[House Report 115-112]
[From the U.S. Government Publishing Office]


115th Congress    }                                    {        Report
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                    {       115-112

======================================================================



 
                PROBATION OFFICER PROTECTION ACT OF 2017

                                _______
                                

  May 8, 2017.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Goodlatte, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1039]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1039) to amend section 3606 of title 18, United 
States Code, to grant probation officers authority to arrest 
hostile third parties who obstruct or impede a probation 
officer in the performance of official duties, having 
considered the same, report favorably thereon without amendment 
and recommend that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     3
Committee Consideration..........................................     3
Committee Votes..................................................     3
Committee Oversight Findings.....................................     4
New Budget Authority and Tax Expenditures........................     4
Congressional Budget Office Cost Estimate........................     4
Duplication of Federal Programs..................................     5
Disclosure of Directed Rule Makings..............................     5
Performance Goals and Objectives.................................     5
Advisory on Earmarks.............................................     5
Section-by-Section Analysis......................................     5
Changes in Existing Law Made by the Bill, as Reported............     6
Dissenting.......................................................     7

                          Purpose and Summary

    This bill amends the federal criminal code to authorize a 
probation officer to arrest a third party (i.e., a person other 
than the probationer or individual on supervised release) 
without a warrant if there is probable cause to believe the 
person forcibly assaulted or obstructed a probation officer 
engaged in the performance of official duties.

                Background and Need for the Legislation

    Under current law, a federal probation officer may arrest a 
probationer or individual on supervised release if the officer 
has probable cause to believe that the offender has violated a 
condition of his or her probation or release.\1\ The officer 
may make the arrest with or without a warrant.\2\
---------------------------------------------------------------------------
    \1\See 18 U.S.C. Sec. 3606.
    \2\Id.
---------------------------------------------------------------------------
    In practice, formal arrests by probation officers are rare. 
Rather, probation officers use this authority to lawfully 
engage in less restrictive means against the probationer or 
supervised releasee, such as ordering the offender to stand 
aside during a search; instructing the offender not to 
interfere with the officer's movements; or, in rare cases, 
temporarily restraining an offender who poses a physical 
danger.
    Current law does not, however, address a probation 
officer's arrest authority in situations in which a third party 
attempts to physically obstruct the officer or cause the 
officer physical harm. Although obstructing a probation officer 
in the performance of his or her official duties is illegal, 
when a probation officer encounters an uncooperative or violent 
third party, the officer may be forced to retreat because he or 
she lacks authority to restrain the third party. This lack of 
authority and resulting need to retreat, rather than restrain 
the third party, exposes probation officers to greater risk of 
harm and allows the third party--along with any evidence or 
individual the third party may be attempting to shield--to 
elude capture. As a result, evidence that an offender has 
violated a condition of his or her probation or supervised 
release, or evidence of other criminal activity, may be lost.
    In some circumstances, a probation officer may be able to 
enlist the assistance of local police in responding to a 
hostile third party. But this is not, in and of itself, an 
adequate solution. First, unless the probation officer knows in 
advance that he or she is likely to encounter a hostile third 
party and can find an available police officer to accompany him 
or her, the probation officer must wait for police backup to 
arrive. This is often not a viable option. Second, even if a 
local police officer is available to accompany the probation 
officer, because the probation officer lacks arrest authority, 
he or she cannot lawfully assist the police officer if the 
police officer is accosted. Third, requiring federal probation 
officers to rely on local law enforcement in responding to 
uncooperative or violent third parties burdens local police 
departments and diverts police resources from other uses.

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
1039.

