Untitled Texas Attorney General Opinion ( 1987 )

THE ATTORNEY GENERAL
OF TEXAS
August 4. 1987
Jrm BlATrux
- -PJRAu.
Mr. Don R. Stiles Opinion No. JM-762
Executive Director
Adult Probation Commission Re: Constitutional validity of
6100 Cameron Road electronic monitoring of proba-
Suite 600, Building B tioaers
Austin, Texas 78753
Dear Mr. Stiles:
You inform us that the Adult Probation Commission is considering
a proposal to permit the use of electronic monitoring devices as a
condition of probation. The devicas will be employed primarily to
monitor a probationer’s compliance with curfew hours imposed by the
court. Some of the monitoring systems require the probationer to wear
an electronic device attached to his or her body at all times; all
require the probationer to have access to a telephone in his or her
residence. Concern about the constitutionality of this use of
electronic monitoring devices has prompted the following questions:
1. Do probationers have any constitutionally
protected interest which would prohibit the use of
electronic monitoring in the home as a condition
of probation over the objections of the [proba-
tioner]?
2. Do family members or cohabitants [OfI
probationers have any constitutionally protected
interest which would prohibit the use of
electronic monitoring in the home they share with
probationers over their objections?
3. Does the requirement of some system that
the probationer wear a device attached to his or
her body at all times have any influence on the
answers to questions 1 and 2’1
4. Does the requirement of some systems that
an.electronic monitoring device be attached to the
telephone in the home have any influence on the
answers to questions 1 and 2?
In our opinion, the employment of electronic monitoring devices
as a condition of probation does not violate a constitutionally
p. 3560
Mr. Don R. Stiles - Page 2 (JM-762)
protected Interest of the probationer or a third person residing in
the probationer’s home. Neither do we believe that the attachment of
the particular devices you have described to either a probationer’s
body or a telephone in his home violates any constitutionally
protected interest of the probationer or a third person residing in
the probationer’s home.
I.
In your request letter you describe three types of electronic
monitoring systems under consideration. The first type of system is
called an “active” monitoring system:
Active monitoring. This requires that the proba-
tioner have a standard telephone in his home. A
monitoring device is hooked up to the phone. The
probationer wears a device that transmits signals
which the monitor can detect within a certain
small radius. The monitor is connected through
the telephone line to a computer which is pro-
gramed with the schedule that the probationer has
been ordered by the court to observe. Comunica-
tlon between the monitor and the computer shows
whether the probationer is at home at the time he
is supposed to be.
A fuller description of the active monitoring system was provided in a
report recently issued by the Texas Criminal Justice Policy Council:
The first type of these systems. referred to in
the earliest literature as ‘active’ systems
consists of a transmitter unit, a receiver-dialer
unit, and a central office computer or receiver
unit. A transmitter,. which is strapped to the
offender, broadcasts an encoded signal to the
receiver located in the offender’s home. The
receiver is connected by the telephone to the
central office computer or receiver unit. When
the transmitter being worn by the offender is
within range of the home receiver, the system
indicates that they are at the residence. When
the offender goes beyond the range of the receiver
unit, i.e., leaves the home. the signal from the
transral~r is not received and the system
indicates absence. If the offender leaves home
during an unauthorized period, in violation of
their turf ew, a violation report is generated.
If, however, the offender leaves the home at a
time they are authorized to do so, the times of
arrival and departure are noted, but no violation
report is generated.
p. 3561
.
Mr. Don R.~ Stilts - Page 3 (JM-762)
J. Vaughn, Electronic Monitoring of Offenders 6 (July 1986) (prepared
for Texas Criminal Justice Policy CouucLl) (hereinafter cited as
Electronic Monitoring).
The second type of device described in your letter are the
so-called “passive” systems:
Passive monitoring. This also requires a standard
telephone and a monitoring device in the home.
The device worn by the probationer does not send
signals. but must be placed in the monitor when
the central computer calls the probationer’s home
at random Intervals during the periods when the
probationer is ordered to be at home. The monitor
verifies that the correct device has been used to
respond to the call.
‘The Criminal Justice Policy Council report provided this description
of passive monitors:
A second type of unit utilizing telephone lines
for comaunication has been referred to in the
earlier literature as a ‘passive’ system. It
.- consists of a central office computer. au encoder
device, and a verifier box. The encoder device is
worn either on the wrist or anRle by the offender.
The computer is programmed to generate tither
random calls or to call at specific times to the
offender’s hone. The offender is required to
provide voice identification and then insert the
encoder device into the verifier box. confirming
their identity. The system will provide exception
reports if the phone is not answered, if a busy
signal is received. if an operator intercept
message is detected, or If the offender fails to
properly insert the encoder device into the
verifier box.
Electronic Monitoring, supra, at 6. The report explained the
difference between active and passive systems in terns of the amount
of monitoring accomplished by each type of system. “Active” systems
operate continuously and monitor the probationer from the moment
the transmitter is within the range of the receiver. In contrast,
“passive.” systems are activated by the telephone calls from the
central reception office and operate only for the duration of the
telephone call. -Id.
