[House Report 115-112]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 115-112
======================================================================
PROBATION OFFICER PROTECTION ACT OF 2017
_______
May 8, 2017.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1039]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 1039) to amend section 3606 of title 18, United
States Code, to grant probation officers authority to arrest
hostile third parties who obstruct or impede a probation
officer in the performance of official duties, having
considered the same, report favorably thereon without amendment
and recommend that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 3
Committee Consideration.......................................... 3
Committee Votes.................................................. 3
Committee Oversight Findings..................................... 4
New Budget Authority and Tax Expenditures........................ 4
Congressional Budget Office Cost Estimate........................ 4
Duplication of Federal Programs.................................. 5
Disclosure of Directed Rule Makings.............................. 5
Performance Goals and Objectives................................. 5
Advisory on Earmarks............................................. 5
Section-by-Section Analysis...................................... 5
Changes in Existing Law Made by the Bill, as Reported............ 6
Dissenting....................................................... 7
Purpose and Summary
This bill amends the federal criminal code to authorize a
probation officer to arrest a third party (i.e., a person other
than the probationer or individual on supervised release)
without a warrant if there is probable cause to believe the
person forcibly assaulted or obstructed a probation officer
engaged in the performance of official duties.
Background and Need for the Legislation
Under current law, a federal probation officer may arrest a
probationer or individual on supervised release if the officer
has probable cause to believe that the offender has violated a
condition of his or her probation or release.\1\ The officer
may make the arrest with or without a warrant.\2\
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\1\See 18 U.S.C. Sec. 3606.
\2\Id.
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In practice, formal arrests by probation officers are rare.
Rather, probation officers use this authority to lawfully
engage in less restrictive means against the probationer or
supervised releasee, such as ordering the offender to stand
aside during a search; instructing the offender not to
interfere with the officer's movements; or, in rare cases,
temporarily restraining an offender who poses a physical
danger.
Current law does not, however, address a probation
officer's arrest authority in situations in which a third party
attempts to physically obstruct the officer or cause the
officer physical harm. Although obstructing a probation officer
in the performance of his or her official duties is illegal,
when a probation officer encounters an uncooperative or violent
third party, the officer may be forced to retreat because he or
she lacks authority to restrain the third party. This lack of
authority and resulting need to retreat, rather than restrain
the third party, exposes probation officers to greater risk of
harm and allows the third party--along with any evidence or
individual the third party may be attempting to shield--to
elude capture. As a result, evidence that an offender has
violated a condition of his or her probation or supervised
release, or evidence of other criminal activity, may be lost.
In some circumstances, a probation officer may be able to
enlist the assistance of local police in responding to a
hostile third party. But this is not, in and of itself, an
adequate solution. First, unless the probation officer knows in
advance that he or she is likely to encounter a hostile third
party and can find an available police officer to accompany him
or her, the probation officer must wait for police backup to
arrive. This is often not a viable option. Second, even if a
local police officer is available to accompany the probation
officer, because the probation officer lacks arrest authority,
he or she cannot lawfully assist the police officer if the
police officer is accosted. Third, requiring federal probation
officers to rely on local law enforcement in responding to
uncooperative or violent third parties burdens local police
departments and diverts police resources from other uses.
Hearings
The Committee on the Judiciary held no hearings on H.R.
1039.
Committee Consideration
On May 3, 2017, the Committee met in open session and
ordered the bill H.R. 1039 favorably reported, without
amendment, by a roll call vote of 15 to 7, a quorum being
present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following roll call votes occurred during the Committee's
consideration of H.R. 1039:
1. Motion to report the bill favorably. Approved by a roll
call vote of 15 to 7.
ROLLCALL NO. 1
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Ayes Nays Present
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Mr. Goodlatte (VA), Chairman................... X ...... .......
Mr. Sensenbrenner, Jr. (WI).................... ...... ...... .......
Mr. Smith (TX)................................. ...... ...... .......
Mr. Chabot (OH)................................ X ...... .......
Mr. Issa (CA).................................. X ...... .......
Mr. King (IA).................................. X ...... .......
Mr. Franks (AZ)................................ X ...... .......
Mr. Gohmert (TX)............................... X ...... .......
Mr. Jordan (OH)................................ X ...... .......
Mr. Poe (TX)................................... X ...... .......
Mr. Chaffetz (UT).............................. ...... ...... .......
Mr. Marino (PA)................................ X ...... .......
Mr. Gowdy (SC)................................. X ...... .......
Mr. Labrador (ID).............................. ...... ...... .......
