903 F.

2d 60

UNITED STATES of America, Appellee,

v.
Edward CARDONA, Defendant, Appellant.
No. 88-1537.

United States Court of Appeals,

First Circuit.
Heard Jan. 10, 1990.
Decided May 10, 1990.

Francis X. Mackey, Providence, R.I., for defendant, appellant.

Margaret E. Curran, Asst. U.S. Atty., Providence, R.I., with whom
Lincoln C. Almond, U.S. Atty., was on brief, for appellee.
Before TORRUELLA and SELYA, Circuit Judges, and BOWNES,
Senior Circuit Judge.
SELYA, Circuit Judge.

This case requires us, for the first time, to explore the interstices and margins of
the Court's opinion in Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97
L.Ed.2d 709 (1987). Having completed this journey into fourth amendment
jurisprudence, we hold that a parolee may be arrested in his own home by a
police officer not possessing a judicial warrant when the police officer acts in
good faith at the request of parole authorities who, in accordance with a parole
regulation, have found reasonable cause to order the individual's detention as a
suspected parole violator.

I. BACKGROUND
2

Defendant-appellant Edward Cardona, previously convicted of a felony in New

York, was on parole in Rhode Island pursuant to an interstate parole compact.
After defendant's Rhode Island parole officer reported problems, a parole
violation warrant (PVW) was issued by the New York parole board. Issuance of
the PVW did not require a finding of probable cause, but only a lesser showing,

tantamount to reasonable cause, that Cardona had violated the terms of his
parole.1 The PVW's terms authorized any person who could serve process to
execute it. N.Y.Exec.Law Sec. 259-i(3)(a)(iii) (1982). Accordingly, the New
York authorities forwarded the PVW to their Rhode Island counterparts.
3

When the PVW arrived in Rhode Island, the Rhode Island parole officer,
following routine procedure, solicited the local police to assist in implementing
it. The parties agree that the request was made in the ordinary course; in Rhode
Island, parole officers are neither armed nor trained to effectuate arrests, and do
not typically involve themselves in that activity. Indeed, the standing policy of
the state administration is, and has been, that parole officers should not make
arrests.

After securing teletype confirmation that the PVW was outstanding, the local
police department acted. Unaccompanied by a parole official, three police
officers went to Cardona's residence for the sole purpose of executing the
PVW. Upon arriving there, they knocked on the front door (which was ajar),
announced their presence twice over, and, hearing noises, entered the
apartment. The officers found defendant squatting on the floor of a closet; next
to him, in plain view, was a sawed-off shotgun. The officers arrested defendant
and seized the gun.

A few months later, a federal grand jury in the District of Rhode Island indicted
Cardona on two counts arising out of his custody of the weapon. Cardona
moved to suppress the evidence. The district court denied the motion. Cardona
thereafter pled guilty to being a convicted felon in possession of a firearm in
violation of 18 U.S.C. Sec. 922(g), preserving his right to appeal from the
denial of the suppression motion. See Fed.R.Crim.P. 11(a)(2).

II. GRIFFIN REDUX

6

Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), is
our polestar. In an effort to measure its ultimate significance, we first address
its essential aspects.

Joseph Griffin was convicted in a Wisconsin state court of resisting arrest,

disorderly conduct, and obstructing an officer. He was placed on probation. Id.
at 870, 107 S.Ct. at 3166. Under Wisconsin law, probation officers are
permitted to search probationers' homes without a warrant as long as the officer
obtains a supervisor's prior approval and has "reasonable grounds" for a belief
that there is contraband on the premises. Id. at 870-71, 107 S.Ct. at 3166-67.

Well into Griffin's probationary term, a local police detective informed Michael
Lew, the supervisor of Griffin's probation officer, that he (the detective)
suspected Griffin of secreting guns in his apartment. Unable to obtain the
assistance of Griffin's probation officer, Lew went to the apartment with
another probation officer and three policemen. Id. at 871, 107 S.Ct. at 3167.
Although the callers had neither a judicial warrant nor probable cause, their
visit complied with an administrative regulation permitting warrantless
searches of a probationer's home. Id. at 870-71, 107 S.Ct. at 3167-68. When
Griffin answered the door, Lew identified the party and informed Griffin that
they planned to search his apartment. During the inspection, a handgun was
discovered. Id. at 871, 107 S.Ct. at 3167.
8

Griffin was charged with possession of a firearm by a convicted felon (itself a

felony). After moving unsuccessfully to suppress the weapon, he was found
guilty by a jury. Id. at 872, 107 S.Ct. at 3168. On appeal, the Wisconsin
Supreme Court upheld the conviction, opining that the "reasonable grounds"
standard for probationer searches satisfied the fourth amendment because of the
lesser expectation of privacy enjoyed by a probationer. State v. Griffin, 131
Wis.2d 41, 52-64, 388 N.W.2d 535, 539-44 (1986). The Court granted
certiorari, 479 U.S. 1005, 107 S.Ct. 643, 93 L.Ed.2d 699 (1986), and thereafter
affirmed.

The majority first reviewed the "special needs" exception to the warrant and
probable-cause requirements imposed by the fourth amendment on most
governmental searches and seizures. Noting that the Court had historically
"permitted exceptions [to traditional fourth amendment standards] when
'special needs, beyond the normal need for law enforcement, make the warrant
and probable-cause requirement impracticable,' " 483 U.S. at 873, 107 S.Ct. at
3167 (quoting New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S.Ct. 733, 747, 83
L.Ed.2d 720 (1985) (Blackmun, J., concurring)), Justice Scalia concluded that
the operation of a state probation system, and particularly the need for close and
ongoing supervision of participants, presented just such a "special need." Id.
483 U.S. at 875, 107 S.Ct. at 3169. The dichotomous goals to which probation
is dedicated--rehabilitation and public safety--coalesced to justify substantial
restrictions upon probationers. Id. Hence, the special needs of the situation
"permitt[ed] a degree of impingement upon privacy that would not be
constitutional if applied to the public at large." Id.

10

The Court likened the reduced-liberty status of probationers to that of parolees.

