Appellant Herbert Sperling appeals from an order of the United States District Court for the Southern District of New York denying without a hearing his application for a writ of habeas corpus.

Appellant was a mandatory releasee subject to the supervision of the United States Board of Parole.1 On June 8, 1968, two New York City police officers unlawfully searched appellant and another man and took from appellant's possession a loaded .38 caliber pistol.2 On June 27, 1968 the Board of Parole, upon an application setting forth information as to this incident, issued a warrant for the retaking of appellant as a mandatory release violator.3 Appellant surrendered himself to his Parole Officer and on October 25, 1968, a mandatory release revocation hearing was held before an examiner designated by the Board of Parole pursuant to 18 U.S.C. 4207 (1964). Appellant appeared and was represented by counsel. The warrant application and a police report substantiating the information contained in the application were introduced into evidence. The examiner found that on June 8, 1968, appellant was in possession of a .38 caliber loaded pistol in violation of the conditions of his release,4 and upon the examiner's recommendation the Board of Parole revoked appellant's release.

Appellant contends that the Board of Parole could not use the fruits of an unlawful search and seizure as evidence to prove a violation of parole. We cannot accede to this contention and affirm the denial of appellant's petition for a writ of habeas corpus on the ground that the exclusionary rule is not applicable in a parole revocation proceeding.

The Board of Parole's action in revoking appellant's mandatory release was authorized by 18 U.S.C. 4207 (1964).5 In determining whether a mandatory releasee has violated any of the conditions under which he was released, the Board may consider information from any reliable source and if 'satisfactory evidence is presented to the Board, a warrant may be issued and the offender returned to an institution.' Parole Board Directive No. 1,28 C.F.R. 2.35 (1969). The Parole Board is thus vested with the broadest discretion consistent with due process to act upon reliable evidence in revoking parole. See Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 242 (en banc), cert. denied sub nom. Jamison v. Chappell, 375 U.S. 957, 84 S. Ct. 447, 11 L. Ed. 2d 316 (1963). Appellant does not dispute that there was reliable evidence that he had possession of a loaded pistol in violation of one of the conditions of his release.

The exclusionary rule is believed to be a necessary restraint on the adversarial zeal of law enforcement officials.6 'As it serves this function, the rule is a needed, but grudgingly taken, medicament; no more should be swallowed than is needed to combat the disease.' Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U.Pa.L.Rev. 378, 389 (1964).

A parole revocation proceeding is not an adversarial proceeding. A parolee remains, 'while on parole, in the legal custody and under the control of the Attorney General.' 18 U.S.C. 4203 (1964); Anderson v. Corall, 263 U.S. 193, 196, 44 S. Ct. 43, 68 L. Ed. 247 (1923). A parole revoction proceeding is concerned not only with protecting society, but also, and most importantly, with rehabilitating and restoring to useful lives those placed in the custody of the Parole Board.7 To apply the exclusionary rule to parole revocation proceedings would tend to obstruct the parole system in accomplishing its remedial purposes.

There is no need for double application of the exclusionary rule, using it first as it was used here in preventing criminal prosecution of the parolee and a second time at a parole revocation hearing. The deterrent purpose of the exclusionary rule is adequately served by the exclusion of the unlawfully seized evidence in the criminal prosecution.

Parolees are, of course, not without constitutional rights,8 and there is always the possibility of police harassment. However, instances of such harassment can be treated as they arise.9 Appellant does not suggest that he was the object of any harassment.

Finally, we note that the police officers who subjected appellant to the unlawful search may be subjected to both federal and state penalties.10 While Mapp found these remedies an ineffectual safeguard in the context of criminal proceedings, we see no reason why they may not prove effective in circumstances such as those presented in this case. And if they do not, it would seem sounder policy to strengthen the efficacy of these sanctions rather than to vitiate the penological effectiveness of the Parole Board through the imposition of an inflexible exclusionary rule.

Affirmed.

LUMBARD, Chief Judge (concurring).

