                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-7-2000

United States v. Baker
Precedential or Non-Precedential:

Docket 97-1977




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000

Recommended Citation
"United States v. Baker" (2000). 2000 Decisions. Paper 160.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/160


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2000 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed August 7, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No: 97-1977

UNITED STATES OF AMERICA

v.

MANNY   BAKER,
a/k/a   HENRY HURTT
Manny   Baker, Appellant
(D.C.   Crim. No. 97-cr-00297)

On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. No. 97-cr-00297)
District Judge: Honorable Charles R. Weiner

Argued: November 5, 1999

Before: BECKER, Chief Judge, and GREENBERG,
Circuit Judges, and McLAUGHLIN, District Judge.*

(Filed: August 7, 2000)

        HOPE C. LEFEBER, ESQUIRE
         (ARGUED)
        1420 Walnut Street, Suite 1000
        Philadelphia, PA 19102

Counsel for Appellant



_________________________________________________________________
* Honorable Sean J. McLaughlin, United States District Judge for the
Western District of Pennsylvania, sitting by designation.
       MICHAEL R. STILES, ESQUIRE
       United States Attorney
       WALTER S. BATTY, JR., ESQUIRE
       Assistant United States Attorney
       Chief of Appeals
       ERIC B. HENSON, ESQUIRE
        (ARGUED)
       Assistant United States Attorney
       615 Chestnut Street, Suite 1250
       Philadelphia, PA 19106-4476

       Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge.

Appellant Manny Baker, a Pennsylvania state parolee,
was arrested while leaving the parole office for violating the
condition of his parole that required him to refrain from
driving. Parole officers searched the passenger
compartment of the borrowed car that Baker had driven to
the parole office. They also searched the trunk of the car
and discovered what they believed to be drug
paraphernalia. On the basis of what they found in the
trunk, the officers searched Baker's home, where they
found weapons and 66 grams of heroin. A federal grand
jury indicted Baker for possessing with intent to deliver a
controlled substance (heroin) in violation of 21 U.S.C.
S 841(a)(1), and for violating the statutes prohibiting felons
from possessing firearms, 18 U.S.C. SS 922(g)(1) & 924(a).
Before trial, Baker moved to suppress the evidence seized
from his home, but the District Court denied his
suppression motion. Baker proceeded to trial, where he was
convicted of violating SS 841(a)(1) and 922 (g)(1) and
sentenced to almost twenty years imprisonment on
weapons and drugs charges.

This appeal which, as we shall explain below, is now in
its third discrete phase, raises an important first-
impression question: whether the standard Pennsylvania
Board of Probation and Parole consent to search form,

                               2
signed by Baker as a condition of his parole, authorized
suspicionless searches of his person, property, and
residence. Before reaching this question, we will explain our
previous conclusions--memorialized in an unrequited
certification to the Pennsylvania Supreme Court--that
Baker had standing to object to the search of the vehicle,
which he did not own, and that the parole officers lacked
reasonable suspicion to search the trunk of that car. These
holdings are the predicate for the question whether the
consent to search form authorized suspicionless searches
because, if Baker lacked standing to object to the search, or
if the officers had reasonable suspicion, we could dispose of
the case without construing the consent form.

The consent to search form provided:

       I expressly consent to the search of my person,
       property and residence, without a warrant by agents of
       the Pennsylvania Board of Probation and Parole. Any
       items, in possession of which constitutes a violation of
       the parole/reparole shall be subject to seizure, and
       may be used as evidence in the parole revocation
       process.

If as a matter of Pennsylvania law the standard consent to
search form implies a requirement that parole officers have
reasonable suspicion in order to conduct a search of a
parolee, the evidence against Baker must be suppressed
and his conviction set aside. Because we conclude that the
form should be so construed (or more precisely, predict that
the Supreme Court of Pennsylvania would so construe it),
the order of the District Court denying Baker's motion to
suppress will be reversed.

I.

In August 1996, Baker drove to the state parole office in
Philadelphia for a scheduled visit with his parole officer. As
a condition of his parole, Baker had agreed not to drive
without a license. During the parole visit, a parole agent
asked Baker if he had a driver's license, and Baker
responded that he did not. When Baker attempted to drive
away after his visit, he was arrested by parole officers for
violating this condition of parole.

