Hughes v. Gwinn , 170 W. Va. 87 ( 1981 )

NEELY, Justice:

In this original habeas corpus we are asked to determine the scope of a probationer’s constitutional rights before a probation revocation proceeding has been initiated. Specifically, we are asked to consider: (1) when the right to counsel attaches; (2) whether there is the right to be advised of constitutional rights pursuant to the mandate of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and, (3) the degree of protection afforded probationers from unreasonable searches and seizures.

Christine E. Hughes pled guilty to the offense of passing a forged instrument in the Circuit Court of Kanawha County in December, 1978. On 5 February 1979 she received a suspended sentence and was placed on probation for a period of five years. On 20 June 1979, petitioner was arrested for the crime of forgery. On 1 October 1979 a capias for probation violation was issued for her and she was subsequently incarcerated in the Kanawha County Jail. On or about 2 October 1979 petitioner’s probation officer brought twenty-two pieces of petitioner’s mail, part of which had already been opened, to petitioner at the Kanawha County Jail. In the absence of counsel, and without informing petitioner that the subsequent conversation could be used against her in a probation revocation hearing, the probation officer proceeded to discuss the contents of the mail. Among the various pieces of mail were numerous notices from petitioner’s bank informing her of insufficient funds for the checks she had written. According to the testimony of the probation officer, petitioner admitted that she had written the checks knowing that she had insufficient funds.

Petitioner was released on bond from the County Jail on 5 October 1979 and on 15 October 1979 she received a copy of the formal charges for violation of probation. On 2 January 1980 there were discussions between petitioner and the probation officer, again without counsel present and without petitioner being advised of her constitutional rights. Subsequently, the probation officer’s testimony concerning conversations had with petitioner that occurred after the incarceration of petitioner were introduced at the final probation revocation hearing, over objection of petitioner’s attorney. On 29 January 1980 petitioner’s probation was revoked and the Court ordered a sentence of not less than one year nor more than ten years for the offense of passing a forged instrument.

As we recognized in Sigman v. Whyte, 165 W.Va. 356, 268 S.E.2d 603 (1980), probationers do not enjoy the same rights enjoyed by defendants before conviction. Thus, any discussion of probation must begin with obligatory homage to the underlying principle of the probation system, namely that it “is an act of grace upon the part of the State to a person who has been convicted of a crime.” Syl. pt. 2, State ex rel. Strickland v. Melton, 152 W.Va. 500, 165 S.E.2d 90 (1968).¹

I

Petitioner contends that her probation revocation is constitutionally infirm because she was not provided counsel during meetings with her probation officer which occurred after her incarceration. While a criminal defendant “is entitled to counsel at all critical stages of the proceeding against him,” State ex rel. Partain v. Oakley, 159 W.Va. 805, 227 S.E.2d 314 (1976), a probationer’s right to counsel has been limited to “any proceeding at which his probation is revoked.” State ex rel. Strickland v. Melton, 152 W.Va. 500, 509, 165 S.E.2d 90, 96 (1968) (emphasis supplied). As petitioner’s own research revealed, and ours confirms, no jurisdiction has established a probationer’s right to counsel in advance of a formal hearing.²

Our Court has extended the right to counsel at a number of additional stages beyond simply the actual trial of a criminal case. State ex rel. Partain v. Oakley, 159 W.Va. 805, 227 S.E.2d 314, 321 (1976). While the United States Supreme Court has established a qualified right to counsel at probation revocation hearings, Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), we have held that counsel is required at every probation revocation hearing, and at each hearing at which probation conditions are modified. Louk v. Haynes, 159 W.Va. 482, 223 S.E.2d 780 (1976). We have been leaders in protecting the rights of probationers, but we do not find that a probationer’s right to counsel extends beyond formal proceedings. Right to counsel becomes essential when the probationer must depend on skills he is unlikely to possess, such as where the presentation of a defense requires the examination or cross-examination of witnesses. Gagnon v. Scarpelli, 411 U.S. 778, 786-87, 93 S.Ct. 1756, 1761-62, 36 L.Ed.2d 656 (1973). Following that analysis, we have held that a youthful offender is entitled to counsel at a hearing to consider transfer from a forestry center and re-sentencing to a penitentiary precisely because “the defendant will be confronted by a government prosecutor.” Watson v. Whyte, 162 W.Va. 26, 245 S.E.2d 916 (1978).

