THE 

### ATTORNEY GENERAL OF TEXAS

Jrm BlATrux August 4. 1987

- -PJRAu.

Mr.DonR. Stiles Executive Director Adult Probation Commission 6100CameronRoad Suite 600, Building B Austin, Texas 78753 Opinion No. JM-762

Re: Constitutional validity of electronic monitoring of probatioaers

DearMr. Stiles:

Youinform us that the Adult Probation Commission is considering
a proposal to permit the use of electronic monitoring devices as a condition of probation. The devicas will be employed primarily to monitor a probationer’s compliance with curfew hours imposed by the court. Someof themonitoring systems require the probationer towear an electronic device attached to his or her body at all times; all require the probationer to have access to a telephone in his or her residence. Concern about the constitutionality of this use of electronic monitoring devices hasprompted the following questions:

1. Doprobationers have any constitutionally protected interest whichwould prohibit the use of electronic monitoring in the homeas a condition of probation over the objections of the [probationer]?

2. Do family members or cohabitants [OfI probationers have any constitutionally protected interest which would prohibit the use of electronic monitoring in the homethey share with probationers over their objections?

3. Does the requirement of somesystem that the probationer wear a device attached to his or her body at all times have any influence on the
answers to questions 1and2’1

4. Does the requirement of somesystems that an.electronic monitoring device be attached to the telephone in the homehave any influence on the
answers to questions 1and2?

In our opinion, the employment of electronic monitoring devices
as a condition of probation does not violate a constitutionally

p. 3560Mr.DonR. Stiles - Page 2 (JM-762)

protected Interest of the probationer or a third person residing in the probationer’s home. Neither dowebelieve that the attachment of the particular devices you have described to either a probationer’s body or a telephone in his home violates any constitutionally protected interest of the probationer or a third person residing in the probationer’s home.

I.

In your request letter you describe three types of electronic monitoring systems under consideration. The first type of system is called an“active” monitoring system:

Active monitoring. This requires that the probationer have a standard telephone in his home. A monitoring device is hooked upto the phone. The probationer wears a device that transmits signals which the monitor can detect within a certain small radius. The monitor is connected through the telephone line to a computer which is programed with the schedule that the probationer has been ordered by the court to observe. Comunicatlon between the monitor and the computer shows whether the probationer is at homeat the time he is supposed tobe.

Afuller description of the active monitoring systemwasprovided in a report recently issued by theTexas Criminal Justice Policy Council:

The first type of these systems. referred to in the earliest literature as ‘active’ systems consists of a transmitter unit, a receiver-dialer unit, and a central office computer or receiver unit. A transmitter,. which is strapped to the offender, broadcasts an encoded signal to the receiver located in the offender’s home. The receiver is connected by the telephone to the central office computer or receiver unit. When the transmitter being worn by the offender is within range of the home receiver, the system indicates that they are at the residence. When the offender goes beyond the range of the receiver unit, i.e., leaves the home. transral~r the signal from the

is not received and the system indicates absence. 

### Ifthe offender leaves home during an unauthorized period, in violation of their turfew, a violation report is generated. If, however, the offender leaves the home at a time they are authorized to do so, the times of arrival anddeparture are noted, but noviolation report is generated.

p. 3561. Mr.DonR.~Stilts - Page 3 (JM-762)

.- J. Vaughn, Electronic Monitoring of Offenders 6 (July 1986) (prepared for Texas Criminal Justice Policy CouucLl) (hereinafter cited as Electronic Monitoring).

The second type of device described in your letter are the so-called “passive” systems:

Passive monitoring. This also requires astandard telephone and a monitoring device in the home. The device wornby the probationer does not send signals. but must be placed in the monitor when the central computer calls the probationer’s home at randomIntervals during the periods when the probationer is ordered tobe at home. Themonitor verifies that the correct device has been used to respond to the call.

‘TheCriminal Justice Policy Council report provided this description of passive monitors:

Asecond type of unit utilizing telephone lines for comaunication has been referred to in the earlier literature as a ‘passive’ system. It consists of a central office computer. auencoder device, andaverifier box. Theencoder device is
worneither onthewrist or anRleby the offender. The computer is programmed to generate tither randomcalls or to call at specific times to the offender’s hone. The offender is required to provide voice identification and then insert the encoder device into the verifier box. confirming their identity. Thesystemwill provide exception reports if the phone is not answered, if a busy signal is received. if an operator intercept message is detected, or If the offender fails to properly insert the encoder device into the verifier box.

Electronic Monitoring, supra, at 6. The report explained the difference between active andpassive systems in terns of the amount of monitoring accomplished by each type of system. “Active” systems operate continuously and monitor the probationer from the moment the transmitter is within the range 

### ofthe receiver. In contrast,

“passive.” systems are activated by the telephone calls from the central reception office and operate only for the duration of the telephone call. Id.

- Thethird type of monitoring system under consideration does not require the probationer towear anydevice at all but dots involve the
use of a telephone. Acentralized computer sakes telephone calls to the probationer’s homeat randomtimes during the period in which the

p. 3562Mr.DonR. Stiles - Page4 ,(JM-762)

probatiouer is required by the court's order to be at home. The probatfoner is directed to repeat selected words and phrases or to
ausweraseries of questions. SeaElectronic Monitoring, supta, at 6. Theprobationer's voice is then electronically comparedwith avoice print previously supplied by the probationer.