                               3
After Baker was arrested, parole officers searched the
passenger compartment and the glove compartment of the
car that Baker had been driving and discovered that the car
was registered in someone else's name. The officers could
not figure out how to open the trunk of the car. One of
them asked Baker, then in custody at the parole office, how
to open the trunk. Baker explained that the engine must be
turned on to open the trunk and gave the officer the keys
to the trunk.1 Once the parole officers got into the trunk,
they found what they suspected was drug paraphernalia:
"several screw top glass vials, oils, empty clear plastic
lunch bags and taller incense bags." The officers then
conducted a warrantless search of Baker's home, which
yielded numerous weapons and sixty-six grams of heroin.
As we have noted, the District Court found that this search
was justified by the reasonable suspicion that arose from
the items discovered in the car and denied Baker's motion
to suppress evidence. This appeal followed.

In a prior opinion, United States v. Baker, No. 97-1977
(3d Cir. Jan. 7, 1999), we ordered a limited remand for the
District Court to consider whether Baker had standing to
challenge the search of the car and whether there was
reasonable suspicion to justify the search of the trunk of
the car. On remand, United States v. Baker, No. 97-00297
(E.D. Pa. Mar. 17, 1999), the District Court concluded that
Baker had standing and that the parole officers had
reasonable suspicion to search the trunk of the car. In the
_________________________________________________________________

1. In a letter brief filed after the first stage of this appeal, the
government
advanced the following theory of consent for thefirst time:

       the defendant consented to the search and seizure of his bag from
       the trunk of the car when he identified the bag as his and
       instructed the parole agent in how to open the trunk. Scheckloth v.
       Bustamonte, 412 U.S. 218 (1973) (consent to search must be
       voluntary, but the government is not obliged to prove that the
       suspect was warned of any right to refuse consent).

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

                               4
wake of the District Court's opinion, the appeal presented
three questions: (1) whether Baker had standing to
challenge the search of the car; (2) whether there was
reasonable suspicion to search the trunk of the car that
Baker drove to the parole office; and (3) if there was not
reasonable suspicion, whether the search of the trunk was
still valid because of the consent form that Baker signed
upon his release on parole.2

Following receipt of supplemental briefing and additional
argument, the panel conferred and concluded that: (1)
Baker had standing to challenge the search of the car; and
(2) that the police lacked reasonable suspicion to search the
trunk of the car. On February 18, 2000, we certified to the
Pennsylvania Supreme Court (pursuant to Pennsylvania
Supreme Court Order No. 197, Judicial Administration,
Docket No. 1, filed Jan. 12, 2000) the remaining--and
vexing--question whether, under Pennsylvania law, the
consent form authorized suspicionless searches.

The Supreme Court did not accept our petition for
certification, leaving us to determine whether, under that
Court's opinions in Scott v. Pennsylvania Bd. of Probation &
Parole, 698 A.2d 32 (Pa. 1997), rev'd on other grounds, 524
U.S. 357 (1998), and Commonwealth v. Williams , 692 A.2d
1031 (Pa. 1997), the consent to search form used by the
Pennsylvania Board of Probation and Parole, as a matter of
Pennsylvania law, authorizes suspicionless searches or
implies a condition that any search conducted pursuant to
the consent form be founded on reasonable suspicion.

II.

The threshold question presented by these facts is that of
standing. Standing to challenge a search requires that the
individual challenging the search have a reasonable
_________________________________________________________________

2. In the first stage of the appeal, Baker also claimed that the District
Court erred in "failing to recognize its authority to depart from the
career
offender status on the grounds that the appellant's criminal history
status seriously overrepresented his past conduct and significantly
differed from the heartland." On remand, the District Court clarified that
it was fully aware of its authority to depart on this ground, and Baker
makes no argument on this issue at this time.

                                5
expectation of privacy in the property searched, see Rakas
v. Illinois, 439 U.S. 128, 143 (1978), and that he manifest
a subjective expectation of privacy in the property searched,
see California v. Greenwood, 486 U.S. 35, 39 (1988).

It is clear that a passenger in a car that he neither owns
nor leases typically has no standing to challenge a search
of the car. See Rakas, 439 U.S. 133-34 (holding that there
is no legitimacy to a defendant's expectations of privacy
where the area searched is in the control of a third party).
"Fourth Amendment rights are personal rights, which, like
some other constitutional rights, may not be vicariously
asserted." Id. at 133-34 (quoting Alderman v. United States,
394 U.S. 165, 174 (1969). "A person who is aggrieved by an
illegal search and seizure only through the introduction of
damaging evidence secured by a search of a third person's
premises or property has not had any of his Fourth
Amendment rights infringed." Id. at 134.

