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

97-581

| »* Sepreme Court, U.S.

EIiEED

VAN 9 199

No. 97-851

CLER

In The anes

SUPREME COURT OF THE UNITED STATES

October Term 1997

PENNSYLVANIA BOARD OF

PROBATION AND PAROLE,

Petitioner,

Be

KEITH M. SCOTT,

Respondent.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

BRIEF OF 33 STATES

AS AMICI CURIAE IN SUPPORT OF

PETITIONERS

BETTY D. MONTGOMERY

Attorney General

JEFFREY S. SUTTON

State Solicitor

Counsel of Record

TODD R. MARTI

Assistant Attorney General

30 East Broad Street, 17th FI.

Columbus, Ohio 43215-3428

(614) 466-8980

Counsel for Amici States

GRANT WOODS

Attorney General

State of Arizona

M. JANE BRADY

Attorney General

State of Delaware

CHARLES F.C. RUFF

Attorney General

District of Columbia

ROBERT BUTTERWORTH

Attorney General

State of Florida

MARGERY S. BRONSTER

Attorney General

State of Hawai

ALAN G. LANCE

Attorney General

State of Idaho

JEFF MODISETT

Attorney General

State of Indiana

TOM MILLER

Attorney General

State of lowa

CARLA J. STOVALL

Attorney Genera!

State of Kansa:,

RICHARD P. IEYOUB

Attorney General

State of Louisiana

ANDREW KETTERER

Attorney General

State of Maine

J. JOSEPH CURRAN, JR.

Attorney General

State of Maryland

SCOTT HARSHBARGER

Attorney General

State of Massachusetts

,!

FRANK J. KELLEY

Attorney General

State of Michigan

HUBERT H. HUMPHREY Ill

Attorney General

State of Minnesota

MIKE MOORE

Attorney General

State of Mississippi

JOSEPH P. MAZUREK

Attorney General

State of Montana

DON STENBERG

Attorney General

State of Nebraska

FRANKIE SUE DEL PAPA

Attorney General

State of Nevada

PHILIP T. MCLAUGHLIN

Attorney General

State of New Hampshire

PETER VERNIERO

Attorney General

State of New Jersey

DENNIS C. VACCO

Attorney General

State of New York

MICHAEL F. EASLEY

Attorney General

State of North Carolina

HEIDI HEITKAMP

Attorney General

State of North Dakota

DREW EDMONDSON

Attorney General

State of Oklahoma

HARDY MYERS

Attorney Genera,

State of Oregon

JEFFREY B. PINE

Attorney General

State of Rhode Island

MARK BARNETT

Attorney General

State of South Dakota

JOHN KNOX WALKUP

Attorney General

State of Tennessee

JAN GRAHAM

Attorney General

State of Utah

WALLACE J. MALLEY

Attorney General

State of Vermont

WILLIAM U. HILL

Attorney General

State of Wyoming

i

QUESTIONS PRESENTED

(1) 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 parole?

(2) Whether the exclusionary rule applies to

parole revocation proceedings?

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........---+5e55: i

TABLE OF AUTHORITIES ...........5545:5 iv

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

SUMMARY OF ARGUMENT ...........5565:5 4

ARETE oct ckevbccsearesasunceess as 7

I. Searches Of A Parolee’s Residence Need

Not Be Based On Reasonable Suspicion

When The Parolee Has Consented To Them

As A Condition Of Early Release .......... 7

A. States May Condition The Allocation Of

Discretionary Government Benefits On The

Waiver Of Fourth Amendment Rights ....... 8

B. Pennsylvania Acted Well Within These

Requirements In Conditioning Mr. Scott's

Parole On Consent To Future Searches Of His

Residence By Parole Officers ........... 12

l The Nature Of The Lower

Comt DURE cw ccc cc ccc eeeses 12

2 No Independent And Adequate

State Ground Exists ............+-. 14

3. The Lower Court Erred .......... 15

Il. The Exclusionary Rule Does Not Apply To --

And Should Not Be Expanded To Apply To --

Probation and Parole Revocation

PS ay ae ne ee ee 19

A. The Court Has Applied The Exclusionary

Rule Only In The Context Of The Criminal

Trial And Direct Review .............. 19

B. The Exclusionary Rule Should Not Be

~ Extended To Parole Revocation Proceedings .. 21

A Nor Should The Exclusionary Rule Apply

When The Officer Knows That The Resident

EE Le See 25

SPREE. “0d Hdd 0-0 0.6 6. cmncibis owls 27

iv

TABLE OF AUTHORITIES

Cases Page

Agostini v. Felton,

jy it.) 7) . ee 23

Bordenkircher v. Hayes,

RUE ® 7) eee ee 11,16

Camara v. Municipal Court,

SBP UB. SAD (IGS) 0 ww ccc cece vecces 6,18

Chaffin v. Stynchombe,

ep 8 ee. Sree ee 11,16

Gagnon v. Scarpelli,

621 U.S. TIO CIGTD) 2 www cece cree scces 21

Greenholtz v. Inmates of Nebraska Penal and

Correctional Complex,

£ 5 SS EPP reurLeRLaeEe 1,15

Griffin v. Wisconsin,

483 U.S. 868 (1987)... 2... ee eee 1,16,18

Immigration and Naturalization Service v. Lopez-Mendoza,

468 U.S. 1652 (19BG) 0. we cece ccc esens 20

Linkletter v. Walker,

5381 U.S. GIB (19GS) 2. wee ees ecvvees 20

Mapp v. Ohio,

567 UB. G43 (IGGE) 0 ww ce cee evens 20,21,22

Morrisey v. Brewer,

408 U.S. 47U CIDTE) 0 ww cc tcc cc evcens 2,22

National Treasury Employee Union v. Von Raab,

489 U.S. 656 (1989) 2... ee 6,18

Oklahoma v. United States Civil Service Commission,

590 UB. 120 CIBST) ow wc cc ce wee sevens 11

Owens v. Kelly,

681 F.2d 1362 (1ith Cir, 1982) .......... 4

Vv

Skinner v. Railway Labor Executives Assoc. ,

Ad OE 18

South Dakota v. Dole,

EE ll

State v. Marquart,

945 P.2d 1027 (N.M. App. 1997)......... 23

State ex rel. Juvenile Dept. of Multnomah

County v. Rogers,

Sue a NUE s Secu cod ecees 23

State v. Lapman,

724 P.2d 1092 (Wash. App. 1986) ........ 23

Stone v. Powell,

428 U.S. 465 (1976) .......... 6,19,20,21,22

United States v. Calandra,

EID 6. 6 dpe U4. cee'stwelee'e 20

United States v. Janis,

428 U.S. 433 (1976)... ww eek 7,21,23,24

United States v. Leon,

rere 19

Veronia School District v. Acton,

11S S.Ct. 2386 (1995S)... ... ce eae 6,18,19

Walder v. United States,

Ee ne ee 20

Weeks v. United States,

232 U.S. 383 (1914) ....... Dai bd, dhe wales 19

Wyman v. James,

LE es re 5,10

Zap v. United States,

Bee Oe Ge CN ie ks vee hes wee’ 5,9,18

14

to be expanded, a person in Scott’s position might argue that the

bargain violated the doctrine as it required him to give up his

right to be free fiom “unreasonable searches and seizures” in

order to receive parole. Application of this doctrine would

question the validity of the bargain struck between Scott and the

probation board.

Amicus submits that this is a difficult, potentially dangerous

doctrine that should be confined to the First Amendment.