Id. at 874, 107 S.Ct. at 3168 (citing and quoting Morrissey v. Brewer, 408 U.S.
471, 480, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484 (1972)). The Court emphasized
that probation, as "a form of criminal sanction," disenfranchises the recipient of

at least some rights enjoyed by law-abiding citizens, probation being "simply

one point (or, more accurately, one set of points) on a continuum of possible
punishments ranging from solitary confinement in a maximum-security facility
to a few hours of mandatory community service." Id. Yet, although the
existence of post-conviction monitoring allowed greater trespasses upon
privacy than would normally be the case, the "permissible degree [of
impingement] is not unlimited." Id. 483 U.S. at 875, 107 S.Ct. at 3169. The
Court proceeded, therefore, to evaluate the extent to which "the special needs of
Wisconsin's probation system make the warrant requirement impracticable and
justify replacement of the standard of probable cause by 'reasonable grounds.' "
Id. at 876, 107 S.Ct. at 3170.
11

The outcome of this evaluation proved to the Court's satisfaction that the
situational "needs" were sufficiently "special." Justice Scalia wrote that a
warrant and probable-cause requirement would interfere with the proper
operation of the probation system, render it "more difficult for probation
officials to respond quickly to evidence of misconduct and would reduce the
deterrent effect that the possibility of expeditious searches would otherwise
create." Id. (citation omitted). Throughout, the Court underscored the hybrid
role of the probation officer, who, "while assuredly charged with protecting the
public interest, is also supposed to have in mind the welfare of the probationer."
Id. The absence of an unqualifiedly adversarial relationship between
probationer and probation officer allowed access to information otherwise
unobtainable and served to make the probation officer the best available
barometer for gauging the likelihood that the conditions of probation had been
transgressed. Id. at 878-79 & n. 6, 107 S.Ct. at 3170-71 & n. 6.

12

Taking all of these factors into account, the Court decided that it was "both
unrealistic and destructive of the whole object of the continuing probation
relationship to insist upon the same degree of demonstrable reliability of
particular items of supporting data, and upon the same degree of certainty of
violation, as is required in other contexts." Id. at 879, 107 S.Ct. at 3171. On this
basis, the Court found the Wisconsin regulation authorizing probation officers
to conduct searches of a probationer's home without a judicial warrant and in
the absence of exigent circumstances to be constitutionally sound. Id. at 880,
107 S.Ct. at 3171. 2 III. ANALYSIS

13

The issue before us is largely unclouded by extraneous considerations. It is

undisputed that the PVW was validly issued; that New York's "reasonable
cause" standard for its issuance was fulfilled and does not differ materially
from Wisconsin's "reasonable grounds" criterion; that when the PVW was
sworn out there was no "probable cause" for appellant's arrest in the classical

sense, see, e.g., O'Connor v. Ortega, 480 U.S. 709, 724, 107 S.Ct. 1492, 1502,
94 L.Ed.2d 714 (1987) (plurality op.) (distinguishing between "probable cause"
and "reasonable suspicion"); that there were no "exigent circumstances"
justifying entry into the dwelling, see, e.g., United States v. Curzi, 867 F.2d 36,
41-42 (1st Cir.1989) (discussing parameters of doctrine); that just as Wisconsin
probationers are deemed held in the state's legal custody, Griffin, 483 U.S. at
870, 107 S.Ct. at 3166, so, too, are New York parolees, see N.Y.Exec.Law Sec.
259-i(2)(b) (1982); that Rhode Island law authorized police officers to arrest
Cardona as a suspected parole violator and return him to New York, see
R.I.Gen.Laws Sec. 13-8-19 (1981); and that a New York statute also authorized
police officers to execute PVWs, see N.Y.Exec.Law Sec. 259-i(3)(a)(iii)
(1982). Appellant concedes that the shotgun was in plain view and therefore
lawfully seized if the constables' entry into the apartment was valid. See United
States v. Rutkowski, 877 F.2d 139, 140-41 (1st Cir.1989) (outlining "plain
view" exception to warrant requirement). Last but not least, there is no
suggestion that the PVW was trumped up as a subterfuge to permit police to
invade appellant's home.
14

Having cleared away the mist, three potentially significant factual differences
separate Griffin from the instant case. First, Griffin involved a probationer
whereas this case involved a parolee. Second, the government actors in Griffin
entered the dwelling bent on conducting a search; here, the intent was not to
search but to detain. And finally, in Griffin the probation officer was physically
present at the climactic moment, albeit accompanied by the police. Here, no
parole officer was on the scene.3

15

The first of these differences--that Cardona was on parole whereas Griffin was
on probation--cuts in favor of the government. Parole is meted out in addition
to, not in lieu of, incarceration. It "is an established variation on imprisonment
of convicted criminals." Morrissey v. Brewer, 408 U.S. 471, 477, 92 S.Ct.
2593, 2598, 33 L.Ed.2d 484 (1972). Moreover, violation of parole results in a
return to jail and the completion of a previously stated sentence. Violation of
probation results in the potential imposition of a jail sentence or, in some cases,
in the execution of all or some part of a sentence previously imposed but
suspended. On the Court's "continuum of possible punishments," Griffin, 483
U.S. at 874, 107 S.Ct. at 3168, parole is the stronger medicine; ergo, parolees
enjoy even less of the average citizen's absolute liberty than do probationers.
Cf. Faheem-El v. Klincar, 841 F.2d 712, 728 (7th Cir.1988) (en banc) (finding
rational basis for Illinois procedures affording probationers greater protections
than parolees).

16

The second distinction--lack of an intent to search--leads the dissent to draw

what we perceive to be an entirely artificial distinction between "search"

jurisprudence and "seizure" jurisprudence. Post at 70- 71. In our view, the
distinction possesses no functional relationship to underlying fourth amendment
jurisprudence or interests, but serves the solitary purpose of descriptive
characterization. That is, the span of possible searches overlaps, almost
perfectly, with the span of possible seizures in the extent to which they,
respectively, may or may not infringe upon fourth amendment interests. This
span ranges from the most minimal intrusion upon a person's privacy to the
most violative, without regard to whether the intrusion takes the shape of a
search or of a seizure. See, e.g., United States v. Martinez-Fuerte, 428 U.S. 543,
565, 96 S.Ct. 3074, 3086, 49 L.Ed.2d 1116 (1976) ("The degree of intrusion
upon privacy that may be occasioned by a search of a house hardly can be
compared with the minor interference with privacy resulting from the mere stop
for questioning as to residence."). Given this categorical interchangeability of
searches and seizures in terms of fourth amendment analysis, logic dictates that
the conceptual and doctrinal underpinnings applicable to either category be
equally applicable to the other category, at least a priori; and the Court has
approached fourth amendment issues accordingly. See e.g., id. at 561, 96 S.Ct.
at 3084 (applying balancing framework of Camara v. Municipal Court, 387
U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), to seizure case); Spinelli v.
United States, 393 U.S. 410, 416-17, 89 S.Ct. 584, 589-90, 21 L.Ed.2d 637
(1969) (describing seizure case, Draper v. United States, 358 U.S. 307, 79 S.Ct.
329, 3 L.Ed.2d 327 (1959), as "suitable benchmark" and "relevant comparison"
for determining legality of search); see also Lopez Lopez v. Aran, 844 F.2d
898, 902-05 (1st Cir.1988) (applying balancing test of "search" cases to airport
stop); 1 W. LaFave, Search and Seizure, Sec. 3.1(b), at 544 (2d ed. 1987) ("It is
generally assumed by the Supreme Court and the lower courts that the same
quantum of evidence is required whether one is concerned with probable cause
to arrest or probable cause to search.") (footnote omitted). If anything, we think
entering the home to detain a parolee may well be less intrusive than searching
his abode. Cf. Minnesota v. Olson, --- U.S. ----, ----, 110 S.Ct. 1684, 1685, 109
L.Ed.2d 85 (1990) (purpose of rule that suspect should not be arrested in his
home without an arrest warrant "was not to protect the person of the suspect but
to protect his home from entry"); New York v. Harris, --- U.S. ----, ----, 110
S.Ct. 1640, 1641, 109 L.Ed.2d 13 (1990) (similar). Nevertheless, in an effort to
hold the balance steady and true, we assign minimal weight to the
search/seizure distinction.
17

