Opposition — Zeta Chi Fraternity v. New Hampshire

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(2) r PILED

OCT 24 1997

No. 97-346 CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

ZETA CHI FRATERNITY,

Petitioner,

THE STATE OF NEW HAMPSHIRE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES SUPREME COURT

RESPONDENT’S BRIEF IN OPPOSITION

THE STATE OF NEW HAMPSHIRE

PHILIP T. MCLAUGHLIN

Attorney General

MICHAEL D. RAMSDELL*

Associate Attorney General

ANN M. RICE

Senior Assistant Attorney General

JOHN C. KISSINGER

Assistant Attorney General

CRIMINAL JUSTICE BUREAU

33 Capitol Street

Concord, New Hampshire 03301

(603) 271-3671

Attorneys for Respondent

* Counsel of Record

October 24, 1997

RE-STATED QUESTION PRESENTED

Whether a condition of probation, authorizing a probation

officer to conduct a warrantless search of the probationer’s

residence that is reasonably related to the supervision and

rehabilitation of the probationer, violates the Fourth Amend-

ment guarantee against unreasonable searches where there

is no requirement of individualized suspicion.

TABLE OF CONTENTS

Page

RESTATED QUESTION PRESENTED ...................... i

TABLE OF CONTENTS ...........-s:ssssssssssessersessessessenesess iii

TABLE OF AUTHORITIES. ..................sccsesssssecesseesseeees Vv

OPINION BELOW ..............000..ccccccossccssscecscessessnssscsceess 1

FUT IN ansaeccneecsseccncnccessecssecccccsoessceccseccesencssenesece 1

STATEMENT OF THE CASE. ...............:cccsseseseeeeeeseeees 1

DGEBA nae cassececnneeceseencecccrecccsveccccccscocscensvencssonesccaces 4

I. THE COURT IS WITHOUT JURISDICTION

TO CONSIDER THE ISSUE PRESENTED........ 4

A. The Case Is Moot .....................ccccsscssessersessoeee 4

B. The Case Does Not Present An Actual Con-

ETOVOTEY ....cccccersrecarceccsssccccccccsccccccsrsessesseosecceees 6

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227,

81 L. Ed. 2d 617, 57 S. Ct. 461 (1937) .................. 7

Asarco Inc. v. Kadish, 490 U.S. 605, 104 L. Ed.

COG, BOD TCR Tr Gi chic ine ccicitencntetccsnceticccis. 6

Burke v. Barnes, 479 U.S. 361, 93 L. Ed. 2d 732,

BOT BGs Ta Ce Pik incttinabaietcdccicteticnitinitsteines 4

Carafas v. Lavallee, 391 U.S. 234, 20 L. Ed. .

2d 554, 88 S. Ct. 1556 (1968) 0.0.0... eeeeeeeeeeeeeneees 5

Deakins v. Monaghan, 484 U.S. 193, 98 L. Ed.

2d 529, 108 S. Ct. 523 (1988) ..............cccccccccccccccccees 4

Fiswick v. United States, 329 U.S. 211, 91 L. Ed.

Fs ee IE encdctstinnciniencnsncinccsecuphitibiinies 5

Flast v. Cohen, 392 U.S. 83, 20 L. Ed. 2d 947,

SO FE Fa tit hacichctittinnthincernmibapsintennieiin 7

Horton v. California, 496 U.S. 128, 110 L. Ed. 2d

A ae ee Co raetethpedittenniciesnnctsnrsencens 6

Iron Arrow Honor Society v. Heckler, 464 U.S. 67,

78 L. Ed. 2d 58, 104 S. Ct. 373 (1988) .................. 6

Laird v. Tatum, 408 U.S. 1, 33 L. Ed. 2d 154,

FB | El. RRR er eres ere her meee nee 7

Page

FEDERAL CASES, Cont.

Minnesota v. Dickerson, 508 U.S. 366, 124 L. Ed.

24 334, 113 S. Ct. ZISO (1GOS) .........ccccccoscessescesseeee 4,6

North Carolina v. Rice, 404 U.S. 244, 30 L. Ed.

_ F&F Ef. 2 + SARS uar erate owen NENT 7

Sibron v. New York, 392 U.S. 40, 20 L. Ed. 2d

rg ee ee aie Ee A ccctiniticeccenneininindbinatinennennines 5

Sosna v. Iowa, 419 U.S. 393, 42 L. Ed. 2d 532,

Fe i ee Ee I cinisssnintinncnssnsinkanasecditeninicelaonintnaninune 5

United F. & C. Workers v. Brown Group, 134 L.

