Transcript

IN THE SUPREME COURT OF THE UNITED STATES

JOSEPH G. GRIFFIN, Petitioner v. WISCONSIN

No. 86-5324

April 20, 1987

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 12:59 o'clock p.m.

APPEARANCES:

ALAN G. HABERMEHL, ESQ., Madison, Wisc.; on behalf of Petitioner

BARRY M. LEVENSON, ESQ., Madison, Wisc.; on behalf of Respondent

PROCEEDINGS

CHIEF JUSTICE REHNQUIST: We'll hear argument first this afternoon in No. 86-5323, Joseph Griffin versus Wisconsin. Mr. Habermehl, you may proceed whenever you're ready.

ORAL ARGUMENT OF ALAN G. HABERMEHL, ESQ. ON BEHALF OF PETITIONER

MR. HABERMEHL: Mr. Chief Justice and may it please the Court:

If there is any principle which is at the very bedrock of this Court's Fourth Amendment jurisprudence, it has to be that, in the absence of consent or exigent circumstances, the warrantless search of a person's own home is always and at every time and place unreasonable, it is always a violation of the Fourth Amendment, and that's all there is to it.

This Court has consistently taken that position, no matter what alternative positions have been urged to it by the Government in a variety of factual situations.

The case before this Court involves exactly that kind of search. Joseph Griffin, although he was on probation, was nonetheless in his own home when the search occurred. There was no warrant obtained, there was not even an attempt to get a warrant. There was no consent obtained to the search. There were no exigent circumstances to justify the search.

In short --

QUESTION: Mr. Habermehl, was there some kind of consent expressed in the probation terms and conditions?

MR. HABERMEHL: The record in this case is devoid of any evidence that Mr. Griffin was ever presented with or agreed to any terms or conditions whatsoever of probation. The state has made allegations as to what the general practice is with the government.

And if the question goes to whether or not a rule were to, say, require that as a condition of probation a person consent to the search, my response to that would be that that is not consent within the meaning of the term as it's been used by this Court in allowing exceptions to the warrant.

That kind of consent is, I think, patently and clearly on its face coerced. It is a question of holding out to the probationer: You either agree to give up your otherwise existing constitutional right to be free of warrantless searches or you get to go to prison instead of being on probation.

QUESTION: Are you suggesting that the Government can't impose any conditions on a probationer that might affect, that might treat the probationer differently for constitutional purposes than someone who had never been convicted of a crime?

MR. HABERMEHL: Certainly not. I am suggesting that at a minimum one thing they cannot do is require the probationer to give up his right to be free of warrantless searches of his own home.

QUESTION: Well, do you think they can require a probationer to associate only with law-abiding people?

MR. HABERMEHL: That is commonly done. I think it could be challenged on a case by case basis as being unreasonable and perhaps even impossible, given the number of people in our society who are obviously not law-abiding.

But I think that could be done if there were some particular reason to do so, yes.

QUESTION: So the probation-imposing judge could limit a person's constitutional right of association in that situation?

MR. HABERMEHL: I think so. But again, I --

QUESTION: And his right to travel?

MR. HABERMEHL: Again, another constitutional right that I think could be limited if there were some particularized reason for it, as opposed to a simple blanket prohibition across the board for no reason whatsoever.

QUESTION: You mean they have to have a special reason to say, remain within the state?

MR. HABERMEHL: I think as a matter of constitutional law, if they're going to take away fundamental freedoms, which I believe the right to travel is recognized as being, that yes.

QUESTION: What if you're wrong on that? Are you also wrong on your present submission?

MR. HABERMEHL: No. I think that we're talking about a Fourth Amendment issue here and I think we can limit it to the Fourth Amendment issue.

QUESTION: How? On what basis? Is the right to travel less fundamental, or the right to associate?

MR. HABERMEHL: I think there are indeed few, if any, rights more basic, individual citizenship rights.

QUESTION: Are there any?

MR. HABERMEHL: The right to vote, I suppose, is equally basic. I don't think a judge could take away that right from a probationer just because he's on probation, either.

Yes, at a minimum those. The right to travel could, I think, more readily be tied into the legitimate purposes of probation. It's difficult to supervise a person if they can go too far away without you having some control.

QUESTION: You say that they're taking something away from. They're not really taking something away from him. In the travel situation, they're giving him something. I mean, before he couldn't travel outside of the cell. Now they're saying you can travel anywhere in the state.

It seems to me rather perverse to say they're taking away his right to travel. They're giving him the right to travel. What you're saying is they have to give him the right to travel throughout the United States, or the world, for that matter, I presume, right?

MR. HABERMEHL: No, I did not say they have to. And your argument presumes that in fact they had been released from a cell, that is to say that the fact of criminal conviction took away all their rights and it's up to the Government to give back just as many as it pleases.

I believe this Court has in fact rejected that argument. In Morrissey versus Brewer, this Court stated that probationers do retain fundamental freedoms.

QUESTION: But not the right to travel anywhere they want. I mean, if incarceration means anything it means you can't travel anywhere you want.

MR. HABERMEHL: Probation is the antithesis of incarceration.

QUESTION: That's right.

MR. HABERMEHL: And is not incarceration.

QUESTION: I understand that. But what you're saying is you have to go all the way or you can't go at all. You have to either leave him in the cell or else let him travel throughout the United States.

MR. HABERMEHL: I did not say that. I believe a legitimate -- particularly with travel, that a legitimate concern of probation is to be able to maintain contact with the probationer, and in that regard I think a legitimate and reasonably framed restriction on a person's right to travel could indeed be imposed.

If a person were restricted to travel, for instance, to the point of not traveling outside their bedroom, we would probably have done it to the point of incarcerating them, and I don't think that's reasonable.

QUESTION: They're allowed to incarcerate him. He's been duly convicted and adjudged incarcerable for a period of time. So why can't the state say, instead of letting you stay in your cell, we're going to let you stay in your room at home?

The state couldn't do that? That would be unconstitutional?

MR. HABERMEHL: I did not say that. It obviously would be constitutional to let them stay in their room at home. What is unconstitutional --

QUESTION: So why can't they say, we'll let you stay anywhere in this state, but not outside of this state?

MR. HABERMEHL: They could if it had a legitimate relationship to the purposes of probation.