                        Committee Consideration

    On May 3, 2017, the Committee met in open session and 
ordered the bill H.R. 1039 favorably reported, without 
amendment, by a roll call vote of 15 to 7, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following roll call votes occurred during the Committee's 
consideration of H.R. 1039:
    1. Motion to report the bill favorably. Approved by a roll 
call vote of 15 to 7.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X   ......  .......
Mr. Sensenbrenner, Jr. (WI)....................  ......  ......  .......
Mr. Smith (TX).................................  ......  ......  .......
Mr. Chabot (OH)................................      X   ......  .......
Mr. Issa (CA)..................................      X   ......  .......
Mr. King (IA)..................................      X   ......  .......
Mr. Franks (AZ)................................      X   ......  .......
Mr. Gohmert (TX)...............................      X   ......  .......
Mr. Jordan (OH)................................      X   ......  .......
Mr. Poe (TX)...................................      X   ......  .......
Mr. Chaffetz (UT)..............................  ......  ......  .......
Mr. Marino (PA)................................      X   ......  .......
Mr. Gowdy (SC).................................      X   ......  .......
Mr. Labrador (ID)..............................  ......  ......  .......
Mr. Farenthold (TX)............................      X   ......  .......
Mr. Collins (GA)...............................  ......  ......  .......
Mr. DeSantis (FL)..............................  ......  ......  .......
Mr. Buck (CO)..................................      X   ......  .......
Mr. Ratcliffe (TX).............................  ......  ......  .......
Ms. Roby (AL)..................................  ......  ......  .......
Mr. Gaetz (FL).................................      X   ......  .......
Mr. Johnson (LA)...............................      X   ......  .......
Mr. Biggs (AZ).................................      X   ......  .......
Mr. Conyers, Jr. (MI), Ranking Member..........  ......      X   .......
Mr. Nadler (NY)................................  ......      X   .......
Ms. Lofgren (CA)...............................  ......  ......  .......
Ms. Jackson Lee (TX)...........................  ......      X   .......
Mr. Cohen (TN).................................  ......  ......  .......
Mr. Johnson (GA)...............................  ......      X   .......
Mr. Deutch (FL)................................  ......      X   .......
Mr. Gutierrez (IL).............................  ......  ......  .......
Ms. Bass (CA)..................................  ......  ......  .......
Mr. Richmond (LA)..............................  ......  ......  .......
Mr. Jeffries (NY)..............................  ......  ......  .......
Mr. Cicilline (RI).............................  ......      X   .......
Mr. Swalwell (CA)..............................  ......  ......  .......
Mr. Lieu (CA)..................................  ......  ......  .......
Mr. Raskin (MD)................................  ......  ......  .......
Ms. Jayapal (WA)...............................  ......  ......  .......
Mr. Schneider (IL).............................  ......      X   .......
                                                ------------------------
    Total......................................     15       7   .......
------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 1039, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                                       May 5, 2017.
Hon. Bob Goodlatte,
Chairman.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1039, the 
Probation Officer Protection Act of 2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Robert Reese.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

H.R. 1039--Probation Officer Protection Act of 2017

    H.R. 1039 would amend current law to allow federal 
probation officers to arrest a person if there is probable 
cause that the person has assaulted, intimidated, or otherwise 
interfered with any probation officers while performing their 
official duties. The bill also would direct the Administrative 
Office of the U.S. Courts (AOUSC) to implement rules and 
regulations governing probation officers' conduct while 
exercising that authority.
    Based on an analysis of information provided by the AOUSC 
about the very small number of arrests that would probably 
occur under the bill, CBO estimates that implementing H.R. 1039 
would have no significant effect on the federal budget.
    Enacting H.R. 1039 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply. CBO 
estimates that enacting the legislation would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    H.R. 1039 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Robert Reese. 
The estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

                    Duplication of Federal Programs

    No provision of H.R. 1039 establishes or reauthorizes a 
program of the Federal government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that H.R. 1039 specifically directs 
to be completed no specific rule makings within the meaning of 
5 U.S.C. Sec. 551.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
1039 will grant probation officers authority to arrest hostile 
third parties who obstruct or impede a probation officer in the 
performance of official duties.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 1039 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of rule XXI.

                      Section-by-Section Analysis

    Section 1. Short Title. This section cites the short title 
of the bill as the ``Probation Officer Protection Act of 
2017.''
    Section 2. Authority of Probation Officers. This section 
amends the federal criminal code to authorize a probation 
officer to arrest a third party (i.e., a person other than the 
probationer or person on supervised release) without a warrant 
if there is probable cause to believe the person forcibly 
assaulted or obstructed a probation officer engaged in the 
performance of official duties.