Ed. 2d 758, 116 S. Ct. 1529 (1996) ....................e00 6

Vernonia School Dist. 47J v. Acton, 515 U.S. 646,

132 L. Ed. 2d 564, 115 S. Ct. 2386 (19985) ............ 7

STATE CASES

Naylor v. Sup. Ct. of State of Ariz., Etc., 558 F.2d

1363 (1977), cert. denied, 435 U.S. 946, 55 L. Ed.

BE BOG, SB TCE. DEB CRITE) nccenotonncrsesvccetvecnsccccscees 5

Scott v. Pennsylvania Bd. of Probation & Parole,

698 A.2d 32 (Pa.1997), cert. petition filed, (U.S.

Sept. 30, 1997) (No. 97-581) ..............:ccccccesssserseeeeees 6

State v. Zeta Chi Beta Fraternity, 142 N.H. ;

GD A Fe Ga OP bccn citi inctnisctinitiathcensenstnaicass 1

IN THE

Supreme Court of the Huited States

OCTOBER TERM, 1997

ZETA CHI FRATERNITY,

Petitioner,

Vv.

THE STATE OF NEW HAMPSHIRE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES SUPREME COURT

RESPONDENT’S BRIEF IN OPPOSITION

OPINION BELOW

The opinion of the New Hampshire Supreme Court affirm-

ing the petitioner’s conviction is reported at 142 N.H. A

696 A.2d 530 (1997).

JURISDICTION

Judgment of the New Hampshire Supreme Court was

entered on May 22, 1997. The petitioner has invoked this

Court's jurisdiction pursuant to 28 U.S.C. §1257(a). However,

as discussed in detail infra, the respondent asserts that the

Court is without jurisdiction to address the issue presented.

STATEMENT OF THE CASE

The petitioner, a New Hampshire corporation, was charged

with the offenses of prostitution and prohibited sale of alco-

hol. A jury found the petitioner guilty as charged and the

New Hampshire Supreme Court affirmed the verdicts in an

opinion dated May 22, 1997. Appendix to Petition for Writ of

Certiorari (“Pet. App.”) at 1-28.

The relevant facts as found by the New Hampshire Su-

preme Court are fully set forth in the opinion from which

the petitioner appeals to this court. A review of those facts

reveals that on February 21, 1994, the petitioner, a fra-

ternity at the University of New Hampshire in Durham,

New Hampshire, held a “rush” at its fraternity house to

attract new members. To encourage people to attend, the

petitioner hired two female strippers to perform at the

event. Fraternity brothers encouraged the guests to pay

the strippers, and suggested that the extent and nature

of the women’s entertainment would depend upon the

amount of money they received. Over the course of the

evening, a number of guests performed oral sex on one of

the strippers in exchange for money. Pet. App. at 2.

During the party, one of the guests, nineteen year-old

Andrew Strachan, learned that beer was available from

a soda machine at the fraternity house. He found the ma-

chine, waited in line with three or four other people, and

eventually purchased three to five cans of beer. The ma-

chine and its proceeds were under the petitioner’s con-

trol. Pet. App. at 2-3.

Following its conviction, the petitioner was sentenced, in-

ter alia, to two years probation for the felony offense of ille-

gal sale of alcohol. The terms of probation included the fol-

lowing condition:

The [petitioner].shall not allow the consumption on

its premises of alcoholic beverages, and the

[petitioner’s] premises shall be subject to xnan-

nounced searches by the Department of Corrections

or the Durham Police Department to determine

compliance with . . . any condition of probation. A

violation found by the Durham Police Department

shall be brought to the attention of the Department

of Corrections.

Pet. App. at 13.

The petitioner appealed the sentence to the New

Hampshire Supreme Court, challenging the constitution-

ality of the above-quoted condition under the state and

federal constitutions. The petitioner asserted, inter alia,

- that the condition impermissibly authorized unan-

nounced, warrantless searches by probation officers and

the Durham Police Department. At oral argument before

the state court, the State conceded that to the extent the

probation condition allowed the Durham police indepen-

dently to search the petitioner’s corporate premises, the

condition was invalid. Pet. App. at 20. The New Hamp-

shire Supreme Court held that, “when a condition of

probation authorizes random warrantless searches and

the condition is reasonably related to the supervision

and rehabilitation of the probationer, a warrantless pro-

bation search is constitutionally permissible.” Pet. App.

at 17. However, because the sentencing order did not

mandate that the probation officer’s search be conducted

in a reasonable manner, as defined in the opinion, the

court vacated the sentence and remanded the case to the

trial court for resentencing not inconsistent with its

opinion. Pet. App. at 21.