For these reasons, we have previously suggested that a
defendant who had stolen a car and used it in a robbery
would not have standing to object to a search of the car.
See United States v. Yeager, 448 F.2d 74, 85 (3d Cir. 1971)
(rejecting challenge to search on basis that "if[the
defendant's] theories were valid, a stolen car used in a
robbery could not be searched and objects therein seized by
the police without a search warrant"). We have never
considered, however, whether an individual who borrows a
car and has control over it has a legitimate expectation of
privacy in it.

Cases from other circuits suggest that whether the driver
of a car has the reasonable expectation of privacy necessary
to show Fourth Amendment standing is a fact-bound
question dependent on the strength of his interest in the
car and the nature of his control over it; ownership is not
necessary. Compare United States v. Cooper, 133 F.3d
1394, 1398-99 (11th Cir. 1998) (driver of a rental car whose
contract to rent the car had expired four days before the
search had a reasonable expectation of privacy in the car
because he could have extended the contract with a simple
phone call); United States v. Angulo-Fernandez , 53 F.3d
1177, 1179 (10th Cir. 1995) (driver who was able to
produce registration papers in the name of the person from

                               6
whom he claimed to have borrowed the car had standing);
United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th
Cir. 1990) (permission from the owner to use a vehicle
supports privacy expectation therein); United States v.
Garcia, 897 F.2d 1413, 1417-18 (7th Cir. 1990) (driver
using vehicle with the permission of an absent owner has
a reasonable expectation of privacy therein); with United
States v. Padilla, 111 F.3d 685, 687 (9th Cir. 1997)
(defendants lacked standing to object to the search of car in
which they had only a temporary "bailment interest");
United States v. Riazco, 91 F.3d 752, 755 (5th Cir. 1996)
(defendant lacked standing to object to the search of a
rental car in a case in which his name was not on the
rental agreement, the rental agreement had expired, and
the defendant did not have permission to drive the car from
the person who rented the car); United States v. Wellons, 32
F.3d 117, 119 (4th Cir. 1994) (driver of a rental car did not
have standing to contest the search thereof because he was
not listed as an authorized driver on the rental contract);
United States v. Ponce, 947 F.2d 646, 649 (2d Cir. 1991)
(defendant must show legitimate basis for possessing a car,
such as permission from the car owner, to have standing);
United States v. Sanchez, 943 F.2d 110, 113-14 (1st Cir.
1991) (because defendant failed either to show that he had
the owner's permission to use the car or to demonstrate
prior use or control of the car, the circumstances tipped in
favor of denying the motion to suppress).

Baker is asserting his own, not a third party's,
expectation of privacy. He came alone in the car to the
parole office. Although he did not own the car, he had
substantial control over it insofar as he had borrowed it
from a friend and had been driving it for four to six weeks.
He carried the keys to the car with him into the parole
office. Although the defendant and his associates were
somewhat vague about who owned the car, there is no
evidence in the record that the car was stolen or that Baker
knowingly possessed a stolen car. All of these factors lead
to the conclusion that Baker had a reasonable expectation
of privacy in the car. In Angulo-Fernandez, 53 F.3d at 1179,
the Court of Appeals for the Tenth Circuit rejected the
argument that the defendant lacked standing because the
registered owner, from whom a defendant claimed to have

                               7
borrowed the car, denied ownership. The court held that
"[t]he officer's testimony established that Mr. Angulo-
Fernandez had claimed to have borrowed the car from the
rightful owner and had produced a registration bearing the
owner's name. Although such evidence may not be
determinative of the Defendant's right to possess the car,
absent evidence to the contrary, it is sufficient to meet his
burden of demonstrating Fourth Amendment standing." Id.
Similarly, in Garcia, 897 F.2d at 1418, the Court of Appeals
for the Seventh Circuit held that a driver who borrowed a
car (but was unable to provide the last name of the owner)
had standing to object to the search because "[i]f an
individual has the owner's permission to use property,
society surely recognizes this as reasonable." (citation
omitted).