QUESTION: No, no legitimate. That they just said, we're going to let you do it.

MR. HABERMEHL: The mere fact of being criminally convicted does not permit the state to take away all of one's constitutional rights.

QUESTION: But they can keep you in a cell; they just can't keep you in the state?

MR. HABERMEHL: They could do both, either. When they have chosen not to keep you in a cell, they have made that choice. Having made that choice, there is then no reason to allow them to tell you you have to subject your house to a warrantless search.

QUESTION: But that's only because you say so.

QUESTION: What case are you relying on?

MR. HABERMEHL: This Court has repeatedly stated --

QUESTION: In what cases?

MR. HABERMEHL: There is no case before this Court. This Court has never decided the issue before. There is no precedent one way or the other.

QUESTION: Well, if it's repeatedly stated, I take it those statements have occurred in written opinions of the Court?

MR. HABERMEHL: This Court has repeatedly stated that a person has the right in a person's own home to be free of warrantless searches and seizures.

QUESTION: But they weren't talking about probationers.

MR. HABERMEHL: They were not talking about probationers.

QUESTION: How about the right to vote? Do you think all -- how many states forbid felons to vote?

MR. HABERMEHL: My understanding -- I don't know how many states.

QUESTION: They used to quite frequently. Do they still?

MR. HABERMEHL: In Wisconsin, it's my understanding that felons are prohibited from voting during the period of their actual incarceration, while they're serving their sentence, and that subsequent to that they regain their civil rights.

QUESTION: When they're on probation, they are?

MR. HABERMEHL: Pardon me?

QUESTION: When they're on probation, they have regained their civil rights?

MR. HABERMEHL: It's my understanding that when they're on probation they do not vote.

QUESTION: And so you think that's unconstitutional, too? That's taking away a rather fundamental right, you say.

MR. HABERMEHL: I don't have an opinion. It's not a fact at issue in this case.

What we have at issue, again, in this --

QUESTION: If you are correct that the state is so limited in what terms and conditions it can impose on probation, it seems to me it would be a major disincentive for states to ever put someone on probation at all. The whole idea of probation is to release someone under enough restrictions in the terms and conditions that it becomes possible to let them have some limited freedom in society.

But if your view of this matter is to prevail, why wouldn't judges prefer to incarcerate someone?

MR. HABERMEHL: The state has made the argument in this case that in fact by letting the government do warrantless searches they're doing defendants a favor, because that will encourage them putting them on probation.

The state has advanced no facts. That's a factual assertion and there's no evidence in the record to support it. Furthermore --

QUESTION: Well, I've been a trial judge and it certainly would have influenced me. It's just a matter of common sense. If I had thought as a trial judge that I couldn't place someone on probation with some meaningful terms and conditions and restrictions, I think there are many times when I would have had to rethink the desirability of extending probation.

Why isn't probation jail without walls, in effect?

MR. HABERMEHL: The specific condition of probation that's at issue in this case is the specific issue of warrantless searches of a person's own home. It has been my experience in dealing with judges as to when they do and do not put people on probation that the question of whether or not someone's going to be allowed to warrantlessly search their home does not arise and has not been a factor, as opposed to the more likely factor of has this person got a good record or a bad record, are they likely to commit further crimes, or are they not, is this a serious offense or a minor offense, do we have room in our overcrowded jails or prisons for this person, or is it more rational to put them on probation.

None of those issues and concerns implicate whether or not their house can be subject to a warrantless search. The government states in its brief, and I think it's probably true, that in fact these search cases with probationers are not all that incredibly common, that issues arising out of searches, as opposed to the more common ways people get in trouble on probation, simply for committing new offenses, for failing to report or whatever, that these search issues are not that common that it is statistically that significant that it's going to result in a large change in the way judges view putting people on probation.

And frankly, I think the government's concern for defendants to the extent of saying that they're doing them a favor by denying them a constitutional right strikes me as self-contradictory.

QUESTION: Can I come back to your assertion that consent is not at all in this case. Can't we take judicial notice of a statute and of administrative code provisions?

I mean, we do know that the administrative code here explicitly says that a search of a client's living quarters or property may be conducted by field staff if there are reasonable grounds to believe that the quarters or property contain contraband.

MR. HABERMEHL: The administrative code clearly purports to allow such searches. It doesn't say anything about obtaining consent from probationers, nor does it say anything about whether or not probationers are going to be asked first whether they consent to the search.

QUESTION: Probationers consented to probation, didn't they?

MR. HABERMEHL: They did indeed.

QUESTION: Well, let's say someone consents to being convicted of a lesser included offense by a plea bargain. Doesn't he take everything that goes with that conviction? He may not know what the prison rules that guilty plea is going to subject him to. But by consenting to the law, he consents to everything that goes with the law.

Why isn't that the same thing here?

MR. HABERMEHL: What happens specifically with the search issue is that this Court has defined consent in such a way as to require it to be freely and knowingly and voluntarily given. And when the consent is going to be conditioned upon the alternative is to go to prison, you can't have probation unless you give up your other constitutional right, you are telling people they have to trade these rights.

QUESTION: Well, the plea bargain is bad then, too?

MR. HABERMEHL: No, the plea bargain is not bad.

QUESTION: Well, it's the same thing there. You're trading. You know, the alternative is something else that's nasty that's going to happen to you.

MR. HABERMEHL: This Court has stated that, in the context of plea bargaining, it is not a violation of due process to give people that choice. Subsequent to the conviction coming down, it becomes, for instance, a violation of due process. It is not consent to up penalties in return for them exercising constitutional rights.

And I believe in the context, finally, of search and seizure, which is occurring after conviction and has nothing to do with the conviction, that at that point you no longer can trade one right for the other.

QUESTION: Your supreme court did not rely on consent at all, did it?

MR. HABERMEHL: No, the Wisconsin Supreme Court specifically did not rely on consent. Consent has never been argued by the state at any one of the three levels in the state court in which this case has been litigated and has not been established in the record.

QUESTION: It depends on what you mean by consent. In the Wisconsin Supreme Court's opinion, that could be interpreted to say it wasn't relying on the fact that at the time of the entry your client consented.

MR. HABERMEHL: And that is exactly the kind of consent this Court has consistently talked about when it talks about consent to a search.

