PENN. BOARD OF PROBATION v. SCOTT

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Argument of D. Michael Fisher

Chief Justice Rehnquist: We'll hear argument next in Number 97-581, Pennsylvania Board of Probation and Parole v. Scott.

General Fisher.

Mr. Fisher: Mr. Chief Justice and may it please the Court:

This case is about Pennsylvania's ability to properly supervise the 21,000 prisoners who have been released from jail into the community on parole.

In this case, Keith Scott, the respondent, was a convicted murderer given a 20-year prison sentence and was released on parole in his eleventh... during his eleventh year.

That release was subject to a number of conditions, among them that he not possess or use firearms, that he not possess or use drugs or alcohol, that he reside in an approved residence, and the condition most important for the consideration of this case was a requirement that he consent to a search of his person.

Unknown Speaker: Now, let me ask you a question or two, if I may, General Fisher.

I take it the Pennsylvania courts have determined that the consent provision that was signed simply did not go beyond consent to search without a warrant and determined that that did not mean that consent was given to a search without reasonable suspicion.

I take it that's the thrust of what the courts below found.

Mr. Fisher: That's correct.

Unknown Speaker: And presumably Pennsylvania can redraft its consent form to cover that, I suppose.

Mr. Fisher: Justice O'Connor, Pennsylvania supreme court interpreted the consent provision to mean that, in this case, that Scott agreed to reasonable searches within the meaning of the Fourth Amendment, and to be reasonable the Pennsylvania supreme court said that the search required reasonable suspicion.

That is the issue with which we are--

Unknown Speaker: Well, I... to get back to my question, I take it they just said that this form that was signed didn't cover the issue of reasonable suspicion, that all it covered was whether it could be without a warrant, and in the absence of a consent, then, they said reasonable suspicion is still required.

Mr. Fisher: --They said that the... their interpretation was that... their reading of the Fourth Amendment was that the... that Scott consented to a reasonable search, and that a reasonable search required reasonable suspicion.

We believe--

Unknown Speaker: I'm not sure you're right in saying that the Pennsylvania supreme court based its interpretation of the consent form on its reading of the Fourth Amendment.

I thought they might have just based it on an interpretation of Pennsylvania law.

Mr. Fisher: --Mr. Chief Justice, we argue very strongly that they did, in fact, interpret it based on their reading of the Fourth Amendment, and that is where we disagree.

We believe that a search of a parolee's residence may be without suspicion, or a suspicionless search.

Unknown Speaker: Well, you... suppose this consent form were redrafted to make clear that the person paroled is consenting to a search without a warrant and to a search without any suspicion whatever.

Suppose it were drafted that way.

Now, what do you think the Pennsylvania courts would say to that?

Mr. Fisher: It's... we believe that the Pennsylvania courts would say, based on what they said in this case, that we could not have that kind of consent form, because we believe they have--

Unknown Speaker: --the Fourth Amendment?

Mr. Fisher: --Because the Fourth Amendment requires reasonable suspicion.

Unknown Speaker: It just wasn't clear to me whether that's what they said, because they could have meant the consent form just didn't cover it.

Mr. Fisher: No, Justice O'Connor, we think they said very clearly that the Fourth Amendment requires reasonable suspicion.

Unknown Speaker: Where do they say that?

Do you want to gives us the--

--Don't they say that in the earlier Williams case is where they said it?

Mr. Fisher: Well, they said it--

Unknown Speaker: It's not in this case.

It's in--

Mr. Fisher: --They said it both in the Williams case, but in this case at the... in our petition for certiorari, which contains the opinion of the Pennsylvania supreme court at page 10a, about half-way down that page, the second paragraph.

It says applying Williams to the instant case we hold that appellee has a Fourth Amendment right against unreasonable searches and seizures that is unaffected by his signing of the consent to search provision.

Unknown Speaker: --Because the consent provision did not... did not purport to waive it.

I mean, isn't that--

Mr. Fisher: Going back to Williams, the Court then said in Williams that you had to have as a matter of Fourth Amendment rights reasonable suspicion.

Unknown Speaker: --Williams really isn't all that clear, because Williams relied on the Arkansas Williams case, which is also ambiguous.

I think it's really hard to get at a clear bright line answer from the Williams opinion.

Mr. Fisher: Well, we argue, Justice Stevens, that the issue before this Court is whether or not the consent in this case, and whether or not the law of the Fourth Amendment gives parole boards and parole agents such as ours the right to conduct these searches without--

Unknown Speaker: There are two questions--

Mr. Fisher: --Without suspicion.

Unknown Speaker: --There are two questions here really, are there not?

The first is the Fourth Amendment question, and the second is whether the exclusionary rule applies to probation revocation--

Mr. Fisher: That's correct, Your Honor, and--

Unknown Speaker: --Now, what if we thought the exclusionary rule didn't apply?

Mr. Fisher: --Well--

Unknown Speaker: Didn't apply.

Then do we reach the first question or not?

What difference does it make--

Mr. Fisher: --Mr. Chief Justice--

Unknown Speaker: --if it doesn't apply?

Mr. Fisher: --and Justice O'Connor, I think that there are two separate questions here.

We believe, as we have argued, that you do not... that you... that parole agents in our State can conduct suspicionless searches of parolees, but in the event this Court does not agree with our opinion on that, we believe very clearly that the exclusionary rule should not apply.

In fact, the Court has always recognized that the exclusionary rule imposes substantial costs on society, as it withholds trustworthy evidence and impedes the search for the truth and, in fact, this Court has never extended the exclusionary rule beyond criminal trials or criminal appeals, and there... we think that the... in fact the Court has ruled that the exclusionary rule is not applicable to civil proceedings, that the exclusionary rule is not applicable to grand jury proceedings, nor is it applicable to civil deportation proceedings.

The exclusionary rule... parole revocation proceedings are informal, flexible administrative proceedings, as a contrast to a formal criminal trial.

That is why we believe this Court has never extended other rights, such as the right to counsel, the right to a jury trial, the right to confront witnesses, or the right to object to hearsay testimony.