We conclude that a discrepancy between an individual's
statement regarding the owner of the car he is driving, and
the identity of the owner of the car as reflected by the title
and registration, is not enough, by itself, to destroy the
driver's reasonable expectation of privacy when there is
clear evidence of continuing possession and control, as well
as no evidence that the driver obtained the car
illegitimately. Under the circumstances, therefore, Baker
had the requisite legitimate expectation of privacy to
support standing for Fourth Amendment purposes.

III.

Given that Baker has standing to challenge the search,
the next question is whether the District Court erred in
concluding that the parole agent had reasonable suspicion
to search the trunk of the car. Though officers may lawfully
search the passenger compartment of the car incident to
arrest, see New York v. Belton, 453 U.S. 454, 460 (1981)
(holding that, when a policeman has made a lawful
custodial arrest of the occupant of an automobile, he may,
as a contemporaneous incident of that arrest, search the
passenger compartment of that automobile), such a search
incident to arrest does not extend to the trunk of the car,
see id. at 460-61& n.4. Thus, in order for the search of the
trunk to comport with the Fourth Amendment, it had to

                               8
have been supported by the level of suspicion required
under the Fourth Amendment.

Under normal circumstances, the Fourth Amendment
requires government officials to have both probable cause
and a warrant to conduct a search. In the case of parolees,
however, the requisite level of suspicion is reduced and a
warrant is not required. In Griffin v. Wisconsin, 483 U.S.
868, 871-72 (1987), a Wisconsin statute authorized
probation officers to conduct warrantless searches of
probationers' homes when there were "reasonable grounds"
to believe that contraband would be found there. The Court
found that the operation of a state's probation system
presented "special needs," beyond the need for law
enforcement, justifying an exception to the warrant and
probable cause requirements of the Fourth Amendment.
See id. at 873-74. The Court noted:

       To a greater or lesser degree, it is always true of
       probationers (as we have said it to be true of parolees)
       that they do not enjoy "the absolute liberty to which
       every citizen is entitled, but only . . . conditional liberty
       properly dependent on observance of special
       [probation] restrictions."

Id. at 874 (quoting Morrissey v. Brewer , 408 U.S. 471, 480
(1972)) (omission and alterations in original). The Court
went on to hold that the special needs of the probation
system, including the need to supervise probationers, see
id. at 875, justified a lower standard for searches of a
probationer's property, see id. at 878. Specifically, the
Court held that a search could be conducted on the basis
of such "reasonable grounds" as information indicating that
there might be weapons in a probationer's home. See id. at
880.

In United States v. Hill, 967 F.2d 902, 909 (3d Cir. 1992),
we extended the holding in Griffin to parolees and
concluded that a parolee's car or home can be searched on
the basis of reasonable suspicion alone, even in the
absence of an authorizing state statute such as that in
Griffin. In Hill, the defendant was arrested for violating
parole. His apartment was then searched and two guns
were seized. See 967 F.2d at 904-05. We affirmed the

                               9
district court's denial of Hill's motion to suppress the guns,
concluding that "parole may be an even more severe
restriction on liberty because the parolee has already been
adjudged in need of incarceration." Id. at 909. Quoting
Latta v. Fitzharris, 521 F.2d 246, 249 (9th Cir. 1975), we
noted that "parole authorities have a `special and unique
interest in invading the privacy of parolees under their
supervision.' " Hill, 967 F.2d at 910."[I]t is reasonable to
allow a parole officer to search whenever he reasonably
believes that it is necessary to perform his duties. The
decision to search must be based on `specific facts,' but the
officer need not possess probable cause." See id.; see also
Terry v. Ohio, 392 U.S. 1, 21 (1968) (holding that
reasonable suspicion requires "specific and articulable facts
which, taken together with rational inferences from those
facts, reasonably warrant the intrusion" of a warrantless
search).

In Hill, the officers acted on a report from the parolee's
estranged wife that he had committed several parole
violations, including keeping drugs and guns in the home
that they jointly owned. See 967 F.2d at 904, 911. We
concluded that these facts were specific enough to give rise
to reasonable suspicion. We also rejected Hill's argument
that, once he was arrested, any special need justifying a
lower standard vanished, concluding that "the parole
agents' `interest in inspecting [Hill's] place of residence did
not terminate upon his arrest; if anything, it intensified.' "
Id. at 911 (quoting Latta, 521 F.2d at 252); see also United
States v. Jones, 152 F.2d 680, 686 (7th Cir. 1998) (rejecting
the argument that "the State's special supervisory need is
diminished when a parolee is in custody").

