The ICAOS rules do not provide a supervised individual the right to counsel in a probable cause hearing. However, as noted above, the Supreme Court has concluded that a supervised individual may be entitled to counsel in some circumstances. Gagnon, 411 U.S. at 790–91.
Providing counsel in receiving-state proceedings may be appropriate where the sending state intends to rely on the alleged violations as a basis for revoking conditional release. In that circumstance, the probable cause hearing serves not only to evaluate the alleged violations but also to create a record that may be used in subsequent revocation proceedings in the sending state. See Rule 5.108(f). The requirement to provide counsel would generally not be required in the context of retaking if the sending state does not intend to revoke conditional release based on violations that occurred in the receiving state. In this latter context, no liberty interest is at stake, because the individual has no right to supervision in another state.
Relatedly, some courts have read the Morrissey and Gagnon decisions governing revocation hearings and the appointment of counsel to apply only after the incarceration of the defendant. See State v Ellefson, 334 N.W.2d 56 (SD 1983). However, the law in this area is not uniform.