FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRENT SHERMAN, 

Petitioner-Appellant,

No. 05-35364 v.

D.C. No. UNITED STATES PAROLE  CV-05-00008-JAR COMMISSION; ROBERT A. HOOD,

Warden; CHARLES A. DANIELS, OPINION

Warden,

Respondents-Appellees. 

Appeal from the United States District Court

for the District of Oregon

James A. Redden, District Judge, Presiding

Argued and Submitted

March 9, 2006—Portland, Oregon,

Filed September 4, 2007

Before: Melvin Brunetti, Thomas G. Nelson, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Brunetti

11253
COUNSEL

Christine Stebbins Dahl, Assistant Federal Defender, Portland, Oregon, for the petitioner-appellant. 

Kenneth C. Bauman (brief), Assistant United States Attorney,

Portland, Oregon; and Kelly A. Zusman (argued), Assistant

United States Attorney, Portland, Oregon, for the

respondents-appellees. 

OPINION

BRUNETTI, Circuit Judge: 

We consider whether an administrative warrant issued pursuant to 18 U.S.C. § 4213(a) for the retaking of an alleged

parole violator is subject to the oath or affirmation requirement of the Fourth Amendment’s Warrant Clause. We hold it

is not and therefore affirm the denial of petitioner’s habeas

challenge to his detention on an unsworn parole violator warrant. 

I

Petitioner Brent Sherman is a federal inmate currently

being held by the Bureau of Prisons at the Federal Detention

Center in Sheridan, Oregon. In 1982, he was sentenced to

twenty-years imprisonment for two counts of bank robbery

and one year for failure to appear. In 1985, he escaped and

committed armed robbery of another bank, crimes for which

he received five years and twenty years, respectively. Because

his offenses were committed prior to November 1, 1987, the

effective date of the Sentencing Reform Act of 1984 which

replaced most forms of “parole” with “supervised release,”

Sherman received “old law” sentences under the former statutory regime, which remains in effect as to such offenders. See

11256 SHERMAN v. U.S. PAROLE COMMISSION
United States v. Kincade, 379 F.3d 813, 817 n.2 (9th Cir.

2004) (en banc); Benny v. U.S. Parole Comm’n, 295 F.3d 977,

981 n.2 (9th Cir. 2002). 

Paroled for the first time in 1993, Sherman’s parole was

revoked two years later for possession of a controlled substance, extortion, and unlawful use of a weapon. He was

paroled again in August 1999 and five years later requested

a hearing for early termination under 18 U.S.C. § 4211(c)(1).

See Benny, 295 F.3d at 982-83. Instead of granting his

request, the United States Parole Commission once again initiated revocation proceedings. 

In November 2004, the Commission issued a parole violator warrant for Sherman’s retaking pursuant to 18 U.S.C.

§ 4213(a)(2) on the basis of two alleged parole violations:

sexual assault (rape) in 2000, and fraud in 2000 and 2002. It

is undisputed that the warrant application containing the allegations was unsworn. In December 2004, the U.S. Marshals

Service took Sherman into custody on the warrant, and the

following month he filed the underlying habeas petition under

28 U.S.C. § 2241 challenging his detention on the ground that

the warrant was invalid under the Fourth Amendment because

it was not supported by oath or affirmation.

While his habeas petition was pending, Sherman’s parole

revocation proceedings continued before the Commission.

After a preliminary interview, the interviewing officer recommended a finding of probable cause on the fraud charge, but

not on the sexual assault charge. The Commission apparently

took a somewhat different view. It found probable cause that

Sherman had violated his parole, citing both charges, and continued to hold him pending a final hearing on revocation.

Meanwhile, in April 2005 the district court denied Sherman’s habeas petition. In a published opinion, Sherman v.

Reilly, 364 F. Supp. 2d 1216 (D. Or. 2005), the court held that

Sherman was lawfully detained on an unsworn warrant

SHERMAN v. U.S. PAROLE COMMISSION 11257
because, unlike judicial warrants, parole violator warrants

issued under 18 U.S.C. § 4213(a) are administrative and not

subject to the Warrant Clause of the Fourth Amendment. The

court accordingly declined to extend our decision in United

States v. Vargas-Amaya, 389 F.3d 901 (9th Cir. 2004), in

which we held that a supervised release “warrant” within the

meaning of 18 U.S.C. §§ 3583(i) and 3606 must comply with

the Warrant Clause. Sherman timely appealed. 

Before the parties filed their briefs on appeal, however, the

Commission revoked Sherman’s parole based on the fraud

charge while making no findings concerning the sexual

assault charge. He remains incarcerated with a presumptive

re-parole date of October 13, 2007. The projected full-term

date on his aggregate sentence is November 25, 2015.

II

The Government asserted below that Sherman’s habeas

petition challenging his detention on the unsworn parole violator warrant became moot when the Commission conducted

a preliminary hearing and found probable cause that Sherman

violated his parole. It also asserted mootness in its brief on

appeal, by then predicating the argument on the Commission’s intervening revocation of Sherman’s parole. At oral

argument, however, the Government conceded that this case

is within the “capable of repetition, yet evading review”

exception to the mootness doctrine. Undertaking our independent obligation to determine our subject-matter jurisdiction in

the face of possible mootness, see Dittman v. California, 191

F.3d 1020, 1025 (9th Cir. 1999), we find the Government’s

concession to be well taken.

The capable of repetition, yet evading review exception has

been applied to permit appellate review of constitutional or

statutory challenges to pretrial and other initial proceedings

despite the regular progression of further proceedings making

it “no longer possible to remedy the particular grievance giv11258 SHERMAN v. U.S. PAROLE COMMISSION
ing rise to the litigation.” United States v. Howard, 480 F.3d

1005, 1009 (9th Cir. 2007). For instance, in Gerstein v. Pugh,

420 U.S. 103, 110 n.11 (1975), the Court determined that the

respondents’ convictions did not preclude review of their

challenge to their pretrial detentions, which lacked a judicial

determination of probable cause. In Howard, 480 F.3d at

1009-10, we applied Gerstein and held that the conclusion of

pretrial proceedings did not preclude us from reviewing a

courtroom security policy of shackling pretrial detainees during initial appearances. And in United States v. Woods, 995

F.2d 894, 896 (9th Cir. 1993), we applied the exception to an

inmate’s challenge to the revocation of his conditional release

under 18 U.S.C. § 4246(f), despite the fact his confinement at

the time of appeal was “not due to the revocation order being

challenged.” By the time we heard his appeal, Woods had

been again granted conditional release and then re-confined

under another revocation order. 