Following remand in this case, the District Court
concluded that the search of the trunk was lawful because
(1) Baker had no driver's license (which was a violation of
his parole); (2) Baker could not produce documentation
demonstrating that he owned the car; and (3) the parole
officer might reasonably have concluded that Baker"might
have been in further violation of his parole (the car might
have been stolen) or that the trunk of the car might contain
evidence of a further violation of his parole such as drug
paraphernalia."

                               10
We disagree that there was justification to search the
trunk. The parole officers' actions were not based on
"specific facts" giving rise to suspicion that there would be
some evidence of a further violation of parole in the trunk.
In Hill, the parole officers acted pursuant to information
regarding specific allegations of parole violations. See Hill,
967 F.2d at 911. Here, by contrast, there were no similar
allegations. There is no evidence in the record that the
parole agents who searched Baker's trunk had yet
discovered the inconsistencies between the title/registration
and Baker's statements regarding the ownership of the car
when they searched the trunk.3 Even if they had, we do not
think that a mere suspicion that a car might be stolen
justifies a search of the trunk of that car: There is little
reason to think evidence of the car's rightful owner would
be found in the trunk.4

Similarly, neither Baker's violation of his parole by
driving a vehicle or his failure to document that he owned
the vehicle can give rise to a reasonable suspicion that he
was committing other, unspecified, unrelated parole
violations--the evidence of which might be found in the
trunk. Cf. Knowles v. Iowa, 525 U.S. 113, 118 (1998)
("Once [the defendant] was stopped for speeding and issued
a citation, all the evidence necessary to prosecute that
offense had been obtained. No further evidence of excessive
speed was going to be found either on the person of the
offender or in the passenger compartment of the car." ).
_________________________________________________________________

3. The District Court found that, before the parole agent searched the
trunk, he knew that "the defendant could not produce documents
demonstrating that he owned the car." However, Agent Knorr testified
that the relevant portions of the conversation regarding the ownership of
the car occurred after the agents searched the trunk. See App. at 28a
("Q: After you searched the trunk you returned to your office, is that
right? A: Yes. Q: And when you went back inside did you have a
conversation with anyone? A: I asked Mr. Baker who owned the vehicle
. . .").

4. The officer testified that, when he conducted a title search, he
learned
that the car was not listed as a stolen vehicle. See App. at 37a ("Q:
There
is no evidence at all that the vehicle was stolen, correct? A: When I ran
it it was not on the computer listed as stolen but the name did not
match the person who was in possession of it.").

                                11
Reasonable suspicion requires more specificity than these
parole officers had in this case. Thus, we are satisfied that
the search of the trunk was not supported by reasonable
suspicion. The evidence procured in the search of the trunk
and the house must therefore be suppressed as the fruits
of an illegal search unless the consent form provided a
basis for the search.

IV.

The parties agree that the proper construction of the
consent form that Baker signed turns on two cases decided
by the Pennsylvania Supreme Court, Commonwealth v.
Williams, 692 A.2d 1031 (Pa. 1997), and Scott v.
Pennsylvania Bd. of Probation & Parole, 698 A.2d 32 (Pa.
1997), rev'd on other grounds, 524 U.S. 357 (1998). Baker
contends that under these precedents the consent form
that he signed must be construed as a matter of
Pennsylvania law to imply a condition that the parole
officers have reasonable suspicion to justify any search of
his person, property, or residence. If Baker is correct, the
evidence procured in the search of the house must be
suppressed because the consent form he signed did not
authorize searches in the absence of reasonable suspicion.

The United States disagrees, contending that the
Pennsylvania Supreme Court's resolution of Williams and
Scott rested on federal constitutional grounds rather than
the proper construction of the Pennsylvania consent form.
More specifically, the government submits that these cases
hold that an unqualified consent to search executed as a
condition of parole can justify a search consistent with the
Fourth Amendment only where reasonable suspicion is
present, but do not decide whether--under Pennsylvania
law--the form should be construed to provide unqualified
consent to search. Since we are not bound by
Pennsylvania's interpretation of the Fourth Amendment,
this reading of Williams and Scott would leave us free to
construe the forms anew.