As of July 1986, electronic monitoring systems of one type or another were in use in eight states. Electronic Uonitoring, supra, (Aootudix D). The state of California recently enacted a statute

__ authorizing-the use of electronic monitoring devices as part of a three-year homedetention pilot project. Cal. Penal Code 51203.015 (West Supp. 1987). The Texas Legislature recently approved the employment of electronic monitoring devices in probation and parole programs, but its provisions affect probations granted or modified after Septexber 1. 1987. Acts 1987. 70th Leg., ch. 1, 057, 15, at 1, 14 (S.B. No. 215). ThiS opinion does not address the constitutionality of the provisions of this legislation. It addresses ouly the general question of the constitutionality of electronic monitoring devices.

II.

TheAdult Probation La" states that the terms andconditions of probatiou may Include, but are not limited to, those conditions expressly provided in the act. Code Crix. Proc. art. 42.12, $6(a). Thecourts are not limited to the conditions enumerated in the act but have tide discretion in setting reasonable conditions of probation. Macias v. State, 649S.W.Zd 150 (Tex. App. - El Paso 1983. nopet.). Conditions of probation should bear areasonable relationship to the treatment of the accused andthe protection of the public. TameaV. State, 534S.W.2d 686 (Tex. Grim. App. 1976); Macias v. State, supra. Whather the use of auelectronic monitoring device bears areasonable relationship to the treatment of a particular probationer and the protection of the public is a question of fact that cannot be determined in anAttorney General's Opinion. See generally Attorney General Opinion JM-307 (1985) at 5.

Your first question concerns whether a probationer has any constitutionally protected interest which "ill prohibit the use of electronic monitoring devices as part of-his probation. It is well understood that, because of their special status, probationers are subject to limitations of their constitutional rights from which ordinary citizens are free. Macias v. State. 649S.W.Zd at 152. Any restriction placed upon these rights, however, can bejustified only to the extent actually required by the legitimate demands of the probation process andnecessary for the probationer's reformation and rehabilitation. &, *see also Taxesv. State, 534S.W.Zdat 692.

In the Maclas case, the court adopted the test articulated in United States v. Tony, 605 P.2d 144. 150 (5th Cir. 1979), to

p. 3563Ur. DonR. Stiles - Page 5 (JM-762)

detenaiue whether a condition of probation is unduly intrusive on constitutioua1l.y protected freedoms:

The conditions must be ‘reasonably related’ to the purposes of the [Federal Probation] Act. Cousideration of three factors is required to determine whether a reasonable relationship exists: .(l) the purposes sought to be served by probation; (2) the extent towhich constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and (3) the legitimate needs of lawenforcement.

Uacias v. State, 649 S.W.Zd at 152. Whether it IS reasonable to require a particular probationer to wear an electronic monitoring device as a condition of his probation requires an evaluation of the facts surrounding his illegal activity and his probation. See Attorney General Opinion JM-307 (1985). It is nevertheless possia to review the relevant authorities to determine whether the mere use of electronic monitors in the probation system impermissibly infringes uponaconstitutionally protected interest of aprobationer or athird person residing in the homeof aprobationer. Your questions raise issues under the First, Fourth, Eighth, andFourteenth Amendmentsto the United States Constitution. Wewill devote the bulk of our discussion to the issue of privacy in the probationer’s home.

First AmendmentConsiderations

TheFirst Amendmentto the United States Constitution generally protects an individual’s speech, associations, movement, travel, and religious beliefs from excessive governmental limitations. See also Tex. Coast. art. I, 996. 8, 27. Arelated concept is the right to travel interstate, derived from the privileges and immunities clause of %heFourteenth Amendment. SeeEdwardsv. California,. 314U.S. 160 (1941). Although persons serv= aprobated sentence are entitled to enjoy these rights to a significant degree. the courts have consistently held that such rights may be limited to serve the purposes of probation. Bowever, because of the preferred nature of these rights, courts critically evaluate probation conditions restricting them. See Cohen and Gobert. The Lawof Probation and P;;zo:; 55.10 (1983Td Supp. 1986) [hereinafter cited as Cohenand

. Theinterests which are implicated byyour request are those relating to associations. movement, tad travel.

The courts have concluded that conditions curtailing a probationer’s associations with certain named persons does not impermissibly Infringe uponthe right of freedom of association. Tyra
v. State, 644 S.W.Zd 865 (Tex. App. - Amarillo 1982, no pet.). Conditions whichprohibit anycontact whatsoever between aprobationer and a complainant have been upheld as reasonable conditions of probation. Pequenov. State, 710S.W.Zd 709 (Tex. App. - Rouston [lst

p. 3564Mf; DonR. Stiles - Page 6 (JM-762)

Dist.] 1986. no pet.). In appropriate cases, probation conditions imposing a c&few are reasonable, notwithstanding the limits they inpose ouaprobationer's freedom 

### ofmovamautandtravel. SeeSalinas
v. State, 514 S.W.2d 754 (Tex. Grim. App. 1974). Conditions which require the probationer to remain in aspecified area arevalid. See. *. Miller v. State, 330 S.W.Zd 466 (Tex. Grim. App. 1959). However, a condition which effectively banishes a probationer from a particular area is invalid. SeeJohnson v. State, 672 S.W.Zd 621 (Tex. App. - Corpus Christi 1984, nopet.) (banishment from county). Also, it has been suggested that conditions limiting aprobationer's associations could threaten the probationer's right of privacy if construed to extend to family members. CohenandGobert, suprs. 16.16 (citing Roev. Wade, 410U.S. 113, 152-53 (1973)).

