WAYNE E. BARNES, PETITIONER V. UNITED STATES OF AMERICA No. 90-5846 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals (Pet. App. A1) is unpublished, but is noted at 905 F.2d 1543 (Table). JURISDICTION The judgment of the court of appeals was entered on May 29, 1990. On August 27, 1990, Justice Kennedy extended the time for filing a petition for a writ of certiorari to and including September 26, 1990. The petition for a writ of certiorari was filed on September 26, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court erred in refusing to apply the exclusionary rule at petitioner's probation revocation proceeding. STATEMENT In 1986, following a bench trial in the United States District Court for the Southern District of Alabama, petitioner was convicted of conspiracy to possess marijuana, with intent to distribute it, in violation of 21 U.S.C. 846, and possession of marijuana with intent to distribute it, in violation of 21 U.S.C. 841. He was sentenced to 90 days' imprisonment and 5 years' probation. In 1989, the district court concluded that petitioner had violated the conditions of his probation, revoked petitioner's probation, and sentenced him to six years' imprisonment and a special parole term of three years. The court of appeals affirmed. Pet. App. A1. In April 1989, a state trooper in Covington, Louisiana stopped a motor home driven by petitioner for tailgating. Petitioner, who had not obtained permission from his probation officer to leave the Southern District of Alabama, had followed the trooper's car for half a mile at a distance of less than one car length. Petitioner told the officer that he owned the motor home, but a computer check revealed that it was registered to someone else. Petitioner consented to a search of the vehicle, but refused to allow the trooper to look inside the closets. A drug detector dog was brought to the scene and alerted on the motor home. On the basis of the dog's reaction, the police obtained a warrant to search the vehicle. A search pursuant to the warrant uncovered small amounts of marijuana in three locations inside the vehicle and $17,000 in cash. The vehicle was impounded, and petitioner was arrested for tailgating and possession of marijuana. Thereafter, law enforcement agents seized $44,000 in cash from the holding tank of the toilet in the motor home. Gov't C.A. Brief 3-5. In August 1989, the United States Probation Office moved to revoke petitioner's probation for violating the conditions of his probation that required him to obtain permission from his probation officer prior to leaving the Southern District of Alabama, and to refrain from conduct that would give reasonable cause to believe that he had violated a criminal law. Pet. App. A3. Petitioner filed a suppression motion arguing that the state trooper had violated petitioner's Fourth Amendment rights by conducting a "pretextual" stop. The district court denied the motion on the ground that the exclusionary rule does not apply to probation revocation proceedings absent a demonstration of police harassment. The district court found that the record contained no evidence of harassment, and further found that petitioner had violated the terms of his probation by leaving the judicial district without permission and by being arrested for possession of marijuana. Accordingly, the court ordered that petitioner's probation be revoked. Pet. App. A2-A5. The court of appeals affirmed in an unpublished judgment order. Pet. App. A1. ARGUMENT Petitioner contends (Pet. 7-13) that the district court erred in refusing to apply the exclusionary rule at his probation revocation proceeding. Although there is a conflict between a 12-year old decision of the Fourth Circuit and the decisions of other courts of appeals, the Fourth Circuit has not reaffirmed its position and may reexamine it in an appropriate case. In any event, this case is not an appropriate vehicle for resolving the conflict because petitioner's probation was subject to revocation whether or not the courts below applied the exclusionary rule. 1. As an initial matter, petitioner's underlying contention that the state trooper violated the Fourth Amendment is almost certainly without merit. Petitioner consented to a partial search of the motor home; the dog sniff was not a search within the meaning of the Fourth Amendment, see United States v. Place, 462 U.S. 696, 707 (1983); United States v. Jacobsen, 466 U.S. 109, 123-124 (1984); and the search warrant obtained as a result of the dog sniff undoubtedly was supported by probable cause. Petitioner does not dispute any of these points. Instead, he states that "(t)he essence of (his) Fourth Amendment claims in this case was that the stop of his vehicle was unlawful because made on the pretext that he was following too close to a Louisiana State Patrol car." Pet. 11. But petitioner does not deny that he was following the patrol car too closely, or that tailgating is an offense under Louisiana law. Moreover, petitioner offers no support for his assertion that petitioner's tailgating was only a pretext for the stop. In particular, petitioner was not stopped because he was a probationer. At the time of the stop, the state trooper did not know petitioner's identity, let alone that he was on probation. In any event, "where police officers are objectively doing what they are authorized to do * * *, the results of their investigations are not to be called into question on the basis of any subjective intent with which they acted." United States v. Causey, 834 F.2d 1179, 1184 (5th Cir. 1987) (en banc). See also United States v. Trigg, 878 F.2d 1037, 1041 (7th Cir. 1989) ("(S)o long as the police are doing no more than they are legally permitted and objectively authorized to do, an arrest is constitutional."). Even if the stop had violated the Fourth Amendment, moreover, the exclusionary rule would not have shielded petitioner from a determination that he violated a condition of his probation by leaving the judicial district without permission. Petitioner's probation officer testified that petitioner told him that he had left the district without permission. This testimony would not have been barred by the exclusionary rule, because petitioner's appearance at the probation office two days after the arrest dissipated any taint flowing from the illegal stop. See Wong Sun v. United States, 371 U.S. 471, 491 (1963) (statement made by suspect upon voluntary return to station several days after illegal arrest not fruit of illegal arrest). See also Minnesota v. Murphy, 465 U.S. 420 (1984) (probationer who reports to probation officer for interrogation is not in custody). In sum, there is no reason to believe that the Fourth Amendment was violated in this case. And even if there had been a Fourth Amendment violation, evidence not subject to the exclusionary rule would have been sufficient to establish that petitioner's probation was subject to revocation. Accordingly, this is not an appropriate case for deciding whether the exclusionary rule applies at probation revocation proceedings. 