As in those contexts, a parolee’s initial detention solely on

the authority of a parole violator warrant is by nature temporary and is “not likely to persist long enough to allow for the

completion of appellate review” before the Commission either

releases the parolee or takes further action providing superceding authority for the detention. Woods, 995 F.2d at 896;

accord Gerstein, 420 U.S. at 110 n.11. Indeed, a parole violator summoned or retaken under 18 U.S.C. § 4213 is entitled

to a preliminary hearing on probable cause “without unnecessary delay” and a revocation hearing “within sixty days of

such determination of probable cause.” Id. § 4214(a)(1)(A),

(B). As this case exemplifies, these statutory requirements virtually guarantee the revocation process will be concluded

before appellate review of the initial retaking is feasible. 

This case is also capable of repetition. The Parole Commission has not retreated from its policy of issuing warrants

based on unsworn allegations, and Sherman is scheduled for

presumptive re-parole in October 2007 with over eight years

remaining on his sentence. During that period of release, his

SHERMAN v. U.S. PAROLE COMMISSION 11259
liberty will continue to be conditioned on the Commission’s

ability to issue a parole violator warrant and retake him based

on unsworn allegations. Cf. Woods, 995 F.2d at 896 (applying

the exception where the defendant remained subject to a conditional release order, the violation of which led to the revocation order on appeal); Spencer v. Kemna, 523 U.S. 1, 18

(1998) (holding that the exception did not apply because the

expiration of petitioner’s sentence negated any reasonable

expectation of another round of parole and revocation). Moreover, because the Commission’s policy is ongoing and generally applicable to all federal parolees subject to retaking, the

proper construction of 18 U.S.C. § 4213(a) in relation to the

Fourth Amendment is “an issue of continuing and public

importance.” Woods, 995 F.2d at 896.

[1] For these reasons we agree with the parties that Sherman’s appeal from the denial of his habeas petition should not

be dismissed as moot. We hold that despite the Parole Commission’s issuance of a revocation order providing superceding authority for Sherman’s present confinement, we have

jurisdiction to review his initial retaking and detention on a

parole violator warrant under the exception for cases that are

“capable of repetition, yet evading review.”

III

[2] The Fourth Amendment rights of parolees are hardly

uncharted waters. By now it is clear that parolees are protected against unreasonable searches and seizures. Samson v.

California, 126 S. Ct. 2193, 2197, 2198 n.2 (2006); Latta v.

Fitzharris, 521 F.2d 246, 248-49 (9th Cir. 1975) (en banc).

But their rights also are not coextensive with those of ordinary

citizens. We have held that “probable cause is not required to

arrest a parolee for a violation of parole. Warrantless arrests

of parole violators are also valid.” United States v. Butcher,

926 F.2d 811, 814 (9th Cir. 1991). 

Sherman’s habeas petition raises a closely related yet distinct question: When the United States Parole Commission

11260 SHERMAN v. U.S. PAROLE COMMISSION
issues a parole violator warrant pursuant to 18 U.S.C.

§ 4213(a) for the retaking of a federal parolee, must that warrant comply with the Warrant Clause of the Fourth Amendment and therefore be “supported by Oath or affirmation”?

Because the question has both statutory and constitutional

dimensions, we consider first whether Congress incorporated

the Fourth Amendment definition of a “warrant” into § 4213

before addressing whether compliance with the Warrant

Clause is otherwise constitutionally required. 

A

[3] Although we have interpreted 18 U.S.C. § 4213(a) in

other contexts, e.g., Benny v. U.S. Parole Comm’n, 295 F.3d

977, 985 (9th Cir. 2002) (addressing the Commission’s discretionary power to issue a warrant instead of a summons),

we have yet to address whether § 4213 requires a parole violator warrant to be supported by sworn facts. “In construing

a statute as a matter of first impression, we first look to the

statutory language: ‘The starting point in interpreting a statute

is its language, for if the intent of Congress is clear, that is the

end of the matter.’ ” United States v. Morales-Alejo, 193 F.3d

1102, 1105 (9th Cir. 1999) (quoting Good Samaritan Hosp.

v. Shalala, 508 U.S. 402, 409 (1993)). Section 4213 provides:

(a) If any parolee is alleged to have violated his

parole, the Commission may—

(1) summon such parolee to appear at a

hearing conducted pursuant to section

4214; or

(2) issue a warrant and retake the parolee

as provided in this section.

(b) Any summons or warrant issued under this section shall be issued by the Commission as soon as

SHERMAN v. U.S. PAROLE COMMISSION 11261
practicable after discovery of the alleged violation,

except when delay is deemed necessary . . . . 

(c) Any summons or warrant issued pursuant to this

section shall provide the parolee with written notice

of—

(1) the conditions of parole he is alleged to

have violated as provided under section

4209;

(2) his rights under this chapter; and

(3) the possible action which may be taken

by the Commission.

(d) Any officer of any Federal penal or correctional

institution, or any Federal officer authorized to serve

criminal process within the United States, to whom

a warrant issued under this section is delivered, shall

execute such warrant by taking such parolee and

returning him to the custody of the regional commissioner, or to the custody of the Attorney General, if

the Commission shall so direct. 

18 U.S.C. § 4213 (italics added). 

On its face, despite setting forth several requirements for

the issuance of a parole violator warrant, § 4213 makes no

mention of an oath or affirmation requirement. Instead, subsection (a) expressly authorizes the Commission to issue a

warrant upon a mere allegation of a parole violation. The statute’s only other express requirements regard the issuer (“the

Commission”), the timing (“as soon as practicable after discovery of the alleged violation”), and the contents of the warrant (“written notice” of the alleged violation, the parolee’s

rights, and possible consequences). Id. § 4213(a)-(c). The

implementing regulation is in accord, adding only that “satis11262 SHERMAN v. U.S. PAROLE COMMISSION
factory evidence” of the alleged violation is required. 28

C.F.R. § 2.44(a). 

Nevertheless, Sherman contends that we should read the

lone term “warrant” as implicitly incorporating the Fourth

Amendment definition. For this argument he relies on United

States v. Vargas-Amaya, 389 F.3d 901 (9th Cir. 2004), a

supervised release case in which we interpreted the term

“warrant” in 18 U.S.C. § 3583(i) as manifesting Congress’

intent to incorporate the requirements of the Warrant Clause.

