1. Probable Cause Process
106-ICAOS Training
Probable Cause Process
Rule 5.108
[Revision 12/1/2017-Includes Rules Effective 3/1/2018]
Be Ready for a Test at the End.

2. 11/15/2018
ICAOS Training Series
101-Transfer & Reporting Instructions Eligibility
102-Transferring Supervision
103-Supervision in the Receiving State
104-Reporting Behavior Requiring Retaking
105-Mandatory Retaking for New Violent or Felony Crimes & Absconders apprehended in the Receiving State
106-Probable Cause Hearings

3. Training Objectives Purpose of Rule 5.108 & PC explained
When a Probable Cause Hearing is required/not required
Probable Cause Hearing
Report Requirements/Results
Waiver
When Probable Cause is found/not found

4. US Supreme Court Decisions
Morrisey vs. Brewer 408 U.S. 471 (1972) (parole)
Gagnon vs. Scarpelli 411 U.S. 778 (1973) (probation)
Why is this important to Compact Offenders?
Geographical concerns (violations committed outside of Sending State)
Without PC, violations may be barred from consideration for revocation (Sending State)
Offenders are ENTITLED when revocation is possible

5. Retaking vs Revocation
Retaking: Process to remove or cause an offender to be removed from the Receiving State
Mandatory: Receiving State invokes based on ‘revocable’ non-compliant behavior
Discretionary: Sending State may initiate retaking for ANY reason unless pending felony or violent charges exist
Revocation: Sending State terminates supervised release and incarcerates the offender

6. Purpose of PC Hearing Test Merit of Violation Creates Record
Provides evidence the offender likely violated his or her conditions of supervision
Ensure violation meets definition of ‘Behavior Requiring Retaking’
Receiving States should not arbitrarily revoke relocation once granted
Creates Record
To be used in possible subsequent revocation hearing
Who, What, When & Where??

7. When an Offender is not Entitled to a PC Hearing
No possibility violations committed in receiving state will be used in revocation proceedings in the sending state
e.g. Offender simply returning to resume supervision in Sending State
New conviction
Rule 5.102
Conviction is conclusive proof of violation
5.102 covers mandatory retake for felony conviction and violent crime convictions
New Rule is not referencing a PC hearing, but rather a violation hearing for the new conviction. Allows for a discretionary process (based on the sending state’s capabilities) to address a violation of a new conviction and allow a new sentence imposed by the sending state to be satisfied or partially satisfied while incarcerated

8. When a Compact Offender is Entitled to a PC Hearing
Custodial detention based on violations
initiated by either the receiving or sending state
sanctioning or preliminary-justify detention
Violations committed in receiving state may form basis for revocation of supervision
Retaking for violations-creates record for sending state and substantiates the violations
Violations imposed by EITHER sending or receiving state (Notification (via Progress Report) at the time condition is imposed!)
Absconder apprehended in the receiving state
The offender is in custodial detention in the receiving state based on violations of supervision that occurred in that state or based on a request from the sending state that the offender be detained OR A PC hearing is not required when there is a new criminal conviction, the judgment of conviction is conclusive
Authority to Arrest and Detain Rule
Warrant from Sending State
Authority to arrest and detain
An offender in violation of the terms and conditions of supervision may be taken into custody or continued in custody by the receiving state.
(Only if you have the authority to arrest in-state offenders without a warrant from the Court.)
Can occur under three broad categories
Committing a new offense in the receiving state
Upon request of sending state based on its intent to retake.
Violations that physically occur in the receiving state. (May or may not be a new charge. Sending state may or may not initiate retaking.)
Fulfills critical purpose of public safety and protecting rights of crime victims.
The sending state does not have to issue a warrant when a request for probable cause is made
Some states have the ability to issue warrants on offenders from other states
It is up to the sending receiving state to get the offender into custody if that is required for the PC hearing.
Rule OR
The alleged violations of supervision in the receiving state may form the basis of revocation of supervised release by the sending state and geographical distance may prevent the offender from adequately presenting a defense including calling witnesses or presenting exculpatory evidence
The inquiry is more depth and is in the nature of a probable cause, fact finding proceeding.
When there is a risk of revocation a PC hearing shall be conducted. Since the receiving state does not know what the sending state may do once the offender is returned, the process usually starts with a request from the sending state. Sending states should not be asking for a pc hearing if they have no intention of revoking.
Some states such as Minnesota may have their own PC requirements in Statute. For example, if MN takes an interstate offender into custody on a MN warrant a PC hearing has to be conducted within 12 days. Make sure you know the laws in your state.
Third reason OR If an offender who has absconded is apprehended on a sending state’s warrant within the jurisdiction of the receiving state
If an offender who has absconded is apprehended on a sending state’s warrant within the jurisdiction of the receiving state that issued the violation report and case closure, the receiving state shall, upon request by the sending state, conduct a probable cause hearing as provided in Rule (d) and (e) unless waived as provided in Rule (b).