Unknown Speaker: One of our concerns with the exclusionary rule in the case of police investigations of crime is that the police have an interest in trying to get a conviction.

Will the respondents tell us in this case that parole officers have an equivalent interest in showing that there's been a violation of parole, or is the dynamic, the incentive, the motivation of the parole officer somehow different than the police officer?

Mr. Fisher: We think the motives, and we think the role of parole agents is different than police officers.

So the police officer's primary job is to investigate crime, make cases, get convictions, which has been recognized in cases by this Court, but parole officers, their job is a two-part role.

It is protecting the community from people like Scott, convicted murderers who have been put back in the community, but also to rehabilitate the individual.

Parole officers who returned all of their parolees to jail would be failures, so we think that--

Unknown Speaker: But you don't think the police officer wants to put somebody in jail unless he thinks he's guilty, do you?

Mr. Fisher: --Certainly he wouldn't, but still there's a different standard, and I believe that this Court has recognized that the principal role of a police officer is to enforce the law, to carry out the law, but the parole agent's job is significantly different from a police officer.

Unknown Speaker: Yes, but doesn't the parole agent have a slightly different motivation in this respect.

If the parolee whom he is supervising goes berserk, or just returns to criminal activity, the... you know, the outcry is going to be, where was the parole supervision?

Why didn't they catch this?

Isn't there therefore a sort of built-in motivation on the part of a parole officer to be very cautious, to be careful, and to be looking for signs of trouble, which puts him pretty much in the same position that the police officer is in in looking for signs of trouble, and taking action to cover himself as well as to protect the community if he sees signs of risk?

Mr. Fisher: Yes, Your Honor.

Certainly the parole officer has a dual role.

As you have said, they have to be concerned about the community.

When people like Scott, convicted murderers, are placed back in that community they obviously have a responsibility to try to protect the community, but just as important to that parole officer is rehabilitation.

But obviously, one of the reasons why we believe--

Unknown Speaker: Well, he wants to rehabilitate those who are not violating conditions, but I... it seems to me he has just as much motivation to recommit those who are violating conditions as the police officer does to arrest and see to the conviction of somebody who is violating a statute in the street.

Mr. Fisher: --But so, too, we think that the difference between a formal criminal trial and of revocation proceeding is important in looking at the question of the exclusionary rule.

One who stands trial stands before that Court cloaked with the presumption of innocence.

What you have here when you're dealing with a convicted murderer who is out on parole is someone who has been convicted, so that I think that the important thing for the parole--

Unknown Speaker: Which means that the significance of illegally seized evidence is more damning in the parole case than it is, perhaps, in the trial case.

Mr. Fisher: --I don't--

Unknown Speaker: Because as you say, there's no such presumption that the evidence has to overcome.

Mr. Fisher: --But the issue before the parole board at a revocation proceeding is whether or not in fact the parolee has conducted himself pursuant to the conditions upon which he was released, and I think the parole board has the right to know all of the reliable evidence which if, in fact, the exclusionary rule were applied would deny that--

Unknown Speaker: General Fisher, are other rules of evidence relaxed or foregone in a parole revocation hearing as compared with a criminal trial?

I mean, here you're asking... we're discussing a rule of evidence that applies sometimes in criminal proceedings.

In what other respects, if any, are rules of evidence different in parole hearings?

Mr. Fisher: --Well, yes, Your Honor, the rules of evidence are relaxed in parole revocation proceedings.

For instance, the... hearsay evidence is readily admitted in parole revocation proceedings.

There is a... it's an informal process.

Normally, the case for the parole board would be presented by a parole agent, not an attorney, not an attorney representing the parole board, but a parole agent who would give his version of the facts, his version of what the parolee has done while out on parole, and there's a vastly different give-and-take in the process of the parole hearing.

For instance, parolees generally testify, give testimony as to what they have done, and so it is a very informal, flexible proceeding, and that is why I believe it is important for a parole board to be able to get the benefit of all relevant evidence which goes to the question of whether or not that parolee should be allowed to stay in the community subject to the conditions or to be turned... to be sent back to jail, so that's why we would ask that the exclusionary rule not be extended to parole revocation proceedings.

I would like to get back to the issue involving the validity of the search.

Unknown Speaker: In respect to that, could I ask you, the part that I found most difficult in respect to the question Justice O'Connor asked is on page 9a, in talking about the question of consent, the court cites a... an earlier case and says that there, I guess, if I'm reading it correctly, we concluded that the parolee's signing of a parole agreement giving the officer permission to conduct a warrantless search does not mean... and here they say two things.

And the first, it's either-or, and the either says, either that the parole officer can conduct a search at any time and for any reason, i.e., it does not consent to random searches, or that he relinquish his Fourth Amendment rights, so it sounds because of that either-or that the Court in Pennsylvania is holding that this consent is not a consent to random searches, and if that is so, how could we reach the issue of whether it is constitutionally permissible for a State to do what you want to do, which is to conduct random searches?

Mr. Fisher: Justice Breyer, in the court's opinion in the Scott case, from which you read, we believe that a full reading of that opinion, and particularly their holding, makes it clear that they were interpreting what they believed to be a reasonable search, which was that a reasonable search required reasonable suspicion.

That goes back to the Williams case, but an analysis of the Williams case, Williams... Commonwealth v. Williams in Pennsylvania, as opposed to the other case which Justice Stevens referred to, an analysis of that Williams case goes in quite at length as an analysis of what is required under both the Fourth Amendment of the United States Constitution and what is required under article I, section 8 of the Pennsylvania constitution, and we believe very strongly that the Court couched their opinion in both Williams and in Scott on what they interpreted the requirements of the Fourth Amendment to do, and that is where we disagree.

Unknown Speaker: So in your view if Pennsylvania corrections officials recast this consent and said, I consent to the search not only without a warrant but without reasonable suspicion, the supreme court of Pennsylvania would say, under the Fourth Amendment you can't do that?

Mr. Fisher: That is correct, Mr. Chief Justice, and that is where we find the major disagreement, and we think that the suspicionless search which we believe is permissible under the Fourth Amendment dealing with parolees is very similar to the kinds of searches that this Court has approved before, in the past.