He also invokes the general principle of statutory construction

that the same language should be given a consistent interpretation across different statutes, citing Leocal v. Ashcroft, 543

U.S. 1, 11 (2004). 

While we do not necessarily disagree with either premise,

the issue is not so simple. Considering isolated terms without

regard to the complete statutory language can be misleading,

as can narrowly focusing on the holding of our opinions without due regard to the intricacies of our reasoning. Certainly

Vargas-Amaya is a highly relevant precedent here given obvious similarities between the issues presented. But closer

examination of that opinion reveals a textual analysis of the

supervised release statutes that, when applied to the distinct

language of the parole statutes, leads to precisely the opposite

result. 

1

In Vargas-Amaya we addressed whether the district court

lacked jurisdiction under § 3583(i) to revoke supervised

release after the release term had expired because the warrant

on which the defendant was arrested was not supported by

oath or affirmation. That statute provides:

The power of the court to revoke a term of supervised release for violation of a condition of supervised release, and to order the defendant to serve a

SHERMAN v. U.S. PAROLE COMMISSION 11263
term of imprisonment and . . . a further term of

supervised release, extends beyond the expiration of

the term of supervised release . . . if, before its expiration, a warrant or summons has been issued on the

basis of an allegation of such a violation.

18 U.S.C. § 3583(i) (italics added). Focusing narrowly on the

word “warrant,” we invoked two canons of statutory construction: “in the absence of a statutory definition, a term should

be accorded its ordinary meaning”; and “when Congress uses

a term of art, such as ‘warrant,’ unless Congress affirmatively

indicates otherwise, we presume Congress intended to incorporate the common definition of that term.” Vargas-Amaya,

389 F.3d at 904. Accordingly, at the outset we presumed that

Congress “incorporated the Fourth Amendment’s prohibition

against the issuance of warrants based on something less than

probable cause supported by sworn facts,” and agreed with

petitioner that “the plain meaning of the term ‘warrant’ means

a document that is based upon probable cause and supported

by sworn facts.” Id.; see also U.S. Const. amend. IV (“no

Warrants shall issue, but upon probable cause, supported by

Oath or affirmation”). 

But that is only the tip of the iceberg. As we also noted,

these canons of statutory construction may be overcome if

“Congress affirmatively indicates otherwise” or gives “ ‘contrary direction.’ ” Vargas-Amaya, 389 F.3d at 904 (quoting

Carter v. United States, 530 U.S. 255, 264 (2000)). In other

words, the presumption is rebuttable and therefore requires

consideration of the statutory context and the surrounding

terms. After all, terms do not appear in isolation and a statute’s remaining language may place its terms of art in a different light and alter the plain meaning of the statue as a

whole. See Leocal, 543 U.S. at 9. Of course, after accordingly

expanding our analysis of the supervised release statutes in

Vargas-Amaya, we happened to find confirmation of the presumption rather than contrary direction. But because our opinion in that case is fundamentally one of statutory construction

11264 SHERMAN v. U.S. PAROLE COMMISSION
and we dealt with an entirely separate statutory scheme, our

methodology rather than our conclusion is more pertinent to

our analysis here. 

Perhaps most remarkable about our analysis is that, despite

initially applying the aforementioned presumptions regarding

the implied meaning of the term “warrant,” we went on to

determine that § 3583(i) “does not relate to the requirements

for issuing a warrant at all.” Vargas-Amaya, 389 F.3d at 906.

In considering the operative phrase “if, before its expiration,

a warrant or summons has been issued on the basis of an allegation of such a violation,” 18 U.S.C. § 3583(i), we rejected

the Government’s contention that the “allegation” clause had

the effect of narrowly defining the term “warrant” as “something less than that required by the Fourth Amendment.”

Vargas-Amaya, 389 F.3d at 905-06. We reasoned that Congress’ use of the past tense in § 3583(i) (“has been issued”)

rather than the present tense (“[may be] issued”) indicates that

§ 3583(i) merely enumerates the prior issuance of a valid

supervised release warrant as a jurisdictional prerequisite

without prescribing the requirements for issuing such a warrant. Id. For those requirements we looked instead to § 3606,

in which Congress did use the present tense in discussing the

issuance of such warrants.

Congress’ use of the past tense [in § 3583(i)]

stands in contrast to the Fourth Amendment, and

Rules 4, 9, and 41 of the Federal Rules of Criminal

Procedure all of which discuss the requirements for

issuing an arrest warrant in the present tense. See

U.S. Const. amend. IV (“no Warrants shall issue”);

Fed. R. Crim. P. 4(a) (“the judge must issue an arrest

warrant”); Fed. R. Crim. P. 9(a) (“The court must

issue a warrant”); Fed. R. Crim. P. 41(d) (“a magistrate judge or a judge . . . must issue the warrant if

there is probable cause”). The use of the past tense

in § 3583(i) implies that the statute does not relate to

the requirements for issuing a warrant at all, but

SHERMAN v. U.S. PAROLE COMMISSION 11265
rather solely pertains to the court’s jurisdiction if an

arrest warrant has already been validly issued.

Another statute describes in the present tense when

an arrest warrant may be issued for a violation of

supervised release and provides that “If there is

probable cause to believe that a . . . person on supervised release has violated a condition of his . . .

release, . . . the court . . . may issue a warrant for the

arrest of a . . . releasee for violation of a condition

of release.” 18 U.S.C. § 3606. 

Id. at 906; accord United States v. Garcia-Avalino, 444 F.3d

444, 446 n.3 (5th Cir. 2006) (stating that § 3583 is a jurisdictional provision while “section 3606 actually governs the issuance of warrants for the arrest of probationers or supervised

releasees”) 

Of course, despite our determination that § 3583(i) itself is

not controlling regarding the meaning of the term “warrant,”

§ 3606 confirmed the presumption that Congress intended to

incorporate the Fourth Amendment definition. Reasoning that

§§ 3583(i) and 3606 must be read consistently regarding the

definition of a supervised release “warrant” and noting that

§ 3606 includes an express “probable cause” requirement, we

concluded:

The only reasonable inference is that Congress was

aware of the Fourth Amendment and incorporated its

requirement that a warrant be based “upon probable

cause” in both statutes. By extension, if Congress

intended to incorporate the “probable cause” portion

of the Warrant Clause in each statute, it must have

also intended to incorporate the “Oath or affirmation” portion of the Clause. 

Vargas-Amaya, 389 F.3d at 905 n.2. 

