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

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_ Supreme Gowrt, U.S.

FILPD

JAN 6 1998

No. 97-581

CLERK

In The

Supreme Court of the United States

October Term, 1997

PENNSYLVANIA BOARD OF PROBATION & PAROLE,

Petitioner,

—_—

KEITH M. SCOTT

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

BRIEF AMICI CURIAE

AMERICANS FOR

EFFECTIVE LAW ENFORCEMENT, INC.

JOINED BY

THE INTERNATIONAL ASSOCIATION OF

CHIEFS OF POLICE, INC., AND

THE NATIONAL SHERIFFS’ ASSOCIATION

IN SUPPORT OF

THE PETITIONER.

(List of Counsel on Inside Front Cover)

OF COUNSEL: Counsel for Amici Curiae

GENE VOEGTLIN, ESQ. WAYNE W. SCHMIDT, ESQ.

International Association of Executive Director

Chiefs of Police, Inc. Americans for Effective

515 North Washington St. Law Enforcement, Inc.

Alexandria, Virginia 22312 5519 North Cumberland Avenue

#1008

RICHARD M. WEINTRAUB, ESQ. Chicago, Illinois 60656-1498

National Sheriffs’ Association

1450 Duke Street JAMES P. MANAK, ESQ.

Alexandria, Virginia 22314 Counsel of Record

421 Ridgewood Avenue

BERNARD J. FARBER, ESQ. Suite 100

1126 West Wolfram Glen Ellyn, Illinois 60137-4900

Chicago, Illinois 60657 Tel. and Fax (630) 858-6392

email: lelp@xnet.com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................... ii

BRIEF OF AMICI CURIAE ....................... I

INTEREST OF AMICI CURIAE .................... 2

STATEMENT OF THECASE ..................... 3

SUMMARY OF ARGUMENT ..................... 4

CE sca ee Re re cake ow 5

A. EFFECTIVE REHABILITATION OF EX-

OFFENDERS WILL BE HAMPERED BY THE

RULE OF THE COURT BELOW.

B. THE EXCLUSIONARY RULE IS NOT

APPLICABLE IN PROBATION AND PAROLE

REVOCATION HEARINGS.. ................. 5

ECs (Ne a age eee a re 9

TABLE OF AUTHORITIES

Cases Page

Arizona v. Evans, 514 U.S. 1 (1995) .. 2.2200 ee eee 8

Black v. Romano, 471 U.S. 606 (1985) ............... 7

Commonwealth v. Williams, 692 A.2d 1031 (Pa. 1997) .. . 3

Gagnon v. Scarpelli, 411 U.S. 778 (1973) ............. 7

Griffin v. Wisconsin, 483 U.S. 868 (1987) ............. 6

Hudson v. Palmer, 468 U.S. 517 (1984) .............. 6

Morrissey v. Brewer, 408 U.S. 471 (1972) ............. 7

New Jersey v. T.L.O., 469 U.S. 325 (1985) ............ 6

New York v. Burger, 482 U.S. 691 (1987) ............. 6

O'Connor v. Ortega, 480 U.S. 709 (1987) ............ 6

Ohio v. Robinette, 117 S. Ct. 417 (1996)... . 2... 26... 5

People v. Arron C., 1997 WL 763209, 1997 Cal.

App. LEXIS 1033 (Cal. App. 1 Dist.,

Dec. 11, 1997) (No. A076469)...... 20.0.0 .0.... 8

People v. Parker, 284 Ill. App. 3d 860, 672 N.E.2d 813,

219 Ill. Dec. 960 (Ill. App. 1 Dist. 1996) .......... 4

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ....... 5

Scott v. Pennsylvania Board of Probation & Parole,

698 A.2d 32 (Pa. 1997)

No. 97-521

——_———_—_—S

In The

Supreme Court of the United States

October Term, 1997

PENNSYLVANIA BOARD OF PROBATION & PAROLE,

Petiti ;

vs.

Kerth M. SCoTT

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

This brief is filed pursuant to Rule 37 of the United States

Supreme Court. Consent to file has been granted by respective

Counsel for the Petitioner and Respondent. The letters of

consent have been filed with the Clerk of this Court, as required

by the Rules.’

INTEREST OF AMICI CURIAE

Americans for Effective Law Enforcement, Inc.

(AELE), as a national not-for-profit citizens organization, is

interested in establishing a body of law making the law

enforcement effort more effective, in a constitutional manner.

It seeks to improve the operation of the law enforcement and

corrections functions to protect our citizens in their life,

liberties, and property, within the framework of the various

state and federal constitutions.

AELE has previously appeared as amicus curiae over 100

times in the Supreme Court of the United States and over 35

times in other courts, including the Federal District Courts, the

Circuit Courts of Appeal and various state courts, such as the

Supreme Courts of California, Illinois, Ohio, and Missouri.

