source: Caselaw Access Project

author: Justice Thomas Justice Stevens, Justice Souter,

license: Public Domain

text:
    PENNSYLVANIA BOARD OF PROBATION AND PAROLE v. SCOTT
    No. 97-581.
    Argued March 30, 1998
    — Decided June 22, 1998

      Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, and Kennedy, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 369. Souter, J., filed a dissenting opinion, in which Ginsberg and Breyer, JJ., joined, post, p. 370.

      D. Michael Fisher, Attorney General of Pennsylvania, argued the cause for petitioner. With him on the briefs were John G. Knorr III, Chief Deputy Attorney General, and Gregory R. Neuhauser and Calvin R. Koons, Senior Deputy Attorneys General.

      Malcolm, L. Stewart argued the cause for the United States as amicus curia& urging reversal. With him on the brief were Solicitor General Waxman, Acting Assistant At-

      tomey General Keeney, Deputy Solicitor General Dreeben, and Vicki Marani.

      Leonard N. Sosnov argued the cause for respondent. With him on the brief was David Rudovsky.

      Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, and Todd R. Marti, Assistant Attorney General, by John M. Ferren, Corporation Counsel of the District of Columbia, and by the Attorneys General for their respective States as follows: Grant Woods of Arizona, M. Jane Brady of Delaware, Robert Butterworth of Florida, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, JeffModisett of Indiana, Tom Miller of Iowa, Garla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, J. Joseph Cnrran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, Peter Vemiero of New Jersey, Dennis C. Voceo of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Jeffrey B. Pine of Rhode Island, Mark Barnett of South Dakota, John Know Walkup of Tennessee, Jan Graham of Utah, Wallace J. Malley of Vermont, and William U. Hill of Wyoming; for Americans for Effective Law Enforcement, Inc., et al. by Wayne W. Schmidt, James P. Manak, Richard M. Weintraub, and Bernard J. Farber; for the Center for the Community Interest by Andrew N. Vollmer and Roger L. Conner; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.

        Tracey Maclin, Steven R. Shapiro, Stefan Presser, and Lisa B. Kemler filed a brief for the American Ovil Liberties Union et al. as amid cwriae urging affirmance.

   Justice Thomas

delivered the opinion of the Court.

This ease presents the question whether the exclusionary-rule, which generally prohibits the introduction at criminal trial of evidence obtained in violation of a defendant’s Fourth Amendment rights, applies in parole revocation hearings. We hold that it does not.

I

Respondent Keith M. Scott pleaded nolo contendere to a charge of third-degree murder and was sentenced to a prison term of 10 to 20 years, beginning on March 31, 1983. On September 1, 1993, just months after completing the minimum sentence, respondent was released on parole. One of the conditions of respondent’s parole was that he would refrain from “owning or possessing any firearms or other weapons.” App. 5a. The parole agreement, which respondent signed, further provided:

“I expressly consent to the search of my person, property and residence, without a warrant by agents of the Pennsylvania Board of Probation and Parole. Any items, in [sic] the possession of which constitutes a violation of parole/reparole shall be subject to seizure, and may be used as evidence in the parole revocation process.” Id., at 7a.

About five months later, after obtaining an arrest warrant based on evidence that respondent had'violated several conditions of his parole by possessing firearms, consuming alcohol, and assaulting a co-worker, three parole officers arrested respondent at a local diner. Before being transferred to a correctional facility, respondent gave the officers the keys to his residence. The officers entered the home, which was owned by his mother, but did not perform a search for parole violations until respondent’s mother arrived. The officers neither requested nor obtained consent to perform the search, but respondent’s mother, did direct them to his bedroom. After finding no relevant evidence there, the officers searched an adjacent sitting room in which they found five firearms, a compound bow, and three arrows.

At his parole violation hearing, respondent objected to the introduction of the evidence obtained during the search of his home on the ground that the search was unreasonable under the Fourth Amendment. The hearing examiner, however, rejected the challenge and admitted the evidence. As a result, the Pennsylvania Board of Probation and Parole found sufficient evidence in the record to support the weapons and alcohol charges and recommitted respondent to serve 36 months’ backtime.

The Commonwealth Court of Pennsylvania reversed and remanded, holding, inter alia, that the hearing examiner had erred in admitting the evidence obtained during the search of respondent’s residence. The court ruled that the search violated respondent’s Fourth Amendment rights because it was conducted without the owner’s consent and was not authorized by any state statutory or regulatory framework ensuring the reasonableness of searches by parole officers. 668 A. 2d 590, 596 (1995). The court further held that the exclusionary rule should apply because, in the circumstances of respondent’s case, the deterrence benefits of the rule outweighed its costs. Id., at 600.

The Pennsylvania Supreme Court affirmed. 548 Pa. 418, 698 A. 2d 32 (1997). The court stated that respondent’s Fourth Amendment right against unreasonable searches and seizures was “unaffected” by his signing of the parole agreement giving parole officers permission to conduct warrant-less searches. Id., at 427, 698 A. 2d, at 36. It then held that the search in question was unreasonable because it was supported only by “mere speculation” rather than a “reasonable suspicion” of a parole violation. Ibid. Carving out an exception to its per se bar against application of the exclusionary rule in parole revocation hearings, see Commonwealth v. Kates, 452 Pa. 102, 120, 305 A. 2d 701, 710 (1973), the court further ruled that the federal exclusionary rule applied to this ease because the officers who conducted the search were aware of respondent’s parole status, 548 Pa., at 428-432, 698 A. 2d, at 37-38. The court reasoned that, in the absence of the rule, illegal searches would be undeterred when officers know that the subjects of their searches are parolees and that illegally obtained evidence can be introduced at parole hearings. Ibid.

We granted certiorari to determine whether the Fourth Amendment exclusionary rule applies to parole revocation proceedings. 522 U. S. 992 (1997).

rH > — \

We have emphasized repeatedly that the government’s use of evidence obtained in violation of the Fourth Amendment does not itself violate the Constitution. See, e. g., United States v. Leon, 468 U. S. 897, 906 (1984); Stone v. Powell, 428 U. S. 465, 482, 486 (1976). Rather, a Fourth Amendment violation is “‘fully accomplished’” by the illegal search or seizure, and no exclusion of evidence from a judicial or administrative proceeding can “ ‘cure the invasion of the defendant’s rights which he has already suffered.’” United States v. Leon, supra, at 906 (quoting Stone v. Powell, supra, at 540 (White, J., dissenting)). The exclusionary rule is instead a judicially created means of deterring illegal searches and seizures. United States v. Calandra, 414 U. S. 338, 348 (1974). As such, the rule does not “proscribe the introduction of illegally seized evidence in all proceedings or against all persons,” Stone v. Powell, supra, at 486, but applies only in contexts “where its remedial objectives are thought most efficaciously served,” United States v. Calandra, supra, at 348; see also United States v. Janis, 428 U. S. 433, 454 (1976) (“If... the exclusionary rule does not result in appreciable deterrence, then, clearly, its use in the instant situation is unwarranted”). Moreover, because the rule is prudential rather than constitutionally mandated, we have held it to be applicable only where its deterrence benefits outweigh its “substantial social costs.” United States v. Leon, 468 U. S., at 907.

Recognizing these costs, we have repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials. Id., at 909; United States v. Janis, supra, at 447. For example, in United States v. Calandra, we held that the exclusionary rule does not apply to grand jury proceedings; in so doing, we emphasized that such proceedings play a special role in the law enforcement process and that the traditionally flexible, nonadversarial nature of those proceedings would be jeopardized by application of the rule. 414 U. S., at 343-346, 349-350. Likewise, in United States v. Janis, we held that the exclusionary rule did not bar the introduction of unconstitutionally obtained evidence in a civil tax proceeding because the costs of excluding relevant and reliable evidence would outweigh the marginal deterrence benefits, which, we noted, would be minimal because the use of the exclusionary rule in criminal trials already deterred illegal searches. 428 U. S., at 448, 454. Finally, in INS v. Lopez-Mendoza, 468 U. S. 1032 (1984), we refused to extend the exclusionary rule to civil deportation proceedings, citing the high social costs of allowing an immigrant to remain illegally in this country and noting the incompatibility of the rule with the civil, administrative nature of those proceedings. Id., at 1050.