11266 SHERMAN v. U.S. PAROLE COMMISSION
2

The plain language of § 4213 may seem superficially similar to the supervised release statutes we considered in VargasAmaya, but on closer inspection it is structurally and substantively distinct and not amenable to the same inferences. We

therefore cannot reach the same conclusion that Congress

intended to incorporate the requirements of the Warrant

Clause of the Fourth Amendment.

To begin, by our reasoning in Vargas-Amaya, § 4213’s

plain language makes it comparable not with § 3583(i) but

with § 3606 insofar as the statute itself prescribes the requirements for issuing a valid warrant. Congress’ use of the present

tense throughout § 4213(a)-(c) (“the Commission may . . .

issue a warrant,” “Any . . . warrant . . . shall be issued,” and

“Any . . . warrant . . . shall provide”) stands in stark contrast

to the past tense construction of § 3583(i) and instead parallels the present tense construction of § 3606 and Federal

Rules of Criminal Procedure 4(a), 9(a), and 41(d). 

But that is also where any parallels end. Read in context,

Congress did not use the term “warrant” in the same sense in

both regimes. Section 4213 expressly authorizes only “the

Commission” to issue a parole violator “warrant” and thereby

provides for an administrative warrant. 18 U.S.C. § 4213(a).

Only in replacing parole with supervised release did Congress

shift issuing authority to “the court” and thereby use the term

“warrant” in the ordinary sense of a judicial warrant. 18

U.S.C. § 3606; see Gozlon-Peretz v. United States, 498 U.S.

395, 400-01 (1991); see also Fed. R. Crim. P. 4(a) (“the

judge”); Fed. R. Crim. P. 9(a) (“The court”); Fed. R. Crim. P.

41(d)(1) (“a magistrate judge”). In certain circumstances the

distinction can be significant. See Griffin v. Wisconsin, 483

U.S. 868, 877-78 (1987) (distinguishing between “administrative search warrants” and “constitutionally mandated judicial

warrants”); Abel v. United States, 362 U.S. 217, 232 (1960)

(characterizing a deportation arrest warrant under the ImmiSHERMAN v. U.S. PAROLE COMMISSION 11267
gration and Nationality Act of 1952 as “an administrative

warrant, not a judicial warrant within the scope of the Fourth

Amendment”); United States ex rel. Randazzo v. Follette, 418

F.2d 1319, 1322 (2d Cir. 1969) (holding that a parole violator

warrant designated as “administrative” under New York law

was not subject to ordinary Fourth Amendment safeguards).

Thus, we question the present applicability of the “term of

art” presumption we applied in Vargas-Amaya where “warrant” was used in the judicial sense. 

Moreover, in § 4213 Congress omitted any express reference to the Warrant Clause’s requirements in describing the

issuance of a parole violator warrant. By contrast, § 3606 and

Rules 4, 9, and 41 all expressly require “probable cause” for

the issuance of an arrest warrant. See 18 U.S.C. § 3606

(“probable cause to believe that a probationer or a person on

supervised release has violated a condition of his probation or

release”); Fed. R. Crim. P. 4(a) (“probable cause to believe

that an offense has been committed”); Fed. R. Crim. P. 9(a)

(“probable cause that an offense has been committed”); Fed.

R. Crim. P. 41(d)(1) (“probable cause to search for and seize

a person or property”). Additionally, Rules 4, 9, and 41 also

contain clear references to a sworn facts requirement. See

Fed. R. Crim. P. 4(a) (referencing “the complaint or one or

more affidavits filed with the complaint”); Fed. R. Crim. P.

9(a) (“one or more affidavits accompanying the information”); Fed. R. Crim. P. 41(d) (“an affidavit or other information,” which may consist of “sworn testimony”). 

The unique omission of any such references to the Warrant

Clause in § 4213 is significant. In Vargas-Amaya we interpreted the express “probable cause” requirement within

§ 3606 as an implicit incorporation of the full Warrant Clause,

which we then imputed to § 3583(i). 389 F.3d at 904-05 &

n.2. The same premise is simply not available to us in the case

of § 4213. Congress’ use of the term “warrant” is accompanied by several express requirements for its valid issuance, yet

none reference the Warrant Clause. While § 3606 and the

11268 SHERMAN v. U.S. PAROLE COMMISSION
Federal Rules exemplify Congress’ ability to reference and

incorporate the Warrant Clause’s requirements when

intended, the omission of such requirements and inclusion of

others in § 4213 indicates a contrary intent. 

[4] The natural reading of § 4213 is that the Commission

is authorized to issue a parole violator warrant “[i]f any parolee is alleged to have violated his parole”—period. 18 U.S.C.

§ 4213(a). Although in Vargas-Amaya we determined that

§ 3583(i)’s “allegation” clause was largely irrelevant because

of the statute’s past-tense construction, the converse is true

here. Indeed, we expressly noted in Vargas-Amaya that if

Congress were to use the present tense in conjunction with an

allegation clause, that would indicate its intent to require only

an allegation of a parole violation rather than full satisfaction

of the Fourth Amendment:

The government argues that Congress specifically

defined warrant as something less than that required

by the Fourth Amendment—and, thus, that a warrant

based on unsworn facts is acceptable—because of

the phrase “on the basis of an allegation of” a violation of supervised release. 18 U.S.C. § 3583(i) . . . .

To effect its reading of the statute, the government

asks us to rewrite § 3583(i) to mean that “a warrant

or summons [may be] issued on the basis of an allegation of such a violation.” However, we are not at

liberty to rewrite the words chosen by Congress. 

Vargas-Amaya, 389 F.3d at 905-06 (brackets in original). Of

course, neither are we at liberty to rewrite the words chosen

by Congress as to § 4213(a), which actually contains a “may

issue” construction. Thus, by Vargas-Amaya’s reasoning, we

must adopt as to § 4213(a) the very reading we rejected as to

§ 3583(i). 

3

Contrary to our suggestion in Vargas-Amaya, 389 F.3d at

904, congressional authorization for the issuance of warrants

SHERMAN v. U.S. PAROLE COMMISSION 11269
outside the scope of the Fourth Amendment’s Warrant Clause

is not unprecedented. For instance, as noted above, in 1960

the Supreme Court interpreted former INA § 242(a), 8 U.S.C.

§ 1252(a), as “giving authority to the Attorney General or his

delegate to arrest aliens pending deportation proceedings

under an administrative warrant, not a judicial warrant within

the scope of the Fourth Amendment.” Abel, 362 U.S. at 232.

Much like § 4213, the immigration statute as it then existed

authorized an executive official to issue an arrest warrant

without reference to any Warrant Clause requirements.

