A probable cause hearing under Rule 5.108 is not required in two common circumstances. First, when retaking is based on a new criminal conviction in the receiving state, no additional probable cause hearing is necessary. The conviction itself conclusively establishes the violation, and the underlying criminal proceedings satisfy due process requirements. E.g., D’Amato v. U.S. Parole Comm’n, 837 F.2d 72, 79 (2d Cir. 1988).
Second, a probable cause hearing is not required when retaking will result only in the supervised individual’s return to the sending state for continued supervision and the sending state does not intend to use the receiving-state violations as a basis for revocation. In such cases, retaking reflects a supervisory decision rather than a revocation proceeding.
However, if there is any uncertainty about whether the sending state might revoke the supervised individual’s conditional release based on violations in the receiving state, the individual should be granted a probable cause hearing as outlined in Rule 5.108. Failing to provide this hearing could prevent the violations from being considered in future revocation proceedings in the sending state.
It is important to distinguish between a probable cause hearing and a retaking hearing. As discussed above, the compact permits a sending state to enter any other member state and retake a supervised individual. Rule 5.108 applies only when violations in the receiving may serve as the basis for revocation of conditional release. Neither Rule 5.108 nor the Gagnon and Morrissey decisions require a probable cause type hearing in all circumstances of retaking. See Johnson v. State, 957 N.E.2d 660 (Ind. App. 2011).