Given these permissible limitations

,weare not persuaded that a probatiouar mayobject to the use of electronic monitoring devices on the grounds that it interferes with his freedom of association, movement, or travel. Electronic monitoring devices appear no wore restrictive than a condition directly limiting movement; they simply provide greater assurance that the probationer is conforming his conduct to the limitations attached to his conditional liberty. Because the devices are incapable of monitoring conversations, wedo not believe that they will affect aprobationer's freedom of sp~eech. The fact that the probationer waybe required under somesystems to utter particular words or phrases into atelephone does not change our minion. orovided the condition reauirinn this conduct otherwise .~~~~~~~~I ~~~ ~~ serves the purposes of probation. -Cf. kited Starts v. William Anderson Co., Inc., 698 F.2d 911, 913 (8th Cir. 1982) (referring to terms of probation which required price-fixers to deliver speeches to civic groups about the ev& of -price-fixing). overruled on other grounds, United States v. Missouri Valley 

### Constr.Co., 741 F.2d 1542 (8th Cir. 1984); United States v. Franks, 511 F.2d 25 (6th Cit.), cert. denied, 422 U.S. 1042 (1975) (requiring arrested defendant to submit voice exemplars violates no constitutional rights so long as underlying seizure of the person wasproper).
Privacy Considerations

Theprivacy interests of probationers andnonprobationers donot drawprotection fromaspecific 

### guarantee of the federal Constitution, but are instead protected by concepts derived from the various guarantees of the Bill of Rights and the Fourteenth Amendment, particularly the Fourteenth Amendmant's concept of personal liberty. See Rot v. Wade, 410U.S. 113 (1973). Someof these interests were addressed in our discussion of the First Amendment. Here, we "ill discuss that privacy interest which we believe is most directly implicated by the proposal 

### toemployelectronic monitoring devices in the probation system --,namely, the reasonable expectation of privacy
aprobationer mayhave with respect to the 'contents andhappenings in his home. See generally Alderman v. United States, 394 U.S. 165 (1969).

p. 3565!fr. **Don** R. Stilts - Page 7 ,(,7&762)~

TheFourth Ameudment’sban onunreasouable searches andseizures has supported challenges to probation conditions requiring the probationer to undergo randomsearches. See also Tex. Coast. art. I, $9.

In Tamesv. State, supra, the defendant wasplaced on probation after entering aplea of nolo contendere ona charge of possession of marijuana. Oneof the conditions of probation required the defendant to submit his person, residence andvehicle to a starch by anypeace officer at any time. The Court of Criminal Appeals invalidated the condition, stating it was too broad and too sweeping and infringed upon the probationer’s rights under the Fourth andFourteenth Axendmeats of the federal Constitution and article I, section 9. of the state constitution. 534 S.W.Zd at 692. Thecondition did not serve the ends of probation and permitted harassing and intimidating starches totally unrelated to his prior conviction or rehabilitation. p& Anidentical condition was invalidated by the Court of CrFminal Appeals one year after the Tamezdecision. Basaldua v. State, 558 S.W.Zd 2 (Tex. Crib. App. 1977).

In the years following the Taxes and Basaldua decisions, the courts have exhibited awillingness?accept conditions of probation which require the probationer to undergo what are arguably limited searches andseizures. InMacias v. State, e, the court approved
acondition requiring aprobationer whohadpled guilty to acharge of delivery of a controlled substance to submit to weekly urinalysis tests administered byhis probation officer. Thecourt concluded that the taking of urine samples constituted a search but determined the condition was reasonably related to the purposes of probation under Texas law for three reasons. First, it served to dissuade the probationer from possessing illegal drugs. Second, it promoted his rehabilitation by providing the probation officer with means of determining whether rehabilitation was taking place. Finally, it protected society by deterring the probationer from engaging in unlawful drug activities and by giving the probation officer the ability to detect anysuch activity. 649S.W.Zdat 152-53. Thecourt noted that the terms of the condition were not overly broad andunrestricted so as to permit the kind of intimidating and harassing searches condemnedin the TamexandBasaldua cases. Seealso Clayv. State, 710S..W.Zd119 (Tex. App. - Waco1986, nopet.) (upholding an identical condition of probation).