By far the most significant factual difference between the cases is the parole
officer's absence when the police officers entered appellant's residence. If the
parole officer had accompanied the lawmen, we believe that Griffin would
unarguably apply to defeat appellant's suppression claim. See Griffin, 483 U.S.

at 879-80, 107 S.Ct. at 3170-71 (approving warrantless search of probationer's

home by probation officers with police present); see also United States ex rel.
Randazzo v. Follette, 418 F.2d 1319, 1322 (2d Cir.1969) (upholding arrest of
parolee in parolee's apartment by parole officers lacking a judicial warrant; also
validating search incident thereto), cert. denied, 402 U.S. 984, 91 S.Ct. 1672,
29 L.Ed.2d 150 (1971). Appellant and our dissenting brother argue strenuously
that the parole officer's absence removes the case from Griffin 's doctrinal orbit.
We agree that this appeal boils down to the constitutional significance of that
fact, but we believe for a quadrat of reasons that Griffin forecasts the result we
must reach.
18

1. The language of Griffin makes it abundantly clear that the Court was
concerned about the standards influencing the selection of decisionmakers in
particular contexts. The Court's focus was on the degree of security inherent in
allowing a particular decisionmaker, i.e., a probation officer, to make a
particular decision, i.e., whether a probationer's home should be searched,
based on a particular (relatively modest) level of proof, i.e., "reasonable
grounds." See, e.g., Griffin, 483 U.S. at 879 n. 6, 107 S.Ct. at 3171 n. 6 ("[o]ur
discussion pertains to the reasons generally supporting the proposition that the
search decision should be left to the expertise of probation authorities rather
than a magistrate"). The Court did not lend any special salience to the identity
of the person(s) executing the search, concentrating instead on whether a
probation officer may constitutionally authorize a search "support[ed] by a
lesser quantum of concrete evidence justifying suspicion than would be
required to establish probable cause." Id.

19

The gist of the Court's opinion reduces to the choice between decisionmakers-probation official or judicial magistrate--regarding when, and for what
reason(s), a probationer's home may be searched. The Court, concerned about
the special needs of the probation system, believed that the Constitution left
ample room for the former to call the turn. See id. at 876, 107 S.Ct. at 3169 ("A
warrant requirement would interfere to an appreciable degree with the
probation system, setting up a magistrate rather than the probation officer as the
judge of how close a supervision the probationer requires."). Whether the
decision, once reached, is realized through police officers, parole officers, or a
tag team representing both camps, is peripheral to the Court's holding.

20

Furthermore, the other differences between this case and Griffin favor
continued employment of the monitor qua decisionmaker. The need for
oversight is presumptively greater in connection with parole as opposed to
probation. See, e.g., People v. Burgener, 41 Cal.3d 505, 532-33, 224 Cal.Rptr.
112, 130-31, 714 P.2d 1251, 1268-69 (1986) (discussing reasons for heightened

surveillance and supervision in parole setting). It follows inexorably that the

ongoing relationship between parole officer and parolee must be more tightly
enmeshed than that between probation officer and probationer. Authorizing an
arrest rather than a general search leaves less to the discretion of the
implementing officers. And the issuance of the PVW, if material at all,
evidences a considered effort by the parole authorities, in a somewhat more
structured fashion than in Griffin, to assure that the lowered threshold
("reasonable cause") was crossed.
21

2. We assume that, as was true in this case, those who implement a PVW will
remain faithful to its scope, initiating no independent decisions about further
searches or seizures. Put another way, we take as a given that the executors,
whoever they may be, will serve merely as agents of the decisionmaker, doing
what the decisionmaker authorized, augmented only by the constitutionally
permissible (such as seizing recognizable contraband in plain view). As
discussed above, we think it is obvious that the Griffin Court shared, and
proceeded on, this assumption.

22

We hasten to add that allowing police officers to act in an agentival capacity is

not an open invitation to gamesmanship through which law enforcement
personnel can circumvent the rigors of the fourth amendment. The law will not
allow a parole officer to serve as a cat's paw for the police. See Latta v.
Fitzharris, 521 F.2d 246, 249 (9th Cir.) (en banc) (plurality op.) (parole search
may not be used as a "subterfuge for a criminal investigation"), cert. denied,
423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975); Smith v. Rhay, 419 F.2d
160, 162-63 (9th Cir.1969) (where parole officer conducts warrantless search
"not as the supervising guardian, so to speak, of the parolee, but as the agent of
the [police]," fruits of search must be suppressed); cf. United States v. Jarrad,
754 F.2d 1451, 1454 (9th Cir.) (probation officer may not act as "stalking
horse" for police), cert. denied, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78
(1985). When and if the integrity of a challenged action is controverted, the
dispute is determinable as a question of fact on a case-by-case basis. See United
States v. Richardson, 849 F.2d 439, 441 (9th Cir.), cert. denied, --- U.S. ----,
109 S.Ct. 171, 102 L.Ed.2d 141 (1988). In this case, the question has been
asked and definitively answered: Cardona concedes that the police were acting
strictly and solely at the parole board's behest. There is no evidence of
contrivance. The fact that possible abuses might occur in some other,
hypothetical case is insufficient reason to ditch the baby with the bath water.4

23

Given this starting point, logic dictates that in the purlieus of parole the fourth
amendment must concern itself more with who authorizes searches and
seizures, and the bases on which they are authorized, than with who

implements reached decisions. Cf., e.g., United States v. Ofshe, 817 F.2d 1508,
1513-14 (11th Cir.) (where search warrant duly issued but executed by federal
agents other than person to whom it was directed, defect did not require
invalidation of ensuing search), cert. denied, 484 U.S. 963, 108 S.Ct. 451, 98
L.Ed.2d 391 (1987); United States v. Pennington, 635 F.2d 1387, 1389-90
(10th Cir.1980) (upholding use of fruits where search warrant duly issued by
federal magistrate but executed by state officers rather than by federal officer as
required by Fed.R.Crim.P. 41(c)), cert. denied, 451 U.S. 938, 101 S.Ct. 2018,
68 L.Ed.2d 325 (1981). While the actual invasion of privacy does not occur
until the search or seizure occurs, the constitutional protection is viable only to
the extent that it restricts the authority responsible for making the search or
seizure decision, prior to the time the decision crystallizes. As in traditional
agency doctrine, the source of the decision to act, not the robotic agent who
implements it, is ultimately responsible for the decision's consequences.
24

In sum, the method of the fourth amendment, and hence the jurisprudential
underpinnings of Griffin, supports the conclusion that police officers and parole
officers are fungible when the former serve as mere implementers of decisions
already made by the latter. See Richardson, 849 F.2d at 442 (decision to
authorize search more important than identity of those present during its
course); 5 United States v. Dally, 606 F.2d 861, 862-63 (9th Cir.1979) (parole
officer may constitutionally authorize valid parole search by corrections
official, notwithstanding parole officer's absence during search); cf. United
States v. Polito, 583 F.2d 48, 56 (2d Cir.1978) (where PVW outstanding, law
enforcement officer may detain parolee for purpose of assisting parole
authorities).