         Changes in Existing Law Made by the Bill, as Reported

   In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

TITLE 18, UNITED STATES CODE

           *       *       *       *       *       *       *



PART II--CRIMINAL PROCEDURE

           *       *       *       *       *       *       *


CHAPTER 229--POSTSENTENCE ADMINISTRATION

           *       *       *       *       *       *       *



                        SUBCHAPTER A--PROBATION


                         SUBCHAPTER A--PROBATION

Sec.
3601. Supervision of probation.
     * * * * * * *
[3606. Arrest and return of a probationer.]
3606. Arrest authority of probation officers.

           *       *       *       *       *       *       *


Sec. 3606. Arrest [and return of a probationer]  authority of probation 
                    officers

   [If there] (a) If there is probable cause to believe that a 
probationer or a person on supervised release has violated a 
condition of his probation or release, he may be arrested, and, 
upon arrest, shall be taken without unnecessary delay before 
the court having jurisdiction over him. A probation officer may 
make such an arrest wherever the probationer or releasee is 
found, and may make the arrest without a warrant. The court 
having supervision of the probationer or releasee, or, if there 
is no such court, the court last having supervision of the 
probationer or releasee, may issue a warrant for the arrest of 
a probationer or releasee for violation of a condition of 
release, and a probation officer or United States marshal may 
execute the warrant in the district in which the warrant was 
issued or in any district in which the probationer or releasee 
is found.
   (b) A probation officer, while in the performance of his or 
her official duties, may arrest a person without a warrant if 
there is probable cause to believe that the person has forcibly 
assaulted, resisted, opposed, impeded, intimidated, or 
interfered with the probation officer, or a fellow probation 
officer, in violation of section 111. The arrest authority 
described in this subsection shall be exercised under such 
rules and regulations as the Director of the Administrative 
Office of the United States Courts shall prescribe.

           *       *       *       *       *       *       *


                            Dissenting Views

    H.R. 1039, the ``Probation Officer Protection Act,'' is a 
well-intentioned, but flawed proposal that would expand the 
arrest authority of federal probation officers (USPOs). This 
change would significantly alter the role of these officers, 
invite abuse in application of the expanded authority, and 
raise constitutional concerns. For these reasons and those 
discussed below, we respectfully dissent and urge our 
colleagues to oppose this legislation when it comes to the 
floor.

                              DESCRIPTION

    H.R. 1039, ``the Probation Officer Protection Act,'' amends 
section 3606 of title 18 of the United States Code to expand 
the arrest authority of USPOs. Currently, these officers only 
possess the authority to arrest individuals under the 
supervision of the U.S. Probation Office.\1\ As amended by the 
bill, section 3606 would authorize USPOs to arrest persons 
other than supervisees without a warrant if there is probable 
cause to believe the person assaulted or obstructed a USPO in 
the course of his or her duties in violation of section 111 of 
title 18.\2\ The arrest authority would be further defined by 
rules and regulations set by the Director of the Administrative 
Office of the U.S. Courts (AO). Proponents of H.R. 1039 contend 
that this authorization would also allow USPOs to temporarily 
control, direct, and detain third parties during the execution 
of supervision-related searches, including those conducted 
pursuant to a warrant.\3\
---------------------------------------------------------------------------
    \1\18 U.S.C. Sec. 3606 (2017) authorizes a USPO to arrest a 
probationer or a person on supervised release if there is probable 
cause to believe that the person being supervised has violated a 
condition of his probation or release.
    \2\18 U.S.C. Sec. 111 (2017) prohibits assaulting, resisting, or 
impeding any officer or employee of the United States or of any agency 
in any branch of the United States Government.
    \3\Administrative Office of the U.S. Courts, Office of Legislative 
Affairs, Judicial Conference Proposal, Criminal Judicial Procedure, 
Administration, and Technical Amendments Act of 2017, 115th Congress, 
1st Session [hereinafter ``Judicial Conference Proposal]; Letter from 
Hon. Ricardo S. Martinez, Chair, Committee on Criminal Law of the 
Judicial Conference of the United States, to Senator Orrin Hatch (R-UT) 
(Feb. 13, 2017).

