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

= .S.

EILED

rca, 3 96

IN THE

Supreme Court of the United States _

LERK

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 AMICUS CURIAE OF THE AMERICAN CIVIL

LIBERTIES UNION, THE ACLU OF PENNSYLVANIA,

AND THE NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS, IN SUPPORT OF RESPONDENT

Tracey Maclin

(Counsel of Record)

Boston University School of Law

765 Commonwealth Avenue

Boston, Massachusetts 02215

(617) 353-4688

Steven R. Shapiro

American Civil Liberties Union

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2500

Of Counsel: Stefan Presser

ACLU of Pennsylvania Foundation

Lisa B. Kemler 125 South Ninth Street

108 North Alfred Street Philadelphia, Pennsylvania 19107

Post Office Box 20900 (215) 592-1513

Alexandria, Virginia 22313

(703) 684-8000

© BEST AVAILABLE COPY III

TABLE OF CONTENTS

Page

TABLE OF ALSTERUIREEEED cc cccc recs cuvccsdn ii

USEEE Se A 0 00k ve seeker eee ewe l

STATEAGENT OF THE CASE . wee eeeic eee en l

SUMMARY OF ARGUMENT ................. 5

IGS 6 ECCT Caled Ce eeeee ares 6

I. THE SEARCH OF RESPONDENT’S

HOME WAS NOT A VALID CONSENT

SE. hoe he a a CU oe ee bare 6

Il. A SUSPICIONLESS SEARCH OF A PA-

ROLEE’S HOME VIOLATES THE REA-

ee Be a rer ae 13

Ill. APPLYING THE EXCLUSIONARY

RULE ENCOURAGES PAROLE OFFI-

CERS TO RESPECT FOURTH AMEND-

DDEE PEE 6 a 80 ic OK CRS Ke REO Ree 19

wee ee ee ee Pee yr re eo Perr. 26

TABLE OF AUTHORITIES

Page

Cases

Brown vy. Illinois,

SE EE, oc beck ets bes bee eeeee eens 21

Camara v. Municipal Court,

De MUD fs als db ss seu ves cede edeoess 16

Commonwealth v. Williams,

Oe EOE Oe er ie 3

Donovan v. Dewey,

ee IS. On anne Bs O40 evap 08 11, 12

Griffin v. Wisconsin, }

oe ee ee a passim

Illinois v. Rodriguez,

Se ED ons ab ks weds cee beecdanceen Ny

INS v. Lopez-Mendoza,

ee a an sep ace eebeee eens 22

James v. Illinois,

rr seas and babe een « eRe bee e 21

Marshall v. Barlow's, Inc.,

Eo nee cctcdeeneeeeene 10, 11

Maryland v. Buie,

i re en sk ee kee sn aeeseéeee dé. 17

Morrissey v. Brewer,

a ee ae ee 12

Murray v. United States,

ar ee en ee 22

Page

New York v. Burger,

ll li nee cod A Mie ae 11, 12

Ohio v. Robinette,

oem wom, 187 BCR SIT CIGOS) .. 5. cece 12, 18

One Plymouth Sedan v. Pennsylvania,

STS les ea lg cal ani ae 21

Richards v. Wisconsin,

ee ee 17

Schneckloth v. Bustamonte,

I as 0 Su cs ie 7, 9, 12

Stone v. Powell,

ee I ess ES. a ee 21

United States v. Biswell,

I sere FP ae 8, 10

United States v. Calandra.

ro 2 ee re ee, ee 19, 21

United States v. Janis,

tra A EO it aN A Ue ad Mice 21

United States v. White,

SER a el Ae a a Prema RS 13

United States v. Winsett.

8 Es ee aera 4

Zap v. United States,

ere ae nee eee am, ae )

Statutes and Regulations

Wis. Admin. Code

| ee 15

***

Other Authorities

4 LaFave, Wayne F.,

SEARCH AND SEIZURE

RGR Bahco vndkicWesevicsde. 10, 11, 14, 18, 23

56 Fed. Reg. 30870 (July 8, 1991) ...... 2... .055. 24

Cohen & Gobert,

THE LAW OF PROBATION

ASG DN CR in a's 0 06 hoes et wet wad ts 8, 25

del Carmen, Rolando V., "Potential

Liabilities of Probation and Parole

Officers” (National Institute of

Comwections, Amp. 1965) ... 2... ccccnccccccees 24

Kutcher, Judd D., "Looking at the Law,”

46 Federal Probation 55 (Sept. 1982) ............. 24

Loewenthal, Milton A., “Evaluating the

Exclusionary Rule in Search and Seizure,"

GD UR, Eee, MOUND ci cdaccncnccvvessds 20

Matthew Purdy, "Visits and Vigilance:

Sex Offenders Shadowed by Parole

Officers,” N.Y. Times, June 8, 1997 .............. 25

Opalisky, Mark E., "The Applicability

of the Exclusionary Rule to Probation

Revocation Proceedings,"

17 Mem. St. U. L.Rev. 555 (1987) ............5.-. 23

Parole Commission, Department of Justice,

"Paroling, Recommitting and Supervising

Federal Prisoners: Searches of Federal

Parolees by U.S. Probation Officers,”

Be Cr, CES 0's cK dene kee cattas Cabenss 24

iV

Felony Offenders,”

49 Fed. Probation 4 (June 1985)

Steve Elliott, "Probation Officer

Turns Up HEAT," Fresno Bee.

Nov. 27, 1997

INTEREST OF AMICI '

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with nearly

300,000 members dedicated to the principles of liberty and

equality embodied in the Bill of Rights. The ACLU of

Pennsylvania is one of its statewide affiliates. Since its

founding in 1920, the ACLU has frequently appeared before

this Court, both as direct counsel and as amicus curiae. In

particular, the ACLU has participated in many Fourth

Amendment cases. Because this case addresses an important

Fourth Amendment question, its proper resolution is a

matter of concern to the ACLU and its members.

