Amicus Curiae Brief — Raymond N. Bailey, Jr., Petitioner v. Arkansas

No. 24-424

IN THE

Supreme Court of the United States

RAYMOND N. BAILEY, JR.,

Petitioner,

v.

STATE OF ARKANSAS,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Arkansas

BRIEF OF THE LAW ENFORCEMENT ACTION

PARTNERSHIP AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

Jacob T. Spencer

Counsel of Record

GIBSON, DUNN & CRUTCHER LLP

1700 M Street, N.W.

Washington, D.C. 20036

(202) 955-8500

jspencer@gibsondunn.com

Bryston C. Gallegos

GIBSON, DUNN & CRUTCHER LLP

2001 Ross Avenue, Suite 2100

Dallas, TX 75201

Anne M. Champion

Lefteri J. Christos

Neel M. Lakhanpal

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue

New York, NY 10166

Andrew M. Kasabian

GIBSON, DUNN & CRUTCHER LLP

3161 Michelson Drive, Suite 1200

Irvine, CA 92612

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ........................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ........................................................ 2

ARGUMENT .............................................................. 5

I.

The Supreme Court and the U.S. Courts of

Appeals Have Long Recognized the Importance

of Protecting the Fourth Amendment Rights of

Third Parties in Their Homes. .............................5

II. The Arkansas Supreme Court’s Rule Would

Inflict Collateral Constitutional Damage by

Impairing the Fourth Amendment Rights of

Innocent Third Parties. ...................................... 11

III. The Arkansas Supreme Court’s Rule Would Set

Poor Incentives for Officers in the Field Who Are

Considering Searching a Third Party’s

Residence. ...........................................................19

CONCLUSION ......................................................... 22

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Alabama v. White,

496 U.S. 325 (1990) .............................................. 20

Anderson v. Creighton,

483 U.S. 635 (1987) ........................................ 3, 7, 8

Bailey v. United States,

568 U.S. 186 (2013) ........................................ 16, 19

Brinegar v. United States,

338 U.S. 160 (1949) .............................................. 11

Davis v. United States,

564 U.S. 229 (2011) .............................................. 17

Georgia v. Randolph,

547 U.S. 103 (2006) ....................................... 14, 15

Herring v. United States,

555 U.S. 135 (2009) .............................................. 17

Hudson v. Michigan,

547 U.S. 586 (2006) .............................................. 17

Illinois v. Krull,

480 U.S. 340 (1987) .............................................. 18

Jones v. United States,

357 U.S. 493 (1958) ........................................ 12, 13

Lankford v. Gelston,

364 F.2d 197 (4th Cir. 1966) ............................... 11

Mapp v. Ohio,

367 U.S. 643 (1961) .............................................. 17

iii

Maryland v. King,

569 U.S. 435 (2013) ............................................ 3, 8

Mincey v. Arizona,

437 U.S. 385 (1978) .............................................. 16

Motley v. Parks,

432 F.3d 1072 (9th Cir. 2005) ...................... 8, 9, 13

Murray v. United States,

487 U.S. 533 (1988) .............................................. 18

Navarette v. California,

572 U.S. 393 (2014) .............................................. 20

Olmstead v. United States,

277 U.S. 438 (1928) .............................................. 18

Payton v. New York,

445 U.S. 573 (1980) .......................................... 4, 10

Semayne’s Case,

(1604) 77 Eng. Rep. 194, 5 Co. Rep.