Pending a determination of deportability in the case

of any alien . . . , such alien may, upon warrant of

the Attorney General, be arrested and taken into

custody. Any such alien taken into custody may, in

the discretion of the Attorney General and pending

such final determination of deportability, (1) be continued in custody; or (2) be released under bond in

the amount of not less than $500 with security

approved by the Attorney General, containing such

conditions as the Attorney General may prescribe; or

(3) be released on conditional parole. But such bond

or parole . . . may be revoked at any time by the

Attorney General, in his discretion, and the alien

may be returned to custody under the warrant which

initiated the proceedings against him and detained

until final determination of his deportability . . . . 

8 U.S.C. § 1252(a) (1976) (emphasis added); Immigration and

Nationality Act of 1952, Pub. L. No. 82-414, § 242(a), 66

Stat. 163, 208-09 (1952). Indeed, deportation statutes going

back to 1798 “have ordinarily authorized the arrest of deportable aliens by order of an executive official,” evidencing an

“overwhelming historical legislative recognition of the propriety of administrative arrest for deportable aliens.” Abel, 362

U.S. at 233. 

The same can be said of administrative arrests of parole

violators, which Congress has authorized on the warrant of an

11270 SHERMAN v. U.S. PAROLE COMMISSION
executive official without requiring compliance with the

Fourth Amendment’s Warrant Clause since the inception of

federal parole in 1910. Parolees are legislatively “assigned to

a unique status in our legal system.” United States v. Polito,

583 F.2d 48, 54 (2d Cir. 1978). “A parolee is a convicted

criminal who has been sentenced to a term of imprisonment

and who has been allowed to serve a portion of that term outside prison walls” while subject to various conditions of

release. Id. Under the original 1910 Act, though not in physical custody, a parolee was “to remain, while on parole, in the

legal custody and under the control of the warden of such

prison from which paroled . . . until the expiration of the term

or terms specified in his sentence.” Act of June 25, 1910, ch.

387, § 3, 36 Stat. 820 (codified at 18 U.S.C. § 716). Thus, a

parole violator was viewed by Congress not as an ordinary

citizen subject to arrest under a judicial warrant but as a “prisoner” subject to administrative “retaking” by the warden

already having legal custody over him. As amended in 1930

with only technical changes, 18 U.S.C. § 717, the original

predecessor to today’s § 4213, provided:

If the warden of the prison or penitentiary from

which said prisoner was paroled or the Board of

Parole or any member thereof shall have reliable

information that the prisoner has violated his parole,

then said warden, at any time within the term or

terms of the prisoner’s sentence, may issue his warrant to any officer hereinafter authorized to execute

the same for the retaking of such prisoner.

18 U.S.C. § 717 (1946); Act of June 25, 1910, ch. 387, § 4,

36 Stat. 820 (original enactment); Act of May 13, 1930, ch.

255, § 1, 46 Stat. 272 (amendment). 

Courts interpreting this legislation soundly rejected

attempts by parole violators to claim certain rights enjoyed by

ordinary citizens. In 1923, the Supreme Court characterized

the nature of parole by stating that “[w]hile this is an amelioSHERMAN v. U.S. PAROLE COMMISSION 11271
ration of punishment, it is in legal effect imprisonment” and

that a parole violator’s “status and rights were analogous to

those of an escaped convict.” Anderson v. Corall, 263 U.S.

193, 196 (1923). Accordingly, in the 1930s the Fourth and

D.C. Circuits relying on Anderson denied the habeas petitions

of two parolees who, like Sherman, challenged their detentions on unsworn warrants. Both circuits squarely held that a

parole violator warrant issued under § 717 need not be supported by oath or affirmation. Jarman v. United States, 92

F.2d 309, 311 (4th Cir. 1937); Story v. Rives, 97 F.2d 182,

188 (D.C. Cir. 1938) (also rejecting the claim that probable

cause was required); see also United States ex rel. Nicholson

v. Dillard, 102 F.2d 94, 96 (4th Cir. 1939) (“Nothing in any

statute requires anything more; and in the reason of the case

nothing more was required.”). Despite Congress’ use of the

term “warrant” in § 717, the Fourth Circuit clearly stated that

“the warrant in question was not a warrant . . . as contemplated in the Fourth Amendment to the Constitution.” Jarman,

92 F.2d at 311. 

If, contrary to this interpretation, Congress had actually

intended to incorporate the Warrant Clause’s requirements, it

could have expressed that intent in subsequent legislation. But

despite recodifying the parole statutes in 1948, Congress

made no such changes. Like the 1910 Act, the 1948 Act continued to provide that a “parolee shall . . . remain, while on

parole, in the legal custody and under the control of the Attorney General,” and that “[a] warrant for the retaking of any

United States prisoner who has violated his parole, may be

issued only by the Board of Parole or a member thereof” and

shall be executed “by taking such prisoner and returning him

to the custody of the Attorney General.” Act of June 25, 1948,

ch. 645, 62 Stat. 854-55 (codified at 18 U.S.C. §§ 4203, 4205

and 4206, respectively). Even such a conspicuous change as

the omission of the “reliable information” clause from former

§ 717 was later dismissed by at least one court as “probably

a drafting oversight” given the lack of any “express reference

of congressional intent that would indicate that the change

11272 SHERMAN v. U.S. PAROLE COMMISSION
was intentional.” Hyser v. Reed, 318 F.2d 225, 241 n.11 (D.C.

Cir. 1963) (en banc). 

Given this legislative consistency, courts applying the 1948

Act maintained the view that Congress did not intend parole

violator warrants to be within the scope of the Fourth Amendment, even despite growing recognition that parolees had

some procedural due process rights in revocation proceedings.

For instance, in an apparent departure from the Supreme

Court’s “escaped convict” analogy in Anderson, the D.C. Circuit observed in Hyser that “in providing for a warrant type

of procedure for retaking parolees thought to have violated

parole conditions, Congress has recognized the need for some

minimal procedural safeguards,” and that “something more

than casual processes or varying improvisations was intended.” Id. at 242, 244. Yet the court still stopped short of requiring compliance with the Fourth Amendment. Characterizing

a parole violator warrant as an “administrative arrest warrant,” the court observed that “Congress evinced no intent to

require precisely the same formalities and safeguards as to

those contained in the Constitution for criminal arrests,” and

it reaffirmed the view that “Congress meant to provide . . .

