United States of America Ex Rel. Herbert Sperling, Relator-Appellant v. Walter v. Fitzpatrick, Warden, West Street House of Detention
426 F.2d 1161
2d Cir.
1970
Check Treatment

*1 H61 Saín, Townsend v.

745, 9 L.Ed.2d 770 remand, must the District Court

On sufficiency of de- the state’s

examine of the voluntariness

termination by the court trial

confessions—both through 2254(d), by and, jury under its it post-conviction If finds court. unsupportable it then decide must

them basis of the hear-

the issue itself findings ing already made it had has presented. the evidence there from that the with instructions

Remanded denying writ set aside and

order proceedings.

further ex rel. America

UNITED STATES SPERLING, Relator- Herbert Appellant, Warden, FITZPATRICK, West V.

Walter Detention, Street House Respondent-Appellee. 33780. Docket

No. Appeals, Court Circuit. Second

Argued Nov. May

Decided

George Santangelo, New York L. (Santangelo York Santangelo, New & City, relator-appellant. counsel), for (Rob- Atty. Gross, Asst. U. John S. H. Atty. Morgenthau, U. ert M. S. Jay District Southern counsel), Gold, Atty., S. Asst. U. respondent-appellee. Judge, LUMBARD, Chief Before Judges. HAYS, Circuit

KAUFMAN Judge. HAYS, Circuit appeals Appellant Herbert Dis- an order the United States *2 retaking appellant District trict Court Southern warrant for the of hearing mandatory Appel- of York denying New without release violator.3 application for of cor- lant his a writ habeas surrendered Parole himself to his pus. 1968, Officer and on a man- 25, October

