Jeffrey Souders, the plaintiff in this action under 42 U.S.C. § 1983, seeks damages from defendants, Frank Kroboth and Alan Dale, in their individual capacity for violating his federal constitutional rights. Count I of Souders' complaint alleges that defendants, both of whom are employed by the Pennsylvania Board of Probation and Parole (Board), while acting under color of state law, violated his Fourteenth Amendment right to due process in that they used illegally seized evidence to cause charges of parole violation to be placed against him which ultimately resulted in the revocation of his parole. Count II of the complaint alleges that defendants, while acting under color of state law, violated his Fourth and Fourteenth Amendment right to be secure from arbitrary government invasions by conducting an unlawful search of his home. The defendants have now moved for summary judgment. Fed.R.Civ.P. 56.
In its entirety, the record on this motion consists of the amended complaint, the defendants' answer thereto, and the individual affidavits of the defendants submitted in support of their motion for summary judgment. The plaintiff has submitted a memorandum of law in opposition to the defendants' motion, but has offered no opposing affidavits. Based on these materials, there is no dispute as to the following facts.
On December 23, 1980, plaintiff was awaiting a job interview at a business establishment in Allentown, Pennsylvania, when he was arrested by defendants for failing to report regularly to his parole agent in violation of the plan of parole approved for him by the Board. Defendants then conducted a pat down of plaintiff and discovered a pipe that had a "distinct odor of marijuana about it." (Kroboth Affidavit, para. 13.) The plaintiff was then handcuffed and taken to the Lehigh County Prison. While enroute to the prison, plaintiff attempted to strangle himself with the chain of the handcuffs, but was restrained by defendants. After plaintiff was placed in custody, defendants went to plaintiff's residence, informed his wife of the arrest, and requested permission to search the premises. When asked by plaintiff's wife whether they had a warrant to search, they responded that no warrant was necessary because plaintiff was a parolee. Defendants then searched the premises and found two marijuana cigarettes and various drug paraphernalia.
The next day, December 24, 1980, plaintiff was informed by his parole agent, Barry Statkus, that his home had been searched and that drugs had been found. Five days later, plaintiff received formal notice that he was being charged with the following violations of his plan of parole: (1) failure to report regularly as instructed to his parole agent; (2) failure to abstain from the unlawful possession and/or sale of narcotics or other dangerous drugs, and (3) failure to refrain from engaging in behavior dangerous to himself or others. The notice of charges was signed by Parole Supervisor Francis J. Stehling. A parole revocation hearing was held on December 31, 1980, and approximately one month later, the Board revoked plaintiff's parole.
Count I of plaintiff's complaint, as I mentioned earlier, seeks damages in connection with the use of the evidence obtained in the search. The gravamen of plaintiff's causes of action is set forth in paragraph twelve of the amended complaint, which reads in pertinent part:
By means of the evidence seized by defendants in their illegal search of plaintiff's apartment, defendants caused charges to be placed against the plaintiff which, in turn, caused plaintiff's recommitment for all or part of the term of twelve (12) months, thus depriving plaintiff of liberty without due process of law in violation of the Fifth and Fourteenth Amendments. . . ."
Defendants contend that plaintiff has stated no claim for relief because, even assuming the illegality of the search, the exclusionary rule does not apply in parole revocation hearings. In support of their argument, defendants rely on United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970), which held that the fruits of an unlawful search and seizure are admissible in parole revocation proceedings.
Plaintiff responds to defendants' contention, arguing that the fact that one remedy (suppression) is not available to redress a violation of his constitutional rights in no way implies that an alternative remedy (damages) is likewise not available.
Plaintiff's argument presupposes that a distinct constitutional right of his was violated when defendants used the fruits of the illegal search to cause charges of parole violation to be lodged against him.
An analysis of the validity of this presupposition must begin with the United States Supreme Court's decision in Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972).
In Morrissey, the Court was confronted with the broader question of whether the requirements of due process apply at all to parole revocation. While the Court concluded that a parolee is entitled to due process, it held that all the Constitution requires is that the parolee be given "an opportunity to be heard and to show, if he can, that he did not violate the conditions, or if he did, that circumstances in mitigation suggest that the violation does not warrant revocation." Id. at 488. The Court was careful to point out, however, that the full panoply of rights due a defendant in a criminal proceeding does not apply to parole revocation. More specifically, in delineating the minimum requirements of due process that must be afforded in revocation proceedings, the Court stated:
We emphasize that there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in any adversary criminal trial.