The third type of monitoring system under consideration does not
require the probationer to wear any device at all but dots involve the
use of a telephone. A centralized computer sakes telephone calls to
the probationer’s home at random times during the period in which the
p. 3562
Mr. Don R. Stiles - Page 4 ,(JM-762)
probatiouer is required by the court's order to be at home. The
probatfoner is directed to repeat selected words and phrases or to
auswer a series of questions. Sea Electronic Monitoring, supta, at 6.
The probationer's voice is then electronically compared with a voice
print previously supplied by the probationer.
As of July 1986, electronic monitoring systems of one type or
another were in use in eight states. Electronic Uonitoring, supra,
(Aootudix
__ D). The state of California recently enacted a statute
authorizing-the use of electronic monitoring devices as part of a
three-year home detention pilot project. Cal. Penal Code 51203.015
(West Supp. 1987). The Texas Legislature recently approved the
employment of electronic monitoring devices in probation and parole
programs, but its provisions affect probations granted or modified
after Septexber 1. 1987. Acts 1987. 70th Leg., ch. 1, 057, 15, at 1,
14 (S.B. No. 215). ThiS opinion does not address the
constitutionality of the provisions of this legislation. It addresses
ouly the general question of the constitutionality of electronic
monitoring devices.
II.
The Adult Probation La" states that the terms and conditions of
probatiou may Include, but are not limited to, those conditions
expressly provided in the act. Code Crix. Proc. art. 42.12, $6(a).
The courts are not limited to the conditions enumerated in the act but
have tide discretion in setting reasonable conditions of probation.
Macias v. State, 649 S.W.Zd 150 (Tex. App. - El Paso 1983. no pet.).
Conditions of probation should bear a reasonable relationship to the
treatment of the accused and the protection of the public. Tamea V.
State, 534 S.W.2d 686 (Tex. Grim. App. 1976); Macias v. State, supra.
Whather the use of au electronic monitoring device bears a reasonable
relationship to the treatment of a particular probationer and the
protection of the public is a question of fact that cannot be
determined in an Attorney General's Opinion. See generally Attorney
General Opinion JM-307 (1985) at 5.
Your first question concerns whether a probationer has any
constitutionally protected interest which "ill prohibit the use of
electronic monitoring devices as part of-his probation. It is well
understood that, because of their special status, probationers are
subject to limitations of their constitutional rights from which
ordinary citizens are free. Macias v. State. 649 S.W.Zd at 152. Any
restriction placed upon these rights, however, can be justified only
to the extent actually required by the legitimate demands of the
probation process and necessary for the probationer's reformation and
rehabilitation. &, * see also Taxes v. State, 534 S.W.Zd at 692.
In the Maclas case, the court adopted the test articulated in
United States v. Tony, 605 P.2d 144. 150 (5th Cir. 1979), to
p. 3563
Ur. Don R. Stiles - Page 5 (JM-762)
detenaiue whether a condition of probation is unduly intrusive on
constitutioua1l.y protected freedoms:
The conditions must be ‘reasonably related’ to
the purposes of the [Federal Probation] Act. Cou-
sideration of three factors is required to
determine whether a reasonable relationship
exists: .(l) the purposes sought to be served by
probation; (2) the extent to which constitutional
rights enjoyed by law-abiding citizens should be
accorded to probationers; and (3) the legitimate
needs of law enforcement.
Uacias v. State, 649 S.W.Zd at 152. Whether it IS reasonable to
require a particular probationer to wear an electronic monitoring
device as a condition of his probation requires an evaluation of the
facts surrounding his illegal activity and his probation. See
Attorney General Opinion JM-307 (1985). It is nevertheless possia
to review the relevant authorities to determine whether the mere use
of electronic monitors in the probation system impermissibly infringes
upon a constitutionally protected interest of a probationer or a third
person residing in the home of a probationer. Your questions raise
issues under the First, Fourth, Eighth, and Fourteenth Amendments to
the United States Constitution. We will devote the bulk of our
discussion to the issue of privacy in the probationer’s home.
First Amendment Considerations
The First Amendment to the United States Constitution generally
protects an individual’s speech, associations, movement, travel, and
religious beliefs from excessive governmental limitations. See also
Tex. Coast. art. I, 996. 8, 27. A related concept is the right to
travel interstate, derived from the privileges and immunities clause
of %he Fourteenth Amendment. See Edwards v. California,. 314 U.S. 160
(1941). Although persons serv= a probated sentence are entitled to
enjoy these rights to a significant degree. the courts have
consistently held that such rights may be limited to serve the
purposes of probation. Bowever, because of the preferred nature of
these rights, courts critically evaluate probation conditions
restricting them. See Cohen and Gobert. The Law of Probation and
P;;zo:; 55.10 (1983Td Supp. 1986) [hereinafter cited as Cohen and
. The interests which are implicated by your request are those
relating to associations. movement, tad travel.
The courts have concluded that conditions curtailing a pro-
bationer’s associations with certain named persons does not
impermissibly Infringe upon the right of freedom of association. Tyra
v. State, 644 S.W.Zd 865 (Tex. App. - Amarillo 1982, no pet.).
Conditions which prohibit any contact whatsoever between a probationer
and a complainant have been upheld as reasonable conditions of
probation. Pequeno v. State, 710 S.W.Zd 709 (Tex. App. - Rouston [lst
p. 3564
Mf; Don R. Stiles - Page 6 (JM-762)
Dist.] 1986. no pet.). In appropriate cases, probation conditions
imposing a c&few are reasonable, notwithstanding the limits they
inpose ou a probationer's freedom of movamaut and travel. See Salinas
v. State, 514 S.W.2d 754 (Tex. Grim. App. 1974). Conditions which
require the probationer to remain in a specified area are valid. See.
