weighing the costs and benefits . . . of

applying the exclusionary rule...” Illinois v. Krull, 480 U.S. 340,

353 (1987).

22 LaFrankie v. Miklich, 618 A.2d 1145, 1148-49 (Pa. Commw.

Ct. 1992). Under 42 U.S.C. §1983, courts have held that because

parole officers perform similar law enforcement functions when

they arrest and search, they have the same qualified immunity as

police officers. E.g., Mee v. Ortega, 967 F.2d 423 (10th Cir. 1992).

“[T]he qualified immunity defense . . . provides ample protection

to all but the plainly incompetent or those who knowingly violate

the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

Mendoza, 468 U.S. 1032, 1044 (1984) (deterrence value of

exclusionary rule in deportation proceedings is reduced

because “the INS has its own comprehensive scheme for

deterring Fourth Amendment violations by its officers.”)

The application of the exclusionary rule to police

searches and criminal trials has played a vital role in

advancing the teaching of police officers in Fourth

Amendment limits on their powers and in training them

to respect those limits.2> The rule is necessary in the

parole context as well. The parole officer who testified

concerning the search of Scott’s home “perceived that he

had boundless authority to conduct a search of the resi-

dence.” Pet. App. 30a. Of course, as a practical matter he

does if there is no exclusionary rule in parole revocation

proceedings. Operation of the exclusionary rule may be

even more important here than for police actions because

the Fourth Amendment often requires police to obtain

judicial authorization before they conduct the search.

Since Griffin v. Wisconsin, supra, requires reasonable sus-

picion, and no warrant for the search of a parolee’s home,

there will be no neutral oversight of parole officer

searches of parolees’ homes either before or after the fact

without application of the exclusionary rule to parole

revocation proceedings. Griffin will be a dead letter

unless the exclusionary remedy is available.

23 See, e.g., United States v. Leon, 468 U.S. 897, 919 n.20 (1984)

(quoting Jerold Israel, Criminal Procedure, The Burger Court, and

the Legacy of the Warren Court, 75 Mich. L. Rev. 1319, 1412 n.14

(1977); Elkins v. United States, 364 U.S. 206, 220-21 (1960); Yale

Kamisar, A Defense of the Exclusionary Rule, 15 Crim. L. Bull. 5,

10-12 (1979).

The Pennsylvania Supreme Court was right:

“Under these circumstances, when there is no

reasonable suspicion of a parole violation, there

is a need to apply the exclusionary rule to the

revocation process since otherwise there is noth-

ing to deter a parole agent from conducting an

illegal search or engaging in other illegal activ-

ity to obtain evidence. The parole agent could

establish a parole violation by means of illegally

obtained evidence in a proceeding which places

a minimal burden of proof upon the Common-

wealth, and the same result would be achieved

as if the parolee was criminally tried - the

parolee would be incarcerated. In this limited

instance, the deterrent effect to be gained

through application of the exclusionary rule in

parole revocation hearings substantially out-

weighs the potential injury to the functioning of

the revocation proceedings.

Pet. App. 15a-16a (footnote omitted).

This Court should affirm the Pennsylvania Supreme

Court order in this case, applying the exclusionary rule

and suppressing the fruits of an unconstitutional parole

agent search at a parole revocation hearing.?4

24 Because this case does not involve a police search there is

no need to reach the issue of whether and under what

circumstances the exclusionary rule should apply to such

searches at revocation proceedings. If the Court nevertheless

addresses the question, it should hold that the exclusionary rule

applies to police officers as well.

While the deterrent effect is particularly strong when the

officer knows that the target of the search is on probation or

CONCLUSION

The judgment of the Pennsylvania Supreme Court

should be affirmed.

Respectfully submitted,

LEONARD N. Sosnov, Esq.

(Counsel of Record)

Davip Rupovsky, Esq.

210 E. Willow Grove Avenue

Philadelphia, PA 19118

(215) 242-5940

February, 1998

parole, police are generally well aware whenever a search is

conducted that millions of individuals are on probation and

parole and that revocation, with its lower standard of proof,

often provides an easier prosecutorial alternative than a

criminal trial for incarcerating someone. See, e.g., United States v.

Workman, 585 F.2d 1205, 1211 (4th Cir. 1978) (holding

exclusionary rule applies to revocation proceedings); United

States v. Bazzano, 712 F.2d 826, 847-48 (3d Cir. 1982) (en banc)

(dissenting opinion), cert. denied, sub nom. Mollica v. United

States, 465 U.S. 1078 (1984). “There is considerable force to the

argument now accepted by some courts, that revocation of

conditional release 1s a sufficiently common consequence of a

policeman’s activities that a broader use of the exclusionary rule

is warranted.” 1 Wayne R. LaFave, Search and Seizure: A Treatise

on the Fourth Amendment §1.6(g) at 81-82 (3d Ed. 1996). See also

Honorable Brian L. Crowe, The Exclusionary Rule in Probation

Revocation Proceedings, 13 Loy. U. Chi. L.J. 373, 390-93 (1982).

Further, given the substantial need to apply the exclusionary

rule to parole agents at revocation proceedings, and the

cooperation which frequently occurs between parole officers and

police, one rule is beneficial to take away any “inducement to

subterfuge and evasion.” Elkins v. United States, 364 U.S. 206, 222

(1960) (holding that evidence unconstitutionally seized by state

officers is subject to exclusionary rule in federal criminal trials to

the same extent as searches by federal agents).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.