As in Calandra, Janis, and Lopez-Mendoza, we are asked to extend the operation of the exclusionary rule beyond the criminal trial context. We again decline to do so. Application of the exclusionary rule would both hinder the functioning of state parole systems and alter the traditionally flexible, administrative nature of parole revocation proceedings. The rule would provide only minimal deterrence benefits in this context, because application of the rule in the criminal trial context already provides significant deterrence of unconstitutional searches. We therefore hold that the federal exclusionary rule does not bar the introduction at parole revocation hearings of evidence seized in violation of parolees’ Fourth Amendment rights.

Because the exclusionary rule precludes consideration of reliable, probative evidence, it imposes significant costs: It undeniably detracts from the truthfinding process and allows many who would otherwise be incarcerated to escape the consequences of their actions. See Stone v. Powell, supra, at 490. Although we have held these costs to be worth bearing in certain circumstances, our eases have repeatedly emphasized that the rule’s “costly toll” upon truth-seeking and law enforcement objectives presents a high obstacle for those urging application of the rule. United States v. Payner, 447 U. S. 727, 784 (1980).

The costs of excluding reliable, probative evidence are particularly high in the context of parole revocation proceedings. Parole is a ‘Variation on imprisonment of convicted criminals,” Morrissey v. Brewer, 408 U. S. 471, 477 (1972), in which the State accords a limited degree of freedom in return for the parolee’s assurance that he will comply with the often strict terms and conditions of his release. In most cases, the State is willing to extend parole only because it is able to condition it upon compliance with certain requirements. The State thus has an “overwhelming interest” in ensuring that a parolee complies with those requirements and is returned to prison if he fails to do so. Id., at 483. The exclusion of evidence establishing a parole violation, however, hampers the State’s ability to ensure compliance with these conditions by permitting the parolee to avoid the consequences of his noncompliance. The costs of allowing a parolee to avoid the consequences of his violation are compounded by the fact that parolees (particularly those who have already committed parole violations) are more likely to commit future criminal offenses than are average citizens. See Griffin v. Wisconsin, 483 U. S. 868, 880 (1987). Indeed, this is the very premise behind the system of close parole supervision. Ibid.

The exclusionary rule, moreover, is incompatible with the traditionally flexible, administrative procedures of parole revocation. Because parole revocation deprives the parolee not “of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parolé restrictions,” Morrissey v. Brewer, supra, at 480, States have wide latitude under the Constitution to structure parole revocation proceedings. Most States, including Pennsylvania, see 548 Pa., at 427-428, 698 A. 2d, at 36; Rivenbark v. Pennsylvania Bd. of Probation and Parole, 509 Pa. 248, 501 A. 2d 1110 (1985), have adopted informal, administrative parole revocation procedures in order to accommodate the large number of parole proceedings. These proceedings generally are not conducted by judges, but instead by parole boards, “members of which need not be judicial officers or lawyers.” Morrissey v. Brewer, 408 U. S., at 489. And traditional rules of evidence generally do not apply. Ibid. (“[T]he process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial”). Nor are these proceedings entirely adversarial, as they are designed to be “'predictive and discretionary5 as well as factfinding.” Gagnon v. Scarpelli, 411 U. S. 778, 787 (1973) (quoting Morrissey v. Brewer, supra, at 480).

Application of the exclusionary rule would significantly alter this process. The exclusionary rule frequently requires extensive litigation to determine whether particular evidence must be excluded. Cf. United States v. Calandra, 414 U. S., at 349 (noting that application of the exclusionary rule “would delay and disrupt grand jury proceedings” because “[suppression hearings would halt the orderly process of an investigation and might necessitate extended litigation of issues only tangentially related to the grand jury’s primary objective”); INS v. Lopez-Mendoza, 468 U. S., at 1048 (noting that “[t]he prospect of even occasional invocation of the exclusionary rule might significantly change and complicate the character of” the deportation system). Such litigation is inconsistent with the nonadversarial, administrative processes established by the States. Although States could adapt their parole revocation proceedings to accommodate such litigation, such a change would transform those proceedings from a “predictive and discretionary” effort to promote the best interests of both parolees and society into trial-like proceedings “less attuned” to the interests of the parolee. Gagnon v. Scarpelli, supra, at 787-788 (quoting Morrissey v. Brewer, supra, at 480). We are simply unwilling so to intrude into the States’ correctional schemes. See Morrissey v. Brewer, supra, at 483 (recognizing that States have an “overwhelming interest” in maintaining informal, administrative parole revocation procedures). Such a transformation ultimately might disadvantage parolees because in an adversarial proceeding, “the hearing body may be less tolerant of marginal deviant behavior and feel more pressure to reincarcerate than to continue nonpunitive rehabilitation.” Gagnon v. Scarpelli, supra, at 788. And the financial costs of such a system could reduce the State’s incentive to extend parole in the first place, as one of the purposes of parole is to reduce the costs of criminal punishment while maintaining a degree of supervision over the parolee.

The deterrence benefits of the exclusionary rule would not outweigh these costs. As the Supreme Court of Pennsylvania recognized, application of the exclusionary rule to parole revocation proceedings would have little deterrent effect upon an officer who is unaware that the subject of his search is a parolee. 548 Pa., at 431, 698 A. 2d, at 38. In that situation, the officer will likely be searching for evidence of criminal conduct with an eye toward the introduction of the evidence at a criminal trial. The likelihood that illegally obtained evidence will be excluded from trial provides deterrence against Fourth Amendment violations, and the remote possibility that the subject is a parolee and that the evidence may be admitted at a parole revocation proceeding surely has little, if any, effect on the officer’s incentives. Cf. United States v. Janis, 428 U. S., at 448.

The Pennsylvania Supreme Court thus fashioned a special rule for those situations in which the officer performing the search knows that the subject of his search is a parolee. We decline to adopt such an approach. We have never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence. United States v. Calandra, supra, at 350; Alderman v. United States, 394 U. S. 165, 174 (1969). Furthermore, such a piecemeal approach to the exclusionary rule would add an additional layer of collateral litigation regarding the officer’s knowledge of the parolee’s status.

In any event, any additional deterrence from the Pennsylvania Supreme Court’s rule would be minimal. Where the person conducting the search is a police officer, the officer’s focus is not upon ensuring compliance with parole conditions or obtaining evidence for introduction at administrative proceedings, but upon obtaining convictions of those who commit crimes. The noncriminal parole proceeding “falls outside the offending officer’s zone of primary interest.” Janis, supra, at 458. Thus, even when the officer knows that the subject of his search is a parolee, the officer will be deterred from violating Fourth Amendment rights by the application of the exclusionary rule to criminal trials.

Even when the officer performing the search is a parole officer, the deterrence benefits of the exclusionary rule remain limited. Parole agents, in contrast to police officers, are not “engaged in the often competitive enterprise of ferreting out crime,” United States v. Leon, 468 U. S., at 914; instead, their primary concern is whether their parolees should remain free on parole. Thus, their relationship with parolees is more supervisory than adversarial. Griffin v. Wisconsin, 483 U. S. 868, 879 (1987). It is thus “unfair to assume that the parole officer bears hostility against the parolee that destroys his neutrality; realistically the failure of the parolee is in a sense a failure for his supervising officer.” Morrissey v. Brewer, supra, at 485-486. Although this relationship does not prevent parole officers from ever violating the Fourth Amendment rights of their parolees, it does mean that the harsh deterrent of exclusion is unwarranted, given such other deterrents as departmental training and discipline and the threat of damages actions. Moreover, although in some instances parole officers may act like police officers and seek to uncover evidence of illegal activity, they (like police officers) are undoubtedly aware that any unconstitutionally seized evidence that could lead to an indictment could be suppressed in a criminal trial. In this case, assuming that the search violated respondent’s Fourth Amendment rights, the evidence could have been inadmissible at trial if respondent had been criminally prosecuted.