2. Petitioner correctly observes (Pet. 9) that there is a conflict among the courts of appeals over the question whether the exclusionary rule applies in probation revocation proceedings. But the conflict is less dramatic than petitioner suggests. Almost every court of appeals to have decided the issue has held that the exclusionary rule does not apply to probation revocation proceedings, at least where the law enforcement agents did not know that their target was on probation at the time of the search or seizure. See United States v. Finney, 897 F.2d 1047, 1048 (10th Cir. 1990); United States v. Bazzano, 712 F.2d 826, 833 n.1 (3d Cir. 1983) (en banc), cert. denied, 465 U.S. 1078 (1984); United States v. Frederickson, 581 F.2d 711, 713 (8th Cir. 1978); United States v. Winsett, 518 F.2d 51, 53-55 (9th Cir. 1975); United States v. Farmer, 512 F.2d 160, 162-163 (6th Cir.), cert. denied, 423 U.S. 987 (1975); United States v. Brown, 488 F.2d 94, 95 (5th Cir. 1971); United States v. Hill, 447 F.2d 817, 819 (7th Cir. 1971). The courts of appeals have concluded that the costs of excluding evidence from a probation revocation proceeding outweigh the benefits of applying the exclusionary rule in that context. They reason that, because law enforcement officers are deterred by the application of the exclusionary rule to prosecutions, there is little or no additional deterrent value to be obtained from applying the exclusionary rule to probation revocation proceedings as well as to prosecutions. See, e.g., United States v. Bazzano, 712 F.2d at 830-834. Cf. United States v. Calandra, 414 U.S. 338 (1974) (exclusionary rule does not apply at grand jury proceedings because costs of applying the rule outweigh the benefits). /1/ In addition, society's interest in protecting itself against probationers who have already been convicted of crimes would be compromised if reliable evidence were excluded from probation revocation proceedings. Here, the state trooper did not know that petitioner was a probationer at the time of the stop. Consequently, the officer could not have intended to use evidence obtained from the stop at a probation revocation proceeding. In this situation, at least, the costs of excluding evidence from the probation revocation proceeding plainly outweigh the benefits of applying the exclusionary rule. Consequently, the courts below properly refused to apply the exclusionary rule at petitioner's probation revocation proceeding. Petitioner incorrectly asserts (Pet. 9) that the Second Circuit has held that the exclusionary rule applies to probation revocation proceedings. In United States v. Rea, 678 F.2d 382 (1982), the Second Circuit applied the exclusionary rule in a probation revocation proceeding where the search was conducted by a probation officer. The court's decision in Rea turned on its conclusion that "a probation officer who seeks to discover and seize evidence for use in a probation revocation hearing is very likely to be deterred from proceeding without a warrant if the officer knows that evidence so seized is apt to be excluded from the very proceeding with which he is concerned." Id. at 390. The court expressly recognized that the deterrent purpose of the exclusionary rule would not be significantly advanced by a double application of the exclusionary rule -- first to prevent the criminal prosecution of the parolee, and then to suppress the illegally seized evidence in a parole revocation hearing in which the offending officers could not possibly have had an interest at the time they conducted the illegal search. Id. at 389 (citing United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970)). Sperling held that the exclusionary rule does not apply in a parole revocation proceeding where the illegal search was conducted by a police officer who did not know that the target was a parolee. Thus, the Second Circuit's position is consistent with the majority view. It is true that the Fourth Circuit has held that the exclusionary rule applies at probation revocation proceedings. United States v. Workman, 585 F.2d 1205 (1978). But there are several reasons why Workman does not warrant a grant of certiorari in this case. First, at least one of the two illegal searches in Workman was conducted by an officer who knew of Workman's status as a probationer. Id. at 1207. Second, Workman did not consider the argument that applying the exclusionary rule to probation revocation proceedings can have little deterrent effect on police officers who do not know that a target is on probation. Third, Workman has not been accepted by any other court of appeals, and has not been reaffirmed by the Fourth Circuit. Indeed, it has not been cited in a Fourth Circuit opinion since Grimsley v. Dodson, 696 F.2d 303 (1982). /2/ Fourth, subsequent decisions by this Court have cast doubt on the Fourth Circuit's broad holding in Workman. See, e.g., Griffin v. Wisconsin, 483 U.S. 868 (1987) (special need to supervise probationers justifies search on less than probable cause standard); INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) (exclusionary rule not applicable at civil deportation hearings). Because the majority rule applied in this case is correct, and because the Fourth Circuit may reexamine its broad holding in Workman in an appropriate case, further review is not warranted. /3/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General THOMAS E. BOOTH Attorney NOVEMBER 1990 /1/ In contrast, probation officers or other officials who know that the target is a probationer may be deterred by application of the exclusionary rule to probation revocation proceedings. /2/ A district court in the Fourth Circuit recently held that the exclusionary rule does not prevent admission at a parole revocation proceeding of evidence obtained from an illegal search of a parolee by a state trooper. Pratt v. United States Parole Comm'n, 717 F. Supp. 382 (E.D.N.C. 1989). The court concluded that "developments since 1978 have worked a substantial change in the judicial view of the exclusionary rule." Id. at 385. /3/ Petitioner contends (Pet. 7-9) that the district court erred in not permitting him to present evidence that the state trooper harassed him. The district court concluded from the record before it that there was no evidence of harassment. Pet. App. A4. Neither that fact-specific determination nor the district court's determination that there was no need to take further evidence on this issue warrants further review.