*. Miller v. State, 330 S.W.Zd 466 (Tex. Grim. App. 1959).
However, a condition which effectively banishes a probationer from a
particular area is invalid. See Johnson v. State, 672 S.W.Zd 621
(Tex. App. - Corpus Christi 1984, no pet.) (banishment from county).
Also, it has been suggested that conditions limiting a probationer's
associations could threaten the probationer's right of privacy if
construed to extend to family members. Cohen and Gobert, suprs. 16.16
(citing Roe v. Wade, 410 U.S. 113, 152-53 (1973)).
Given these permissible limitations , we are not persuaded that a
probatiouar may object to the use of electronic monitoring devices on
the grounds that it interferes with his freedom of association,
movement, or travel. Electronic monitoring devices appear no wore
restrictive than a condition directly limiting movement; they simply
provide greater assurance that the probationer is conforming his
conduct to the limitations attached to his conditional liberty.
Because the devices are incapable of monitoring conversations, we do
not believe that they will affect a probationer's freedom of sp~eech.
The fact that the probationer way be required under some systems to
utter particular words or phrases into a telephone does not change our
minion.
.````````I orovided
``~ `` the condition reauirinn this conduct otherwise
serves the purposes of probation. -Cf. kited Starts v. William
Anderson Co., Inc., 698 F.2d 911, 913 (8th Cir. 1982) (referring to
terms of probation which required price-fixers to deliver speeches to
civic groups about the ev& of -price-fixing). overruled on other
grounds, United States v. Missouri Valley Constr. Co., 741 F.2d 1542
(8th Cir. 1984); United States v. Franks, 511 F.2d 25 (6th Cit.),
cert. denied, 422 U.S. 1042 (1975) (requiring arrested defendant to
submit voice exemplars violates no constitutional rights so long as
underlying seizure of the person was proper).
Privacy Considerations
The privacy interests of probationers and nonprobationers do not
draw protection from a specific guaranteeof the federal Constitution,
but are instead protected by concepts derived from the various
guarantees of the Bill of Rights and the Fourteenth Amendment,
particularly the Fourteenth Amendmant's concept of personal liberty.
See Rot v. Wade, 410 U.S. 113 (1973). Some of these interests were
addressed in our discussion of the First Amendment. Here, we "ill
discuss that privacy interest which we believe is most directly
implicated by the proposal to employ electronic monitoring devices in
the probation system --,namely, the reasonable expectation of privacy
a probationer may have with respect to the 'contents and happenings in
his home. See generally Alderman v. United States, 394 U.S. 165
(1969).
p. 3565
!fr. Don R. Stilts - Page 7 ,(,7&762)~
The Fourth Ameudment’s ban on unreasouable searches and seizures
has supported challenges to probation conditions requiring the
probationer to undergo random searches. See also Tex. Coast. art. I,
$9.
In Tames v. State, supra, the defendant was placed on probation
after entering a plea of nolo contendere on a charge of possession of
marijuana. One of the conditions of probation required the defendant
to submit his person, residence and vehicle to a starch by any peace
officer at any time. The Court of Criminal Appeals invalidated the
condition, stating it was too broad and too sweeping and infringed
upon the probationer’s rights under the Fourth and Fourteenth Axend-
meats of the federal Constitution and article I, section 9. of the
state constitution. 534 S.W.Zd at 692. The condition did not serve
the ends of probation and permitted harassing and intimidating
starches totally unrelated to his prior conviction or rehabilitation.
p& An identical condition was invalidated by the Court of CrFminal
Appeals one year after the Tamez decision. Basaldua v. State, 558
S.W.Zd 2 (Tex. Crib. App. 1977).
In the years following the Taxes and Basaldua decisions, the
courts have exhibited a willingness?accept conditions of probation
which require the probationer to undergo what are arguably limited
searches and seizures. In Macias v. State, e, the court approved
a condition requiring a probationer who had pled guilty to a charge of
delivery of a controlled substance to submit to weekly urinalysis
tests administered by his probation officer. The court concluded that
the taking of urine samples constituted a search but determined the
condition was reasonably related to the purposes of probation under
Texas law for three reasons. First, it served to dissuade the
probationer from possessing illegal drugs. Second, it promoted his
rehabilitation by providing the probation officer with means of
determining whether rehabilitation was taking place. Finally, it
protected society by deterring the probationer from engaging in
unlawful drug activities and by giving the probation officer the
ability to detect any such activity. 649 S.W.Zd at 152-53. The court
noted that the terms of the condition were not overly broad and un-
restricted so as to permit the kind of intimidating and harassing
searches condemned in the Tamex and Basaldua cases. See also Clay v.
State, 710 S..W.Zd 119 (Tex. App. - Waco 1986, no pet.) (upholding an
identical condition of probation).
The earliest decision considering the constitutionality of
electronically enhanced surveillance reflected the prevailing view
that for there to be a search under the Fourth Amendment, the police
must have physically intruded into a constitutionally protected area.