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                               BACKGROUND

                     I. FEDERAL PROBATION OFFICERS

    USPOs perform a critical service in supervising, 
monitoring, and managing supervisees, including individuals on 
probation and individuals on supervised release from prison. 
They are predominantly responsible for achieving the goals of 
supervision, which include long-term, positive change in their 
supervisees.\4\
---------------------------------------------------------------------------
    \4\Federal Judicial Center, U.S. Probation and Pretrial Services, 
Charter for Excellence (2002).
---------------------------------------------------------------------------
    The U.S. Probation and Pretrial Services System is an arm 
of the judicial branch of the U.S. government. ``Federal 
probation officers are directly responsible to the courts they 
serve'' and are considered the ``eyes and ears'' of the federal 
courts.\5\ Practices of each district vary in some respects, 
including applicable case law and court culture.\6\ To foster 
consistency among districts, however, policy is developed and 
subsequently approved by the Judicial Conference of the United 
States. The AO and the Federal Judicial Center provide 
centralized support.\7\
---------------------------------------------------------------------------
    \5\U.S. Courts, Probation and Pretrial Services: Mission, available 
at http://www.uscourts.gov/services-forms/probation-and-pretrial-
services/probation-and-pretrial-services-mission.
    \6\James Johnson, State of the System: Federal Probation and 
Pretrial Services, 79-SEP Fed. Probation 34 (2015).
    \7\Id.
---------------------------------------------------------------------------
    In recent years, USPOs have conducted an increased number 
of pre-approved, exigent, and consent searches. In 2013, for 
example, USPOs conducted 909 searches.\8\ Of the 475 searches 
in which a third party was present, a third party was 
uncooperative on 18 occasions, seven third parties were 
arrested and/or restrained by local law enforcement, and two 
third parties possessed a loaded firearm. USPOs encountered a 
third party in 498 searches in 2014. Of those searches, a third 
party was uncooperative on 27 occasions, and five third parties 
were arrested. In 2016, 555 of 1060 searches conducted pursuant 
to a court-ordered search condition or with consent involved 
third parties.\9\ On 39 occasions, officers described one or 
more third parties as uncooperative.\10\ Reported third party 
obstruction typically included: verbal threats; verbal and 
nonverbal intimidation; hiding from officers; refusal to leave 
the search site; swallowing or flushing narcotics; releasing 
aggressive dogs; refusal to provide identity; denying officers 
entry into a residence; and failing to follow directives.
---------------------------------------------------------------------------
    \8\Memorandum from Federal Law Enforcement Officers Association, 
Proposal to Enhance the Safety of Probation Officers During the 
Performance of Their Official Duties (on file with H. Comm. on the 
Judiciary Democratic staff).
    \9\Administrative Office of the U.S. Courts, Office of Legislative 
Affairs, Fact Sheet: Federal Probation/Pretrial Officer Incidents 
Involving Third Parties.
    \10\Id.

 II. FEDERAL PROBATION OFFICER ARREST POWER COMPARED TO OFFICERS WITH 
                           FULL POLICE POWER

    Under current law, a USPO may arrest a probationer or 
individual on supervised release if the officer has probable 
cause to believe that the individual has violated a condition 
of his or her probation or supervised release.\11\ The officer 
may make the arrest with or without a warrant.\12\ In practice, 
however, USPOs rarely make formal arrests. USPOs typically use 
their authority to exert less restrictive uses of force, such 
as ordering a supervisee to stand aside during a search, 
instructing an offender not to interfere with the officer's 
activities, or temporarily restraining a supervisee who poses a 
physical danger to the officer's safety or attempts to obstruct 
the officer during the course of a search.\13\
---------------------------------------------------------------------------
    \11\See 18 U.S.C. Sec. 3606 (2017).
    \12\Id.
    \13\See Guide to Judiciary Policy, Vol. 8 (Probation and Pretrial 
Services), Pt. E (Supervision of Federal Offenders), Appendix 4A 
(Search and Seizure Guidelines) (last revised Mar. 15, 2011), at 
VIII.C.2 [hereinafter ``Guide].
---------------------------------------------------------------------------
    Notwithstanding the statutory authority provided in section 
3606 of title 18, existing Judicial Conference policy forbids 
USPOs from making warrantless arrests to initiate revocation 
proceedings.\14\ Officers are instead instructed to obtain a 
court-ordered warrant, which the U.S. Marshals Service 
executes.\15\ Pursuant to this policy, an officer may arrest a 
supervisee if probable cause to arrest arises during the 
execution of a search under the limited circumstances that the 
violation conduct is serious enough or the supervisee is 
dangerous enough to require taking the supervisee immediately 
into custody, and the officer can make the arrest safely.\16\
---------------------------------------------------------------------------
    \14\Id. at VIII.C.3.
    \15\Id.
    \16\Id.
---------------------------------------------------------------------------
    As provided in section 111 of title 18, obstructing a USPO 
in the performance of his or her official duties is prohibited. 
Nevertheless, USPOs do not have statutory authority to enforce 
this statute as they only have authority over individuals 
currently serving probation or supervised release. They do not 
possess the authority to issue commands, detain, or arrest a 
third party who attempts to physically obstruct the officer or 
inflict physical harm on the officer when the officer is 
conducting a search, serving a warrant, or performing a regular 
supervision visit. In current practice, USPOs sometimes utilize 
the assistance of local law enforcement officers in responding 
to hostile third parties.