The analysis to look at is whether or not the individual had a diminished expectation of privacy and whether there were special needs.

Clearly, we think that a parolee who was released--

Unknown Speaker: To be more precise, you think the suspicionless search would not violate the Fourth Amendment if the parolee has consented to it, and that if the Pennsylvania supreme court were free to adopt what it though the right reading of that consent form was, it would so interpret it?

Mr. Fisher: --That's correct.

That's correct.

But in the prior cases, where this Court has approved suspicionless searches involving drug tests of student athletes, sobriety checkpoints, the searches of firearm dealers border stops, we think this case... we think this case involving parolees fits right within those exceptions which the Court has properly made in the past, approving suspicionless searches.

Mr. Chief Justice, if there are no further questions, I will reserve the balance of my time for--

Unknown Speaker: Very well, General Fisher.

Mr. Stewart, we'll hear from you.

Argument of Malcolm L. Stewart

Mr. Stewart: Mr. Chief Justice, and may it please the Court:

Although the United States believes that parole may validly be conditioned on the parolee's consent to search, we also believe that this case can be decided on the alternative ground that the Fourth Amendment exclusionary rule should not apply to parole revocation proceedings.

This Court, when deciding whether the exclusionary rule should be extended to procedural settings other than the criminal trial, has recognized that that determination turns on a balance of the public and governmental interests at stake against the likely determination of exclusion of unlawfully acquired evidence, and in our view there are two distinct governmental interests that militate against application of the exclusionary rule.

First, and I think the nub of our argument is that where an individual has already been convicted of a crime and has been released in the community based upon the condition that he abide by specified terms of release, there is an overriding public and governmental interest in accurate and complete information regarding the question of whether the parolee has, in fact, complied with those terms.

At the very premise of parole is that parolees, persons previously convicted of crimes, pose a greater risk of committing further unlawful acts than does the average citizen, and the purpose of the revocation hearing is not simply to punish the parolee for violation of the conditions of his release but rather to determine whether the parolee can safely be left in the community.

Unknown Speaker: Yes, but is that realistic, because I don't know how much longer this individual is going to be put away as a result of the revocation here, but I assume that in most States a parole revocation can result in a very substantial incarceration.

And I am assuming the second thing that you may want to comment on, and that is that if there is a substantial period of reincarceration, the likelihood of an independent criminal prosecution for the acts that led to the commitment, recommitment, is probably very low.

The State is probably not going to bother to prosecute if they can put the person away for a substantial period of time on a parole revocation.

So my questions are, isn't it in fact a lot like a criminal trial?

Mr. Stewart: It is certainly... it has some of the same consequences of a criminal trial, namely that the individual is incarcerated.

With respect to Mr. Scott, the State has represented in its reply brief that Scott was up for reparole I believe in 1997 and reparole was denied, and that he is up for reparole again in 1998, so certainly the finding of parole violations may ultimately have the effect of requiring him to serve his whole term.

On the other hand, they do not preclude the possibility that he can convince the State parole board that in fact he warrants rerelease notwithstanding both the prior crime and the subsequent violation of the terms of parole.

As to your second question, while parole does have some of the same consequences as the initial criminal conviction, the Court has recognized most emphatically in Morrissey v. Brewer that the parole revocation proceeding need not take on the procedural accoutrements of the criminal trial, that because the individual's initial liberty interest has already been extinguished by the fact of the prior crime and the prior conviction, what is at stake is the conditional liberty interest of somebody who has been released as subject both to conditions that wouldn't be imposed on the citizenry at large and closer supervision and monitoring to make sure that those conditions are met.

Unknown Speaker: I think what I had in the back of my mind was this argument.

The argument is made, and I guess, as I recall, it's made here, that nothing much is to be gained for society at large by applying an exclusionary rule here because it's already gained by applying the exclusionary rule in criminal trials, so that in point of fact, if the officer is not deterred from illegal conduct by knowledge that the evidence so seized cannot be used in a criminal trial, there's not going to be any incremental deterrence by saying well, you can't use it in a parole revocation either.

If, on the other hand, the parole revocation is probably going to be the only proceeding in which this evidence is used, if the parole revocation really is functioning like a criminal trial and that's the only trial that there's going to be, then the argument about deterring the police is not a sound... or the parole officers in this case is not a sound argument.

Because in fact the only proceeding in which the evidence is likely to be used to satisfy society's demands is the proceeding for the revocation of parole and therefore it would make sense, if we are going to take the Fourth Amendment to apply here, to say there ought to be an exclusionary rule for the same reason that we do in the case of a normal criminal trial.

Mr. Stewart: I think the two answers we would say to that are, first, individual cases may arise in which the primary or even the only use of the evidence acquired is for parole revocation proceedings.

But an officer certainly wouldn't know that before he or she began to conduct the search, and the possibility that evidence of very serious additional criminal acts might be discovered and might not be usable at a subsequent criminal prosecution for those acts would be expected to amount to a substantial deterrent to the extent that the individual parole officer was looking at things from a law enforcement perspective.

The other thing, the point I would like to make, and I think this follows on the heels of the point that General Fisher was making, is that we expect parole officers to operate under a different incentive structure than do police officers.

That is not to deny that there is a law enforcement component to what parole officers do.

Certainly there is.

But the parole officer also develops a continuing relationship with the parolee, thinks of the parolee as a client in some sense, and is expected to balance those two possibly competing obligations.

And for instance, this Court has said that magistrates and State legislators don't need the deterrent of the exclusionary rule, because they can be expected to be neutral without it.

Presumably the Court didn't mean that magistrates and State legislators have no interest in the apprehension of criminals or the enforcement of the criminal law.

Rather, those officials are neutral in the sense that they are institutionally well-positioned to take account both of the societal interest in the enforcement of the law and the individual interest in avoiding unwarranted incursions on personal liberty, and we--

Unknown Speaker: Mr. Stewart, can I ask you one question before your time is up?

What is the position of the United States on the other issue in the case, whether there was a violation of the Fourth Amendment, and whether Pennsylvania was following Pennsylvania law or Federal law?