[that] the retaking [of a parole violator] is not ‘an arrest within

the meaning of the constitutional provisions.’ ” Id. at 241, 244

(quoting Story, 97 F.2d at 188). Accordingly, while the court

proceeded to prescribe in detail various requirements for the

issuance of a parole violator warrant, including “a written

application . . . reciting the facts believed to constitute a violation” and that “the facts recited . . . , if true, amount to satisfactory evidence that parole conditions have been violated,”

neither probable cause nor oath or affirmation were ever mentioned. Id. at 245; see also id. at 241 & n.12 (discussing the

meaning of “satisfactory evidence”). 

Even when Congress finally did respond to court decisions

by codifying certain judicially-recognized due process rights

of parolees, it again made no changes to bring parole violator

warrants within the scope of the Fourth Amendment. The

SHERMAN v. U.S. PAROLE COMMISSION 11273
Parole Commission and Reorganization Act, Pub. L. No. 94-

233, 90 Stat. 219 (1976), was Congress’ final recodification

and comprehensive amendment to the parole statutes before

the 1984 repeal, and it produced the provisions we construe

today. It was intended in part to legislatively address the

Supreme Court’s then-recent decision in Morrissey v. Brewer,

408 U.S. 471 (1972), which declared that a parolee’s interest

in his conditional liberty is protected by the Fourteenth

Amendment and prescribed certain minimum procedural safeguards for the revocation process. Id. at 482-83, 484-85; S.

Rep. No. 94-369, at 15 (1975), as reprinted in 1976

U.S.C.C.A.N. 335, 337. The Court’s prescriptions included,

among other things, notice of the alleged parole violations and

the parolee’s rights; an opportunity for a prompt informal preliminary hearing near the place of arrest, at which an independent administrative officer must determine whether probable

cause exists for the parolee’s continued detention pending a

final decision on revocation; and an opportunity for a final

hearing — not rising to the level of a criminal trial — to

determine whether revocation is warranted. Morrissey, 408

U.S. at 485-89. Congress accordingly codified these safeguards at 18 U.S.C. §§ 4213(c) (notice) and 4214 (preliminary

and final hearings). Parole Commission & Reorganization Act

§ 2, 90 Stat. at 228-30. 

Notably, however, neither the Supreme Court nor Congress

suggested that stricter procedures were required for the issuance of a parole violator warrant for a parolee’s initial arrest.

In Morrissey, despite tempering Anderson’s strong-form version of the “custody” theory, the Court nonetheless reaffirmed

that “parole is an established variation on imprisonment of

convicted criminals” and continued to give due recognition of

that special status as limiting the rights of parolees as compared to ordinary citizens. 408 U.S. at 477, 480, 483; see also

Samson v. California, 126 S.Ct. 2193, 2198-99 & n.2 (2006).

And nearly all of the new safeguards prescribed by the Court

and codified by Congress regard only the process due a parolee in revocation proceedings after he is retaken. See D’Amato

11274 SHERMAN v. U.S. PAROLE COMMISSION
v. U.S. Parole Comm’n, 837 F.2d 72, 75-76 (2d Cir. 1988);

S. Rep. No. 94-369, at 18, 25-26, as reprinted in 1976

U.S.C.C.A.N. at 339, 347-48; H.R. Rep. No. 94-838, at 33-34

(1976), as reprinted in 1976 U.S.C.C.A.N. 351, 365-66. Even

the notice requirement, which does relate to the warrant procedures, merely relates to the content of the warrant rather

than the justification for its issuance. 

For our purposes, the 1976 Act is practically indistinguishable from the 1910 and 1948 Acts in authorizing the retaking

of a parole violator on an administrative warrant outside the

scope of the Fourth Amendment. Much like former 18 U.S.C.

§§ 716 and 717 (1910-1948) and former 18 U.S.C. §§ 4203,

4205 and 4206 (1948-1976), the latest parole statutes continue

to provide that “[a] parolee shall remain in the legal custody

and under the control of the Attorney General,” and that “[i]f

any parolee is alleged to have violated his parole, the Commission may . . . issue a warrant and retake the parolee” “by

taking such parolee and returning him to the custody of the

regional commissioner, or to the custody of the Attorney General.” 18 U.S.C.A. §§ 4210(a), 4213(a), (d) (West Supp.

2007); Parole Commission & Reorganization Act § 2, 90 Stat.

at 226-28. 

[5] Although the 1976 Act did incorporate for the first time

an express “probable cause” requirement for revocation proceedings, it has no bearing on the issuance and execution of

a parole violator warrant. The term appears not in § 4213 but

in § 4214, which expressly applies only after a parolee has

already been “summoned or retaken under section 4213.” 18

U.S.C.A. § 4214(a)(1)(A) (West Supp. 2007); see also H.R.

Rep. No. 94-838, at 34, as reprinted in 1976 U.S.C.C.A.N. at

366 (“following the issuance of a summons or warrant”).

While § 4214 entitles a retaken parolee to “a preliminary

hearing . . . to determine if there is probable cause to believe

that he has violated a condition of his parole,” that inquiry is

intended not as a post-hoc examination of the warrant’s validity but to determine whether the circumstances justify “incarSHERMAN v. U.S. PAROLE COMMISSION 11275
ceration of the parolee pending further revocation

proceedings,” among other options. 18 U.S.C.A.

§ 4214(a)(1)(A) (West Supp. 2007); see also S. Rep. No. 94-

369, at 18, as reprinted in 1976 U.S.C.C.A.N. at 339. Thus,

the 1976 Act requires probable cause as a prerequisite only

for continuing revocation proceedings beyond the preliminary

hearing and extending a retaken parolee’s detention, not to

compel an alleged parole violator’s appearance at such a hearing. Cf. Gerstein v. Pugh, 420 U.S. 103, 113-14 (1975) (holding with respect to an ordinary criminal defendant that “the

Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest”). Congress certainly could have included

“probable cause” in both §§ 4213 and 4214, but it opted not

to. 