The National Association of Criminal Defense Lawyers

(NACDL) is a nonprofit corporation founded in 1958 to en-

sure justice and due process for persons accused of crime; to

foster integrity, independence, and expertise of the criminal

defense bar; and to promote the proper and fair administra-

tion of criminal justice. Composed of more than 9,000 at-

torneys and 28,000 affiliate members in 50 states, NACDL

is recognized by the American Bar Association as an affili-

ate organization. It also has full representation in the

ABA’s House of Delegates. NACDL strives to defend the

liberties guaranteed by the Bill of Rights.

STATEMENT OF THE CASE

On April 2, 1982, respondent Keith M. Scott was sen-

tenced to a ten to twenty year term of imprisonment on his

' Letters of consent to the filing of this brief have been lodged with the

Clerk of the Court pursuant to Rule 37.3. Pursuant to Rule 37.6, coun-

sel for amici states that no counsel for a party authored this brief in

whole or in part and no person, other than amici, its members, or its

counsel made a monetary contribution to the preparation or submission

of this brief.

plea of nolo contendere to third degree murder. On Sep-

tember 1, 1993, respondent was paroled subject to several

conditions. One condition stated:

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 item, in [sic] 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.

J.A. 7a.

On February 4, 1994, parole agents acting pursuant to a

warrant issued by petitioner, the Pennsylvania Board of Pro-

bation and Parole, arrested respondent in a diner for various

parole violations. While respondent was taken to jail, Agent

Mundro drove to respondent’s home with Dorothy Hahn, a

friend of respondent who had been with him in the diner.

Although respondent was living at the time with his mother

and stepfather, no one was home when the agents arrived.

Mundro instructed Hahn to open the door with respondent's

keys, which she did. Hahn then called respondent's mother,

Dorothy McDaniel.

When Mrs. McDaniel arrived home, Mundro informed

her that he was going to search respondent’s bedroom and

asked her to identify which room was his. (He also told her

that the agents would find it on their own if she did not co-

operate.) After looking through the bedroom, Mundro

searched an adjacent room without asking Mrs. McDaniel’s

consent and found five unloaded firearms under a sofa. In

addition, he found a compound bow and three arrows in a

closet. Mrs. McDaniel informed the agents that all the weap-

ons belonged to her husband. J.A. 80-82a; J.A. 85-89a. ©

They were nonetheless seized.

Respondent moved to suppress the weapons at his pa-

role revocation hearing. In opposition to that motion, Agent

Mundro testified that he did not need the permission of a

homeowner to search a parolee’s approved residence.

Mundro further explained that he searched respondent's

house because Agent Gallo, respondent’s parole agent and

the official representing petitioner at the revocation hearing,

had suggested that guns might be there. J.A. 83a, 92a. The

hearing officer admitted the evidence. J.A. 84-85a.

That ruling was reversed by the Commonwealth Court

of Pennsylvania, which held that the search violated the

Fourth Amendment because it "was conducted without the

owner's consent and without a statutory or regulatory frame-

work authorizing such a search." Pet.App. 3la. The court

specifically found that the consent condition contained in

respondent's parole agreement did not justify the search.

Finally, the court concluded that the exclusionary rule was

applicable to respondent’s revocation hearing. Pet.App. 30a,

n.3, 37a.

The Pennsylvania Supreme Court affirmed. It began its

opinion by noting that parolees are protected against unrea-

sonable searches of their homes. It then ruled, as a matter

of state law, that respondent’s right against “unreasonable

searches and seizures [was] unaffected by his signing of the

consent to search provision." Pet.App. 10a. The court

reached this conclusion by citing an earlier state law ruling

in Commonwealth v. Williams, 692 A.2d 1031, 1036 (Pa.

1997), for the proposition that the parole release form was

limited in scope and merely acknowledged "‘that the parole

officer has a right to conduct reasonable searches of [the]

residence listed on the parole agreement without a warrant.”"

Pet.App. 9-10a. Finally, the court held that the search in

this case violated the Fourth Amendment because it lacked

reasonable suspicion. Pet.App. 10a.

Based on that finding, the Pennsylvania Supreme Court

agreed that the exclusionary rule applied on the facts of this

case. In a carefully crafted opinion, the court held that the

deterrent purpose of the exclusionary rule requires the sup-

pression of illegally obtained evidence at a revocation hear-

ing when the agent conducting the search is aware in ad-

vance of the suspect’s parole status. Otherwise, the court

recognized, the agent "‘ha{s] nothing to risk: If the motion

to suppress in the criminal proceedings [is] denied, defen-

dant would stand convicted of a new crime; and if the mo-

tion [is] granted, the defendant would still find himself be-

hind bars due to revocation of [parole]."" Pet.App. 13a,

quoting United States v. Winsett, 518 F.2d 51, 54, n.5 (9th

Cir. 1975). Thus, in these limited circumstances at least,

"there is a need to apply the exclusionary rule to the revoca-

tion process since there is nothing to deter a parole agent

from conducting an illegal search or engaging in other ille-

gal activity to obtain evidence." Pet.App. 15a.

This Court granted the petition for a writ of certiorari

to decide whether the exclusionary rule was appropriately

applied in this case. The Court also invited the parties to

brief the following issue: "Must a search of a parolee’s res-

idence 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).?

> Amici agree with respondent that the second question may not be fairly

presented by this record since the Pennsylvania Supreme Court has held

as a matter of state law that the parole release form signed by respon-

dent did not constitute “consent” to searches that are unsupported by rea-

sonable suspicion.

SUMMARY OF ARGUMENT

The search of respondent’s home was not a valid

consent search. Petitioner insists that a suspicionless search

was legal because respondent signed a mandatory parole

condition form that waived his Fourth Amendment rights.

Consent searches are not controlled by a waiver-of-rights

theory; instead, a consent search is judged by a voluntari-

ness test that considers the totality of the circumstances

surrounding the search.

This Court’s administrative search cases provide a help-

ful framework for analyzing the search of respondent’s

home. Recent administrative search cases have abandoned

theories of implied consent, and judge the reasonableness of

such searches on a case-by-case basis. In concluding that

the search of a parolee’s home must be based on reasonable

suspicion even where a parolee has signed a consent form,

the court below followed this Court’s precedents and con-

sidered the totality of the circumstances when determining

the reasonableness of that search.