The International Association of Chiefs of Police, Inc.

(IACP), is the largest organization of police executives and line

officers in the world, consisting of more than 16,000 members

in 96 nations. Through its programs of training, publications,

legislative reform, and amicus curiae advocacy, it seeks to

make the delivery of vital law enforcement services more

effective, while at the same time protecting the rights of all our

citizens.

' As required by Rule 37.6 of the United States Supreme Court, the

following disclosure is made: This brief was authored for the amici

by James P. Manak, Esq., counsel of record, and Wayne W.

Schmidt, Esq., Executive Director, Americans for Effective Law

Enforcement, Inc. No other persons authored this brief. Americans

for Effective Law Enforcement, Inc., made the complete monetary

contribution to the preparation and submission of this brief, without

financial support from any other source, directly or indirectly.

The National Sheriffs’ Association (NSA), is the largest

organization of sheriffs and jail administrators in America,

consisting of over 40,000 members. It conducts programs of

training, publications, and related educational efforts to raise the

standard of professionalism among the nation’s sheriffs, jail, and

corrections administrators. While it is interested in the effective

administration of justice in America, it strives to achieve this

while respecting the rights guaranteed to all under the

Constitution.

Amici are national professional associations representing

the interests of law enforcement at the national, state, and local

levels. Our members include: (1) law enforcement officers, law

enforcement administrators, and correctional administrators

who are charged with the responsibility of executing and

overseeing the process of arrest and searches within the bounds

of the law, and (2) legal advisors who are called upon to advise

law enforcement officers, administrators, and correctional

administrators in connection with such matters, including the

formulation and implementation of policy on the conduct of

arrests and searches of probationers and parolees.

Because of the relationship with our members, and the

composition of our membership and directors— including active

law enforcement administrators and counsel—we possess direct

knowledge of the impact of the ruling of the court below, and

we wish to impart that knowledge to this Court.

STATEMENT OF THE CASE

The court below, Scott v. Pennsylvania Board of

Probation & Parole, 698 A.2d 32 (Pa. 1997), on the basis of

prior state precedent, Commonwealth v. Williams, 692 A.2d

1031 (Pa. 1997) (a case decided on the basis of the Fourth

Amendment), ruled that a parolee who has consented, as a

condition of release, to warrantless searches of his person and

residence by agents of a parole board nevertheless retains a

limited expectation of privacy against searches conducted

without reasonable suspicion that the parolee has committed a

parole violation. It held that evidence seized by a police or

parole officer in a search that is unreasonable under the

Williams rule is subject to exclusion if the officer was, or had

reason to be, aware of the parolee’s status.

SUMMARY OF ARGUMENT

Amici take the position that the Fourth Amendment

exclusionary rule does not apply to parole revocation

proceedings and that a search of a parolee’s residence need not

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.

It is our belief that the rule of the court below is not

constitutionally required under established Fourth Amendment

precedent pertaining to consent searches. On policy grounds it

does serious damage to the societal interest in the effective

administration of probation and parole systems, and is not in the

best interest of those probationers and parolees who are

honestly interested in their personal rehabilitation and return to

society as full and productive members.

ARGUMENT

A. EFFECTIVE REHABILITATION OF EX-

OFFENDERS WILL BE HAMPERED BY THE RULE OF

THE COURT BELOW.

B. THE EXCLUSIONARY RULE IS NOT

APPLICABLE IN PROBATION AND _ PAROLE

REVOCATION HEARINGS.

A. Effective rehabilitation of exoffenders cannot be

accomplished by infrequent contact between parole officers and

parolees. The parole authority must impose strict rules and

retain the ability to enforce those rules in an unfettered manner.

¢ The state has a dual obligation to (a) make every

reasonable effort to rehabilitate exoffenders, and (b) to

promote public safety in the communities where

probationers and parolees are placed or allowed to live.

¢ To maintain successful rehabilitation programs, states

must monitor parolees to insure that they do not abuse

drugs or possess weapons. Because of caseload concerns,

parole officers must supplement their infrequent contacts

with parolees by enforcing strict rules.

¢ Because exoffenders who are not fully rehabilitated

remain immature and untrustworthy, they must remain

continually aware of the fact they can be subjected to

unannounced and standardless searches. Random and

standardless searches should be allowed on proof which

is less than a reasonable suspicion of misconduct.

Certainly, where a probationer or parolee has freely and

voluntarily agreed to conditions permitting standardless

searches of his person and property, the court's

jurisprudence on consent searches should control.

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

Robinette, 117 S. Ct. 417 (1996).

The Fourth Amendment proscribes searches conducted

exceptions when special needs, beyond the normal need for law

enforcement, make the probable cause or reasonable suspicion

requirement impractical or unnecessary. See, e.g., Griffin v.