Expansion of this doctrine to the Fourth Amendment would

only serve to disrupt established precedent and in the end would

strip individuals of the benefit of their bargains. Confining the

doctrine to its First Amendment roots, will prevent this disrup-

tive result.’

A. First Amendment Roots.

In Perry v. Sindermann, 408 U. S. 593 (1972), this Court

formulated a dictum that should not be allowed to govern the

present case. The Perry Court was confronted with a claim by

a nontenured junior college teacher that his contract was not

renewed because he publicly criticized his superiors. This

failure to renew was claimed to violate his First Amendment

rights. /d., at 595.

In holding that Sindermann’s lack of tenure did not bar his

First Amendment claim, the Perry Court made the following

pronouncement:

“For at least a quarter-century, this Court has made clear

that even though a person has no ‘right’ to a valuable

governmental benefit and even though the government may

deny him the benefit for any number of reasons, there are

some reasons upon which the government may not rely. It

may not deny a benefit to a person on a basis that infringes

3. This issue has not arisen in the briefing up to this point. Amicus CJLF is raising

the question and answering it preemptively, because it appears to be the only

colorable argument against the validity of the consent and because amici are not

permitted to file reply briefs. See Supreme Court Rule 37.3(a).

15

his constitutionally protected interests—especially, his

interest in freedom of speech.” Jd., at 597.

To the extent that it goes beyond the First Amendment, this

statement is dictum. Perry was a First Amendment case.

Whether the unconstitutional conditions benefits doctrine

applied beyond the First Amendment was not an issue. As the

present case does not involve an attempt by the government to

purchase an individual’s First Amendment rights, Perry and its

ilk do not apply.

The limit of this dictum is seen in Perry itself. Perry was

a First Amendment case dealing with an alleged denial of

employment because of the employee’s exercise of his free

speech rights. As the Perry Court recognized, the First Amend-

ment was at the heart of the denial of government benefits

doctrine. Thus, the Perry doctrine was “especially” concerned

with protecting the employee’s “interest in freedom of speech.”

Ibid.

The First Amendment limits of Perry are further reinforced

by the authorities it cites. None of the authorities cited by Perry

involved denying a government benefit for the exercise of a

right outside the First Amendment. Several cases cited by

Perry did not involve conditioning benefits on giving up some

other right, but instead involved denials of benefits that were

directly challenged as unconstitutional. See Shapiro v. Thomp-

son, 394 U. S. 618, 627 (1969) (one-year residence requirement

for welfare payments violates equal protection); Graham v.

Richardson, 403 U. S. 365, 376 (1971) (denial of welfare to

aliens violates equal protection); Cafeteria Workers v. McElroy,

367 U. S. 886, 894 (1961) (denial of cook’s access to military

installation did not violate due process). Other cases cited by

Perry involved loyalty oaths. Some invoked the First Amend-

ment and others the due process “vagueness” doctrine, but all

involved a severe impact on speech or association. See White-

hill v. Elkins, 389 U. 8. 54, 59-62 (1967); Baggett v. Bullitt,

377 U. S. 360, 372 (1964); Cramp v. Board of Public Instruc-

tion, 368 U. S. 278, 287-288 (1961); Speiser v. Randall, 357

16

U. S. 513, 529 (1958); Wieman v. Updegraff, 344 U. S. 183,

185-186, 191-192 (1952). The other cases involved a variety of

First Amendment issues. See Pickering v. Board of Education,

391 U.S. 563, 574-575 (1968) (speech); United States v. Robel,

389 U. S. 258, 266-268 (1967) (association); Keyishian v.

Board of Regents, 385 U. S. 589, 608-609 (1967) (association);

Elfbrandt v. Russell, 384 U. S. 11, 16 (1966) (association);

Sherbert v. Verner, 374 U. S. 398, 405-406 (1963) (free

exercise of religion); Torcaso v. Watkins, 367 U. S. 488, 494-

496 (1961) (establishment of religion); Shelton v. Tucker, 364

U. S. 479, 490 (1960) (association); United Public Workers v.

Mitchell, 330 U. S. 75, 100 (1947) (partisan speech and

association). See Perry, supra, 408 U. S., at 597. Perry had no

support to extend its reach beyond the First Amendment. “It is

to the holdings of our cases, rather than their dicta, that we must

attend... .” Kokkonen v. Guardian Life Ins., 511 U.S. 375,

379 (1994).

Other decisions reinforce the First Amendment limits on

Perry. Although this Court made a similarly expansive

statement in Regan v. Taxation With Representation of Wash.,

461 U. S. 540 (1983),* the only authority it cites to support this

claim is Perry, a First Amendment case. See id., at 545.

Furthermore, Taxation With Representation is itself a First

Amendment case. See ibid. Any implication that Perry extends

beyond the First Amendment is dictum.

Other decisions demonstrate the First Amendment limits of

Perry more directly. In Connick v. Myers, 461 U. S. 138

(1983), this Court traced the development of the rights of public

employees. It noted that initially, “the unchallenged dogma was

that a public employee had no right to object to conditions

placed upon the terms of employment—including those which

restricted the exercise of constitutional rights.” /d., at 143. The

Connick Court then traced the history of the public employee

4. “{T]he government may not deny a benefit to a person because he exercises a

constitutional right.” 461 U. S., at 545.

EA ei A Ce lane

17

rights cases, see id., at 144, and came to the following conclu-

sion. “In all of these cases, the precedents in which Pickering

[v. Board of Education, 391 U. S. 563 (1968)] is rooted, the

invalidated statutes and actions sought to suppress the rights of

public employees fo participate in public affairs.” 461 U. S., at

144-145 (emphasis added). Perry, one of Pickering’s “prog-

eny,” id., at 143, and n. 4, stands for the principle that “a State

cannot condition public employment on a basis that infringes

the employee’s constitutionally protected interest in freedom of

expression.” /d., at 142. This is the proper limit of Perry.

More recent pronouncements from this Court have also

recognized that the unconstitutional conditions doctrine is an

aspect of the First Amendment. “{[O]ur modern ‘unconstitu-

tional conditions’ doctrine holds that the government ‘may not

deny a benefit to a person on a basis that infringes on his

constitutionally protected . . . freedom of speech... .’” Board

of County Commissioners v. Umbehr, 518 U.S. ___, 135

L. Ed. 2d 843, 851, 116 S. Ct. 2342, 2347 (1996) (quoting

Perry, supra, 408 U. S., at 597). Recognizing that the primary

purpose of the government employee cases was the protection

of a core First Amendment right, “speech on matters of public

concern,” Connick, supra, 461 U. S., at 145, the limits of Perry

are not beyond, but are instead within, the First Amendment.

There are good reasons for these limits. Many constitu-

tional rights outside the First Amendment have been waived in

exchange for government benefits. It thus would be impractical

and dangerous to now endanger these agreements. So long as

it does not suppress ideas, the government may place conditions

on “benefits.”

“Pickering, its antecedents, and its progeny lead us to

conclude that if Myers’ questionnaire cannot be fairly

characterized as constituting speech on a matter of public

concern, it is unnecessary for us to scrutinize the reasons for

her discharge. When employee expression cannot be fairly

considered as relating to any matter of political, social, or

other concern to the community, government officials

18

should enjoy wide latitude in managing their offices,

without intrusive oversight by the judiciary in the name of

the First Amendment.” /d., at 146 (emphasis added,

footnote omitted).

The Fourth Amendment protections do not deal with the

suppression of ideas and therefore should not be subject to the

Perry dictum. Whatever may be the actual scope of Perry, “its

antecedents, and its progeny,” the doctrine of these decisions

does not apply to the present case.

