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United States v. Fitzpatrick

decided: May 12, 1970.


Lumbard, Chief Judge, and Kaufman and Hays, Circuit Judges. Lumbard, Chief Judge (concurring). Irving R. Kaufman, Circuit Judge (concurring in the result).

Author: Hays

HAYS, Circuit Judge.

Appellant Herbert Sperling appeals from an order of the United States District Court for the Southern District of New York denying without a hearing his application for a writ of habeas corpus.


Appellant was a mandatory releasee subject to the supervision of the United States Board of Parole.*fn1 On June 8, 1968, two New York City police officers unlawfully searched appellant and another man and took from appellant's possession a loaded.38 caliber pistol.*fn2 On June 27, 1968 the Board of Parole, upon an application setting forth information as to this incident, issued a warrant for the retaking of appellant as a mandatory release violator.*fn3 Appellant surrendered himself to his Parole Officer and on October 25, 1968, a mandatory release revocation hearing was held before an examiner designated by the Board of Parole pursuant to 18 U.S.C. § 4207 (1964). Appellant appeared and was represented by counsel. The warrant application and a police report substantiating the information contained in the application were introduced into evidence. The examiner found that on June 8, 1968, appellant was in possession of a.38 caliber loaded pistol in violation of the conditions of his release,*fn4 and upon the examiner's recommendation the Board of Parole revoked appellant's release.


Appellant contends that the Board of Parole could not use the fruits of an unlawful search and seizure as evidence to prove a violation of parole. We cannot accede to this contention and affirm the denial of appellant's petition for a writ of habeas corpus on the ground that the exclusionary rule is not applicable in a parole revocation proceeding.

The Board of Parole's action in revoking appellant's mandatory release was authorized by 18 U.S.C. § 4207 (1964).*fn5 In determining whether a mandatory releasee has violated any of the conditions under which he was released, the Board may consider information from any reliable source and if "satisfactory evidence is presented to the Board, a warrant may be issued and the offender returned to an institution." Parole Board Directive No. 1, 28 C.F.R. § 2.35 (1969). The Parole Board is thus vested with the broadest discretion consistent with due process to act upon reliable evidence in revoking parole. See Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 242 (en banc), cert. denied sub nom. Jamison v. Chappell, 375 U.S. 957, 84 S. Ct. 447, 11 L. Ed. 2d 316 (1963). Appellant does not dispute that there was reliable evidence that he had possession of a loaded pistol in violation of one of the conditions of his release.

The exclusionary rule is believed to be a necessary restraint on the adversarial zeal of law enforcement officials.*fn6 "As it serves this function, the rule is a needed, but grudgingly taken, medicament; no more should be swallowed than is needed to combat the disease." Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U.Pa.L.Rev. 378, 389 (1964).

A parole revocation proceeding is not an adversarial proceeding. A parolee remains, "while on parole, in the legal custody and under the control of the Attorney General." 18 U.S.C. § 4203 (1964); Anderson v. Corall, 263 U.S. 193, 196, 44 S. Ct. 43, 68 L. Ed. 247 (1923). A parole revocation proceeding is concerned not only with protecting society, but also, and most importantly, with rehabilitating and restoring to useful lives those placed in the custody of the Parole Board.*fn7 To apply the exclusionary rule to parole revocation proceedings would tend to obstruct the parole system in accomplishing its remedial purposes.

There is no need for double application of the exclusionary rule, using it first as it was used here in preventing criminal prosecution of the parolee and a second time at a parole revocation hearing. The deterrent purpose of the exclusionary rule is adequately served by the exclusion of the unlawfully seized evidence in the criminal prosecution.

Parolees are, of course, not without constitutional rights,*fn8 and there is always the possibility of police harassment. However, instances of such harassment can be treated as they arise.*fn9 Appellant does not suggest that he was the object of any harassment.

Finally, we note that the police officers who subjected appellant to the unlawful search may be subjected to both federal and state penalties.*fn10 While Mapp found these remedies an ineffectual safeguard in the context of criminal proceedings, we see no reason why they may not prove effective in circumstances such as those presented in this case. And if they do not, it would seem sounder policy to strengthen the efficacy of these sanctions rather than to ...

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