69–006 

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 


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1See 18 U.S.C. § 3606. 2 Id. 

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

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. 


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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 

Ayes Nays Present 

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. Gutie ́rrez (IL) ........................................................................................ ........ ........ ..........

Ms. Bass (CA) ............................................................................................. ........ ........ ..........

Mr. Richmond (LA) ...................................................................................... ........ ........ ..........

Mr. Jeffries (NY) .......................................................................................... ........ ........ ..........


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ROLLCALL NO. 1—Continued 

Ayes Nays Present 

Mr. Cicilline (RI) ......................................................................................... ........ X ..........

Mr. Swalwell (CA) ....................................................................................... ........ ........ ..........

Mr. Lieu (CA) .............................................................................................. ........ ........ ..........

Mr. Raskin (MD) ......................................................................................... ........ ........ ..........

Ms. Jayapal (WA) ........................................................................................ ........ ........ ..........

Mr. Schneider (IL) ....................................................................................... ........ X ..........

Total .......................................................................................... 15 7 ..........

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. 


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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. 

§ 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. 


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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. 

* * * * * * * 

ø3606. Arrest and return of a probationer.¿ 

3606. Arrest authority of probation officers. 

* * * * * * * 

§ 3606. Arrest øand return of a probationer¿ authority of probation officers 

øIf 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. 

* * * * * * * 


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1 18 U.S.C. § 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. § 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). 4FEDERAL JUDICIAL CENTER, U.S. Probation and Pretrial Services, Charter for Excellence 

(2002). 

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

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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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. 

8Memorandum 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. 11See 18 U.S.C. § 3606 (2017). 12 Id. 13See 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]. 

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

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. 

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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14 Id. at VIII.C.3. 15 Id. 16 Id. 17Letter 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]. 18Letter 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’’]. 

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

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

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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19Judicial Conference Proposal at 19. 20 Id. 21See Michigan v. Summers, 425 U.S. 692 (1981); Muehler v. Mena, 544 U.S. 93, 99 (2005). 22Muehler 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). 23Guide, supra, at III.A. 24Griffin 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. 

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. 

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

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

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 


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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). 27 U.S. COURTS, Probation and Pretrial Services: Mission, supra note 4. 28Defender Letter at 4. 29 ACLU Letter at 1. 30 Id. at 2. 

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

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. 

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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31DEP’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). 33Defender letter at 9. 

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 sixweek, 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

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

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. 


lotter on DSK5VPTVN1PROD with REPORTS
13 

MR. DEUTCH. MR. GUTIE ́ RREZ. MS. BASS. MR. RICHMOND. MR. JEFFRIES. MR. CICILLINE. MR. LIEU. MS. JAYAPAL. MR. RASKIN. 

Æ 


lotter on DSK5VPTVN1PROD with REPORTS