25

The force of this postulate is not slowed by appellant's protest that parole
officers are more "friendly" or less "adversarial" than police officers. That is
so--although to a lesser extent, we think, than is true of probation counsellors.
But, the observation is a two-edged blade: it is in part the very lack of
unmitigated antagonism that justifies substituting the monitor for the
magistrate qua decisionmaker. See Griffin, 483 U.S. at 878-79, 107 S.Ct. at
3170-71. And as to implementation, it seems fair to suppose that where, as here,
the parolee is being arrested preliminary to incarceration for violating parole,
the "friendly" nature of the parole officer's visit is considerably diluted. In all
candor, we are aware of no "less adversarial" way to capture an individual and
place him in custody. To the extent that police officers merely execute a PVW
as agents of the parole board, they would seem to be neither more nor less
unamiable than the parole officer himself.6

26

3. It is by now familiar doctrine that "the Fourth Amendment does not

proscribe all searches and seizures, but only those that are unreasonable."
Skinner v. Railway Labor Executives' Ass'n, --- U.S. ----, 109 S.Ct. 1402, 1414,
103 L.Ed.2d 639 (1989). That is to say, "the permissibility of a particular
practice 'is judged by balancing its intrusion on the individual's Fourth
Amendment interests against its promotion of legitimate governmental
interests.' " Id. (quoting Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391,
1396, 59 L.Ed.2d 660 (1979)); see also Maryland v. Buie, --- U.S. ----, 110
S.Ct. 1093, 1096-97, 108 L.Ed.2d 276 (1990) (ratifying balancing test for
fourth amendment purposes); Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct.
2637, 2640-41, 61 L.Ed.2d 357 (1979) (similar); Lopez Lopez v. Aran, 844
F.2d at 905 ("judges must weigh the need to search or seize against the invasion
the search or seizure entails"). In this respect, a parolee suffers no greater insult
to his privacy when three police officers enter his home to do the parole board's
bidding than when three police officers and a parole officer enter. The essence
of the intrusion is the government's uninvited entrance onto private premises,
cf. Harris, --- U.S. at ----, 110 S.Ct. at 1641 ("[t]he warrant requirement for an
arrest in the home is imposed to protect the home"), regardless of the entrance's
personification; the mere incremental presence of a parole officer does not
alleviate the insult.
27

We agree with our dissenting brother that the sanctity of the home is a highly
relevant fourth amendment interest and that " 'physical entry into the home is
the chief evil against which the wording of the Fourth Amendment is directed'
". Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 1379, 63 L.Ed.2d
639 (1980) (quoting United States v. United States District Court, 407 U.S.
297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972)); see also United States
v. Curzi, 867 F.2d at 41. We also agree that this interest--which implicates the
occupant's right to determine when the government shall or shall not intrude
into his private domain--is a powerful one.

28

We part company with the dissent, however, on two scores. The first lies in our
inability to comprehend how, considering the state's "overwhelming interest" in
the expeditious retaking of parolees who cannot abide by the terms of their
conditional release, Morrissey, 408 U.S. at 483, 92 S.Ct. at 2601, a resident's
right to privacy is infracted more by a party of three policemen than by a party
consisting of those same policemen plus an additional government agent. After
all, no less an authority then the Supreme Court has told us straightforwardly
that the "special needs" of a state's probation system can justify an intrusion
into the home without either a judicial warrant or a demonstration of probable
cause. See Griffin, 483 U.S. at 873-77, 107 S.Ct. at 3167-69. As we discuss
below, the legitimate needs of the parole system are no less demanding. See
People v. Huntley, 43 N.Y.2d 175, 181, 401 N.Y.S.2d 31, 34, 371 N.E.2d 794,

797 (1977) ("in any evaluation of the reasonableness of a particular search or

seizure the fact of defendant's status as a parolee is always relevant and may be
critical; what may be unreasonable with respect to an individual who is not on
parole may be reasonable with respect to one who is"); see also United States
ex rel. Santos v. New York State Bd. of Parole, 441 F.2d 1216, 1218 (2d
Cir.1971), cert. denied, 404 U.S. 1025, 92 S.Ct. 692, 30 L.Ed.2d 676 (1972).
29

The second point of departure involves the dissent's adamantine insistence that,
to paraphrase Gertrude Stein, an arrest is an arrest is an arrest. Like so many
words used in the law, "arrest" has a protean quality. Apprehending a parolee--a
convicted criminal--as a likely parole violator strikes us as considerably
different than detaining a presumptively innocent citizen to face emergent
criminal charges. (The cases cited by the dissent, of course, are all of the latter
stripe, see post at 70 - 72, involving routine felony arrests.) The Court has made
it crystal clear that this distinction is a vital one in determining the availability
and scope of fourth amendment protection. See Griffin, 483 U.S. at 874, 107
S.Ct. at 3168; Morrissey, 408 U.S. at 480, 92 S.Ct. at 2599; cf. Polito, 583 F.2d
at 55-56 (refusing to characterize arrest of parolee as an "arrest" for fourth
amendment purposes). Ignoring Cardona's reduced-liberty status and the
constitutional ramifications flowing from it effectively denies the teachings of
the Griffin Court.

30

4. The capstone of Justice Scalia's majority opinion in Griffin was the

conclusion "that the special needs of Wisconsin's probation system ma[d]e the
warrant requirement impracticable" and justified the search based on
"reasonable grounds," short of probable cause. Id. at 876, 107 S.Ct. at 3169.
The instant case posits an equally great, or greater, phalanx of special needs.
The imposition of a requirement that a parole officer obtain a judicial warrant
whenever a suspected parole violator is to be detained would, even more so
than in the probation milieu, "interfere to an appreciable degree" with the state's
post-conviction monitoring of defendants. Id. at 876, 107 S.Ct. at 3169.
Sidetracking the swift deployment of the "deterrent effect" so important in postconviction monitoring, see id., would be at least as harmful in connection with
parole supervision. Similarly, if "the probation regime would ... be unduly
disrupted by a requirement of probable cause," id. at 878, 107 S.Ct. at 3170, the
dislocations would be even worse in the parole context.