On September 9, 1997, the sentencing order was amended

in accordance with the dictates of the New Hampshire Su-

preme Court. Appendix to Brief in Opposition (“Appendix”)

at la. In the interim, on November 10, 1996, the petitioner’s

probation expired under the express terms of the sentence.

Appendix at la.

ARGUMENT

I. THE COURT IS WITHOUT JURISDICTION TO

CONSIDER THE ISSUE PRESENTED

A. The Case Is Moot

Article III of the Constitution restricts the jurisdiction of

this Court to the “adjudication of actual, ongoing controver-

sies between litigants.” Deakins v. Monaghan, 484 U.S. 193,

199, 98 L. Ed. 2d 529, 108 S. Ct. 523 (1988). Jurisdiction

does not lie simply because a live controversy existed at the

time the case was decided by the lower court. Burke v. Barnes,

479 U.S. 361, 363, 93 L. Ed. 2d 732, 107 S. Ct. 734 (1987).

The dispute must be presently existing when the case is

considered by this Court.

The issue raised by the appellant concerns the application

of a condition of probation imposed upon it on November 10,

1994. By the express terms of the sentencing order, the pro-

bationary term expired on November 10, 1996, two years

after its imposition. Appendix at 2a. The appellant is no

longer subject to the challenged probationary term. Accord-

ingly, the issue of the constitutionality of that term, as ap-

plied to the appellant, is moot. See Burke v. Barnes, 479 US.

at 364, 93 L. Ed. 2d 732, 107 S. Ct. 734 (1987) (issue of

whether legislative bill became law was moot where bill ex-

pired by its own terms).

This is not a situation where potential collateral conse-

quences render what would otherwise be a moot issue live.

Compare Minnesota v. Dickerson, 508 U.S. 366, 371, n. 2, 124

'L. Ed. 2d 334, 113 S. Ct. 2130 (1993) (live controversy re-

mains, despite statute providing that finding of guilt not

deemed a conviction for purposes of legal disqualifications

arising from criminal convictions, where record of guilty find-

ing could be reinstated and used against respondent in fu-

ture criminal proceedings); Sibron v. New York, 392 U.S. 40,

55, 20 L. Ed. 2d 917, 88 S. Ct. 1829 (1968) (criminal matter

did not become moot upon satisfaction of sentence; possibil-

ity of adverse collateral legal consequences was sufficient to

create justiciable controversy); Carafas v. Lavallee, 391 U.S.

234, 237, 20 L. Ed. 2d 554, 88 S. Ct. 1556 (1968) (although

petitioner had fully satisfied his criminal sentence, challenge

to legality of sentence was not moot; the collateral conse-

quences flowing from conviction gave petitioner a “substan-

tial stake in the judgment of conviction which survives the

satisfaction of the sentence imposed on him.”) (quoting

Fiswick v. United States, 329 U.S. 211, 222, 91 L. Ed. 196,

203, 67 S.Ct. 224) (1946)). The appellant is not challenging

the legality of his underlying conviction or the imposition of

probation. It is simply disputing the constitutionality of one

specific, and now expired, condition of probation. Unlike a

criminal conviction, there are no “disabilities or burdens” that

may flow from the probationary condition. Thus, the appel-

lant has no ongoing stake in a determination of the condition’s

constitutionality. See Naylor v. Sup. Ct. of State of Ariz., Etc.,

558 F.2d 1363 (1977) (petitioner’s habeas challenge to legality

of underlying misdemeanor conviction was moot where im-

posed term of 90 days probation had expired and no adverse

collateral consequences from the conviction remained), cert.

denied, 435 U.S. 946, 55 L. Ed. 2d 544, 98 S.Ct. 1530 (1978).

Further, the issue the appellant seeks to litigate is not one

that will likely escape appellate review if raised in future

cases. See Sosna v. Iowa, 419 U.S. 393, 399-401, 42 L. Ed.