                        CONCERNS WITH H.R. 1039

 I. H.R. 1039 IS OVERLY BROAD AND RAISES SIGNIFICANT FOURTH AMENDMENT 
                                CONCERNS

    H.R. 1039 would grant USPOs the authority to enforce 
section 111 even though it is notoriously nebulous and subject 
to countless interpretations. The statute's vague terms, such 
as ``opposed'' and ``interfered'', invite abuse and would allow 
USPOs to arrest individuals who are merely uncooperative in 
violation of the Fourth Amendment.\17\
---------------------------------------------------------------------------
    \17\Letter from David Patton, Executive Director, Federal Defenders 
of New York, & Jon Sands, Federal Defender, District of Arizona, to 
Members of the H. Comm. on the Judiciary 6 (Mar. 30, 2017) (on file 
with Democratic staff of the H. Comm. on the Judiciary) [hereinafter 
``Defender Letter].
---------------------------------------------------------------------------
    USPOs supervise and monitor offenders through contact with 
others, including family members and employers. Individuals 
under supervision waive some of their Fourth Amendment 
protections as a condition of their supervision. Third parties, 
however, do not with respect to their private spaces. As the 
American Civil Liberties Union (ACLU) observes, ``the real 
world implications of this could be that the mother of a son on 
probation is arrested for denying a probation officer access to 
her private space, like her bedroom.''\18\ In such ways, 
overbroad interpretations of ``interference'' with a USPO's 
duties may lead to overzealous exercise of arrest authority 
that violates the Constitution.
---------------------------------------------------------------------------
    \18\Letter from Faiz Shakir, National Political Director, & Kanya 
Bennett, Legislative Counsel, American Civil Liberties Union (ACLU), to 
Rep. Bob Goodlatte, Chairman, & Rep. John Conyers, Jr., Ranking Member, 
H. Comm. on the Judiciary 2 (Apr. 26, 20170 (on file with H. Comm. on 
the Judiciary Democratic staff) [hereinafter ``ACLU Letter''].
---------------------------------------------------------------------------
    Proponents of this bill argue that it is necessary to allow 
USPOs to arrest third parties who forcibly interfere with these 
officers or seek to harm them physically. However, we 
understand that USPOs would, if this bill is enacted, sometimes 
exercise a ``lesser included'' authority to detain third 
parties without making a formal arrest.\19\ If H.R. 1039 
becomes law, the Judicial Conference plans to instruct USPOs to 
take measures, including the temporary control of third 
parties, in some circumstances in ``the execution of searches 
and other work-related contacts (e.g., home visits during 
supervised release).''\20\ The potential for detention of third 
parties elevates our constitutional concerns with the bill.
---------------------------------------------------------------------------
    \19\Judicial Conference Proposal at 19.
    \20\Id.
---------------------------------------------------------------------------
    Long-standing case law establishes that police officers are 
allowed to stop or detain third parties on the premises when 
conducting a search pursuant to a warrant if there is 
reasonable suspicion that a limited seizure is necessary for 
officer safety. Fundamental to these cases is broad police 
arrest authority and a neutral magistrate judge's finding that 
there is probable cause for a search based on the presence of 
someone who has committed a crime or evidence of a crime on the 
premises to be searched.\21\ These cases emphasize that 
officers may exercise the lesser-included power to detain any 
person who might present a safety risk when connected to a 
validly issued search warrant. Probable cause, supporting the 
issuance of a valid search warrant, is of prime importance in 
assessing the reasonableness of such intrusions and, 
subsequently, finding that a detention was reasonable.\22\
---------------------------------------------------------------------------
    \21\See Michigan v. Summers, 425 U.S. 692 (1981); Muehler v. Mena, 
544 U.S. 93, 99 (2005).