* *

We have long been averse to imposing federal requirements upon the parole systems of the States. A federal requirement that parole boards apply the exclusionary rule, which is itself a “ ‘grudgingly taken, medicament,’ ” United States v. Janis, supra, at 455, n. 29, would severely disrupt the traditionally informal, administrative process of parole revocation. The marginal deterrence of unreasonable searches and seizures is insufficient to justify such an intrusion. We therefore hold that parole boards are not required by federal law to exclude evidence obtained in violation of the Fourth Amendment. Accordingly, the judgment below is reversed, and the case is remanded to the Pennsylvania Supreme Court.

It is so ordered.

Justice Stevens,

dissenting.

Justice Souter has explained why the deterrent function of the exclusionary rule is implicated as much by a parole revocation proceeding as by a conventional criminal trial. I agree with that explanation. I add this comment merely to endorse Justice Stewart’s conclusion that the “rule is constitutionally required, not as a ‘right’ explicitly incorporated in the fourth amendment’s prohibitions, but as a remedy necessary to ensure that those prohibitions are observed in fact.” Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 88 Colum. L. Rev. 1865, 1389 (1983). See also Arizona v. Evans, 514 U. S. 1, 18-19, and n. 1 (1995) (Stevens, J., dissenting); Segura v. United States, 468 U. S. 796, 828, and n. 22 (1984) (Stevens, J., dissenting); United States v. Leon, 468 U. S. 897, 978, and n. 37 (1984) (Stevens, J., dissenting).

Justice Souter,

with whom Justice Ginsburg and Justice Breyer join, dissenting.

The Court’s holding that the exclusionary rule of Mapp v. Ohio, 367 U. S. 643 (1961), has no application to parole revocation proceedings rests upon mistaken conceptions of the actual function of revocation, of the objectives of those who gather evidence in support of petitions to revoke, and, consequently, of the need to deter violations of the Fourth Amendment that would tend to occur in administering the parole laws. In reality a revocation proceeding often serves the same function as a criminal trial, and the revocation hearing may very well present the only forum in which the State will seek to use evidence of a parole violation, even when that evidence would support an independent criminal charge. The deterrent function of the exclusionary rule is therefore implicated as much by a revocation proceeding as by a conventional trial, and the exclusionary rule should be applied accordingly. From the Court’s conclusion to the contrary, I respectfully dissent.

This Court has said that the primary purpose of the exclusionary rule “is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.” United States v. Calandra, 414 U. S. 338, 347 (1974). Because the exclusionary rule thus “operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved,” United States v. Leon, 468 U. S. 897, 906 (1984) (internal quotation marks omitted), “[wjhether the exclusionary sanction is appropriately imposed in a particular case ... is ‘an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.’ ” Ibid, (quoting Illinois v. Gates, 462 U. S. 213, 223 (1983)). The exclusionary rule does not, therefore, mandate the exclusion of illegally acquired evidence from all proceedings or against all persons, United States v. Calandra, supra, at 348, and we have made clear that the rule applies only in “those instances where its remedial objectives are thought most efficaciously served,” Arizona v. Evans, 514 U. S. 1, 11 (1995). Only then can the deterrent value of applying the rule to a given class of proceedings be seen to outweigh its price, including “the loss of often probative evidence and all of the secondary costs that flow from the less accurate or more cumbersome adjudication that therefore occurs.” INS v. Lopez-Mendoza, 468 U. S. 1032, 1041 (1984); see also United States v. Janis, 428 U. S. 433, 454 (1976); United States v. Calandra, supra, at 349-350.

Because we have found the requisite efficacy when the rule is applied in criminal trials, see Elkins v. United States, 364 U. S. 206 (1960); Mapp v. Ohio, supra; Weeks v. United States, 232 U. S. 383 (1914), the deterrent effect of the evi-dentiary limitation upon prosecution is a baseline for evaluating the degree (or incremental degree) of deterrence that could be expected from extending the exclusionary rule to other sorts of cases, see INS v. Lopez-Mendoza, supra. Thus, we have thought that any additional deterrent value obtainable from applying the rule in civil tax proceedings, see United States v. Janis, supra, habeas proceedings, see Stone v. Powell, 428 U. S. 465 (1976), and grand jury proceedings, see United States v. Calandra, supra, would be so marginal as to be outweighed by the incremental costs.

In Jams, for example, we performed incremental benefit analysis by focusing on the two classes of law enforcement officers affected. We reasoned that when the offending official was a state police officer, his "zone of primary interest” would be state criminal prosecution, not federal civil proceedings; accordingly, we said, "common sense dictates that the deterrent effect of the exclusion of relevant evidence is highly attenuated when the 'punishment’ imposed upon the offending criminal enforcement officer is the removal of that evidence from a civil suit by or against a different sovereign.” 428 U. S., at 457-458. Stone v. Powell was another variant on the same theme, where we looked to the collateral nature of the habeas proceedings in which the rule might be applied: “The view that the deterrence of Fourth Amendment violations would be furthered rests on the dubious assumption that law enforcement authorities would fear that federal habeas review might reveal flaws in a search or seizure that went undetected at trial and on appeal.” 428 U. S., at 493. And in United States v. Calandra we observed that excluding such evidence from grand jury proceedings “would deter only police investigation^] consciously directed toward the discovery of evidence solely for use in a grand jury investigation,” 414 U. S., at 351; an investigation so unambitious would be a rare one, we said, since prosecutors are unlikely to seek indictments in the face of dim prospects of conviction after trial, ibid.

In a formal sense, such is the reasoning of the Court’s majority in deciding today that application of the exclusionary rule in parole revocation proceedings would have only an insignificant marginal deterrent value, “because application of the rule in the criminal trial context already provides significant deterrence of unconstitutional searches.” Ante, at 364. In substance, however, the Court’s conclusion will not jibe with the examples just cited, for it rests on erroneous views of the roles of regular police and parole officers in relation to revocation proceedings, and of the practical significance of the proceedings themselves.

As to the police, the majority says that regular officers investigating crimes almost always act with the prospect of a criminal prosecution before them. Their fear of eviden-tiary suppression in the criminal trial will have as much deterrent effect as can be expected, therefore, while any risk of suppression in parole administration is too unlikely to be on their minds to influence their conduct.

The majority’s assumption will only sometimes be true, however, and in many, or even most cases, it will quite likely be false. To be sure, if a police officer acts on the spur of the moment to seize evidence or thwart crime, he may have no idea of a perpetrator’s parole status. But the contrary will almost certainly be the case when he has first identified the person he has his eye on: the local police know the local felons, criminal history information is instantly available nationally, and police and parole officers routinely cooperate. See, e. g., United States ex rel. Santos v. New York State Bd. of Parole, 441 F. 2d 1216, 1217 (CA2 1971) (police officer, who had obtained “reasonable grounds” to believe that the parolee was dealing in stolen goods, informed the parole officer; the parole officer and police officer together searched parolee’s apartment), cert. denied, 404 U. S. 1025 (1972); Grimsley v. Dodson, 696 F. 2d 303, 304 (CA4 1982) (upon receipt of information about probationer, probation officer contacted a sheriff, sheriff obtained search warrant, and together they searched probationer’s house), cert. denied, 462 U. S. 1134 (1983); State ex rel. Wright v. Ohio Adult Parole Auth., 75 Ohio St. 3d 82, 83-84, 661 N. E. 2d 728, 730 (1996) (police officers suspeeted parolee had committed burglary and asked his parole officer to search his residence; parolee was then reincarcerated for violating his parole conditions); People v. Stewart, 242 Ill. App. 3d 599, 611-612, 610 N. E. 2d 197, 206 (1993) (police conducting illegal traffic stop and subsequent search and seizure knew or had reason to know that defendant was on probation); People v. Montenegro, 173 Cal. App. 3d 983, 986, 219 Cal. Rptr. 331, 332 (4th Dist. 1985) (police contacted parole agent so that they could conduct search of parolee’s apartment); see also Pennsylvania Board of Probation and Parole, Police Procedures in the Handling of Parolees 16 (rev. 1974) (parole agent has a responsibility to inform police in the area where parolee will be living and to provide “full cooperation to the police”).