datory hearing release revocation was I. designated held an examiner before pursuant the Board of Parole to 18 U.S. Appellant mandatory re was a (1964). Appellant appeared C. § subject supervision leasee of represented The and was counsel. United Board Parole.1 On of police report application and a warrant 8, 1968, City police June two New York substantiating the information contained unlawfully appellant officers searched application into were introduced appel and another man and took from The examiner on evidence. found that possession lant’s a loaded caliber .38 8, 1968, appellant posses- June in was pistol.2 27, On June 1968 the of Board pistol sion of a caliber .38 loaded vio- Parole, upon application setting forth release,4 incident, lation of the conditions of his information toas issued a 1960, upon charges of east corner nue, 48th Street Ave- and 3rd on of In his conviction York, by selling so, conspiracy New New York and narcotics to do Sperling appellant Detectives. was observed was sentenced envelope to remove manila from the Dis States District .Court for the Eastern parked years trunk of his car which bore license of of ten trict New York a term imprisonment. September QX number NY it and hand to co- On Alphonso appellant prison pursu defendant who then Sisea was released from parked (1964), it on the front seat of his ve- § ant expiration hicle NY which carried license number mandates at the release of arresting prisoner’s 6028 XL. The then of officers term sentence “less the time stopped men, good Appellant both identified themselves deducted conduct.” Sperling thereupon and then ‘frisked’ and Sisea. was “deemed as if released parole” subject juris Detective Lee took a loaded .38 caliber pistol Sperling. from of Herbert diction the United Detective States Board August 22, 1969, envelope Lennon Parole until seized the manila the date “expiration the front seat of car the maximum term Sisca’s and found * * * (sic) it it to contain for which he more than ounce was sentenced less one eighty days.” of heroin. Detective Lee seized one hundred and a manila U.S.C. (1964). envelope Sperling’s from the trunk of car § envelope and that also contained more 2. The court below assumed that the search than an ounce Len- heroin. Detective unlawful, government was and the does non seized from the trunk of car Sisca’s strenuously urge appeal not that it was a loaded .38 caliber revolver. hearing not. No has been held on le- charged Both men were with the offense gality of the search. theOn basis of the of Felonious Possession of Narcotics seized, appellant evidence and the other Weapons Possession of ar- were Supreme Court, man were indicted in raigned same date the Criminal County, posses- New York for felonious weapons. Court, Manhattan. sion heroin and A motion Information has been submitted suppress evidence, was made to Terrizzi, USPO Southern District the indictment was thereafter dismissed. N.Y., report in his of June 1968.” properly pursu- warrant was issued 4. 18 U.S.C. 4203 prisoner “upon authorizes (1964) upon ap- ant U.S.C. release of a such terms plication Joseph Shore, N. Parole Ex- * * * and conditions as the Board ecutive, upon information submitted prescribe.” shall One terms and Terrizzi, Matthew Probation Officer. appellant’s conditions of release was that Reed, U.S.App.D.C. 254, “possession any he would have in (en banc), 240—241 cert. dangerous weapon firearm or other with- Chappell, denied sub nom. Jamison v. permission out the written Proba- [his] 11 L.Ed.2d 316 Officer, following prior approval tion application read, The warrant the Board of Parole.” pertinent part, as follows: “Herbert was arrested at about 4:45 a. m. the South- 6/8/68 (en banc), denied F.2d cert. recommenda- upon examiner’s ap- Chappell, revoked sub nom. Jamison v. of Parole the Board tion 957, 84 pellant’s release. Appellant dispute does not there pos II. he had was reliable evidence that pistol session of a loaded violation Appellant contends one of the conditions of his release. fruits use the Parole could *3 exclusionary evi The rule is believed to be seizure search and of an unlawful necessary parole. a restraint on the adversarial prove a violation dence “As of law officials.6 contention zeal enforcement cannot accede this We petition function, appellant’s it rule is a need- serves this the the denial affirm medicament; ed, grudgingly taken, corpus the but a writ of habeas exclusionary is ground no more should be swallowed than rule is the pro parole to combat the disease.” Amster- applicable needed in revocation a Search, Seizure, ceeding. dam, 2255: and Section Comment, 378, A 112 U.Pa.L.Rev. 389 in of Parole’s action The Board (1964). mandatory revoking appellant’s release by 4207 parole proceeding was authorized A revocation determining (1964).5 man whether a proceeding. pa In is not an adversarial A any datory the remains, has violated parole, releasee rolee “while released, he was legal custody under which control of and under the information Board consider Attorney the the 18 U.S.C. § General.” any and if “satis source (1964); Corail, reliable 4203 Anderson 263 v. factory presented 193, is 196, 43, evidence 68 247 U.S. S.Ct. L.Ed. Board, the issued and (1923). a parole proceeding warrant be A revocation institution.” only offender returned to an protecting is concerned not so 1, also, C.F.R. importantly, Parole Board Directive No. ciety, but and most restoring thus rehabilitating 2.35 The Board is Parole use con custody the broadest discretion vested with ful lives