2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-7-2000

United States v. Baker

Precedential or Non-Precedential:

Docket 97-1977

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Recommended Citation

"United States v. Baker" (2000). 2000 Decisions. Paper 160.

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Filed August 7, 2000 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No: 97-1977 

UNITED STATES OF AMERICA 

v. 

MANNY BAKER, 

a/k/a HENRY HURTT 

Manny Baker, Appellant 

(D.C. Crim. No. 97-cr-00297) 

On Appeal from the United States District Court 

For the Eastern District of Pennsylvania 

(D.C. Crim. No. 97-cr-00297) 

District Judge: Honorable Charles R. Weiner 

Argued: November 5, 1999 

Before: BECKER, Chief Judge, and GREENBERG, 

Circuit Judges, and McLAUGHLIN, District Judge.* 

(Filed: August 7, 2000) 

 HOPE C. LEFEBER, ESQUIRE 

 (ARGUED) 

 1420 Walnut Street, Suite 1000 

 Philadelphia, PA 19102 

Counsel for Appellant 

_________________________________________________________________ 

* Honorable Sean J. McLaughlin, United States District Judge for the 

Western District of Pennsylvania, sitting by designation. 
 MICHAEL R. STILES, ESQUIRE 

 United States Attorney 

 WALTER S. BATTY, JR., ESQUIRE 

 Assistant United States Attorney 

 Chief of Appeals 

 ERIC B. HENSON, ESQUIRE 

 (ARGUED) 

 Assistant United States Attorney 

 615 Chestnut Street, Suite 1250 

 Philadelphia, PA 19106-4476 

 Counsel for Appellee 

OPINION OF THE COURT 

BECKER, Chief Judge. 

Appellant Manny Baker, a Pennsylvania state parolee, 

was arrested while leaving the parole office for violating the 

condition of his parole that required him to refrain from 

driving. Parole officers searched the passenger 

compartment of the borrowed car that Baker had driven to 

the parole office. They also searched the trunk of the car 

and discovered what they believed to be drug 

paraphernalia. On the basis of what they found in the 

trunk, the officers searched Baker's home, where they 

found weapons and 66 grams of heroin. A federal grand 

jury indicted Baker for possessing with intent to deliver a 

controlled substance (heroin) in violation of 21 U.S.C. 

S 841(a)(1), and for violating the statutes prohibiting felons 

from possessing firearms, 18 U.S.C. SS 922(g)(1) & 924(a). 

Before trial, Baker moved to suppress the evidence seized 

from his home, but the District Court denied his 

suppression motion. Baker proceeded to trial, where he was 

convicted of violating SS 841(a)(1) and 922 (g)(1) and 

sentenced to almost twenty years imprisonment on 

weapons and drugs charges. 

This appeal which, as we shall explain below, is now in 

its third discrete phase, raises an important firstimpression question: whether the standard Pennsylvania 

Board of Probation and Parole consent to search form, 

 2 
signed by Baker as a condition of his parole, authorized 

suspicionless searches of his person, property, and

residence. Before reaching this question, we will explain our 

previous conclusions--memorialized in an unrequited

certification to the Pennsylvania Supreme Court--that 

Baker had standing to object to the search of the vehicle, 

which he did not own, and that the parole officers lacked 

reasonable suspicion to search the trunk of that car. These 

holdings are the predicate for the question whether the 

consent to search form authorized suspicionless searches 

because, if Baker lacked standing to object to the search, or 

if the officers had reasonable suspicion, we could dispose of 

the case without construing the consent form. 

The consent to search form provided: 

 I expressly consent to the search of my person, 

 property and residence, without a warrant by agents of 

 the Pennsylvania Board of Probation and Parole. Any 

 items, in possession of which constitutes a violation of 

 the parole/reparole shall be subject to seizure, and 

 may be used as evidence in the parole revocation 

 process. 

If as a matter of Pennsylvania law the standard consent to 

search form implies a requirement that parole officers have 

reasonable suspicion in order to conduct a search of a 

parolee, the evidence against Baker must be suppressed 

and his conviction set aside. Because we conclude that the 

form should be so construed (or more precisely, predict that 

the Supreme Court of Pennsylvania would so construe it), 

the order of the District Court denying Baker's motion to 

suppress will be reversed. 

I. 

In August 1996, Baker drove to the state parole office in 

Philadelphia for a scheduled visit with his parole officer. As 

a condition of his parole, Baker had agreed not to drive 

without a license. During the parole visit, a parole agent 

asked Baker if he had a driver's license, and Baker

responded that he did not. When Baker attempted to drive 

away after his visit, he was arrested by parole officers for 

violating this condition of parole. 