The earliest decision considering the constitutionality of electronically enhanced surveillance reflected the prevailing view that for there to be asearch under the Fourth Amendment,the police musthave physically intruded into a constitutionally protected area. In Olmstead v. United States, 277U.S. 438 (1928). the SupremeCourt held that the placement of aneavesdropping device onthe defendant’s telephone andthe subsequent monitoring of his conversations did not constitute asearch under the Fourth Amendmentbecause the “wires are not part of his house or office, anywore than are the highways along

p. 3566Mr.DonR. Stiles - Page 8 (J&762),

which they are stretched." 277U.S. at 465. TheCourt later upheld 00.similar grounds electronic eavesdropping upon conversations in a neighboring office by the use of a "detectaphone" placed against a cmaou wall. Goldmanv. United States, 316 U.S. 129 (1942). In Silverman v. United States, 365U.S. 505 (1961). the Court ruled that eavesdroooiun bv means of a "mike" microohone which Dtuetrated a commonw& Eon<uted aFourth ;\mendmeat&arch.

TheSupremeCourt's decision in Katz v. United States. 389U.S. 347 (1967). ushered in a newera of Fourth Amendmentanalysis. In that case, the Court abandoned the "trespass" doctrine employed in the Olmstead andGoldmandecisions, declaring that

the Fourth Amendmentprotects people, not places. What a person knowingly exposes to the public,
even inhis owuhomeor office is not asubject of Fourth Amtndmentprotection.

. . . But what he seeka to preserve as private, even in au area accessible to the public, maybe constitutionally protected.

389 U.S. at 351. The Court ruled that eavesdropping 

### byway of an electronic listening andrecording device attached to the exterior of
a public telephone booth was a search for purposes of the Fourth Amendment,requiring government agents to obtain a starch warrant in advance.

Justice Barlan, in a concurring opinion that was to eventually
serve as aguide to other courts, added that the majority opinion of the Court established atwofold requirement -- first, that the person have exhibited au actual (&. subjective) expectation of privacy, and second, that the expectation be one that society is prepared to recognize as reasonable. 389U.S. at 361. SeeCalifornia v. Ciraolo, 476U.S. -, 106S.Ct. 1809. 90L.Ed.Zd ZlO(1986); Stewart V. State, 681S.W.Zd 774 (Tex. App. - Houston [14th Dist.] 1984, pet. ref'd).

In the years following the Katz decision, the Supreme Court considered the constitutional ramifications of surveillance accomplished by meaus of other electronic ~devices such as pen registers, Smith v. Maryland. 442 U.S. 735 (1979). and electronic tracking devices, or beepers. United States v. Karo, 468 U.S. 705 (1984); United States v. Knotts, 460U.S. 276 (1983). Thedevices you describe have been compared to beepers, devices which emit periodic signals that canbe picked upby aradio receiver. United States v. Knotts, 460 U.S. at 277. See Note, Electronic Monitoring of Probationers: AStep TowardBisrotherl, 14Golden Gate U. L. Rev. 431 (1984); Electronic Monitoring, supra.

InKnotts, the SupremeCourt held that thewarrantless monitoring of a beeper placed inside a container of chloroform did not violate the Fourth Amendmentbecause it revealed noinformation that could not

p. 3567Ur. DonR. Stiles - Page9 (JM-762)

have been obtained through visual surveillance. TheCourt concluded that the monitoring of the beeper while the container was being transported over public thoroughfares did not invade any legitimate expectation of privacy on the defendant’s part. One question left unanswered was whether the monitoring of a beeper falls within the scope of the Fourth **Amendment**whenit reveals information that could not be obtained through visual surveillance. This question was answered in the affirmative in United States v. Karo. supra.

InKaro the Court wasconfronted with themonitoring of abeeper located -de a private residence, an area not open to visual surveillance. TheCourt concluded suchmonitoring in the absence of a search warrant or anexception to thewarrant requirement violated the Fourth Amendmentrights of persons having ,,ajustifiable interest in the privacy of the residence.” 468U.S. at 714. TheCourt rejected the contention that lawenforcement officials

should be completely free from the.constraints of the Fourth Amendmentto determine by means of an electronic device

. . . whether a particular article -- or aperson, for that matter -- is in
anindividual’s homeat aparticular time.

468U.S. at 716.

In addition to the two-point **analysis** originating with Katz, Texas courts have directed attention to the nature of the actxy claimad to be a “search.” Where the **activity** is not aimed at discovering evidence of acrime, somecourts art inclined to rule that the activity is not a search. These courts view a “search” as a

“quest for, a looking for, or a seeking out of that which offends against the law.,, Vargas v. State. 542 S.W.2d 151, 153 (Tex. Grim. App. 1976). cert. denied, 429U.S. 1109 (1977); Garber v. State.~ 671 S.W.2d 94, 97 (Tax. App. - El Paso 1984, nopet.). See also Marshall

v. United States, 422F.2d 185. 189 (5th Mr. 1970) (“search” implies
a probing, exploratory quest for evidence of a crime). Given this definition, it canbe argued that themonitoring of electronic devices in the manuerunder consideration here is not a search, since the purpose of the monitoring is not to uncover evidence of criminal activity, but to confirm compliance with a condition of probation. The monitoring devices (unlike beepers) are not to be employed in conjunction with criminal investigations andtherefore will not convey information suggesting criminal activity is taking place in the probationer’s home. The report submitted to the Texas Criminal Justice Policy Council advanced asimilar argument:

It **could**

. . . be argued that the use of an electronic device whichmerely indicates whether a person is complying with his curfew restriction, would not constitute a search. The

. . . device currently utilized as a condition of probation is

p. 3568l4r. DonR. Stiles - Page 10 (JM-762)

not capable of monitoring conversations, uor can it determine what the individual Is doing inside the confines of his homa. Its sole purpose is to tusure that the probationer is complying with the conditions of probation. It is true that the

. . . device generates information which could
**not** otherwise be obtained by visual surveLllance, but that alone should not taint the device because its installation is with the client's consent.