The suspicionless search of respondent’s home also con-

flicts with the reasoning of Griffin v. Wisconsin, 483 U.S.

86 (1987). Although Wisconsin had a regulation that

"ma[de] it a violation of the terms of probation to refuse to

consent to a home search," id. at 871, Griffin accorded no

constitutional weight to this consent rule in judging the rea-

sonableness of the search of a probationer’s home. Instead,

Griffin emphasized the existence of a regulatory framework

that provided guidance and standards for probation officers

to determine when "reasonable grounds" existed for a par-

ticular search. Unlike the search in Griffin, no administra-

tive rules controlled the search of respondent’s home.

Because parolees do not forfeit all Fourth Amendment

rights, the court below properly assessed the deterrent value

of the exclusionary rule in cases of this sort. As the Penn-

sylvania Supreme Court recognized, a parolee who violates

the conditions of his parole can, and usually is, returned to

jail without the necessity of a formal criminal trial. Thus,

the fact that illegally seized evidence cannot be used at a

criminal trial is unlikely to deter an agent who is accumulat-

ing evidence for a parole revocation hearing. Conversely,

the core values of the Fourth Amendment can only be en-

forced if the exclusionary rule is applied to parole revoca-

tion hearings under these circumstances. That is all the

lower court held in this case and all, amici respectfully sub-

mit, that this Court should address.

ARGUMENT

I. THE SEARCH OF RESPONDENT’S HOME

WAS NOT A VALID CONSENT SEARCH

Petitioner contends that the suspicionless search of

respondent’s home does not violate the Fourth Amendment

because respondent consented to this search as a condition

of parole. Brief for Petitioner at 20 (respondent "expressly

consented to warrantless searches by parole agents"). Im-

plying that parole is an “act of grace" offered by the state,

petitioner argues that there is "no requirement that a parolee

accept the parole conditions; he is free to reject the condi-

tions and serve out his sentence in prison." Jd. Once re-

spondent signed the consent form contained in his parole

agreement, petitioner argues, he also accepted the state’s au-

thority to invade his privacy whenever agents decided such

action would advance the penological goals of parole. /d. at

23-24.

The United States, as amicus curiae, adopts a similar

approach to the suspicionless search of respondent’s home.

According to the Solicitor General, respondent waived his

Fourth Amendment rights by accepting parole with the con-

dition that he consent to warrantless searches. Persons may

6

"enter into arrangements with the government under which

the individual relinquishes constitutional rights for a promise

of favorable treatment." Brief for the United States at 22.

Provided the individual is "accurately apprised of the op-

tions available to him," these agreements are constitutionally

valid even when the person "is forced to choose between

unattractive alternatives." /d. at 23. In this case, the United

States contends, the parole agreement represented a valid

waiver of respondent’s Fourth Amendment rights, and thus

furnished respondent’s "consent" to the search of his home

by Agent Mundro.

Both petitioner and its amici miss the point of this

Court’s consent doctrine under the Fourth Amendment.

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

tablished that consent searches are not controlled by a

waiver-of-rights theory but are judged by a voluntariness

. test that considers the totality of the circumstances surround-

ing the search.’ Thus, petitioner's consent theory reflects an

antiquated vision of the Fourth Amendment.

Second, judged by a totality-of-the-circumstances test

that does not rely on some fictional waiver, petitioner's

claim that respondent’s "consent" authorized the search of

his home ignores the facts of this case. As far as the record

reveals, respondent never gave his consent. Nor did Mrs.

* See 412 U.S. at 246 ("[T}here is nothing in the purposes or application

of the waiver requirements of Johnson v. Zerbst (304 U.S. 458 ( 1938)}

that justifies, much less compels, the easy equation of a knowing waiver

with a consent search"). Curiously, although petitioner emphasizes the

consent condition that respondent signed, and argues that respondent

“expressly consented to warrantless searches by parole agents,” Brief for

Petitioner at 20, petitioner fails to cite Schneckloth. The Solicitor

General’s only reference to Schneckloth is a conclusory quote that "‘a

search conducted pursuant to a valid consent is constitutionally permissi-

ble."" Brief for the United States at 22, quoting Schneckloth, 412 U.S.

at 222.

McDaniel, who shared the house with respondent. Cf. /Ili-

nois v. Rodriguez, 497 U.S. 177, 180 (1990)(third-party with

common authority over the premises can consent to the

search of a home). Mrs. McDaniel acquiesced to the search

of respondent's bedroom only after Agent Mundro told her

that he would search the house regardless of her consent.

J.A. 80-83a. Her consent was neither sought nor given be-

fore agents searched the adjoining room where the weapons

were ultimately found.

In an analogous context, this Court has recognized that

a gun dealer who provides access to his books and inventory

only after a law enforcement officer asserts his authority to

conduct a warrantless search has not "consented" for Fourth

Amendment purposes. United States v. Biswell, 406 U.S.

311, 315 (1972). Where an officer claims authority to

search, as Agent Mundro did in this case, "the legality of

the search depends not on consent but on the authority of a

valid statute" or other administrative framework that serves

to limit the discretion of the officer. /d. Here, no such

framework exists. To the contrary, Agent Mundro openly

admitted at the parole revocation hearing that he felt his

authority to search was unlimited. See p.3, supra. Such a

broad claim of authority is fundamentally inconsistent with

the Fourth Amendment. It cannot be sustained in this case

on the basis of consent for the simple reason that neither re-

spondent nor his mother consented to this search.*

* Although characterized as a form of “consent,” the conditional parole

release form signed by respondent functions, in reality, as a mandatory

rule applicable to all parolees. As petitioner concedes, respondent would

not have been granted parole without signing the form. See Brief for

Petitioner at 20 ("There is, of course, no requirement that a parolee ac-

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

out his sentence in prison.”); Cohen & Gobert, THE LAW OF PROBATION

AND PAROLE §5.07 at 205 (1983\"Any right to refuse probation or pa-

(continued...)

