dissenting:
This court’s judgment affirming the revocation of Mr. Mollica’s probation is technically correct, since no majority of this court agrees upon a ground for modifying it. But while we recognize that since both of the positions we espouse are minority positions, and thus that the judgment must stand, we dissent from both majority holdings.
I. The Use Of Illegally Obtained Evidence in Parole Revocation Proceedings.
A majority of the court advances two reasons for the conclusion that illegally obtained evidence is admissible in a probation revocation proceeding. One is that a probationer, because he has already been found guilty of a crime, has only a “conditional” liberty. The other is that since the application of the exclusionary rule to probation revocation proceedings will not significantly enhance the deterrence of police misconduct it should not be applied. Neither reason is sound.
It is true that the procedural rules applicable to a criminal prosecution, such as jury trial and proof beyond a reasonable doubt, do not apply in a probation revocation proceeding. But it is a classic non-sequitur to suggest that, because the procedural rules of criminal prosecutions and of probation revocation proceedings are not identical,' persons on probation have a lesser interest *847in the zones of privacy and personal autonomy which the fourth amendment protects. This court recognized in United States v. Hallman, 365 F.2d 289 (3d Cir.1966), that the fourth amendment protects a parolee from a warrantless seizure. It held that such illegally seized evidence could not be admitted in a subsequent counterfeiting case. Certainly that case ought to control on the full applicability of the fourth amendment to probationers, for no meaningful distinction can be drawn, for fourth amendment purposes, between a probationer and a parolee. Moreover, the Hallman court drew no distinction based upon the nature of the proceeding in which the illegally obtained evidence was to be used. From the point of view of the victim of a fourth amendment violation, the government’s further invasion of constitutionally protected privacy rights by making use of the fruits of that invasion in a public forum is the same whether that public forum is a prosecution or a proceeding to revoke probation or parole. The public exploitation of the invasion of privacy continues and aggravates it. The court becomes a partner in that exploitation to exactly the same extent in both proceedings. Matters that should, under the law, have remained private are put to a public use, to the ongoing detriment of the victim. A peeping tom looking through a bedroom window commits an egregious invasion of privacy. If he titilates his friends with a description of what he observed in the bedroom, the invasion of privacy is magnified. If a court then affords him a public forum in which the private information becomes a public record, the court participates in that invasion of privacy and magnifies it to the maximum. The exclusionary rule prohibits the court from participating in illegal invasions of privacy by maximization of the dissemination of information which under the standards of privacy enshrined in the fourth amendment should remain private.
On this issue the majority disregards the court’s involvement in the ongoing invasion of the victim’s privacy interests by separating the exclusionary rule from those privacy interests. That majority holds that the rule is not a personal constitutional right of the party aggrieved, but only a device designed to deter violations of fourth amendment rights. It is indeed a rule to prevent violations of fourth amendment rights — violations by the court in compounding illegal invasions of privacy by further public exploitation of material that should have remained private in the first place.
Over a decade ago I outlined the reasons why the deterrence of police misconduct as the sole justification for the exclusionary rule is a snare and a delusion. Gibbons, Practical Prophylaxis and Appellate Methodology: The Exclusionary Rule as a Case Study in the Decisional Process, 3 Seton Hall L.Rev. 295 (1972). Almost everything that has occurred in fourth amendment jurisprudence since then has reinforced my conviction as to the unsoundness of the deterrence rationale. The majority opinion on the fourth amendment issue is a typical example. Proceeding from the assumption, unsupported by empirical evidence, that application of the rule in criminal trials does in fact have an effect on police conduct, it jumps to the equally unsupported assumption that non-application of the rule in parole revocation proceedings will have no encouraging effect. Our visceral reaction, and we confess it is only that, is that the case for a deterrence-encouragement rationale is stronger rather than weaker in the probation revocation context. The police, often less interested in convictions than in crime prevention, already have a great incentive in dealing with parolees or probationers to seek their incarceration under the much lower evidentiary standards applicable to revocation proceedings. The holding that illegally obtained evidence may be freely used in a probation revocation proceeding sends a strong signal to law enforcement personnel that the task of building a legal case which would sustain a conviction may be shortcut in the interest of getting a probationer off the street by an invasion of his fourth amendments rights.1 *848Our visceral reaction as to the rule’s deterrence or encouragement of police misconduct is at least as probable as that of the majority on that issue.
Neither visceral reaction, however, is a sound basis for a ruling that the court should, become an active participant in an ongoing illegal invasion of constitutionally protected privacy interests. The only valid reason for the exclusionary rule is that advanced by Justices Holmes and Brandeis years ago in their notable dissents in Olmstead v. United States, 277 U.S. 438, 469, 471, 48 S.Ct. 564, 569, 570, 72 L.Ed.2d 944 (1928). The government plays “an ignoble part” when it commits illegal invasions of privacy. Id. at 470,48 S.Ct. at 569 (Holmes, J., dissenting). The evidence, therefore, is excluded “in order to preserve the judicial process from contamination.” Id. at 484, 48 S.Ct. at 574 (Brandéis, J., dissenting). The contamination to which Brandéis referred was that caused by the active participation of the court in providing a public forum for the widespread dissemination and public use of information which should have remained private.
