Did Connecticut need its own warrant to hold an out-of-state probationer for return to the sending state?

Plain-English summary

The Attorney General concluded that Connecticut did not need a warrant from its own court to take custody of and temporarily confine an out-of-state probationer for return under the Interstate Compact for Parole and Probation Supervision. The opinion said that confinement in a Connecticut correctional facility was authorized when “the sending state has issued a warrant ordering the probationer's arrest” and “the sending state has requested such temporary confinement.” It approved the Office of Adult Probation's proposed procedures and processing form as conforming to the compact.

The compact allowed accredited sending-state officers to enter a receiving state and retake a probationer after establishing their authority and the person's identity, without the usual extradition formalities. It also let the receiving state hold a person as the sending state's agent. The opinion said that such a hold should be brief and “no longer than is reasonable necessary” for sending-state agents to take physical custody. It noted a compact limit: if a Connecticut charge was pending or the person was suspected of a Connecticut offense, retaking required Connecticut's consent until the local prosecution or imprisonment was complete.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

For probation and correctional officers: Under the compact discussed, a sending-state warrant plus a request for temporary confinement allowed Connecticut custody without an additional Connecticut warrant. The opinion treated Connecticut personnel as agents of the sending state for this incarceration. It also said the compact itself set no fixed duration, so the hold should last only the reasonable time needed for physical transfer.

For probationers: The opinion quoted Conn. Gen. Stat. § 54-136 as preserving rights the person would have had if confined in the sending state. It said any hearing provided by sending-state law could take place before Connecticut judicial or administrative officers acting as sending-state agents after consultation.

Common questions

Was a second warrant from a Connecticut judge required?

No. The Attorney General said the compact did not require one for the retaking and temporary confinement he considered. The sending state still had to issue its arrest warrant and request the hold.

Could Connecticut hold the probationer indefinitely while awaiting transfer?

The opinion said no. Although the compact did not specify a number of days, it said confinement should be brief and no longer than reasonably necessary for sending-state agents to arrive and take custody.

What if the probationer faced a Connecticut criminal charge?

The compact provision quoted in the opinion required Connecticut's consent before retaking a person who had a pending local charge or was suspected of a local offense, until local prosecution or imprisonment was complete.

Did the compact take away the probationer's sending-state rights?

No. The opinion quoted a provision preserving rights the person would have had in a sending-state institution and allowing certain hearings in the receiving state with officers acting for the sending state.

Background and statutory framework

Connecticut had ratified the Interstate Compact for Parole and Probation Supervision through Conn. Gen. Stat. § 54-132 et seq. The opinion relied chiefly on § 54-133(a)(3), which removed extradition formalities for authorized sending-state retaking while preserving the receiving state's interest in pending charges, and § 54-133(a)(7), which permitted incarceration in the receiving state as the sending state's agent. Conn. Gen. Stat. § 54-136 preserved the confined person's sending-state rights. The opinion also discussed Gentry v. Warden, 167 Conn. 639 (1975), on retaking under the compact, and cited the U.S. Supreme Court's Griffin v. Wisconsin, 483 U.S. 868, for its discussion of probation supervision's special needs.

Citations and references

The opinion quotes Conn. Gen. Stat. § 54-133(a)(3), § 54-133(a)(7), and § 54-136. It cites Gentry v. Warden, 167 Conn. 639, 643, 356 A.2d 902 (1975), and Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164. The cited cases discuss the compact and warrantless probation supervision, respectively; the opinion's specific temporary-confinement conditions come from its own closing analysis.

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/1991-formal-opinions/mr-robert-bosco-office-of-adult-probation-1991005-formal-opinion-attorney-general-of-connecticut

Original opinion text

Mr. Robert Bosco, Office of Adult Probation, 1991-005 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

February 11, 1991

Mr. Robert Bosco

Director

Office of Adult Probation

Administrative Office

643 Maple Avenue

Hartford, CT 06114

Dear Mr. Bosco:

We are in receipt of a letter dated June 6, 1990 from your department, wherein you request our opinion on an issue concerning Conn. Gen. Stat. §54-132 et. seq., the Interstate Compact for Parole and Probation Supervision. Specifically you question "whether or not it is necessary to obtain a warrant from a Connecticut court, in addition to that of the sending state, in order to take custody of and confine an out-of-state probationer in a Connecticut correctional facility until he/she can be returned to the sending state." This issue was the subject of an informal opinion dated April 16, 1987. In addition, you have requested that we review the attached form and procedures pertaining to the detention, incarceration and processing of a probationer under the Interstate Compact.