As these cases show, the police very likely do know a parolee’s status when they go after him, and (contrary to the majority’s assumption) this fact is significant for three reasons. First, and most obviously, the police have reason for concern with the outcome of a parole revocation proceeding, which is just as foreseeable as the criminal trial and at least as likely to be held. Police officers, especially those employed by the same sovereign that runs the parole system, therefore have every incentive not to jeopardize a recom-mitment by rendering evidence inadmissible. See INS v. Lopez-Mendoza, 468 U. S., at 1043 (deterrence especially effective when law enforcement and prosecution are under one government). Second, as I will explain below, the actual likelihood of trial is often far less than the probability of a petition for parole revocation, with the consequence that the revocation hearing will be the only forum in which the evidence will ever be offered. Often, therefore, there will be nothing incremental about the significance of evidence offered in the administrative tribunal, and nothing “marginal” about the deterrence provided by an exclusionary rule operating there. Ante, at 368. Finally, the cooperation between parole and police officers, as in the instances shown in the cases cited above, easts serious doubt upon the aptness of treating police officers differently from parole officers, doubt that is confirmed by the following attention to the Court’s characterization of the position of the parole officer.

The Court recalls our description of the police as “engaged in the often competitive enterprise of ferreting out crime,” which raises the temptation to cut constitutional corners (which in turn requires the countervailing influence of the exclusionary rule). United States v. Leon, 468 U. S., at 914. As against this picture of the police, the Court paints the parole officer as a figure more nearly immune to such competitive zeal. As the Court describes him, the parole officer is interested less in catching a parole violator than in making sure that the parolee continues to go straight, since "'realistically the failure of the parolee is in a sense a failure for his supervising officer/” Ante, at 868 (quoting Morrissey v. Brewer, 408 U. S. 471, 485-486 (1972)). This view of the parole officer suffers, however, from its seleetiveness. Parole officers wear several hats; while they are indeed the parolees’ counselors and social workers, they also "often serve as both prosecutors and law enforcement officials in their relationship with probationers and parolees.” N. Cohen & J. Gobert, Law of Probation and Parole § 11.04, p. 538 (1983); see also Minnesota v. Murphy, 465 U. S. 420, 432 (1984) (probation officer “is a peace officer, and as such is allied, to a greater or lesser extent, with his fellow peace officers” (internal quotation marks omitted)); T. Wile, Pennsylvania Law of Probation and Parole §5.12, p. 88 (1993) (parole officers “act in various capacities, supervisor, social worker, advocate, police officer, investigator and advisor, to the offenders under their supervision”). Indeed, a parole officer’s obligation to petition for revocation when a parolee goes bad, see Cohen & Gobert, supra, §11.04, at 533, is presumably the basis for the legal rule in Pennsylvania that "state parole agents are considered police officers with respect to the offenders under their jurisdiction,” Wile, supra, § 5.12, at 89.

Once, in fact, the officer has turned from counselor to adversary, there is every reason to expect at least as much competitive zeal from him as from a regular police officer. See Gagnon v. Scarpelli, 411 U. S. 778, 785 (1973) (“[A]n exclusive focus on the benevolent attitudes of those who administer the probation/parole system when it is working successfully obscures the modification in attitude which is likely to take place once the officer has decided to recommend revocation”). If he fails to respond to his parolee’s further criminality he will be neglecting the public safety, and if he brings a revocation petition without enough evidence to sustain it he can hardly look forward to professional advancement. R. Prus & J. Stratton, Parole Revocation Decisionmaking: Private Typings and Official Designations, 40 Federal Probation 51 (Mar. 1976). And as for competitiveness, one need only ask whether a parole officer would rather leave the credit to state or local police when a parolee has to be brought to book.

The Court, of course, does not mean to deny that parole officers are subject to some temptation to skirt the limits on search and seizure, but it believes that deterrents other than the evidentiary exclusion will suffice. The Court contends that parole agents will be kept within bounds by “departmental training and discipline and the threat of damages actions.” Ante, at 369. The same, of course, might be said of the police, and yet as to them such arguments are not heard, perhaps for the same reason that the Court’s suggestion sounds hollow as to parole officers. The Court points to no specific departmental training regulation; it cites no instance of discipline imposed on a Pennsylvania parole officer for conducting an illegal search of a parolee’s residence; and, least surprisingly of all, the majority mentions not a single lawsuit brought by a parolee against a parole officer seeking damages for an illegal search. In sum, if the police need the deterrence of an exclusionary rule to offset the temptations to forget the Fourth Amendment, parole officers need it quite as much.

Just as the Court has underestimated the competitive influences tending to induce police and parole officers to stint on Fourth Amendment obligations, so I think it has misunderstood the significance of admitting illegally seized evidence at the revocation hearing. On the one hand, the majority magnifies the cost of an exclusionary rule for parole cases by overemphasizing the differences between a revocation hearing and a trial, and on the other hand it has minimized the benefits by failing to recognize the significant likelihood that the revocation hearing will be the principal, not the secondary, forum, in which evidence of a parolee’s criminal conduct will be offered.

The Court is, of course, correct that the revocation hearing has not only an adversarial side in factfinding, but a predictive and discretionary aspect in addressing the proper disposition when a violation has been found. See ante, at 366 (citing Gagnon v. Scarpelli, supra, at 787 (quoting Morrissey v. Brewer, supra, at 480)). And I agree that open-mindedness at the discretionary, dispositional stage is promoted by the relative informality of the proceeding even at its factfinding stage. Gagnon v. Scarpelli, supra, at 786. That informality is fostered by limiting issues so that lawyers are not always necessary, 411 U. S., at 787-788, and by appointing lay members to parole boards, Morrissey v. Brewer, supra, at 489. There is no question, either, that application of an exclusionary rule, if there is no waiver of Fourth Amendment rights, will tend to underscore the adversary character of the factfinding process. This cannot, however, be a dispositive objection to an exclusionary rule. Any revocation hearing is adversary to a degree: counsel must now be provided whenever the complexity of fact issues so warrant, Gagnon v. Scarpelli, supra, at 787, and lay board members are just as capable of passing upon Fourth Amendment issues as the police, who are necessarily charged with responsibility for the legality of warrantless arrests, investigatory stops, and searches.

As to the benefit of an exclusionary rule in revocation proceedings, the majority does not see that in the investigation of criminal conduct by someone known to be on parole, Fourth Amendment standards will have very little deterrent sanction unless evidence offered for parole revocation is subject to suppression for unconstitutional conduct. It is not merely that parole revocation is the government’s consolation prize when, for whatever reason, it cannot obtain a further criminal conviction, though that will sometimes be true. See, e. g., State ex rel. Wright v. Ohio Adult Parole Auth., 75 Ohio St. 3d, at 83-89, 661 N. E. 2d, at 730 (State sought revocation of parole when criminal prosecution was dismissed for insufficient evidence after defendant’s motion to suppress was successful); Anderson v. Virginia, 20 Va. App. 361, 363-364, 457 S. E. 2d 396, 397 (1995) (same); Chase v. Maryland, 309 Md. 224, 228, 522 A. 2d 1348, 1350 (1987) (same); Gronski v. Wyoming, 700 P. 2d 777, 778 (Wyo. 1985) (same). What is at least equally telling is that parole revocation will frequently be pursued instead of prosecution as the course of choice, a fact recognized a quarter of a century ago when we observed in Morrissey v. Brewer that a parole revocation proceeding “is often preferred to a new prosecution because of the procedural ease of recommitting the individual on the basis of a lesser showing by the State.” 408 U. S., at 479; see also Cohen & Gobert, §8.06, at 386 (“Favoring the [exclusionary] rule’s applicability is the fact that the revocation proceeding, often based on the items discovered in the search, is used in lieu of a criminal trial”).

The reasons for this tendency to skip any new prosecution are obvious. If the conduct in question is a crime in its own right, the odds of revocation are very high. Since time on the street before revocation is not subtracted from the balance of the sentence to be served on revocation, Morrissey v. Brewer, 408 U. S., at 480, the balance may well be long enough to render recommitment the practical equivalent of a new sentence for a separate crime. And all of this may be accomplished without shouldering the burden of proof beyond a reasonable doubt; hence the obvious popularity of revocation in place of new prosecution.