those process upon with due act apply sistent the the Parole Board.7 To exclu revoking parole. sionary parole in pro reliable evidence rule to revocation 254, Reed, U.S.App.D.C. ceedings pa tend to the would obstruct provides: 1246, 1250, 5. § 4207 upon retaking parolee. “Revocation Lower federal have ex- courts prisoner upon A prosecuted retaken a warrant is- it the tended to civil actions Parole, given Board shall be sued the United Government. See Pizzarello appear opportunity States, the before 408 F.2d 585-586 Cir. thereof, Board, 1969) (tax ease); a member an ex- assessment Powell v. designated by Zuckert, U.S.App.D.C. Board. aminer the 366 F. may then, (discharge proceed- The or at Board time 2d discretion, pa- ing against government ; employee) Rog- in its revoke the order of States, (1st role terminate such modi- ers v. F.2d 691 fy 1938) (action the terms and conditions thereof. to recover customs duties). If shall re- such order terminated, voked the so significance 7. The this distinction is required prisoner may said Supreme pointed up by the Court’s de- any part serve all or remainder cision in v. New Williams he sen- the term was 93 L.Ed. tenced.” (1949), where held it the Court Supreme contrary penological The Court has held the exclu- would be to modern sionary applicable pro- policies rule in forfeiture to extend to a convicted criminal ceedings, “object, right where the like crim- offender confront wit- proceeding, penalize against post-trial sentencing is to inal com- in nesses him against Verdugo procedures. mission of an offense the law.” see But v. United Plymouth States, One 1958 Sedan v. Common- 610-613 Pennsylvania, 1968). wealth of through imposition system accomplishing its remedial of an in- role purposes. exclusionary flexible rule. Affirmed. application no need for double There is using exclusionary first rule, it of the LUMBARD, Judge (concur- preventing crim- Chief as it used here was ring). prosecution inal hear- second time at revocation I concur in the result reached ing. purpose of ex- deterrent Judge Hays impres this case first clusionary adequately served rule is sion in do so because I Circuit. unlawfully seized the exclusion believe confines within which prosecution. evidence the criminal parole portion justice of the criminal system operates practical allow no other course, are, of not with Parolees result. rights,8 out constitutional there sys- Ideally, officer in our always possibility harass *4 First, he tem serves a dual function.- However, ment. har instances such paroled prisoner should counsel the they assment can be treated arise.9 specialized and dif- assist him in the Appellant suggest that he was does Second, he ficult task of rehabilitation. object harassment. should with the of course familiar be we of- Finally, note that parolees activities of within his ambit subjected appellant ficers who they responsibility may so that may subjected unlawful search assisted to abide penalties.10 both federal state While parole, they so, and if fail to do he can Mapp found these an ineffec- remedies in suitable cases recommend revocation safeguard tual in the context of criminal parole discharge these status. To proceedings, why they we see no reason effectively highly requires functions sub- prove in circumstances effective jective knowledge of each com- presented such as those in this case. parole supervi- mitted to the officer’s they And if do not, it sound- would seem procedures As sion. policy strengthen efficacy er segment jus- correctional of the criminal these sanctions rather than to vitiate system, parole tice offices are over- penological the Parole effectiveness inadequately worked funded.1 Reed, supra, 8. person F.2d 318 at another aof benefit: He com- 243; Hallman, relating United States v. mits an act to his office but con- 1966) ; stituting 291 Brown v. Kear- an unauthorized exercise of his ney, 1966) (per functions, knowing 355 199 F.2d official that such act * * curiam); States, Martin v. United is unauthorized cert, (4th Cir.), denied, subjected F.2d One who has been to unlaw- 340 U.S. 71 S.Ct. L.Ed. ful search and seizure sue under (1950) (probationer). (1964) bring § U.S.C. a state damage trespass. action for States, 9. See Abel v. United 1. See President’s Commission Law En Justice, forcement and Administration (Supp. IV, 1965-68) § Report: Corrections, 6, 70, Task Force imposes $1,000 a fine of not more than (1967) (hereinafter “Task Force Re imprisonment for not more than and/or one port”). Report The Task Force states anyone year upon who, acting under supervision of convicted felons law, subjects dep- color of another to a paroled who were either rights. rivation of U.S.C. Cf. probation, “the number of (similar penalties for unlawful parole officers needed 1965 was three officer). search federal employed. [Num times number then (McKin- New York Penal Law 195.00 employed 5,081; ber number needed— — ney’s Consol.Laws, 40, 1967) pro- c. 15,600.] This increase would reduce public guilty vides that a servant is present high from their caseloads levels misconduct, misdemeanor, a class A when- * * * ever, deprive “with intent parolees the rehabilita- sonableness of The result both searches of con- protective suffer ducted tive and functions or at the direction of parolees stringent individual officers the inattention under less standards heavy applied case- policemen which must follow from a than those search- case, ing present general such citizenry. load. In the where However, Herbert do not facts as we