In Olmstead v. United States, 277 U.S. 438 (1928). the Supreme Court
held that the placement of an eavesdropping device on the defendant’s
telephone and the subsequent monitoring of his conversations did not
constitute a search under the Fourth Amendment because the “wires are
not part of his house or office, any wore than are the highways along
p. 3566
Mr. Don R. Stiles - Page 8 (J&762),
which they are stretched." 277 U.S. at 465. The Court later upheld
00. similar grounds electronic eavesdropping upon conversations in a
neighboring office by the use of a "detectaphone" placed against a
cmaou wall. Goldman v. United States, 316 U.S. 129 (1942). In
Silverman v. United States, 365 U.S. 505 (1961). the Court ruled that
eavesdroooiun bv means of a "mike" microohone which Dtuetrated a
common w& Eon<uted a Fourth ;\mendmeat &arch.
The Supreme Court's decision in Katz v. United States. 389 U.S.
347 (1967). ushered in a new era of Fourth Amendment analysis. In
that case, the Court abandoned the "trespass" doctrine employed in the
Olmstead and Goldman decisions, declaring that
the Fourth Amendment protects people, not places.
What a person knowingly exposes to the public,
even in his owu home or office is not a subject of
Fourth Amtndment protection. . . . But what he
seeka to preserve as private, even in au area
accessible to the public, may be constitutionally
protected.
389 U.S. at 351. The Court ruled that eavesdropping by way of an
electronic listening and recording device attached to the exterior of
a public telephone booth was a search for purposes of the Fourth
Amendment, requiring government agents to obtain a starch warrant in
advance.
Justice Barlan, in a concurring opinion that was to eventually
serve as a guide to other courts, added that the majority opinion of
the Court established a twofold requirement -- first, that the person
have exhibited au actual (&. subjective) expectation of privacy,
and second, that the expectation be one that society is prepared to
recognize as reasonable. 389 U.S. at 361. See California v. Ciraolo,
476 U.S. -, 106 S. Ct. 1809. 90 L.Ed.Zd ZlO(1986); Stewart V. State,
681 S.W.Zd 774 (Tex. App. - Houston [14th Dist.] 1984, pet. ref'd).
In the years following the Katz decision, the Supreme Court
considered the constitutional ramifications of surveillance
accomplished by meaus of other electronic ~devices such as pen
registers, Smith v. Maryland. 442 U.S. 735 (1979). and electronic
tracking devices, or beepers. United States v. Karo, 468 U.S. 705
(1984); United States v. Knotts, 460 U.S. 276 (1983). The devices you
describe have been compared to beepers, devices which emit periodic
signals that can be picked up by a radio receiver. United States v.
Knotts, 460 U.S. at 277. See Note, Electronic Monitoring of
Probationers: A Step Toward Bisrotherl, 14 Golden Gate U. L. Rev.
431 (1984); Electronic Monitoring, supra.
In Knotts, the Supreme Court held that the warrantless monitoring
of a beeper placed inside a container of chloroform did not violate
the Fourth Amendment because it revealed no information that could not
p. 3567
Ur. Don R. Stiles - Page 9 (JM-762)
have been obtained through visual surveillance. The Court concluded
that the monitoring of the beeper while the container was being
transported over public thoroughfares did not invade any legitimate
expectation of privacy on the defendant’s part. One question left
unanswered was whether the monitoring of a beeper falls within the
scope of the Fourth Amendment when it reveals information that could
not be obtained through visual surveillance. This question was
answered in the affirmative in United States v. Karo. supra.
In Karo the Court was confronted with the monitoring of a beeper
located -de a private residence, an area not open to visual
surveillance. The Court concluded such monitoring in the absence of a
search warrant or an exception to the warrant requirement violated the
Fourth Amendment rights of persons having ,,a justifiable interest in
the privacy of the residence.” 468 U.S. at 714. The Court rejected
the contention that law enforcement officials
should be completely free from the. constraints of
the Fourth Amendment to determine by means of an
electronic device . . . whether a particular
article -- or a person, for that matter -- is in
an individual’s home at a particular time.
468 U.S. at 716.
In addition to the two-point analysis originating with Katz,
Texas courts have directed attention to the nature of the actxy
claimad to be a “search.” Where the activity is not aimed at
discovering evidence of a crime , some courts art inclined to rule that
the activity is not a search. These courts view a “search” as a
“quest for, a looking for, or a seeking out of that which offends
against the law.,, Vargas v. State. 542 S.W.2d 151, 153 (Tex. Grim.
App. 1976). cert. denied, 429 U.S. 1109 (1977); Garber v. State.~ 671
S.W.2d 94, 97 (Tax. App. - El Paso 1984, no pet.). See also Marshall
v. United States, 422 F.2d 185. 189 (5th Mr. 1970) (“search” implies
a probing, exploratory quest for evidence of a crime). Given this
definition, it can be argued that the monitoring of electronic devices
in the manuer under consideration here is not a search, since the
purpose of the monitoring is not to uncover evidence of criminal
activity, but to confirm compliance with a condition of probation.