QUESTION: I think we all agree that that consent is not in the case. But that still leaves the question of whether, in agreeing to accept probation, your client agrees to accept the rules that go with probation.

What about the other rules? Can none of the probationary rules be enforced because your client was not specifically advised about them? They were coerced also, I presume, right?

MR. HABERMEHL: As a matter of fact, the law in Wisconsin is indeed that you cannot enforce probationary conditions unless you advise the client of them, with the general exception of the one condition that states that you shall not commit a further crime. And as to that condition, they assume that everyone knows that one.

QUESTION: But you say your client wasn't advised of any of these?

MR. HABERMEHL: The record is silent.

QUESTION: But Wisconsin law requires --

MR. HABERMEHL: It was the government's burden to demonstrate it and they did not.

QUESTION: So you say that if a probationer -- if one of the conditions is that he not travel more than 100 miles from his home, that unless he has expressly consented to that that can't be enforced as a term of probation?

MR. HABERMEHL: That is exactly correct, and exactly what happens is --

QUESTION: What case is it of ours that supports that proposition?

MR. HABERMEHL: I was referring to Wisconsin law and what happens in Wisconsin.

QUESTION: No, I meant as a matter of federal constitutional law, or weren't you talking about federal constitutional law?

MR. HABERMEHL: I was not. I didn't understand that to be the question.

QUESTION: You don't say that as a matter of federal constitutional law these conditions of probation may not be enforced unless there is consent, even though the conditions may affect constitutional rights?

MR. HABERMEHL: What needs to be shown is knowledge of them. I think consent of probation conditions quite frankly --

QUESTION: Is that a federal constitutional requirement?

MR. HABERMEHL: I believe it is a constitutional requirement of due process that a person be advised of what conduct will constitute a violation before that violation occurs, or else you can't punish them for it.

QUESTION: But I mean, that is far different from consent. A probationer could simply be served with a copy of the probation conditions and that would be notice, I take it.

MR. HABERMEHL: Exactly, and I don't think the issue of consent in that case, frankly, has any meaning.

QUESTION: And you don't contend here that probationer didn't have notice of the conditions of probation?

MR. HABERMEHL: The record is silent, but that is not my contention. I don't think that's the issue in this case, although the record is silent.

QUESTION: You take the case as though he knew what the conditions of probation were. He may not have consented to them, but he knew. And you say that that is not enough to permit a search without a warrant?

MR. HABERMEHL: On the contrary, to the extent that the issue matters, the record is silent and it is the government's burden to show knowledge, and they have failed to do so. It is not my burden to show that it didn't exist.

QUESTION: Why is it the government's burden? Why is it the government's burden?

MR. HABERMEHL: Because it is the government's burden to justify the warrantless search. That is this Court's rule.

QUESTION: You say then as a matter of Fourth Amendment law it's the government's burden to show knowledge of the probation conditions?

MR. HABERMEHL: If they are going to seek an exception to the Fourth Amendment based upon the probation conditions, yes.

QUESTION: If the state shows that the following rules control all probationers and your client accepts probation, does he not accept the rules, without more?

MR. HABERMEHL: No, I do not believe he accepts them.

QUESTION: (Inaudible) apply to?

MR. HABERMEHL: I do not believe we are talking about a contract. What we are doing is challenging the constitutionality of a statute, or in this case --

QUESTION: But you didn't challenge it when you took probation.

MR. HABERMEHL: What I am saying in that regard --

QUESTION: Did you challenge it?

MR. HABERMEHL: Me personally, no.

QUESTION: Your client.

MR. HABERMEHL: Did Mr. Griffin challenge it?

QUESTION: Did your client challenge it?

MR. HABERMEHL: To my knowledge, no, I don't know one way or the other whether he did or not.

QUESTION: Well, if he didn't challenge it then he accepted it.

MR. HABERMEHL: I don't know whether he challenged it or not. I did not represent him at the time and the record is silent.

QUESTION: Well, if the rules are and the law is that if you accept probation you accept these rules without more, and you accept probation, don't you accept the rules?

MR. HABERMEHL: That isn't the issue by this Court to be decided. The issue here is whether the government can constitutionally make people accept.

QUESTION: But can't you decide it right now yes or no?

MR. HABERMEHL: No, I do not believe that indicates that you have accepted the rules. You have acquiesced in being put on probation.

QUESTION: Acquiesce is the same as acceptance.

MR. HABERMEHL: Not in the sense that you agree to it.

QUESTION: Well, what do you mean? He has to come out and give an affidavit?

MR. HABERMEHL: If a person is going to consent, I believe the consent or acceptance, to be meaningful in a constitutional sense, has to be free and voluntary. And when a person is not given the choice, then I do not believe he has consented.

And I believe the issue in this case is whether the government can indeed put the person to that choice constitutionally, and if so why they should be allowed to do so.

QUESTION: Well, why didn't you do that at the time probation was given?

MR. HABERMEHL: I was not representing him at that time and I do not know why he did or did not do it.

QUESTION: Well, again, why didn't your client do it?

MR. HABERMEHL: I don't know. I don't even know that he was aware of its existence.

QUESTION: Well, is there anything in the record that shows he objected to the rules of probation?

MR. HABERMEHL: There's nothing in the record to show anything about the rules one way or the other.

QUESTION: Is there anything in the record to show that he objected to it?

MR. HABERMEHL: No.

QUESTION: Mr. Habermehl, do you acknowledge that this case would be a different case if we were dealing with a state that did not have any rules governing probation that set forth explicitly at the time the individual accepted probation that he would be subject to warrantless searches?

As far as you're concerned, there's no difference in the two cases? State A that has no such rules and right out of nowhere a probationer is confronted with a parole officer who crashes into his house and says, I'm searching your room, surely that's a different case from one where, when your client accepts probation, the probation rules say all probationers are subject to warrantless searches.

MR. HABERMEHL: It is my position that, to the extent that we're talking about whether or not the search itself can be permitted, that the knowledge of the existence of the rule is not the same as constitutionally satisfactory consent, and therefore it doesn't matter whether the rule exists.

On the other hand, I could make a stronger case saying that also, without prior knowledge of the rule, that in fact it was obvious there was no consent or even knowledge. You could find, I think, a due process violation there as well.