Mr. Farenthold (TX)............................ X ...... .......
Mr. Collins (GA)............................... ...... ...... .......
Mr. DeSantis (FL).............................. ...... ...... .......
Mr. Buck (CO).................................. X ...... .......
Mr. Ratcliffe (TX)............................. ...... ...... .......
Ms. Roby (AL).................................. ...... ...... .......
Mr. Gaetz (FL)................................. X ...... .......
Mr. Johnson (LA)............................... X ...... .......
Mr. Biggs (AZ)................................. X ...... .......
Mr. Conyers, Jr. (MI), Ranking Member.......... ...... X .......
Mr. Nadler (NY)................................ ...... X .......
Ms. Lofgren (CA)............................... ...... ...... .......
Ms. Jackson Lee (TX)........................... ...... X .......
Mr. Cohen (TN)................................. ...... ...... .......
Mr. Johnson (GA)............................... ...... X .......
Mr. Deutch (FL)................................ ...... X .......
Mr. Gutierrez (IL)............................. ...... ...... .......
Ms. Bass (CA).................................. ...... ...... .......
Mr. Richmond (LA).............................. ...... ...... .......
Mr. Jeffries (NY).............................. ...... ...... .......
Mr. Cicilline (RI)............................. ...... X .......
Mr. Swalwell (CA).............................. ...... ...... .......
Mr. Lieu (CA).................................. ...... ...... .......
Mr. Raskin (MD)................................ ...... ...... .......
Ms. Jayapal (WA)............................... ...... ...... .......
Mr. Schneider (IL)............................. ...... X .......
------------------------
Total...................................... 15 7 .......
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Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 1039, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
May 5, 2017.
Hon. Bob Goodlatte,
Chairman.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1039, the
Probation Officer Protection Act of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Robert Reese.
Sincerely,
Keith Hall.
Enclosure.
H.R. 1039--Probation Officer Protection Act of 2017
H.R. 1039 would amend current law to allow federal
probation officers to arrest a person if there is probable
cause that the person has assaulted, intimidated, or otherwise
interfered with any probation officers while performing their
official duties. The bill also would direct the Administrative
Office of the U.S. Courts (AOUSC) to implement rules and
regulations governing probation officers' conduct while
exercising that authority.
Based on an analysis of information provided by the AOUSC
about the very small number of arrests that would probably
occur under the bill, CBO estimates that implementing H.R. 1039
would have no significant effect on the federal budget.
Enacting H.R. 1039 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply. CBO
estimates that enacting the legislation would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 1039 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Robert Reese.
The estimate was approved by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
Duplication of Federal Programs
No provision of H.R. 1039 establishes or reauthorizes a
program of the Federal government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that H.R. 1039 specifically directs
to be completed no specific rule makings within the meaning of
5 U.S.C. Sec. 551.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
1039 will grant probation officers authority to arrest hostile
third parties who obstruct or impede a probation officer in the
performance of official duties.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 1039 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of rule XXI.
Section-by-Section Analysis
Section 1. Short Title. This section cites the short title
of the bill as the ``Probation Officer Protection Act of
2017.''
Section 2. Authority of Probation Officers. This section
amends the federal criminal code to authorize a probation
officer to arrest a third party (i.e., a person other than the
probationer or person on supervised release) without a warrant
if there is probable cause to believe the person forcibly
assaulted or obstructed a probation officer engaged in the
performance of official duties.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART II--CRIMINAL PROCEDURE
* * * * * * *
CHAPTER 229--POSTSENTENCE ADMINISTRATION
* * * * * * *
SUBCHAPTER A--PROBATION
SUBCHAPTER A--PROBATION
Sec.
3601. Supervision of probation.
* * * * * * *
[3606. Arrest and return of a probationer.]
3606. Arrest authority of probation officers.
* * * * * * *
Sec. 3606. Arrest [and return of a probationer] authority of probation
officers
[If there] (a) If there is probable cause to believe that a
probationer or a person on supervised release has violated a
condition of his probation or release, he may be arrested, and,
upon arrest, shall be taken without unnecessary delay before
the court having jurisdiction over him. A probation officer may
make such an arrest wherever the probationer or releasee is
found, and may make the arrest without a warrant. The court
having supervision of the probationer or releasee, or, if there
is no such court, the court last having supervision of the
probationer or releasee, may issue a warrant for the arrest of
a probationer or releasee for violation of a condition of
release, and a probation officer or United States marshal may
execute the warrant in the district in which the warrant was
issued or in any district in which the probationer or releasee
is found.