The monitoring devices (unlike beepers) are not to be employed in
conjunction with criminal investigations and therefore will not convey
information suggesting criminal activity is taking place in the
probationer’s home. The report submitted to the Texas Criminal
Justice Policy Council advanced a similar argument:
It could . . . be argued that the use of an
electronic device which merely indicates whether a
person is complying with his curfew restriction,
would not constitute a search. The . . . device
currently utilized as a condition of probation is
p. 3568
l4r. Don R. Stiles - Page 10 (JM-762)
not capable of monitoring conversations, uor can
it determine what the individual Is doing inside
the confines of his homa. Its sole purpose is to
tusure that the probationer is complying with
the conditions of probation. It is true that
the . . . device generates information which could
not otherwise be obtained by visual surveLllance,
but that alone should not taint the device because
its installation is with the client's consent.
Electronic Monitoring, supra, at E-17-E-18.
These arc persuasive arguments. However, given the conclusion in
Macias v. State, supra. that the taking of urine samples from a
probationer is a search and the fact that electronic monitoring
devices serve the needs of law enforceneat in a mauner similar to the
detection and investigation of crime , we will assume for the sake of
argument that the electronic! monitoring of probationers is a "search"
for the purposes of the Fourth Amendment. Assuming that a search
occurs when an electronic device worn by a probationer is monitored by
probation officials, it is clear that such monitoring cannot be
justified in this state ou a theory of consent or waiver.
The Court of Criminal Appeals analyzed the issue of consent in
Tamez v. State, supra. After observing that a "probationer, like a
parolee, has the right to enjoy a significant degree of privacy," the
court ruled that the probationer's acceptance of the condition of
probation permitting warrantless searches did not authorize searches
in violation of the Fourth Amendment:
It Is clear that protection afforded by the
Fourth Amendment and Article I. Sec. 9, Texas
Constitution, extends to probationers. This court
has consistently and knowingly made this clear
in ruling 01) appeals from orders revoking
probation. (Citations omitted).
A diminution of Fourth &mmdment protection and
protection afforded by Article I. Sec. 9, Texas
Constitution. can be justified only to the extent
actually necessitated by the legitimate demands of
the probation process. A probationer may be
entitled to a diminished expectation of privacy
because of the necessities of the correctional
system, but his expectations may be diminished
only to the extent necessary for his reformation
and rehabilitation.
Further, it is clear that in accepting the
condition of probation the appellant's 'consent'
was not in fact freely and voluntarily given. The
p. 3569
Hr. Don R. Stiles - Page 11 (JM-762)
choice to reject probation aud go to prison or
accept the probationary condition was really
no choice at all. It was in legal effect coerced.
(CLtation omitted).
534 S.W.Zd at 692. Thus, the use of electronic monitoring devices in
the probation system may not be justified on the theory of consent.
The passage from Tames just quoted above does, however. provide
the theory under which we believe the use of electronic monitoring
devices can be coustitutionally justified. As the Court of Criminal
Appeals observed, probationers, because of the conditional liberty
they are granted. do not enjoy the same expectation of privacy as
non-probatlouers. Their expectation of privacy is diminished only to
the extent necessary for their rehabilitation and the legitimate
demands of the probation process. Thus, where it is determined that a
probationer may be subjected to reasonable limitations on his freedom
of movement or associations, WC believe that reasonable and minimal
intrusions into the probationer’s privacy interests to confirm
compliance with the conditions of probation are permissible.
Indeed, the Code of Criminal Procedure has authorized minimal
Intrusions of the probationer’s privacy in the home for years.
,- Article 42.12, section 6(a)(S). aut+orisss the court having juris-
diction to impost as a condition of probation the condition that the
probationer shall “[plermit the probation officer to visit him at his
home or elsewhere.” We believe the privacy intrusion resulting from
the monitoring of the electronic devices you describe is strikingly
different from the intrusion resulting from an actual visit by a
probation officer. Our research has yielded no Texas decision
invalidating a condition of probation based on section 6(a)(5) of
article 42.12. The reason for this may be that conditions of this
type are considered an integral pert of the probation process and have
been routinely sustained elsewhere. even against a claim that they
infringe on a probationer’s right of privacy. See Cohen and Gobert,
supta,- 06.67 (siting United States v; Manfredo~. 341 F. Supp. 790
(S.D.N.Y.), aff, 459 F.2d 1392 (2d Cit.), cert. denied, 409 U.S. 851
(1972)). Thus, it is worth noting the courts have had little quarrel
with wre intrusive conditions in the past.
Our discussion to this point has centered on the privacy
interests of the probationer. We must now address the interests of
third persons residing in the home of the probationer, the subject of
your second question.
In those states in which warrantless search conditions of
probation have been approved under the theory of consent or waiver,
the courts have not required special procedures, such as obtaining a
warrant prior to the search, to safeguard the rights of third persons
C
residing-with the probationer. See People v. Mason, 488 P.2d 630, 634
(Cal. 1971). cert. denied, 405 UT 1016 (1972); State v. Griffin, 376
p. 3570
Mr. Don R. Stiles - Page 12 (JM-762)
H.W.2d 62, 67 (Wis. Ct. App. 1985). aff'd, 388 N.W.Zd 535. 541 (Wls.
1986). But see State v. Velasquez, 672 P.2d 1254. 1260 a.3 (Utah
1983) (dicta suggesting that a warrant be obtained prior to such
searches). The rights of such third parsons will be affected whether
or not a varraat is required, and in view of the protection given the
probationer's rights, there is no need to require a warrant simply to
protect third persons' rights. State v. Griffin, 388 N.W.2d at 541.