As to the Fourth Amendment issue, though, simply promulgating the rule and thereby saying, now we've issued the rule and therefore you've no longer got a privacy right, begs the question. The question is whether the state can be allowed to issue the rule in the first place.

QUESTION: Wasn't this search pursuant to a regulation?

MR. HABERMEHL: There is no evidence in the record as to whether it was or was not.

QUESTION: Well, was there a regulation in existence?

MR. HABERMEHL: I believe there was.

QUESTION: Saying when you may conduct searches of probationers?

MR. HABERMEHL: I believe there was.

QUESTION: What did it say, or do you know?

MR. HABERMEHL: The current rule has a very explicit list of regulations, which is set forth verbatim in the Wisconsin Supreme Court decision. The rule in 1983 I believe was the same.

QUESTION: Well, it didn't authorize just searches for anything or just any time somebody wanted to search. There had to be reasonable suspicion. And what kind of a search was authorized by the regulations? For what?

MR. HABERMEHL: Contraband, among other things, contraband being defined as --

QUESTION: What are the other things?

MR. HABERMEHL: I suspect for violations, for evidence of any violation.

QUESTION: You don't have to suspect. You ought to say what the rule is.

MR. HABERMEHL: I'm sorry. I have the rule in front of me.

QUESTION: That's the only one, I think, isn't it?

MR. HABERMEHL: The rule in particular is with specific regard to searching for contraband. Contraband in that sense I believe --

QUESTION: Is that what this search was for?

MR. HABERMEHL: Clearly.

QUESTION: Yes?

MR. HABERMEHL: Yes, it clearly was, yes.

Mr. Lew's understanding of the rule -- and if we're going to get into the issue of reliance on these rules, according to the record Mr. Lew's understanding of the rule was that he either had to have probable cause or authority of the supervisor.

That was his answer to the question of what did he have to have under this administrative regulation. And since he was the supervisor, he authorized himself to search.

That was a completely incorrect understanding of the rule, and so the answer to whether the --

QUESTION: You're not contesting it on the basis that there was no reasonable grounds to believe that the quarters or property contained contraband? That hasn't been the basis of your attack.

MR. HABERMEHL: On the contrary, it is. It is one of the three things I have raised in the petition for certiorari.

QUESTION: That there was no reasonable cause to believe?

MR. HABERMEHL: That is correct, neither probable cause nor reasonable cause.

The reason warrants are required is not just because this Court thinks it's a good idea. It's in the Constitution and it's in the Constitution because the founding fathers of this country thought it was a good idea, and they thought it was a good idea to prevent general searches by government agents.

The Constitution says the people shall be secure in, among other things, their houses from unreasonable searches, and that no warrant shall issue --

QUESTION: The issue is the unreasonableness?

MR. HABERMEHL: Certainly, and this Court has said --

QUESTION: And the Constitution doesn't say this kind of a search is unreasonable.

MR. HABERMEHL: It certainly does not. It doesn't say anything about what kind of search is or is not unreasonable, other than that warrants must issue upon probable cause and can't be just general warrants, they have to be specific.

This Court has consistently interpreted those words in the Constitution in an ironclad fashion to say exactly the following: that absent a consent or exigent circumstances, a warrantless search of a house is per se unconstitutional.

QUESTION: Well, who said that you could get into a house without a warrant in exigent circumstances? A court did, didn't it?

MR. HABERMEHL: This Court did.

QUESTION: A court decided it was reasonable to get into a house when exigent circumstances exist.

MR. HABERMEHL: That's right, and the Court has decided that because the exigent circumstances exception takes as a given that in tact there is no time to obtain a warrant. We're not dealing with exigent circumstances in this case. No one in the court below claimed or demonstrated exigent circumstances.

The only exception this Court has recognized to the warrant requirement for homes is either true consent, in the sense of a knowing and voluntary, they're at the door, you agree to let them come in consent, or exigent circumstances, and that's where the warrant is impractical to obtain.

QUESTION: Mr. Habermehl, what about an exception for -- say that the parole officer did not want to rummage through desk drawers and open drawers and look, but just wanted to come in and look around and talk to the probationer in his home. Would the Fourth Amendment preclude the probation officer from insisting on making a visit?

MR. HABERMEHL: I believe it would not. That's the Wyman versus James situation, and I think what distinguishes that sort of home visit from a search is twofold:

First of all, it's obviously and directly related to the supervisory and rehabilitative functions of probation.

But second and more important, its purpose is not to find evidence of wrongdoing. Its purpose is to maintain contact with the probationer, to just go there, see him, speak with him in his surroundings. And indeed, that may be better than hauling him down to the office.

But its purpose isn't to find things.

QUESTION: Would you agree that the parole officer could -- say he answered the door and he said: I'd rather you come back tomorrow; the house is a little messy. And the parole officer said: No, I want to come in right now and just sit down and talk to you.

MR. HABERMEHL: I believe a parole officer or a probation officer could do that. And again, the reason I say that and why it does not implicate the Fourth Amendment is that in fact it is not a search, and not being a search it is not a violation of the Fourth Amendment's proscription against unreasonable searches.

QUESTION: It is an entry to the home, though.

MR. HABERMEHL: It certainly is an entry to the home. What makes a thing a search is looking for something. At that point, the probation officer is not in fact looking for any evidence of wrongdoing.

QUESTION: What if the probation officer walks in during one of these visits, finds a BAR on the table? Can he have that seized?

MR. HABERMEHL: Yes, I'm perfectly willing to accept that, if the initial entry is legitimate, that is to say it is a non-search, a simple visit of the home --

QUESTION: So long as he didn't intend to look for that?

MR. HABERMEHL: Exactly, and I think that's an essential element of the plain view exception to needing a warrant, that in fact a discovery be inadvertent. And that would fit perfectly. I don't have any problem with that. I think that fits just fine within the constitutional framework.

QUESTION: If the problem had been that the defendant was an abuser of alcohol and the probation officer suspected he was going home every day and getting drunk, I suppose under your view the probation officer couldn't make a home visit?

MR. HABERMEHL: Depending on the purpose of it, if it was only to --

QUESTION: To see if he was in fact coming home every day and getting drunk.

