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. e du/thir dc ir c uit_2000/160Filed 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 Distr ict Judge for the Western District of Pennsylvania, sitting by design ation.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 vi olating the condition of his parole that required him to refrai n from driving. Parole officers searched the passenger compartment of the borrowed car that Baker had driv en 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 t he trunk, the officers searched Baker's home, where th ey found weapons and 66 grams of heroin. A federal gra nd jury indicted Baker for possessing with intent to d eliver a controlled substance (heroin) in violation of 21 U. S.C. S 841(a)(1), and for violating the statutes prohibi ting 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 no w in its third discrete phase, raises an important first impression question: whether the standard Pennsylva nia

Board of Probation and Parole consent to search for m,

2signed by Baker as a condition of his parole, autho rized

suspicionless searches of his person, property, and residence. Before reaching this question, we will e xplain our previous conclusions--memorialized in an unrequited certification to the Pennsylvania Supreme Court--th at Baker had standing to object to the search of the v ehicle, which he did not own, and that the parole officers lacked reasonable suspicion to search the trunk of that ca r. These holdings are the predicate for the question whether the consent to search form authorized suspicionless sea rches 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 pers on, property and residence, without a warrant by agents of the Pennsylvania Board of Probation and Paro le. Any items, in possession of which constitutes a violation of the parole/reparole shall be subject to seiz ure, and may be used as evidence in the parole revoca tion

process.

If as a matter of Pennsylvania law the standard con sent to search form implies a requirement that parole offic ers have reasonable suspicion in order to conduct a search o f a parolee, the evidence against Baker must be suppres sed
and his conviction set aside. Because we conclude t hat the form should be so construed (or more precisely, pre dict that the Supreme Court of Pennsylvania would so construe it), the order of the District Court denying Baker's mot ion to suppress will be reversed.

I.

In August 1996, Baker drove to the state parole off ice 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 parol e 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 off icers for violating this condition of parole.

3After 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. On e of them asked Baker, then in custody at the parole off ice, how to open the trunk. Baker explained that the engine must be turned on to open the trunk and gave the officer th e keys to the trunk.1 Once the parole officers got into th e trunk, they found what they suspected was drug paraphernal ia: "several screw top glass vials, oils, empty clear p lastic lunch bags and taller incense bags." The officers t hen conducted a warrantless search of Baker's home, whi ch yielded numerous weapons and sixty-six grams of her oin. As we have noted, the District Court found that thi s search was justified by the reasonable suspicion that aros e 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 standi ng to challenge the search of the car and whether there w as reasonable suspicion to justify the search of the t runk of the car. On remand, United States v. Baker, No. 97- 00297 (E.D. Pa. Mar. 17, 1999), the District Court conclu ded 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 thefir st time:

the defendant consented to the search and se izure 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 t he 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 co nsent).

Appellee's Letter Br., Nov. 27, 1998. As the govern ment did not make this argument in the District Court and did not ren ew it in its brief following remand, and as Baker timely objected that the argument had been waived in his response to the government's let ter brief, see Appellant's Response to Appellee's Letter Br., Dec. 1, 1998, we will not consider this argument on appeal.

4wake of the District Court's opinion, the appeal pr esented

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 tru nk was
still valid because of the consent form that Baker signed upon his release on parole.2

Following receipt of supplemental briefing and addi tional argument, the panel conferred and concluded that: ( 1) Baker had standing to challenge the search of the c ar; and (2) that the police lacked reasonable suspicion to search the trunk of the car. On February 18, 2000, we certifie d to the Pennsylvania Supreme Court (pursuant to Pennsylvani a Supreme Court Order No. 197, Judicial Administratio n, Docket No. 1, filed Jan. 12, 2000) the remaining--a nd vexing--question whether, under Pennsylvania law, t he consent form authorized suspicionless searches.

The Supreme Court did not accept our petition for certification, leaving us to determine whether, und er that Court's opinions in Scott v. Pennsylvania Bd. of Pr obation & Parole, 698 A.2d 32 (Pa. 1997), rev'd on other grou nds, 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 ma tter of Pennsylvania law, authorizes suspicionless searches or implies a condition that any search conducted pursu ant 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 t hat the individual challenging the search have a reasonable

___________________________________________________ ______________

2. In the first stage of the appeal, Baker also cla imed 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 a nd significantly differed from the heartland." On remand, the Distri ct Court clarified that it was fully aware of its authority to depart on th is ground, and Baker makes no argument on this issue at this time.

