Secret Probation Files: A Potential Treasure Trove of Undiscovered Information
By Phil Dixon and Stephen Lindsay
Perhaps your case involves evidence obtained in a warrantless probation search. Perhaps you have a probation violation case. If you are like most criminal defense attorneys, you have looked at the relevant court files, spoken to the officers and witnesses involved, and interviewed your client. Sometimes the client’s version matches the probation officer’s version. Often, it does not. Consider this relatively common example:
- Probation Officer: “We went to his residence on several occasions and he was not there. After several attempts to make contact, I issued a violation for absconding.”
- Client’s Version: “I called him several times and left messages. He never responded. I have been working and here are my work records. My boss says he came by one day when I was off. Absconding? That’s crazy, I’m just trying to keep my job and stay out of trouble.
When the versions of probation violation events differ, it is often enlightening (and usually troubling) when you hear the testimony of the probation officer. With nothing more than the Violation Report and the word of your client, you are usually faced with a “he-said-she-said” situation. This often does not bode well for the client and can be downright ugly.
In these situations, it seems that there should be more to work with. As it turns out, sometimes there is. Consider the following from a recent real-life example.
The Defendant was facing felony charges arising from the warrantless search of his home. The Defendant’s girlfriend was serving a term of supervised probation. She had been living with the Defendant but moved out several months earlier when the two broke up. Probation had visited a few times when she lived at the Defendant’s home. Probation stopped by the home a few times, even after she moved out, and were repeatedly told that the woman no longer resided there. The woman was later found with a significant quantity of drugs during an in-person meeting with her probation officer. Narcotics officers were alerted and responded to seize the drugs. The probation officer then decided to conduct a warrantless search of the Defendant’s home, accompanied by the police officers there “just to assist.” The Defendant was present and did not consent to the search. None of the former girlfriend’s personal belongings were present in the home, but police found drugs, cash and guns. The defendant was subsequently charged with multiple felonies. The defense filed a motion to suppress.
In preparation for the motion, the defense was provided with discovery that included a timeline of events. This timeline had been prepared by a probation officer at the request of the charging officer. Because the search had involved both probation and non-probation officers, and because the search had been extensive, the arresting law enforcement officer wanted to carefully document the circumstances of the search.
With the former girlfriend’s probation status and residency at the time of the search central to the suppression issue, the probation officer’s records on the former girlfriend were vital. Defense counsel therefore specifically asked the State to produce this information in its initial discovery request. In response, the State provided to defense counsel numerous pages of records that included judgments, conditions of probation, violation reports, modified judgments, and similar things. However, nothing provided shed any light on the source of the information used to create the timeline of the search. Something was missing. There had to be more. The State advised that they had provided the defense with everything that had been provided to them.
The defense filed a motion to compel production of records and sought to question the probation officer on the point. At hearing, examination of the officer revealed that probation officers are required to prepare “narratives” of their interactions with probationers. These “narratives” are kept in a confidential file and computer system and are not automatically provided to the State, defense counsel or the court. Unlike a violation report, which sets forth only a brief summary of the conduct alleged to have violated a condition of supervision, “narratives” are a detailed recitation of most interactions occurring between people on probation and the probation officer. These interactions include contacts occurring in the office, on the phone, and in the field. They can include contacts with witnesses, verbatim quotes of conversations, results of drug screens, and a variety of other information that is generally not included in the violation report or court file.
Defense counsel also learned that probation officers are directed by departmental policy to refrain from turning over “narratives” to the State or anyone else without a court order. In this case, the court promptly entered an order requiring the narratives to be turned over for an in camera inspection. The inspection took only a few minutes, and the records were released to the defense. The narratives were detailed and contained significant exculpatory/Brady material. The content of the records contradicted the ultimate testimony of several witnesses at the suppression hearing and provided detailed information about the search that would have otherwise remained hidden. They were essential to providing the defense the opportunity to fully and meaningfully litigate the issues before the court.