B. The Detrimental Effect on the Bargaining Process.

As the plea bargain is an essential tool of the criminal

justice system, see ante, at 12-13, so too is consent. Extension

of the unconstitutional conditions doctrine would strip our

probation and parole systems of this essential tool. Limiting the

doctrine to its First Amendment roots will prevent this result

and allow the bargaining process to achieve its important goals.

The bargaining process can serve essential functions. See

ante, at 11-13. In Ruckelshaus, for example, the Environmental

Protection Agency gained an important tool that helped monitor

the pesticide industry in exchange for the economic advantages

associated with registration with the agency. Ruckelshaus v.

Monsanto, 467 U. S. 986, 1007 (1984). The unconstitutional

conditions doctrine was not permitted to disturb this mutually

beneficial bargain or the ones seen in Bordenkircher and Zap.

See ante, at 11-13. Limiting the doctrine to the First Amend-

ment helps explain why this Court has upheld such constitu-

tional bargaining when First Amendment rights are not in-

volved.

Furthermore, as Justice Holmes noted in his Western Union

dissent, the doctrine has logical difficulties. Western Union

Tel. Co. v. Kansas, 216 U. S. 1, 53 (1910). Justice Holmes

explained that “[e]ven in the law the whole generally includes

its parts. If the state may prohibit, it may prohibit with the

privilege of avoiding the prohibition in a certain way.” bid. So

long as the decision to accept the benefit is voluntary, then an

19

individual should be able to consent to foregoing a constitu-

tional right in exchange for some government benefit.

If the government is not allowed to condition a benefit, it

may withdraw or modify the benefit to the detriment of both the

government and the beneficiary. There is already widespread

public dissatisfaction with parole and pressure to reduce or

eliminate it. See, e.g., Fisher, Changing Pennsylvania’s

Sentencing Philosophy Through the Elimination of Parole for

Violent Offenders, 5 Widener J. Pub. L. 269, 294-295 (1996)

(proposal to eliminate parole for violent offenders). Limitation

on the ability to search parolees and the consequent reduction

in public safety can only add to this pressure. In turn, the

government and society would be disadvantaged as our prison

system would see increased burdens.

In 1994, 690,159 people were on parole and 2,964,171 were

on probation. U.S. Bureau of Justice Statistics, Sourcebook of

Criminal Justice Statistics—1995, p. 540 (1996). The loss of

this bargaining process would clearly have an enormous effect

on our correctional institutions as the government, in light of

this public dissatisfaction, may limit the number of grants of

parole and probation. Like the required submission of data in

Ruckelshaus, warrantless consent searches help monitor those

in our parole and probation systems. Supervision of these

individuals is an important duty of our probation and parole

boards, especially, in light of the research, recognized by this

Court, which “suggests that more intensive supervision can

reduce recidivism.” Griffin v. Wisconsin, 483 U.S. 868, 875

(1987) (citing Petersilia, Probation and Felony Offenders, 49

Fed. Probation 9 (June 1985)). Without the tools that aid our

probation and parole boards in their supervisory tasks, the

bargaining process ends. Not only will the government lose the

benefits of these types of bargains, the eligible inmates will also

lose the benefit of living outside prison walls until their

sentences: expire. The extension of the unconstitutional

conditions doctrine will quite literally “imprison a man in his

privileges and call it the Constitution.” See Adams v. United

States ex rel. McCann, 317 U. S. 269, 280 (1942). Limiting the

20

doctrine is the only way to prevent this detrimental effect on the

bargaining process and truly uphold our Constitution. The

unconstitutional conditions doctrine should not apply to this

case. The consent is voluntary. That is enough, by itself, to

make the search reasonable within the meaning of the Fourth

Amendment.

CONCLUSION

The decision of the Pennsylvania Supreme Court should be

reversed.

January, 1998

Respectfully submitted,

KENT S. SCHEIDEGGER*

CHRISTINE M. MURPHY

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

*Attorney of Record

a

Other Authorities Page

American Correctional Association: Standards for Adult

Probation and Parole Field Services,

(2d ed, 1981, supplemented 1996) ....... 3,23

American Probation and Parole Association: Code of

Pr ere ee ee ee 24

T. Bonczar,

Special Report: Characteristics of

Adults on Probation, Dec. 1997, ........ 2,21

M. Bork,

Five Year Review of United States Probation Data,

1990-1994 Federal Probation, Dec. 1995 ..... 2

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

Correctional Populations in the United States,

SEED, SP TY 66 Cea Sees eee 2,21

Criminal Justice Institute, Inc.

The Corrections Yearbook (1988) .......... 2

Criminal Justice Institute, Inc.

The Corrections Yearbook (1997) .......... 3

J. Denzlinger & D. Miller,

The Federal Probation Officer: Life

Before and After Guideline Sentencing

Federal Probation, Dec. 1991 ........... 2

J. Gobert & N. Cohen,

The Law of Probation and Parole (1983) ... 1,4

R. Lawrence,

Professionals or Judicial Civil Servants,

Federal Probation, Sept. 1994 ............ 3

C. Lindner & R. Bonn,

Probation Officer Victimization and

Field Work Practice: Results of a

National Study, Federal Probation,

DI Ge bc oa bie 6 ae 6 G6 as oes 2

vii

C. McCoy,

The Impact of Section 1983 Litigation on

Policy MakingIn Corrections, Federal

eS MR EE Vg wo Uw 6 a ae do 0 ce o's 23

National Institute of Corrections, U.S. Dept. Of Justice

Status Report on Parole, 1995: Results of

An NIC Survey, Nov. 1995

J. Petersilia,

When Probation Becomes More Dreaded

Than Prison, Federal Probation, March 1990 . . 16

R. Prus & J. Stratton,

Parole Revocation Decisionmaking:

Private Typings and Official Designations,

Federal Probation, March 1976 ........ 23,24

STATEMENT OF AMICI INTEREST

Ohio and 32 other States write to urge the Court to

reverse the decision below and to explain why this case

matters not just to Pennsylvania but to her sister States as

well.

At stake are two principles of law: (1) whether law

enforcement officers need reasonable suspicion to search the

residence of a parolee or probationer who has consented to

future searches as a condition of early release, and (2)

whether in the alternative the exclusionary rule should be

extended to parole revocation proceedings. On both points,

the States have significant reliance interests. They have long

conditioned the early release of prisoners on the waiver of

Fourth Amendment rights, and few (if any) State courts have

customarily extended the exclusionary rule to parole

revocation proceedings.

The States have a considerable interest in the efficient

operation of their probation and parole systems. The

availability of parole provides a useful tool for rehabilitating

certain offenders and for preserving scarce prison space for

other offenders who for one reason or another continue to

pose a danger to the public. All 50 States and the federal

government have some form of early release program. And

approximately three-quarters of all adult offenders participate

in some form of conditional release while serving a criminal

sentence. J. Gobert & N. Cohen: The Law of Probation

and Parole, § 1.01 (1983).

Parole programs also present unique administrative

challenges. Officials must make inherently difficult

decisions, balancing the prospect that the rehabilitation of

offenders will be furthered by supervised release against the

risk that they could exploit their freedom to break the law

again. Greenholtz v. Inmates of Nebraska Penal and

Correctional Complex, 422 U.S. 1, 8-9 (1979). See also

2

Griffin v. Wisconsin, 483 U.S. 868, 873-875 (1987);

Morrisey v. Brewer, 408 U.S. 471, 483-484 (1972).