5expectation of privacy in the property searched, se e 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 neith er owns nor leases typically has no standing to challenge a search of the car. See Rakas, 439 U.S. 133-34 (holding tha t there is no legitimacy to a defendant's expectations of p rivacy

where the area searched is in the control of a thir d party). "Fourth Amendment rights are personal rights, which , like some other constitutional rights, may not be vicari ously asserted." Id. at 133-34 (quoting Alderman v. Unite d States, 394 U.S. 165, 174 (1969). "A person who is aggrieve d by an illegal search and seizure only through the introdu ction of damaging evidence secured by a search of a third pe rson's premises or property has not had any of his Fourth Amendment rights infringed." Id. at 134.

For these reasons, we have previously suggested tha t a
defendant who had stolen a car and used it in a rob bery would not have standing to object to a search of th e car. See United States v. Yeager, 448 F.2d 74, 85 (3d Ci r. 1971) (rejecting challenge to search on basis that "if[th e defendant's] theories were valid, a stolen car used in a robbery could not be searched and objects therein s eized by the police without a search warrant"). We have neve r considered, however, whether an individual who borr ows a car and has control over it has a legitimate expect ation 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; ownershi p is not necessary. Compare United States v. Cooper, 133 F.3 d 1394, 1398-99 (11th Cir. 1998) (driver of a rental car whose contract to rent the car had expired four days befo re the search had a reasonable expectation of privacy in t he 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 pers on from

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

United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir. 1990) (permission from the owner to use a vehi cle supports privacy expectation therein); United State s v. Garcia, 897 F.2d 1413, 1417-18 (7th Cir. 1990) (dri ver using vehicle with the permission of an absent owne r 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 t he 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. We llons, 32 F.3d 117, 119 (4th Cir. 1994) (driver of a rental c ar did not have standing to contest the search thereof because he was
not listed as an authorized driver on the rental co ntract); United States v. Ponce, 947 F.2d 646, 649 (2d Cir. 1991) (defendant must show legitimate basis for possessin g a car, such as permission from the car owner, to have stan ding); 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 demonst rate 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 borro wed it from a friend and had been driving it for four to s ix weeks. He carried the keys to the car with him into the pa role office. Although the defendant and his associates w ere somewhat vague about who owned the car, there is no

evidence in the record that the car was stolen or t hat Baker knowingly possessed a stolen car. All of these fact ors lead to the conclusion that Baker had a reasonable expec tation 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

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

"[t]he officer's testimony established that Mr. Ang uloFernandez had claimed to have borrowed the car from the rightful owner and had produced a registration bear ing the owner's name. Although such evidence may not be determinative of the Defendant's right to possess t he car, absent evidence to the contrary, it is sufficient t o meet his burden of demonstrating Fourth Amendment standing." Id. Similarly, in Garcia, 897 F.2d at 1418, the Court o f Appeals
for the Seventh Circuit held that a driver who borr owed 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 proper ty, society surely recognizes this as reasonable." (cit ation omitted).

We conclude that a discrepancy between an individua l's statement regarding the owner of the car he is driv ing, and the identity of the owner of the car as reflected b y the title and registration, is not enough, by itself, to dest roy the driver's reasonable expectation of privacy when the re 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 sear ch, the next question is whether the District Court err ed in concluding that the parole agent had reasonable sus picion to search the trunk of the car. Though officers may lawfully search the passenger compartment of the car inciden t 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, searc h the passenger compartment of that automobile), such a s earch
incident to arrest does not extend to the trunk of the car, see id. at 460-61& n.4. Thus, in order for the sear ch of the trunk to comport with the Fourth Amendment, it had to

8have been supported by the level of suspicion requi red

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 p arolees, however, the requisite level of suspicion is reduce d and a warrant is not required. In Griffin v. Wisconsin, 4 83 U.S. 868, 871-72 (1987), a Wisconsin statute authorized probation officers to conduct warrantless searches of probationers' homes when there were "reasonable gro unds"
to believe that contraband would be found there. Th e Court found that the operation of a state's probation sys tem 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 . . . co nditional 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 proba tion system, including the need to supervise probationer s, see id. at 875, justified a lower standard for searches of a probationer's property, see id. at 878. Specificall y, the

Court held that a search could be conducted on the basis of such "reasonable grounds" as information indicat ing 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 searc hed on the basis of reasonable suspicion alone, even in th e absence of an authorizing state statute such as tha t in Griffin. In Hill, the defendant was arrested for vi olating parole. His apartment was then searched and two gun s were seized. See 967 F.2d at 904-05. We affirmed th e

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

concluding that "parole may be an even more severe restriction on liberty because the parolee has alre ady been adjudged in need of incarceration." Id. at 909. Quo ting Latta v. Fitzharris, 521 F.2d 246, 249 (9th Cir. 19 75), 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 reas onable to allow a parole officer to search whenever he reason ably 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 articul able facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion" of a warra ntless search).