I concur in the result reached by Judge Hays in this case of first impression in this Circuit. I do so because I believe that the confines within which the parole portion of the criminal justice system operates allow no other practical result.

Ideally, the parole officer in our system serves a dual function. First, he should counsel the paroled prisoner and assist him in the specialized and difficult task of rehabilitation. Second, he should of course be familiar with the activities of parolees within his ambit of responsibility so that they may be assisted to abide by the conditions of parole, and if they fail to do so, he can in suitable cases recommend revocation of the parole status. To discharge these functions effectively requires highly subjective knowledge of each parolee committed to the parole officer's supervision. As with other procedures in the correctional segment of the criminal justice system, the parole offices are overworked and inadequately funded.1

The result is that both the rehabilitative and protective functions suffer from the inattention to individual parolees which must follow from a heavy case-load. In the present case, where such facts as we have indicate that Herbert Sperling had no desire to be successfully rehabilitated, we see the effect which this neglect has on the parole officer's function as a firm supervisor and protector of society. Federal parole officers must rely on city and state law enforcement officials to provide them with information of the most important kind concerning the conduct of parolees. There can be no doubt that if Sperling's parole officer had chanced to see Sperling and his companion Sisca transferring a manila envelope at the corner of 48th Street and Third Avenue at 4:45 A.M. he would have been entirely justified in inquiring what Sperling was up to, and, if unsatisfied with the reply, in conducting a search.

I would be willing, as Judge Kaufman suggests, to test the constitutional reasonableness of searches of parolees conducted by or at the direction of parole officers under less stringent standards than those applied to policemen searching the general citizenry. However, I do not believe that the time for such an approach has come. To apply the exclusionary rule in the context of parole revocation hearings at the present time would merely exacerbate the problems discussed above; to import fourth amendment suppression law into this process would in fact be counterproductive. Parole officers would be forced to spend more of their time personally gathering admissible proof concerning those parolees who cannot or will not accept rehabilitation. Time devoted to such field work necessarily detracts from time available to encourage those parolees with a sincere desire to avoid the all-too-familiar cycle of recidivism. An even greater potential loss would be in the time available to counsel and supervise-- particularly in the early months-- those who leave confinement with the question of rehabilitation in real doubt.

Although I am somewhat skeptical about the effectiveness of 'other remedies' to deter police misconduct, I must agree with Judge Hays that a double application of the exclusionary rule is not warranted at the present time. I draw this conclusion by balancing the interests of all parolees in securing administration of the parole system which is as nearly consonant with its dual goals as is possible at present levels of staffing and funding against the interest of individual parolees like Sperling in not being subjected to a search by local police officers which the government seems to concede was unconstitutional under traditional standards. The time may come when the balance will shift. Proof of widespread police harassment of parolees would cause such a shift since the exclusionary rule is a deterrent which should be used when the need for deterrence is clearly shown. But on the facts of the present situation, I am unwilling to strike a balance which could achieve little, other than a distortion of the priorities of the parole system.

IRVING R. KAUFMAN, Circuit Judge (concurring in the result).

I concur in the result reached in my brother Hays's opinion, and in much of what my brother Lumbard says in his concurring opinion. I add only a few words to indicate what I believe would be the preferred manner to resolve the conflicts in purpose and means bared by this case.