MR. HABERMEHL: He could go visit to talk with him. I don't think he could go visit to rummage around the house and look for the empty bottles.

QUESTION: To see if he had alcohol on his breath.

MR. HABERMEHL: I think he could go that far, because I do not believe that's a search, talking to someone and smelling their breath. Your breath is something you exhibit to the public, and I do not believe that constitutes a search.

I have no problem with that, either, as opposed to, for instance, taking a blood sample, which I think clearly would be a search and would require more.

QUESTION: Mr. Habermehl, I apologize for not realizing that you were not just challenging the lack of probable cause, but also whether even reasonable grounds to believe existed here.

MR. HABERMEHL: I believe I made that clear.

QUESTION: It is clear.

Why is it you say that there were no -- not even reasonable grounds to believe? There was a tip from another police officer.

MR. HABERMEHL: The tip specifically -- and it was from some informant, who no one knows who it is, who gave information to a police officer, who no one knows who it is, who then apparently relayed it on to the probation officer.

The tip consisted of nothing more than --

QUESTION: But Mr. Habermehl, is it even clear that any informant ever talked to a police officer? No police officer ever testified that he talked to any informant, did he?

The probation officer said some unnamed police officer told him he'd been talked to.

MR. HABERMEHL: At the trial, Truit Pitner, the officer, testified that -- and this is at appendix page 39 -- that although he was not the person, to the best of his recollection, that nonetheless he had received -- that it was his understanding that the police department had "received reliable information" about the gun.

QUESTION: It was his understanding.

MR. HABERMEHL: That's correct.

QUESTION: But no police officer testified that he received any tip from any informant.

MR. HABERMEHL: That's correct, mainly because no one could ever find out who the police officer was who spoke to Mr. Lew in the first place. But your point is correct.

QUESTION: So there is no testimony that any informant actually talked to any police officer.

MR. HABERMEHL: That's correct. There is absolutely no information in the record whatsoever as to the source of this tip, nor is there any internal corroboration to it or external corroboration, nor any attempt made to corroborate it.

Reasonable grounds, as this Court has defined it, to my understanding in making even a traffic stop requires a specific and articulable set of facts from which an objective person could make inferences. And it has to have some sort of reliability, not just a little birdie whispered in my ear. And all we have here is, a little birdie whispered in my ear, and there's no way to tell how reasonable the basis of that information is.

QUESTION: May I ask, do we even know that the person who talked to the parole officer and said he was a police officer, that he was really a police officer?

MR. HABERMEHL: No, there's no way to tell that from the record, because he's unidentifiable.

QUESTION: So it could have been a third party who just called him up and said: I'm a police officer and I think there's something in that house.

MR. HABERMEHL: It's perfectly possible.

The one last point I wanted to make, as long as I had a minute, that I think the Wisconsin court ignored and I think can deal with some of the other issues that have been raised is that --

QUESTION: Excuse me. Before you get off on that, because this is an important point to me, is this a question of state law or federal law? If they fail to comply with the reasonable grounds to believe provision, they are failing to comply with a state statute. Is that a question of federal law?

MR. HABERMEHL: It's my understanding that the reasonable grounds which would justify this Fourth Amendment search would be a federal as well as state constitutional requirement.

It is a lesser standard than probable cause, but nonetheless some standard is required by the federal Constitution, as well as the state constitution in Wisconsin, to justify the search. And you may call it reasonable grounds, but it's still some required quantum of evidence under the Constitution. It is not just a question of a violation of a regulation.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Habermehl.

Mr. Levenson, we'll hear now from you.

ORAL ARGUMENT OF BARRY M. LEVENSON, ESQ. ON BEHALF OF RESPONDENT

MR. LEVENSON: Mr. Chief Justice and may it please the Court:

The word "probation" comes from the Latin "probare, " meaning to prove, because the probationer must prove himself. He has broken the law, broken our criminal code, and must prove that he is deserving of continued liberty.

The usual penalty, in fact the expected penalty, is incarceration, which is of course a loss of liberty. And yet, we authorize sentencing judges to exercise discretion and withhold this awesome power of the state to take away completely the offender's liberty, and instead probation is granted.

The offender remains in the community, subject to restrictions. This is a risk, and all statistics have demonstrated this. it is a risk that is a substantial risk, but it is one worth taking.

And it is made acceptable because of these restrictions and because of the supervision of the community corrections professionals that guide and monitor the probationer. Therefore, we see that the probationer's liberty and expectation of privacy is certainly greater than that of the prisoner in the cell, where such expectation of privacy is virtually none, but it is less than the unconvicted member of society.

The liberty then is both reduced and conditional. Typical restrictions which this Court has already reviewed this afternoon include restrictions on freedom of movement, restrictions and limits on associations, limits on various activities -- typically restrictions that individuals on probation may not lawfully possess firearms, a restriction in Wisconsin that applies both to individuals who are on probation for felonies as well as on misdemeanors.

Other substantive restrictions involve requirements that probationers undergo treatment or seek counseling.

QUESTION: Mr. Levenson, does the record in this case tell us what the terms and conditions of probation were?

MR. LEVENSON: The record itself does not, in the sense that there was no testimony by any probation officer or anyone present at the time probation was extended that these conditions were explained to Mr. Griffin, that he signed the agreement.

QUESTION: Is there anything that tells us what the terms and conditions were?

MR. LEVENSON: Yes, the administrative code. And I think there is a presumption of regularity that should attach to that. The code provides not only what the various restrictions are, but explains quite clearly that as a matter of state law the probationer must be told of these conditions.

In terms of the various conditions and restrictions, there are also a category of restrictions that I would call control restrictions -- conditions that facilitate the probation officer's ability and duty --

QUESTION: Mr. Levenson, can I interrupt you for just a second and follow up on Justice O'Connor's question.

The general rules, are they incorporated in every probation?

MR. LEVENSON: Yes.

QUESTION: Is there any deviation? Does a judge ever impose an additional term or condition?

MR. LEVENSON: Yes, the judge may do that and there may be additional. For example, what is or is not contraband may be subject to modification.

QUESTION: And may the judge also say, the condition on say traveling outside the state, for example, I'll release you from that because you're a traveling salesman?

MR. LEVENSON: That certainly can happen.

QUESTION: So is it not possible that this probationer's conditions deviated in some respects from the general rule? We don't know, do we?