    \22\Muehler v. Mena at 99 (detention for the duration of the search 
was reasonable since a neutral magistrate issued a warrant to search 
the premises based on probable cause).
---------------------------------------------------------------------------
    USPOs, however, do not conduct searches pursuant to 
warrants based on probable cause. Instead, they conduct 
warrantless searches related to supervisees based on reasonable 
suspicion.\23\ Their power to search is based on the theory 
that they may conduct administrative searches to further the 
goals of supervision, namely, rehabilitation and protection of 
the public. With respect to supervisees, the warrant and 
probable cause requirements of the Fourth Amendment may be set 
aside when the special needs of the administrative agency are 
beyond the regular needs of law enforcement, the privacy 
interests of the supervisee are diminished, and the agency's 
special needs make a warrant and probable cause requirement 
impractical.\24\ Once a supervisee has been convicted and his 
or her liberty depends on the observance of supervision 
conditions, the government's special needs outweigh the 
supervisee's interest in being free from searches conducted 
without a warrant.\25\
---------------------------------------------------------------------------
    \23\Guide, supra, at III.A.
    \24\Griffin v. Wisconsin, 483 U.S. 868, 875 (1987) (warrantless 
search based on reasonable suspicion upheld as constitutional); U.S. v. 
Knights, 534 U.S. 112, 117 (2001).
    \25\U.S. v. Knights, at 121.
---------------------------------------------------------------------------
    Nevertheless, the constitutional interests of third parties 
are not outweighed by these governmental needs. Although the 
bill would expand the arrest authority of USPOs under section 
3606, these constitutional interests of third parties would 
remain unchanged. As previously stated, courts that found 
detentions reasonable in connection with the execution of 
search warrants based their holdings primarily on the probable 
cause determinations of magistrate judges, a fact absent in the 
execution of supervision-related searches. Such seizures made 
by USPOs would, therefore, be unconstitutional given the 
absence of probable cause supporting their searches, a factor 
deemed critical by the Supreme Court. The distinction between 
supervision searches and police-initiated searches is made 
clearer when considering the concept of USPOs acting as 
``stalking horses'' for the police. Several federal districts 
recognize the potential for police officers to take advantage 
of the reduced standards USPOs enjoy to justify a search as 
pretext to circumvent the need to establish probable cause for 
police-initiated searches.\26\
---------------------------------------------------------------------------
    \26\U.S. v. Penson, 141 Fed.Appx. 406 (6th Cir. 2005) citing U.S. 
v. Martin, 25 F.3d 293 (6th Cir. 1994); U.S. v. Butcher, 926 F.2d 811 
(9th Cir. 1991); U.S. v. Cardona, 903 F.2d 60 (1st Cir. 1990).

           II. H.R. 1039 RAISES SEPARATION OF POWERS CONCERNS

    H.R. 1039 raises concerns with the Separation of Powers 
Clause of the Constitution by authorizing USPOs, who serve as 
administrative units of the district courts, to enforce section 
111 of title 18 against private citizens. USPOs are employees 
of the Judicial Branch and have a close relationship to the 
courts, which they serve.\27\ This legislation would 
effectively assign an executive function, namely, arresting and 
prosecuting offenders, to an entity within the Judicial Branch. 
Similarly, challenges to arrests made by USPOs under this new 
authority, including constitutional challenges, would require 
district judges to review the actions of their own agents, 
which undermines the integrity of the Judicial Branch.\28\ And, 
in light of the potential applications of the arrest authority 
permitted under H.R. 1039 (as previously discussed), the 
likelihood of such constitutional challenge is heightened.
---------------------------------------------------------------------------
    \27\U.S. Courts, Probation and Pretrial Services: Mission, supra 
note 4.
    \28\Defender Letter at 4.