31

Though the objectives served by parole conditions are much the same as those
served by conditions of probation, compare Morrissey, 408 U.S. at 478, 92
S.Ct. at 2598 (describing dual purpose of parole conditions) with Griffin, 483
U.S. at 875, 107 S.Ct. at 3168 (describing goals of probation conditions), parole
caters, by and large, to a more hardened group of offenders, punished more

severely for more imposing crimes. See Faheem-El, 841 F.2d at 728 ("As a
general proposition, parolees have been convicted of more serious crimes than
individuals who receive probation."); Burgener, 41 Cal.3d at 533, 224 Cal.Rptr.
at 131, 714 P.2d at 1269 (on the whole, parolee, as contrasted with probationer,
"poses a significantly greater risk to society"). A fortiori, making it "more
difficult for [monitoring] officials to respond quickly to evidence of
misconduct," Griffin, 483 U.S. at 876, 107 S.Ct. at 3169, is even riskier in the
parole environment. Thus, the parole system will tolerate fewer tuggings at the
tightly woven fabric of regulatory constraints and must perforce receive no less
consideration under the fourth amendment than the Griffin Court accorded to
the probation system.
32

What is more, requiring parole officers to accompany police officers during the
execution of a PVW would itself be disruptive. Parole officers in Rhode Island
are neither trained nor equipped to make arrests of delinquent parolees.
Common sense suggests that retaking parolees is apt to be hazardous duty.
Requiring a parole officer's presence whenever a suspected violator is to be
detained would create unnecessary risks and foster needless complications. See
Richardson, 849 F.2d at 442 ("requiring the probation officer's physical
presence during every probation search or requiring close supervision of all
probation searches, would unnecessarily interfere with the twin goals of
probation: rehabilitation of the probationer and protection of society"). Given
the situational needs which permeate the disciplined precincts of parole and
parole arrests, and also given the institutional realities, we believe that
imposing a judicial warrant requirement in this context would, to fall back on
the Court's phrase, be "impracticable." Griffin, 483 U.S. at 876, 107 S.Ct. at
3169.7

33

To recapitulate, we are convinced that the dissent construes the imprimatur of

Griffin too narrowly and undervalues the extent to which Griffin provides
support for the entire institutional structure of parole. It is simply untenable to
constrict Griffin 's focus to particular types of actors within the parole system.
The concern of the Griffin Court with the special needs of administering a
probation system was plainly a holistic concern. The reasons undergirding that
concern become even more cogent in the parole environment.

34

In turn, the logic deriving from such holistic postulates dictates a functional
approach to problems like the one currently before us. If police officers
function merely as instruments of the parole system, not as law enforcers per se,
they should be accorded the same privileges available to other operatives in the
system. In the parole context, an arrester's identity for fourth amendment
purposes should be strictly a function of his function, not of his title or usual

duties. There is no constitutionally sufficient reason to deny to police officers

what is permitted to parole officers when the former limit themselves to serving
as functionaries within the system. To hold otherwise would both skew Griffin
's holistic focus and discommode the delicate arrangement of policies and
concerns which underlie that focus.
IV. CONCLUSION
35

We need go no further. The implications of our discussion for the case at bar
are inescapable: Griffin governs. Given that the Rhode Island police did
nothing more than implement the PVW in good faith as agents, and at the
request, of duly constituted parole authorities, acting in pursuance of valid
parole regulations, their entry into defendant's dwelling place, and their
consequent seizure of contraband in plain view, was unexceptionable. The
district court did not err in denying Cardona's motion to suppress or in
predicating his federal conviction on the evidence obtained from his home.

36

Affirmed.

37

BOWNES, Senior Circuit Judge (dissenting).

38

The majority believes that it "need go no further" on its "journey into fourth
amendment jurisprudence" than Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct.
3164, 97 L.Ed.2d 709 (1987). But, "[i]t is also true of journeys in the law that
the place you reach depends upon the direction you are taking. And so, where
one comes out on a case depends on where one goes in." United States v.
Rabinowitz, 339 U.S. 56, 69, 70 S.Ct. 430, 436, 94 L.Ed. 653 (1950)
(Frankfurter, J., dissenting). By beginning and ending its journey with Griffin,
the majority distorts both the substance and method of fourth amendment
jurisprudence. In addition, by straining to extend the Griffin "special needs"
exception from searches by parole administrators to seizures by police officers,
a situation clearly not covered, and arguably forbidden, by the language of
Griffin, the majority ignores directly conflicting Supreme Court precedent.
Because my brothers ignore basic fourth amendment principles and Supreme
Court precedent, both of which we are bound to follow rather than to avoid, I
must dissent.

39

There are at least five reasons for not following the court's incomplete fourth
amendment analysis:

40

first, the fourth amendment has consistently been held to require probable cause

for arrests;
41

second, Supreme Court precedent requires that police officers making an arrest
at a residence must have a probable cause arrest warrant;

42

third, the Griffin "special needs" exception applies only to searches by parole
officers and not arrests by police officers;fourth, it was not impractical for the
police officers to obtain an arrest warrant; and

43

fifth, police officers cannot be insulated from the requirements of the

Constitution by a misconceived and misapplied notion of agency.

44

I will consider each of these reasons in turn.

1. The Fourth Amendment: Arrests always require probable cause

45
46

I begin my analysis where the majority's journey should have begun--with the
fourth amendment:

47 right of the people to be secure in their persons, houses, papers and effects,
The
against unreasonable searches and seizures, shall not be violated, and no warrants
shall issue, but upon probable cause.
48

The majority concedes that in most circumstances, a "reasonable" search or

seizure requires a warrant and thus probable cause.1 In certain limited
situations, exceptions to the warrant and probable cause standard have been
recognized for searches. But there has never been an exception to the probable
cause to arrest requirement. Furthermore, unlike my brothers, I do not find any
qualifications in the language of the fourth amendment based on "practicality"
or "logic." Nor do I view the fourth amendment as an obstacle to be
circumvented or something that can be balanced away. In my view, the fourth
amendment is an unassailable constitutional command that protects the
individual citizen from arbitrary police action; it cannot be adjusted on a caseby-case basis according to judges' shifting views of practicality.

49

The court, while acknowledging that this case involves an arrest, the
quintessential seizure, uses analysis and precedent from "search" cases rather
than "seizure" cases in order to rationalize the result it wants. My brothers
allude to the fact that this case does not involve a search but they do not analyze
the case differently because of that fact. The case law and rationale of seizure
cases differs significantly from search cases and in almost all cases requires

probable cause. To ignore this distinction is to commit a grave constitutional

error. When analyzed as an arrest case, neither the majority's reasoning nor
result can withstand even mild scrutiny.
50

An arrest, the most intrusive of seizures, always requires probable cause. See,
e.g., Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639
(1980) (arrest at home requires probable cause arrest warrant); United States v.
Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (allowing
warrantless arrest based upon probable cause); Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968). This requirement is a long-standing one.
See, e.g., Ex Parte Burford, 7 U.S. 269, 272 (3 Cranch 448, 453, 2 L.Ed. 495)
(1806) (Marshall, C.J.) (arrest warrant illegal for lack of probable cause).