The Court’s administrative search cases further under-

mine petitioner's consent rationale and demonstrate the de-

gree to which Fourth Amendment jurisprudence has shifted

in favor of a totality-of-the-circumstances test.° Prior to

Schneckloth, the Court permitted the granting of licenses,

contracts or other privileges conditioned on the waiver of

Fourth Amendment rights by parties doing business with the

government. For example, in Zap v. United States, 328

U.S. 624, 628 (1946), the Court noted that when a federal

contractor, "in order to obtain the Government’s business,

specifically agreed to permit inspection of his accounts and

records, he voluntarily waived such claim to privacy which

he otherwise might have had as respects business documents

related to those contracts." /d.°

Relying on similar reasoning, petitioner asserts that re-

spondent retains no Fourth Amendment interest in his home

* (..continued)

role, moreover, is limited. The offender can only accept or reject the

entire package of conditions; there is no right to accept some conditions

but not others"). In the language of the Fourth Amendment, therefore,

the parole release form does not represent a free and voluntary choice to

consent to all searches; rather, it is a rule all parolees must obey. It thus

closely resembles the administrative rule that Wisconsin unsuccessfully

relied on to justify warrantless searches in Griffin v. Wisconsin, 483 U.S.

at 871. See pp.14-15, infra.

* Amici do not mean to equate the law enforcement search of respond-

ent’s home with the regulatory search of a licensed business. This Court

has frequently recognized that privacy interests are most acute in the

home. But, for that very reason, the rejection of the waiver theory in

the administrative search cases has even added force here.

* Even while recognizing the government's power to extract waivers of

Fourth Amendment rights from government contractors, Zap cautioned

that this power was not without limits: "Whatever may be the limits of

that power of inspection, they were not transcended here.” 328 U.S. at

628 (emphasis added).

because he signed a consent form authorizing searches as a

condition of his parole. But, this view of the Fourth

Amendment has been repudiated even when dealing with the

administrative search of a business establishment. Contrary

to petitioner's outdated view, the modern Court's adminis-

trative search cases forsake theories of implied consent and

assess the reasonableness of administrative searches on a

case-by-case basis. See 4 Wayne F. LaFave, SEARCH AND

SEIZURE §10.2(c), at 412 (3d ed. 1996).

Biswell is particularly instructive. Although the Court

ultimately upheld the warrantless search of a gun dealership,

it did not rely on the fiction that gun dealers "consent" to

any and all administrative inspections required by federal

law. Instead, the Court employed a balancing process,

which carefully evaluated the totality of the circumstances.

As the Court noted, the warrantless search in Biswell was

authorized by a narrowly drawn statute that posed only “lim-

ited threats to the dealer's justifiable expectations of pri-

vacy." 406 U.S. at 316. Specifically, the law provided no-

tice to gun dealers that inspections would be confined in

time, place and scope; it also informed gun dealers of the

inspector's purposes and the limits of his authority to search.

Id. at 316-17.’

” See also Marshall v. Barlow's, Inc., 436 U.S. 307, 338 (1978)\(Stevens

J, dissentingXemphasis added):

In fact, . . . consent is fictional in both [Biswe// and in inspec-

tions of businesses regulated under the Occupational Safety

and Health Act] .... In both situations, the validity of the

regulations depends not upon the consent of those regulated.

but on the existence of a federal statute embodying a congres-

sional determination that the public interest in the health of

the Nation’s work force or the limitation of illegal firearms

traffic outweighs the businessman’s interest in preventing a

Government inspector from viewing those areas of his prem-

ises which relate to the subject matter of the regulation.

10

Similarly, in Donovan v. Dewey, 452 U.S. 594 (1981),

the Court did not rely on a theory of implied consent to up-

hold the search of underground and surface mines. Though

warrantless searches were involved, Dewey explained that

the federal inspection framework, “in terms of the certainty

and regularity of its application, provide[d] a constitutionally

adequate substitute for a warrant." /d. at 603. As in Bis-

well, Dewey employed a balancing analysis that weighed

several factors. In particular, the challenged search was au-

thorized by a law that: (1) required the inspection of all

mines; (2) defined the frequency of inspections; (3) notified

mine operators of the purposes of inspection and the limits

of an inspector's task; and (4) mandated a process for "ac-

commodating any special privacy concerns that a specific

mine operator might have." /d. at 603-04.°

Finally, New York v. Burger, 482 U.S. 691 (1987), up-

held an administrative search aimed at businesses dealing in

used automobile parts. Burger's analysis of the challenged

warrantless search extended beyond the conclusion that

junkyard dealers possess a reduced expectation of privacy in

their premises due to the pervasiveness and duration of gov-

ernmental regulation of the industry. /d. at 700. A warrant-

less search was reasonable provided three criteria were met.

Those criteria included: a substantial interest justifying the

search; a showing that searches are necessary to promote

that interest; and a statutory framework that serves as a

proxy for a warrant. /d. at 702. This last factor meant that

* See also id. at 611 (Stewart, J., dissenting\objecting that Dewey repu-

diates the implied consent rationale that had been stated in dicta in Bar-

low's), LaFave, supra, §10.2(c) at 414-15 ("The Court in Dewey dealt

with the property owner's awareness of the inspection scheme as a mat-

ter bearing upon the reasonableness of that scheme, rather than as show-

ing the owner had impliedly consented, and upheld the regulatory

scheme without regard to whether it had predated the owner’s entry into

the regulated business") footnote omitted).

ll

the search process "must advise the owner of the commer-

cial premises that the search is being made pursuant to the

law and has a properly defined scope, and it must limit the

discretion of the inspecting officers." /d. at 703.

Respondent’s reduced expectation of privacy in his

home does not permit the state to concoct fictional notions

of consent to eliminate the remainder of his Fourth Amend-

ment rights. Nor does it eviscerate the balancing analysis of

the Biswell-Dewey-Burger line of cases. To be sure, parol-

ees "do not enjoy ‘the absolute liberty to which every citi-

zen is entitled, but only . . . conditional liberty properly de-

pendent on observance of special [parole] restrictions.”"

