Request By:
Mr. A. Jack May, Director
Division of Legal Services
Kentucky Department of Justice
Bureau of Training
Stratton 354, E.K.U.
Richmond, Kentucky 40475
Opinion
Opinion By: Steven L. Beshear, Attorney General; James H. Barr, Assistant Attorney General
This is in reply to your recent inquiry as to whether in light of
Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L.Ed2d 639 (1980), a parole officer must have a warrant to justify entry into the residence of a parolee in order to make an arrest for a parole violation. A brief review of the decision and the applicable statute is necessary.
It is provided in KRS 439.430(1) that a parole officer who believes that a parolee has violated the terms of his release may make a warrantless arrest of the parolee or deputize another peace officer to do so with a written statement that the parole officer believes a violation of the conditions of the release has occurred. Following such an arrest, the parole officer is required to notify his director at once. The director then submits a recommendation to the board, either to return the parolee to prison or to release him.
In
Payton v. New York, supra, the United States Supreme Court held that police officers may not enter a private residence, without a warrant, absent exigent circumstances, in order to make an arrest. The Court also held that an arrest warrant founded on probable cause that the suspect has committed a crime implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.
The Supreme Court did not define what would constitute "exigent circumstances" sufficient to permit entry into a private residence to make a warrantless arrest. However, 2 LaFave, Search and Seizure S. 6.1(c) "Basis for entry to arrest, exigent circumstances" sets out such circumstances. They include (1) hot pursuit; (2) where delay would gravely endanger the lives of the police officers, or the lives of others; (3) where there is a likelihood that the suspect will escape if not swiftly apprehended; (4) where there is a necessity to prevent the suspect from destroyin, or distributing the evidence; and (5) where delay would enhance the ability of the suspect to make an effective forcible resistance. It is stated that warrantless entry is generally not lawful where the police could have kept the premises under surveillance.
Assuming that no exigent circumstances exist independently, the parole violation arrest situation itself would not constitute such exigent circumstances so as to permit a warrantless entry.
The most important consideration presented by your question is whether this is in fact an "arrest" situation, or whether the parolee's freedoms are already restricted or conditioned. The latter position, as explained in 32 ALR Fed. 155 "Warrant less Searches by Parole Officer" at 159-60 is that during the period of parole, the parolee is not considered to have been released from constructive legal custody or control. As a result, the parolee cannot expect to enjoy all of the rights and privileges accorded to other citizens - particularly as to his privacy - until the period of parole has ended.
With regard to a warrantless search of a parolee or of his residence by a parole officer, a closely-related situation, it has been held in most jurisdictions where the issue has arisen that the reasonableness of such a search is determined by lower Fourth Amendment standards than those applicable to ordinary citizens. The most common justification for this position has been the constructive custody theory mentioned above. This position is considered to be the majority view in an arrest situation. As stated in 67A CJS, Pardon and Parole S.67 (a) p.117: "The physical apprehension of a prisoner for suspected violations of parole is not an "arrest" in the sense that a peace officer arrests a private individual for a crime but a mere transfer of the subject from constructive custody into actual or physical custody." See also
People v. Villareal, 68 Cal. Rptr 610 (1968);
State v. Villafane, Conn., 372 A2d 82 (1976);
Reeves v. Turner, Utah, 501 P.2d 1212 (1972).
Kentucky courts considering various parole matters have generally followed a similar approach, stating that parole is a matter of legislative grace and, therefore, the general assembly may impose such limitations and conditions on the parole status as it deems to be in the best interest of society. See
Adams v. Ferguson, Ky., 386 S.W.2d 462 (1965);
Willard v. Ferguson, Ky., 358 S.W.2d 516 (1962);
Lynch v. Wingo, Ky., 425 S.W.2d 573 (1968).
Another theory for justification of warrantless action by a parole officer is that, by accepting the privilege of parole, the prisoner expressly or impliedly consents to broad supervisory and visitorial powers to be exercised by the parole officer. This approach is also sometimes referred to as a "waiver" theory. See
People v. Denne, Cal., 297 P.2d 451 (1956); but see
United States ex rel. Coleman v. Smith, 395 F. Supp. 1155 (W.D.N.Y. 1975) (consent contained in parole agreement held coerced).