have indicate that believe that the time for such successfully Sperling approach had no desire to be apply has come. To rehabilitated, exclusionary the effect which we see rule in the context of neglect hearings officer’s this has on the revocation present at the time supervisor pro- merely function as a firm would problems exacerbate society. above; tector of Federal officers discussed import fourth rely city must and state law en- suppression amendment into law process provide forcement them with officials counterproduc- would in fact be important information of the most kind tive. Parole officers would be forced concerning parolees. spend conduct more personally of their time Sperling’s gathering There can be no if proof doubt concerning admissible parolees those Sper- who officer chanced to cannot or had see will not accept rehabilitation. Time devoted to ling companion transfer- Sisea such necessarily field work detracts from ring envelope a manila the corner encourage time available to parol- those of 48th and Third Avenue at Street ees with a sincere desire to avoid the entirely 4:45 A.M. he would have been cycle all-too-familiar An recidivism.' justified inquiring *5 was what greater potential even would be in loss up to, and, reply, if with the unsatisfied the super- time available to counsel and conducting a search. particularly early months— vise — those who Judge leave willing, confinement with the I would be as Kaufman question suggests, to test the constitutional rea- of rehabilitation in real doubt. pp. Report, 98-99, Fig parole officer, Task [see Force the of each caseload is 1, indicating major problem ure that the two-thirds of the in current su- probation pervision.” convicted felons were su pervised Adams, officers whose case Id. at 332. See also Some Find- * * * probationers] ings Research, load exceeded 100 from Correctional Caseload average per officer, to an (December 35 and 31 Federal Probation provide 1967). addition would sufficient officers perform presentence essential investi In an introduction to the 1968 edition gations.” at Probation, Id. of his Sourcebook on Parole Dawson, Sentencing: Pardons, See The Deci- Professor Charles L. New- Type, Length, sion man, as to and Conditions head the Center for Law Enforce- (1969). Pennsyl- Sentence 317-338 Professor ment and Corrections at The Dawson notes University, the fact that obvious vania State states: supervision objectives “Many problems unsolved, often conflict with still remain other, “particularly each among continuing this is that not which least is the likely respect with adequate person- control and deficit of numbers objectives.” Id., Later, treatment appropriate nel with the educational discussing intensity parole super- preparation the training carry out vision, Professor Dawson states that the mission of the administration “objectives actually pursued justice. Hopefully, the work of the supervision depend part upon Joint Commission on Correctional Man- power amount of Training provide time the officer has will some supervise parolee. Presumably, insights solving manpower prob- as increases, greater available time Adequate funding em- lem in corrections. phasis can problem, though in- treatment continues to be a even stead of appropriation control and more use can the total dollar supervision techniques remarkably made of correctional field increased past than the routine office interview. Cor- decade.” suggest rectional Newman, Probation, literature would that Sourcebook on Pa- intensity parole supervision, Pardons, (1968). nor- role and viii mally expressed in terms of the size of concurring opinion. only skeptical his add Although I I somewhat am I few words to indicate what believe “other rem- effectiveness about preferred misconduct, must would to re- I be the manner police deter edies” ap- purpose Hays solve the conflicts in and means Judge a double agree that exclusionary bared this case. is rule plication of the present time. I draw at the warranted not, it, any There is take basic dis balancing the interests conclusion pute proposition over the one is not securing administration parolees in of all rights divested all his constitutional system nearly is which of the prison. g., once he is sent to See e. goals pos- as is dual its consonant Wright McMann, (2d F.2d 519 staffing present levels of sible 1967); United States ex Schu rel. against funding interest of individ- Herold, ster v. 410 F.2d 1071 being Sperling in parolees like ual subjected 1969). Louisiana ex rel. Francis v. Cf. of- local search Resweber, U.S. S.Ct. government seems ficers which L.Ed. 422 Nor is there under tra- unconstitutional concede was question validity principle of the may come The time standards. ditional Bureau of Prisons and the “[t]he Proof of the balance will shift. when widespread police operate Parole Board from the basic parolees harassment premise prisoners placed in their cause since the exclu- would sionary such a shift custody are be rehabilitated re should rule is * * a deterrent stored to lives useful when need for deterrence be used Reed, U.S.App.D.C. clearly But on the facts shown. (en denied, banc), cert. situation, present unwilling to I am Chappell, Jamison v. strike little, could a balance which achieve pri- other than a distortion Note, also Parole Constitutional Law: parole system. orities of Privilege Concept, Status and the Duke L.J. 142-43. In order to KAUFMAN, Circuit R. IRVING purposes, effectuate these the United result). Judge (concurring in the States Parole Board is vested with broad *6 discretion to set the and condi terms in reached result I concur parolee may tions on a which be released. Hays’s opinion, in much my brother (1964).1 says See in That my Lumbard brother of what you assigned conditions, to whom are within three are the same which Present 1. days, you report ordinary parolees, offenders, shall to the youthful instead mandatory Sperling, nearest States Probation United Officer. are like releasees pa 3. You shall not limits fixed leave the side of the reverse out on the set parole this CERTIFICATE PAROLE as OF and are of rolee’s certificate permission without written from the follows: probation PAROLE OF CONDITIONS officer. directly go notify your probation to the dis- You shall shall 1. 