Making these decisions more difficult still is the

frequency with which they must be made. The number of

probationers and parolees has increased by more than two-

thirds since 1987, from 1,798,390 to 2,999,287. Asa result,

the average case load of probation officers has risen from

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

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

growth. Criminal Justice Institute, Inc.: The Corrections

Yearbook (1988), 68, 69, 72, 73; The Corrections Yearbook

(1997), 140-141,148.

These same officials also have been asked to

supervise an increasingly difficult group of criminals. Due

in large part to increasingly overcrowded prisons, the

percentage of felons in early-release programs has increased

from approximately 10% in the 1950’s to almost 60% today.

C. Lindner & R. Bonn, Probation Officer Victimization and

Field Work Practice: Results of a National Study, Federal

Probation, June 1996, 16; Bureau of Justice Statistics, U.S.

Dep’t of Justice, [. Bonczar, Characteristics of Adults on

Probation, Dec. 1997, 1, 3. Plus, more and more offenders

with drug abuse, mental health needs and other problems are

being given early release, many of whom require significant

resources to supervise. Lindner & Bonn, supra; M. Bork,

Five Year Review of United States Probation Data, 1990-

1994, Federal Probation, December 1995, 27, 29; Bonczar,

supra at 2; Lindner, supra at 17; J. Denzlinger & D. Miller,

The Federal Probation Officer: Life Before and After

Guideline Sentencing, Federal Probation, Dec. 1991, 49.

Probation and parole agencies have tried to meet these

challenges in a variety of ways. As an initial matter, they

have increased standards of professionalism. Accrediting

3

requirements and codes of ethics have been established at the

same time that educational prerequisites and in-service

training have been increased. R. Lawrence, Professionals or

Judicial Civil Servants, Federal Probation, Sept. 1994, 14;

American Correctional Association: Standards for Adult

Probation and Parole Field Services, (2d ed, 1981,

supplemented 1996). For example, a four-year degree is

now a minimum requirement for probation and parole

officers and many agencies require a Master’s Degree. R.

Lawrence, supra, at 14. States also require an average of

234 hours of specialized training before a new officer can

undertake his or her duties and an average of 41 hours of

continuing education each year thereafter. Criminal Justice

Institute: The Corrections Yearbook 1997, 177. These

standards have become so well established as to be a

requirement for accreditation. Standards for Adult

Probation, Nos. 2-3041, 2-3060, 2-3060-1, 2-3065, 2-3069,

2-3070.

Notwithstanding these innovations, the most important

tools for meeting these diverse challenges continue to be

active oversight of offenders’ adjustment to release. Only by

following a convict’s activities outside the prison can the

caseworker ensure that the premise of early release -- that the

offender no longer poses a threat to public safety -- remains

warranted. As one leading commentator on the subject has

explained:

To fulfill these functions, the parole or

probation officer needs considerable

investigative leeway. While some information

can be garnered from discussions with the

offender and the offender’s friends, associates,

employees, and relatives, other data regarding

the person’s home life and behavior may not

be available from these sources. Investigation

4

of the offender’s home, possessions, and body

may also be required. In such situations,

parole and probation officers believe that they

need to be able to make unannounced home

visits and searches. Often this authority is

expressly written into the conditions of

release. Even absent a search condition, the

nature of the caseworker-offender relationship,

and the reduced expectation of privacy which

comes from being a probationer or parolee,

may implicitly permit such searches. In any

event, many parole and probation officers

think these searches are necessary and often

exercise their prerogative to conduct searches.

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

footnotes omitted).

Authority to conduct such searches, in the aftermath

of consent given to make them as a condition of early

release, has long been allowed under lower court decisions

construing the Fourth Amendment. And, to our knowledge,

most States follow the practice of requiring consents to

search before offering early release. See S. Kneafsey, The

Fourth Amendment Rights of Probationers: What Remains

Afier Waiving Their Right To Be Free From Unreasonable

Searches and Seizures? 35 Santa Clara. L. Rev. 1237, 1249

(1995); see also Owens v. Kelly 681 F.2d 1362, 1366-1369

(11th Cir. 1982) (collecting cases).

SUMMARY OF ARGUMENT

In suppressing evidence of a parole violation

committed by Mr. Scott, the Pennsylvania Supreme Court

erred in two respects. It found that the parole officers

5

needed reasonable suspicion to search his residence when

Mr. Scott had previously consented to such searches as a

condition of obtaining a discretionary early release. And it

compounded the error by extending the exclusionary rule to

the administrative setting of parole (and presumably

probation) revocation proceedings.

1. The lower court’s first conclusion does not rest

on an independent and adequate State ground. While some

ambiguity exists concerning the State or federal root of the

Pennsylvania Supreme Court’s analysis -- did the lower court

mean to construe the effect of the waiver as a matter of State

law or Fourth Amendment law? -- the court nowhere

provides the requisite clear statement needed to insulate this

component of the decision from federal review. See

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

The States do not violate -- indeed, they respect -- the

Fourth Amendment’s prohibition against “unreasonable

searches and seizures” when they obtain consent to search an

individual’s residence. They may obtain such consents on a

case-by-case basis, see Schneckloth v. Bustamonte, 412 U.S.

218 (1972); and they may do so globally, see Wyman v.

James, 400 U.S. 309 (1971), Zap v. United States, 328 U.S.

624 (1946), vacated on other grounds, 330 U.S. 800 (1947).

And, above all, they may do so in return for extending a

discretionary governmental benefit to which future searches

are reasonably related. See, e.g., Wyman; Zap. So long as

government does not put the individual in a position in which

“one constitutional right should have to be surrendered in

order to assert another,” Simmons v. United States, 390 U.S.

377 (1968), so long in other words as the government does

not bend the will of the individual, see Schneckloth, it may

permissibly extend discretionary benefits on a conditional

basis.

6

Pennsylvania acted well within these restrictions here.

At the time Mr Scott signed the consent form to future

searches of his residence by parole officials, he was being

extended an opportunity to leave a setting in which random

searches are already permitted, waiver or not. See Hudson

v. Palmer, 468 U.S. 517, 529 (1984). Plainly, the consent

requirement was reasonable, and the bargain legitimate. The

whole point of carefully monitoring those who have not yet

served out the full term of their sentence is to ensure that the

premise of early release -- that the offender has proceeded

far enough down the path of rehabilitations as no longer to

pose a threat to public safety -- remains warranted. The

State merely placed an eminently sensible restriction on the

terms of Mr. Scott's release, one that it was no less entitled

to impose than he was entitled to reject. If there is doubt

here, it is whether Pennsylvania overprotected Mr. Scott's

rights, not whether it violated them. Under a series of

decisions that arise in administrative settings that like this

one implicate a host of public safety concerns, it would seem

that Pennsylvania had every right to engage in this type of

limited search of the residence of their parolees with or

without their consent. See Veronia School Dist. 47/ vy.

Alton, 115 S. Ct. 2386 (1995); National Treasury Employee

Union v. Von Raab, 489 U.S. 656 (1989); Camara y.

Municipal Court, 387 U.S. 523 (1967). Yet the Court need

not reach that broader issue since Pennsylvania in fact

obtainea Mr. Scott's consent.

2. Even if the Pennsylvania Supreme Court correctly

found a Fourth Amendment violation, it erred in extending

the exclusionary rule to the administrative setting of a parole

revocation hearing. The “pragmatic” explanation for

imposing an exclusionary rule in criminal trials, primarily the

goal of deterrence, Stone v. Powell, 428 U.S. 465, 488

(1976), does not carry over to the rehabilitative and public-

safety considerations that dominate a State’s complex

7

determinatiea whether to allow a law breaker to leave prison

early. The Court has never extended the exclusionary rule

beyond the criminal trial (and direct appeal), and in point of

fact has rejected requests to extend the rule to grand jury

proceedings, the impeachment of criminal defendants,

administrative proceedings, civ’’ ;« »ceedings commenced by

another sovereign, and habeas review of State-court criminal

convictions.