We agree with the government that the Pennsylvania
Supreme Court has never directly construed the form as a
matter of Pennsylvania law. Nevertheless, as we shall

                               12
explain, although we believe that it is arguable that the
form waives the reasonable suspicion requirement, Williams
and Scott strongly suggest that Pennsylvania would
construe the form to preserve the reasonable suspicion
requirement.

In Williams, the Pennsylvania Supreme Court reviewed a
parolee's claim that a search conducted pursuant to a
consent form identical to the one at issue here violated his
Fourth Amendment rights.5 The Court analyzed the
conflicting interests involved in the case, the relevant
precedents (state and federal, including Griffin), and the
approaches taken by other states, and adopted the
approach that:

       the parolee's signing of a parole agreement giving his
       parole officer permission to conduct a warrantless
       search does not mean either that the parole officer can
       conduct a search at any time and for any reason or
       that the parolee relinquishes his Fourth Amendment
       right to be free from unreasonable searches. Rather,
       the parolee's signature acts as acknowledgment that
       the parole officer has a right to conduct reasonable
       searches of his residence listed on the parole
       agreement without a warrant.

Id. at 1036.

Significantly, the approach adopted requires a court to
conduct what amounts to a Fourth Amendment analysis
when a parole officer conducts a search pursuant to the
consent form:

       A search [conducted pursuant to the form] will be
       deemed reasonable if the totality of the evidence
_________________________________________________________________

5. In Commonwealth v. Pickron, 634 A.2d 1093, 1098 (Pa. 1993), the
Pennsylvania Supreme Court recognized that a parolee has limited
Fourth Amendment rights, but held that the Fourth Amendment
prohibited "the warrantless search of a probationer or a parolee's
residence based upon reasonable suspicion without the consent of the
owner or a statutory or regulatory framework governing this kind of
search." Pickron specifically reserved the question whether an agreement
signed by a parolee giving consent to a warrantless search could survive
constitutional scrutiny. See id. at 1098 n.6; Williams, 692 A.2d at 1035.

                                13
       demonstrates: (1) that the parole officer had a
       reasonable suspicion that the parolee had committed a
       parole violation, and (2) that the search was reasonably
       related to the parole officer's duty.

Id. (citation omitted). As such, the Williams case seems to
be based on the Pennsylvania Supreme Court's
interpretation of the Fourth Amendment (especially insofar
as it purports to adopt the "middle ground" approach
adopted by other states, which approach seems simply to
require that parolees acknowledge that parole officers can
conduct reasonable searches without a warrant, see id. at
1037). Indeed, the Court concluded that this approach
"comports with the Fourth Amendment protection afforded
to parolees by the United States Supreme Court in Griffin,
supra, and in our sister states." Id. Nevertheless, the Court
in Williams concluded that the parole agents had
reasonable suspicion to search the defendant, so it did not
have to decide whether the form authorized suspicionless
searches. See id. at 1037-38.

Four months later, in Scott v. Pennsylvania Bd. of
Probation & Parole, 698 A.2d 32 (1997), rev'd on other
grounds, 524 U.S. 357 (1998), the same Court squarely
faced the question whether a parolee is entitled to the
protections of the Fourth Amendment in his parole
revocation hearing when he signed a consent to search
form as a condition of his parole. The Scott Court construed
its decision in Williams as a decision balancing the
interests of the government and parolees. The Court noted
that, "[i]n deciding what effect the signing of the consent
provision had on Williams's limited rights under the Fourth
Amendment, we `balanc[ed] the governmental interests
involved in granting parole and supervising parolees with
that interest of the private individual, i.e., the parolee,
which has been affected by the governmental action.' "
Scott, 698 A.2d at 35 (1997) (quoting Williams, 692 A.2d at
1035). This passage suggests that the Pennsylvania
Supreme Court read its earlier decision as having been
based on weighing of the Fourth Amendment interests

                               14
involved and not the meaning of the form as a matter of
Pennsylvania law.6
_________________________________________________________________

6. When Scott was reviewed by the United States Supreme Court, that
Court noted the contention "that the Pennsylvania Supreme Court's
opinion was at least ambiguous as to whether it relied on state or federal
law to determine the extent of respondent's consent . . . ." Scott v.
Pennsylvania Bd. of Probation & Parole, 524 U.S. 357, 362 n.3 (1998).

