Appeal from the United States District Court for the Western District of Wisconsin. No. 81 C 845 -- Barbara B. Crabb, Judge.
Pell, Bauer, and Flaum, Circuit Judges.
This case comes to us on an appeal from the part of the judgment and order entered in the district court granting a writ of habeas corpus to a prisoner who challenges the revocation of his state probation. The prisoner cross-appeals from the part of the judgment and order denying his petition for habeas corpus relief.
On January 8, 1979, petitioner-appellee, cross-appellant Jacob Egerstaffer (petitioner) was convicted in the Circuit Court of Rock County, Wisconsin on charges of receiving stolen goods and possession of marijuana with intent to deliver. Execution of two concurrent five-year prison sentences was stayed, and petitioner was placed on probation for a three-year term. The Wisconsin Department of Health and Social Services, the state probation supervisory agency, revoked petitioner's probation nine months later following an evidentiary hearing at which the following allegations were proven by a preponderance of the evidence: First, on or about February 1, 1979, less than four weeks after being placed on probation, petitioner pointed a gun at one Duke Koker and forced Koker to surrender $250 in cash, a pair of diamond rings and a cassette tape player. Second, on June 4, 1979, petitioner possessed amphetamines without a prescription in violation of state law. Third, on June 18, 1979, petitioner refused adequately to account to his probation agent for his whereabouts and activities on June 4, 1979.
At petitioner's probation revocation hearing, the Bureau of Community Corrections (the Bureau) proved the factual basis of the first allegation in part by introducing a recorded, unsworn interview with Koker. In the interview, Koker declared that he stole ten grams of amphetamines from petitioner who, in retaliation, beat him, handcuffed him to a table for two days, pointed a gun at his head and coerced him to hand over items of personal property. The Bureau did not produce Koker as a witness because, according to the Bureau, Koker in the meantime suffered a fall which rendered him incompetent to testify. To support this assertion, the Bureau offered a letter from Koker's psychiatrist which stated that Koker's head injuries resulted in severe memory impairment and concluded that Koker was "not competent to testify in a court of law." Petitioner's counsel objected to the admission of any contents of the tape, but the hearing examiner overruled the objection, finding "good cause to excuse Koker from being present." Several other witnesses testified to the incident. Koker's sister recounted a conversation in which Koker told her that petitioner had beaten him and held a gun to him. She also testified that she had witnessed petitioner's pointing a gun at her brother, but she claimed petitioner was "joking." A second psychiatrist of Koker's related a conversation in which Koker revealed to him the pistol and handcuff incidents. The Bureau's probation agent testified that petitioner had admitted to questioning Koker until he confessed to stealing the drugs, but that petitioner had denied pointing a gun at or handcuffing Koker. Finally, petitioner himself testified that he had a short scuffle with Koker, but he denied participation in the pistol and handcuff incidents.
The revocation hearing revealed the following factual background of the second and third charges. On June 4, 1979, petitioner traveled to Rockford, Illinois to visit his friend James Overturf. Unbeknownst to petitioner, Illinois law enforcement officials had the Overturf house under surveillance. When petitioner arrived, Overturf was not home, but an acquaintance let petitioner into the house, where petitioner waited for Overturf's return. Earlier that day, Overturf had been apprehended by state officials and had consented to a search of his home. State officials conducting the search entered Overturf's house, found petitioner, frisked him for weapons and subsequently discovered a small package in his pocket. The officials seized the package, chemically tested its contents and discovered that the contents were amphetamines. Upon returning from Rockford, petitioner consulted a lawyer representing him in a separate child custody suit and that lawyer, in petitioner's words, cautioned him "not to say anything else [to officials] because otherwise I could lose my children permanently." The state never brought direct criminal charges against petitioner for possession of amphetamines; however, the Department of Health and Social Services became interested in the June 4 events. On June 7, the probation agent questioned petitioner about his activities on June 4. Petitioner first denied having been found in possession of amphetamines, then said he might have been in possession but could not reveal where he had obtained the drugs, and finally, after the agent told him that refusal to answer questions could be a ground for probation revocation, petitioner stated that a third party had given him the drugs. On June 18, the probation agent again interviewed petitioner, but petitioner refused to discuss "any criminal activity," on advice of counsel. On June 25, petitioner again met his probation agent, and after several denials finally provided more details about the June 4 incident and admitted that the substance in his pocket had been amphetamines.