The upshot is that without a suppression remedy in revocation proceedings, there will often be no influence capable of deterring Fourth Amendment violations when parole revocation is a possible response to new crime. Suppression' in the revocation proceeding cannot be looked upon, then, as furnishing merely incremental or marginal deterrence over and above the effect of exclusion in criminal prosecution. Instead, it will commonly provide the only deterrence to unconstitutional conduct when the incarceration of parolees is sought, and the reasons that support the suppression remedy in prosecution therefore support it in parole revocation.

Because I would apply the exclusionary rule to evidence offered in revocation hearings, I would affirm the judgment in this case. Scott gave written consent to warrantless searches; the form he signed provided that he consented “to the search of my person, property and residence, without a warrant by agents of the Pennsylvania Board of Probation and Parole.” App. 7a. The Supreme Court of Pennsylvania held the consent insufficient to waive any requirement that searches be supported by reasonable suspicion, and in the absence of any such waiver, the State was bound to justify its search by what the Court has described as information indicating the likelihood of facts justifying the search. Griffin v. Wisconsin, 483 U. S. 868 (1987) (dealing with the analogous context of probation revocation). The State makes no claim here to have satisfied this standard. It describes the parole agent’s knowledge as rising no further than “the possibility of the presence of weapons in Scott’s home,” Brief for Petitioner 7, and rests on the argument that not even reasonable suspicion was required.

Because the search violated the Fourth Amendment, and because I conclude that the exclusionary rule ought to apply to parole revocation proceedings, I would affirm the decision of the Supreme Court of Pennsylvania.

       The court also held that the Board of Probation and Parole erred by admitting hearsay evidence regarding alcohol consumption and a separate incident of weapons possession.

       While this case was pending in the Pennsylvania Supreme Court, the Commonwealth Court filed an en banc opinion in another case that overruled its decision in respondent’s case and held that the exclusionary rule does not apply in parole revocation hearings. Kyte v. Pennsylvania Bd. of Probation and Parole, 680 A. 2d 14, 18, n. 8 (1996).

       We also invited the parties to brief the question whether a search of a parolee’s residence must be based on reasonable suspicion where the parolee has consented to searches as a condition of parole. Respondent argues that we lack jurisdiction to decide this question in this case because the Pennsylvania Supreme Court held, as a matter of Pennsylvania law, that respondent’s consent to warrantless searches as a condition of his state parole did not constitute consent to searches that are unreasonable under the Fourth Amendment. Petitioner and its amid contend that the Pennsylvania Supreme Court’s opinion was at least ambiguous as to whether it relied on state or federal law to determine the extent of respondent’s consent, and that we therefore have jurisdiction under Michigan v. Long, 463 U. S. 1032 (1983). We need not parse the Pennsylvania Supreme Court’s decision in an attempt to discern its intent, however, because it is clear that we have jurisdiction to determine whether the exclusionary rule applies to state parole revocation proceedings, and our decision on that issue is sufficient to decide the case. We therefore express no opinion regarding the constitutionality of the search.

       As discussed above, we have generally held the exclusionary rule to apply only in criminal trials. We have, moreover, significantly limited its application even in that context. For example, we have held that the rule does not apply when the officer reasonably relied on a search warrant that was later deemed invalid, United States v. Leon, 468 U. S. 897, 920-922 (1984); when the officer reasonably relied on a statute later deemed unconstitutional, Illinois v. Krull, 480 U. S. 340, 349-350 (1987); when the defendant seeks to assert another person’s Fourth Amendment rights, Alderman v. United States, 394 U. S. 165, 174-175 (1969); and when the illegally obtained evidence is used to impeach a defendant’s testimony, United States v. Havens, 446 U. S. 620, 627-628 (1980); Walder v. United States, 347 U. S. 62, 65 (1954).

       We thus have held that a parolee is not entitled to “the full panoply” of due process rights to which a criminal defendant is entitled, Morrissey v. Brewer, 408 U. S. 471, 480 (1972), and that the right to counsel generally does not attach to such proceedings because the introduction of counsel would “alter significantly the nature of the proceeding,” Gagnon v. Scarpelli, 411 U. S. 778, 787 (1973).

       While it is true that the Court found in INS v. Lopez-Mendoza, 468 U. S. 1032 (1984), that the deterrence value of applying the exclusionary rule in deportation proceedings was diminished because the INS “has its own comprehensive scheme for deterring Fourth Amendment violations by its officers,” id., at 1044, and “alternative remedies for institutional practices by the INS that might violate Fourth Amendment rights” were available, id., at 1045, these two factors reflected what was at least on the agency's books and, in any event, did not stand alone. The Court in that case found that as a practical matter “it is highly unlikely that any particular arrestee will end up challenging the lawfulness of his arrest in a formal deportation proceeding.” Id., at 1044. As the instant case may suggest, there is no reason to expect parolees to be so reticent.

       On the subject of cost, the majority also argues that the cost of applying the exclusionary rale to revocation proceedings would be high because States have an “‘overwhelming interest’” in ensuring that its parolees comply with the conditions of their parole, given the fact that parolees are more likely to commit future crimes than average citizens. Ante, at 365. I certainly do not contest the fact, but merely point out that it does not differentiate suppression at parole hearings from suppression at trials, where suppression of illegally obtained evidence in the prosecution’s case in chief certainly takes some toll on the State’s interest in convicting criminals in the first place. The majority’s argument suggests not that the exclusionary rule is necessarily out of place in parole revocation proceedings, but that States should be permitted to condition parole on an agreement to submit to warrantless, suspicionless searches, on the possibility of which this case has no bearing. See infra, at 379-380.

       See 548 Pa. 418, 426, 698 A. 2d 32, 35-36 (1997) (“‘[Tjhe parolee's signing of a parole agreement giving his parole officer permission to conduct a warrantless search does’not mean either that the parole officer can conduct a search at any time and for any reason or that the parolee relinquishes his Fourth Amendment right to be free from unreasonable searches. Rather, the parolee’s signature acts as acknowledgement that the parole officer has a right to conduct reasonable searches of his residence listed on the parole agreement without a warrant’”) (quoting Commonwealth v. Williams, 547 Pa. 577, 588, 692 A. 2d 1031, 1036 (1997)). Since Pennsylvania has not sought review of this conclusion, I do not look behind it, or offer any opinion on whether the terms and sufficiency of such a waiver are to be scrutinized under state or federal law.


author: Justice Breyer Justice Kennedy,

text:
    WISCONSIN DEPARTMENT OF CORRECTIONS et al. v. SCHACHT
    No. 97-461.
    Argued April 20, 1998
    Decided June 22, 1998

      Breyer, J., delivered the opinion for a unanimous Court. Kennedy, J., filed a concurring opinion, post, p. 393.

      Richard Briles Moriarty, Assistant Attorney General of Wisconsin, argued the cause for petitioners. With him on the briefs was James E. Doyle, Attorney General.

      David E. Lasker argued the cause and filed a brief for respondent

      A brief of amici curiae urging reversal was filed for the State of Indiana et al. by Jeffrey A Modisett, Attorney General of Indiana, and Jon Laramore, Geoffrey Slaughter, and Anthony Scott Chinn, Deputy Attorneys General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Grant Woods of Arizona, Robert A Butterworth of Florida, Thurbert E. Baker of Georgia, Margery S. Bronster of Hawaii, James E. Ryan of Illinois, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Philip T. McLaughlin of New Hampshire, Frankie Sue Del Papa of Nevada, Dennis C. Voceo of New York, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, John Knox Walkup of Tennessee, Dan Morales of Texas, Jan Graham of Utah, William H. Sorrell of Vermont, and William U. Hill of Wyoming.

   Justice Breyer

delivered the opinion of the Court.

The question before us is whether defendants in a case filed in a state court, with claims “arising under” federal law, can remove that case to federal court — where some claims, made against a State, are subject to an Eleventh Amendment bar. We conclude that the defendants can remove the ease to a federal court and that the court can decide the nonbarred claims.