The rule is a “grudgingly taken medicant” of which

“no more should be swallowed than is needed.” United

States v. Janis, 428 U.S. 433, 454 0.29. And no such

medicine is needed here. The exclusion of evidence used to

show whether the hopeful assumptions about Mr. Scott's

rehabilitation remain true (they do not, it turns out) have no

meaningful parallel to the question whether wrongfully-

obtained evidence may be used to convict an individual in the

first instance. It is one thing to use such evidence to

overcome the presumption of a citizen's innocence. Yet it is

quite another to use it to determine whether the presumptive

public-safety risk of allowing a convict’s early release

continues to be worth taking.

ARGUMENT

l. Searches Of A Parolee’s Residence Need

Not Be Based On Reasonable Suspicion

When The Parolee Has Consented To Them

As A Condition Of Early Release.

As incorporated through the Fourteenth Amendment,

the Fourth Amendment imposes the following limitation on

State law enforcement: “The right of the people to be secure

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

unreasonable searches and seizures, shall not be violated, and

no Warrants shall issue, but upon probable cause, supported

by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.” In

placing this limitation on the States’ efforts to enforce their

criminal laws, the provision does not prevent citizens from

consenting on a case-by-case basis to searches of their

residence or from consenting globally to all searches of their

residence. A contrary view misapprehends the nature of the

individual rights created by the Fourth Amendment.

A. States May Condition The

Allocation Of Discretionary

Government Benefits On The

Waiver Of Fourth

Amendment Rights.

The Constitution nowhere prohibits States from

placing conditions on the receipt of government benefits, and

nowhere prohibits government from requiring individuals to

waive constitutional rights in order to receive those benefits.

Because “not every burden on the exercise of a constitutional

right, and not every pressure or encouragement to waive

such a right, is invalid,” Corbitt v. New Jersey, 439 U.S.

212, 218 (1978), the Constitution only prohibits the States

from directly violating those rights or indirectly doing so by

placing improper sanctions on those who exercise them.

By its terms the Fourth Amendment empowers

individuals, not society at large. See Alderman v. United

States, 394 U.S. 165, 174 (1969). It thus gives citizens the

right freely to protest government searches as well as the

right freely to authorize them. The guiding principle is a

libertarian one -- that the individual’s consent must be

voluntary, not coerced by illicit governmental pressure or

a See Schneckloth v. Bustamonte, 412 U.S. 218, 227

9

Several decisions of the Court define the contours of

government procedures that improperly induce the waiver of

criminal procedure rights and those that do not, all in the

context of consents obtained in return for government

benefits. At one extreme lies Simmons v. United States, 390

U.S. 377 (1968). After being arrested for trying to rob a

local bank, the defendant moved to suppress evidence of the

contents of a suitcase found at the scene of the crime. In

order to do so under then-existing law, the defendant had to

admit ownership of the suitcase. See Jones v. United States,

362 U.S. 257 (1960), over’d in part, Rakas v. Illinois, 439

U.S. 128 (1978), over’d in part, United States v. Salvucci,

448 U.S. 83, 84 (1980). This requirement created a

“dilemma” for the individual because the government

intended to use all pertinent suppression testimony against

him at trial. 390 U.S. at 391. Reasoning that a “defendant

who wishes to establish standing [to invoke his Fourth

Amendment rights] must do so at the risk that the words

which he utters may later be used to incriminate him,” id. at

393, the Court found “it intolerable that one constitutional

right should have to be surrendered in order to assert

another,” id. at 394. Far from allowing the individual freely

to decide when to waive his Fourth (or Fifth) Amendment

rights, this tug of war between constitutional rights was

anything but voluntary. The government risks coercion,

Simmons teaches, when it forces the individual to waive one

constitutional right in order to assert another.

Other cases stem from governmental conduct that

steers clear of this type of coercion. At issue in Zap v.

United States, 328 U.S. 624 (1946), vacated on other

grounds, 330 U.S. 800 (1947), was whether the United

States could condition the receipt of a contract on consent to

future searches. In accepting a contract to conduct test

flights, the defendant agreed that the “‘accounts and records

of the contractor shall be open at all times to the

10

Government.’” Jd. at 627 (quoting the contract). At that

time, federal law also provided that such contractors had to

submit their books to governmental searches. /d. at 626-27

&n.2. In accordance with this waiver and with the relevant

statutes, the government searched the defendant's offices and

seized an incriminating check. While there was some debate

over whether the waiver permitted the government to seize

the check, all agreed that the defendant had waived any

Fourth Amendment expectation of privacy concerning the

search. See id. at 628 (“he voluntarily waived such claim to

privacy which he otherwise might have had as respects

business documents related to those contracts”); id. at 632

(“I agree that the government had authority, as a result of its

contract with the petitioner and the relevant statutes, to

inspect the petitioner’s books and records”) (Frankfurter, J.,

dissenting, joined by Murphy, J., and Rutledge, J.). In the

end the Court upheld the warrantless and suspicionless

search.

Wyman v. Jones, 400 U.S. 309 (1971), likewise

rejected a claim that the government penalizes Fourth

Amendment rights when it conditions acceptance of Aid to

Families with Dependent Children on the recipient's

submission to warrantless and suspicionless searches.

Recognizing the individual’s initial option to accept or refuse

the benefits, the Court found no coercive action by the

government. The beneficiary remained free to choose

between forgoing benefits and preserving the privacy of her

home, or accepting the benefits and consenting to the

searches. Id. at 317-18. In contrast to the facts in Simmons,

the government had not set up one constitutional right against

another. It had merely placed a condition on a government

benefit, one that it was no less entitled to impose than the

individual was entitled to reject.

11

Outside the context of the Fourth Amendment, the

Court regularly permits individuals to waive criminal

procedure rights that the United States Constitution gives

them in return for certain government benefits. Indeed,

much of the criminal law involves instances in which the

defendant must make a difficult choice between pursuing one

line of factual development over another or advancing one

legal right over another. Yet, in case after case, the Court

has permitted individuals -- the ultimate beneficiaries of these

rights -- to bargain them away for desired government

benefits or perceived advantages. See Bordenkircher vy.

Hayes, 434 U.S. 357, 365 (1978) (the prosecutor may

present “the defendant with the unpleasant alternative of

forgoing trial or facing charges on which he was plainly

subject to prosecution”); Baxter v. Palmigiano, 425 U.S. 308

(1975) (permitting State to require inmates to choose between

(1) waiving their Fifth Amendment privilege to testify at a

disciplinary hearing or (2) remaining silent and having an

adverse inference drawn from their silence); Chaffin v.

Styncnacombe, 412 U.S. 17, 31 (1973) (prosecutor may

encourage guilty plea even though it requires waiver of jury

trial right); McGautha v. California, 402 U.S. 183, 213

(1971) (even though “a defendant may have a right, even of

constitutional dimensions, to follow whichever course he

chooses, the Constitution does not by that token always

forbid requiring him to choose. The threshold question is

whether compelling the election impairs to an appreciable

extent any of the policies behind the right involved”). See

also South Dakota v. Dole, 483 U.S. 203, 210 (1987);

Oklahoma v. United States Civil Service Commission, 330

U.S. 127, 143-144 (1947). Similar issues exist in Ohio Adult

Parole Authority v. Woodard, No. 96-1769.