Griffin, 483 U.S. at 874, quoting Morrissey v. Brewer, 408

U.S. 471, 480 (1972). But the gun dealers in Biswell and

the mine operators in Dewey also possessed diminished pri-

vacy rights in the records, inventory and facilities that were

subject to frequent regulatory search. See Biswell, 406 U.S.

at 315-16; Dewey, 452 U.S. at 601-06.

In sum, whether a search of a parolee’s home must be

based on reasonable suspicion to be valid under the Fourth

Amendment “cannot be resolved by any infallible touch-

stone,” Schneckloth, 412 U.S. at 229, including the fact that

respondent in this case signed a consent form as a condition

of parole. “Rather, it is only by analyzing all the circum-

stances of an individual consent that it can be ascertained

whether in fact it was voluntary or coerced. It is this care-

ful sifting of the unique facts and circumstances of each

case that is evidenced in our prior decisions involving con-

sent searches." /d. at 233.° What petitioner advocates in-

stead, and what this Court has properly rejected is “the sub-

* See also Ohio v. Robinette, 519 US. __, __, 117 S.Ct. 417, 421 (1996)

(emphasizing that because reasonableness “is measured in objective

terms by examining the totality of the circumstances,” the Court rejects a

per se tule for determining the validity of a consent to search).

12

stitution of words for analysis." United States v. White, 401

U.S. 745, 785 (1971)(Harlan, J., dissenting).

The court below correctly followed the precedents of

this Court and considered the totality of the circumstances in

determining the reasonableness of the search. Its decision

did not turn on an unsound and unrealistic view of consent.

To the contrary, the Pennsylvania Supreme Court explained

that where a search of a parolee’s home is the product of

coercive government power and not genuine consent, rea-

sonable suspicion must exist to justify the search.

If adopted, petitioner's view of consent would effective-

ly grant parole officers unchecked discretion to invade the

privacy and security of parolees and their families, without

even a requirement of reasonable suspicion. Of course, that

result would conflict with another precedent of this Court,

Griffin v. Wisconsin, 483 U.S. 868, which confirmed that

one’s status as a probationer or parolee does not compel the

elimination of all Fourth Amendment protection for such

persons. ,

ll. A SUSPICIONLESS SEARCH OF A PAROL-

EE’S HOME VIOLATES THE REASONING

OF GRIFFIN

By permitting the warrantless search of a probationer’s

home on less than probable cause, Griffin held that parolees

and probationers do not enjoy the same degree of Fourth

Amendment privacy as the rest of society. But, by insisting

that even the search of a probationer’s home must be consti-

tutionally reasonable, the Griffin Court recognized that pa-

rolees and probationers do not shed all their Fourth Amend-

ment rights.

Thus, the holding of Griffin represents a middle

ground. On the one hand, the Court acknowledged that su-

13

pervision of a parolee “is a ‘special need’ of the State per-

mitting a degree of impingement upon privacy that would

not be constitutional if applied to the public at large.” 483

U.S. at 874-75. On the other hand, the Court stopped well

short of holding that those privacy rights disappear entirely.

Prior to Griffin, courts relied on one of three theories to

explain why probationers and parolees lack full Fourth

Amendment protection: a “constructive custody" theory,

which reasoned that parolees had the same rights as prison-

ers; an “act of grace" theory which allowed the state to at-

tach restrictions on a parolee’s privacy; or, a “consent” the-

ory, in cases where parole was conditioned upon the waiver

of Fourth Amendment rights. See LaFave, supra, §10.10 at

758.

Notably, Griffin declined to rely on any of these theo-

ries in concluding that probationers possess only a limited

privacy interest, and that neither the warrant nor probable

cause requirements apply to the search of a probationer’s

home.'® Indeed, Wisconsin's regulatory framework govern-

ing probationers and parolees "ma{de] it a violation of the

terms of probation to refuse to consent to a home

See LaFave, supra, §10.10(a) at 761 (“In upholding the search of a

probationer’s home without compliance with the usual Fourth Amend-

ment requirements of full probable cause and a search warrant, [Griffin]

made no mention of the constructive custody theory as a justification”)

(footnote omitted); id. §10.10(b) at 762 ("in the course of recognizing

that less demanding Fourth Amendment standards govern as to a proba-

tion officer's supervisory search, [Griffin] relied not at all upon the ‘act

of grace’ theory"); id. at 766 ("it would seem doubtful that any waiver

of Fourth Amendment rights obtained as the quid pro quo of a grant of

probation or parole could pass muster under Schneckloth. Doubtless this

explains why [Griffin] . . . relied not at all-upon the waiver theory”).

14

search.""' Notwithstanding this mandatory rule, which is the

functional equivalent of the consent condition signed by

respondent in this case, Griffin eschewed any reliance on

notions of consent in determining the reasonableness of the

search of Griffin's home.

Instead of relying on a mandatory consent rule or upon

theories of “constructive custody" or implied consent, all of

which minimize iN One way or another the serious constitu-

tional implications associated with a warrantless search of a

home, Griffin balanced the competing interests to reach a

conclusion on the overall reasonableness of the search. Es-

sential to that balancing process was the existence of a regu-

latory framework that provided guidance and standards for

officers to determine when "reasonable grounds"

existed for a particular search. See Griffin, 483 U.S. at 873

("The search of Griffin’s home satisfied the demands of the

Fourth Amendment because it was carried out pursuant to a

regulation that itself satisfies the Fourth Amendment's rea-

sonableness requirement under well-established principles").

Griffin grants parole agents a substantial degree of dis-

cretion to monitor the activities of parolees. Nonetheless,

Griffin did not eliminate Fourth Amendment protection for

parolees,’ nor did it suggest that agents have boundless au-

Griffin, 483 U.S. at 871. The relevant provision stated: “When proba-

tion or parole begins, an agent shall meet with a client to review or de-

velop written rules and specific conditions of the client’s supervision, or

both. These rules require that the client shall . . . [mJake himself or

herself available for searches ordered by the agent, including but not

limited to body contents searches as defined in DOC §328.21(4)\a), or

search of the client’s residence or any property under the client's con-

trol.” Wis. Admin. Code HSS §328.04(3\(k\ 1981).