MR. LEVENSON: We don't know that. That would certainly be an irregularity. And certainly a probationer may petition the court for modification of a probation condition.

QUESTION: Did the probation officer testify that he told him that?

MR. LEVENSON: No, he did not.

QUESTION: Would that have been too difficult to put on, that proof? To get the probation officer in to say, I told him that?

MR. LEVENSON: I don't know that it would have been difficult. I'm sure the records would have indicated who the original probation officer was, and it certainly could have been done.

QUESTION: Well, why wasn't it done?

MR. LEVENSON: Apparently it was not done because there was either a reliance on the presumption of regularity or just felt that it was not necessary. It had never been contested in the lower courts that Mr. Griffin was not advised of these conditions, and this is frankly something that is being raised, to my knowledge, for the first time at oral argument before the United States Supreme Court.

Before the state court of appeals, before the state supreme court, that was not an issue. It was never raised

QUESTION: What was the issue?

MR. LEVENSON: The issue was whether, specifically, whether or not this search was reasonable under the Fourth Amendment. In so doing, there was never a challenge to the presumption of regularity, and this specific provision in the administrative code that calls for an explanation and a review to the probationer was never challenged, even though that was part of the appellate record.

QUESTION: (Inaudible) the Miranda rule, that you gave the man his rights? Don't you always do that?

MR. LEVENSON: Yes.

QUESTION: Well, why didn't you tell him here, that you gave him his parole rights?

MR. LEVENSON: Justice Marshall, frankly, I think the reason is that there has never been a ruling by this Court or any other court that has required the giving of such information in a suppression hearing. That certainly may well be an issue for the Court.

The reporting requirements that are embodied in the various control restrictions include: general reporting requirements, that I think the Court is well aware of -- a probationer must regularly report to his or her agent -- and then there are conditions regarding control, monitoring, and supervision that may implicate the Fourth Amendment.

For example, the routine home visit may implicate the Fourth Amendment. It is an entry into the home. It's not at issue here and Petitioner agrees that that is valid.

Another very common restriction that may raise Fourth Amendment questions is a requirement that the probationer submit to chemical tests, blood or urine tests, to detect drugs or alcohol.

At issue here, the condition that permits a search of the probationer's residence without a warrant on less than probable cause.

We should not, however, ignore other functions of the probation officer and the probation authorities. It's very easy, in getting caught up in this case, to see the probation officer as one whose duty is solely to go around snooping and looking for violations, trying to monitor, supervise in a negative way.

But there's so much more involved in the scheme of probation, and the Court must be aware of that.

QUESTION: Mr. Levenson, what did the administrative regulation require the probation officer to have by way of suspicion to justify a search in the home?

MR. LEVENSON: Reasonable grounds to believe that contraband was contained in the home, and that's the only condition.

QUESTION: Do you think -- do you take the position that it was certainly reasonable simply on the basis of an unidentified tip, not knowing the source?

MR. LEVENSON: Yes, it was, and I'll explain why I think it was reasonable.

QUESTION: Yes, please.

MR. LEVENSON: In considering the reasonableness of the tip, first of all, the state courts found that, even though there was a problem in identifying the identity of the police officer, that it was a detective from the Beloit police department. Considering also Mr. Griffin --

QUESTION: It was a detective that did what? It was a detective from Beloit that did what?

MR. LEVENSON: Who informed the probation officer, Mr. Lew, the probation supervisor, that Mr. Griffin may have guns in his apartment.

QUESTION: All they said -- I thought the court said that the detective said he had information leading him to believe that the gun was in that house.

MR. LEVENSON: He had grounds to believe that Mr. Griffin may have guns, I believe that was the testimony at both the suppression hearing and the trial.

QUESTION: Well, I know. But how did the courts -- that may have been the testimony, but what was the finding of the court?

MR. LEVENSON: The court had findings of fact to make, and that is where did this information come from? Did it in fact come from a police officer? The court had the credibility of Mr. Lew, the supervisor --

QUESTION: Is this wrong? The supreme court, your supreme court, said at the trial the supervisor testified the detective who called him said: "They had information that Mr. Griffin had a gun in his possession in his residence."

Is that an accurate quote from the record?

MR. LEVENSON: I believe that's an accurate quote from the supreme court's decision. I think the record --

QUESTION: They purport to be quoting.

MR. LEVENSON: Yes, I believe -- and I'm not sure if they're quoting from the suppression hearing or from the trial. I'm not sure if it's a major distinction.

QUESTION: They judged the case on the basis that there was a report like this.

MR. LEVENSON: Yes.

QUESTION: And that a search based on that report was enough, I mean was legal.

MR. LEVENSON: That's correct. And what was also involved here, Justice White, was the fact that the probation authorities have more information, information that does not come directly from the police. They have information with respect to the client.

They know about the client's previous history with the criminal justice system.

QUESTION: When you say "the client," you're referring to the probationer?

MR. LEVENSON: That's correct, right. That's typical jargon, if you will, in the state of Wisconsin, I think across the country. They're regarded as clients. They're not regarded as the defendants or as the offender.

It's the clients, in part because of the helping nature of probation in terms of assisting with jobs, counseling, all kinds of other things. They did have Mr. Griffin's extensive prior record and his history with the corrections process.

And the question then for the courts of course was whether it was reasonable --

QUESTION: Mr. Levenson, is that a question for the state courts or is it a question for this Court?

MR. LEVENSON: I think it's a question for the state courts as to assessing what information was available and --

QUESTION: I mean, what they think is reasonable could -- it depends on how broadly you're framing your argument here. If you're trying to persuade us only that the federal Constitution permits searches of probationers' homes on reasonable cause, then I guess we're going to have to decide whether there was reasonable cause here.

MR. LEVENSON: That's correct.

QUESTION: But you might argue that the Constitution permits searches of probationers' homes at any time, or at least at any reasonable time, with or without cause. And if that's the constitutional law, then whether this particular search was in compliance with the Wisconsin reasonable cause provision is solely a question of Wisconsin law, isn't it?

MR. LEVENSON: That's correct.

QUESTION: And we would be bound by the supreme court of Wisconsin's finding on it.