Even prior to the Payton decision there has been much criticism of the above-mentioned theories in similar situations such as those involving a warrantless search by the parole officer. It has been pointed out in such cases that parole should no longer be considered a state of administrative grace, but, rather, the parolee has substantial liberties that may not be ended arbitrarily. See
Preston v. Piggman, 496 F.2d 270 (6th Cir. 1974);
Morrissey v. Brewer, 408 U.S. 471 (1972).
In Section 10.10 LaFave, supra, "Searches Directed at Parolees, " p. 431, it is noted that effective probation and parole supervision, analogous to the administrative building inspection procedure involved in
Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L.Ed2d 930 (1967), cannot be accomplished if the usual Fourth Amendment restrictions are to apply. "[I]t may properly be concluded that parolees and probationers have a reduced expectation of privacy, thereby rendering certain intrusions by governmental authorities reasonable which otherwise would be invalid under traditional constitutional concepts, at least to the extent that such intrusions are necessitated by legitimate governmental demands." LaFave, supra, at 431. Nevertheless, the parolee cannot be considered to be without any rights. As in Camara, the proper procedure is to balance the need to search against the invasion which the search entails. Thus in
United States v. Bradley, 571 F.2d 787 (4th Cir. 1978), the court utilized the Camara balancing test and held that unless an established exception to the warrant requirement is applicable, a parole officer must secure a warrant prior to conducting a search of a parolee's place of residence, even where, as a condition of parole, the parolee had consented to periodic and unannounced visits by the parole officer.
The Bradley decision also distinguished the parolee search situation from the administrative search exception to the Camara rule noted in United
States v. Biswell, 406 U.S. 311 (1972), and
Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970). In the latter two decisions the administrative discretion to conduct a warrantless search was limited by regulation, whereas in the parole situation, no regulations had been promulgated limiting the parole officer's discretion to search or the scope of the search he may make. A parole officer's manual of standard procedures was held to be insufficient for this purpose. Regarding the imposition of a warrant requirement, Bradley added:
"While we recognize the important governmental interests at stake, we conclude that they have the effect of diminishing the rigorousness of the standard of cause which the parole officer must satisfy to obtain a warrant, not of removing the judicial protection which the warrant requirement interposes between the parole officer and the search."
As to what grounds would support probable cause for the issuance of a search warrant, the Bradley decision refers to the dissent by Judge Hufstedler in
Latta v. Fitzharris, 521 F.2d 246 (1975). There it is stated that the concept of probable cause is not rigid, but is flexible enough to be adapted to parole searches so as to protect the parolee and preserve the functions of parole. A "reasonable cause" standard is proposed, that is, is there reasonable cause to believe that the parolee is giolating, or is in imminent danger of violating, the conditions of parole. A search warrant may be sought when there is reasonable cause to believe that evidence of such violations will be found in the home to be searched. This, states Judge Hufstedtler, would give proper credence to the Camara requirement to balance the societal gains to be achieved by close supervision against the parolee's loss of privacy, and would result in no greater intrusion than is necessary for proper rehabilitation. See also White, "The Fourth Amendment Rights of Parolees and Probationers, " 31 U. Pitt. L. Rev. 167 at 181-197.
Much of the above relating to the consideration of the rights of society versus the parolee in the case of a search of the parolee's premises is perceived to be applicable to the question of when a parole officer has a right to make an arrest of the parolee. Additionally, the argument that the parolee is merely experiencing a change in form of custody in his best interest cannot support an increased freedom to invade the parolee's privacy. Given this similarity of circumstances, the appropriate rule should be that a warrant is required to make an arrest of a parolee in the same situations in which a warrant is required for an arrest of an individual accused of a crime, but applying the lesser standard of reasonable cause to obtain the warrant. Obviously, when exigent circumstances exist the parole officer or the police should be allowed to arrest the parolee without a warrant as they would a non-parolee. Thus, the danger of uncontrolled discretion as to the invasion of the parolee's privacy is significantly lessened. See White, supra at 197-202.
With these guidelines in mind, we conclude that a parole officer must obtain an arrest or search warrant to make an arrest of a parolee in the parolee's residence, absent exigent circumstances, unless, of course, the parolee comes to the door or else an appropriate individual gives consent to search the residence for the parolee. Even if an arrest warrant is obtained, it is necessary to obtain a search warrant before entering the residence of a third party not named in the arrest warrant in order to arrest a parolee. See