Electronic Monitoring, supra, at E-17-E-18.

These arc persuasive arguments. However, given the conclusion in Macias v. State, supra. that the taking of urine samples from a probationer is a search and the fact that electronic monitoring devices serve the needs 

### oflawenforceneat in amaunersimilar to the detection and investigation of crime
, wewill assume for the **sake** of argument that the electronic! monitoring of probationers is a"search" for the purposes of the Fourth Amendment. Assuming that a search
occurs whenanelectronic device wornbyaprobationer is monitored by probation officials, it is clear that such monitoring cannot be justified in this state ouatheory of consent orwaiver.

TheCourt of Criminal Appeals analyzed the issue of consent in Tamezv. State, supra. After observing that a "probationer, like a parolee, has the right to enjoy asignificant degree of privacy," the court ruled that the probationer's acceptance of the condition of probation permitting warrantless searches did not authorize searches inviolation of the Fourth Amendment:

It Is clear that protection afforded by the Fourth Amendmentand Article I. Sec. 9, Texas Constitution, extends toprobationers. This court has consistently and knowingly made this clear in ruling 01) appeals from orders revoking probation. (Citations omitted).

**A**diminution of Fourth &mmdmentprotection and protection afforded by **Article** I. Sec. 9, Texas Constitution. can bejustified only to the extent actually necessitated bythe legitimate demandsof the probation process. A probationer may be entitled to a diminished expectation of privacy because of the necessities of the correctional system, but his expectations may be diminished only to the extent necessary for his reformation andrehabilitation.
Further, it is clear that in accepting the condition of probation the appellant's 'consent'
wasnot in fact freely andvoluntarily given. The

p. 3569Hr. DonR. Stiles - Page 11 (JM-762)

,-

C choice to reject probation aud go to prison or accept the probationary condition was really
nochoice at all. It wasin legal effect coerced. (CLtation omitted).

534S.W.Zdat 692. Thus, the use of electronic monitoring devices in theprobation systemmaynot bejustified onthe theory of consent.

Thepassage from Tamesjust quoted above does, however. provide the theory under which webelieve the use of electronic monitoring devices can be coustitutionally justified. As the Court of Criminal Appeals observed, probationers, because of the conditional liberty they are granted. do not enjoy the same expectation of privacy as non-probatlouers. Their expectation of privacy is diminished only to the extent necessary for **their** rehabilitation and the legitimate demandsof the probation process. Thus, where it is determined that a probationer maybe subjected 

### toreasonable limitations onhis freedom of movementor associations, WCbelieve that reasonable andminimal intrusions into the probationer’s privacy interests to confirm compliance with the conditions of probation are permissible.
Indeed, the Code of Criminal Procedure has authorized minimal Intrusions of the probationer’s privacy in the home for years. Article 42.12, section 6(a)(S). aut+orisss the court having jurisdiction to impost as a condition of probation the condition that the probationer shall “[plermit the probation officer to visit himat his homeor elsewhere.” Webelieve the privacy intrusion resulting from the monitoring of the electronic devices you describe is strikingly different from the intrusion resulting from an actual visit by a probation officer. Our research has yielded no Texas decision invalidating a condition of probation based on section 6(a)(5) of article 42.12. The reason for this maybe that conditions of this type are considered anintegral pert of the probation process andhave been routinely sustained elsewhere. even against a claim that they infringe on aprobationer’s right of privacy. See CohenandGobert, 

# supta,-

06.67 (siting United States v; Manfredo~. 341 F.Supp. 790 (S.D.N.Y.), aff, 459F.2d 1392 (2d Cit.), cert. denied, 409U.S. 851 (1972)). Thus, it is worth noting the courts have hadlittle quarrel with wre intrusive conditions in the past.

Our discussion to this point has centered on the privacy interests of the probationer. Wemust nowaddress the interests of third persons residing in the homeof the probationer, the subject of your second question.

In those states in which warrantless search conditions of probation have been approved under the theory of consent or waiver, the courts have not required special procedures, such as obtaining a warrant prior to the search, to safeguard the rights of third persons residing-with theprobationer. SeePeople v. Mason, 488P.2d 630, 634 (Cal. 1971). cert. denied, 405UT 1016 (1972); State v. Griffin, 376

p. 3570Mr.DonR. Stiles - Page 12 (JM-762)

H.W.2d 62, 67 (Wis. Ct. App. 1985). aff'd, 388N.W.Zd 535. 541 (Wls. 1986). But see State v. Velasquez, 672 P.2d 1254. 1260 a.3 (Utah 1983) (dicta suggesting that a warrant be obtained prior to such searches). Therights of such third parsons will be affected whether
or not avarraat is required, andinview of the protection given the probationer's rights, there is noneed to require awarrant simply to protect third persons' rights. State v. Griffin, 388N.W.2dat 541. Understandably, Texas courts have not had occasion .to consider this issue following the Tamesdecision. Outcourt which did address the rights of third persons in this coutext framed the issue thus:

Werecognize that probationary status can and should carry with it a reduced expectation of privacy. But a probationer is living vithiu society, 

### not confined to a penal institution.

. .~. A search of the probationer's home cannot avoid invading the privacy of those with whomhewaybe living, whether they be ismediate family, other relatives, or friends. Probationary status does not convert a probationer's family, relatives and friends into 'second class' citizens.