As these cases make clear, the Constitution in general

and the Fourth Amendment in particular do not forbid

individuals from opting to waive constitutional rights in

12

return for government benefits. Only when the government

“*benefit to be gained is that afforded by another provision

of the Bill of Rights,” as it was in Simmons, 390 U.S. at

394, or when the government pressure rises to the level of

coercion, does a Fourth Amendment violation occur.

B. Pennsylvania Acted Well

Within These Requirements

In Conditioning Mr. Scott’s

Parole On Consent To Future

Searches Of His Residence By

Parole Officers.

Pennsylvania complied with these requirements in

full. The State’s discovery of evidence of a parole violation

during a suspicionless search of Mr. Scott’s residence

therefore should be admissible at his parole revocation

hearing.

1, The Nature Of

The Lower

Court Decision.

On April 2, 1982, Mr. Scott received a 10 to 20 year

prison term for third degree murder. After serving 10 years

of his term, the Pennsylvania Department of Corrections

released him on parole subject to several enumerated

conditions. Among other things, he signed a document

entitled “Conditions Governing Parole/Reparole,” which

provided in part:

I expressly consent to the search of my

person, property and residence, without a

warrant by agents of the Pennsylvania Board

of Probation and Parole. Any items, in [sic]

the possession of which constitutes a violation

13

of parole/reparole shall be subject to seizure,

and may be used as evidence in the parole

revocation process.

Pet. App. 2a; id. at 30a n.3.

Despite the clear language of the consent form and

despite Mr. Scott’s voluntary signature to it, the

Pennsylvania Supreme Court held that the form did not allow

parole officials to conduct a suspicionless search of his

residence. Relying on one of its earlier decisions, the court

reasoned as follows:

“(T]he parolee’s signing of a _ parole

agreement giving his parole officer permission

to conduct a warrantless search does not mean

either that the parole officer can conduct a

search at any time and for any reason or that

the parolee relinquishes his Fourth

Amendment right to be free from

unreasonable searches. Rather, the parolee’s

signature acts as acknowledgement that the

parole officer has a right to conduct

reasonable searches of his residence listed on

the parole agreement without a warrant. . . .

[A] search will be deemed reasonable if the

totality of the evidence demonstrates: (1) that

the parole officer had a reasonable suspicion

that the parolee had committed a parole

violation, and (2) that the search was

reasonably related to the parole officer’s

duty.”

Pet. App. 9a-10a (quoting Commonwealth v. Williams, 692

A.2d 1031, 1036 (1997)).

Before addressing the merits of this analysis, it bears

acknowledging a potential independent and adequate State

ground. Two plausible readings of this portion of the

decision exist. The first is that the court was construing the

language of the consent form from the perspective of its

drafters -- that as a matter of State law they meant the

condition to require only the waiver of warrantless searches,

not suspicionless ones. The second looks at the consent form

from the perspective of its reader (the parolee) -- that as a

matter of Fourth Amendment law the language of the form

waived only the right to oppose warrantless searches, not

suspicionless ones. The one reflects the meaning of the

words to the drafter; the other reflects the meaning of the

words to the individual. The former would present an

independent and adequate State ground, because the State

court retains final authority to construe the meaning of

Pennsylvania’s legislative and administrative acts. The latter

would not, because this Court has final authority to

determine when and to what extent an individual has waived

rights under the United States Constitution.

Because both readings are plausible and because the

Pennsylvania Supreme Court did not provide a clear

statement that it was independently relying on State law to

make this decision, the default rule applies. Under Michigan

v. Long, 463 U.S. 1032 (1983), the absence of clear

direction means that this component of the decision rests on

federal grounds and may be reviewed by the Court. See also

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

15

3. The Lower

Court Erred.

Turning to the merits, the lower court misconstrued

the Fourth Amendment as well as several pertinent decisions

of this Court interpreting it. States are fully permitted to

condition early release on a parolee’s consent to suspicionless

searches for purposes of ferreting out violations of State

parole requirements. Because inmates do not have a

constitutional right to avoid lawful incarceration, Greenholtz

v. Inmates of Nebraska Penal and Correctional Complex, 442

U.S. 1 (1979), conditioning early release on a waiver of

Fourth Amendment rights does not place Mr. Scott in the

“intolerable” position in which “one constitutional right

should have to be surrendered in order to assert another,”

Simmons, 390 U.S. at 394.

Recognizing the unique status of parolees, the Court

has previously acknowledged the permissibility of treating

parolees differently from other individuals.

To accomplish the purpose of parole, those

who are allowed to leave prison early are

subjected to specified conditions for the

duration of their terms. These conditions

restrict their activities substantially beyond the

ordinary restrictions imposed by law on an

individual citizen.

bead *< x

| W]e find that the State’s interests are several.

The State has found the parolee guilty of a

crime against the people. That finding

justifies imposing extensive restrictions on the

individual’s liberty.

16

Morrissey, 408 U.S. 471, 478, 483 (1972) (emphasis added).

See also Griffin v. Wisconsin, 483 U.S. 868, 874 (1987).

Nor on this record did coercion of any kind occur.

Just as states have no obligation to forgo full imposition of

a lawfully- imposed sentence, offenders in Pennsylvania have

no obligation to accept the terms of early release. One

national study indicates that up to one third of inmates reject

early release in view of the difficult conditions placed on it.

J. Petersilia, When Probation Becomes More Dreaded Than

Prison, Federal Probation, March 1990, 23. Under these

circumstances, it cannot tenably be argued that the State has

engaged in coercion masquerading as choice. Indeed, the

choice the State offered Mr. Scott presents far less pressure

than the difficult choices the Court has allowed governments

to present to other inmates, criminal suspects and criminal

defendants. See McGautha v. California, 402 U.S. 183,

213 (1971); Bordenkircher v. Hayes, 434 U.S. 357, 365

(1978); Chaffin v. Stynchombe, 412 U.S. 17, 31 (1973).

The Fourth Amendment likewise permits individuals

to consent to searches on an instance-by-instance basis as

well as with respect to all future searches. As a matter of

logic and precedent, nothing in the provision requires

individuals to provide their consent one search at a time.

The guarantee equally allows retail and wholesale consents

to search.

Neither is it appropriate to discount the assortment of

reasons why a prisoner would waive such rights. In addition

to obtaining early release, prisoners may agree to such a

condition because they have no intention (at the time) of

committing a parole violation or, better yet, prefer the threat

of unannounced searches as an inducement to follow parole

guidelines. Many citizens want to comply with the law, and

for some it may be as liberating to let the truth be known as

17

it is to hide the truth in the interest of staying out of jail.

Yet such moral pressures, all attributable to the individual

and not the State, do not show the kind of governmental

coercion that undermines a Fourth Amendment waiver. See

Schneckloth, supra; cf. Colorado v. Connelly, 479 U.S. 157,

170 (1986) (“the Fifth Amendment privilege is not concerned

‘with moral and psychological pressures to confess emanating

from sources other than official coercion’”) (quoting Oregon

v. Elstad, 470 U.S. 298, 305 (1985)); United States v.

Washington, 431 U.S. 181, 187 (1977); Minnick v.

Mississippi, 498 U.S. 146, 167 (1990) (Scalia, J.,

dissenting):

A decision making such time-respected choices

unconstitutional, moreover, would threaten the basic

underpinnings, and hence the continued viability, of

probation and parole. Restrictive conditions are an essential

tool for making sure that probationers and parolees hew to

the path of rehabilitation. What States will be willing to

shorten criminal sentences without being able to provide the

utmost assurance to their citizens that the parolees’

rehabilitative progress is being closely monitored? indeed,

without such conditions, it is no exaggeration to conclude

that the availability of those programs would be severely

restricted.