51

The majority's opinion establishes a new constitutional standard for arrests

based on mere "reasonableness." It has cited no support for its novel view of
the Constitution (because there is none) and has instead been forced to rely
upon tenuous extensions of exceptions to the search provisions of the fourth
amendment. These exceptions are inapposite for seizure cases.

52

The majority adopts the methodology of search cases (case-by-case

reasonableness balancing test) which also is inapplicable to arrest cases.
Whatever the merits or demerits of reasonableness balancing,2 such a method of
analysis has never been applied in arrest cases. "For all but ... narrowly defined
intrusions, the requisite 'balancing' has been performed in centuries of
precedent and is embodied in the principle that seizures are 'reasonable' only if
supported by probable cause." Dunaway v. New York, 442 U.S. 200, 214, 99
S.Ct. 2248, 2257, 60 L.Ed.2d 824 (1979).

2. Payton: Police arrests at a home require warrant

53
54

Reversal is also required on a much narrower ground: binding Supreme Court

precedent on the exact issue of police officers making arrests at a suspect's
home. In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639
(1980), the Court held that the arrest of an individual by police officers at his
home required an arrest warrant. See also Johnson v. United States, 333 U.S.
10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); United States v. Adams, 621 F.2d 41
(1st Cir.1980); United States v. Reed, 572 F.2d 412 (2d Cir.), cert. denied, 439
U.S. 913, 99 S.Ct. 283, 58 L.Ed.2d 259 (1978). That is exactly the situation
presented by this case. The majority completely ignores Payton, the settled law
that has been consistently followed and re-affirmed. Skinner v. Railway Labor
Executive Ass'n, --- U.S. ----, 109 S.Ct. 1402, 1414, 103 L.Ed.2d 639 (1989);
Griffin, 483 U.S. at 873, 107 S.Ct. at 3169. The Court has recently strongly

reaffirmed the core of Payton stating that because of Payton "the police know
that a warrantless entry will lead to the suppression of any evidence found
inside the home." New York v. Harris, --- U.S. ----, ----, 110 S.Ct. 1640, 1642,
109 L.Ed.2d 13 (1990).
55

Payton was based on the clear commands of the fourth amendment. See, e.g.,
United States v. Johnson, 457 U.S. 537, 552, 102 S.Ct. 2579, 2588, 73 L.Ed.2d
202 (1982) (applying Payton retroactively). The "Court's own analysis in
Payton makes it clear that its ruling rested on both long recognized principles of
Fourth Amendment law and the weight of historical authority as it had
appeared to the framers of the Fourth Amendment." Johnson, 457 U.S. at 552,
102 S.Ct. at 2589. Payton was also firmly buttressed by the policies underlying
the fourth amendment. As the Payton Court stated, the "physical entry of the
home is the chief evil against which the wording of the fourth amendment was
directed." Payton, 445 U.S. at 585, 100 S.Ct. at 1379 (citation omitted); see also
Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d
734 (1961) ("At the very core [of the fourth amendment] stands the right of a
man to retreat into his own home and there be free from unreasonable
governmental intrusions"); United States v. Curzi, 867 F.2d 36, 41 (1st
Cir.1989) (noting the special fourth amendment status of the home).

56

The only exception to the Payton rule is exigent circumstances. Payton, 445
U.S. at 586, 100 S.Ct. at 1380 ("seizure carried out on a suspect's premises
without a warrant is per se unreasonable, unless the police can show that it falls
within one of a carefully defined set of exceptions based on the presence of
'exigent circumstances.' ") (quoting Coolidge v. New Hampshire, 403 U.S. 443,
474-75, 91 S.Ct. 2022, 2042-43, 29 L.Ed.2d 564 (1971)). It is conceded that
there were no exigent circumstances in this case.

3. Griffin: Administrative searches as special needs exception

57
58

The majority, ignoring Payton, expands the "special needs" exception

applicable to administrative searches to include police arrests. In doing so the
majority stretches "special needs" analysis beyond the breaking point; the core
of fourth amendment activity, an arrest by a police officer, is now an exception
to the fourth amendment probable cause requirement. The exception truly has
swallowed the rule.

59

In creating this exception, the majority misconstrues Griffin. In certain

administrative situations there are " 'special needs' beyond normal law
enforcement that may justify departures from the usual warrant and probablecause requirements" in searches by administrators. Griffin v. Wisconsin, 483

U.S. 868, 873-74, 107 S.Ct. 3164, 3167-68, 97 L.Ed.2d 709 (1987) (search by
probation officer); see also O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492,
94 L.Ed.2d 714 (1987) (search by government employer); New Jersey v.
T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (search by school
administrator). All of the cases cited by the majority, and all of the cases
justifying special needs, involve searches by administrators in situations
requiring expediency.
60

The arrest of Cardona is not "governed" by Griffin or the other special needs
cases because it was not a search and was not conducted by an administrator.
The Constitution and Supreme Court precedent requires probable cause for
arrests, a significantly more rigorous standard than is applied to administrative
searches. This standard is found throughout the history of the fourth
amendment, which was written against a background of arrests based on less
than probable cause. See, e.g., Draper v. United States, 358 U.S. 307, 314-25,
79 S.Ct. 329, 333-39, 3 L.Ed.2d 327 (1959) (Douglas, J., dissenting) (reviewing
history of seizure portion of fourth amendment). In addition, an arrest, even for
someone on parole, is much more intrusive of fourth amendment interests than
the limited administrative searches contemplated by the "special needs" cases.

61

Contrary to the broad language in the majority's opinion, the "special needs"
cases place great emphasis on who conducts these searches. Each of the
"special needs" cases involved searches conducted by administrators because of
special administrative needs.3 Each is premised on the fact that the
administrator is operating within a system that has special needs for an
immediate search. None involved a search by an unaccompanied police officer;
in Griffin the police officers were assisting the parole officers. In fact, most of
the cases were premised upon the impracticability of getting the help of a
police officer quickly enough. The majority has made no showing, as it must,
that the special needs of the parole system required a police officer to make the
arrest while at the same time requiring that officer to ignore the Constitution
and Payton.

62

The importance of who is conducting the search is found in the explicit

language of Griffin where the Court stated that it was creating an exception
"beyond normal law enforcement activities." Griffin, 483 U.S. at 873-74, 107
S.Ct. at 3167-68. The arrest of a suspect is the epitome of law enforcement
activities. Griffin provides no support for the proposition that police officers
may ignore the constitutional requirement of a probable cause arrest warrant by
using the cover of the parole department's "special needs."