“A [parolee’s] home, like anyone else’s, is protected by the Fourth

> ya "$ requirement that searches be ‘reasonable."” 483 U.S. at

15

thority to conduct suspicionless searches of a parolee’s

home, as urged by petitioner. To the contrary, Griffin cau-

tioned that the “permissible degree [of state intrusion into

parolee’s privacy] is not unlimited." /d. at 875. Petitioner's

reading of Griffin as allowing a suspicionless search of a

parolee’s home provided the intrusion relates to the legiti-

mate penological objectives of parole, Brief for Petitioner at

24-25, ignores Griffin's actual holding.

What Griffin actually held was that the home search in

that case "was ‘reasonable’ within the meaning of the Fourth

Amendment because it was conducted pursuant to a valid

regulation governing probationers." 483 U.S. at 880. The

regulation referenced by the Court instructed probation offi-

cers to "consider a variety of factors in determining whether

‘reasonable grounds’ exist for a particular search." /d. at

871. Thus, Griffin placed a deliberate emphasis on the

existence of a regulatory scheme. This emphasis was con-

sistent, moreover, with the Court’s earlier holdings permit-

ting regulatory searches without warrants or probable cause

provided such searches “meet ‘reasonable legislative or ad-

ministrative standards."" Jd. at 873, quoting Camara v. Mu-

nicipal Court, 387 U.S. 523, 538 (1967).

As in the administrative search cases discussed above,

the regulatory scheme in Griffin provided a measure of con-

trol and guidance for probation officers deciding when to in-

trude upon a probationer’s privacy. That regulatory pro-

gram did not leave officers with unchecked discretion to

search. Rather, searches were permitted only when "reason-

able grounds” existed for a search. Wisconsin did not sug-

gest and the Court did not hold that the state’s legitimate

needs for supervision required suspicionless searches. See

Griffin v. Wisconsin, No. 86-5324, Transcript of Oral Arg.

at 48 (statement of counsel for Wisconsin: “Justice Scalia,

my argument is that the federal Constitution permits

searches of a probationer’s residence by a probation officer

16

on less than probable cause, on what we would call reasona-

ble grounds or reasonable suspicion").

Unlike the search in Griffin, no regulatory or adminis-

trative framework controlled the search of respondent's

home.'* When state agents are permitted to invade a pa-

rolee’s home without reasonable suspicion of a parole viola-

tion, and without statutory or administrative guidance, they

are effectively granted authority to conduct an unreasonable

search. Such a search violates the rule and spirit of Griffin.

Rather than endorse that outcome, the court below required

reasonable suspicion of a parole violation before proceeding

with a search of a parolee’s home. As in Griffin, this ap-

proach balances the privacy rights of the parolee and his

family with the state's legitimate interests in rehabilitation

and community safety.'*

Petitioner’s contention that the consent agreement ex-

tracted from every parolee as a condition of parole permits

* Pet.App. 5-6a. In 1995, subsequent to the search of respondent's

home, the Pennsylvania General Assembly enacted a legislative frame-

work for searches by parole agents. That framework includes a provi-

sion, which states: "‘[a] property search may be conducted by any [pa-

role} agent if there is reasonable suspicion to believe that the real or

other property in the possession of or under the control of the offender

contains contraband or other evidence of violations of the conditions of

supervision.” /d. at 16a, n.11.

'* See Maryland v. Buie, 494 U.S. 325 (1990)(rejecting the state’s claim

that protective sweep of a home is valid without reasonable suspicion

when the area may contain someone who is a threat to the police; a pro-

tective sweep of a home is permissible only where there is reasonable

suspicion that the area to be swept harbors an individual posing a danger

to those on the arrest scene); see also Richards v. Wisconsin, 520 US.

— —. 117 S.Ct. 1416, 1421-22 (1997)\(rejecting a blanket rule permit-

ting police to effectuate an unannounced entry of a home whenever they

possess a search warrant for narcotics).

17

suspicionless searches ignores the central purpose of the bal-

ancing test endorsed in Griffin:

[U]nder the Camara balancing approach{,} no

greater intrusions should be made than "are

necessary to effect a proper rehabilitation [and

to ensure the public’s safety].". This is quite

different from the simplistic notions that the

probationer or parolee is equivalent to a prison-

er in terms of his Fourth Amendment rights or

that he can lose those rights by virtue of being

the recipient of an “act of grace" or by signing

them away in order to gain his freedom, for

these notions can readily lead to a degree of

surveillance which hinders efforts at rehabilita-

tion. This distinction is highlighted in Griffin

v. Wisconsin... ."°

Thus, the Fourth Amendment’s ultimate command of

reasonableness must govern the evaluation of the consent

form and any searches that it purports to authorize.’ It nec-

essarily follows from this premise that a mandatory consent

rule that effectively grants parole agents a commission to

search and seize at will does not satisfy the Fourth Amend-

ment’s reasonableness requirement.

" LaFave, supra, §10.10(cXfootnote omitted), discussing Welsh S.

White, "The Fourth Amendment Rights of Parolees and Probationers,”

31 U-Pitt.L.Rev. 167 (1969).

© See Robinette, 117 S.Ct. at 421 (in assessing whether a motorist gave

consent to search his car during a traffic stop, the Court "ha[s] long held

that the touchstone of the Fourth Amendment is reasonableness”).

18

lil. APPLYING THE EXCLUSIONARY RULE

ENCOURAGES PAROLE OFFICERS TO RE-

SPECT FOURTH AMENDMENT NORMS

Recognizing that parolees are not stripped of all Fourth

Amendment rights, the Pennsylvania Supreme Court re-

quired reasonable suspicion to search a parolee’s home.

That court then conducted a second balancing analysis to de-

termine whether the exclusionary rule should apply when

agents violate the Constitution. In finding the rule applica-

ble, the Pennsylvania high court issued a very narrow ruling.

It held that if a parole agent is aware of a Suspect’s parole

Status and engages in an illegal search, the exclusionary rule

applies at a subsequent parole revocation hearing."’