MR. LEVENSON: Wisconsin has decided that under its rules it will permit warrantless searches of probationers' residences only upon reasonable suspicion. That does not mean that under the federal Constitution searches can be more extensive than that.

As a matter of state law, a search that did not meet that standard, even though it might meet the federal standard, would not be permitted.

QUESTION: May I just follow that up with your understanding of your argument. Supposing we disagree. If the words "reasonable cause" may mean one thing in the Wisconsin rules and another thing when you're looking at Terry stops and the like, and supposing we thought that they had gone so far in Wisconsin to in effect say, we'll call anything reasonable in Wisconsin and therefore even an arbitrary search will satisfy this rule, because reasonable to us means we want to know what the probationer is up to.

In other words, we're going to say a random search is okay in Wisconsin. Would that be okay as a matter of federal constitutional law in your view?

MR. LEVENSON: That a random search?

QUESTION: Yes, and not only a random search by a probation officer, but supposing they said all probation officers in Wisconsin have to be aware of the fact that any time the police feel they'd like to search their house they can go ahead and do it.

Would that comply with the Fourth Amendment in your view?

MR. LEVENSON: I don't believe -- I think there would be real problems with that.

QUESTION: And what would be the problem?

MR. LEVENSON: Certainly under the theory that Wisconsin has consistently advanced in terms of the nature of probation, those things would not be applicable if you're talking about a police search. And there have been a few jurisdictions that have in fact authorized any search of a probationer's residence, even by the police.

QUESTION: Right.

MR. LEVENSON: Just by virtue of the fact that the individual is a probationer. Of course, that's not the case we have before the Court today, because that kind of a search would not be permissible.

An issue that did come up at --

QUESTION: Well, it might be if we disagreed with you on -- if we thought that you'd gone so far in Wisconsin on interpreting reasonable cause to say any anonymous tip is enough, and one police officer calls another up and says, I think this fellow has a gun in his house or might have had one last month, that's enough, let's go search.

MR. LEVENSON: Perhaps what we are then getting into is a question of ultimately a question of fact that was resolved against Mr. Griffin below, and that is was this a probation search was it a police search.

That was a question that was litigated below. That's a finding of fact and it's well supported by the record.

QUESTION: Do you think it makes a difference as a matter of federal constitutional law? That's what I'm really asking you.

MR. LEVENSON: I think it conceivably makes a difference, and the reason is it lies in the nature of probation. If we are in fact relying on the unique nature of probation to justify this kind of search, what we're talking about then is the special relationship between the probationer and the probation authorities. That would not then give license to anyone to go in and make the search.

Just as in New Jersey versus T.L.O., even though the Court said a reduced level of suspicion without a warrant would justify the search of a student by the police authorities, I don't think it could be fairly read into that that, because of that individual's status as a student, that any other official could go in and search that student.

QUESTION: Counsel, just so I'm sure what your argument is now, your argument is not that the federal Constitution permits searches of probationers' homes for reasonable cause. It's rather that it permits searches by probation officers?

MR. LEVENSON: That's correct

QUESTION: Even without reasonable cause? You can't have it both ways. Either we're going to look into whether there was reasonable cause or we're not. If we're not, then it seems to me you have to bite off a bigger chunk of federal constitutional law, right?

MR. LEVENSON: Justice Scalia, my argument is that the federal Constitution permits searches of a probationer's residence by a probation officer on less than probable cause, on what we would call reasonable cause or reasonable suspicion.

It may also, in a case that's certainly not before the Court now, permit it on something less than reasonable cause.

QUESTION: (Inaudible) answer to that last question, which apparently you don't want to answer, then I am going to have to investigate as a federal judge whether there was reasonable cause here. You can't both tell me that that's a matter of state law and yet reserve the question of whether you need reasonable cause or not.

MR. LEVENSON: Perhaps then I misspoke to say that it's a matter of state law. What I was getting at, Justice Scalia, was the findings, the findings of fact, should be regarded as matters of state law, state findings.

QUESTION: (Inaudible.)

MR. LEVENSON: Yes, that a detective, a detective -- and apparently there was a problem at the suppression hearing in identifying who it was. Mr. Lew's credibility obviously was on the line here. Is he just making it up or was it a detective that he just didn't write the name down, or he couldn't recall?

QUESTION: (Inaudible) that a detective did call and did give this information.

MR. LEVENSON: And he got this information. The reasonableness then of acting on that information, perhaps without remembering his name or further investigation, is certainly a matter of federal constitutional law. I have no problem with that at all.

QUESTION: But then does it follow that if we think that it was not reasonable to rely on the anonymous tip that he "may have had guns" in the apartment, if we think that's not enough reasonable cause then you lose?

MR. LEVENSON: Not necessarily. For one thing, it depends on how we regard winning and losing. To the extent of --

QUESTION: Well, the judgment's reversed.

MR. LEVENSON: The judgment may be reversed. The judgment may be reversed, but still it's a question of, I think, of greater consequence, not whether or not this particular conviction stands. Of greater consequence to the state of Wisconsin is whether or not this kind of administrative scheme will be allowed to stand.

It is certainly possible that a court might say the rule is fine, but you didn't comply with it because there wasn't reasonable grounds.

QUESTION: Somebody later may be more courageous than you and want to argue before us that you don't even need reasonable cause, that perhaps the searches must be limited to reasonable times, but if you're a probationer the state probation officials can come in just for a spot check, have no reason to believe you have guns, but you're on probation instead of in a cell, and we're just checking up on you.

Now, somebody should be free to argue that at some future time, even if you're not willing to, don't you think?

MR. LEVENSON: Certainly someone should be free to argue that.

QUESTION: But you're not arguing it here.

MR. LEVENSON: Wisconsin has decided that it does not want to take that approach, that it wants to --

QUESTION: And you don't even want to argue that as a matter of federal constitutional law that would be okay, even though Wisconsin doesn't want to go down to the constitutional minimum? You just don't want to have any part of that argument?

MR. LEVENSON: Not at this time.

QUESTION: In other words, you're not going to say to us that what we should do is apply a reasonableness standard as a matter of federal constitutional law, such as in T.L.O.?

MR. LEVENSON: Quite the contrary. No, quite the contrary, I think that the ultimate question is was this search reasonable under the Fourth Amendment.