I

In 1993, the Wisconsin Department of Corrections dismissed Keith Schacht, a prison guard, for stealing items from the Oakhill Correctional Institution, a state prison. In January 1996, Schacht filed a complaint in state court against the Department and several of its employees, both in their “personal” and in their “official” capacities. The complaint, in several different claims, alleged that the Department and its employees had deprived Schacht of “liberty” and “property” without “due process of law,” thereby violating the Federal Constitution and civil rights laws. U. S. Const., Arndt. 14, § 1; Rev. Stat. § 1979, 42 ü. S. C. § 198S. The defendants immediately removed the case to federal court.

The defendants’ answer, filed in federal court, in part raised as a “defense” that the “eleventh amendment to the United States Constitution, and the doctrine of sovereign immunity, bars any claim under 42 U. S. C. § 1983 against” the State itself, namely, the “defendant Wisconsin Department of Corrections [and] against any of the’named defendants in their official capacities.” Answer and Defenses, App. 14-15. See Kentucky v. Graham, 473 U. S. 159, 165-167, and n. 14 (1985) (suit for damages against state officer in official capacity is barred by the Eleventh Amendment); Alabama v. Pugh, 438 U. S. 781, 782 (1978) (per curiam) (suit against state agency is barred by the Eleventh Amendment).

After further proceedings, the Federal District Court considered those claims that were not against the State, that is, the claims against the individual defendants in their “personal capaeit[ies].” It concluded as to those claims that, even if Schaeht’s factual allegations were true, Schacht had received the process that was his “due,” and his dismissal did not violate the Fourteenth Amendment. No. 96-C-122-S (WD Wis., Sept. 13, 1996), App. 31-34. It therefore granted the defendants’ motion for summary judgment with respect to those claims. Id., at 34.

The federal court also considered the defendants’ motion to dismiss those claims filed against the State, i. e., the claims against the Department of Corrections and its employees in their “official capacities.” The District Court granted the motion, stating:

“Plaintiff agrees his claims for money damages are barred [by the Eleventh Amendment] but pursues his claims for injunctive relief. Plaintiff does not, however, request injunctive relief in his complaint.... Defendants’ motion to dismiss plaintiff’s claims against the Wisconsin Department of Corrections and the individual defendants in their official capacities will be granted.” Id., at 30.

Sehaeht appealed. He did not assert that the District Court was wrong to have dismissed the claims against the State. He argued only that the court’s disposition of the “personal capacity” claims, i. e., the grant of summary judgment, was legally erroneous. During the appeal, the Court of Appeals for the Seventh Circuit itself raised the question whether the removal from state to federal court had been legally permissible. See 116 F. 3d 1151, 1153 (1997). After supplemental briefing, the Court of Appeals concluded that removal had been improper and the federal courts lacked jurisdiction over Schaeht’s ease. Ibid.

The Court of Appeals pointed out that Sehacht’s original state-court complaint, while presenting only claims arising under federal law, asserted some of those claims against the State. Id., at 1152. The court added that the Eleventh Amendment, as interpreted by this Court, prohibited the.assertion of those claims in federal court. Ibid, (citing U. S. Const., Arndt. 11; Hans v. Louisiana, 134 U. S 1, 10 (1890)). The Court of Appeals concluded that the presence of even one such claim in an otherwise removable ease deprived the federal courts of removal jurisdiction over the entire ease. 116 F. 3d, at 1152-1153 (relying on Frances J. v. Wright, 19 F. 3d 337, 341 (CA7 1994)). Hence, it held, the District Court’s judgment must be vacated and the entire case returned to the state court for the litigation to begin all over again. 116 F. 3d, at 1153-1154.

We granted certiorari to review the Seventh Circuit’s view of the matter, and the similar views taken in several earlier cases upon which that court relied, see, e.g., Frances J., supra; McKay v. Boyd Constr. Co., 769 F. 2d 1084 (CA5 1985). Those decisions conflict with the decisions of other Courts of Appeals. See, e.g., Kruse v. Hawai'i, 68 F. 3d 331 (CA9 1995); Henry v. Metropolitan Sewer Dist., 922 F. 2d 332 (CA6 1990); see also Silver v. Baggiano, 804 F. 2d 1211 (CA11 1986). We now conclude, contrary to the Seventh Circuit, that the presence in an otherwise removable ease of a claim that the Eleventh Amendment may bar does not destroy removal jurisdiction that would otherwise exist.

H-Í hH

The governing provision of the federal removal statute authorizes a defendant to remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U. S. C. § 1441(a). See also Judiciary Act of 1789, § 12, 1 Stat. 79-80 (original removal statute); Act of Mar. 3,1887, 24 Stat. 552, corrected by Act of Aug. 13, 1888, 25 Stat. 433 (setting forth removal power in terms roughly similar to present law). The language of this section obviously permits the removal of a ease that contains only claims that “arise under” federal law. That is because a federal statute explicitly grants the federal courts “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States,” 28 U. S. C. § 1331. This case, however, requires us to consider what happens if one, or more, of those claims is subject to an Eleventh Amendment bar. Does that circumstance destroy removal jurisdiction that would otherwise exist?

The primary argument that it does destroy removal jurisdiction has several parts. First, the argument distinguishes a ease with federal-law claims that include one or more Eleventh Amendment claims from a case with both federal-law claims and state-law claims. See 116 F. 3d, at 1152. We have suggested that the presence of even one claim “arising under” federal law is sufficient to satisfy the requirement that the case be within the original jurisdiction of the district court for removal. See Chicago v. International College of Surgeons, 522 U. S. 156, 163-166 (1997). In Chicago, for example, we wrote:

“[The] federal claims suffice to make the actions ‘civil actions’ within the ‘original jurisdiction’ of the district courts for purposes of removal. . . . Nothing in the jurisdictional statutes suggests that the presence of related state law claims somehow alters the fact that [the] complaints, by virtue of their federal claims, were 'civil actions’ within the federal courts’ 'original jurisdiction.’ ” Id., at 166 (citation omitted).

See also Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58 (1987); Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 7-12 (1983).

This statement, however, and others like it, appear in the context of cases involving both federal-law and state-law claims. And the Seventh Circuit found a significant difference between such cases and cases in which the Eleventh Amendment applies to some of the federal-law claims. See 116 F. 3d, at 1152. In the former cases the state-law claims fall within the supplemental jurisdiction of the federal courts. Supplemental jurisdiction allows federal courts to hear and decide state-law claims along with federal-law claims when they ''are so related to claims in the action within such original jurisdiction that they form part of the same ease or controversy.” 28 U. S. C. § 1367(a); see Chicago, supra, at 164-166. Cf. § 1441(c) (explicitly providing discretionary removal jurisdiction over entire ease where federal claim is accompanied by a "separate and independent” state-law claim). In the latter eases, the comparable claims do not fall within the federal courts’ “pendent” jurisdiction, but rather, it is argued, are claims that the Eleventh Amendment prohibits the federal courts from deciding.

Second, the argument emphasizes the “jurisdictional” nature of this difference. The Seventh Circuit, for example, said: “Glaims barred by sovereign immunity stand on different footing than other claims that are not independently removable, because of the affirmative limitation on jurisdiction imposed by the sovereign immunity doctrines.” 116 F. 3d, at 1152 (citing Frances J., supra, at 340-341, and n. 4). That is to say, according to the Court of Appeals, neither the law permitting supplemental jurisdiction, nor any other law, see, e. g., § 1441(e), gives the federal court the power to decide a claim barred by the Eleventh Amendment. See Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 121 (1984); Frances J., 19 F. 3d, at 341.

Third, the argument looks to removal based upon “diversity jurisdiction,” 28 U. S. C. § 1332, for analogical authority that leads to its conclusion, namely, that this “jurisdictional” problem is so serious that the presence of even one Eleventh-Amendment-barred claim destroys removal jurisdiction with respect to all claims (i. e., the entire “ease”). See, e. g., 116 F. 3d, at 1152 (citing Frances J., supra, at 341); McKay v. Boyd Constr. Co., 769 F. 2d, at 1086-1087 (discussing analogy to removal based on diversity jurisdiction). A case falls within the federal district court's “original” diversity “jurisdiction” only if diversity of citizenship among the parties is complete, i. e., only if there is no plaintiff and no defendant who are citizens of the same State. See Carden v. Arkoma Associates, 494 U. S. 185, 187 (1990); Strawbridge v. Curtiss, 3 Cranch 267 (1806). But cf. Fed. Rule Civ. Proe. 21; Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826, 832-838 (1989) (Rule 21 authorizes courts to dismiss nondi-verse defendants in order to cure jurisdictional defects, instead of the entire case). Consequently, this Court has indicated that a defendant cannot remove a case that contains some claims against “diverse” defendants as long as there is one claim brought against a “nondiverse” defendant. See Caterpillar Inc. v. Lewis, 519 U. S. 61, 68-69 (1996). If the analogy is appropriate, then, an Eleventh Amendment bar with respect to one claim would prevent removal of a case that contains some “arising under” claims, which, had they stood alone, would have permitted removal. Frances J., supra, at 341; McKay, supra, at 1087.