This holding is entirely consistent with what this Court

has often expressed as the deterrent purpose of the exclu-

sionary rule. See United States vy. Calandra, 414 U.S. 338,

347 (1974)(the exclusionary rule’s "prime purpose is to de-

ter future unlawful police conduct and thereby effectuate the

guarantee of the Fourth Amendment against unreasonable

searches and seizures").

Conversely, if the exclusionary rule did not apply in the

circumstances of this case,

there [would be] nothing to deter a parole

agent from conducting an illegal search or en-

gaging in other illegal activity to obtain evi-

dence. The parole agent could establish a pa-

role violation by means of illegally obtained

The correctness of this holding is the only exclusionary rule issue

before this Court. Accordingly, this Court need not and should not

decide whether the exclusionary rule also applies in parole revocation

hearings when the evidence is seized by a police officer that is purport-

edly unaware of the parolee’s status. Resolution of that important

Fourth Amendment question should await a proper record.

19

evidence in a proceeding which places a mini-

mal burden of proof upon the Commonwealth,

and the same result would be achieved as if the

parolee was criminally tried -- the parolee

would be incarcerated.

Pet.App. 15-16a.

Petitioner does not directly quarrel with this reasoning.

Instead, petitioner contends that, as a result of the decision

below, the exclusionary rule will apply in most revocation

hearings since parole agents "always know” the suspect they

are investigating is a parolee; "otherwise, the agents would

rot be interested in his activities or what he may have in his

residence." Brief for Petitioner at 32. But that factual ob-

servation, even if true, hardly diminishes the force of the

legal conclusion that the exclusionary rule is a necessary

prophylaxis to ensure that parole officers comply with the

Fourth Amendment.

Petitioner’s assertion that parole revocation hearings are

not criminal trials, id. at 29-33, is similarly beside the point.

It is precisely because parole revocation hearings provide an

alternative route to reincarceration for most parolees that the

exclusionary rule must apply in these circumstances. Other-

wise, there is very little incentive for a parole officer to

comply with the Fourth Amendment when searching a pa-

rolee’s home, and Griffin’s conclusion that the Fourth

Amendment protects probationers and parolees will be ren-

dered largely meaningless.'* That result promotes neither

privacy nor rehabilitation.

"In evaluating the need for a deterrent sanction, one

* Cf. Milton A. Loewenthal, "Evaluating the Exclusionary Rule in

Search and Seizure,” 49 UMKC L.Rev. 24, 29 ( 1980) finding that police

officers are less likely to comply with the Fourth Amendment if they

feel that evidence will be admitted anyway).

20

must first identify those who are to be deterred." United

States v. Janis, 428 U.S. 433, 448 (1976). Here, the rule

adopted below focuses directly on agents investigating

known parolees. Such agents have an obvious interest in

acquiring incriminating evidence and the Capacity to avoid

the customary constraints of the criminal justice process, in-

cluding most especially the exclusionary rule that would

normally apply in a criminal trial. By extending the exclu-

sionary rule to parole revocation hearings under these cir-

cumstances, the deterrent impact of the ruling below is pre-

cisely focused upon "the offending officer’s zone of primary

interest." Jd. at 458.

Petitioner also argues that the exclusionary rule should

not apply to parole revocation hearings because the Court

has not extended it to collateral contexts. Brief for Petitioner

at 27-28. To be sure, this Court has been reluctant to ex-

tend the exclusionary rule to proceedings other than the

criminal trial itself. See, e.g., Stone v. Powell, 428 U.S. 465

(1976); Calandra, 414 U.S. at 347: Janis, 428 U.S. at 448:

but cf. One Plymouth Sedan v. Pennsylvania, 380 U.S. 693,

700 (1965)(exclusionary rule applies to forfeiture proceeding

because the "object" of the proceeding, "like a criminal trial,

is to penalize for the commission of an offense against the

law"). At the same time, the Court has cautioned against

per se rules for determining when the exclusionary rule

should apply.'®

Application of a per se rule would be particularly inap-

propriate here since the revocation hearing is plainly not a

"collateral" proceeding for the parole agents involved. In

° See, e.g., Brown v. Illinois, 422 U.S. $90, 603 (1975). See also James

v. Illinois, 493 U.S. 307, 322 ( 1990\Kennedy, J., dissenting)"{i}mple-

mentation of the rule requires [the Court] to draw certain lines to effect

its purpose of deterring unlawful conduct").

21

fact, the opposite is true. The offending agent’s

primary objective, in practice, will be to use

evidence in the [revocation] proceeding. More-

over, here, in contrast to Janis, the [parole

agents] who effect the unlawful [search] are the

same officials who subsequently bring the [rev-

ocation] action.

INS v. Lopez-Mendoza, 468 U.S. 1032, 1043 (1984).

The rule established below does not require an inquiry

into the subjective intent of parole officers. The question of

whether a parole officer knows he is searching the home of

a parolee is an objective one. As the court below observed:

"Applying the [exclusionary] rule to the instant case, we

find that it is clear that Agents Mundro and Gallo knew [re-

spondent] was a parolee. This is established by the fact that

immediately prior to the search, the agents arrested [respon-

dent] for parole violations.” Pet.App. 17a.

This reliance on objectively verifiable facts echoes the

approach taken under the "independent source" rule. As

Justice Scalia explained the rule in Murray v. United States,

487 U.S. 533, 541 (1988): "The ultimate question . . . is

whether the search pursuant to warrant was in fact a genu-

inely independent source of the information and tangible

evidence at issue here. This would not have been the case

if the agents’ decision to seek the warrant was prompted by

*° INS v. Lopez-Mendoza ruled that the exclusionary rule is inapplicable

in a civil deportation hearing. The majority relied upon several factors

unique to the context of illegal immigration and deportation. 468 U.S.

at 1643-45. Of special relevance to the concern of deterrence was the

fact that “the INS has its own comprehensive scheme for deterring

Fourth Amendment violations” by training and discipline. /d. at 1044.

The record in this case reveals no similar program by petitioner to deter

Fourth Amendment violations by parole agents.