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

         QUESTION: I'm not sure you're right in saying that the Pennsylvania
         supreme court based its interpretation of the consent form on its
         reading of the Fourth Amendment. I thought they might have just
         based it on an interpretation of Pennsylvania law.

         GENERAL FISHER: Mr. Chief Justice, we argue very strongly that
         they did, in fact, interpret it based on their reading of the
Fourth
       Amendment, and that is where we disagree. We believe that a search
       of a parolee's residence may be without suspicion, or a
suspicionless
       search.

         QUESTION: Well, you--suppose this consent form were redrafted to
         make clear that the person paroled is consenting to a search
         without a warrant and to a search without any suspicion whatever.
         Suppose it were drafted that way. Now, what do you think the
         Pennsylvania courts would say to that?

         GENERAL FISHER: It's--we believe that the Pennsylvania courts
         would say, based on what they said in this case, that we could not
         have that kind of consent form, because we believe they have--

         QUESTION:--the Fourth Amendment?

         GENERAL FISHER: Because the Fourth Amendment requires
         reasonable suspicion.

         QUESTION: It just wasn't clear to me whether that's what they said,
         because they could have meant the consent form just didn't cover
it.

         GENERAL FISHER: No, Justice O'Connor, we think they said very
         clearly that the Fourth Amendment requires reasonable suspicion.

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

While this colloquy hardly resolves the issue, we set it forth for
background and for ease of reference when this issue comes before the
Pennsylvania Supreme Court, as it doubtless some day will.

                               15
At the same time, Scott notes that "applying Williams to
the instant case, we hold that Appellee has a Fourth
Amendment right against unreasonable searches and
seizures that is unaffected by his signing of the consent to
search provision." 698 A.2d at 36. Although the Court does
not explain why (i.e., whether it is interpreting Pennsylvania
law), in our view this statement suggests that signing the
form does not effect a waiver of any of the signatory's rights
under the Fourth Amendment.

The problem we have in construing the Williams and
Scott decisions stems from the fact that, instead of engaging
in a two-stage analysis, asking first whether the form as a
matter of Pennsylvania law provided for suspicionless
searches or required reasonable suspicion, and second
whether the form as construed under Pennsylvania law
comported with the requirements of the Fourth
Amendment, the Pennsylvania Supreme Court did not go
beyond reasoning that under the Fourth Amendment a
search of a parolee required reasonable suspicion, and it
construed the form in light of that requirement. The Court
did not independently analyze the meaning of the form as
a matter of Pennsylvania law.7 Accordingly, we need to
decide whether, as a matter of Pennsylvania law, Baker
consented to a suspicionless search of his person and
property by signing the form.

By its terms, there are (at least) two possible readings of
the Pennsylvania standard form. First, it can be understood
to authorize suspicionless searches, because there is no
caveat modifying the phrase "I expressly consent to the
search of my person, property and residence" that would
suggest that the background rule of reasonable suspicion
applies. This interpretation does make sense of the plain
language of the consent form and the common
understanding of what it means to consent to a search in
the Fourth Amendment context. Cf. Florida v. Jimeno, 500
_________________________________________________________________

7. Pennsylvania follows the judicial policy that courts   should not reach
constitutional questions if they can decide a case upon   non-
constitutional grounds. See Gartner v. Commonweath, 469   A.2d 697, 700
(Pa. 1983). However, neither the Williams nor the Scott   Court explicitly
invoked this principle as a basis for its decision.

                               16
U.S. 248, 251 (1991) ("The standard for measuring the
scope of a suspect's consent under the Fourth Amendment
is that of `objective' reasonableness--what would the typical
reasonable person have understood by the exchange
between the officer and the suspect?") (citations omitted);
United States v. Kim, 27 F.3d 947, 957 (3d Cir. 1994) ("Of
course [the defendant] could have limited his consent to
certain items, but he had the burden to express that
limitation.") (citing Jimeno, 500 U.S. at 252). If
Pennsylvania had adopted this interpretation, however, the
reason for the extended discussion of reasonable suspicion
in Williams and Scott would be unclear.