In Hill, the officers acted on a report from the pa rolee'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 ar gument that, once he was arrested, any special need justif ying a lower standard vanished, concluding that "the parol e agents' `interest in inspecting [Hill's] place of r esidence did not terminate upon his arrest; if anything, it inte nsified.' " Id. at 911 (quoting Latta, 521 F.2d at 252); see al so 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 b ecause (1) Baker had no driver's license (which was a viol ation of his parole); (2) Baker could not produce documentat ion demonstrating that he owned the car; and (3) the pa role officer might reasonably have concluded that Baker" might have been in further violation of his parole (the c ar might have been stolen) or that the trunk of the car migh t contain evidence of a further violation of his parole such as drug paraphernalia."

10We disagree that there was justification to search the

trunk. The parole officers' actions were not based on "specific facts" giving rise to suspicion that ther e would be some evidence of a further violation of parole in t he trunk. In Hill, the parole officers acted pursuant to info rmation regarding specific allegations of parole violations . See Hill, 967 F.2d at 911. Here, by contrast, there were no s imilar allegations. There is no evidence in the record tha t the parole agents who searched Baker's trunk had yet discovered the inconsistencies between the title/re gistration and Baker's statements regarding the ownership of t he car when they searched the trunk.3 Even if they had, we do not think that a mere suspicion that a car might be sto len justifies a search of the trunk of that car: There is little reason to think evidence of the car's rightful owne r 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 h e 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 e xcessive 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 produc e documents demonstrating that he owned the car." However, Agen t Knorr testified that the relevant portions of the conversation rega rding the ownership of the car occurred after the agents searched the trun k. See App. at 28a ("Q: After you searched the trunk you returned to y our 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. Se e 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.").

11Reasonable suspicion requires more specificity than these

parole officers had in this case. Thus, we are sati sfied that the search of the trunk was not supported by reason able suspicion. The evidence procured in the search of t he trunk and the house must therefore be suppressed as the f ruits of an illegal search unless the consent form provid ed a
basis for the search.

IV.

The parties agree that the proper construction of t he consent form that Baker signed turns on two cases d ecided 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 fo rm that he signed must be construed as a matter of Pennsylvania law to imply a condition that the paro le officers have reasonable suspicion to justify any s earch of his person, property, or residence. If Baker is cor rect, the evidence procured in the search of the house must b e suppressed because the consent form he signed did n ot
authorize searches in the absence of reasonable sus picion.

The United States disagrees, contending that the Pennsylvania Supreme Court's resolution of Williams and Scott rested on federal constitutional grounds rath er than the proper construction of the Pennsylvania consent form. More specifically, the government submits that thes e 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 Pennsylva nia law--the form should be construed to provide unqual ified consent to search. Since we are not bound by Pennsylvania's interpretation of the Fourth Amendme nt, this reading of Williams and Scott would leave us f ree 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 sha ll

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

form waives the reasonable suspicion requirement, W illiams and Scott strongly suggest that Pennsylvania would construe the form to preserve the reasonable suspic ion requirement.

In Williams, the Pennsylvania Supreme Court reviewe d a parolee's claim that a search conducted pursuant to a consent form identical to the one at issue here vio lated his Fourth Amendment rights.5 The Court analyzed the conflicting interests involved in the case, the rel evant 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 warra ntless search does not mean either that the parole officer can conduct a search at any time and for any rea son or that the parolee relinquishes his Fourth Ame ndment right to be free from unreasonable searches. Rather, the parolee's signature acts as acknowledgme nt that the parole officer has a right to conduct re asonable searches of his residence listed on the paro le agreement without a warrant.

Id. at 1036.