[6] Instead, for the first time Congress expressly referenced

a mere allegation as the necessary predicate for issuing a

parole violator warrant. Compare 18 U.S.C. § 4213(a) (West

Supp. 2007) (“is alleged to have violated his parole”) with 18

U.S.C. § 4205 (1970) (“has violated his parole”) and id. § 717

(1946) (“reliable information that the prisoner has violated his

parole”). The legislative history also repeatedly mentions an

allegation as a sufficient predicate. See S. Rep. No. 94-369,

at 18, as reprinted in 1976 U.S.C.C.A.N. at 339 (“In the case

of allegations”); H.R. Rep. No. 94-838, at 33, as reprinted in

1976 U.S.C.C.A.N. at 365-66 (describing § 4213 as “giving

the Commission discretion to use either a summons or warrant when a condition of parole has alleged to have been violated”). Given the lack of any explanation of congressional

intent regarding the allegation clause specifically, Congress

might not have intended any substantive change from the

prior Acts. See H.R. Rep. No. 94-838, at 33, as reprinted in

1976 U.S.C.C.A.N. at 365-66; Hyser, 318 F.2d at 241 n.11;

see also 28 C.F.R. § 2.44 (continuing to require “satisfactory

evidence” of the alleged violation). But at the very least the

allegation clause clarifies that, in marked contrast to the imposition of heightened safeguards for post-arrest revocation pro11276 SHERMAN v. U.S. PAROLE COMMISSION
ceedings, Congress expressly kept to a minimum the

requirements for issuing a summons or warrant to ensure a

parolee’s appearance and intended to codify only those rights

prescribed by Morrissey and guaranteed under the Fourteenth

Amendment, not the Fourth Amendment. 

4

Finally, we are unpersuaded by Sherman’s argument that

we should construe § 4213 as incorporating the requirements

of the Warrant Clause in order to avoid raising serious doubts

as to its constitutionality. Although in Vargas-Amaya we so

applied the constitutional-doubt canon of statutory construction as to § 3583(i), we did so only as an alternative rationale

confirming our reading of the statute’s plain language.

Because our textual analysis mooted any potential constitutional problems, we assumed arguendo that § 3583(i) was

fairly susceptible of two constructions and then employed the

canon of constitutional doubt to doubly reject the Government’s reading. 389 F.3d at 906. The situation here is much

different, for our reading of § 4213’s plain text actually raises

constitutional issues. We therefore lack the luxury of engaging in a hypothetical exercise in alternative rationales and

must determine whether the constitutional-doubt canon

applies at all. We conclude it does not. 

The canon of constitutional avoidance has no application

when a statute’s language is unambiguous and Congress’

intent is clear. As our preceding textual analysis reveals,

§ 4213 is susceptible of only one construction, which we

therefore must adopt despite its potential for raising a significant constitutional question regarding the statute’s validity.

Almendarez-Torres v. United States, 523 U.S. 224, 239

(1998). Although “one of the canon’s chief justifications is

that it allows the courts to avoid the decision of constitutional

questions,” avoidance cannot be an end in itself lest the canon

become something it is not — a method of resolving constitutional questions by other means. Clark v. Martinez, 543 U.S.

SHERMAN v. U.S. PAROLE COMMISSION 11277
371, 381 (2005). The canon is merely a tool of statutory interpretation, “not a license for the judiciary to rewrite language

enacted by the legislature” for “we cannot press statutory construction to the point of disingenuous evasion even to avoid

a constitutional question.” Salinas v. United States, 522 U.S.

52, 59-60 (1997) (internal quotation marks and citations omitted). “The canon of constitutional avoidance comes into play

only when, after the application of ordinary textual analysis,

the statute is found to be susceptible of more than one construction; and the canon functions as a means of choosing

between them.” Clark, 543 U.S. at 385. It “rest[s] on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts” and “is thus a

means of giving effect to congressional intent, not of subverting it.” Id. at 381-82. 

[7] Moreover, our interpretation of § 4213 as excepting

administrative parole violator warrants from the Warrant

Clause of the Fourth Amendment is entirely consistent with

the presumption that Congress legislates in the light of constitutional limitations. See Harris v. United States, 536 U.S. 545,

556 (2002). As already discussed, the 1976 Act was passed

after the Anderson Court had analogized the rights of parole

violators with those of escaped prisoners, the Fourth and D.C.

Circuits had repeatedly rejected application of the Warrant

Clause to parole violator warrants, and the Morrissey Court

left such warrants alone in addressing the due process rights

of parole violators. Thus, “Congress would have had no reason to believe that it was approaching the constitutional line

by following that instruction” and continuing to authorize the

issuance of parole violator warrants under substantially the

same procedures as the 1910 Act had originally allowed. Harris, 536 U.S. at 556. 

[8] For all of the above reasons, we hold as a statutory matter that an administrative warrant issued by the Parole Commission under 18 U.S.C. § 4213 for the retaking of an alleged

parole violator need not be supported by oath or affirmation.

11278 SHERMAN v. U.S. PAROLE COMMISSION
Thus, Sherman has failed to establish any deprivation of his

statutory rights in support of his habeas petition. 

B

We now turn to the constitutional question implicated by

our statutory analysis. Pointing to the Fourth Amendment’s

prohibition that “no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation,” Sherman contends

that sworn facts establishing probable cause are constitutionally required to support all warrants, even those issued by

administrative agencies pursuant to statute. Consequently, he

contends that his arrest and temporary detention on an

unsworn parole violator warrant issued by the Parole Commission pursuant to 18 U.S.C. § 4213 is inconsistent with the

Warrant Clause and therefore unconstitutional. Cf. Payton v.

New York, 445 U.S. 573, 574-75 (1980) (holding that New

York statutes authorizing warrantless entry into a private residence to make a routine felony arrest are inconsistent with the

Fourth Amendment). We disagree. 

No doubt, the once prevailing view that searches and seizures of parolees present no Fourth Amendment issues has

been rejected in our modern jurisprudence. Latta v. Fitzharris,

521 F.2d 246, 248 (9th Cir. 1975) (en banc). But “[t]o hold

that the Fourth Amendment is applicable . . . is only to begin

the inquiry into the standards governing such intrusions.”

Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 618-19

(1989). 

By now it is clear that parole searches and seizures must

“pass muster under the Fourth Amendment test of reasonableness.” Latta, 521 F.2d at 248-49. Under the general Fourth

Amendment approach, we assess reasonableness by examining the totality of the circumstances and balancing the intrusion on the individual’s privacy against the promotion of

legitimate governmental interests. Samson, 126 S.Ct. at 2197.

“In most criminal cases, we strike this balance in favor of the

SHERMAN v. U.S. PAROLE COMMISSION 11279
procedures described by the Warrant Clause of the Fourth

Amendment” and therefore ordinarily require a search or seizure to be “accomplished pursuant to a judicial warrant issued

upon probable cause.” Skinner, 489 U.S. at 619 (emphasis

added). 