The second construction of the form is that it waives only
the warrant requirement. On this reading, the phrase"I
expressly consent to the search of my person, property and
residence, without a warrant" is limited in the sense that it
waives only the warrant requirement and leaves the
reasonable suspicion requirement in place. The difficulty
with this position is that Griffin (which we have applied to
searches of parolees) holds not only that reasonable
suspicion (rather than probable cause) is the requisite level
of suspicion for searches of probationers, but also that no
warrant is required when conducting such searches. See
Griffin, 483 U.S. at 876-77 (holding that the special needs
of the probation system made the warrant requirement
impracticable); see also Hill, 967 F.2d at 910 (holding that
in light of the special needs of a parole system, the warrant
requirement does not apply to searches of parolees).

On this interpretation, the consent to search form has no
effect--it simply states the legal standard for searching a
parolee that would apply even in the absence of the form.
It is hard to understand why Pennsylvania would feel the
need to require parolees to consent affirmatively to the
background rule of warrantless searches, but not to
consent affirmatively to the background rule of reasonable
suspicion, if the form was intended simply to set forth the
governing standards to search parolees. Nevertheless,
Williams characterizes the parole agreement as an
"acknowledg[ment] that agents of the Parole Board could
conduct a warrantless search," id. at 1037, which supports
the view that the consent form effects no waiver and serves
only as an acknowledgment of the background rule.

                               17
In these circumstances, it is our job to predict what
Pennsylvania would do if it were to construe the form solely
as a matter of Pennsylvania law. Based on our reading of
Pickron, 634 A.2d 1093 (Pa. 1993), and Williams, coupled
with the tenor of the discussion in Scott, we conclude that
Pennsylvania would construe the consent form to include
an implicit requirement that any search be based on
reasonable suspicion. We begin with Pickron, in which the
Court decided that, in the absence of consent or a statutory
or regulatory scheme authorizing suspicionless searches of
parolees, the Fourth Amendment required reasonable
suspicion to search parolees. That decision is consistent
with Griffin and Hill. Then in Williams, the Court noted
that, following Pickron, the Pennsylvania General Assembly
enacted two statutory provisions authorizing searches of a
parolee by state and county parole officers based on
reasonable suspicion. See Williams, 692 A.2d at 1035 n.9
(referring to 61 PA. Cons. Stat. SS 331.27a, 331.27b). As
such, Pennsylvania's statutory scheme adheres to the
reasonable suspicion rule.

More significantly, nothing in Scott suggests that the
consent form authorizes the suspicionless searches not
provided for by the statutory scheme, and at least one
statement suggests that the consent form is similarly
limited. As we have noted, Scott states that"applying
Williams to the instant case, we hold that Appellee has a
Fourth Amendment right against unreasonable searches
and seizures that is unaffected by his signing of the
consent to search provision." 698 A.2d at 36. But if the
form waived the reasonable suspicion requirement, it would
affect a parolee's substantive rights.

When engaging in a predictive exercise, as we do here, we
sometimes must not only read the lines but also between
the lines, as it were. The Pennsylvania Supreme Court's
consistent application of the Fourth Amendment
reasonableness inquiry to the consent form in Williams and
Scott, and its repeatedly expressed concern with balancing
the interests of the state with the privacy interests of the
parolee, also suggest to us that that Court does not believe
that the form authorizes suspicionless searches. Rather,
the analysis engaged in, which focuses on the

                                18
reasonableness of the search, would be unnecessary if the
form authorized a search not otherwise permitted under the
Fourth Amendment. See, e.g., Williams , 692 A.2d at 1036
("A search will be deemed reasonable if the totality of the
evidence demonstrates: (1) that the parole officer has a
reasonable suspicion that the parolee had committed a
parole violation, and (2) that the search was reasonably
related to the parole officer's duty.") (citations omitted).
Accordingly, we conclude that Pennsylvania would construe
the standard form as requiring reasonable suspicion to
conduct a search, and thus that the consent form that
Baker signed did not authorize suspicionless searches of
his person, property, or residence.

V.

For the foregoing reasons, we conclude that the search of
the trunk was not founded on reasonable suspicion, and
that the consent form did not authorize a suspicionless
search thereof. The fruits of the search, including the
evidence found in the search of Baker's house, must
therefore be suppressed. See Wong Sun v. United States,
371 U.S. 471 (1963). The order of the District Court
denying Baker's motion to suppress will be reversed and
the case remanded to the District Court for further action
consistent with this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                19