4. You immediately change any OF on this CERTIFICATE in trict shown officer your place of residence. words deleted on [underlined PAROLE complete shall a mandatory (unless 5. You make report releasee] form pro- (on written form custody truthful a to released authori- proba- purpose) your days your for that to ties). vided Within three after ar- between third tion officer the first and rival, you report your to shall adviser month, day the final of each and on you one, if have United report parole. day You to shall also whose States Probation Officer name your probation officer at other times appears on this Certificate. you custody he directs. If 2. are released to you any emergency authorities, your unable If in are of other and after re- 6. your adviser, get parole physical custody to with in touch lease thorities, you such au- office, your report his unable to or officer or are to you United Probation communicate with the Officer shall States United ped authority equal provide. pre force with Hence if extends I were releasees, mandatory “deemed are sented with a who case which a condition parole.” required give as if released U.S.C. a presented satisfactory account Courts of himself to determining officers, permit question or what a search of his person may parolee, officers, imposed defer on a have I would give judgment Board. the Parole inclined red to the that determination Binder, See, g., weight. e. States v. the Parole Board considerable 1963). Holtzoff, also F.2d 243 See The Power of Probation Note, Seize, Federal Parole Revocation and Parole Officers to Search System, (December Geo.L.J. 707-709 Federal Probation justified 1967) (suggesting Such deference is consent to searches as Congress ground only parole) has condition of .2 In such circum given discretion safely the Parole wide stances Board we could assume that instance, under but because the fully weighed Board competing has lying policy restore public safety per considerations of —to citizenship— productive individual rehabilitation, sonal and had arrived at treatment, expert demands uniform and it, discretion, what in its informed be equip which the Board is believed best proper lieved to be the resolution. We Parole, Department States Board of spe- mitted. also understand that Justice, Washington, D. C. 20537. cial conditions be added or modifi- any You shall not law. violate any cations of by condition be made get immediately You in touch shall any Board Parole at time. your probation officer if or his office recently New York amended its you questioned by are arrested or law- 155.15(c), conditions. See 9 N.Y.C.R.R. § enforcement officer. provides parolee “hereby that a any agree- 8. You shall not enter into any person, consents to search of his special ment to act as an “informer” or agent residence, any property premises any agency. law-enforcement under his control which the regularly You work shall unless any representatives may Parole or of its by your probation excused officer and see fit to make at time in their support your legal dependents, any, if discretion.” See also United ex your ability. to the best of You shall Follette, rel. Randazzo v. 418 F.2d 1319 report immediately your probation of- 1969), at 1320 n. 4. Without any changes employment. ficer necessarily approving reg- the New York 10. You shall not drink alcoholic bev- ulation, interesting it is to note that all erages pur- You excess. shall not repre- such searches must be made chase, use, possess, or administer mari- sentative the New York Board of Pa- habit-forming huana or narcotic or other role. dangerous drugs, *7 prescribed or unless language may 2. “Waiver” or “consent” physician. or a advised You shall inappropriate, although occasionally it is frequent places drugs where such upon. Holtzoff, supra, relied Although at 7. illegally sold, giv- dispensed, are used or parolee required sign the to away. en form, the and assent to the conditions per- 11. You shall not associate with it, supra, contained on see note sons who have a criminal record unless apply signs conditions whether he you permission your have of See, g., Taylor, form not. e. Welch v. you officer. Nor shall with associate 1961) ; persons engaged activity. in criminal Reid, U.S.App.D.C. 109, Hicks v. (or shall not You have firearms cert, (mandatory release), F.2d dangerous weapons) your pos- denied, 73 S.Ct. 97 L. permission session without the written (1952) ; Ed. United States ex rel. your probation officer, following prior of Warden, F.Supp. (S.D. Ostin v. approval of the United N.Y.1969). Arguably, the releasee con- of Parole. by leaving prison. prac- sents tically, More read, me, I have or had read to the conditions be viewed as fully foregoing parole. conditions of I status, reasonable incidents to with required