(b) A probation officer, while in the performance of his or
her official duties, may arrest a person without a warrant if
there is probable cause to believe that the person has forcibly
assaulted, resisted, opposed, impeded, intimidated, or
interfered with the probation officer, or a fellow probation
officer, in violation of section 111. The arrest authority
described in this subsection shall be exercised under such
rules and regulations as the Director of the Administrative
Office of the United States Courts shall prescribe.
* * * * * * *
Dissenting Views
H.R. 1039, the ``Probation Officer Protection Act,'' is a
well-intentioned, but flawed proposal that would expand the
arrest authority of federal probation officers (USPOs). This
change would significantly alter the role of these officers,
invite abuse in application of the expanded authority, and
raise constitutional concerns. For these reasons and those
discussed below, we respectfully dissent and urge our
colleagues to oppose this legislation when it comes to the
floor.
DESCRIPTION
H.R. 1039, ``the Probation Officer Protection Act,'' amends
section 3606 of title 18 of the United States Code to expand
the arrest authority of USPOs. Currently, these officers only
possess the authority to arrest individuals under the
supervision of the U.S. Probation Office.\1\ As amended by the
bill, section 3606 would authorize USPOs to arrest persons
other than supervisees without a warrant if there is probable
cause to believe the person assaulted or obstructed a USPO in
the course of his or her duties in violation of section 111 of
title 18.\2\ The arrest authority would be further defined by
rules and regulations set by the Director of the Administrative
Office of the U.S. Courts (AO). Proponents of H.R. 1039 contend
that this authorization would also allow USPOs to temporarily
control, direct, and detain third parties during the execution
of supervision-related searches, including those conducted
pursuant to a warrant.\3\
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\1\18 U.S.C. Sec. 3606 (2017) authorizes a USPO to arrest a
probationer or a person on supervised release if there is probable
cause to believe that the person being supervised has violated a
condition of his probation or release.
\2\18 U.S.C. Sec. 111 (2017) prohibits assaulting, resisting, or
impeding any officer or employee of the United States or of any agency
in any branch of the United States Government.
\3\Administrative Office of the U.S. Courts, Office of Legislative
Affairs, Judicial Conference Proposal, Criminal Judicial Procedure,
Administration, and Technical Amendments Act of 2017, 115th Congress,
1st Session [hereinafter ``Judicial Conference Proposal]; Letter from
Hon. Ricardo S. Martinez, Chair, Committee on Criminal Law of the
Judicial Conference of the United States, to Senator Orrin Hatch (R-UT)
(Feb. 13, 2017).
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BACKGROUND
I. FEDERAL PROBATION OFFICERS
USPOs perform a critical service in supervising,
monitoring, and managing supervisees, including individuals on
probation and individuals on supervised release from prison.
They are predominantly responsible for achieving the goals of
supervision, which include long-term, positive change in their
supervisees.\4\
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\4\Federal Judicial Center, U.S. Probation and Pretrial Services,
Charter for Excellence (2002).
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The U.S. Probation and Pretrial Services System is an arm
of the judicial branch of the U.S. government. ``Federal
probation officers are directly responsible to the courts they
serve'' and are considered the ``eyes and ears'' of the federal
courts.\5\ Practices of each district vary in some respects,
including applicable case law and court culture.\6\ To foster
consistency among districts, however, policy is developed and
subsequently approved by the Judicial Conference of the United
States. The AO and the Federal Judicial Center provide
centralized support.\7\
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\5\U.S. Courts, Probation and Pretrial Services: Mission, available
at http://www.uscourts.gov/services-forms/probation-and-pretrial-
services/probation-and-pretrial-services-mission.
\6\James Johnson, State of the System: Federal Probation and
Pretrial Services, 79-SEP Fed. Probation 34 (2015).
\7\Id.
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In recent years, USPOs have conducted an increased number
of pre-approved, exigent, and consent searches. In 2013, for
example, USPOs conducted 909 searches.\8\ Of the 475 searches
in which a third party was present, a third party was
uncooperative on 18 occasions, seven third parties were
arrested and/or restrained by local law enforcement, and two
third parties possessed a loaded firearm. USPOs encountered a
third party in 498 searches in 2014. Of those searches, a third
party was uncooperative on 27 occasions, and five third parties
were arrested. In 2016, 555 of 1060 searches conducted pursuant
to a court-ordered search condition or with consent involved
third parties.\9\ On 39 occasions, officers described one or
more third parties as uncooperative.\10\ Reported third party
obstruction typically included: verbal threats; verbal and
nonverbal intimidation; hiding from officers; refusal to leave
the search site; swallowing or flushing narcotics; releasing
aggressive dogs; refusal to provide identity; denying officers
entry into a residence; and failing to follow directives.