After a review of the relevant law, we have determined that it is not necessary to obtain a warrant from a Connecticut court in order to take custody of a and confine and out-of-state probationer prior to a return to the sending state. We have also determined that the proposed procedures and processing form conform to the requirements of Conn. Gen. Stat. §54-132 et seq.

Conn. Gen. Stat. § 54-132 et seq. represents Connecticut's statutory ratification of the Interstate Supervision Compact. Connecticut became a signatory to the Compact on November 6, 1943. Lilley v. Platt, 17 Conn. Supp. 101, 103, (1950). The purpose of the Compact as described by a New York court is "to benefit a probationer by permitting to reside and be supervised in the state where he has familial and community ties and thus greater employment possibilities. In consideration of this privilege it is fair and proper that the probationer be bound by the terms of the Interstate Compact with respect to his return to the sentencing state." People v. Bynul, 524 N.Y.S.2d 321, 324, 138 Misc. 2d. 326 (N.Y. City Crim. Ct. 1987).

Conn. Gen. Stat. § 54-133(a)(3) provides

(3) that duly accredited officers of a sending state may, at all times, enter a receiving state1 and there apprehend and retake any person on probation or parole, and for that purpose no formalities shall be required other than establishing the authority of the officer and the identity of the person to be retaken; all legal requirements to obtain extradition of fugitives from justice are being expressly waived on the part of the states party hereto, as to such persons and the decision of the sending state to retake a person on probation or parole to be conclusive upon and not reviewable within the receiving state; provided, if, at the time when a state shall seek to retake a probationer or parolee, there shall be pending against him within the receiving state any criminal charge, or he shall be suspected of having committed within such state a criminal offense, he shall not be retaken without the consent of the receiving state until discharged from prosecution or from imprisonment for such offense.... (Emphasis added).

The Connecticut Supreme Court in Gentry v. Warden, 167 Conn. 639, 643, 356 A.2d 902 (1975) in reviewing Section 54-133(a)(3) held that it specifically permits a sending state to retake probationers from a proceedings, "and the decision of the sending state to retake a person on probation...[is] conclusive upon and not reviewable within the receiving state...." In Wolfe v. Commonwealth, 558 A.2d 600, 601, 126 Pa.C. 48 (Pa. Commonwealth, 1989), the Commonwealth court of Pennsylvania held that the Interstate Parole Compact "provides that officers of a sending state may at all times enter a receiving state and retake person on parole, without formalities other than establishing their own authority and the identity of the person taken." (Footnote omitted).

Accordingly, since the decision to reincarcerate a probationer is "conclusive upon and not reviewable within the receiving state" and since "no formalities shall be required other than establishing the authority of the officer and the identity of the person to be retaken," it follows that there is no requirement to procure a warrant from a Connecticut court.

The authority for a Connecticut officer to reincarcerate a probationer on behalf of a "sending" state is set forth in Conn. Gen. Stat. § 54-133(a)(7) which provides that

[w]henever the duly constituted judicial and administrative authorities in a sending state shall determine that incarceration of a probationer or reincarceration of a parolee is necessary or desirable, said officials may direct that the incarceration or reincarceration be in a prison or other correctional institution within the territory of the receiving state, such receiving state to act in that regard solely as agent for the sending state.