Nor can there be any doubt that Mr. Scott consented

to the search conducted here. He agreed as a condition of

early release that parole officers could conduct a search of

his residence without a warrant. The requirement of a

warrant has long been deemed, and therefore fairly

perceived, as the essence of the privacy right established by

the Fourth Amendment. See Steagald v. United States, 451

U.S. 204, 214 n.7 (1981) (citing Payton v. New York, 445

U.S. 573, 602-03 (1980)). By waiving the right to insist on

a warrant before officers searched his residence, Pet. App.

18

2a, Mr. Scott clearly waived the right to insis’ »n any level

of suspicion (customarily defined by the existence of a

warrant) before officers searched his residence.

The State’s authority to require consent to such

searches, it bears adding, does not make parolees complete

Strangers to the protections offered by the Fourth

Amendment. The consent requirement, all agree, must itself

still be reasonable. See Griffin, supra; O’Lone v. Shabazz,

482 U.S. 342, 349 (prison regulations allegedly infringing

constitutional rights are themselves constitutional so long as

they are “reasonably related to legitimate penological

interests”) (internal quotation omitted). Thus, in spite of the

consent form filed by Mr. Scott, the parole officers’ search

had to be reasonable in nature and duration, as well as

connected to legitimate parole considerations, even though

the search itself no longer required reasonable suspicion.

Plainly, the State followed these requirements here. For like

reasons, it is as appropriate to impose such waivers through

consent forms as through State statutes or regulations. See

Griffin, supra; Zap, supra.

A final word deserves consideration. In our view, the

harder question in this case is whether Pennsylvania

overprotected Mr. Scott’s rights, not whether it violated

them. Several decisions from the Court suggest that in view

of the special needs of State parole programs, Pennsylvania

could have engaged in such suspicionless searches even

without Mr. Scott’s consent. See Veronia School Dist. 47J

v. Alton, 115 S. Ct. 2386 (1995); National Treasury

Employee Union v. Von Raab, 489 U.S. 656, 674-75 (1989);

Skinner v. Railway Labor Executive Assoc., 489 U.S. 602,

619 (1989); Camara v. Municipal Court, 387 U.S. 523, 537

(1967). Just as the Court has permitted random searches of

prison cells, see Hudson v. Palmer, 468 U.S. 517, 529

(1984), so too it has permitted such seaches in a wide range

19

of administrative settings that present special safety

considerations to the government and diminished privacy

expectations for the individual. Under these cases, it would

seem to follow that a parolee, no less than those “who

choose to participate in a closely regulated industry,” “have

reason to expect intrusions upon normal rights and privileges,

including privacy.” Veronia, 115 S. Ct. at 2393. Here,

however, Pennsylvania went further. It sought -- and

obtained -- consent to search. The question whether the State

had to do so need not be addressed.

Il. | The Exclusionary Rule Does Not Apply To

-- And Should Not Be Expanded To Apply

To -- Probation and Parole Revocation

Proceedings.

Even if the Court concludes that Pennsylvania

violated Mr. Scott’s Fourth Amendment rights, it still should

reverse the lower court decision. The Pennsylvania Supreme

Court erred in extending the exclusionary rule to this setting.

A. The Court Has Applied The

Exclusionary Rule Only In

The Context Of The Criminal

Trial And Direct Review.

The language of the Fourth Amendment does not

compel the exclusion of evidence obtained in violation of its

requirements, and thus “has never been interpreted to

proscribe the introduction of illegally seized evidence in all

proceedings or against all persons.” United States v. Leon,

468 U.S. 897, 906 (1980) (citing Stone v. Powell, 428 U.S.

465, 486 (1976)). The exclusionary rule, instead, “was a

judicially created means of effectuating the rights secured by

the Fourth Amendment” in discrete settings, Powell, 428

U.S. at 482, a rule that did not apply to the federal

20

government until 1914, see Weeks v. United States, 232 U.S.

383 (1914), and one that did not apply to the States until

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

“The primary justification for the exclusionary rule”

is “deterrence” -- to discourage “police conduct that violates

Fourth Amendment rights.” Powell, 428 U.S. at 486. See

Calandra, 414 U.S. at 348 (“the rule is a judicially created

remedy designed to safeguard Fourth Amendment rights

generally through its deterrent effect”). Because any

“|rleparation comes too late” to protect the invasion of

privacy that accompanies a Fourth Amendment violation,

Linkletter v. Walker, 381 U.S. 618, 637 (1965), the

exclusionary rule is not a “personal constitutional right . . .

calculated to redress” the injury to the victim of the invalid

search or seizure, Powell, 428 U.S. at 486. Rather, it

creates a disincentive to violate the provision by suppressing

evidence obtained in disregard of its terms.

At the same time, the Court has recognized that the

“policies behind the exclusionary rule” are relative, “not

absolute.” Powell, 428 U.S. at 488. The benefits of

deterrence, the Court has made clear, do not invariably

outweigh “the public interest in determination of truth at

trial” or the costs of suppressing pertinent evidence of

administrative misconduct. Accordingly, “application of the

rule has been restricted to those areas where its remedial

objectives are thought most efficaciously served.” Calandra,

414 U.S. at 348. Thus far, the Court has generally restricted

application of the exclusionary rule to the criminal trial and

direct review. See Mapp v. Ohio. It has declined to extend

the rule to grand jury proceedings, see United States v.

Calandra, 414 U.S. 338, to the impeachment of criminal

defendants, Walder v. United States, 347 U.S. 62 (1954), to

administrative proceedings, see Immigration and

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

21

(1984), to civil proceedings commenced by another

sovereign, see United States v. Janis, 428 U.S. 433 (1976),

and to federal habeas review of State-court criminal

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

B. The Exclusionary Rule Should Not Be

Extended To Parole Revocation

Proceedings.

Conceived in a spirit of judicial “pragmati|sm],”

Powell 428 U.S. at 488, the exclusionary rule thus has been

extended only to those areas where the benefits of deterrence

outweigh the considerable costs of suppressing relevant

evidence. Yet such cost-benefit balancing, simply put, does

not favor extending the rule to parole revocation proceedings.

First, the criminal trials covered by Mapp differ in

kind from the parole revocation proceedings covered here.

Unlike criminal trials, revocation hearings do not focus on

the guilt or innocence of an individual concerning a past

event. They consider how to rehabilitate offenders and how

to ensure that the public does not suffer from premature

releases of still-dangerous prisoners. Gagnon v. Scarpelli,

416 U.S. 778, 783-791 (1973). Indeed, most proceedings do

not even result in reincarceration, confirming the non-

punitive nature of the hearing. Bureau of Justice Statistics,

U.S. Dept. of Justice, T. Bonczar, Special Report

Characteristics on Adults on Probation 1995, Special Report,

Dec. 1997, at 10 (noting that incarceration occurs in only

29% of revocation proceedings); National Institute of

Corrections, U.S. Dept. of Justice, Status Report on Parole,

1995: Results of An NIC Survey (Nov. 1995) at 8-9 and table

16 (outlining alternatives to reincarceration).