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\8\Memorandum from Federal Law Enforcement Officers Association,
Proposal to Enhance the Safety of Probation Officers During the
Performance of Their Official Duties (on file with H. Comm. on the
Judiciary Democratic staff).
\9\Administrative Office of the U.S. Courts, Office of Legislative
Affairs, Fact Sheet: Federal Probation/Pretrial Officer Incidents
Involving Third Parties.
\10\Id.
II. FEDERAL PROBATION OFFICER ARREST POWER COMPARED TO OFFICERS WITH
FULL POLICE POWER
Under current law, a USPO may arrest a probationer or
individual on supervised release if the officer has probable
cause to believe that the individual has violated a condition
of his or her probation or supervised release.\11\ The officer
may make the arrest with or without a warrant.\12\ In practice,
however, USPOs rarely make formal arrests. USPOs typically use
their authority to exert less restrictive uses of force, such
as ordering a supervisee to stand aside during a search,
instructing an offender not to interfere with the officer's
activities, or temporarily restraining a supervisee who poses a
physical danger to the officer's safety or attempts to obstruct
the officer during the course of a search.\13\
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\11\See 18 U.S.C. Sec. 3606 (2017).
\12\Id.
\13\See Guide to Judiciary Policy, Vol. 8 (Probation and Pretrial
Services), Pt. E (Supervision of Federal Offenders), Appendix 4A
(Search and Seizure Guidelines) (last revised Mar. 15, 2011), at
VIII.C.2 [hereinafter ``Guide].
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Notwithstanding the statutory authority provided in section
3606 of title 18, existing Judicial Conference policy forbids
USPOs from making warrantless arrests to initiate revocation
proceedings.\14\ Officers are instead instructed to obtain a
court-ordered warrant, which the U.S. Marshals Service
executes.\15\ Pursuant to this policy, an officer may arrest a
supervisee if probable cause to arrest arises during the
execution of a search under the limited circumstances that the
violation conduct is serious enough or the supervisee is
dangerous enough to require taking the supervisee immediately
into custody, and the officer can make the arrest safely.\16\
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\14\Id. at VIII.C.3.
\15\Id.
\16\Id.
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As provided in section 111 of title 18, obstructing a USPO
in the performance of his or her official duties is prohibited.
Nevertheless, USPOs do not have statutory authority to enforce
this statute as they only have authority over individuals
currently serving probation or supervised release. They do not
possess the authority to issue commands, detain, or arrest a
third party who attempts to physically obstruct the officer or
inflict physical harm on the officer when the officer is
conducting a search, serving a warrant, or performing a regular
supervision visit. In current practice, USPOs sometimes utilize
the assistance of local law enforcement officers in responding
to hostile third parties.
CONCERNS WITH H.R. 1039
I. H.R. 1039 IS OVERLY BROAD AND RAISES SIGNIFICANT FOURTH AMENDMENT
CONCERNS
H.R. 1039 would grant USPOs the authority to enforce
section 111 even though it is notoriously nebulous and subject
to countless interpretations. The statute's vague terms, such
as ``opposed'' and ``interfered'', invite abuse and would allow
USPOs to arrest individuals who are merely uncooperative in
violation of the Fourth Amendment.\17\
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\17\Letter from David Patton, Executive Director, Federal Defenders
of New York, & Jon Sands, Federal Defender, District of Arizona, to
Members of the H. Comm. on the Judiciary 6 (Mar. 30, 2017) (on file
with Democratic staff of the H. Comm. on the Judiciary) [hereinafter
``Defender Letter].
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USPOs supervise and monitor offenders through contact with
others, including family members and employers. Individuals
under supervision waive some of their Fourth Amendment
protections as a condition of their supervision. Third parties,
however, do not with respect to their private spaces. As the
American Civil Liberties Union (ACLU) observes, ``the real
world implications of this could be that the mother of a son on
probation is arrested for denying a probation officer access to
her private space, like her bedroom.''\18\ In such ways,
overbroad interpretations of ``interference'' with a USPO's
duties may lead to overzealous exercise of arrest authority
that violates the Constitution.