. . . . Wecanonly assumea 'respectable position' [in the debate over thevalidity ofwarrantless starch coaditfons of probation] if xc can give fair consideration to the rights of innocent third parties whowaybe caught up in the web of the probationary system or probationary process. These people are not stripped of their right of privacy because they maybe living with a probationer or he waybe living with them. While a probationer's right of privacy maybejustifiably diminished while onprobation, the rights of these people are not sodiminished. We, asveil as the trial courts, would be derelict in our duties if
wefailed to consider the rights of these imoceat others so that they are not swept awayby the probationary process.

. . . . These privacy considerations are inextricably interwoven in the relationships between a probationer and his family and friends no less than in the relationships between anonprobationer and his family and friends. The starch of a

p. 3571Mr.DonR. Stilts - Page 13 **(m-762)**

C

**r ‘**  probationer's home will inevitably affect the privacy of those with whomheis living.

State v. Fogarty. 610 P.2d 140, 151-52 (Wont. 1980). Quoting and relying in part onTamez, the MontanaSupremeCourt concluded that an unlimited search condition was patently unconstitutional under both the federal andMontana constitutions. The court also held that in order to protect the legal interests of innocent third persons, a search **warrant** based on probable cause must be obtained before a probationer's residence may be starched. It is doubtful that a condition authorizing a search of aprobationer's person or property authorizes starches of third persons or their property. SeePeople v. Veronica, 166Cal. Rptr. 109 (Cal. App. 1980). ThecourtBare divided
as to whether evidence seized in a search conducted, pursuant to a condition of probation maybeused against third persons residing with the probationer. ComparePeople v. Veronica, supra, vi2 Luke v. State, 344S.E.2d 452 (Ga. App. 1986).

Thecases discussed in the preceding paragraphs involved physical searches 

### of the probationer's person or property conducted by probation officials or police. Each incident involved an actual, physical intrusion into the privacy of third persons. Werefer to these cases only to demonstrate the difficulties that inhere whena condition of probation authorizes a physical invasion of property shared by aprobationer and family or household members. Electronic monitoring devices do not threaten third party interests in this

manner. Therefore, the assumptions wade in the discussion of the probationer's privacy interests cauuot be madewith regard to third party privacy interests. By the same measure, we think the distinctions drawnla the samediscussion between the use of beepers and electronic monitoring devices, distinctions not relevant to the privacy interests of the probationer, are relevant here. The comparison betveen the nature and level of intrusion posed by electronic wnitors andhomevisits byprobation officers is pertinent here, too.

In our opinion, the possibility that the privacy interests of third persons residing with electronically monitored probationers will be comprom&sedis rewte and the effects of any intrusion into the privacy of the home ephemeral. As you describe them, electronic monitoring devices convey no information regarding activities within the homeother than the presence of the probationer. Indeed. the devices impart no information whatsoever concerning the presence 

### or activities of third persons in the home. With one exception, the systems you advocate do not subject the probationer to constant surveillance in the homeandthus pose the prospect of only sporadic and transient intrusions. We do **acknowledge** the ever-present possibility that acondition of probation

, constitutional onIts fact, maybe unconstitutionally applied in a given situation. See, e.g., CohenandGobert, supra. $6.16. Bowever, you donot suggest, andwe shall not speculate, under what specific factual circumstances a

p. 3572Mr.DonR. Stiles - Page 14 (JM-762)

condition of probation lmpermlssibly interferes with the coastitutioual rights 

### of third persons. Suffice it to say that under the information we have been provided and upon 

### ourreview of relevant authorities, we camot conclude that the mere use of such devices compromises the privacy interests of third persons living in a probationer's home.

DueProcess Considerations

The Fourteenth Amendment's guarantee of due process may be relevant in determining whether a probatlouer may object to a particular condition of probation. See Cohen and Gobert, supra, - 95.10.

Thedueprocess clause has been invoked to contest conditions of probation which are vague or interfere with aprobationer's access to courts. Id. Dueprocess and the Texas guarantee of due course of law, Tex.?%st. art. I, 519, require adefendant to receive ahearing before the imposition of conditions which restrict personal freedom and liberty of movement. Warrv. State, 591 S.W.Zd 832 (Tex. Grim. App. 1979). Theconditional freedom afforded probationers maynot be terxiuated without appropriate procedural safeguards. Gagaon v. Scarpelli. 411 U.S. 778 (1973). Whether a probationer may demand certain conditions of probation Is doubtful, however.