QUESTION: Is that the standard we should employ for federal constitutional --

MR. LEVENSON: Absolutely.

QUESTION: -- standards? The T.L.O. standard?

MR. LEVENSON: Yes, was it reasonable under all the circumstances.

QUESTION: That doesn't answer the question of whether there should be a warrant.

MR. LEVENSON: No, it certainly doesn't.

QUESTION: What about that requirement? Is it any great burden for the state to obtain a warrant on the basis of a reasonable cause standard?

MR. LEVENSON: I think there is a problem, because --

QUESTION: Why?

MR. LEVENSON: -- the warrant requirement says no warrant shall issue but on probable cause.

QUESTION: Well, but hasn't this Court looked separately at the inquiry of what the standard should be and whether there should be a warrant required?

MR. LEVENSON: I think there, Justice O'Connor, that it's helpful to look to other administrative search cases where this has come up, where the Court did not require a warrant. And I'll try and first answer the question --

QUESTION: At least the Court has inquired separately about those two questions.

MR. LEVENSON: Yes. Yes, they have, and in fact --

QUESTION: What should the standard be and whether there should be a warrant.

MR. LEVENSON: Yes. And in fact, I believe the Court addressed this very directly in the Camara decision, as to the functions of the warrant. And what we're talking about here, of course, is the administrative search context.

QUESTION: Camara was also a home search, wasn't it?

MR. LEVENSON: Yes, Camara was a home search.

QUESTION: Incidentally, Mr. Lew waited several hours before --

MR. LEVENSON: Yes, he did, from two to three.

QUESTION: Can you tell me, does the record show why he waited that long?

MR. LEVENSON: Yes.

QUESTION: He could have obtained a warrant if one were desired during that period.

MR. LEVENSON: Well, he could have tried to get a warrant. He could not himself have applied directly for a warrant. In Wisconsin, the probation officer cannot do that in the usual circumstance.

As to why he waited, the reason he waited was to contact the primary or principal probation officer, because as a matter of practice it's considered best to have the primary officer that Mr. Griffin is going to be familiar with.

He was unavailable. It then became a balancing act for the probation officer. He waited some time to try and contact the officer, couldn't do that, and then had the hard decision himself to make, because he had a report that Mr. Griffin, a convicted felon, someone who had an extensive record, might have a gun. That's something he had to weigh.

QUESTION: I thought he went into the home with police officers.

MR. LEVENSON: Yes, he requested police protection.

QUESTION: And so why couldn't he have obtained a warrant on reasonable cause, if that's the correct standard?

MR. LEVENSON: if that's the correct standard, I suppose he could have. The reason why he didn't --

QUESTION: And why would that be difficult?

MR. LEVENSON: The reason why he didn't do it was simply that --

QUESTION: But why would that be difficult?

MR. LEVENSON: It may not -- if in fact, Justice O'Connor, that it is possible to get a warrant on less than probable cause or some other definition of probable cause that comes up with something that's less than traditional probable cause, it perhaps would not have been difficult or so difficult to foreclose that opportunity.

But one must also consider the fact that in other administrative search cases --

QUESTION: Well, on the other hand, it's just easier to go ahead in. He's worried about everybody else's rights, his boss, his judges, everybody else. So then he doesn't want to contact any of them, so he takes the easy way out and goes to the guy that has no defense.

MR. LEVENSON: I don't know if he's taking the easy way out, Justice Marshall. I think what he's doing is --

QUESTION: Well, what easier way could he do it? What easier way could he search the house?

MR. LEVENSON: This was certainly the most direct way to find out --

QUESTION: You raised the word "easy." What easier way was there?

MR. LEVENSON: There may not have been an easier way. But certainly the most direct way to find out if there is contraband in the house, and especially this most dangerous kind of contraband in the hands of a convicted felon, a firearm, which he cannot have -- and the courts have all too often seen instances of people on probation and parole committing further and more aggravated offenses.

Certainly the need to check that out, to get that over with, so that the business of rehabilitation and further supervision could go on, was extremely important.

In terms of getting a warrant, the Court in Camara discussed the purposes of a warrant. That's why I think the administrative search area is very important just to look at. And although for the most part prior administrative search cases have not extended into warrantless searches of a home, there is nothing in these cases that necessarily precludes a warrantless administrative search from meeting the ultimate test of reasonableness.

And if we look at the administrative search cases, they can be divided into several categories. You have, for example, the periodic inspection versus the non-periodic inspection. Then you also have those cases that have been held to require warrants, those cases that have been held not to require warrants.

It bears examination as to what factors have convinced the Court that a warrant is not required to satisfy the command of reasonableness. One is the area of regulation: Is it pervasive? Is public safety implicated? Is the object of inspection difficult to conceal?

A second factor that the Court has found important is deterrence: Is there a legitimate deterrent effect served by warrantless searches? Without question, as can be seen from the comments to the administrative code, that's a major consideration in adopting this kind of search, which is not used that often.

Mr. Habermehl was correct in stating that these are not used very often. Very few of them are used. It's on a need-to-do basis.

Although the record does not indicate this, to the best of my knowledge in terms of what I can find out, maybe 200 or 300 a year. And we're talking about over 20,000, nearly 25,000 people in Wisconsin who are under probation supervision or parole supervision.

Finally, I think the third test that the Court has considered most important in terms of authorizing warrantless entries and warrantless searches or inspections in the administrative area is this: Are there standards or rules that govern these searches, not for their own sake, but to ensure that the decision to search and the method of searching is not left to the unbridled discretion of the officer in the field?

And although comprehensive rules are not absolutely required in every warrantless administrative search -- for example, New Jersey versus T.L.O. was an administrative search in the sense that this was not a police search -- they may provide the same protections that a warrant usually provides.

And in that context, Donovan versus Dewey asked the question: What additional protections could a warrant possibly provide? Camara discussed the various purposes of a warrant: essentially to guarantee that the search is not left to the unreviewed discretion of the officer in the field.

And I say to this Court that a comprehensive administrative scheme such as Wisconsin's, that does these things, does all that a warrant could possibly hope to do, is reasonable under the Fourth Amendment.

If there are no other questions, I will conclude my argument.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Levenson.

The case is submitted.

(Whereupon, at 1:58 p.m., the above-entitled case was submitted.)