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\18\Letter from Faiz Shakir, National Political Director, & Kanya
Bennett, Legislative Counsel, American Civil Liberties Union (ACLU), to
Rep. Bob Goodlatte, Chairman, & Rep. John Conyers, Jr., Ranking Member,
H. Comm. on the Judiciary 2 (Apr. 26, 20170 (on file with H. Comm. on
the Judiciary Democratic staff) [hereinafter ``ACLU Letter''].
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Proponents of this bill argue that it is necessary to allow
USPOs to arrest third parties who forcibly interfere with these
officers or seek to harm them physically. However, we
understand that USPOs would, if this bill is enacted, sometimes
exercise a ``lesser included'' authority to detain third
parties without making a formal arrest.\19\ If H.R. 1039
becomes law, the Judicial Conference plans to instruct USPOs to
take measures, including the temporary control of third
parties, in some circumstances in ``the execution of searches
and other work-related contacts (e.g., home visits during
supervised release).''\20\ The potential for detention of third
parties elevates our constitutional concerns with the bill.
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\19\Judicial Conference Proposal at 19.
\20\Id.
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Long-standing case law establishes that police officers are
allowed to stop or detain third parties on the premises when
conducting a search pursuant to a warrant if there is
reasonable suspicion that a limited seizure is necessary for
officer safety. Fundamental to these cases is broad police
arrest authority and a neutral magistrate judge's finding that
there is probable cause for a search based on the presence of
someone who has committed a crime or evidence of a crime on the
premises to be searched.\21\ These cases emphasize that
officers may exercise the lesser-included power to detain any
person who might present a safety risk when connected to a
validly issued search warrant. Probable cause, supporting the
issuance of a valid search warrant, is of prime importance in
assessing the reasonableness of such intrusions and,
subsequently, finding that a detention was reasonable.\22\
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\21\See Michigan v. Summers, 425 U.S. 692 (1981); Muehler v. Mena,
544 U.S. 93, 99 (2005).
\22\Muehler v. Mena at 99 (detention for the duration of the search
was reasonable since a neutral magistrate issued a warrant to search
the premises based on probable cause).
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USPOs, however, do not conduct searches pursuant to
warrants based on probable cause. Instead, they conduct
warrantless searches related to supervisees based on reasonable
suspicion.\23\ Their power to search is based on the theory
that they may conduct administrative searches to further the
goals of supervision, namely, rehabilitation and protection of
the public. With respect to supervisees, the warrant and
probable cause requirements of the Fourth Amendment may be set
aside when the special needs of the administrative agency are
beyond the regular needs of law enforcement, the privacy
interests of the supervisee are diminished, and the agency's
special needs make a warrant and probable cause requirement
impractical.\24\ Once a supervisee has been convicted and his
or her liberty depends on the observance of supervision
conditions, the government's special needs outweigh the
supervisee's interest in being free from searches conducted
without a warrant.\25\
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\23\Guide, supra, at III.A.
\24\Griffin v. Wisconsin, 483 U.S. 868, 875 (1987) (warrantless
search based on reasonable suspicion upheld as constitutional); U.S. v.
Knights, 534 U.S. 112, 117 (2001).
\25\U.S. v. Knights, at 121.
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Nevertheless, the constitutional interests of third parties
are not outweighed by these governmental needs. Although the
bill would expand the arrest authority of USPOs under section
3606, these constitutional interests of third parties would
remain unchanged. As previously stated, courts that found
detentions reasonable in connection with the execution of
search warrants based their holdings primarily on the probable
cause determinations of magistrate judges, a fact absent in the
execution of supervision-related searches. Such seizures made
by USPOs would, therefore, be unconstitutional given the
absence of probable cause supporting their searches, a factor
deemed critical by the Supreme Court. The distinction between
supervision searches and police-initiated searches is made
clearer when considering the concept of USPOs acting as
``stalking horses'' for the police. Several federal districts
recognize the potential for police officers to take advantage
of the reduced standards USPOs enjoy to justify a search as
pretext to circumvent the need to establish probable cause for
police-initiated searches.\26\
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\26\U.S. v. Penson, 141 Fed.Appx. 406 (6th Cir. 2005) citing U.S.
v. Martin, 25 F.3d 293 (6th Cir. 1994); U.S. v. Butcher, 926 F.2d 811
(9th Cir. 1991); U.S. v. Cardona, 903 F.2d 60 (1st Cir. 1990).