Mr. Stewart: --Our position is that if the consent form is construed to authorize searches without individualized suspicion, that that consent form is consistent with the Fourth Amendment.

We don't take a position on what the Pennsylvania consent form meant, and we frankly think that the Pennsylvania supreme court's opinion both in this case and in Williams are ambiguous on that score.

I think that means on the one hand that there is not the plain statement of independent State law grounds that would preclude this Court's jurisdiction--

Unknown Speaker: So--

Mr. Stewart: --but I think it also means--

Unknown Speaker: --you would take the view that if it's ambiguous, then, the Michigan v. Long principle applies, and we assume that they were at least pushed in their direction by the Federal Constitution?

Mr. Stewart: --I... we assume for purposes of determining whether this Court has jurisdiction to reach the issue obviously, when the Court has two alternative grounds on which it could decide the case, the relative certainty that the Pennsylvania supreme court's resolution of exclusionary rule issue was based solely on Federal constitutional grounds might cause the Court as a prudential matter to decide that that's likely to be a cleaner and more final resolution of the case than deciding the case on the consent issue.

Unknown Speaker: What would we do if we disagreed with you on that question?

Mr. Stewart: If you disagreed with us on the exclusionary rule?

Unknown Speaker: Yes.

Mr. Stewart: If you disagreed with us on the exclusionary rule, then I suppose you would have to determine first whether you had jurisdiction to determine the propriety of the search and, second, if you had jurisdiction whether the search was valid.

Unknown Speaker: You regard both of those questions to be constitutional questions?

Mr. Stewart: Well, the Fourth Amendment exclusionary rule question is... it's a question of Federal law.

It is constitutionally grounded.

Obviously, the Court has said that the exclusionary rule is not constitutionally compelled.

The Court has, however, held that State courts are required to employ the Federal... the Fourth Amendment exclusionary rule in State criminal proceedings, and to that extent this Court has held it has authority to require that procedure of at least some State officials.

Again, going back to what we see as the overriding governmental interest here, this Court in Lopez-Mendoza made clear that the exclusionary rule, at least ordinarily, would not be applicable in situations where the purpose of a proceeding was to determine whether an ongoing violation was being committed, as opposed to proceedings where the purpose was to impose a sanction for a prior violation.

I mean, in some sense a parole revocation hearing has attributes of both.

On the one hand, we are talking about a violation, possession of firearms, that occurred at a discrete point in time.

On the other hand, the point of the proceeding is, again, to determine not simply whether Mr. Scott should be punished for a prior bad act, but whether he can safely be allowed to remain in the community.

And the final thing I'd say is, we do think that the nature of parole revocation hearings is such that imposition of the exclusionary rule would substantially change the character of the proceeding.

That is, in the Federal system, for instance... I'm sorry.

Thank you, Mr. Chief Justice.

Unknown Speaker: Thank you, Mr. Stewart.

Mr. Sosnov, we'll hear from you.

Argument of Leonard N. Sosnov

Mr. Sosnov: Mr. Chief Justice, and may it please the Court:

As an initial matter I think there are two reasons why the Court should not raise... reach the issue of whether a parolee can voluntarily consent to suspicionless searches.

The first one the Court has already mentioned, and that is that there is an independent and adequate State ground here.

Unlike Michigan v. Long, this case involves a State regulation, a State parole form to construe.

Michigan v. Long just involved a free-floating constitutional analysis.

Secondly, this Court said in Griffin that when there is a State regulation involved, as in this case, we take the meaning as fixed by the Supreme Court before we get to any constitutional analysis.

Thirdly, if you look at the Pennsylvania supreme court in this case, as far as the opinion, the supreme court opinion refers only to one case, Williams.

It says, we rely on Williams, the Pennsylvania supreme court case.

It says that twice.

If this Court--

Unknown Speaker: In regard to your second point, Mr. Sosnov, we do have several cases that say if a State court in deciding a question before it is mistakenly of the view that its conclusion is required by the Fourth Amendment, then we will... we have jurisdiction to disabuse it of that if we don't think it's required by the Fourth Amendment.

Mr. Sosnov: --Correct, if the State felt compelled, and what I'm saying is that the evidence here is not that the State felt compelled, because the Pennsylvania supreme court referred only to a Pennsylvania supreme court decision.

Unknown Speaker: Yes, but it's true, the portion of the Pennsylvania supreme court in Williams, it's under the subhead Fourth Amendment.

Mr. Sosnov: Well, there's another portion of Williams--

Unknown Speaker: And then... I know, later--

Mr. Sosnov: --There's another portion of Williams.

Unknown Speaker: --And that's--

Mr. Sosnov: The other portion of Williams--

Unknown Speaker: --And that's still ambiguous because it refers to an Arkansas case that it says it decided, and that's ambiguous, so the whole thing is pretty ambiguous.

Mr. Sosnov: --Well, there's two things about that.

First of all, the last part of Williams independently analyzes the Pennsylvania constitution, and reaches the result of that's how we're going to construe that--

Unknown Speaker: And that part of it says that in... lots of times our constitution gives greater protection than the Federal does, but not in this case.

Mr. Sosnov: --And it cites no Federal constitutional law in making the independent constitutional analysis.

Under Pennsylvania constitutional analysis this Court's opinions are not referred to.

They look to other States.

They look to--

Unknown Speaker: Don't they say in the opinion, this very opinion, that they're not relying on the Pennsylvania constitution?

Mr. Sosnov: --They're not relying on the Pennsylvania constitution in this very case, but in this very case, before they get to the Fourth Amendment issue they're making an independent construction of the State provision.

I'd like to point out one other thing, and that is that this Court looks beyond the face of Scott referring to Williams.

There's another Pennsylvania supreme court case, Commonwealth v. Gibson, cited in my brief, which says as a matter of State Pennsylvania law consent has to be specific and unequivocal, and now that gets to my second position.

When you read the provision, the provision says, I consent to without a warrant.

Let's say this Court disagrees with me on the adequate independent State ground issue.

Where does that leave us?

That leaves us with this Court construing that provision.