Understandably, Texas courts have not had occasion .to consider
this issue following the Tames decision. Out court which did address
the rights of third persons in this coutext framed the issue thus:
We recognize that probationary status can and
should carry with it a reduced expectation of
privacy. But a probationer is living vithiu
society, not confined to a penal institu-
tion. . . ~. A search of the probationer's home
cannot avoid invading the privacy of those with
whom he way be living, whether they be ismediate
family, other relatives, or friends. Probationary
status does not convert a probationer's family,
relatives and friends into 'second class'
citizens.
. . . .
We can only assume a 'respectable position' [in
the debate over the validity of warrantless starch
coaditfons of probation] if xc can give fair
consideration to the rights of innocent third
parties who way be caught up in the web of the
probationary system or probationary process.
These people are not stripped of their right of
privacy because they may be living with a proba-
tioner or he way be living with them. While a
probationer's right of privacy may be justifiably
diminished while on probation, the rights of these
people are not so diminished. We, as veil as the
trial courts, would be derelict in our duties if
we failed to consider the rights of these imoceat
others so that they are not swept away by the
probationary process.
. . . .
These privacy considerations are inextricably
interwoven in the relationships between a
probationer and his family and friends no less
than in the relationships between a nonprobationer
and his family and friends. The starch of a
p. 3571
Mr. Don R. Stilts - Page 13 (m-762)
probationer's home will inevitably affect the
privacy of those with whom he is living.
State v. Fogarty. 610 P.2d 140, 151-52 (Wont. 1980). Quoting and
relying in part on Tamez, the Montana Supreme Court concluded that an
unlimited search condition was patently unconstitutional under both
the federal and Montana constitutions. The court also held that in
order to protect the legal interests of innocent third persons, a
search warrant based on probable cause must be obtained before a
probationer's residence may be starched. It is doubtful that a
condition authorizing a search of a probationer's person or property
authorizes starches of third persons or their property. See People v.
Veronica, 166 Cal. Rptr. 109 (Cal. App. 1980). The courtBare divided
as to whether evidence seized in a search conducted, pursuant to a
condition of probation may be used against third persons residing with
the probationer. Compare People v. Veronica, supra, vi2 Luke v.
State, 344 S.E.2d 452 (Ga. App. 1986).
The cases discussed in the preceding paragraphs involved physical
searches of the probationer's person or property conducted by
probation officials or police. Each incident involved an actual,
physical intrusion into the privacy of third persons. We refer to
these cases only to demonstrate the difficulties that inhere when a
C condition of probation authorizes a physical invasion of property
shared by a probationer and family or household members. Electronic
monitoring devices do not threaten third party interests in this
manner. Therefore, the assumptions wade in the discussion of the
probationer's privacy interests cauuot be made with regard to third
party privacy interests. By the same measure, we think the
distinctions drawn la the same discussion between the use of beepers
and electronic monitoring devices, distinctions not relevant to the
privacy interests of the probationer, are relevant here. The
comparison betveen the nature and level of intrusion posed by
electronic wnitors and home visits by probation officers is pertinent
here, too.
In our opinion, the possibility that the privacy interests of
third persons residing with electronically monitored probationers will
be comprom&sed is rewte and the effects of any intrusion into the
privacy of the home ephemeral. As you describe them, electronic
monitoring devices convey no information regarding activities within
the home other than the presence of the probationer. Indeed. the
devices impart no information whatsoever concerning the presence or
activities of third persons in the home. With one exception, the
systems you advocate do not subject the probationer to constant
surveillance in the home and thus pose the prospect of only sporadic
and transient intrusions. We do acknowledge the ever-present
possibility that a condition of probation , constitutional on Its fact,
may be unconstitutionally applied in a given situation. See, e.g.,
r‘ Cohen and Gobert, supra. $6.16. Bowever, you do not suggest, and we
shall not speculate, under what specific factual circumstances a
p. 3572
Mr. Don R. Stiles - Page 14 (JM-762)
condition of probation lmpermlssibly interferes with the coastitu-
tioual rights of third persons. Suffice it to say that under the
information we have been provided and upon our review of relevant
authorities, we camot conclude that the mere use of such devices
compromises the privacy interests of third persons living in a
probationer's home.
Due Process Considerations
The Fourteenth Amendment's guarantee of due process may be
relevant in determining whether a probatlouer may object to a
particular condition of probation. See
- Cohen and Gobert, supra,
95.10.
The due process clause has been invoked to contest conditions of
probation which are vague or interfere with a probationer's access to
courts. Id. Due process and the Texas guarantee of due course of
law, Tex.?%st. art. I, 519, require a defendant to receive a hearing
before the imposition of conditions which restrict personal freedom
and liberty of movement. Warr v. State, 591 S.W.Zd 832 (Tex. Grim.
App. 1979). The conditional freedom afforded probationers may not be
terxiuated without appropriate procedural safeguards. Gagaon v.
Scarpelli. 411 U.S. 778 (1973). Whether a probationer may demand
certain conditions of probation Is doubtful, however.
In order to support a violation of due process, a person must
establish a deprivation of liberty or property by government action.