 3 
After Baker was arrested, parole officers searched the 

passenger compartment and the glove compartment of the 

car that Baker had been driving and discovered that the car 

was registered in someone else's name. The officers could 

not figure out how to open the trunk of the car. One of 

them asked Baker, then in custody at the parole office, how 

to open the trunk. Baker explained that the engine must be 

turned on to open the trunk and gave the officer the keys 

to the trunk.1 Once the parole officers got into the trunk, 

they found what they suspected was drug paraphernalia: 

"several screw top glass vials, oils, empty clear plastic 

lunch bags and taller incense bags." The officers then 

conducted a warrantless search of Baker's home, which 

yielded numerous weapons and sixty-six grams of heroin. 

As we have noted, the District Court found that this search 

was justified by the reasonable suspicion that arose from 

the items discovered in the car and denied Baker's motion 

to suppress evidence. This appeal followed. 

In a prior opinion, United States v. Baker, No. 97-1977 

(3d Cir. Jan. 7, 1999), we ordered a limited remand for the 

District Court to consider whether Baker had standing to 

challenge the search of the car and whether there was 

reasonable suspicion to justify the search of the trunk of 

the car. On remand, United States v. Baker, No. 97-00297 

(E.D. Pa. Mar. 17, 1999), the District Court concluded that 

Baker had standing and that the parole officers had

reasonable suspicion to search the trunk of the car. In the 

_________________________________________________________________ 

1. In a letter brief filed after the first stage of this appeal, the 

government 

advanced the following theory of consent for thefirst time: 

 the defendant consented to the search and seizure of his bag from 

 the trunk of the car when he identified the bag as his and 

 instructed the parole agent in how to open the trunk. Scheckloth v. 

 Bustamonte, 412 U.S. 218 (1973) (consent to search must be 

 voluntary, but the government is not obliged to prove that the 

 suspect was warned of any right to refuse consent). 

Appellee's Letter Br., Nov. 27, 1998. As the government did not make 

this argument in the District Court and did not renew it in its brief 

following remand, and as Baker timely objected that the argument had 

been waived in his response to the government's letter brief, see 

Appellant's Response to Appellee's Letter Br., Dec. 1, 1998, we will not 

consider this argument on appeal. 

 4 
wake of the District Court's opinion, the appeal presented 

three questions: (1) whether Baker had standing to 

challenge the search of the car; (2) whether there was 

reasonable suspicion to search the trunk of the car that 

Baker drove to the parole office; and (3) if there was not 

reasonable suspicion, whether the search of the trunk was 

still valid because of the consent form that Baker signed 

upon his release on parole.2 

Following receipt of supplemental briefing and additional 

argument, the panel conferred and concluded that: (1) 

Baker had standing to challenge the search of the car; and 

(2) that the police lacked reasonable suspicion to search the 

trunk of the car. On February 18, 2000, we certified to the 

Pennsylvania Supreme Court (pursuant to Pennsylvania 

Supreme Court Order No. 197, Judicial Administration, 

Docket No. 1, filed Jan. 12, 2000) the remaining--and 

vexing--question whether, under Pennsylvania law, the 

consent form authorized suspicionless searches. 

The Supreme Court did not accept our petition for 

certification, leaving us to determine whether, under that 

Court's opinions in Scott v. Pennsylvania Bd. of Probation & 

Parole, 698 A.2d 32 (Pa. 1997), rev'd on other grounds, 524 

U.S. 357 (1998), and Commonwealth v. Williams , 692 A.2d 

1031 (Pa. 1997), the consent to search form used by the 

Pennsylvania Board of Probation and Parole, as a matter of 

Pennsylvania law, authorizes suspicionless searches or 

implies a condition that any search conducted pursuant to 

the consent form be founded on reasonable suspicion. 

II. 

The threshold question presented by these facts is that of 

standing. Standing to challenge a search requires that the 

individual challenging the search have a reasonable

_________________________________________________________________ 

2. In the first stage of the appeal, Baker also claimed that the District 

Court erred in "failing to recognize its authority to depart from the 

career 

offender status on the grounds that the appellant's criminal history 

status seriously overrepresented his past conduct and significantly 

differed from the heartland." On remand, the District Court clarified that 

it was fully aware of its authority to depart on this ground, and Baker 

makes no argument on this issue at this time. 

 5 
expectation of privacy in the property searched, see Rakas 

v. Illinois, 439 U.S. 128, 143 (1978), and that he manifest 

a subjective expectation of privacy in the property searched, 

see California v. Greenwood, 486 U.S. 35, 39 (1988). 