Petitioner challenged the probation revocation in state court on three grounds: (1) introduction of the recorded, unsworn interview with Koker violated petitioner's right to confront and cross-examine witnesses and to have only reliable, non-hearsay evidence adduced against him, (2) the hearing examiner incorrectly overruled petitioner's motion to suppress all testimony concerning the substance taken from petitioner on June 4, and (3) there was insufficient evidence to support a finding that petitioner refused at the June 18 interview to provide information about his whereabouts and activities. Both the Wisconsin Circuit Court and the Court of Appeals denied petitioner all relief. The Supreme Court of Wisconsin declined discretionary review.
Petitioner then sued in federal court for habeas corpus relief pursuant to 28 U.S.C. § 2254, and the district court, agreeing with two of petitioner's three arguments, ordered petitioner's release from custody. The court found that the hearing examiner denied petitioner his right to confront and cross-examine adverse witnesses by excusing Koker's presence for less than good cause. The court also found that the chemical analysis report was a fruit of an illegal search and held that the exclusionary rule applies at state probation revocation hearings. The court, however, agreed with the Government that there was sufficient evidence to support the non-cooperation finding. Each party now appeals from the respective adverse part of the district court judgment and order. The district court stayed its judgment pending the outcome of this appeal.
A. The Use of Hearsay at Petitioner's Probation Revocation Hearing
We are unable to agree with the district court's finding that the hearing examiner committed constitutional error when he admitted into evidence Koker's unsworn, recorded interview. The use of hearsay as substantive evidence at a revocation hearing is not per se unconstitutional. This has been the law ever since the Supreme Court's landmark decision in Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). In that case, and in Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973), the Court reasoned that parole and probation revocations are "not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply." Morrissey, supra, 408 U.S. at 480 (parole revocation). See Gagnon, supra, 411 U.S. at 781-91 (applicability of Morrissey rationale to probation revocation hearing). More specifically, the Court stressed that the revocation proceeding "should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." Morrissey, supra, 408 U.S. at 489; see Gagnon, supra, 411 U.S. at 781-82 & n.5. It is true that the Court did recognize the convict's and society's concern for accurate evaluation of the charges brought by the state at the hearing. The Court believed, however, that these often conflicting interests could be reconciled by guaranteeing the convict the right to confront and cross-examine witnesses at the revocation hearing, but permitting suspension of that right when the hearing examiner finds "good cause" for not allowing confrontation. Morrissey, supra, 408 U.S. at 489; see Gagnon, supra, 411 U.S. at 782.
Petitioner lays great stress on the good cause showing, in essence treating such a showing as an absolute prerequisite to the substantive use of hearsay at a probation revocation hearing. Petitioner then contends that the laconic and conclusory letter of Koker's psychiatrist stating that Koker had suffered a head injury which rendered him incompetent to testify is inadequate to support a good cause showing. We are unconvinced by this line of reasoning. The Court established the good cause showing in Morrissey to limit the substantive use of unreliable evidence at revocation hearings. However, if the proffered evidence itself bears substantial guarantees of trustworthiness, then the need to show good cause vanishes. This is the rationale underlying Prellwitz v. Berg, 578 F.2d 190 (7th Cir. 1978), where this court held that "forcing the state to show good cause for not producing the hearsay declarant [when the hearsay bears substantial indicia of reliability] would unwisely extend the limited due process rights of a probationer at the revocation hearing." Id. at 192. Accord United States v. Burkhalter, 588 F.2d 604, 607 (8th Cir. 1978); United States v. Pattman, 535 F.2d 1062, 1063 (8th Cir. 1976); United States v. Miller, 514 F.2d 41, 42-43 (9th Cir. 1975). In Prellwitz, the state revoked petitioner's probation because he failed to contact his probation agent for over five years. Petitioner argued that his due process rights were violated when the hearing examiner failed to require the probation agent to testify but rather allowed the agent's records to be used to prove the agent made several unsuccessful efforts at locating petitioner. This court approved the use of the hearsay without a showing of good cause to excuse the agent's absence because the hearsay records bore substantial indicia of reliability. The district court interpreted Prellwitz to permit abrogation of the good cause ...