We find the analogy unconvincing. This ease differs significantly from a diversity case with respect to a federal district court’s original jurisdiction. The presence of the non-diverse party automatically destroys original jurisdiction: No party need assert the defect. No party can waive the defect or consent to jurisdiction. Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S. 694, 702 (1982); People’s Bank v. Calhoun, 102 U. S. 256, 260-261 (1880). No court can ignore the defect; rather a court, noticing the defect, must raise the matter on its own. Insurance Corp. of Ireland, supra, at 702; Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 382 (1884).

The Eleventh Amendment, however, does not automatically destroy original jurisdiction. Rather, the Eleventh Amendment grants the State a legal power to assert a sovereign immunity defense should it choose to do so. The State can waive the defense. Atascadero State Hospital v. Scanlon, 473 U. S. 234, 241 (1985); Clark v. Barnard, 108 U. S. 436, 447 (1883). Nor need a court raise the defect on its own. Unless the State raises the matter, a court can ignore it. See Patsy v. Board of Regents of Fla., 457 U. S. 496, 515, n. 19 (1982).

These differences help to explain why governing authority has treated the defects differently for purposes of original jurisdiction. Where original jurisdiction rests upon Congress’ statutory grant of “diversity jurisdiction,” this Court has held that one claim against one nondiverse defendant destroys that original jurisdiction. See, e.g., Newman-Green, Inc., supra, at 829 (“When a plaintiff sues more than one defendant in a diversity action, the plaintiff must meet the requirements of the diversity statute for each defendant or face dismissal”). But, where original jurisdiction rests upon the Statute’s grant of “arising under” jurisdiction, the Court has assumed that the presence of a potential Eleventh Amendment bar with respect to one claim, has not destroyed original jurisdiction over the case. E. g., Pugh, 438 U. S., at 782; Papasan v. Allain, 478 U. S. 265 (1986). See also Henry, 922 F. 2d, at 338-339; Roberts v. College of the Desert, 870 F. 2d 1411, 1415 (CA9 1988). Cf. Pennhurst, supra, at 121 (suggesting that courts must analyze the applicability of the Eleventh Amendment to each claim rather than ease as whole). Since a federal court would have original jurisdiction to hear this case had Schacht originally filed it there, the defendants may remove the case from state to federal courts. See § 1441(a).

Other considerations further undermine the analogy. For example, for purposes of removal jurisdiction, we are to look at the case as of the time it was filed in state court — prior to the time the defendants filed their answer in federal court. See, e. g., St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U. S. 283, 291 (1938) (“[T]he status of the case as disclosed by the plaintiff’s complaint is controlling in the ease of a removal, since the defendant must file his petition before the time for answer or forever lose his right to remove”). As of that time, a ca,se that involved “incomplete diversity” automatically would have fallen outside the federal courts’ “original jurisdiction.” By contrast, as of that time, the State’s participation as a defendant would not automatically have placed the case outside the federal courts’ jurisdictional authority. That is because the underlying relevant condition (the federal courts’ effort to assert jurisdiction over an objecting State) could not have existed prior to removal, see, e. g., Maine v. Thiboutot, 448 U. S. 1, 9, n. 7 (1980), and because the State might not have asserted the defense in federal court, but could have decided instead to defend on the merits. (Here, for example, the State, while not waiving its Eleventh Amendment defense, has asserted in the alternative that Schacht could not state a § 1983 claim against the State. See Will v. Michigan Dept. of State Police, 491 U. S. 58, 64 (1989).)

These differences between “diversity” and “Eleventh Amendment” eases with respect to original and removal jurisdiction are sufficient to destroy the analogy upon which the lower court opinions rest. A ease such as this one is more closely analogous to eases in which a later event, say, the change in the citizenship of a party or a subsequent reduction of the amount at issue below jurisdictional levels, destroys previously existing jurisdiction. In such cases, a federal court will keep a removed ease. See St. Paul Mercury Indemnity Co., supra, at 293-295; Phelps v. Oaks, 117 U. S. 236, 240-241 (1886); Kanouse v. Martin, 15 How. 198, 207-210 (1854). See also Carnegie-Mellon Univ. v. Cohill, 484 U. S. 343, 350, and n. 7 (1988) (federal court may exercise jurisdiction over remaining state-law claims under supplemental jurisdiction, if all federal-law claims are eliminated before trial). Here, too, at the time of removal, this case fell within the “original jurisdiction” of the federal courts. The State’s later invocation of the Eleventh Amendment placed the particular claim beyond the power of the federal courts to decide, but it did not destroy removal jurisdiction over the entire case.

Ill

We must consider one further argument that respondent has made. That argument is not based upon an analogy but upon the specific language of a particular statutory provision, 28 U. S. C. § 1447(c). The provision says: “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the ease shall be remanded.” Ibid. Respondent argues that, at least after the State asserted its Eleventh Amendment defense, the federal court “lacked subject matter jurisdiction.” Brief for Respondent 19. He points out that the statute says that the entire “case shall be remanded” to the state court. That is to say, he contends that, if the “district court lacks subject matter jurisdiction” over any claim, then every claim, i. e., the entire “ease,” must be “remanded” to the state court.

Even making the assumption that Eleventh Amendment immunity is a matter of subject-matter jurisdiction — a question we have not decided — we reject respondent’s argument because we do not read the statute in this way. An ordinary reading of the language indicates that the statute refers to an instance in which a federal court “lacks subject matter jurisdiction” over a “ease,” and not simply over one claim within a case. Cf. § 1441(c) (permitting “the entire case” to be removed or remanded, when one or more “non-removable claims or causes of action” is joined with a federal question “claim or cause of action”). Conceivably, one might also read the statute’s reference to “case” to include a claim within a case as well as the entire case. But neither reading helps Schacht. The former reading would make the provision inapplicable here; the latter would make it applicable, but requires remand only of the relevant claims, and not the entire case as Schacht contends.

Nor does the statute’s purpose favor Schacht’s interpretation. The statutory section that contains the provision deals, not with the question of what is removable, but with the procedures that a federal court is to follow after removal occurs. It is entitled: “Procedure after removal generally.” § 1447. In substance, the section differentiates between removals that are defective because of lack of subject-matter jurisdiction and removals that are defective for some other reason, e. g., because the removal took place after relevant time limits had expired. For the latter kind of case, there must be a motion to remand filed no later than 30 days after the filing of the removal notice. § 1447(c). For the former kind of case, remand may take place without such a motion and at any time. Ibid. The provision, then, helps to specify a procedural difference that flows from a difference in the kinds of reasons that could lead to a remand. That objective is irrelevant to the kind of problem presented in this case.

We repeat our conclusion: A State’s proper assertion of an Eleventh Amendment bar after removal means that the federal court cannot hear the barred claim. But that circumstance does not destroy removal jurisdiction over the remaining claims in the case before us. A federal court can proceed to hear those other claims, and the District Court did hot err in doing so.

For these reasons, the judgment of the Court of Appeals is vacated, and the ease is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Kennedy,

concurring.

In joining the opinion of the Court, I write to observe we have neither reached nor considered the argument that, by-giving its express consent to removal of the case from state court, Wisconsin waived its Eleventh Amendment immunity. Insofar as the record shows, this issue was not raised in the proceedings below; and it was not part of the briefs filed here or the arguments made to the Court. The question should be considered, however, in some later ease.