63

The Griffin opinion was premised on the unique relationship between parties in

the probation or parole systems which is significantly different from the

adversary relationship between a citizen and a police officer. Id. at 876, 107
S.Ct. at 3169 ("Although a probation officer is not an impartial magistrate,
neither is he a police officer who normally conducts searches against ordinary
citizens. He ... is also supposed to have in mind the welfare of the
probationer."). In emphasizing that special relationship, the Griffin Court was
consistent with the reasoning of other exceptions to the probable cause standard
in administrative searches. But police officers are not part of the administrative
scheme of the parole system. There is a significant and constitutional difference
between the actions of a parole officer administering the parole system and a
police officer making an arrest.4
64

Recognizing the difficulty of forcing this case within the "doctrinal orbit" of
Griffin5 , the majority claims that all arrests are not alike. In particular they
claim that Cardona is not presumptively innocent like most citizens. This is a
shocking deviation from a hallowed principle of our criminal law.

4. Cardona: It was not impracticable to comply with the Constitution

65
66

The majority justifies its result by claiming that a warrant requirement would
be "impracticable." It finds support for this argument in Griffin 's emphasis on
practicality. Of course, there is no "practicality" standard in the Constitution but
even if there were, it would not be applicable here. On the facts of this case,
there was not a problem of practicality. There was plenty of time for the Rhode
Island parole department to comply with the Constitution.

67

The parole officer in Rhode Island first notified New York authorities of a
parole violation on January 12, 1987. After more parole violations and further
investigation, a PVW was finally issued on April 21, 1987. But the police did
not receive confirmation until 6:34 a.m. on May 4, 1987. This delay implies
that the arrest of Cardona must not have been a very high priority for the Rhode
Island parole authorities. It also shows that the parole officer had plenty of time
to obtain a probable cause arrest warrant. Even after receiving the PVW, the
police did not act quickly: it took two full days for the police to get around to
arresting Cardona. Two days was plenty of time for the police to obtain a
probable cause arrest warrant.

68

Moreover, "impracticality," as used by the majority, has the exact opposite

meaning of its use in Griffin and the other special needs cases. In those cases, it
was impractical to call the police because it would take too much time and the
object of the search might be gone. Here the argument is that it was impractical
not to call the police but impractical to obtain a probable cause arrest warrant.

That deflates the practicality argument because if there is time to have the
police do the parole department's job, there must be time to get a probable
cause arrest warrant.
5. Police officers as agents?
69
70

In elaborating on its unique view of the Constitution, the majority justifies its
position by claiming that "logic dictates ... that the fourth amendment must
concern itself more with who authorizes searches and seizures ... than who
implements the decisions reached." Maj. op. at 62. This sentence is puzzling. It
seems initially to support my view that arrests require probable cause. The only
cases that the majority can cite to bolster this proposition are those where a
warrant issued by a neutral magistrate after a probable cause determination was
executed by a law enforcement officer other than specified in the warrant. As
those citations indicate, the Constitution requires that an independent
decisionmaker (a magistrate) make a decision based upon a specified standard
(probable cause). The majority, by relying on cases where a magistrate has
issued a warrant, ignores the constitutional standard--probable cause--upon
which the magistrate's decisions and the law enforcement officer's actions were
based.

71

In context, this sentence indicates that the majority is not concerned with who
executes a decision. I can only conclude that it is the majority's view, against
the weight and history of Constitutional law, that the Constitution is concerned
with ends and not means. Cf. Olmstead v. United States, 277 U.S. 438, 485, 48
S.Ct. 564, 575, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting).

72

Although the majority claims that it does not care who implements a decision,
it implicitly recognizes that it must somehow relax the constitutional
requirements for police officers in order to get the result it desires. The only
way it can do this, avoid the full impact of the prohibitions of the fourth
amendment and at the same time force the case within the Griffin exception is
by creating an agency theory. The notion apparently is that by making the
police officers agents of the parole administrators, the constitutional restrictions
normally applicable to police officers do not apply. No cases are cited for this
unique proposition.

73

If the fourth amendment does not apply to police officers, then to whom does it
apply? How can police officers act as agents free of the usual constitutional
restraints when they are executing the quintessential act of their job--arresting
someone? The majority asserts that police officers function as "robotic" agents,
not as law enforcers, but that does not change the fact that Cardona was arrested

and charged with a crime rather than merely held by the police until the parole
authorities took custody of him. Cardona is before us contesting the gun charge.
There is no dispute that his parole should be revoked. The police "robots"
clearly exceeded the scope of their agency.

74

Based on the majority's agency theory, I can readily envision the new
exceptions that will erode the guarantees of the fourth amendment: A police
officer functioning as an agent of a school principal searching students' lockers,
or acting as an agent of an employer and searching desks, or even a police
officer functioning as an agent of a building inspector searching everyone's
basement. Such activities, easy extensions of the majority's reasoning, illustrate
the danger of the agency approach.

75

Finally, the phrasing of the agency theory requires two brief comments. First,
the language exhibits clearly the difference between our views of what is
required by the Constitution. I view the Constitution as the supreme law of the
land to be faithfully obeyed. The majority thinks that the commands of the
Constitution "must" be contained by logic and practicality. Second, the
majority's reliance on pseudoscientific language here and elsewhere in the
opinion ("logic dictates," maj. op. at 64, 66; "doctrinal orbit," maj. op. at 65;
"postulate," maj. op. at 66; "the logic ... from such postulates dictates," maj. op.
at 69) brings to mind Justice Holmes' phrase that "the life of the law has not
been logic; it has been experience." Requiring probable cause for arrest may, at
times, be neither logical nor reasonable, but it is based on the command of the
Constitution as interpreted by the heavy weight of precedent. The premise of
the Constitution and our criminal justice system is that the basic values
embodied in the Bill of Rights are more important than simply determining
factual guilt.

76

The court has misconstrued the Constitution and ignored Supreme Court
precedent. I would follow what is the law of the land: a police officer may not
make an arrest at the residence of a suspect without an arrest warrant based
upon probable cause, unless there are exigent circumstances. Payton, 445 U.S.
573, 100 S.Ct. 1371; United States v. Adams, 621 F.2d 41 (1st Cir.1980). I
would reverse the district court's denial of the suppression motion. It would
follow that Cardona's conviction would be reversed but, of course, that would
not affect his status as a parole violator.