If you construe that provision without a warrant, certainly in light of this Court's prior jurisprudence without a warrant doesn't mean without any objective level of information.

Griffin itself said, you need reasonable suspicion to search a parolee's home.

You don't need a warrant.

Terry v. Ohio, you need reasonable suspicion.

You don't need a warrant.

There is nothing on the face of this provision that waives anything, if it's capable of waiving anything, that waives anything except a warrant.

Unknown Speaker: But if you did interpret it... I mean, I'm not... I know that you think we shouldn't, but if you did reach the following question, is a random gun search consistent with the Fourth Amendment, I take it on the merits the question would be, if the Fourth Amendment permits random drug searches without consent of persons who have never been convicted of a crime, why doesn't it permit random gun searches with consent of persons who have been convicted?

Mr. Sosnov: If the--

Unknown Speaker: I'm trying to focus directly on the constitutional question there.

Mr. Sosnov: --Aside from consent.

Unknown Speaker: No.

I said, assuming that Pennsylvania wrongly thought... I don't know if we get there.

Assuming that Pennsylvania thought that the Constitution, the Fourth Amendment, prohibits a random gun search of a parolee with consent, what's your view on that?

The argument against it, if the Constitution permits a random gun search without consent of a person who hasn't been convicted in certain circumstances, why doesn't it permit a random gun search with consent of a person who has been convicted?

Mr. Sosnov: I think there--

Unknown Speaker: Maybe you'll agree that that is constitutional, or maybe you won't.

Mr. Sosnov: --I think it would--

Unknown Speaker: I don't know.

Mr. Sosnov: --A two-part answer.

Unknown Speaker: Yes.

Mr. Sosnov: First of all, a random search of an individual's home would not be permissible under the constitutional normally.

Of course, you need... under Payton you need a... probably cause and a warrant, so--

Unknown Speaker: But they say no probable cause, no warrant, if it's random, done as a law enforcement measure, with consent by the parolee.

Now, that's the question.

Now, what's the answer?

Mr. Sosnov: --The answer to that is that this Court should not find voluntary consent, because as this Court has interpreted the term before, it certainly should not abandon that interpretation.

What voluntary consent means is a free and unconstrained choice without any coercion, explicit or implied.

Now, unless--

Unknown Speaker: Are you saying, then, that a parolee can't consent to any of the terms of the parole?

Mr. Sosnov: --No.

That's not my position at all.

What I'm saying is, the State cannot impose an unconstitutional condition as a matter of probation or parole and then try to sustain that on a theory, a fictional theory of consent, as in this case.

Unknown Speaker: Well, suppose you have somebody like Michael Milliken, who is paroled after having some securities fraud.

Do you think the parole authorities can say you can't write any prospectuses while you're on parole?

Mr. Sosnov: Of course.

Unknown Speaker: That's certainly a violation of the First Amendment.

Mr. Sosnov: But it doesn't depend... the validity of parole conditions and probation conditions don't depend on the consent, or a fictional notion of consent of the probation of parolee.

Every day around the country people are put on probation, they're put on parole, and nobody asks the consent of the probationer to particular conditions.

Unknown Speaker: Well, then what you're saying is that the Pennsylvania parole authorities without calling this a consent form could simply say, here are the conditions under which you must be... which you will... your house will be searched.

Mr. Sosnov: That's correct, but as long as they were constitutional they'd be upheld by this Court, but if Pennsylvania, as in this case, touched an unconstitutional search provision, it should be--

Unknown Speaker: Mr. Sosnov, aren't you really talking about notice and not consent?

I mean, it's the same form that says... isn't it the same form that says, no drugs, no firearms, and warrantless search?

It's all on the same form, and you wouldn't be arguing that the no-firearms-no-drugs... it's really a notice to the parolee that these are the terms of your release.

Mr. Sosnov: --That's correct.

Unknown Speaker: If you violate them, you go back.

So to talk about consent for any of this, it's really... these are the terms and conditions of your release.

It's a true Hobson's choice.

You want a horse, this is the horse you get.

So I think it would be, I think more honest if we talked in terms of notice.

Was there notice when this form says, warrantless search, that there's not going to be a search unless there's reasonable suspicion, or there's... in other words, is there ambiguity in the terms--

Mr. Sosnov: --That--

Unknown Speaker: --that he was given.

Mr. Sosnov: --Excuse me.

That's exactly my position, and that was the position of the supreme court, that when you list the conditions of probation and parole, it serves only the function of notice.

It doesn't determine the constitutionality.

If we use the fiction of consent in this case, Pennsylvania can just simply attach a couple of new conditions the next time.

Their form the next time--

Unknown Speaker: I still don't see your... understand your response to the Chief Justice's question.

You acknowledge that the conditions of parole for Milliken could be, you will not write any prospectuses, so the condition here is, you will be subject to search in your home.

Mr. Sosnov: --And--

Unknown Speaker: I mean, and the one no more than the other is consonant with the application of the bill of rights to people who were not on parole.

Mr. Sosnov: --This Court would have to determine that each one, whether it was reasonable or not.

Given all the reasoning of Griffin, the one... it could set explicitly, your condition of parole is that you will be subjected to searches of your home without reasonable suspicion.

Unknown Speaker: Right.

Mr. Sosnov: That would be totally inconsistent with the reasoning of this Court's decision in Griffin.

In... and this Court's decision in many other areas.

In other words, this Court has said the proper balance that a parolee certainly has a right to an expectation of privacy in his home and a right to reasonable searches.

This Court said in Griffin, we're not going to require probable cause and a warrant.

We're not going to require, as if she was a free citizen, the proper balance between the Government's needs and the right of privacy of the parolee.

The proper balance is struck with reasonable suspicion, the lowest objective standard known under the law, as this Court emphasized by Richards v. Wisconsin.

But it's an objective standard.

Pennsylvania's not free to unilaterally get around constitutional restraints.

Unknown Speaker: Why is that in the Chief Justice's hypothetical the consent is valid and in the case we have, assuming the consent form is very clear that you consent to searches that are absolutely random and without sufficient... what is the difference in the two cases?

