Condition of Supervised Release Requiring Reporting of All Contact with Police Violates Due Process

In United States v. Maloney, No. 06-3745 (3d Cir. Jan. 17, 2008), the Court of Appeals held that a condition of supervised release which required the defendant to "notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer" was impermissibly vague as applied in the factual setting of the case. Maloney was convicted after a hearing violating three separate conditions of his supervised release, viz., 1) failing to notify his probation officer after he had been questioned by the police for failing to display a peddler’s license, 2) failing to report that he had purchased or had access to a vehicle and; 3) committing the crime of eluding a law enforcement officer.

With regard to the first violation, subsequent to commencing supervised release, Maloney began working as a shoe peddler and at some time later was issued a summons for failing to display his peddler’s license. The summons was ultimately dismissed as untimely. However, the probation officer charged Maloney with failing to report having been questioned by the police in connection with the issuance of the summons. The District Court held that Maloney violated the condition that he "notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer" when he failed to report that a law enforcement officer asked him for his peddler’s license and that the issuance of a summons should have impressed upon him the importance of reporting the incident. The Court of Appeals reversed the conviction.

The Court stated that "a condition of supervised release violates due process and is void for vagueness if it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Here, the Court noted that the probation officer testified that the condition meant that Maloney had to report all "contact" with the police. The district court commented that it would be "ridiculous to suggest that the condition was so broad as to encompass the basic questions asked when one enters a federal building or undergoes a routine security check at an airport." Maloney testified that he was routinely asked to produce his peddler’s license and that on the day in question he showed the license but was cited because it was not visible on his cart. The Court of Appeals stated that: "The divergent attempts to interpret the term ‘questioned’ during Maloney’s revocation hearing illustrate the ambiguous scope of this condition of supervised release." The Court noted that there is general consensus that a simple request for identification would not have violated the condition despite the fact that such a request would fit within the definition of the condition. The Court of Appeals sighted the "glaring lack of consistency regarding the level of interaction required to transform basic contact with law enforcement into an incident that must be reported" as indicative of the vagueness of the condition. The Court concluded that condition was impermissibly vague in the context of Maloney’s case.

Noting the low standard of preponderance of the evidence and relaxed procedural safeguards at revocation hearings, the Court of Appeals affirmed the conviction on the remaining two violations. Nevertheless, the matter was remanded since the sentence may have been impacted by one of the conditions having been vacated.