Significantly, the approach adopted requires a cour t 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] wi ll be deemed reasonable if the totality of the evi dence

___________________________________________________ ______________

5. In Commonwealth v. Pickron, 634 A.2d 1093, 1098 (Pa. 1993), the Pennsylvania Supreme Court recognized that a parole e has limited Fourth Amendment rights, but held that the Fourth A mendment prohibited "the warrantless search of a probationer or a parolee's residence based upon reasonable suspicion without t he consent of the owner or a statutory or regulatory framework govern ing 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; Willi ams, 692 A.2d at 1035.

13demonstrates: (1) that the parole officer ha d a

reasonable suspicion that the parolee had co mmitted a parole violation, and (2) that the search wa s 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" approac h adopted by other states, which approach seems simpl y to require that parolees acknowledge that parole offic ers can conduct reasonable searches without a warrant, see id. at 1037). Indeed, the Court concluded that this approa ch "comports with the Fourth Amendment protection affo rded to parolees by the United States Supreme Court in G riffin, 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 suspicio nless
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 ot her grounds, 524 U.S. 357 (1998), the same Court square ly 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 sear ch form as a condition of his parole. The Scott Court construed its decision in Williams as a decision balancing th e 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 th e Fourth Amendment, we `balanc[ed] the governmental interest s involved in granting parole and supervising parolee s 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 b een based on weighing of the Fourth Amendment interests

14involved and not the meaning of the form as a matte r of

Pennsylvania law.6

___________________________________________________ ______________

6. When Scott was reviewed by the United States Sup reme Court, that Court noted the contention "that the Pennsylvania S upreme Court's opinion was at least ambiguous as to whether it rel ied on state or federal law to determine the extent of respondent's consent . . . ." Scott v. Pennsylvania Bd. of Probation & Parole, 524 U.S. 35 7, 362 n.3 (1998).

The basis for the Pennsylvania Supreme Court decisi on had been debated during oral argument before the Court:

QUESTION: I'm not sure you're right in sayin g that the Pennsylvania supreme court based its interpretation of th e consent form on its reading of the Fourth Amendment. I thought t hey might have just based it on an interpretation of Pennsylvani a law.

GENERAL FISHER: Mr. Chief Justice, we argue very strongly that they did, in fact, interpret it based on the ir reading of the

Fourth Amendment, and that is where we disagree. We believe that a search of a parolee's residence may be without susp icion, or a suspicionless

search.

QUESTION: Well, you--suppose this consent fo rm were redrafted to make clear that the person paroled is consen ting to a search

without a warrant and to a search without an y 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 Pe nnsylvania courts would say, based on what they said in this c ase, that we could not have that kind of consent form, because we b elieve 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 fo rm just didn't cover

it.

GENERAL FISHER: No, Justice O'Connor, we thi nk they said very clearly that the Fourth Amendment requires r easonable suspicion.

Scott v. Pennsylvania Bd. of Probation & Parole, Tr anscript of Oral Argument, 1998 WL 154625 at *5-6 (Mar. 30, 1998).

While this colloquy hardly resolves the issue, we s et it forth forbackground and for ease of reference when this issu e comes before the

Pennsylvania Supreme Court, as it doubtless some da y will.

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

the instant case, we hold that Appellee has a Fourt h Amendment right against unreasonable searches and seizures that is unaffected by his signing of the c onsent to search provision." 698 A.2d at 36. Although the Cou rt does not explain why (i.e., whether it is interpreting P ennsylvania law), in our view this statement suggests that sign ing the form does not effect a waiver of any of the signato ry's rights

under the Fourth Amendment.

The problem we have in construing the Williams and Scott decisions stems from the fact that, instead o f engaging in a two-stage analysis, asking first whether the f orm as a matter of Pennsylvania law provided for suspicionle ss searches or required reasonable suspicion, and seco nd whether the form as construed under Pennsylvania la w comported with the requirements of the Fourth Amendment, the Pennsylvania Supreme Court did not g o 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. Th e Court did not independently analyze the meaning of the fo rm as a matter of Pennsylvania law.7 Accordingly, we need to decide whether, as a matter of Pennsylvania law, Ba ker consented to a suspicionless search of his person a nd property by signing the form.

By its terms, there are (at least) two possible rea dings of the Pennsylvania standard form. First, it can be un derstood 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 w ould suggest that the background rule of reasonable susp icion 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 sear ch in

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

___________________________________________________ ______________

7. Pennsylvania follows the judicial policy that co urts 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 S cott Court explicitly invoked this principle as a basis for its decision.