It is clear that a passenger in a car that he neither owns 

nor leases typically has no standing to challenge a search 

of the car. See Rakas, 439 U.S. 133-34 (holding that there 

is no legitimacy to a defendant's expectations of privacy 

where the area searched is in the control of a third party). 

"Fourth Amendment rights are personal rights, which, like 

some other constitutional rights, may not be vicariously 

asserted." Id. at 133-34 (quoting Alderman v. United States, 

394 U.S. 165, 174 (1969). "A person who is aggrieved by an 

illegal search and seizure only through the introduction of 

damaging evidence secured by a search of a third person's 

premises or property has not had any of his Fourth 

Amendment rights infringed." Id. at 134. 

For these reasons, we have previously suggested that a 

defendant who had stolen a car and used it in a robbery 

would not have standing to object to a search of the car. 

See United States v. Yeager, 448 F.2d 74, 85 (3d Cir. 1971) 

(rejecting challenge to search on basis that "if[the 

defendant's] theories were valid, a stolen car used in a 

robbery could not be searched and objects therein seized by 

the police without a search warrant"). We have never 

considered, however, whether an individual who borrows a 

car and has control over it has a legitimate expectation of 

privacy in it. 

Cases from other circuits suggest that whether the driver 

of a car has the reasonable expectation of privacy necessary 

to show Fourth Amendment standing is a fact-bound 

question dependent on the strength of his interest in the 

car and the nature of his control over it; ownership is not 

necessary. Compare United States v. Cooper, 133 F.3d 

1394, 1398-99 (11th Cir. 1998) (driver of a rental car whose 

contract to rent the car had expired four days before the 

search had a reasonable expectation of privacy in the car 

because he could have extended the contract with a simple 

phone call); United States v. Angulo-Fernandez , 53 F.3d 

1177, 1179 (10th Cir. 1995) (driver who was able to

produce registration papers in the name of the person from 

 6 
whom he claimed to have borrowed the car had standing); 

United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th 

Cir. 1990) (permission from the owner to use a vehicle 

supports privacy expectation therein); United States v. 

Garcia, 897 F.2d 1413, 1417-18 (7th Cir. 1990) (driver 

using vehicle with the permission of an absent owner has 

a reasonable expectation of privacy therein); with United 

States v. Padilla, 111 F.3d 685, 687 (9th Cir. 1997) 

(defendants lacked standing to object to the search of car in 

which they had only a temporary "bailment interest"); 

United States v. Riazco, 91 F.3d 752, 755 (5th Cir. 1996) 

(defendant lacked standing to object to the search of a 

rental car in a case in which his name was not on the 

rental agreement, the rental agreement had expired, and 

the defendant did not have permission to drive the car from 

the person who rented the car); United States v. Wellons, 32 

F.3d 117, 119 (4th Cir. 1994) (driver of a rental car did not 

have standing to contest the search thereof because he was 

not listed as an authorized driver on the rental contract); 

United States v. Ponce, 947 F.2d 646, 649 (2d Cir. 1991) 

(defendant must show legitimate basis for possessing a car, 

such as permission from the car owner, to have standing); 

United States v. Sanchez, 943 F.2d 110, 113-14 (1st Cir. 

1991) (because defendant failed either to show that he had 

the owner's permission to use the car or to demonstrate 

prior use or control of the car, the circumstances tipped in 

favor of denying the motion to suppress). 

Baker is asserting his own, not a third party's, 

expectation of privacy. He came alone in the car to the 

parole office. Although he did not own the car, he had 

substantial control over it insofar as he had borrowed it 

from a friend and had been driving it for four to six weeks. 

He carried the keys to the car with him into the parole 

office. Although the defendant and his associates were 

somewhat vague about who owned the car, there is no

evidence in the record that the car was stolen or that Baker 

knowingly possessed a stolen car. All of these factors lead 

to the conclusion that Baker had a reasonable expectation 

of privacy in the car. In Angulo-Fernandez, 53 F.3d at 1179, 

the Court of Appeals for the Tenth Circuit rejected the 

argument that the defendant lacked standing because the 

registered owner, from whom a defendant claimed to have 

 7 
borrowed the car, denied ownership. The court held that 

"[t]he officer's testimony established that Mr. AnguloFernandez had claimed to have borrowed the car from the 

rightful owner and had produced a registration bearing the 

owner's name. Although such evidence may not be 

determinative of the Defendant's right to possess the car, 

absent evidence to the contrary, it is sufficient to meet his 

burden of demonstrating Fourth Amendment standing." Id. 