Wisconsin, 483 U.S. 868 (1987) (search of probationer’s

home); New York v. Burger, 482 U.S. 691 (1987) (search of

premises of highly regulated business); O'Connor v. Ortega,

480 U.S. 709 (1987) (work-related search of employee’s desk);

New Jersey v. T.L.O., 469 U.S. 325 (1985) (search of student’s

property by school officials); Hudson v. Palmer, 468 U.S. 517

(1984) (search of prisoner’s cell).

As noted by this Court in New Jersey v. T.L.O., supra at

342, n.8, a case involving suspicionless, administrative searches

of students, “where the privacy interests indicated by a search

are minimal and other safeguards are available to assure the

individual’ s reasonable expectation of privacy is not ‘subject to

the discretion of the official in the field,”” exceptions to the

requirement of individualized suspicion do not violate the

Fourth Amendment. See also, People v. Parker, 284 Ill. App.

3d 860, 672 N.E.2d 813, 816, 219 Ill. Dec. 960 (Ill. App. 1

Dist. 1996) (“The Supreme Court has upheld suspicionless,

administrative searches which were conducted as part of a

general regulatory scheme to ensure public safety, not as a

criminal investigation to secure evidence of crime. See Vernonia

School District 47] v. Acton, _US. _, 115 S. Ct. 2386,

132 L. Ed. 2d 564 (1995) (drug testing of student athletes);

United States v. Martinez-Fuerte, 428 U.S. 543, 96 S. Ct.

3074, 49 L. Ed. 2d 1116 (1976) (automobile checkpoints

looking for illegal immigrants and contraband); Michigan

Department of State Police v. Sitz, 496 U.S. 444, 110 S. Ct.

2481, 110 L. Ed 2d 412 (1990) (checkpoints to snare drunk

drivers).”).

B. The exclusionary rule should not be applied to parole

revocation hearings because of conflicting judicial policies. The

rule’s stated purpose of discouraging standardless searches must

give way to the greater purpose of encouraging full

rehabilitation. Extending the exclusionary rule to revocation

hearings conflicts with the more important purpose of

os rehabilitation.

It is vital that any drugs or weapons found during these

searches be admissible in administrative parole revocation

hearings. Parolees must remain aware that if they are

found abusing drugs or possessing weapons, evidence or

contraband seized from their homes, cars, or persons can

and will be used to revoke their conditional release from

prison. Some parolees will not “play by the rules” if they

know there are no penalties if they are caught.

¢ The recognition of any standard requirement, no matter

how minimal, impedes the more important goal: the

effective rehabilitation of exoffenders. The state has an

obligation to help exoffenders become useful, productive

and law-abiding members of society. That is the very

purpose of “corrections.”

Moreover, the state has an overwhelming interest in being

able to return a parolee to imprisonment without the burden of

meeting the requirements of the exclusionary rule if the parolee

has failed to abide by the conditions of parole. Morrissey v.

Brewer, 408 U.S. 471 (1972). This Court has recognized that

the decision to revoke probation or parole is an administrative

one; it should be a flexible and informal process that “does not

require the full panoply of procedural safeguards associated

with a criminal trial.” Black v. Romano, 471 U.S. 606, 613

(1985).

By injecting Fourth Amendment requirements into what

should be a purely administrative decision, the court below has,

in effect, converted what should be an informal information-

gathering proceeding into an adversarial trial. Instead of what

should be a “predictive and discretionary” process, the court

below has converted the role of the administrative process into

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

rehabilitative needs of the individual probationer or parciee.”

Gagnon v. Scarpelli, 411 U.S. 778, 787-88 (1973).

Finally, amici note from our particular vantage point

that the decision of the court below will, in effect, transform

probation and parole agents into law enforcement officers

(police), an effect neither desired by nor desirable for the

correctional system. These public officials serve the societal

interests of rehabilitation of exoffenders and their return to

productive membership in mainstream community life.

Application of the exclusionary rule to their activities

misconceives their role in the justice system and is, in plain

words, bad policy and opposite to the trend away from linking

the exclusionary rule to administrative proceedings, see, e.g.,

People v. Arron C., 1997 WL 763209, 1997 Cal. App. LEXIS

1033 (Cal. App. 1 Dist., Dec. 11, 1997) (No. A076469)

(declining to apply the exclusionary rule to a search conducted

by probation officers: “[p]robation officers are not ‘adjuncts to

the law enforcement team,”” quoting Arizona v. Evans, 514

U.S. 1, 15 (1995) in reference to court clerks).

CONCLUSION

Amici urge this Court to reverse the decision of the court

below on the basis of the precedents of this Court and sound

judicial policy.

Respectfully submitted,

OF COUNSEL: Counsel for Amicus Curiae