Brandéis was one of the first scholars to recognize the importance of individual privacy as a basic liberty. Warren and Brandéis, The Right oí Privacy, 4 Harv.L.Rev. 193 (1890). Many years elapsed before a majority of the Supreme Court accepted his normative judgment as to the value of that liberty. Now, we concede, this court’s majority is swimming with a strong tide against recognition of the value of privacy rights.2 The head count among the courts of appeals on the precise issue of admissibility of illegally obtained evidence in probation revocation proceedings is evidence of that tide. In this court United States v. Hallman, 365 F.2d 289 (3d Cir.1966), while technically distinguishable, put us, at least until today, in the same normative camp as the Fourth Circuit. United States v. Workman, 585 F.2d 1205, 1211 (4th Cir.1978). We would have this circuit stay there. It is offensive to cast federal judges in the role of peeping toms once removed, presiding over a public forum for the public dissemination of information which under the Constitution was and should have remained private. Moreover, embracing that ignoble role, as the majority on that issue does, will in the long run erode the moral authority of the court, which is its only real source of power.
We would hold that the court erred in refusing to hold a hearing to determine whether the evidence it admitted in the probation revocation proceeding was illegally obtained.
II. The Privilege Against Self-Incrimination in Parole Revocation Proceedings
Judge Garth’s separate opinion, which unfortunately does not command a majority, outlines the reasons why, when the executive branch of the federal government calls upon the article III judiciary to impose the sanction of revocation of probation, the court should insist upon either use/fruits immunity so that the probationer may testify or postponement of the revocation hearing until incrimination from testimony is no longer likely. We agree with his proposed holding. We note that his reliance on a judge-made procedural rule not specifically required by a statute or the Constitution is entirely consistent with the Supreme Court’s latest pronouncement on the supervisory powers of the federal courts.
*849The purposes underlying use of the supervisory powers are threefold: to implement a remedy for violation of recognized rights ...; to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury ...; and finally, as a remedy designed to deter illegal conduct____
United States v. Hasting,-U.S. -, -, 103 S.Ct. 1974,1978-79, 76 L.Ed.2d 96 (1983) (citations omitted). All three purposes apply here. The rule Judge Garth proposes implements a probationer’s privilege against self-incrimination. It also assures that the parole revocation proceeding will have the benefit of all evidence possibly favorable to the probationer, and thus that the decision is made on appropriate considerations. Finally, it deters reliance on probation revocation proceedings in circumstances in which the prosecuting authorities could not prove a substantive offense, and prevents those authorities from placing the probationer in the position of leaving a weak case unanswered or running the risk of strengthening it by self-incrimination.
Thus we dissent as well from the holding that probation revocation proceedings should go forward, absent a grant of use/fruits immunity, in the face of a valid assertion that testimony by the probationer would tend to incriminate him in respect to a pending criminal charge.
SLOVITER, Circuit Judge.1. I agree with Chief Judge Seitz that appellant Mollica was not deprived of any constitutional rights when the district court refused to postpone Mollica’s probation revocation hearing or to grant him use immunity. I agree that we should not enunciate a supervisory rule to cover this situation for the reasons set forth in Chief Judge Seitz’ opinion.
2. I agree with Judge Gibbons that the district court should have held a hearing to determine whether the challenged evidence was illegally obtained. In recent decisions, the Supreme Court has grounded its rationale for the rule more on pragmatism than on principle: “The [exclusionary] rule’s prime purpose 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, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974). See United States v. Janis, 428 U.S. 433, 446, 96 S.Ct. 3021, 3028, 49 L.Ed.2d 1046 (1976). Even if viewed in that light, I am unpersuaded that probation revocation proceedings should stand on a significantly different footing than criminal trials for this purpose. Although empirical evidence is unhappily unavailable, as the Court has recognized, see id., it is reasonable to assume that the deterrent effect on police misconduct would be strengthened if the exclusionary rule is applied in an unwaivering and undeviating fashion whenever the evidence is sought to be used in a proceeding which may subject the victim of the search to imprisonment. See United States v. Workman, 585 F.2d 1205, 1211 (4th Cir. 1978). Therefore, I would remand for the purpose of directing the district court to hold a suppression hearing. Since a majority of the court has not accepted that position, I vote to affirm.
. An amicus curiae brief filed in the Supreme Court by Dan Johnston, county attorney for *848Polk County, Iowa, in Illinois v. Gates, — U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), contended that the exclusionary rule is accountable for the extremely low number of dismissals of prosecutions because of suppression of evidence, and that a retreat from Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), will be perceived by the law enforcement community as a signal that the fourth amendment should not be taken seriously. See argument of counsel in Illinois v. Gates, - U.S. -, -, 103 S.Ct. 2317, 2323, 76 L.Ed.2d 527 (1983). Mr. Johnston’s visceral reaction is informed by law enforcement experience which the members of this court lack.
. But see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1977) (warrant based on knowingly false affidavit should be voided and fruits of search suppressed).