Similarly, in Garcia, 897 F.2d at 1418, the Court of Appeals 

for the Seventh Circuit held that a driver who borrowed a 

car (but was unable to provide the last name of the owner) 

had standing to object to the search because "[i]f an 

individual has the owner's permission to use property, 

society surely recognizes this as reasonable." (citation 

omitted). 

We conclude that a discrepancy between an individual's 

statement regarding the owner of the car he is driving, and 

the identity of the owner of the car as reflected by the title 

and registration, is not enough, by itself, to destroy the 

driver's reasonable expectation of privacy when there is 

clear evidence of continuing possession and control, as well 

as no evidence that the driver obtained the car 

illegitimately. Under the circumstances, therefore, Baker 

had the requisite legitimate expectation of privacy to 

support standing for Fourth Amendment purposes. 

III. 

Given that Baker has standing to challenge the search, 

the next question is whether the District Court erred in 

concluding that the parole agent had reasonable suspicion 

to search the trunk of the car. Though officers may lawfully 

search the passenger compartment of the car incident to 

arrest, see New York v. Belton, 453 U.S. 454, 460 (1981) 

(holding that, when a policeman has made a lawful 

custodial arrest of the occupant of an automobile, he may, 

as a contemporaneous incident of that arrest, search the 

passenger compartment of that automobile), such a search 

incident to arrest does not extend to the trunk of the car, 

see id. at 460-61& n.4. Thus, in order for the search of the 

trunk to comport with the Fourth Amendment, it had to 

 8 
have been supported by the level of suspicion required 

under the Fourth Amendment. 

Under normal circumstances, the Fourth Amendment 

requires government officials to have both probable cause 

and a warrant to conduct a search. In the case of parolees, 

however, the requisite level of suspicion is reduced and a 

warrant is not required. In Griffin v. Wisconsin, 483 U.S. 

868, 871-72 (1987), a Wisconsin statute authorized 

probation officers to conduct warrantless searches of 

probationers' homes when there were "reasonable grounds" 

to believe that contraband would be found there. The Court 

found that the operation of a state's probation system 

presented "special needs," beyond the need for law 

enforcement, justifying an exception to the warrant and 

probable cause requirements of the Fourth Amendment. 

See id. at 873-74. The Court noted: 

 To a greater or lesser degree, it is always true of 

 probationers (as we have said it to be true of parolees) 

 that they do not enjoy "the absolute liberty to which 

 every citizen is entitled, but only . . . conditional liberty 

 properly dependent on observance of special 

 [probation] restrictions." 

Id. at 874 (quoting Morrissey v. Brewer , 408 U.S. 471, 480 

(1972)) (omission and alterations in original). The Court 

went on to hold that the special needs of the probation 

system, including the need to supervise probationers, see 

id. at 875, justified a lower standard for searches of a 

probationer's property, see id. at 878. Specifically, the 

Court held that a search could be conducted on the basis 

of such "reasonable grounds" as information indicating that 

there might be weapons in a probationer's home. See id. at 

880. 

In United States v. Hill, 967 F.2d 902, 909 (3d Cir. 1992), 

we extended the holding in Griffin to parolees and 

concluded that a parolee's car or home can be searched on 

the basis of reasonable suspicion alone, even in the 

absence of an authorizing state statute such as that in 

Griffin. In Hill, the defendant was arrested for violating 

parole. His apartment was then searched and two guns 

were seized. See 967 F.2d at 904-05. We affirmed the 

 9 
district court's denial of Hill's motion to suppress the guns, 

concluding that "parole may be an even more severe 

restriction on liberty because the parolee has already been 

adjudged in need of incarceration." Id. at 909. Quoting 

Latta v. Fitzharris, 521 F.2d 246, 249 (9th Cir. 1975), we 

noted that "parole authorities have a `special and unique 

interest in invading the privacy of parolees under their 

supervision.' " Hill, 967 F.2d at 910."[I]t is reasonable to 

allow a parole officer to search whenever he reasonably 

believes that it is necessary to perform his duties. The 

decision to search must be based on `specific facts,' but the 

officer need not possess probable cause." See id.; see also 

Terry v. Ohio, 392 U.S. 1, 21 (1968) (holding that 

reasonable suspicion requires "specific and articulable facts 

which, taken together with rational inferences from those 

facts, reasonably warrant the intrusion" of a warrantless 

search). 

In Hill, the officers acted on a report from the parolee's 

estranged wife that he had committed several parole

violations, including keeping drugs and guns in the home 

that they jointly owned. See 967 F.2d at 904, 911. We 

concluded that these facts were specific enough to give rise 

to reasonable suspicion. We also rejected Hill's argument 

that, once he was arrested, any special need justifying a 

lower standard vanished, concluding that "the parole 

agents' `interest in inspecting [Hill's] place of residence did 

not terminate upon his arrest; if anything, it intensified.' " 

Id. at 911 (quoting Latta, 521 F.2d at 252); see also United 

States v. Jones, 152 F.2d 680, 686 (7th Cir. 1998) (rejecting 

the argument that "the State's special supervisory need is 

diminished when a parolee is in custody"). 