This provision establishes an "agency" relationship between the "sending" and "receiving" states. The probationer's rights upon being reincarcerated are determined by the laws of the "sending" state. Conn. Gen. Stat. § 54-136 provides in relevant part:

The fact of incarceration or reincarceration in a receiving state shall not deprive any person so incarcerated or reincarcerated of any rights which such person would have had if incarcerated or reincarcerated in an appropriate institution of the sending state; nor shall any agreement to submit to incarceration or reincarceration pursuant to the terms of said sections be construed as a waiver of any rights which the prisoner would have had if he had been incarcerated or reincarcerated in an appropriate institution of the sending state, except that the hearing or hearings, if any, to which a parolee or probationer may be entitled, prior to incarceration or reincarceration, by the laws of the sending state may be had before the appropriate judicial or administrative officers of the receiving state. In this event, said judicial and administrative officers shall act as agents of the sending state after consultation with appropriate officers of the sending state.

In Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, the United States Supreme Court had occasion to rule upon the legality of a warrantless search by probation officers of a probationer's home. This search was conducted pursuant to a Wisconsin probation regulation which permitted a probation officer to conduct a warrantless search "as long as his supervisor approves and as long as there are 'reasonable grounds' to believe the presence of contraband - including any item that the probationer cannot possess under the probation conditions." Id., 483 U.S. 868. The probationer in this case advocated the position that a warrant supported by probable cause was necessary in order to satisfy the requirements of the Fourth Amendment to the United States Constitution. The Court, in upholding the warrantless search, discussed the unique status of a probationer. This discussion is particularly pertinent to the present issue. The Court stated in relevant part:

A State's operation of a probation system, like its operation n of a school, government office or prison, or its supervision of a regulated industry, likewise presents "special needs" beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements. Probation, like incarceration is "a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty." Probatio is simply one point (or, more accurately, one set of points) on a continuum of possible punishments ranging fro solitary confinement in a maximum security facility to a few hours of mandatory community service. A number of different options lie between those extremes, including confinement in a medium or minimum security facility, work-release programs, "halfway houses," and probation - which can itself be more or less confining depending upon the number and severity of restrictions imposed.

To a greater or lesser degree, it is always true to 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."

Supervision, then, is a "special need" of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large. That permissible degree is not unlimited, however, so we next turn to whether it has been exceeded here.

Id. 483 U.S. 868

A warrant requirement would interfere to an appreciable degree with the probation system, setting up a magistrate rather than the probation officer as the judge of how close a supervision the probation requires. Moreover, the delay inherent in obtaining a warrant would make it more difficult for probation officials to respond quickly to evidence of misconduct, and would reduce the deterrent effect that the possibility of expeditious searches would otherwise create. By way of analogy, one might contemplate how parental custodial authority would be impaired by requiring judicial approval for a search of a minor child's room.

(Citations and footnotes omitted). Id., 483 U.S. 868

The Court's analysis is supportive of the conclusion that it is unnecessary to obtain a warrant from a Connecticut court as a prerequisite to the retaking of a probationer. As the court recognized, supervision of a probationer presents "special needs" which "justify departures from the usual warrant and probable cause requirements." Id., 483 U.S. 868. These principles have been recognized and codified in Conn. Gen. Stat. § 54-132 et seq.

In view of the foregoing, and i the context referred to above it is our opinion that the Compact authorizes temporary confinement of an out-of-state probationer in a Connecticut correctional facility. Such confinement is authorized when (1) the sending state has issued a warrant ordering the probationer's arrest, and (2) the sending state has requested such temporary confinement.

Lastly, we note that the Compact does not provide for the duration of such confinement. In our opinion it should be brief and certainly no longer than is reasonable necessary to permit the sending state to send its agents to Connecticut to take physical custody of the probationer for purposes of return. This has been recognized in paragraphs five and six of your procedures.

Very truly yours,

RICHARD BLUMENTHAL

ATTORNEY GENERAL

Peter E. Wiese

Assistant Attorney General

RB/PEW/br

1 The terms "sending state" and "receiving state" are defined in Conn. Gen. Stat. § 54-132 as follows: "receiving state" means any state, other than the sending state, in which a parolee or probationer may be found, provided such state is a party to said sections; and the term "state" means any one of the several states and the Commonwealth of Puerto Rico, the Virgin Islands and the District of Columbia.