2d 532, 95 S. Ct. 553 (1975) (although named plaintiff was

no longer being harmed by enforcement of one-year residency

requirement, class action suit challenging constitutionality

of the requirement was not moot where issue was likely to

arise in future but escape appellate review because of

requirement’s time-limited applicability). Issues such as the

one presented here frequently arise in the context of an

appeal from a decision granting or denying a motion to sup-

Liars

press evidence gained as a result of an allegedly illegal

search. See, e.g., Minnesota v. Dickerson, 508 U.S. 366, 124

L.Ed. 2d 334, 113 S. Ct. 2130 (1993) (whether seizure of lump

of cocaine from defendant’s pocket, detected during frisk

search, violated Fourth Amendment where officer had to con-

duct further search to determine that lump was contraband);

Horton v. California, 496 U.S. 128, 110 L. Ed. 2d 112, 110

S. Ct. 2301 (1990) (whether warrantless seizure of weapons

from defendant’s home was prohibited by Fourth Amendment

where weapons were in plain view but discovery was not

inadvertent); Scott v. Pennsylvania Bd. of Probation & Pa-

role, 698 A.2d 32 (Pa.1997) (warrantless search of parolee’s

residence by parole officer found to violate Fourth Amend-

ment, notwithstanding parolee’s signing of parole agreement

authorizing warrantless search of residence, where search

not based on reasonable suspicion; evidence seized as a re-

sult held not admissible at parole revocation hearing) cert.

petition filed, (U.S. Sept. 30, 1997) (No. 97-581). As noted

above, such challenges typically do not become moot with the

passage of time due to the potential adverse collateral con-

sequences of a criminal conviction. See e.g. Minnesota v.

Dickerson, 508 U.S. at 371, n. 2.

B. The Case Does Not Present An Actual Con-

troversy

The Article III case-or-controversy restriction makes the

existence of a genuine controversy essential to the exercise

of this Court’s jurisdiction. Asarco Inc. v. Kadish, 490 U.S.

605, 619, 104 L. Ed. 696, 109 S. Ct. 2037 (1989). At a mini-

mum, it requires that the party invoking the Court’s authority

demonstrate that there is “(1) an injury in fact, (2) a causal

and (3) a likelihood that the injury will be redressed by a

favorable decision.” United F. & C. Workers v. Brown Group,

134 L. Ed. 2d 758, 766, 116 S. Ct. 1529 (1996). See also Iron

Arrow Honor Society v. Heckler, 464 U.S. 67, 70, 78 L. Ed.

2d 58, 104 S. Ct. 373 (1983) (“To satisfy the Art. III case-or-

controversy requirement, a litigant must have suffered some

actual injury that can be redressed by a favorable judicial

decision.”). No justiciable dispute is presented where a liti-

gant is seeking an advisory opinion based on a hypothetical

situation. Flast v. Cohen, 392 U.S. 83, 95, 20 L. Ed. 2d 947,

88 S.Ct. 1942 (1968). See also North Carolina v. Rice, 404

U.S. 244, 246, 30 L. Ed. 2d 413, 92 S.Ct. 402 (1971) (case

must present “real and substantial controversy admitting of

specific relief . . . , as distinguished from an opinion advis-

ing what the law would be upon a hypothetical state of facts.”)

(quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-

41, 81 L. Ed. 2d 617, 57 S. Ct. 461 (1937)).

The instant petition for certiorari presents no genuine,

justiciable controversy. The appellant does not assert that it

has suffered any injury as a result of the challenged condi-

tion of probation. Indeed, the petition is silent with respect

to whether the condition was actually enforced and under

what circumstances. The appellant is simply asking this Court

to advise the parties, without reference to the facts of a par-

ticular search, whether the probationary condition at issue

is violative of the fourth amendment guarantee against un-

reasonable searches. Compare Laird v. Tatum, 408 U.S. 1,

11-14, 33 L. Ed. 2d 154, 92 S. Ct. 2318 (1972) (declaratory

judgment action seeking declaration that litigant’s First

Amendment rights were being impermissibly chilled by cer-

tain governmental surveillance activities did not present

justiciable controversy where there was no claim of actual

injury; “Allegations of a subjective ‘chill’ are not an adequate

substitute for a claim of specific present objective harm or a

threat of specific future harm.”) with Vernonia School Dist.

47J v. Acton, 515 U.S. 646, 132 L. Ed. 2d 564, 115 S. Ct.

2386 (1995) (Court considered action seeking declaratory and

submit to random drug testing where litigant had been pro-

hibited from engaging in activities because parents refused

to sign testing consent form). The Constitution does not per-

mit the issuance of such advisory opinions.