Following remand in this case, the District Court 

concluded that the search of the trunk was lawful because 

(1) Baker had no driver's license (which was a violation of 

his parole); (2) Baker could not produce documentation 

demonstrating that he owned the car; and (3) the parole 

officer might reasonably have concluded that Baker"might 

have been in further violation of his parole (the car might 

have been stolen) or that the trunk of the car might contain 

evidence of a further violation of his parole such as drug 

paraphernalia." 

 10 
We disagree that there was justification to search the 

trunk. The parole officers' actions were not based on 

"specific facts" giving rise to suspicion that there would be 

some evidence of a further violation of parole in the trunk. 

In Hill, the parole officers acted pursuant to information 

regarding specific allegations of parole violations. See Hill, 

967 F.2d at 911. Here, by contrast, there were no similar 

allegations. There is no evidence in the record that the 

parole agents who searched Baker's trunk had yet 

discovered the inconsistencies between the title/registration 

and Baker's statements regarding the ownership of the car 

when they searched the trunk.3 Even if they had, we do not 

think that a mere suspicion that a car might be stolen 

justifies a search of the trunk of that car: There is little 

reason to think evidence of the car's rightful owner would 

be found in the trunk.4 

Similarly, neither Baker's violation of his parole by 

driving a vehicle or his failure to document that he owned 

the vehicle can give rise to a reasonable suspicion that he 

was committing other, unspecified, unrelated parole

violations--the evidence of which might be found in the 

trunk. Cf. Knowles v. Iowa, 525 U.S. 113, 118 (1998) 

("Once [the defendant] was stopped for speeding and issued 

a citation, all the evidence necessary to prosecute that 

offense had been obtained. No further evidence of excessive 

speed was going to be found either on the person of the 

offender or in the passenger compartment of the car." ). 

_________________________________________________________________ 

3. The District Court found that, before the parole agent searched the 

trunk, he knew that "the defendant could not produce documents 

demonstrating that he owned the car." However, Agent Knorr testified 

that the relevant portions of the conversation regarding the ownership of 

the car occurred after the agents searched the trunk. See App. at 28a 

("Q: After you searched the trunk you returned to your office, is that 

right? A: Yes. Q: And when you went back inside did you have a 

conversation with anyone? A: I asked Mr. Baker who owned the vehicle 

. . ."). 

4. The officer testified that, when he conducted a title search, he 

learned 

that the car was not listed as a stolen vehicle. See App. at 37a ("Q: 

There 

is no evidence at all that the vehicle was stolen, correct? A: When I ran 

it it was not on the computer listed as stolen but the name did not 

match the person who was in possession of it."). 

 11 
Reasonable suspicion requires more specificity than these 

parole officers had in this case. Thus, we are satisfied that 

the search of the trunk was not supported by reasonable 

suspicion. The evidence procured in the search of the trunk 

and the house must therefore be suppressed as the fruits 

of an illegal search unless the consent form provided a 

basis for the search. 

IV. 

The parties agree that the proper construction of the 

consent form that Baker signed turns on two cases decided 

by the Pennsylvania Supreme Court, Commonwealth v. 

Williams, 692 A.2d 1031 (Pa. 1997), and Scott v. 

Pennsylvania Bd. of Probation & Parole, 698 A.2d 32 (Pa. 

1997), rev'd on other grounds, 524 U.S. 357 (1998). Baker 

contends that under these precedents the consent form 

that he signed must be construed as a matter of 

Pennsylvania law to imply a condition that the parole 

officers have reasonable suspicion to justify any search of 

his person, property, or residence. If Baker is correct, the 

evidence procured in the search of the house must be 

suppressed because the consent form he signed did not 

authorize searches in the absence of reasonable suspicion. 

The United States disagrees, contending that the 

Pennsylvania Supreme Court's resolution of Williams and 

Scott rested on federal constitutional grounds rather than 

the proper construction of the Pennsylvania consent form. 

More specifically, the government submits that these cases 

hold that an unqualified consent to search executed as a 

condition of parole can justify a search consistent with the 

Fourth Amendment only where reasonable suspicion is

present, but do not decide whether--under Pennsylvania 

law--the form should be construed to provide unqualified 

consent to search. Since we are not bound by 

Pennsylvania's interpretation of the Fourth Amendment, 

this reading of Williams and Scott would leave us free to 

construe the forms anew. 