9. Preliminary Hearing vs PC Hearing
Custodial detention based on violations
Sanctioning (not retake/revocation) OR
Preliminary hearing justifying detention
May or may not meet requirements of Rule 5.108
Depends on level of detail
Does hearing record CLEARLY articulate facts and circumstances SUPPORTING retaking the offender & recommendation for revocation??
This is where many states vary. For some the preliminary hearing is as detailed to meet requirements of Rule 5.108, but not always.

10. PC Hearing & Retaking
Violations committed in receiving state may form basis for revocation of supervision
Retaking for violations-creates record for sending state and substantiates the violations
Ensures certain due process RIGHTS are afforded to the offender prior to revocation hearing
Absconder apprehended in the receiving state
Confirms validity of previous Violation Report
Warrant & Detainer must remain in place!

11. Prior to the PC Hearing A Probable Cause Hearing is Required!
Now What?!?
Offender should receive written notice of the alleged violation(s)
Notice of hearing (option to waive)
Wavier discussion coming up!

12. PC Hearing Elements Conducted by neutral and detached person
Close proximity to where alleged violations occurred
Administrative hearing
Fact finding, no determination of guilt
Level of due process is usually less than a revocation hearing

13. Offender’s Rights at PC Hearing
What is an offender entitled to at a PC Hearing?
Disclosure of non-privileged/non-confidential evidence
Opportunity to be heard in person, present witnesses and evidence
The opportunity to confront and cross-examine adverse witnesses
unless the hearing officer determines that a risk of harm to a witness exists

14. Hearing Report Requirements
Ensure reports meets local AND Rule requirement!
Due to sending state within 10 business days after the hearing
Must include:
Date, time, location of the hearing
Who was present (who testified/who did not)
Clear & concise WRITTEN summary of ALL testimony
What evidence was used in decision?
Specific statements as to which violations where PC found, not found and offender admitted to

15. Waiver of Probable Cause Hearing
Waiver acceptable when:
Offender is apprised of his or her rights to hearing
No contest to retaking and clearly aware of the facts supporting retaking
Signed admission to one or more violations
In place of a probable cause hearing a receiving state can offer the offender a PC waiver. The PC waiver needs to include an admission to at least one violation of conditions 15

16. Uploading Hearing Report or Waiver
Establishing Probable Cause per Rule when reporting the violation may speed up the retaking process!
PC documentation can be updated/added, via Addendum to Violation Report too!
Do not use CARs to update…note to supervisors, ensure this documentation is reviewed!
Ensure Hearing Reports meet requirements of Rule 5.108

17. If Probable Cause is established,
After the PC Hearing…
If Probable Cause is established,
Receiving State
Sending State
SHALL hold the offender in custody
If not in custody, the offender is taken into custody at this time
Notify the receiving state of the decision to retake within 15 business days of receipt of the report
SHALL retake offender within 30 calendar days once offender is in custody solely held on the sending state’s warrant

18. If Probable Cause is NOT established,
Receiving State
Sending State
Notify the sending state to vacate the warrant
Vacate the receiving state’s warrant
Release the offender back to supervision within 24 hours of the hearing if the offender is in custody
Continue Supervision
Vacate the sending state’s warrant
After the PC Hearing…

19. Denial of Bail or other Release Conditions
An offender against whom retaking procedures have been instituted by a sending or receiving state shall not be admitted bail or other release conditions in any state.
Rule 5.111

20. Cost Responsibilities Associated with Retaking
Sending State
Receiving State
Costs incurred to remove an offender from the receiving state
Cost to detain the offender

21. Case Closure
Once the offender is retaken by the sending state a Case Closure Notice needs to be completed in ICOTS.

22. 11/15/2018
Liability
Liable is defined by Webster as “Legally obligated; responsible…”
All compact member states can be held liable for circumventing or violating the ICAOS rules.
ICAOS rules are federal law and there is a legal obligation to follow and enforce the rules as written.

23. Scenario #1
The receiving state submitted a violation report for conviction of a offense which included a copy of the court order. The sending state requests a probable cause hearing. Under the rules of the compact the receiving state is not required to conduct the probable cause hearing for this case.
True
False
True; Rule states that judgment of conviction for new offense shall be deemed conclusive proof and retaking can occur without the need for further proceedings

24. Scenario #2
Anyone in the receiving state can conduct a probable cause hearing, including the supervising agent.
True
False
False; Rule requires the person be neutral and detached

25. Scenario #3
The receiving state sends a violation report indicating the offender has waived his/her right to a probable cause hearing. However, the waiver does not include an admission of violating a condition of supervision. Since the wavier is signed by the offender, it is still valid.
True
False
False, Rule specifically states waivers must include an admission to at least one violation of a condition

26. Scenario #4
The sending state receives the probable cause hearing results from the receiving state but it does not include a summary of the testimony, the date and time of the hearing or the evidence relied on to make the decision. The probable cause hearing results are valid and the sending state must move forward with retaking/returning the offender.
True
False
False, Rule e states the report must include time, date, location of the hearing, parties present, evidence presented and a summary of testimony.

27. Scenario #5
The sending state should be notified via Progress Report anytime a new condition is imposed on the offender.
True
False
True, Rule requires notice take place of any conditions imposed.

28. Questions