In order to support aviolation of due process, a person must establish a deprivation of liberty or property by government action. Greenholtz v. Wtbraska Penal Inmates, 442U.S. 1 (1979). The courts look to the nature of the individual's interest andrequire the person to have alegitimate claim of entitlement to it. Id. In Greenholts. the SupremeCourt concluded that astatute which crzed apossibility of parole provided prison inmates nomorethan amerehope that parole wouldbe obtained. Theparole eligibility provisions of article 42.12 havebeen held to create noprotectlble interest under the dueprocess clause. Moncier v. State. 704S.W.Zd 451 (Tex. App. - Dallas 1986, no pet.). Whether Greenholtx requires probationers 

### tolocate a liberty interest in a statute, administrative rule, or coastitutlonal provision is opento debate. SeeCohenandGobert, supra, 52.27.
- If Greenholts is extended toprobation granting procedures, it is unlikely that apotential probationer will be deemedtohave aliberty interest in receiving particular conditions of probation. Aperson convicted of a crime has no inherent right to probation. See Cohen and Gobert. supra, 14.02. In the parole setting, it has beea held that terms specifying whereaparolee shall live are not subject to a due process challenge. Alonxo v. Rosanski, 808 F.2d 637 (7th Cir. 1986). Article 42.12, section 6(a), of the Cedeof Criminal Procedure neither limits nor requires the court to impose the conditions specified in that section. SeeMacias v. State, supra. Theprimary limitation on the setting ofynditions of probation is that they be reasonably related to the treatment of the accused andthe protection

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of the public. Tams v. State, supsa. Assuming that a potential probationer is auappropriate subject for restrictions onhis freedom of movameatand associations, we do not believe that either article 42.12 or e create an expectation that these restrictions will be imposed in aparticular manner. Since wehave already concluded that electronic monitoring devices are no wrt restrictive than other acceptable conditions, wedonot believe aprobationer mayobject to their use as acondition of his probation.

Yourfirst twoquestions are answered in the negative.

III.

Your third question. concerning the possible requirement that a probationer wear a device attached to his body during the period of probation, raises an issue under the Eighth Amendmentto the United States Constitution, which prohibits the infliction of cruel and unusual punishment. See also Tex. Coast. art. I. 113. Thefew cases raising this issue suggest that conditions which are excessively harsh
or impossible to complywith maybe invalid under this constitutional provision. CohenandGobert. w, 05.10. TheEighth Amendmentis relevant to your third question because It has beta raised to contest the validity of conditions requiring the probationer to wear a particular item of clothing or publicly display a symbol signifying his conviction for aparticular crime.

The Supreme Court has stated that the inquiry into the excessivenass of aparticular punishment involves twoaspects: first, the punishment must

### notinvolve. anunnecessary andwanton infliction of pain, andsecond, It mustnot be grossly out of proportion to the severity of the crima being punished. Greggv. Georgia. 428U.S. 153, 173 (1976). Thesecond aspect is implicit in the requirement that a condition of probation bear areasonable relationship to the treatment of the accused andthe protection of the public andIs. in every case,
a fact question. See Tames v. State, supra. Wewill therefore consider whether a yondition of probation which requires the probationer to wear an electronic monitoring device involves an unnecessary tadwantoninfliction of pain.

In one case, the defendant. on probation as a result of his conviction in a purse-snatching incident, was ordered to wear shoes with leather soles andmetal taps on the heels and toes anytime he left his house. People v. McDowell, 130Cal. Rptr. 839 (Cal. App. 1976). The probationer complained that this condition of probation
was tantamount to requiring him to wear a sign proclaiming he was a thief. The court disagreed with the notion that persons whowore shoes vith metal taps were thought to be thieves by the public and noted that the condition bore a direct relationship to the probationer's budding carter as apurse snatcher. 130Cal. Rptr. at 843. Compliance with the condition would foster rehabilitation andpromote public safety. The sound of the taps, the court concluded, would

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remind the probationer of the fact that hewasonprobation andwould quell auytemptation hemight have during the period of probation to engage In this typo of criminal behavior. Id. Thecourt accepted the substance of the condition, but ordered theyial courtto clarify the condition in light of anambiguity concerning its application. Id.

- A recent Florida case upheld a condition imposed as part of probation for a conviction of driving under the influence of alcohol vhich required the probationer to affix to his personal vehicle a bumper sticker reading, "CONVICTED D.U.I. -- RESTRICTED LICENSE.,, Golds&mitt v. State, 490 So.Zd 123 @la. Dist. Ct. App. 1986). The probationer likened the condition to outmoded forms of publicly suffered punishment such as the stock and pillory. The court observed. however, that "[tlhe mere requirements that a defendant display a 'scarlet letter' as part of his punishment is not accassarily offensive to the Constitution." 490So.Zd at 125.

TheFlorida court believed the rehabilitative effect of probation waybe enhanced if it "inflicts disgrace andcontumely in a dramatic and spectacular manner.,, &, guoting United States v. William Anderson Co., Inc., 698 F.2d 911, 913 (8th Cir. 1982). overruled on other grounds, United States v. Missouri Valley Constr. Co., 741F.2d 1542 (8th Cir. 1984). The court in the William Anderson case also approved behavioral sanctions imposed as conditions of probation, citing their deterrent effect:

Heasures art effective which have the impact of the 'scarlet letter' described by Nathaniel Bawthorne, or the English equivalent of 'wearing papers' in the vicinity of Westminister Rail like
a sandwich-man's sign describing the culprit's transgressions.