Greenholtz v. Wtbraska Penal Inmates, 442 U.S. 1 (1979). The courts
look to the nature of the individual's interest and require the person
to have a legitimate claim of entitlement to it. Id. In Greenholts.
the Supreme Court concluded that a statute which crzed a possibility
of parole provided prison inmates no more than a mere hope that parole
would be obtained. The parole eligibility provisions of article 42.12
have been held to create no protectlble interest under the due process
clause. Moncier v. State. 704 S.W.Zd 451 (Tex. App. - Dallas 1986, no
pet.). Whether Greenholtx requires probationers to locate a liberty
interest in a statute, administrative rule, or coastitutlonal
provision is open to debate. See
- Cohen and Gobert, supra, 52.27.
If Greenholts is extended to probation granting procedures, it is
unlikely that a potential probationer will be deemed to have a liberty
interest in receiving particular conditions of probation. A person
convicted of a crime has no inherent right to probation. See Cohen
and Gobert. supra, 14.02. In the parole setting, it has beea held
that terms specifying where a parolee shall live are not subject to a
due process challenge. Alonxo v. Rosanski, 808 F.2d 637 (7th Cir.
1986). Article 42.12, section 6(a), of the Cede of Criminal Procedure
neither limits nor requires the court to impose the conditions
specified in that section. See Macias v. State, supra. The primary
limitation on the setting ofynditions of probation is that they be
reasonably related to the treatment of the accused and the protection
p. 3573
Mr. Don R. Stiles - Page 15 (JM-762)
of the public. Tams v. State, supsa. Assuming that a potential
probationer is au appropriate subject for restrictions on his freedom
of movameat and associations, we do not believe that either article
42.12 or e create an expectation that these restrictions will be
imposed in a particular manner. Since we have already concluded that
electronic monitoring devices are no wrt restrictive than other
acceptable conditions, we do not believe a probationer may object to
their use as a condition of his probation.
Your first two questions are answered in the negative.
III.
Your third question. concerning the possible requirement that a
probationer wear a device attached to his body during the period of
probation, raises an issue under the Eighth Amendment to the United
States Constitution, which prohibits the infliction of cruel and
unusual punishment. See also Tex. Coast. art. I. 113. The few cases
raising this issue suggest that conditions which are excessively harsh
or impossible to comply with may be invalid under this constitutional
provision. Cohen and Gobert. w, 05.10. The Eighth Amendment is
relevant to your third question because It has beta raised to contest
the validity of conditions requiring the probationer to wear a
particular item of clothing or publicly display a symbol signifying
his conviction for a particular crime.
The Supreme Court has stated that the inquiry into the
excessivenass of a particular punishment involves two aspects: first,
the punishment must not involve. an unnecessary and wanton infliction
of pain, and second, It must not be grossly out of proportion to the
severity of the crima being punished. Gregg v. Georgia. 428 U.S. 153,
173 (1976). The second aspect is implicit in the requirement that a
condition of probation bear a reasonable relationship to the treatment
of the accused and the protection of the public and Is. in every case,
a fact question. See Tames v. State, supra. We will therefore
consider whether ayondition of probation which requires the
probationer to wear an electronic monitoring device involves an
unnecessary tad wanton infliction of pain.
In one case, the defendant. on probation as a result of his
conviction in a purse-snatching incident, was ordered to wear shoes
with leather soles and metal taps on the heels and toes anytime he
left his house. People v. McDowell, 130 Cal. Rptr. 839 (Cal. App.
1976). The probationer complained that this condition of probation
was tantamount to requiring him to wear a sign proclaiming he was a
thief. The court disagreed with the notion that persons who wore
shoes vith metal taps were thought to be thieves by the public and
noted that the condition bore a direct relationship to the proba-
P
tioner's budding carter as a purse snatcher. 130 Cal. Rptr. at 843.
Compliance with the condition would foster rehabilitation and promote
public safety. The sound of the taps, the court concluded, would
p. 3574
.
UT. Doll R. Stiles - Page 16 (33-762)
remind the probationer of the fact that he was on probation and would
quell auy temptation he might have during the period of probation to
engage In this typo of criminal behavior. Id. The court accepted the
substance of the condition, but ordered theyial court to clarify the
condition in light of an ambiguity concerning its application. Id.
-
A recent Florida case upheld a condition imposed as part of
probation for a conviction of driving under the influence of alcohol
vhich required the probationer to affix to his personal vehicle a
bumper sticker reading, "CONVICTEDD.U.I. -- RESTRICTEDLICENSE.,,
Golds&mitt v. State, 490 So.Zd 123 @la. Dist. Ct. App. 1986). The
probationer likened the condition to outmoded forms of publicly
suffered punishment such as the stock and pillory. The court
observed. however, that "[tlhe mere requirements that a defendant
display a 'scarlet letter' as part of his punishment is not
accassarily offensive to the Constitution." 490 So.Zd at 125.
The Florida court believed the rehabilitative effect of probation
way be enhanced if it "inflicts disgrace and contumely in a dramatic
and spectacular manner.,, &, guoting United States v. William
Anderson Co., Inc., 698 F.2d 911, 913 (8th Cir. 1982). overruled on
other grounds, United States v. Missouri Valley Constr. Co., 741 F.2d
1542 (8th Cir. 1984). The court in the William Anderson case also
approved behavioral sanctions imposed as conditions of probation,
citing their deterrent effect:
Heasures art effective which have the impact of
the 'scarlet letter' described by Nathaniel
Bawthorne, or the English equivalent of 'wearing
papers' in the vicinity of Westminister Rail like
a sandwich-man's sign describing the culprit's
transgressions.