The applicable New York statute provides in material part:

If the parole officer having charge of a paroled or conditionally released person

... shall have reasonable cause to believe that such person has lapsed into
criminal ways or company, or has violated one or more conditions of his parole
... a warrant may be issued for the retaking of such person and for his
temporary detention in accordance with rules of the [parole] board.
N.Y.Exec.Law Sec. 259-i(3)(a)(i) (1982).
2

The affirmance rested on narrower grounds than those supporting the

Wisconsin Supreme Court's decision. Whereas the state court held that any
search by a probation officer passes constitutional muster as long as the officer
has "reasonable grounds" for opting to search, the Court dealt, more limitedly,
with searches conducted pursuant to valid regulations governing probationers.
483 U.S. at 880, 107 S.Ct. at 3171. This limitation, however, has no significant
bearing upon the applicability of Griffin to the case at bar. Here, appellant
acknowledges that virtually all the salient actions occurred pursuant to state
regulations or statutes and after an administrative finding of "reasonable cause"
in accordance with New York law. He does not challenge the reasonableness of
any component of the regulatory mosaic

We do not think it makes a difference that the incursion in Griffin was effected
solely on the strength of a regulation applicable to probationers whereas in this
case the entry was backed both by the regulatory scheme and the PVW. In both
instances, information was obtained by the monitoring officer, whose
recommendation for action was then considered and approved at a higher
echelon. The parties do not claim that the standard of administrative review
antecedent to the authorizing of further activity (in Griffin, the probation
search; here, the parolee's detention) was materially lower in one case than in
the other. The mere existence of a slip of paper--the PVW--is in our judgment
not enough to disturb the essential equipoise between two fairly comparable
situations

If the police stray in a given case--as, indeed, can happen after issuance of a
judicial warrant--then ample remediation is available. See generally United
States v. Young, 877 F.2d 1099, 1105-06 (1st Cir.1989) (discussing choice of
remedies for overzealous execution of warrant)

Richardson is apparently at odds with an earlier Ninth Circuit ruling that

"searches of probationers not otherwise in compliance with the usual standards
of the Fourth Amendment [must] be by, or under the immediate and personal
supervision of, probation officers." United States v. Consuelo-Gonzalez, 521
F.2d 259, 266 (9th Cir.1975). Because Richardson, unlike Consuelo-Gonzalez,
postdated Griffin, we find this tergiversation easily explicable

To be sure, the Griffin Court took some pains to differentiate between probation
officers and police officers. But, we do not view that approach as inconsistent
with our assessment. Taken in context, the distinction drawn by the Court
relates primarily to the comparative qualifications of classes of officials to serve
as decisionmakers, not implementers. See, e.g., Griffin, 483 U.S. at 876, 107
S.Ct. at 3169 ("Although a probation officer is not an impartial magistrate,
neither is he the police officer who normally conducts searches against the
ordinary citizen.") (emphasis supplied)

The dissent argues that in this case the police had ample time to secure an arrest
warrant, rendering invalid any claim that complying with traditional fourth
amendment requirements was impracticable. That viewpoint distorts Griffin 's
"impracticability" prong. In Griffin, the Court inquired into the systemic
impracticability of compelling those involved in implementation of a probation
regime to obtain warrants. See Griffin, 483 U.S. at 876-77, 107 S.Ct. at 3169-70
(emphasizing institutional costs of forcing probation officers to comply with
traditional fourth amendment criteria). The impracticability of obtaining a
warrant in the particular case did not enter into the equation; indeed, Justice
Blackmun argued unsuccessfully for much the same sort of particularized
inquiry that Judge Bownes would have us undertake. See id. at 885, 107 S.Ct.
at 3174 (Blackmun, J., dissenting). Whether it was feasible for the police to
obtain a warrant in this particular case is irrelevant for the purpose at hand

It is undisputed that the PVW in this case, an administrative warrant issued on a

finding of reasonable cause by the parole board, did not fulfill the probable
cause requirement of the Constitution. If the police officers in this case had
obtained an arrest warrant issued by a magistrate upon a showing of probable
cause, this case could be resolved by a mere citation to dictum in Payton v.
New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). An arrest
warrant issued upon a showing of probable cause is sufficient to justify entry
into the residence of the individual named in the warrant if the police officers
have a reasonable belief that the individual is present. Payton, 445 U.S. at 603,
100 S.Ct. at 1388. Once police officers are legally within a residence pursuant
to a valid arrest warrant, they may seize any object within plain view that is
immediately incriminating. Coolidge v. New Hampshire, 403 U.S. 443, 91
S.Ct. 2022, 29 L.Ed.2d 564 (1971); United States v. Rutkowski, 877 F.2d 139,
140-41 (1st Cir.1989). In addition, officers may seize, incident to a lawful
arrest, anything within the arrestee's immediate control in order to protect
themselves or preserve evidence. See, e.g., United States v. Robinson, 414 U.S.
218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973)

I have significant problems with the application of such a procedure to the

fourth amendment but this case is not the place to explore those problems

because reasonableness is clearly not applicable here. See generally, Skinner v.

Railway Labor Executive Ass'n, --- U.S. ----, 109 S.Ct. 1402, 1423-26, 103
L.Ed.2d 639 (1989) (opinion of Brennan, J.); New Jersey v. T.L.O., 469 U.S.
325, 357-58, 105 S.Ct. 733, 751-52, 83 L.Ed.2d 720 (1985) (opinion of
Brennan, J.)
3

In slightly different situations, the Court has authorized administrative searches

on less than traditional probable cause pursuant to a reasonable regulatory
scheme. Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262
(1981); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87
(1972); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d
930 (1967). In each of these circumstances, the searches were conducted by
administrative agents rather than police officers

I am not persuaded by the single case that the majority cites for its
interpretation of Griffin, United States v. Richardson, 849 F.2d 439, 442 (9th
Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 171, 102 L.Ed.2d 141 (1988). Even if
Richardson were better reasoned, it would not support the majority's view
because it involved a search
In Richardson, police officers suspected that an individual had committed a
burglary. After determining that the suspect was on probation, the officers
obtained an arrest warrant and received permission from the probation officer
to search the suspect's house. The officers then went to the house and arrested
the suspect who was sitting in his car in his driveway. Then they conducted a
complete house search on the authority of the "permission" of the parole
officer. The district court denied the motion to suppress the results of the
search. A panel of the Ninth Circuit affirmed based on its reading of Griffin:
"On balance, we believe the Court [in Griffin ] approved the concept that the
decision to authorize the search was more important than who was present
when the search was made." Richardson, 849 F.2d at 442.
Richardson is strikingly at odds with cases both in the Ninth Circuit and
elsewhere. Every other case I have examined that interprets Griffin involves the
actions of parole or probation officers. I have found no other case that uses
Griffin to support broader police activities. See, e.g., United States v. Robinson,
857 F.2d 1006, 1008 (5th Cir.1988). In addition to disregarding constitutional
precedent, the court also failed to follow Ninth Circuit precedent. See, e.g.,
United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir.1975) (en banc)
(prohibiting search by police pursuant to a general search condition of
probation).
Richardson did not address squarely the constitutional issue (it treats the search

and seizure issue as a question of clear error). It did not consider Payton or any
of the Supreme Court precedents on the subject, or cases that discuss the
constitutional limits of the scope of a search incident to arrest. Moreover,
Richardson is distinguishable on the facts. No matter what other excesses the
police committed, they had obtained a probable cause arrest warrant based on a
parole violation warrant.
5

I also gratefully acknowledge that the majority recognizes the diamondlike

("adamantine" maj. op. at 67) hardness and clarity of my criticisms