There is not, I take it, any basic dispute over the proposition that one is not divested of all his constitutional rights once he is sent to prison. See e.g., Wright v. McMann, 387 F.2d 519 (2d Cir. 1967); United States ex rel. Schuster v. Herold, 410 F.2d 1071 (2d Cir. 1969). Cf. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S. Ct. 374, 91 L. Ed. 422 (1947). Nor is there any question of the validity of the principle that 'the Bureau of Prisons and the Parole Board operate from the basic premise that prisoners placed in their custody are to be rehabilitated and restored to useful lives * * *.' Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 237 (1963) (en banc), cert. denied, Jamison v. Chappell, 375 U.S. 957, 84 S. Ct. 447, 11 L. Ed. 2d 316 (1963). See also Note, Constitutional Law: Parole Status and the Privilege Concept, 1969 Duke L.J. 139, 142-43. In order to effectuate these purposes, the United States Parole Board is vested with broad discretion to set the terms and conditions on which a parolee may be released. See 18 U.S.C. 4203 (1964).1 That authority extends with equal force to mandatory releasees, who are 'deemed as if released on parole.' 18 U.S.C. 4164 (1964). Courts presented with the question of determining what conditions may be imposed on a parolee have deferred to the judgment of the Parole Board. See, e.g., United States v. Binder, 313 F.2d 243 (6th Cir. 1963). See also Note, Parole Revocation in the Federal System, 56 Geo.L.J. 705, 707-709 (1968). Such deference is justified not only on the ground that Congress has given the Parole Board wide discretion in this instance, but because the underlying policy of parole-- to restore the individual to productive citizenship-- demands uniform and expert treatment, which the Board is believed best equipped to provide. Hence if I were presented with a case in which a condition of parole required the parolee to give a satisfactory account of himself to parole officers, or to permit a search of his person by parole officers, I would be inclined to give that determination by the Parole Board considerable weight. See Holtzoff, The Power of Probation and Parole Officers to Search and Seize, 31 Federal Probation 3, 7 (December 1967) (suggesting consent to searches as a condition of parole).2 In such circumstances we could safely assume that the Board has fully weighed the competing considerations of public safety and personal rehabilitation, and had arrived at what it, in its informed discretion, believed to be the proper resolution. We would have the support of a body of experts in effect declaring that the dangers of harassment had been properly evaluated, and that on balance, this type of surveillance must take precedence over parolees' privacy.

There are good practical reasons for preferring an antecedent determination that spells out the conditions on which a parolee is set at liberty. Parole is far more apt to be successful when limitations on the parolee's freedom are delineated with some degree of certainty. How does one stay gainfully employed if there remains an ever-present anticipation of virtually unbridled questioning and searches? How does one maintain the semblance of a normal home life under such conditions' The Chief Justice of the United States recently remarked in a related context, 'We take on a burden when we put a man behind walls, and that burden is to give him a chance to change.' He went on to say that 'If we deny him that, we deny him his status as a human being and to deny that is to diminish our humanity and plant the seeds of future anguish for ourselves.' Address of Chief Justice Warren Burger at the Association of the Bar of the City of New York, Feb. 17, 1970, reported in the New York Times, Feb. 18, 1970, p. 16. Certainly, these interests are rarely absolutes, particularly in the case of one who owes his liberty to Congressional grace-- but they are real interests nonetheless, and we ought not to assume lightly that Congress or its agent the Parole Board meant them to be entirely subordinated to the whims of local police officers.

The underlying rationale for excluding evidence seized after an unreasonable search is to impose 'a restraint upon the activities of sovereign authority,' Burdeau v. McDowell, 256 U.S. 465, 475, 41 S. Ct. 574, 576, 65 L. Ed. 1048 (1921). The interests involved when we balance individual liberty against the aim of reducing crime are difficult enough to define, and are perhaps even less receptive to evaluation and definition when applied to parolees.3 For that reason, as well as those I have already mentioned, I would prefer to have the Parole Board, the agency Congress has charged with striking that balance in the first instance, spell out in precise terms-- before release-- its determination that searches like the one to which Sperling was subjected were reasonable in terms of both overall goals of parole and the dangers of harassment or worse.

Like my brother LUMBARD, however, I am unwilling at this time to say that the Parole Board's failure to set conditions for searches on parolees requires us to order Sperling released. While I am perhaps less inclined than he to believe that there is any considerable likelihood that sporadic searches by police officers have any great effect on the allocation of parole officers' time between supervision and rehabilitation, I would be reluctant at this time in view of the substantial possibility of disruption of the parole system to rule retroactively that the Parole Board may act only through conditions imposed in advance.