91 a, 91 b ................................................................ 7

Silverman v. United States,

365 U.S. 505 (1961) .............................................. 19

State v. Winterstein,

220 P.3d 1226 (Wash. 2009) ................................ 13

Steagald v. United States,

451 U.S. 204 (1981) ........................ 2, 3, 6, 7, 9, 10,

13, 14, 16, 20

Stone v. Powell,

428 U.S. 465 (1976) ........................................ 17, 21

United States v. Arvizu,

534 U.S. 266 (2002) .............................................. 20

iv

United States v. Brinkley,

980 F.3d 377 (4th Cir. 2020) ................................ 10

United States v. Cervantes,

859 F.3d 1175 (9th Cir. 2017) .............................. 13

United States v. Janis,

428 U.S. 433 (1976) .............................................. 17

United States v. King,

687 F.3d 1072 (9th Cir. 2012) ................................ 8

United States v. Knights,

534 U.S. 112 (2001) .............................................. 15

United States v. Leon,

468 U.S. 897 (1984) .............................................. 18

United States v. Martinez-Fuerte,

428 U.S. 543 (1976) ................................................ 9

United States v. Thabit,

56 F.4th 1145 (8th Cir. 2023) .......................... 8, 13

United States v. Thompson,

402 F. App’x 378 (10th Cir. 2010) ................. 10, 11

United States v. United States Dist. Court

for Eastern Dist. of Michigan,

407 U.S. 297 (1972) .............................................. 16

United States v. Vasquez-Algarin,

821 F.3d 467 (3d Cir. 2016) ............... 3, 4, 9, 10, 14

Wilson v. Layne,

526 U.S. 603 (1999) .............................................. 15

Wolf v. Colorado,

338 U.S. 25 (1949) ................................................ 20

v

Constitutional Provisions

U.S. Const. Amend. IV .............................................. 11

Other Authorities

Carrie Pettus and Stephanie Kennedy,

Housing Stability After Incarceration,

Institute for Justice Research and

Development (Apr. 2022) ..................................... 12

INTEREST OF AMICUS CURIAE*

The Law Enforcement Action Partnership

(“LEAP”) is a nonprofit organization whose members

include police, prosecutors, judges, corrections officials, and other law enforcement officials advocating

for criminal justice and drug policy reforms that will

make our communities safer and more just. Founded

by five police officers in 2002 with a sole focus on drug

policy, LEAP’s Speakers Bureau today numbers more

than 300 criminal justice professionals advising on relations between the police and the community, incarceration, harm reduction, drug policy, and global policing issues. Through speaking engagements, media

appearances, testimony, and support of allied efforts,

LEAP reaches audiences across a wide spectrum of affiliations and beliefs, calling for more practical and

ethical policies from a public safety perspective.

This case presents an important opportunity to

ensure that officers respect the constitutional rights

of citizens who are not the targets of an investigation.

Just, constitutionally sound policing is essential to

maintaining the integrity of law enforcement, building trust in the police, and ultimately keeping the

public safe. LEAP and its members have an interest

in ensuring that citizens’ constitutional rights are protected, and that legal rules that create perverse incentives for law enforcement are overturned. LEAP offers this brief to urge this Court to grant review and

* No counsel for a party authored this brief in whole or in

part, and no entity or person other than LEAP, its members, and

its counsel made a monetary contribution intended to fund the

preparation or submission of this brief. Additionally, all parties

received timely notice of LEAP’s intent to file this brief.

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ensure that citizens’ Fourth Amendment rights are

adequately protected across different jurisdictions.

INTRODUCTION AND

SUMMARY OF ARGUMENT

I. The Supreme Court and the U.S. Courts of Appeals have long recognized the importance of protecting the rights that third parties enjoy in their homes

under the Fourth Amendment to the United States

Constitution.

In Steagald v. United States, this Court held that

officers must have a search warrant, rather than an

arrest warrant, to search the homes of “persons not

named in the warrant when their homes are searched

without their consent and in the absence of exigent

circumstances.” 451 U.S. 204, 212 (1981). There is

otherwise “absolutely nothing to protect [the third

party’s] privacy interest in being free from an unreasonable invasion and search of his home.” Id. at 213.

A “contrary conclusion . . . would create a significant

potential for abuse,” since an officer “[a]rmed solely

with an arrest warrant for a single person, . . . could

search all the homes of that individual’s friends and

acquaintances.” Id. at 215. An arrest could then serve

as a mere “pretext for entering a home in which the

police have a suspicion, but not probable cause to believe, that illegal activity is taking place.” Ibid. (emphases added). Concerned by the potential for such

abuses, this Court determined that “the right . . . of

presumptively innocent people to be secure in their

homes from unjustified, forcible intrusions by the

Government . . . is weighty” enough to require a warrant. Id. at 223.

Time and again, the Justices of this Court have

confirmed the crucial importance that courts should

3

ascribe to third parties’ rights in any Fourth Amendment analysis. See, e.g., Anderson v. Creighton, 483

U.S. 635 (1987) (holding that there is no “exception to

the general rule of qualified immunity for cases involving allegedly unlawful warrantless searches of innocent third parties’ homes in search of fugitives”); id.

at 664 (Stevens, J., dissenting) (criticizing the majority for not going far enough and “ascrib[ing] a far

lesser importance to the privacy interest of innocent

citizens than did the Framers of the Fourth Amendment”); Maryland v. King, 569 U.S. 435, 482 (2013)

(Scalia, J., dissenting) (warning against legal rules

that “manage[] to burden uniquely the sole group for

whom the Fourth Amendment’s protections ought to

be most jealously guarded: people who are innocent of

the State’s accusations”).