We do not perceive a similar adversarial relationship between a probationer and a probation officer. Indeed, we agree with the United States Supreme Court’s interpretation of the role of a probation officer, i.e., as an advocate for the probationer who recognizes his double duty to the welfare of his clients and to the safety of the general community, but whose “concern for the client dominates his professional attitude.” Gagnon v. Scarpelli, 411 U.S. 778, 783-84, 93 S.Ct. 1756, 1760, 36 L.Ed.2d 656 (1973). The probation system is designed to promote rehabilitation and the imposition of counsel into the delicate relationship between probationer and his probation officer would clearly destroy that goal. Obviously, the relationship between the probation officer and his client is ambivalent at best because the probation officer is at once friend and foe; if the probation officer believes that the probationer has violated any of the conditions of his probation, “the probation officer may arrest him with or without an order or warrant.” W.Va.Code, 62-12-10 [1955], Our experience in these matters, however, while not totally unmixed, instructs us to conclude that most probation officers have a genuine concern for the rehabilitation of their clients and that frank and informal discussions, notwithstanding that such discussions may elicit incriminating information, probably serve the liberty interest of probationers as a class better than the adversary model urged by petitioner. This conclusion is inescapable since there is no middle ground between the social welfare model and the adversary model.

In addition to our adherence to the theory of the social welfare model, we are well aware of the significant mechanical problems that would be generated in imposing the adversary model throughout the probation system. If counsel is needed to protect the probationer from revealing his violations to the probation officer, counsel would need to be present at every meeting. Beyond the substantial financial cost to the State for maintaining such a system,³ we do not believe it is the duty of the State to protect the probationer from self-incrimination exactly because the whole activity of “probation” is an act of grace. While the “act of grace” language inspires misgivings because similar characterizations (such as “privilege” versus “right”) have been used historically to foreclose judicial redress for wrongs, in the area of probation we in effect infer that all probationers would contract with the sentencing judge to waive certain constitutional rights in return for continued liberty. To hold that probationers have more limited rights than the unconvicted population at large is merely to make explicit a contract to waive certain rights which heretofore has been merely implicit. All constitutional rights can be knowingly and intelligently waived, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) and acceptance of probation status is a knowing and intelligent acceptance of a social welfare model of relationships, one of which is with the probation officer, in place of the adversary model.

II

Petitioner also contends that her confession to her probation officer to the offense of knowingly writing “bad” checks should be inadmissible because it was obtained in violation of the Miranda rule. Every other jurisdiction has uniformly held, for a variety of reasons, that statements taken by a probation officer without first giving Miranda rights to the probationer, are admissible in a probation revocation hearing. Annot., 77 A.L.R.3d 669 (1977); Note, “Probation Officer Interrogation of an In-Custody Probationer,” 10 U.S. F.L.Rev. 441, 443-44 (1976).⁴ We agree that a probation officer need not give in-custody probationers Miranda warnings prior to questioning the probationer because we do not perceive that continuation of an ongoing dialogue between probationer and probation officer, notwithstanding that it happens to be conducted in a jail, constitutes the police-dominated interrogation that Miranda warnings were designed to prevent. If upon every visit or contact with the probation officer the probationer is entitled to a warning, then the relationship between the probation officer and the probationer would become strained and the objectives of education and rehabilitation would be materially affected.⁵