Obtaining Acccess to Probation Narratives
How is it that these probation narratives have flown under the defense radar? While many of the laws governing probation and probation violation hearings are found in Chapter 15A of the North Carolina General Statutes, a few are hidden away in Article 20 of Chapter 15 (“Suspension of Sentence and Probation”). Relevant here is G.S. 15-207 (“Records treated as privileged information”). Pursuant to that statute, “all information and data” obtained by a probation officer in the course of his or her duties is privileged and not “receivable” in any court. Further, the information “shall not be disclosed directly or indirectly, unless and until otherwise ordered by a judge of the court or the Secretary of Public Safety.” The statute thus protects the probation “narratives” from disclosure, absent a specific court order.
So how can you get these records? It depends on the context. In the case above, the defendant was charged with a crime and sought the records as a matter of statutory open-file and constitutional discovery. Under G.S. 15A-903, a defendant is entitled to the “complete files” of law enforcement, investigative agencies, and prosecutors involved in the case, and all investigative agencies involved are directed to turn over their complete files to the prosecutor for the discovery process to run its course. This statutory discovery right, alongside the due process protections of the Brady v. Maryland, 373 U.S. 83 (1963), line of cases, present strong arguments that the material must be disclosed to the defense when relevant to a criminal case. While G.S. 15-207 arguably creates an exception from statutory open file discovery, its protections must give way to constitutional guarantees that exculpatory evidence be provided to the defendant (as it did in the case above). While the defendant was not the person on probation, the probation officer’s notes were highly relevant and helpful to the case. Thus, where defense counsel has reason to suspect that a probation narrative may contain useful information in a criminal prosecution, he or she should seek production of the records.
Careful though—the sparse case law on G.S. 15-207 indicates a normal discovery request may not suffice. State v. Russell, 92 N.C. App. 639, 650 (1989) held that the defendant’s motion for discovery did not cover the records, as the information was not within the prosecutor’s control, and that the “procedure” under G.S. 15-207 must be followed to obtain them. [Note: no specific procedure for obtaining the records is laid out in the statute other than the need for a court to order the release.] Russell was decided before the advent of open file discovery, but to be on the safe side, defense counsel should file a specific, separate request for G.S. 15-207 material, citing the statutory and constitutional discovery obligations of the State. The motion should request release, an in camera review in the alterative, and sealing of the records in the court file for appellate review if release is denied.
In the context of probation violations, the analysis is different. A probation violation hearing is not a criminal trial and the Brady line of cases do not apply. However, probationers retain some due process rights under Gagnon v. Scarpelli, 411 U.S. 778 (1973), as well as a few statutory protections. Notably, a probationer in a contested hearing is entitled to the evidence against him under G.S. 15A-1345(e), at least by the time of the hearing. A probationer might point to that statute, as well as due process protections, when seeking a G.S. 15-207 order for probation narratives in a contested probation matter. While discovery requests are not necessarily a common occurrence in probation court, the information contained in the officer’s narrative may be quite relevant to the issues at hand. Getting the information may significantly inform defense strategy and client decisions. The information is therefore essential to protect a client’s rights at hearing. When appropriate, defense counsel should argue for production of the records in a probation violation case as a matter of G.S. 15A-1345(e), due process, and fundamental fairness. Keep in mind, the prosecutor has not seen these records. The information may well influence the State’s position or obviate the need for a hearing at all.
To obtain the records in the probation context, a specific motion referencing G.S. 15-207 and probation narratives should be filed in the case when reason exists to believe the information may contain exculpatory or mitigating evidence pertaining to the alleged violation or grounds for modification. To strengthen the motion, counsel should highlight factual discrepancies and disputes at issue in the case which the narratives could help resolve. Consider serving the probation officer a copy of the motion or otherwise request that the records be brought to the court date for the judge to review.
While it takes extra digging, pursuing probation narratives just might lead you to hidden treasures. At the very least, you will be in a much better position to advise your client, to negotiate the matter, or, when needed, to defend your client at hearing.