698 F.2d at 913.
The Golds&mitt court also considered the possibility that
inuocent third persons might be punished by the use of the bumper
sticker, insofar as such persons might own or operate the proba-
tioner's vehicle. Its doubts were removed when It was wade clear that
the message on the sticker would be obscured with a special device
when persons other than the probationer were using the vehicle. 490
So.Zd at 126 a. 5.
The courts will not, however, sanction probation conditions which
are excessively harsh and demeaning. The Goldschmitt court cited as
an example Bians v. State, 343 So.Zd 913 (Fla. Dist. Ct. App. 1977).
Bieaz concerned a probationer who vas placed in a halfway house with
directions that he obey all orders. The rules of the halfway house
stated that the probationer was free to leave If any task seemed
demeaning. A supervisor at the facility accused the probationer of
behaving like a baby and, as a learning experience, ordered him to
p. 3575
.
Mr. Don R. Stiles - Page 17 (JM-762)
wear diapers over his clothing. The probationer balked at the order,
choosing to leave the facility instead. His probation was later
revoked. The court resolved the case on other grounds but commented:
“[slufflce it to say that a command . . . that au adult male wear
diapers in public would certainly be demaaaiag in the minds of
so-called reasonable men.” 343 So.Zd at 915; see Gold&mitt V.
State, 490 So. 2d at 126.
It is apparent, then. that a probation condition which requires
the probationer to wear a prescribed item will not offend the Eighth
Amendment merely because it subjects the probationer to some measure
of public disgrace or embarrassment, provided the condition otherwise
serves the goals of probation. The electronic monitoring devices you
describe do bear the possibility of exposing the probationer to public
obloquy’ particularly those which must be worn on the probationer’s
body. We do not believe the potential for such stigmatization,
though, readers the employment of such devices an excessive form of
punishment. Moreover, we think the use of electronic monitoring
devices would enhance the rehabilitation of a probationer for whom a
curfew is a permissible condition. The monitors would not only
encourage compliance with curfew, but act as a reminder of the
probationer’s conditional freedom. We cannot foresee the possibility
that third persons residing with the probationer will themselves be
exposed to cruel and unusual punishment by this use df an electronic
monitoring device, particularly since there appears to be little
chance that the device can be applied to persons other than the
probationer.
IV.
With respect to your fourth question. a requirement that a
monitoring device be attached to a telephone in the probationer’s home
(so-called “passive” monitoring systems) does not change our answers
to your first two questions. There are four reasons for this
conclusion. First, it is clear that the devices you describe are
incapable of transmitting anything wre than an electrical signal or a
voice exemplar of the probationer. Second, as we concluded in our
discussion of First Amendment concerns, we do not believe that a
probationer may object to the employment of a device which requires
him to provide voice samples for the purposes of monitoring compliance
with a condition of probation. Cf. United States v. Franks, supra;
Macias v. State, supra. Third, whatever intrusion is occasioned by
devices which must be attached to a telephone, it is brief and
significantly less intrusive than other means available for monitoring
a probationer’s progress. Compare Code Grim. Proc. art. 42.12,
06(a)(5). Fourth, the telephone requirement notwithstanding’ we
remain convinced that electronic monitoring devices ultimately serve
the purposes of the probation process by promoting the rehabilitation
and reformation of the probationer while providing for the protection
of the public at large. We hasten to add that this discussion should
not imply that passive monitoring systems are preferable to “active”
p. 3576
.
Mt. Don R. Stiles - Page 18 (JR-762)
.
waitoring systems. Such a decision must be made in the first
instance by those with administrative authority and not by this
office.
V.
To summarize, we conclude that the employment of electronic
monitoring devices as a condition of probation does not violate a
constitutionally protected interest of a probationer or a third person
residing In the probationer's home, provided the probationer may be
subjected to reasouable limitations on his freedom of wvewnt and
associations. The attachment of electronic monitoring devices to
either a probationer's body or to a telephone in the probationer's
how does wt violate a constitutioually protected interest of the
probationer or a third person residing in the probationer's how. We
caution that vt are here expressing no judgment regarding the
reliability of any particular monitoring system and the Implications
of that reliability on the probation revocation process. See
generally, People v. Ryan, 510 N.Y.S.Zd 828, 832 (N.Y. Grim. Ct. 1987)
(dicta suggesting that in-depth scientific and technical testimony
will be required when the accuracy or reliability of electronic
monitoring devices is made an issue in probation revocation
proceedings).
SUMI4ARY
The employment of electronic monitoring devices
as a condition of probation does not violate a
constitutionally protected interest of a
probationer or a third person residing in the
probationer's how, provided the probationer may
be subjected to reasonable limftations on his
freedom of movement and associations. The
attachment of electronic monitoring devices to
tither a probationer's body or to a telephone in
the probationer's how does not violate a
constitutioually protected interest of
the probationer or a third person residing in the
probationer's home.
JIM MATTOX
Attorney General of Texas
MARYXRLLRR
Executive Assistant Attorney General
p. 3577
Mr. Don R. Stiles - Page 19 (JM-762)
JUDGEZOLLIE STJ!AKLEy
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
p. 3578