Removal requires the consent of all of the defendants. See, e. g., Chicago, R. I. & P. R. Co. v. Martin, 178 U. S. 245, 248 (1900); 14A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3731, p. 504 (2d ed. 1985). Here the State consented to removal but then registered a prompt objection to the jurisdiction of the United States District Court over the claim against it. By electing to remove, the State created the difficult problem confronted in the Court of Appeals and now here. This is the situation in which law usually says a party must accept the consequences of its own acts. It would seem simple enough to rule that once a State consents to removal, it may not turn around and say the Eleventh Amendment bars the jurisdiction of the federal court. Consent to removal, it can be argued, is a waiver of the Eleventh Amendment immunity.

Given the latitude accorded the States in raising the immunity at a late stage, however, a rule of waiver may not be all that obvious. The Court has said the Eleventh Amendment bar may be asserted for the first time on appeal, so a State which is sued in federal court does not waive the Eleventh Amendment simply by appearing and defending on the merits. See Florida Dept. of State v. Treasure Salvors, Inc., 458 U. S. 670, 683, n. 18 (1982) (plurality opinion); see also Calderon v. Ashmus, 523 U. S. 740, 745, n. 2 (1998); Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 99, n. 8 (1984); Edelman v. Jordan, 415 U. S. 651, 678 (1974); Ford Motor Co. v. Department of Treasury of Ind., 323 U. S. 459, 467 (1945).

I have my doubts about the propriety of this rule. In permitting the belated assertion of the Eleventh Amendment bar, we allow States to proceed to judgment without facing any real risk of adverse consequences. Should the State prevail, the plaintiff would be bound by principles of res judi-cata. If the State were to lose, however, it could void the entire judgment simply by asserting its immunity on appeal.

This departure from the usual rules of waiver stems from the hybrid nature of the jurisdictional bar erected by the Eleventh Amendment. In certain respects, the immunity bears substantial similarity to personal jurisdiction requirements, since it can be waived and courts need not raise the issue sua sponte. See Patsy v. Board of Regents of Fla., 457 U. S. 496, 516, n. 19 (1982). Permitting the immunity to be raised at any stage of the proceedings, in contrast, is more consistent with regarding the Eleventh Amendment as a limit on the federal courts’ subject-matter jurisdiction. See Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S. 694, 702-704 (1982) (comparing personal jurisdiction with subject-matter jurisdiction). We have noted the inconsistency. Although the text is framed in terms of the extent of the “Judicial power of the United States,” U. S. Const., Arndt. 11, our precedents haye treated the Eleventh Amendment as “enact[ing] a sovereign immunity from suit, rather than a nonwaivable limit on the federal judiciary’s subject-matter jurisdiction.” Idaho v. Coeur d’Alene Tribe of Idaho, 521 U. S. 261, 267 (1997); see also E. Chemerinsky, Federal Jurisdiction §7.6, p. 405 (2d ed. 1994) (noting that allowing waiver of the immunity “seems inconsistent with viewing the Eleventh Amendment as a restriction on the federal courts’ subject matter jurisdiction”).

The Court could eliminate the unfairness by modifying our Eleventh Amendment jurisprudence to make it more consistent with our practice regarding personal jurisdiction. Under a rule inferring waiver from the failure to raise the objection at the outset of the proceedings, States would be prevented from gaining an unfair advantage. See Fed. Rule Civ. Proe. 12(h)(1).

We would not need to make this substantial revision to find waiver in the circumstances here, however. Even if appearing in federal court and defending on the merits is not sufficient to constitute a waiver, a different case may be presented when a State under no compulsion to appear in federal court voluntarily invokes its jurisdiction. As the Court recognized in Gunter v. Atlantic Coast Line R. Co., 200 U. S. 273, 284 (1906), “where a State voluntarily becomes a party to a cause and submits its rights for judicial determination, it will be bound thereby and cannot escape the result of its own voluntary act by invoking the prohibitions of the Eleventh Amendment.”

An early decision of this Court applied this principle in holding that a State’s voluntary intervention in a federal-court action to assert its own claim constituted a waiver of the Eleventh Amendment. Clark v. Barnard, 108 U. S. 436, 447-448 (1883); see also Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U. S. 279, 294, n. 10 (1973) (Marshall, J., concurring in result) (citing Clark v. Barnard with approval); Petty v. Tennessee-Missouri Bridge Comm’n, 359 U. S. 275, 276 (1959) (same); Missouri v. Fiske, 290 U. S. 18, 24-25 (1933) (same). The Court also found a waiver of the Eleventh Amendment when a State voluntarily appeared in bankruptcy court to file a claim against a common fund. Gardner v. New Jersey, 329 U. S. 565, 574 (1947). Since a State which is made a defendant to a state-court action is under no compulsion to appear in federal court and, like any other defendant, has the unilateral right to block removal of the case, any appearance the State makes in federal court may well be regarded as voluntary in the same manner as the appearances which gave rise to the waivers in Clark and Gardner.

Some Courts of Appeals, following this reasoning, have recognized that consent to removal may constitute a waiver. Newfield House, Inc. v. Massachusetts Dept. of Pub. Welfare, 651 F. 2d 32, 36, n. 3 (CA1), cert. denied, 454 U. S. 1114 (1981); see also Estate of Porter v. Illinois, 36 F. 3d 684, 691 (CA7 1994); Silver v. Baggiano, 804 F. 2d 1211, 1214 (CA11 1986); Gwinn Area Community Schools v. Michigan, 741 F. 2d 840, 847 (CA6 1984). These cases have first inquired, however, whether state law authorized the attorneys representing the State to waive the Eleventh Amendment on its behalf. Petitioners cited this qualification when we raised the issue at oral argument in the instant ease. This was also the Court’s apparent concern in Ford Motor Co., in which it held:

“It is conceded by the respondents that if it is within the power of the administrative and executive officers of Indiana to waive the state’s immunity, they have done so in this proceeding. The issue thus becomes one of their power under state law to do so. As this issue has not been determined by state courts, this Court must resort to the general policy of the state as expressed in its Constitution, statutes and decisions. Article 4, § 24 of the Indiana Constitution provides:
“'Provision may be made, by general law, for bringing suit against the State, as to all liabilities originating after the adoption of this Constitution; but no special act authorizing such suit to be brought, or making compensation to any person claiming damages against the State, shall ever be passed.’
“We interpret this provision as indicating a policy prohibiting state consent to suit in one particular ease in the absence of a general consent to suit in all similar causes of action. Since the state legislature may waive state immunity only by general law, it is not to be presumed in the absence of clear language to the contrary, that they conferred on administrative or executive officers discretionary power to grant or withhold consent in individual cases. ... It would seem, therefore, that no properly authorized executive or administrative officer of the state has waived the state’s immunity to suit in the federal courts.” 323 U.S., at 467-469 (footnotes omitted).

See also Sosna v. Iowa, 419 U. S. 393, 396, n. 2 (1975).

Notwithstanding the quoted language from Ford Motor Co., the absence of specific authorization, it seems to me, is not an insuperable obstacle to adopting a rule of waiver in every case where the State, through its attorneys, consents to removal from the state court to the federal court. If the States know or have reason to expect that removal will constitute a waiver, then it is easy enough to presume that an attorney authorized to represent the State can bind it to the jurisdiction of the federal court (for Eleventh Amendment purposes) by the consent to removal.

It is true as well that the Court’s recent cases have disfavored constructive waivers of the Eleventh Amendment and have required the State’s consent to suit be unequivocal. Atascadero State Hospital v. Scanlon, 473 U. S. 234, 246-247 (1985); Edelman v. Jordan, 415 U. S., at 673. The conduct which may give rise to the waiver in the instance of removal is far less equivocal than the conduct at issue in those cases, however. Here the State’s consent amounted to a direct invocation of the jurisdiction of the federal courts, an act considerably more specific than the general participation in a federal program found insufficient in Atascadero and Edelman.

These questions should be explored. If it were demonstrated that a federal rule finding waiver of the Eleventh Amendment when the State consents to removal would put States at some unfair tactical disadvantage, perhaps the waiver rule ought not to be embraced. I tend to doubt such consequences, however. Since the issue was not addressed either by the parties or the Court of Appeals, the proper course is for us to defer addressing the question until it is presented for our consideration, supported by full briefing and argument, in some later ease.