22

what they had seen during the initial [illegal] entry, or if in-

formation obtained during that entry was presented to the

Magistrate and affected his decision to issue the warrant."

Likewise, in this case,

"[iJf the search is made by a person who is

particularly responsible for the individual on

conditional release, such as his probation offi-

cer or parole officer, then it is clear that there

is a need to deter, for such persons will be pri-

marily interested in the question of whether the

individuals under their supervision will have

their conditional release revoked rather than

whether they will be convicted of a new of-

fense."

See LaFave, supra §1.6(g) at 180.7!

Petitioner and its amici‘ argue that extending the exclu-

sionary rule to revocation hearings will be useless. Petition-

er states that "parole agents under the circumstances of this

case are not seeking to convict the parolee of new criminal

offenses; therefore, application of the exclusionary rule in

this situation would have no deterrent effect whatsoever on

police behavior or a criminal prosecution." Brief for Peti-

tioner at 29. The Solicitor General asserts that agents are

unlikely to be subjected to the same institutional pressures

that confront police officers. Brief for the United States at

16. Each of these claims is badly flawed.

*' See also Mark E. Opalisky, "The Applicability of the Exclusionary

Rule to Probation Revocation Proceedings,” 17 Mem. St. U. L.Rev. 555.

568 (1987)("when an officer illegally seizes evidence knowing it cannot

be introduced in a criminal trial but believing it will nevertheless be ac-

cepted in a probation revocation proceeding, then the need to deter is

conspicuously present and the rule should apply”).

23

Petitioner's argument, of course, distorts the ruling

below. Applying the exclusionary rule here is not meant to

deter police officers; rather, the targets of deterrence are pa-

role agents. Moreover, although petitioner does not discuss

the matter, there are good reasons to believe that exclusion

will deter future unlawful acts by parole agents. Agents are

not only aware of the existence of search and seizure law,

they are also cognizant of the rule’s impact on revocation

hearings and criminal trials.”

Similarly, the Solicitor General’s assertion is not sup-

ported by empirical or other evidence. In theory, parole

agents utilize various models of supervision depending on

the needs of the parolee, the agent’s duties, and the desires

* See, e.g., Parole Commission, Department of Justice, “Paroling, Re-

committing and Supervising Federal Prisoners: Searches of Federal Pa-

rolees by U.S. Probation Officers,” 28 C.F.R. Part 2; 56 Fed. Reg.

30870 (July 8, 1991)(Parole Commission expands search authority “in

response to the concerns of U.S. Probation Officers that their supervision

of certain parolees cannot be effective without more expanded search

and seizure authority than the Commission has traditionally permitted"),

Judd D. Kutcher, "Looking at the Law," 46 Federal Probation 55, 56

(Sept. 1982)(describing the probation officer's role in search and seizure

of probationers, and noting that compliance with legal rules “should help

ensure that the results of a legitimate probate [sic] officer search are

admissible for revocation purposes"); Rolando V. del Carmen, “Potential

Liabilities of Probation and Parole Officers" 126 (Nationat Institute of

Corrections, Aug. 1985)(reporting that “survey of field officers revealed

significant concern with parole and probation conditions requiring re-

leased offenders to waive fourth amendment protections concerning

searches and seizures, and with searches in the absence of waiver condi-

tions"); id. at 146-47 (discussing the exclusionary rule and its relevance

to parole agents: “field officers may become, in the course of their du-

ties, the first government agents with the opportunity to secure evidence

of a crime. By acting properly at that point, they can contribute to a

successful law enforcement effort. Conversely, misconduct could ulti-

mately cause an objectively guilty person to escape proper sanction").

24

of the community. The most prevalent model used by

agents,however, is "the law enforcement model."” Studies

and press reports of supervised release programs show that

many locales embrace the law enforcement model.” More-

over, the claim that parole agents are free from the pressures

that affect police officers is undermined by the fact that

federal probation officers have themselves sought and

obtained additional search and seizure authority for super-

vising certain federal parolees. See n.22, supra. In sum,

empirical and other evidence confirms that parole agents

encounter vast incentives to evade constitutional rules. In

light of these incentives, the exclusionary rule is an essential

remedy to encourage parole agents to observe the

Constitution.

® See Cohen & Gobert, supra, §8,01 at 374 ("Observers have identified

three [models of supervision]: (1) the law enforcement model, where

officers see their job as protecting the community through close control

of the probationer or parolee; (2) the therapeutic model, where the offi-

cers focus on improving the welfare of the probationer or parolee; and

(3) the synthetic model, where the officers attempt to blend the control

and treatment functions. Although most agencies espouse the synthetic

model, they often in practice lean more toward a contro! model”).

** See, e.g., Joan Petersilia, “Probation and Felony Offenders,” 49 Fed.

Probation 4 (June 1985)\describing close supervision regime, which re-

quire probationers to follow strict curfew rules, maintain employment,

receive professional counseling, provide community service, submit to

random drug testing and make restitution), Matthew Purdy, “Visits and

Vigilance: Sex Offenders Shadowed by Parole Officers,” N.Y. Times,

June 8, 1997 (reporting extensive surveillance by parole officer of parol-

ees; officer describes his job as “neither to exact retribution nor to offer

compassion, but to keep [parolees] from committing the same crime

again”); Steve Elliott, "Probation Officer Turns Up HEAT,” Fresno Bee,

Nov. 27, 1997 (describing joint patrols by parole officers and police;

"[wJhat a probation officer brings to the HEAT team is the legal ability

to search without a warrant those already on probation").

25

CONCLUSION

For the reasons stated above, the judgment of the Penn-

sylvania Supreme Court should be affirmed.

(703) 684-8000

Respectfully submitted,

Tracey Maclin

(Counsel of Record) -

Boston University School of Law

765 Commonwealth Avenue

Boston, Massachusetts 02215

(617) 353-4688

Steven R. Shapiro

American Civil Liberties Union

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2500

Stefan Presser

ACLU of Pennsylvania Foundation

125 South Ninth Street

Philadelphia, Pennsylvania 19107

(215) 592-1513

Dated: January 30, 1998

26