I don't understand your position.

Mr. Sosnov: Because in neither case does it depend on consent.

In neither case the correct constitutional analysis is to determine, is it reasonable, considering the Government's needs and concerning the rights of the parolee, whether we talk about First Amendment rights, Fourth Amendment rights, so that this Court--

Unknown Speaker: Well, but suppose you have consent.

Mr. Sosnov: --The consent would be involuntary.

That's my point.

It's... in other words, if we consider, if I--

Unknown Speaker: I don't see why it's any more involuntary than on a guilty plea situation, where someone says, okay, I'm going to agree... I'm guilty, and I will agree to a prison sentence of 3 years, very coercive.

Heavens, look at the power the Government has, and yet I think we would say it's okay to give up your right to a jury trial, your right to remain free, the right to do all those things.

You can consent to that.

Now, don't look at the clock.

Mr. Sosnov: --I'm sorry.

Unknown Speaker: I want to know why somebody can't consent on parole and say, fine, I would like to be paroled and I will consent to these terms and conditions.

Why isn't that perfectly okay?

The person can refuse parole and say no, I don't want those terms and conditions.

I'll serve my time, thank you.

Mr. Sosnov: I think the answer, Justice O'Connor, is that there's nothing... this is nothing like the free bargaining process.

What this Court has emphasized in a number of decisions is the plea-bargaining process is bargaining between two roughly equal parties, and that the defendant has a lot of bargaining chips in that situation, so the process is completely different.

The defendant can insist on a trial.

The defendant can insist to be put to the proof of beyond a reasonable doubt, so that every day, defendants reject plea bargains that are offered, because defendant calculates, I may make out better at trial, and the Government calculates, we need this plea bargain because we may lose entirely and the defendant will go scott-free.

Here, the process itself, the parolee has no bargaining chips whatsoever.

The parolee has no constitutional rights that he can bargain with, so the process is different.

Unknown Speaker: Well, but the parolee can decline it and say, I'll serve my time and when I get out I am free.

Mr. Sosnov: If... the parolee has the ability to say no, and Schneckloth said everybody always has the ability to say no.

In other words, a voluntary, free and unconstrained choice is not the same thing simply as a choice.

In other words, every individual can say no unless you're drugged or unconscious.

That's what Schneckloth said.

I think Minnesota v. Murphy is a good example of coercion, where a person has a right to say no.

Minnesota v. Murphy, the police officer was given the choice.

You can continue being a police officer, or you can start talking, even though you have Fifth Amendment rights, and the police officer started talking.

He had a choice, just like Scott, and this Court said, that was a violation of the Fifth Amendment.

That was involuntary.

That was the antithesis... the economic coercion was the antithesis of a free and unconstrained choice.

Unknown Speaker: Is there any shortage of parole officers in Pennsylvania?

There is in a lot of States.

I think there are.

What's the circumstance there?

Mr. Sosnov: I'm not aware that there's a--

Unknown Speaker: I'm just wondering--

Mr. Sosnov: --I can't address that.

I don't know.

Unknown Speaker: --what is in the back of my mind, which is, is whether it might be reasonable for a State to say we don't have that many parole officers, we'll let more people out of prison on parole, but they give up all their privacy in prison, and we want them to give up some of their privacy on parole, and the reason is that random checking can catch those who have guns or drugs.

So I mean, suppose they're reasoning that way, and so the object is a system that will actually protect people's privacy in a sense.

In other words, you're better off than in prison, but you've got to give up a certain amount of your privacy.

Mr. Sosnov: This Court has never accepted that argument.

Morrissey v. Brewer, the exact same argument was made.

We're going to parole fewer people if you actually make us have a hearing to determine whether we revoke them or not, and this Court said there's no empirical proof that if people have a hearing and have some rights that they're going to stop paroling people.

And, in fact, most jurisdictions around the country right now have interpreted Griffin as... in fact, every court that has interpreted Griffin has interpreted it to require reasonable suspicion.

However, you have not seen a drop-off of paroles around the country or any disadvantage to the parole system, so there is no demonstrated need.

And getting back to the plea-bargaining question of Justice O'Connor, the other thing that distinguishes this from a plea bargain is that of course the Government doesn't have the power to impose a guilty verdict.

The plea bargain--

Unknown Speaker: You would think that a defendant could agree in a pre-trial plea bargain to accept parole with the condition of suspicionless search.

Mr. Sosnov: --Possibly.

Unknown Speaker: Release--

Mr. Sosnov: That's a difficult question to be--

Unknown Speaker: --Release, but I agree, suspicionless searches pretrial--

Mr. Sosnov: --That--

Unknown Speaker: --Do you think there's a question about that?

Mr. Sosnov: --That... there is a question there.

Unknown Speaker: Why?

Mr. Sosnov: But it's completely different.

Unknown Speaker: Well, why?

Why is there a question?

Mr. Sosnov: Because... because this Court would have to determine whether, considering the invasion of privacy down the line, which is... which is all the people that are on parole as far as... and their families being subjected to unbridled discretion.

This Court has to decide whether that is one of those rare, bargained-for, agreed conditions that should be overturned.

Most likely--

Unknown Speaker: Well, that's very... very odd.

I mean, he can give up his right to a jury, his right to an attorney, his right to everything else.

Mr. Sosnov: --The key difference... the key difference there, and maybe that is constitutional.

I'm not saying it's not.

The key difference there is that it is one of the bargained-for things as part of the plea-bargain process.

There is no bargaining process here.

There is no deal in the end, and a plea bargain in the end is enforceable by a court.

Once you have plea bargain, each side has to abide by the plea bargain.

This is nothing like a plea bargain because in the end here Pennsylvania by law, State law, Pennsylvania can impose subsequent conditions after the person is released from parole, so after he signs that form there with all the conditions, they can come 2 days later, oh, by the way, you've got 10 more conditions.

They don't have to have him sign a form and agree.

The consent is a fictional notion.

If this Court would accept the fictional notion of consent, Pennsylvania could have a couple of new provisions, and one of them could say that when you're on probation or parole, you have to tell us everything of any criminal activity you're doing.