CONCLUSION

Although the petitioner is correct in its assertion that

there is currently a split of authority on the issue of

whether a probation search must be justified by individu-

alized suspicion, this is not a case in which the Court

should address the issue. Not only is the issue moot and

no genuine controversy is presented, the facts of the case

are relatively unique. The petitioner is a corporation and

the issues surrounding the search of a corporate premises

may differ from those involved in the search of an indi-

vidual. Accordingly, a decision by this Court in this case

may not have broad applicability.

For the foregoing reasons, the Petition for Writ of Certio-

rari should be denied.

Respectfully submitted,

THE STATE OF NEW HAMPSHIRE

By its attorneys,

PHILIP T MCLAUGHLIN

MICHAEL D. RAMSDELL

Associate Attorney General

CRIMINAL JUSTICE BUREAU

33 Capitol Street

Concord, New Hampshire 03301

(603) 271-3671

IN THE

Supreme Court of the Buited States

OCTOBER TERM, 1997

ZETA CHI FRATERNITY,

sentiaie

Vv.

THE STATE OF NEW HAMPSHIRE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES SUPREME COURT

_—_RESPONDENT’S BRIEF IN OPPOSITION

APPENDIX

APPENDIX la

THE STATE OF NEW HAMPSHIRE

Strafford County Superior Court No. 94-S-197-F

Name: Zeta Chi Fraternity, Assoc,. UNH, 17 Madbury Rd., Dutnare NH DOB: nia

Offense: Prohibited Sales RSA: 175:6 Date: 02/21/94

Disposition: Guity By O Pes SB Juy O Coun . TIN: na

on 10/7/94

Sermence: 11/10/94: A finding of Guilty is entered. Def. Zets Chi is sentenced as follows: Def. is fined $50,000.00 Plus

statutory Denaity sssessmem. Al of "he fine & peneiry Assessment are suspended on the followwg cond: Serweesr

12/94 & 6/96, members of the def. corporsnon perform 2500 hrs. of communmty serwce under the Girecnon of the

Oest.of Cor.’s. Ow. of Fusid Services im Strafterd Cry. on such progects & such ume schedules as the Dept of Cor.'s deems

accroonste, & def. shall not allow the consumpnon of sicohokc beverages on ts prermses m Ourhern, NK for s ors of 2 wri

Eine & penaity assessment mey be brougt forward onty win 3 yrs. of tus dete. Ost. is pieced on prod. for 2 ws. on such

terms as to supervision as the Dept. of Cor.’s deems approprista. RSA 6$1:2.V. As cond.’s of prob.. the def. shall not slow

“ne consumopnon of sicohome beverages on ms premses m Ourham. NH & the coef 5 crerruses shall De subject to unannounces

seerches by the Dept. of Cor 5. or the Durham Pokce Oepertment to Getermane comphence ~/peregrann 2 of ine conc o/

suspension & amy cand. of prob. Amy Vici found Dy the Durem Pomce Onot shell be Drougnt to the sttermon of the Dect

of Cor.'s. Supener Court Rute 107 thi. Oet.. trough as officers shel meet w/the Div. of Fats Serv. win 10 days to

implement the terms & cond. of tus order. Vici. of the terms & cond. of prod. may resuft in the revocavon of prod. & tne

emposipon of any sen. wn the fmm prescribed by lew for tus ocfense. Thes semi ss consecupve to the sent. m 94-S-198-F

So Ordered. (MOML PJ) :

9/9/37: Agreement amending the sentence: in accordance w the NH Supreme Cr. decamon of $/22/97. the cond.'s

of DFO. DOTDON of The sem. in the BDove marter may be amended by GelenNg from the 11th be of sad sentence he words

“or tne Durnam Police Oest.” & Dy delenng te sentence. “ary wol found by the Durham Pokce Dept. shall be brought to

The SOM. im Tus matter wto Compkance w/the storesad Nh Sup. Cr decomon & = Not intended amy werver of the def 5 ngnts

10 fwe an Appes! of the storesac NH Supreme Cr cecauor w the Suoreme Co of the US #3 to whether or nota cond of

FOS whech prowdes ist 8 orob officer can conduct searches w/o Mormcuskred susfEGOr wolstes The 4th smencmert 5

JUSrErtee egaEs! UWeRasonedie searches oF Bs ID any Other Guesnons & csues if ous Metter wfuch muy De sccEapted Dy he

Sue. Cr. of the US for determination. SO ORDERED (MOML PJ)

iuionms BRUCE £. MOM. aula W. Howard

ome Se ee —

C Defendant @ Prosecuting Attorney = Office of Cost Containment

s .

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