Nor do revocation proceedings have the same

adversarial nature that criminal trials do. The unique nature

22

of the issues involved -- rehabilitation and public safety --

require a freer flow of information and more flexible

procedures than a criminal trial allows. Gagnon, 411 U.S.

at 782-790. As the Court has observed in concluding that

information may be considered in revocation proceedings that

is not admissible in criminal trials:

We emphasize there is no thought to

equate this second stage of parole revocation

to a criminal prosecution in any sense. It isa

narrow inquiry, the process should be flexible

enough to consider evidence . . . that would

not be admissible in any adversary criminal

trial.

Morrissey v. Brewer, 408 U.S. 471, 489 (1972); see also

Lopez-Mendoza, 468 U.S. at 1048-1049. In the end, little

symmetry exists between a criminal trial’s focus on the guilt

or innocence of an individual and a revocation hearing’s

focus on public safety, rehabilitation and the prevention of

future harm. The revocation hearing more closely parallels

administrative hearings, to which the exclusionary rule does

not apply, see Lopez-Mendoza, 468 U.S. at 1038-39, than

criminal trials, to which the rule does apply, see Mapp.

Second, the policy of deterring future Fourth

Amendment violations, the “primary justification” for the

exclusionary rule, Stone v. Powell, 428 U.S. at 486, does

not advance the lower court’s decision. Neither respondent

nor the lower courts have identified any pattern and practice

of violations of parolees’ Fourth Amendment rights, or for

that matter any empirical evidence establishing that

application of the exclusionary rule in this setting would in

fact deter Fourth Amendment violations.

23

Nor is it likely that such a deterrent effect could be

very different sets of institutional incentives. The police try

to obtain criminal convictions. Parole officials try to move

rehabilitated convicts out of overcrowded (and costly) prisons

and back into society. The former succeeds by winning

criminal trials; the latter succeeds by rehabilitating convicts

and getting them out of jail. See Morrissey, 408 U.S. at

483-484; R. Prus & J. Stratton, Parole Revocation

Decisionmaking: Private Typings and Official Designations,

Federal Probation, March 1976, 48, 50-51.

What is more, State parole officials already have

strong incentives for respecting the guarantees of the Fourth

Amendment. All State officials, of course, have a duty to

obey the Constitution, one that this Court’s precedents

presume they will follow. See Agostini v. Felton, 117 S. Ct.

1997, 2010-2011 (1997). Some States, moreover, already

have exclusionary rules applicable to revocation proceedings

under State law, see, e.g., State v. Marquart, 945 P.2d 1027

(N.M. App. 1997); State ex rel. Juvenile Dept. of

Multnomah County v. Rogers, 836 P.2d 127 (Or. 1992);

State v. Lapman, 724 P.2d 1092 (Wash. App. 1986), which

themselves limit the need for federalizing this area, Janis,

428 U.S. at 445 n.14. Empirical studies also suggest that

corrections officials respond to findings of improper conduct

by changing offending policies and practices. C. McCoy:

The Impact of Section 1983 Litigation on Policy Making In

Corrections, Federal Probation, Dec. 1981, 17.

Improper revocations also would undermine the

institutional interests of probation and parole agencies. On

the most fundamental level, unwarranted revocations would

impede one of the core administrative functions of these

agencies, alleviating prison and jail overcrowding. The

major professional organizations and accrediting agencies

24

governing the field also require that agencies—strive to

observe offenders’ rights. American Correctional

Association: Standards * + Adult Probation and Parole Field

Services, Standard 2-3160 (2d Ed. 1981) (“Searches should

comply with legal requirements”); American Probation and

Parole Association: Code of Ethics at {4 2, 3. Abuse of the

revocation process would violate those standards, risking the

agencies’ accreditation and professional standing.

Individual parole officers themselves have strong

personal incentives to avoid wrongful revocations. Most

officers view revocations as an indication that they have

failed and most recognize that initiating too many revocation

proceedings may adversely affect their professional standing.

R. Prus & J. Stratton: supra at 50-51. Similarly, probation

and parole officers have become increasingly concerned

about the potential for individual tort liability. Prus &

Stratton, supra at 51.

Ultimately, the Court has refused to presume that

expansion of the rule beyond the criminal trial setting will

deter misconduct and has required “convincing

indication|s]” that any proposed expansion will effectively

supplement existing deterrents. Lopez-Mendoza, 468 U.S. at

1046. Instead, it has looked for proof to justify any

proposed expansion and has characterized the rule as a

“grudgingly taken medicant” of whick “no more should be

swallowed than is needed.” Janis, 428 U.S. at 454, n.29.

Respondent has not shown that any such strong medicine is

needed here.

Third, extension of the rule will hamstring the

effective operation of parole programs and cause a host of

“secondary costs that flow from the less accurate or more

cumbersome adjudication” following application of the rule.

Lopez-Mendoza, 468 U.S. at 1041. “Applying the

25

exclusionary rule in proceedings that are intended not to

punish past transgressions but to prevent their continuances

or renewal would require |decisionmakers] to close their eyes

to ongoing violations of the law.” /d. at 1046. Extension of

the rule would deprive officials of relevant information

necessary to achieve the bookend objectives of a responsible

parole system -- rehabilitation and protection of the public.

Cc. Nor Should The Exclusionary Rule Apply

When The Officer Knows That The

Resident Is A Parolee.

The lower court agreed with much of the above

analysis. Yet it still concluded that the exclusionary rule

should apply under some circumstances, namely whenever

the investigating officer knows or has reason to know the

status of the parolee at the time of the search. In the lower

court's view, when the investigator knows the status of the

parolee and “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 1s nothing to deter

a parole agent from conducting an illegal search or engaging

in other illegal activity to obtain evidence.” Pet. App. 15a.

This is wrong on several fronts.

The continued existence of the exclusionary rule for

criminal proceedings already acts as a strong deterrent

against unconstitutional searches of parolees, whether the

police know their status or not. An officer that suspects

criminal activity is afoot is as apt to be interested in getting

an arrest (and conviction) as a parole revocation. Only the

oddest of fact patterns would tempt an officer to sacrifice a

potential criminal conviction in order to obtain a parole

revocation.

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For like reasons, a knowledge-based approach does

not in fact offer any additional deterrence against

unauthorized searches. A police officer who conducts an

unauthorized search violates the Constitution in one of two

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

or it was intentional. When negligence is the source, no

extra deterrence follows from a knowledge-based limitation.

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

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

prevent just those searches that occur because the officers

know the individuals to be parolees and think they can get

away with the violations because the evidence may be used

in a parole revocation proceeding. A knowledge-based

limitation simply will not deter inadvertent violations; it just

will exclude pertinent evidence.

No doubt, the same cannot be said for intentional

violations. A knowledge-based limitation might well deter

such transgressions, but it still offers no more deterrence

than already exists. When police officers intentionally

violate a citizen’s constitutional rights, the exclusionary rule

is the least of their worries. Such conduct exposes officials

to individual-liability claims, internal discipline and worse.

These risks to the officer’s welfare provide all the deterrence

anyone needs. A contrary view, moreover, posits a law

enforcement officer more concerned about the potential

exclusion of evidence than the potential for a money-damages

action and self-advancement. While it might be said that

such concern for the public welfare remains the hallmark of

being a police officer, it hardly applies to the malevolent

parole officer that the lower court conjured in addressing this

issue. That court’s contrary conclusion should be

reversed.

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CONCLUSION

For the foregoing reasons, we respectfully urge the

Court to reverse the decision below.

Respectfully submitted,

BETTY D. MONTGOMERY

Attorney General of Ohio

JEFFREY S. SUTTON

State Solicitor

Counsel of Record

TODD R. MARTI

Assistant Attorney General

30 E. Broad Street, 17th Floor

Columbus, Ohio 43215-3428

(614) 466-8980

Counsel for Amici States