We agree with the government that the Pennsylvania 

Supreme Court has never directly construed the form as a 

matter of Pennsylvania law. Nevertheless, as we shall 

 12 
explain, although we believe that it is arguable that the 

form waives the reasonable suspicion requirement, Williams 

and Scott strongly suggest that Pennsylvania would 

construe the form to preserve the reasonable suspicion 

requirement. 

In Williams, the Pennsylvania Supreme Court reviewed a 

parolee's claim that a search conducted pursuant to a 

consent form identical to the one at issue here violated his 

Fourth Amendment rights.5 The Court analyzed the 

conflicting interests involved in the case, the relevant 

precedents (state and federal, including Griffin), and the 

approaches taken by other states, and adopted the 

approach that: 

 the parolee's signing of a parole agreement giving his 

 parole officer permission to conduct a warrantless 

 search does not mean either that the parole officer can 

 conduct a search at any time and for any reason or 

 that the parolee relinquishes his Fourth Amendment 

 right to be free from unreasonable searches. Rather, 

 the parolee's signature acts as acknowledgment that 

 the parole officer has a right to conduct reasonable 

 searches of his residence listed on the parole 

 agreement without a warrant. 

Id. at 1036. 

Significantly, the approach adopted requires a court to 

conduct what amounts to a Fourth Amendment analysis

when a parole officer conducts a search pursuant to the 

consent form: 

 A search [conducted pursuant to the form] will be 

 deemed reasonable if the totality of the evidence 

_________________________________________________________________ 

5. In Commonwealth v. Pickron, 634 A.2d 1093, 1098 (Pa. 1993), the 

Pennsylvania Supreme Court recognized that a parolee has limited 

Fourth Amendment rights, but held that the Fourth Amendment 

prohibited "the warrantless search of a probationer or a parolee's 

residence based upon reasonable suspicion without the consent of the 

owner or a statutory or regulatory framework governing this kind of 

search." Pickron specifically reserved the question whether an agreement 

signed by a parolee giving consent to a warrantless search could survive 

constitutional scrutiny. See id. at 1098 n.6; Williams, 692 A.2d at 1035. 

 13 
 demonstrates: (1) that the parole officer had a 

 reasonable suspicion that the parolee had committed a 

 parole violation, and (2) that the search was reasonably 

 related to the parole officer's duty. 

Id. (citation omitted). As such, the Williams case seems to 

be based on the Pennsylvania Supreme Court's 

interpretation of the Fourth Amendment (especially insofar 

as it purports to adopt the "middle ground" approach 

adopted by other states, which approach seems simply to 

require that parolees acknowledge that parole officers can 

conduct reasonable searches without a warrant, see id. at 

1037). Indeed, the Court concluded that this approach 

"comports with the Fourth Amendment protection afforded 

to parolees by the United States Supreme Court in Griffin, 

supra, and in our sister states." Id. Nevertheless, the Court 

in Williams concluded that the parole agents had 

reasonable suspicion to search the defendant, so it did not 

have to decide whether the form authorized suspicionless 

searches. See id. at 1037-38. 

Four months later, in Scott v. Pennsylvania Bd. of 

Probation & Parole, 698 A.2d 32 (1997), rev'd on other 

grounds, 524 U.S. 357 (1998), the same Court squarely 

faced the question whether a parolee is entitled to the 

protections of the Fourth Amendment in his parole 

revocation hearing when he signed a consent to search 

form as a condition of his parole. The Scott Court construed 

its decision in Williams as a decision balancing the 

interests of the government and parolees. The Court noted 

that, "[i]n deciding what effect the signing of the consent 

provision had on Williams's limited rights under the Fourth 

Amendment, we `balanc[ed] the governmental interests 

involved in granting parole and supervising parolees with 

that interest of the private individual, i.e., the parolee, 

which has been affected by the governmental action.' " 

Scott, 698 A.2d at 35 (1997) (quoting Williams, 692 A.2d at 

1035). This passage suggests that the Pennsylvania 

Supreme Court read its earlier decision as having been 

based on weighing of the Fourth Amendment interests

 14 
involved and not the meaning of the form as a matter of 

Pennsylvania law.6 

_________________________________________________________________ 

6. When Scott was reviewed by the United States Supreme Court, that 

Court noted the contention "that the Pennsylvania Supreme Court's 

opinion was at least ambiguous as to whether it relied on state or federal 

law to determine the extent of respondent's consent . . . ." Scott v. 

Pennsylvania Bd. of Probation & Parole, 524 U.S. 357, 362 n.3 (1998). 

