U.S. v. Scott

• Decision Date: 07 June 1982
• Docket Number: No. 81-1434,81-1434
• Citation: 678 F.2d 32
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Louis B. SCOTT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 32

678 F.2d 32

UNITED STATES of America, Plaintiff-Appellee, v. Louis B. SCOTT, Defendant-Appellant.

No. 81-1434.

United States Court of Appeals Fifth Circuit.

June 7, 1982.

W. A. Bratton, III, Dallas, Tex., for defendant-appellant.

Michael P. Heiskell, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GEE and JOHNSON, Circuit Judges, and VAN PELT ^*, District Judge.

GEE, Circuit Judge:

When two postal inspectors' investigation of an altered money order sent by mail implicated appellant Scott, a parolee, they discussed the matter with Scott's parole officer and requested that she obtain exemplars written by his hand and his typewriter. She did so on a regular visit, borrowing the machine on the pretext of typing a business document and later having Scott write out manually certain information about his roommate. Analysis of the exemplars yielded probable cause, a search warrant issued, the typewriter was seized, and Scott's conviction followed. He appeals, contending that his fourth amendment rights were violated by the parole officer's procuring the exemplars by deception and that all developments that followed on their procurement were fruits of her invalid action. We affirm.

Scott's underlying contention is that, though a parolee, he retains substantial rights under the fourth amendment, rights that were violated by the ruse practiced upon him. As his counsel put it in oral argument, Scott's status as a parolee does not license every law enforcement authority that takes an interest in his activities to investigate them by using his parole officer as a cat's paw. Response to these arguments requires a consideration both of the nature of Scott's affected rights and of the character, as reasonable or otherwise, of his parole officer's actions.

Parolees' Rights Against Searches and Seizures.

The purposes and development of the parole systems are reviewed and discussed at some length in Morrissey v. Brewer, 408 U.S. 471, 492-96, 92 S.Ct. 2593, 2605-08, 33 L.Ed.2d 484 (1972). For purposes relevant here, it suffices to observe that the parole arrangement has grown up, chiefly during this century, to forward various purposes. Among these are restoring convictees to productive society as soon as their behavior warrants by placing them in mitigated confinement under reduced controls; reducing the costs to society of institutional confinement; and providing the incentive to good behavior offered by a prospect of early release from full confinement. Parolees, as prisoners serving out their terms of punishment under conditions of partial release, enjoy constitutional rights commensurate with that status. As was held in Morrissey, for example, their paroles may not be revoked without conforming to minimum due process. Here we focus on the degree of protection accorded them by the fourth amendment against searches and seizures.

Our court has not had occasion to address this question directly, though we have noted in passing that "a parolee is entitled to protection from illegal search and seizure ...." Brown v. Kearney, 355 F.2d 199 (5th Cir. 1966). ¹ Other circuits have produced a variety of responses, ranging from older authorities excluding parolees entirely from constitutional protection against searches and seizures ² to the apparent present position of the Fourth Circuit that parolees enjoy entirely the same rights as other citizens, so that even a parole officer must secure a warrant before searching a parolee's residence. United States v. Bradley, 571 F.2d 787 (4th Cir. 1978). An intermediate view is that of the Ninth Circuit, which appears to follow a general rule of reasonableness, permitting searches upon the basis of a good-faith belief by the probation officer that they are necessary to the performance of his supervisory duties-even one grounded in no more than a "hunch" arising from his knowledge and observation of the parolee. Latta v. Fitzharris, 521 F.2d 246 (9th Cir. 1975). Another is that of the Second Circuit, expressed in United States ex rel. Santos v. New York State Board of Parole, 441 F.2d 1216 (2d Cir. 1971).

The Santos case is factually on all fours with ours, and its reasoning is sound and persuasive. There a detective, having received information providing reasonable grounds to believe a parolee was dealing in stolen goods, informed the parole officer of it. Together they went to his apartment, where the parole officer searched it without a search warrant, ³ discovering items of stolen property. On collateral attack on the resulting conviction, the court upheld it against fourth amendment objections. Observing that the amendment forbids only unreasonable searches, the court declared that the parole authorities' duty to supervise parolees such as Santos and to obtain all facts and circumstances surrounding any parole violation required that parole officers be vested with search powers over parolees that would be impermissible if directed against ordinary citizens. In addition, it rejected just such an attack as is made here, that the parole officer was acting as a mere agent of the police. We generally agree.

The parolee occupies a position intermediate between that of an ordinary citizen, entitled to be free of intrusion not based on probable cause at least, and that of an incarcerated convictee, liable to searches at any time for well-nigh any reason. Subject...