Furthermore, our analysis of the fundamental constitutional rights of a probationer is greatly influenced by the principle that we announced at the outset of our opinion: a probationer has limited freedom. The State has a substantial interest in monitoring the progress of a probationer, who is clearly a greater risk to society than the average citizen. Thus, the State must limit the freedom of the probationer in order to protect society. Here again we must return to the concept of a tacit contract where certain privacy rights are willingly waived when the defendant originally asked for probation. Certainly there is consideration on the part of the State for waiver on the part of the probationer. Application of Miranda warnings would seriously impede a probation officer’s ability to determine whether a probationer should remain on the streets.⁶ Thus we refuse to require Miranda warnings because a probation revocation hearing is not a criminal proceeding and, as the Fifth Circuit has concluded, “[a]n injection of the Miranda protection here could be toxic and produce a paresis in the probation process,” United States v. Johnson, 455 F.2d 932, cert. denied, 409 U.S. 856, 93 S.Ct. 136, 34 L.Ed.2d 101 (1972).⁷

Ill

Petitioner’s final contention is that the seizure of her mail by her probation officer and the subsequent use of the contents against her constituted an illegal seizure under the Fourth Amendment to the United States Constitution and under Article III, Section 6 of the West Virginia Constitution. There is a dispute over whether the mail was opened by the probation officer or by the probationer’s former roommate who gave the mail to the probation officer; however, that is immaterial since we believe that the probation officer had sufficient probable cause to search and seize petitioner’s mail. A probationer does not absolutely forfeit protection from unreasonable searches and seizures merely by assuming the status of a probationer, but that status is a significant factor in the determination of probable cause.

The United States Supreme Court has said that the Fourth Amendment has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons and that when the public interest in presenting all the evidence which is relevant and probative is compelling, and the deterrent function served by exclusion is minimal, the exclusionary rule will not be invoked. United States v. Janis, 428 U.S. 433, 453-60, 96 S.Ct. 3021, 3031-3035, 49 L.Ed.2d 1046 (1976); and United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). Under this test formulated by the Court for application of the exclusionary rule, the Fourth Amendment must tolerate probation officer search powers as part of the balance between the privacy rights of probationers and the specific supervisory needs of probation.⁸ The Legislature obviously intended probation officers to have a special and unique role in supervising probationers since they are empowered to arrest a probationer without a warrant, W.Va.Code, 62-12-10 [1955]; thus, it would frustrate the Legislature’s intent if the probation officer’s supervisory role were seriously impeded by the exclusionary rule.

We do not mean, however, that we will grant blanket privileges to probation officers to invade a probationer’s privacy because we suspect that police officers may use probation officers to do what police officers are prohibited from doing under the exclusionary rule. Thus, for example, evidence uncovered by a probation officer’s warrantless search that would be illegal under some, but not all, traditional Fourth Amendment standards would be admissible at a probation revocation hearing but would be suppressed in a subsequent criminal prosecution of the probationer. United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970). Furthermore, while the great majority of courts have held that the exclusionary rule is not applicable in probation revocation proceedings, Annot. 77 A.L.R.3d 636 (1977), we agree with those courts that have held that evidence must be suppressed if there is evidence of police harassment. People v. Watson, 69 Ill.App.3d 497, 26 Ill.Dec. 19, 387 N.E.2d 849 (1979); Dulin v. State, 169 Ind.App. 211, 346 N.E.2d 746 (1976); and, United States v. Farmer, 512 F.2d 160 (6th Cir.) cert. denied, 423 U.S. 987, 96 S.Ct. 397, 46 L.Ed.2d 305 (1975). Since we find no evidence of police harassment in this instance, the evidence is found to have been correctly admitted.

For the foregoing reasons the writ of habeas corpus is denied.

Writ denied.