The basis for the Pennsylvania Supreme Court decision had been 

debated during oral argument before the Court: 

 QUESTION: I'm not sure you're right in saying that the Pennsylvania 

 supreme court based its interpretation of the consent form on its 

 reading of the Fourth Amendment. I thought they might have just 

 based it on an interpretation of Pennsylvania law. 

 GENERAL FISHER: Mr. Chief Justice, we argue very strongly that 

 they did, in fact, interpret it based on their reading of the 

Fourth 

 Amendment, and that is where we disagree. We believe that a search 

 of a parolee's residence may be without suspicion, or a 

suspicionless 

 search. 

 QUESTION: Well, you--suppose this consent form were redrafted to 

 make clear that the person paroled is consenting to a search 

 without a warrant and to a search without any suspicion whatever. 

 Suppose it were drafted that way. Now, what do you think the 

 Pennsylvania courts would say to that? 

 GENERAL FISHER: It's--we believe that the Pennsylvania courts 

 would say, based on what they said in this case, that we could not 

 have that kind of consent form, because we believe they have-- 

 QUESTION:--the Fourth Amendment? 

 GENERAL FISHER: Because the Fourth Amendment requires 

 reasonable suspicion. 

 QUESTION: It just wasn't clear to me whether that's what they said, 

 because they could have meant the consent form just didn't cover 

it. 

 GENERAL FISHER: No, Justice O'Connor, we think they said very 

 clearly that the Fourth Amendment requires reasonable suspicion. 

Scott v. Pennsylvania Bd. of Probation & Parole, Transcript of Oral 

Argument, 1998 WL 154625 at *5-6 (Mar. 30, 1998). 

While this colloquy hardly resolves the issue, we set it forth for 
background and for ease of reference when this issue comes before the 

Pennsylvania Supreme Court, as it doubtless some day will. 

 15 
At the same time, Scott notes that "applying Williams to 

the instant case, we hold that Appellee has a Fourth 

Amendment right against unreasonable searches and 

seizures that is unaffected by his signing of the consent to 

search provision." 698 A.2d at 36. Although the Court does 

not explain why (i.e., whether it is interpreting Pennsylvania 

law), in our view this statement suggests that signing the 

form does not effect a waiver of any of the signatory's rights 

under the Fourth Amendment. 

The problem we have in construing the Williams and

Scott decisions stems from the fact that, instead of engaging 

in a two-stage analysis, asking first whether the form as a 

matter of Pennsylvania law provided for suspicionless 

searches or required reasonable suspicion, and second 

whether the form as construed under Pennsylvania law 

comported with the requirements of the Fourth 

Amendment, the Pennsylvania Supreme Court did not go 

beyond reasoning that under the Fourth Amendment a 

search of a parolee required reasonable suspicion, and it 

construed the form in light of that requirement. The Court 

did not independently analyze the meaning of the form as 

a matter of Pennsylvania law.7 Accordingly, we need to 

decide whether, as a matter of Pennsylvania law, Baker 

consented to a suspicionless search of his person and 

property by signing the form. 

By its terms, there are (at least) two possible readings of 

the Pennsylvania standard form. First, it can be understood 

to authorize suspicionless searches, because there is no 

caveat modifying the phrase "I expressly consent to the 

search of my person, property and residence" that would 

suggest that the background rule of reasonable suspicion 

applies. This interpretation does make sense of the plain 

language of the consent form and the common 

understanding of what it means to consent to a search in 

the Fourth Amendment context. Cf. Florida v. Jimeno, 500 

_________________________________________________________________ 

7. Pennsylvania follows the judicial policy that courts should not reach 

constitutional questions if they can decide a case upon nonconstitutional grounds. See Gartner v. Commonweath, 469 A.2d 697, 700 

(Pa. 1983). However, neither the Williams nor the Scott Court explicitly 

invoked this principle as a basis for its decision.

 16 
U.S. 248, 251 (1991) ("The standard for measuring the 

scope of a suspect's consent under the Fourth Amendment 

is that of `objective' reasonableness--what would the typical 

reasonable person have understood by the exchange 

between the officer and the suspect?") (citations omitted); 

United States v. Kim, 27 F.3d 947, 957 (3d Cir. 1994) ("Of 

course [the defendant] could have limited his consent to 

certain items, but he had the burden to express that 

limitation.") (citing Jimeno, 500 U.S. at 252). If 

Pennsylvania had adopted this interpretation, however, the 

reason for the extended discussion of reasonable suspicion 

in Williams and Scott would be unclear. 