          III. H.R. 1039 IS A SOLUTION IN SEARCH OF A PROBLEM

    USPOs have traditionally requested the aid of police 
officers endowed with broad police authority in conducting 
supervision-related searches. Nevertheless, H.R. 1039 would 
undermine the rehabilitative relationship between USPOs and 
supervisees even though there is no overwhelming need to grant 
USPOs the authority to arrest third parties. As pointed out by 
the ACLU, H.R. 1039 ``is a solution in search of a problem 
because there is no statistical or other evidence otherwise to 
support the need to expand probation officers' arrest 
authority.''\29\ The Federal Probation & Pretrial Officers 
Association (FPPOA) states that in 2015, of the 987 searches 
that were conducted, only 30 involved uncooperative third 
parties--comprising only 3 percent.\30\ There is no data to 
support the conclusion that third parties routinely present 
substantial risk of danger during encounters with federal 
USPOs.
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    \29\ACLU Letter at 1.
    \30\Id. at 2.

 IV. H.R. 1039 WOULD ENDANGER THE SAFETY OF FEDERAL PROBATION OFFICERS

    USPOs should not be given increased police power that would 
only put them in harm's way. They are not trained in the same 
manner as law enforcement officers who are endowed with full 
police powers. A newly appointed USPO need only complete a six-
week, entry-level, training program, encompassing investigation 
and supervision duties. On the other hand, new law enforcement 
officers normally must complete 16 to 21 weeks, or 
approximately 840 hours, of classroom training and oftentimes 
three additional weeks of field training.\31\ Additionally, not 
all USPOs carry firearms as each district determines whether or 
not these officers may do so.\32\
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    \31\Dep't of Justice, Office of Justice Programs, Bureau of Justice 
Statistics, State and Local Law Enforcement Training Academies, 2013, 
NCJ 249784 (July 2016).
    \32\U.S. Courts, Probation and Pretrial Services: Mission, supra 
note 4; State of the System: Federal Probation and Pretrial Services, 
79-SEP Fed. Probation 34, supra note 5, at 40 (2015).

V. H.R. 1039 HINDERS ACHIEVEMENT OF THE GOALS OF SUPERVISED RELEASE AND 
                               PROBATION

    The substantial potential for challenges to arrests and 
seizures made pursuant to this authority creates an unnecessary 
threat to the actual goals of supervision. The constructive 
role of USPOs in fostering the rehabilitation of supervisees 
would be damaged if they become de facto police officers, 
detaining, arresting, and issuing orders and directives to 
family, friends, employers, and other members of supervisees' 
communities.

                               CONCLUSION

    While we share the desire of the proponents of the bill to 
protect USPOs from harm, we believe the assistance of law 
enforcement, as under current practice, is sufficient to do so. 
Expanding the arrest authority of USPOs, as contemplated under 
H.R. 1039, raises substantial constitutional concerns, given 
the nebulousness of some of the terms of the underlying statute 
it would enforce and certain applications, such as thirty party 
detentions, which have a high potential for abuse. In sum, as 
the Federal Public Defenders of New York state, in their letter 
to the Committee opposing H.R. 1039, ``[t]he bill represents a 
retreat from the current constructive role of probation 
officers in reintegrating offenders into society. If probation 
officers assumed the role of police, directing and restraining, 
or arresting, family and friends, progress in individual cases 
and the system as a whole would be undermined.''\33\
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    \33\Defender letter at 9.
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    Accordingly, we oppose H.R. 1039 and we urge our colleagues 
to join us in opposition.

                                   Mr. Conyers, Jr.
                                   Mr. Nadler.
                                   Ms. Lofgren.
                                   Ms. Jackson Lee.
                                   Mr. Cohen.
                                   Mr. Johnson, Jr.
                                   Mr. Deutch.
                                   Mr. Gutierrez.
                                   Ms. Bass.
                                   Mr. Richmond.
                                   Mr. Jeffries.
                                   Mr. Cicilline.
                                   Mr. Lieu.
                                   Ms. Jayapal.
                                   Mr. Raskin.

                                  [all]