1 . In continuing to characterize probation as an "act of grace”, we are not suggesting that further analysis of the probationer's rights is unnecessary. See State ex rel. Winter v. MacQueen, 161 W.Va. 30, 239 S.E.2d 660 (1977) (Miller, J. concurring). Since we have been consistently solicitous of the rights of probationers, we find that whether probation is termed an "act of grace" or "conditional liberty,” Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) to be a question of semantics and that the phrases simply express the concept that a probationer has limited rights.

2 . The primary source of conflict among other jurisdictions has been whether the right to counsel attaches at a preliminary hearing or only at the final revocation proceeding. See, e.g. State v. Bryan, 284 Md. 152, 395 A.2d 475 (1978) (right to counsel attaches when probationer appears in court); State ex rel. Hawkins v. Gagnon, 64 Wis.2d 394, 219 N.W.2d 252 (1974) (right to counsel does not attach at preliminary probation revocation hearing); State v. White, 169 Conn. 223, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975) (right tó counsel does not attach at preliminary probation revocation hearing); People v. Andre, 112 Cal.Rptr. 438, 37 Cal.App.3d 516 (1974), (right to counsel does not attach at initial summary proceeding); and, Elkins v. State, 147 Ga. App. 837, 250 S.E.2d 535 (1978) (right to counsel attaches on a case-by-case basis) See, Annot. 44 A.L.R.3d 306 (1972).

3 .In Gagnon, supra, the United States Supreme Court stated that the automatic requirement of counsel would be an unnecessary financial burden on the State and that it would destroy the informality of the probation revocation proceeding. Indeed the Court contended that, "the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation proceedings.” 411 U.S. at 790, 93 S.Ct. at 1763. But see syl. pt. 2 Dobbs v. Wallace, 157 W.Va. 405, 412-14, 201 S.E.2d 914, 918-19 (1974).

4 .A few states have held that statements obtained by police officers without first giving the Miranda warning are inadmissible in probation revocation proceedings. In Interest of McMillan, 51 Ill.App.3d 940, 10 III.Dec. 106, 367 N.E.2d 494 (1977); State v. Smith, 112 Ariz. 416, 542 P.2d 1115 (1975); and, Jackson v. State, 508 S.W.2d 89 (Tex.Cr.App.1974).

5 . This reasoning was espoused in People v. Ronald W., 24 N.Y.2d 732, 249 N.E.2d 882, 302 N.Y.S.2d 260 (1969) and Nettles v. State, 248 So.2d 259 (Fla.App.1972).

6 . A summary analysis of eleven probation studies indicated that ten to forty per cent of all adult offenders released on probation are subsequently placed in prison. The President’s Commission on Law Enforcement and Administration of Justice Task Force Report: Corrections Note 44, at 28 (1967).

7 . While we do not require Miranda warnings by probation officers, we do not mean to suggest that a probationer’s rights are vitiated and that any statement may be used against him. The exclusionary rule of the Fifth Amendment privilege against self-incrimination is still applicable, thus an involuntary confession must be suppressed. See People v. Peterson, 74 Ill.2d 478, 23 Ill.Dec. 554, 384 N.E.2d 348 (1978). But see State ex rel. Struzik v. Department of Health and Social Services, 77 Wis.2d 216, 252 N.W.2d 660 (1977) and Short v. United States, 366 A.2d 781 (D.C.App.1976).

8 .For in depth discussions of the balancing of privacy interests of probationers versus supervisory interests of probation officers see Note, "The Exclusionary Rule in Parole Revocation Hearings:” 11 B.Y.U.L.Rev. (1979); Note, "The Exclusionary Rule and Probation Revocation Proceedings” 11 Val.U.L.Rev. 149 (1976); Note, "Striking the Balance Between Privacy and Supervision,” 51 N.Y.U.L.Rev. 800 (1976); Note, "The Exclusionary Rule in Probation and Parole Revocation,” 54 Tex.L.Rev. 1115 (1976); and, Cole, "The Exclusionary Rule,” 52 Chi.Kent L.Rev. 21, 37-52 (1975).