Parole is different, however. “[R]evocation of parole is not

part of a criminal prosecution and thus the full panoply of

rights due a defendant in such a proceeding does not apply to

parole revocations.” Morrissey, 408 U.S. at 480. “Quite to the

contrary, the Court has recognized that those who have suffered a lawful conviction are properly subject to a broad range

of restrictions that might infringe constitutional rights in free

society . . . .” United States v. Kincade, 379 F.3d 813, 833

(9th Cir. 2004) (en banc) (internal quotation marks and brackets omitted). 

Accordingly, in the parole context we have struck the

proper balance between the individual and public interests by

generally exempting parole searches and seizures from the

requirements of the Warrant Clause. In Latta we held that the

Fourth Amendment requires neither a warrant nor probable

cause before a parole officer may search a California parolee.

521 F.2d at 250 (en banc plurality); id. at 253 (Wright, J.,

concurring); id. (Choy, J., concurring). Moreover, we thought

it “indisputable, in view of the nature of parole and of the

parole agent’s responsibilities,” that even if a warrant were

constitutionally required “the showing necessary to obtain it

would have to be substantially different from probable cause

to avoid frustrating the purposes of parole.” Id. at 251. And

in United States v. Rabb, 752 F.2d 1320, 1324 (9th Cir. 1984),

we extended Latta to parole arrests. “Under the Latta analysis, once a violation is established, the public interest in

apprehending parole violators outweighs the parolee’s privacy

interest,” such that “if a parole officer reasonably believes a

parolee is in violation of his parole, the officer may arrest the

parolee.” Id. Thus, as we later summarized: “Under California

and federal law, probable cause is not required to arrest a

11280 SHERMAN v. U.S. PAROLE COMMISSION
parolee for a violation of parole. Warrantless arrests of parole

violators are also valid.” United States v. Butcher, 926 F.2d

811, 814 (9th Cir. 1991). 

These principles apply equally to federal parolees like

Sherman. It is immaterial here that Latta, Rabb and Butcher

all involved California state parolees or that California law

may in some ways be stricter than federal law in terms of the

conditions placed on parolees. Compare Cal. Penal Code

Ann. § 3067(a) (West 2007) (requiring that state parolees

agree in writing to be subject to search or seizure at any time

“with or without a search warrant and with or without cause”)

with 28 C.F.R. § 2.44 (West 2007) (requiring “satisfactory

evidence” of a parole violation for the issuance of an administrative parole violator warrant). In Latta we considered the

Fourth Amendment rights of parolees without reference to

such jurisdiction-specific provisions and instead relied on

those characteristics of parole that are more universal — e.g.,

the nature, goals and purposes of parole, parolees’ unique

legal status and diminished expectation of privacy, and the

presence of long-standing statutory or judicial authority for

warrantless searches and seizures of parolees. 521 F.2d at

249-51. And Rabb’s extension of Latta to parole arrests was

based on the “same analytical framework” and an observation

that echoes the congressional intent underlying 18 U.S.C.

§ 4213: Given that a parolee “remains under legal custody,”

“a parole arrest [is] more like a mere transfer of the subject

from constructive custody into actual or physical custody,

rather than like an arrest of a private individual who is the

suspect of a crime.” Rabb, 752 F.2d at 1324 (internal quotation marks omitted). Thus, while the jurisdiction-specific

aspects of California law may be a material factor in some circumstances, see, e.g., United States v. Lopez, 474 F.3d 1208,

1214 (9th Cir. 2007) (upholding a warrantless, suspicionless

search of a California parolee’s residence as reasonable in

light of the California parole-search statute and the parolee’s

conditions of release), nothing in the reasoning of Latta and

SHERMAN v. U.S. PAROLE COMMISSION 11281
its progeny would limit the precedential effect of those decisions in the context of federal parole. 

[9] Because searches and seizures of parolees are generally

not subject to the requirements of the Warrant Clause, we

conclude that the Fourth Amendment does not require an

administrative parole violator warrant to be supported by oath

or affirmation. We therefore hold that petitioner’s arrest on a

unsworn parole violator warrant issued by the U.S. Parole

Commission pursuant to 18 U.S.C. § 4213 was not unconstitutional under the Warrant Clause of the Fourth Amendment.

Lest there be any confusion, our holding today is in keeping with the fact that “[o]ur cases have not distinguished

between parolees, probationers, and supervised releasees for

Fourth Amendment purposes.” Kincade, 379 F.3d at 817 n.2.

The distinctions we have recognized between parole and

supervised release warrants are fundamentally statutory, not

constitutional. Vargas-Amaya stands for the relatively narrow

proposition that an ordinary judicial warrant that is statutorily

required for the arrest of a person on supervised release must

comply with the Warrant Clause of the Fourth Amendment in

order to extend the court’s jurisdiction under § 3583(i). See

Vargas-Amaya, 389 F.3d at 907 & n.5 (addressing “whether

a warrant for violation of the terms of release must comply

with the Warrant Clause,” given the fact that “by statute, a

[judicial] warrant was required to extend the court’s jurisdiction”); cf. United States v. Murguia-Oliveros, 421 F.3d 951,

955 (9th Cir. 2005) (holding that the court had jurisdiction to

revoke supervised release under § 3583(e)(3) despite the

releasee’s arrest on “an unsworn warrant”). We never considered the notion of an administrative warrant like that provided

in § 4213. See Vargas-Amaya, 389 F.3d at 904; see also id.

at 906 (discussing “all warrants” in terms of only “search”

and “arrest” warrants). And we expressly avoided the question of whether a supervised releasee’s arrest must comply

with the Warrant Clause in the absence of a statute requiring

a judicial warrant. Id. at 907 n.5 (“we do not address whether

11282 SHERMAN v. U.S. PAROLE COMMISSION
Vargas’ arrest was otherwise a valid warrantless arrest”); cf.

Latta, 521 F.2d at 250-51. That is the question we answer

today, albeit in the context of parole and given a statute that

requires “an administrative warrant, not a judicial warrant

within the scope of the Fourth Amendment.” Abel, 362 U.S.

at 232.

IV

[10] We hold that neither 18 U.S.C. § 4213 nor the Fourth

Amendment require an oath or affirmation for the issuance of

a valid administrative warrant for the retaking of an alleged

parole violator. As petitioner alleges no other statutory or constitutional defect in the warrant on which he was retaken and

held pending a preliminary hearing on revocation, we conclude his detention was not unlawful. The judgement of the

district court denying Sherman’s habeas petition challenging

his detention on an unsworn parole violator warrant is 

AFFIRMED. 

SHERMAN v. U.S. PAROLE COMMISSION 11283