In other words, despite your Fifth Amendment rights, in return for parole you'd have to tell us everything about your criminal activities.

I--

Unknown Speaker: Well, don't they do that... don't they do that now?

They require the parolee to come in periodically and report to the officer what he's been doing for the last couple of weeks.

Isn't that--

Mr. Sosnov: --But--

Unknown Speaker: --That's standard, isn't it?

Mr. Sosnov: --But there's one restriction, and that's the Fifth Amendment.

Under Minnesota v. Murphy this Court said you cannot have a valid condition of parole that requires the parolee or probationer to talk about criminal activity.

Unknown Speaker: You mean, he can come in and when his parole officer says, well, you know, what have you been doing the last couple of weeks, he can say, well, you know, I'd like to tell you that, but I have a Fifth Amendment right not to tell you?

Mr. Sosnov: No.

He can... no.

Unknown Speaker: That's pretty easy.

That can't be what it means, can it?

Mr. Sosnov: No, that's not what it means.

It means he can talk about... he must talk about everything except activity that is protected by the Fifth Amendment--

Unknown Speaker: Well, you mean you can say he could--

Mr. Sosnov: --or new criminal activity.

Unknown Speaker: --incriminate him.

I mean--

--You can say, I went to the movie, and I had dinner at home with the kids, and then I did something else I can't tell you about?

[Laughter]

That just can't be the rule.

That can't be the rule.

Mr. Sosnov: I... I'm relying on Minnesota v. Murphy.

This Court said it would be the classic penalty situation if a probation condition required somebody to talk about criminal activity.

Let me mention another one.

Morrissey v. Brewer, the rights at a hearing, Pennsylvania under the fiction of consent could say, in return for you getting probation or parole you hereby agree that if we decide to revoke your parole you won't assert your right to try to cross-examine and confront witnesses.

In other words, this Court would be ceding its role as being the ultimate determiner of what's reasonable under the Constitution if it accepts the fiction of consent, which it has refused to do in the economic context repeatedly, such as Garrity v. New Jersey.

Unknown Speaker: Mr. Sosnov, may I ask if you would get to the second question, because as I understand it all of this is academic if the exclusionary rule doesn't apply.

Then we could say, yeah, he didn't get notice, but so what, the evidence comes in anyway.

You made the point that most States require suspicion for a search, but isn't it also true that most States say the exclusionary rule does not apply to parole or probation revocation?

Mr. Sosnov: The majority of States have ruled, and this Court should rule that the exclusionary rule applies, because it's especially needed in this context.

First of all, under Pennsylvania law, what was being performed here was a classic law enforcement function.

Pennsylvania's own manual says that the parole officers share with police the primary goal of law enforcement.

As matter of State law, parole officers are peace officers with police powers.

In this very case, the parole agent had arrested Mr. Scott for parole violations.

He was in a post arrest situation.

He was in cuffs, in custody, when the parole agent goes to his home to conduct a search for any evidence of other violations.

The parole agent in Pennsylvania serves as prosecutor at the parole violation hearing, so certainly in the context of this case to start out with, in the context of this case, this was a classic law enforcement-type--

Unknown Speaker: Why was the respondent arrested, for what suspected offense?

Mr. Sosnov: --He was arrested for... I think it was four violations.

Two violations were that on an individual occasion while people were shooting target practice that he held the gun and took a shot, and he's not allowed to possess a gun even momentarily, so back in September when he was first paroled he was alleged to... on two separate occasions to have taken a shot from... one shot and then two shots on another occasion.

Unknown Speaker: Okay, so the arrest was not dependent upon the subsequent search?

Mr. Sosnov: No.

No.

The search followed the arrest.

The search followed the arrest.

It was to gain evidence of parole violations.

Unknown Speaker: Why didn't they have suspicion here?

Mr. Sosnov: Because the two incidents that I referred to were 5 or 6 months earlier, and the only information conveyed to the searching officer, at page 92a of the appendix, is that one officer said to the other, he may have firearms, and that's all that was communicated, nothing else about a basis for a search, and Pennsylvania has never claimed that there's reasonable suspicion in this case in the lower courts or here.

The primary zone of interest, as this Court has defined, looking at the exclusionary rule, the purpose is deterrence.

The question is deterrence.

So when the Attorney General talks about the question of we're looking for the truth at a parole revocation hearing, we're looking at the truth in the probation revocation hearing, that's what we seek, that's true, but it's talking about constitutional apples and oranges here.

There is a cost whenever you apply the exclusionary rule as far as some evidence that might be helpful to determine the truth if it's going to be excluded from the proceeding.

The question is, though, is it necessary to enforce Fourth Amendment values?

That's the question.

And here, the answer is clear.

The parole officer is even more motivated than a police officer looking for a crime to look for evidence of a parole violation.

The police officer in the community has many functions besides law enforcement, some general safety in the community, and has no one-on-one responsibility, generally, unless they're in a very small town, has no one-on-one responsibility for any particular individuals.

The parole officer deals only with the population of convicted criminals, the pressure, the institutional pressure being responsible for convicted criminals and their supervision, and secondly, one-on-one responsibility.

That parole agent was assigned to a particular individual, so if that particular individual violates parole in a serious way, commits a new crime, the responsibility goes right back to the parole agent, so we start out with great institutional pressures on the parole agent, more so than the policeman, to try to detect violations of parole.

And Pennsylvania, if you look at are there alternative remedies to the exclusionary rule to try to provide a disincentive for unconstitutional searches, Pennsylvania has no alternative remedies.

Unknown Speaker: So a good parole officer has more people reincarcerated than on release.

Two parole officers, one has a very high reincarceration rate, the other doesn't, and the first is the better parole officer?

Mr. Sosnov: No, I didn't say good or better.

What I'm saying is, the institutional pressure, so that a--

Unknown Speaker: Well, I... institutional pressure I assume relates to performance and to merit.

Mr. Sosnov: --But performance and merit should be constrained by the Fourth Amendment, so I wouldn't call a good parole officer one who, because of institutional pressures and zeal at doing their job and protecting themselves from possible repercussions if somebody messes up on parole, I would say that's not a good parole officer who violates the Constitution.