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

scope of a suspect's consent under the Fourth Amend ment is that of `objective' reasonableness--what would t he typical reasonable person have understood by the exchange between the officer and the suspect?") (citations o mitted); United States v. Kim, 27 F.3d 947, 957 (3d Cir. 199 4) ("Of course [the defendant] could have limited his conse nt to certain items, but he had the burden to express tha t limitation.") (citing Jimeno, 500 U.S. at 252). If Pennsylvania had adopted this interpretation, howev er, the
reason for the extended discussion of reasonable su spicion

in Williams and Scott would be unclear.

The second construction of the form is that it waiv es only the warrant requirement. On this reading, the phras e"I expressly consent to the search of my person, prope rty and residence, without a warrant" is limited in the sen se that it waives only the warrant requirement and leaves the reasonable suspicion requirement in place. The diff iculty with this position is that Griffin (which we have a pplied to searches of parolees) holds not only that reasonabl e suspicion (rather than probable cause) is the requi site 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 speci al needs of the probation system made the warrant requiremen t impracticable); see also Hill, 967 F.2d at 910 (hol ding that in light of the special needs of a parole system, t he 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 sea rching a parolee that would apply even in the absence of the form. It is hard to understand why Pennsylvania would fee l the need to require parolees to consent affirmatively t o the background rule of warrantless searches, but not to consent affirmatively to the background rule of rea sonable suspicion, if the form was intended simply to set f orth the governing standards to search parolees. Nevertheles s, Williams characterizes the parole agreement as an "acknowledg[ment] that agents of the Parole Board c ould conduct a warrantless search," id. at 1037, which s upports
the view that the consent form effects no waiver an d serves only as an acknowledgment of the background rule.

17In these circumstances, it is our job to predict wh at

Pennsylvania would do if it were to construe the fo rm solely as a matter of Pennsylvania law. Based on our readi ng of Pickron, 634 A.2d 1093 (Pa. 1993), and Williams, co upled with the tenor of the discussion in Scott, we concl ude that Pennsylvania would construe the consent form to inc lude an implicit requirement that any search be based on reasonable suspicion. We begin with Pickron, in whi ch the Court decided that, in the absence of consent or a statutory or regulatory scheme authorizing suspicionless sear ches of parolees, the Fourth Amendment required reasonable suspicion to search parolees. That decision is cons istent with Griffin and Hill. Then in Williams, the Court noted that, following Pickron, the Pennsylvania General A ssembly enacted two statutory provisions authorizing search es of a parolee by state and county parole officers based o n reasonable suspicion. See Williams, 692 A.2d at 103 5 n.9 (referring to 61 PA. Cons. Stat. SS 331.27a, 331.27 b). As such, Pennsylvania's statutory scheme adheres to th e 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 similar ly limited. As we have noted, Scott states that"applyi ng Williams to the instant case, we hold that Appellee has a Fourth Amendment right against unreasonable searche s and seizures that is unaffected by his signing of t he consent to search provision." 698 A.2d at 36. But i f the form waived the reasonable suspicion requirement, i t would affect a parolee's substantive rights.

When engaging in a predictive exercise, as we do he re, we sometimes must not only read the lines but also bet ween the lines, as it were. The Pennsylvania Supreme Cou rt's consistent application of the Fourth Amendment reasonableness inquiry to the consent form in Willi ams and Scott, and its repeatedly expressed concern with ba lancing the interests of the state with the privacy interes ts of the parolee, also suggest to us that that Court does no t believe that the form authorizes suspicionless searches. Ra ther, the analysis engaged in, which focuses on the

18reasonableness of the search, would be unnecessary if the

form authorized a search not otherwise permitted un der the Fourth Amendment. See, e.g., Williams , 692 A.2d at 1036 ("A search will be deemed reasonable if the totalit y 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 reaso nably related to the parole officer's duty.") (citations omitted). Accordingly, we conclude that Pennsylvania would co nstrue the standard form as requiring reasonable suspicion to conduct a search, and thus that the consent form th at Baker signed did not authorize suspicionless search es of his person, property, or residence.

V.

For the foregoing reasons, we conclude that the sea rch of the trunk was not founded on reasonable suspicion, and that the consent form did not authorize a suspicion less 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 Sta tes, 371 U.S. 471 (1963). The order of the District Cour t 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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