698F.2d at 913.

The Golds&mitt court also considered the possibility that inuocent third persons might be punished by the use of the bumper sticker, insofar as such persons might own or operate the probationer's vehicle. Its doubts were removedwhenIt waswadeclear that the message on the sticker would be obscured with a special device whenpersons other than the probationer were using the vehicle. 490 So.Zd at 126a. 5.

Thecourts will not, however, sanction probation conditions which
are excessively harsh anddemeaning. TheGoldschmitt court cited as an example Bians v. State, 343 So.Zd 913 (Fla. Dist. Ct. App. 1977). Bieaz concerned aprobationer whovas placed in ahalfway house with directions that he obey all orders. The rules of the halfway house stated that the probationer was free to leave If any task seemed demeaning. A supervisor at the facility accused the probationer of behaving like a baby and, as a learning experience, ordered him to

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wear diapers over his clothing. Theprobationer balked at the order, choosing to leave the facility instead. His probation was later revoked. Thecourt resolved the case onother grounds but commented:

“[slufflce it to say that a command

. . . that au adult male wear diapers in public would certainly be demaaaiag in the minds of so-called reasonable men.” 343 So.Zd at 915; see Gold&mitt **V.** State, 490So.2d at 126.

It is apparent, then. that aprobation condition which requires the probationer towear aprescribed item will not offend the Eighth Amendmentmerely because it subjects the probationer to somemeasure of public disgrace or embarrassment, provided the condition otherwise
serves the goals of probation. Theelectronic monitoring devices you describe dobear the possibility of exposing the probationer to public obloquy’ particularly those which must be worn on the probationer’s body. We do not believe the potential for such stigmatization, though, readers the employment of such devices an excessive form of punishment. Moreover, we think the use of electronic monitoring devices would enhance the rehabilitation of aprobationer for whoma curfew is a permissible condition. The monitors would not only encourage compliance with curfew, but act as a reminder of the probationer’s conditional freedom. Wecannot foresee the possibility that third persons residing with the probationer will themselves be exposed to cruel andunusual punishment by this use df anelectronic monitoring device, particularly since there appears to be little chance that the device can be applied to persons other than the probationer.

IV.

With respect to your fourth question. a requirement that a monitoring device be attached to atelephone in the probationer’s home (so-called “passive” monitoring systems) does not change our answers to your first two questions. There are four reasons for this conclusion. First, it is clear that the devices you describe are incapable of transmitting anything wre thananelectrical signal or a voice exemplar of the probationer. Second, as we concluded in our discussion of First Amendmentconcerns, we do not believe that a probationer mayobject to the employment of a device which requires himtoprovide voice samples for the purposes ofmonitoring compliance with a condition of probation. Cf. United States v. Franks, supra; Macias v. State, supra. Third, whatever intrusion is occasioned by devices which must be attached to a telephone, it is brief and significantly less intrusive thanother meansavailable for monitoring
a probationer’s progress. Compare Code Grim. Proc. art. 42.12, 06(a)(5). Fourth, the telephone requirement notwithstanding’ we remain convinced that electronic monitoring devices ultimately serve the purposes of the probation process bypromoting the rehabilitation andreformation of the probationer while providing for the protection of the public at large. Wehasten to addthat this discussion should not imply that passive monitoring systems are preferable to “active”

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.

waitoring systems. Such a decision must be made in the first instance by those with administrative authority and not by this office.

V.

To summarize, we conclude that the employment of electronic monitoring devices as a condition of probation does not violate a constitutionally protected interest of aprobationer or athird person residing In the probationer's home, provided the probationer maybe subjected to reasouable limitations on his freedom of wvewnt and associations. The attachment of electronic monitoring devices to either a probationer's body or to a telephone in the probationer's how does wt violate a constitutioually protected interest of the probationer or athird person residing in the probationer's how. We caution that vt are here expressing no judgment regarding the reliability of anyparticular monitoring system and the Implications of that reliability on the probation revocation process. See generally, People v. Ryan, 510N.Y.S.Zd 828, 832 (N.Y. Grim. Ct. 1987) (dicta suggesting that in-depth scientific and technical testimony will be required when the accuracy or reliability of electronic monitoring devices is made an issue in probation revocation proceedings).

SUMI4ARY

Theemploymentof electronic monitoring devices
as a condition of probation does not violate a constitutionally protected interest of a probationer or a third person residing in the probationer's how, provided the probationer may be subjected to reasonable limftations on his freedom of movement and associations. The attachment of electronic monitoring devices to tither a probationer's body or to a telephone in the probationer's how does not violate a constitutioually protected interest of the probationer or a third person residing in the probationer's home.

JIM MATTOX Attorney General of Texas

MARYXRLLRR Executive Assistant Attorney General

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JUDGE ZOLLIESTJ!AKLEy Special Assistant **Attorney** General

RICKGILPIN Chairman, Opinion Committee Prepared byRick Gilpin **Assistant Attorney**  General

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