The second construction of the form is that it waives only 

the warrant requirement. On this reading, the phrase"I 

expressly consent to the search of my person, property and 

residence, without a warrant" is limited in the sense that it 

waives only the warrant requirement and leaves the 

reasonable suspicion requirement in place. The difficulty 

with this position is that Griffin (which we have applied to 

searches of parolees) holds not only that reasonable 

suspicion (rather than probable cause) is the requisite level 

of suspicion for searches of probationers, but also that no 

warrant is required when conducting such searches. See 

Griffin, 483 U.S. at 876-77 (holding that the special needs 

of the probation system made the warrant requirement 

impracticable); see also Hill, 967 F.2d at 910 (holding that 

in light of the special needs of a parole system, the warrant 

requirement does not apply to searches of parolees). 

On this interpretation, the consent to search form has no 

effect--it simply states the legal standard for searching a 

parolee that would apply even in the absence of the form. 

It is hard to understand why Pennsylvania would feel the 

need to require parolees to consent affirmatively to the 

background rule of warrantless searches, but not to

consent affirmatively to the background rule of reasonable 

suspicion, if the form was intended simply to set forth the 

governing standards to search parolees. Nevertheless, 

Williams characterizes the parole agreement as an 

"acknowledg[ment] that agents of the Parole Board could 

conduct a warrantless search," id. at 1037, which supports 

the view that the consent form effects no waiver and serves 

only as an acknowledgment of the background rule. 

 17 
In these circumstances, it is our job to predict what 

Pennsylvania would do if it were to construe the form solely 

as a matter of Pennsylvania law. Based on our reading of 

Pickron, 634 A.2d 1093 (Pa. 1993), and Williams, coupled 

with the tenor of the discussion in Scott, we conclude that 

Pennsylvania would construe the consent form to include 

an implicit requirement that any search be based on

reasonable suspicion. We begin with Pickron, in which the 

Court decided that, in the absence of consent or a statutory 

or regulatory scheme authorizing suspicionless searches of 

parolees, the Fourth Amendment required reasonable 

suspicion to search parolees. That decision is consistent 

with Griffin and Hill. Then in Williams, the Court noted 

that, following Pickron, the Pennsylvania General Assembly 

enacted two statutory provisions authorizing searches of a 

parolee by state and county parole officers based on 

reasonable suspicion. See Williams, 692 A.2d at 1035 n.9 

(referring to 61 PA. Cons. Stat. SS 331.27a, 331.27b). As 

such, Pennsylvania's statutory scheme adheres to the 

reasonable suspicion rule. 

More significantly, nothing in Scott suggests that the 

consent form authorizes the suspicionless searches not 

provided for by the statutory scheme, and at least one 

statement suggests that the consent form is similarly 

limited. As we have noted, Scott states that"applying 

Williams to the instant case, we hold that Appellee has a 

Fourth Amendment right against unreasonable searches 

and seizures that is unaffected by his signing of the 

consent to search provision." 698 A.2d at 36. But if the 

form waived the reasonable suspicion requirement, it would 

affect a parolee's substantive rights. 

When engaging in a predictive exercise, as we do here, we 

sometimes must not only read the lines but also between 

the lines, as it were. The Pennsylvania Supreme Court's 

consistent application of the Fourth Amendment 

reasonableness inquiry to the consent form in Williams and 

Scott, and its repeatedly expressed concern with balancing 

the interests of the state with the privacy interests of the 

parolee, also suggest to us that that Court does not believe 

that the form authorizes suspicionless searches. Rather, 

the analysis engaged in, which focuses on the 

 18 
reasonableness of the search, would be unnecessary if the 

form authorized a search not otherwise permitted under the 

Fourth Amendment. See, e.g., Williams , 692 A.2d at 1036 

("A search will be deemed reasonable if the totality of the 

evidence demonstrates: (1) that the parole officer has a 

reasonable suspicion that the parolee had committed a 

parole violation, and (2) that the search was reasonably 

related to the parole officer's duty.") (citations omitted). 

Accordingly, we conclude that Pennsylvania would construe 

the standard form as requiring reasonable suspicion to 

conduct a search, and thus that the consent form that 

Baker signed did not authorize suspicionless searches of 

his person, property, or residence. 

V. 

For the foregoing reasons, we conclude that the search of 

the trunk was not founded on reasonable suspicion, and 

that the consent form did not authorize a suspicionless 

search thereof. The fruits of the search, including the 

evidence found in the search of Baker's house, must

therefore be suppressed. See Wong Sun v. United States, 

371 U.S. 471 (1963). The order of the District Court 

denying Baker's motion to suppress will be reversed and 

the case remanded to the District Court for further action 

consistent with this opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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