II. H.R. 1039 RAISES SEPARATION OF POWERS CONCERNS
H.R. 1039 raises concerns with the Separation of Powers
Clause of the Constitution by authorizing USPOs, who serve as
administrative units of the district courts, to enforce section
111 of title 18 against private citizens. USPOs are employees
of the Judicial Branch and have a close relationship to the
courts, which they serve.\27\ This legislation would
effectively assign an executive function, namely, arresting and
prosecuting offenders, to an entity within the Judicial Branch.
Similarly, challenges to arrests made by USPOs under this new
authority, including constitutional challenges, would require
district judges to review the actions of their own agents,
which undermines the integrity of the Judicial Branch.\28\ And,
in light of the potential applications of the arrest authority
permitted under H.R. 1039 (as previously discussed), the
likelihood of such constitutional challenge is heightened.
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\27\U.S. Courts, Probation and Pretrial Services: Mission, supra
note 4.
\28\Defender Letter at 4.
III. H.R. 1039 IS A SOLUTION IN SEARCH OF A PROBLEM
USPOs have traditionally requested the aid of police
officers endowed with broad police authority in conducting
supervision-related searches. Nevertheless, H.R. 1039 would
undermine the rehabilitative relationship between USPOs and
supervisees even though there is no overwhelming need to grant
USPOs the authority to arrest third parties. As pointed out by
the ACLU, H.R. 1039 ``is a solution in search of a problem
because there is no statistical or other evidence otherwise to
support the need to expand probation officers' arrest
authority.''\29\ The Federal Probation & Pretrial Officers
Association (FPPOA) states that in 2015, of the 987 searches
that were conducted, only 30 involved uncooperative third
parties--comprising only 3 percent.\30\ There is no data to
support the conclusion that third parties routinely present
substantial risk of danger during encounters with federal
USPOs.
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\29\ACLU Letter at 1.
\30\Id. at 2.
IV. H.R. 1039 WOULD ENDANGER THE SAFETY OF FEDERAL PROBATION OFFICERS
USPOs should not be given increased police power that would
only put them in harm's way. They are not trained in the same
manner as law enforcement officers who are endowed with full
police powers. A newly appointed USPO need only complete a six-
week, entry-level, training program, encompassing investigation
and supervision duties. On the other hand, new law enforcement
officers normally must complete 16 to 21 weeks, or
approximately 840 hours, of classroom training and oftentimes
three additional weeks of field training.\31\ Additionally, not
all USPOs carry firearms as each district determines whether or
not these officers may do so.\32\
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\31\Dep't of Justice, Office of Justice Programs, Bureau of Justice
Statistics, State and Local Law Enforcement Training Academies, 2013,
NCJ 249784 (July 2016).
\32\U.S. Courts, Probation and Pretrial Services: Mission, supra
note 4; State of the System: Federal Probation and Pretrial Services,
79-SEP Fed. Probation 34, supra note 5, at 40 (2015).
V. H.R. 1039 HINDERS ACHIEVEMENT OF THE GOALS OF SUPERVISED RELEASE AND
PROBATION
The substantial potential for challenges to arrests and
seizures made pursuant to this authority creates an unnecessary
threat to the actual goals of supervision. The constructive
role of USPOs in fostering the rehabilitation of supervisees
would be damaged if they become de facto police officers,
detaining, arresting, and issuing orders and directives to
family, friends, employers, and other members of supervisees'
communities.
CONCLUSION
While we share the desire of the proponents of the bill to
protect USPOs from harm, we believe the assistance of law
enforcement, as under current practice, is sufficient to do so.
Expanding the arrest authority of USPOs, as contemplated under
H.R. 1039, raises substantial constitutional concerns, given
the nebulousness of some of the terms of the underlying statute
it would enforce and certain applications, such as thirty party
detentions, which have a high potential for abuse. In sum, as
the Federal Public Defenders of New York state, in their letter
to the Committee opposing H.R. 1039, ``[t]he bill represents a
retreat from the current constructive role of probation
officers in reintegrating offenders into society. If probation
officers assumed the role of police, directing and restraining,
or arresting, family and friends, progress in individual cases
and the system as a whole would be undermined.''\33\
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\33\Defender letter at 9.
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Accordingly, we oppose H.R. 1039 and we urge our colleagues
to join us in opposition.
Mr. Conyers, Jr.
Mr. Nadler.
Ms. Lofgren.
Ms. Jackson Lee.
Mr. Cohen.
Mr. Johnson, Jr.
Mr. Deutch.
Mr. Gutierrez.
Ms. Bass.
Mr. Richmond.
Mr. Jeffries.
Mr. Cicilline.
Mr. Lieu.
Ms. Jayapal.
Mr. Raskin.
[all]