understand them and know that if I no fictional consent or waiver any them, may support I violate them. recom- excluding underlying body rationale for support aof would have declaring the dan that experts unreasonable in effect seized after evidence properly gers had been upon of harassment impose is to “a restraint search balance, type evaluated, on that sovereign authority,” Bur- activities precedence over must take of surveillance 465, 475, 41 McDowell, deau 256 U.S. privacy. parolees’ 574, 576, 65 L.Ed. good practical for reasons There are when we balance The interests involved preferring determination an antecedent against liberty aim of individual on spells conditions which that out the enough reducing crime are difficult liberty. far Parole is is set at define, perhaps re- even less and are apt limita- when more be successful ceptive when to evaluation and definition parolee’s are delin- on the freedom tions reason, applied parolees.3 For that certainty. degree eated some mentioned, already have well as those I stay gainfully employed if How does one Board, prefer I would to have the Parole anticipa- ever-present there remains an Congress charged agency has questioning virtually tion unbridled striking maintain in the first in- How does one that balance searches? life home stance, semblance a normal spell precise terms —before out under such conditions? The Chief Jus- that searches release —its determination recently re- tice of the United States Sperling was sub- like the one context, in a “We take marked related jected in terms of both were reasonable put man a burden when behind we dangers goals and the overall give walls, and burden is him a that of harassment or worse. say change.” chance to He went however, LUMBARD, that, my deny deny him Like brother that “If we him we deny unwilling say being time to that human and to I am at this status as a humanity failure to set condi- is to diminish our the Parole Board’s parolees requires plant anguish future tions seeds of searches IWhile ourselves.” Address Chief to order released. Justice us less, Burger perhaps he to be- Warren am inclined than the Association like- the Bar of the Feb. lieve there is considerable 1970, reported sporadic police New York lihood that searches Times, Certainly, any great 18, 1970, p. effect on the Feb. officers have absolutes, rarely par- these are time be- interests allocation of officers’ ticularly rehabilitation, supervision in the case of one who owes his tween liberty Congressional grace they reluctant at this time view would be —but nonetheless, disrup- possibility are real interests and we of the substantial ought lightly system to assume to rule retro- that Con- tion of the gress agent actively its act Parole Board the Parole Board entirely only through imposed meant them to be subordinated in ad- to the whims of local officers. vance. Supreme Municipal (1967);

3. Recent Court decisions un- have 2d 943 Camara balancing Court, derlined the use test to de- (requiring termine whether a search is “unreason- warrants L.Ed.2d 930 purposes. searches, imposing able” fourth amendment but for administrative See, g., Terry Ohio, *8 cause) ; probable e. U.S. a lower standard (1968) (war- LaFave, 20 L.Ed .2d 889 “Street Encounters” permissible) ; Terry, Gibson, rantless “frisk” Sibron Peters and Constitution: Beyond, 88 S.Ct. 55-59 67 Mich.L.Rev. (“frisk” imper- Supreme Term, (1968) ; Court, missible). See also See v. of Seat- 82 Harv.L.Rev. tle, 18 L.Ed.