What it shows us, the institutional pressures--

Unknown Speaker: But if being a good parole officer, as Justice Kennedy's question... means keeping your people out on parole rather than reincarcerating them, one would think that the institutional, pressures are in the opposite direction, not to return as many of the people in your charge to prison as possible, but to work with them to keep them out.

Mr. Sosnov: --Some work to keep them out, but the pressures to make sure that they're complying with parole regulations, we're talking about now the pressures as far as individuals who may go into somebody's home with no reasonable suspicion whatsoever.

We're not talking about parole agents who, in accordance with the reasoning of Griffin, only go in the homes where they have that low objective standard of reasonable suspicion.

We're talking about parole agents who may go into their home without that objective basis of reasonable suspicion.

The institutional pressures might be, I don't want to see my name in the newspaper possibly because my parolee got in some kind of trouble, so therefore... this is going to be some parole officers... the institutional pressures are going to cause them to violate the Constitution unless there's some deterrence, and that's the need for the exclusionary rule.

Pennsylvania, the amicus of the United States, nor the other four amicus briefs filed against our position, cite a single instance, either under Pennsylvania law or anywhere in the country where there has been any discipline of a parole agent for... for violation of Fourth Amendment rights, any successful--

Unknown Speaker: Who would decide... supposing... what does the Pennsylvania parole board... they have a parole board and they have hearings on revocation.

Who would decide whether or not the exclusionary rule would bar a particular witness' testimony, the parole board?

Mr. Sosnov: --The Fourth Amendment issue, if we had exclusionary rule?

Unknown Speaker: Yes.

Mr. Sosnov: In many juris... in Pennsylvania it would be a hearing examiner or the board itself.

The hearings are conducted by the parole board or hearings... many jurisdictions it's judges.

Unknown Speaker: And are the Pennsylvania examiners all lawyers?

Mr. Sosnov: No, they're not all lawyers, but I think that that would not seriously burden the proceedings for... for two reasons.

One is--

Unknown Speaker: Have them toss a coin?

Mr. Sosnov: --I hope not.

Unknown Speaker: Well, what is a nonlawyer going to do with some of our rather highly filigreed Fourth Amendment jurisprudence?

[Laughter]

Mr. Sosnov: Well, I think fortunately in this context the hearing examiner would not have the learn the highly filigreed Fourth Amendment jurisprudence, because we would have a single standard, which is not a very high standard of reasonable suspicion.

In other words, Griffin has set the stage as reasonable suspicion for the entry into a home, so they'd have to understand reasonable suspicion, and this Court in Shadwick v. City of Tampa said that even a court clerk can figure out what probable cause means in determining, for example, when people should be arrested for minor offenses, so I don't think it's going to be beyond the intellectual abilities of hearing examiners--

Unknown Speaker: But that was the neutral magistrate to issue a warrant, or... it wasn't to ultimately decide the question.

Mr. Sosnov: --Well, but the question had to be decided whether it was probably cause or not to issue a warrant.

In other words, every day the court clerk sits there and the applications come in and the court clerk has to say, do I find enough here for probable cause.

Unknown Speaker: Yes, but that's... a neutral magistrate in that sense is not the same as the person who finally disposes of a case, of a question the way you would have under the exclusionary rule.

Do you know of any other situations in which nonlawyers decide whether or not evidence should be excluded pursuant to the exclusionary rule?

Mr. Sosnov: I know that right now there are about eight States that are applying the exclusionary rule either on State constitutional grounds, where they've interpreted it under the Federal Constitution, and not all of them have judges deciding these issues, and there's been no evidence that they've been incapable of making this reasonable suspicion determination as to whether the Constitution has been complied with as far as reasonable suspicion being required for an entry into the home of a parolee and his family.

There have been... no encountered difficulties have been reported.

One of the dangers here, I think if the exclusionary rule is not recognized in this context, is because the standard is only reasonable suspicion for the intrusion in the first place, if this Court doesn't recognize the exclusionary rule, that means that there's no neutral oversight whatsoever before the parole agents go into the home, nor is there any kind of neutral oversight after the fact.

The creation is, as the Pennsylvania supreme court said, I think they got it right as far as concluding there will be nothing else to deter parole agents.

You will have no neutral oversight before, because only reasonable suspicion is required, you will have no neutral oversight after the fact, the Pennsylvania parole board has no institutional deterrence mechanisms in force, there's no punishment for violations--

Unknown Speaker: No worse than the situation that the individual would have confronted if he were still incarcerated.

Mr. Sosnov: --That's correct, but this Court had--

Unknown Speaker: He would have been subject to invasions upon his privacy without any recourse.

Mr. Sosnov: --And--

Unknown Speaker: And this is... this goes along with parole.

Mr. Sosnov: --Well, it hasn't so far, because this Court has never held that a home can be searched on the basis without any reasonable suspicion whatsoever, I think for good reasons.

This Court in a whole line of decisions has said the home is sacrosanct as far as... as far as protecting the privacy of the home.

This Court has allowed the closely guarded category of suspicionless minimal intrusions, like drugtesting under some circumstances.

This is a maximum intrusion.

This is the biggest intrusion, to go into somebody's home--

Unknown Speaker: Mr. Sosnov, you don't mean it happens so far in the sense of the real world, because you told me it was correct that most States in their parole revocation hearings do not exclude unlawfully seized evidence, so it's true that right now, that this happens all the time, is that not so?

Mr. Sosnov: --That this is happening--

Unknown Speaker: Yes.

Mr. Sosnov: --in some jurisdictions as far as... now, as far as... and that's the... that's why we need deterrence, because these unconstitutional searches are happening.

In other words--

Unknown Speaker: I think you've answered the question, Mr. Sosnov.

General Fisher, you have--

Mr. Sosnov: --Thank you.

Unknown Speaker: --3 minutes remaining.

Rebuttal of D. Michael Fisher

Mr. Fisher: No rebuttal, Your Honor.

Chief Justice Rehnquist: Very well.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.