The Courts of Appeals have likewise recognized

the importance of protecting innocent, law-abiding

third parties’ rights under the Fourth Amendment. In

United States v. Vasquez-Algarin, a case in which officers secured an arrest warrant and mistakenly believed that the arrestee resided at a certain apartment, the Third Circuit held that “to satisfy the reasonable belief standard law enforcement required, but

lacked, probable cause.” 821 F.3d 467, 472 (3d Cir.

2016) (emphasis added). Citing “the relatively robust

Fourth Amendment protections guaranteed to thirdparty homes under Steagald,” the Third Circuit explained that a “laxer standard would effect an end-run

around the stringent baseline protection established

in Steagald and render all private homes—the most

sacred of Fourth Amendment spaces—susceptible to

search by dint of mere suspicion or uncorroborated information and without the benefit of any judicial determination,” “intrusions” which “are ‘the chief evil

against which the wording of the Fourth Amendment

4

is directed.’” Id. at 480 (quoting Payton v. New York,

445 U.S. 573, 585 (1980)). Similar decisions from the

Courts of Appeals abound.

As the precedents of this Court and the Courts of

Appeals demonstrate, in interpreting the Fourth

Amendment, courts consider the effect that their decisions will have on the constitutional rights that innocent, law-abiding third parties enjoy.

II. The Arkansas Supreme Court’s rule would inflict collateral constitutional damage by impairing the

Fourth Amendment rights of third parties.

The implications of the Arkansas Supreme

Court’s decision are stark. The question presented

has critical implications for not only millions of probationers in the United States but also the millions of

law-abiding citizens who may be family members or

loved ones and share homes or property with them.

The stakes are even higher for the latter group—innocent third parties who have not relinquished any of

their Fourth Amendment rights. To allow probable

cause-less searches of any residence in which a probationer is found, as the Supreme Court of Arkansas has

done, threatens the privacy of family, friends, and others who advance the government’s interest in reintegrating probationers into the community.

Many victims of such unreasonable intrusions

will lack a remedy. Law-abiding victims not accused

of any crime cannot, of course, invoke the exclusionary

rule. Forcing them to file damages suits would only

add litigation burdens to the Fourth Amendment violation—if such a suit could overcome qualified immunity and other obstacles at all. And even third parties who might be able to invoke the exclusionary rule

may not obtain effective redress. That, in turn, will

5

fray public trust in law enforcement, undercutting rehabilitation and harming public safety in the process.

Accordingly, the best way to secure the Fourth

Amendment rights of third parties is to prevent such

unreasonable searches at the outset.

III. The Arkansas Supreme Court’s rule would

set poor incentives for officers in the field who are considering conducting a search of a third party’s residence.

Under the rule adopted by the Arkansas Supreme

Court, officers could be tempted to conduct a warrantless search of a residence under the guise of a probationer’s possible stay without conducting adequate diligence. A reasonable-suspicion standard encourages

officers to erode the rights of innocent individuals who

associate with probationers. A lower standard also

encourages less diligence in investigations and pretextual searches, further eroding the rights of individuals for whom there is not an independent basis for a

search of their residence. As a result, the Arkansas

Supreme Court’s rule creates improper incentives, undermining the constitutional rights of the citizenry.

ARGUMENT

I.

The Supreme Court and the U.S. Courts of

Appeals Have Long Recognized the

Importance of Protecting the Fourth

Amendment Rights of Third Parties in

Their Homes.

This Court and the U.S. Courts of Appeals have

long recognized the strong Fourth Amendment interests of a third party when officers believe that the target of their investigation may be located at the third

party’s residence.

6

A. This Court emphatically proclaimed the importance of respecting the Fourth Amendment rights

of third parties in its landmark decision in Steagald v.

United States, 451 U.S. 204 (1981). There, a federal

agent received a tip from an informant that a fugitive

who was wanted on drug charges could be reached at

a certain telephone number for the next 24 hours. Id.

at 206. The agent contacted the local telephone company and “secured the address corresponding to the

telephone number obtained by the informant.” Ibid.

The agent and 11 other officers drove to the address,

drew their guns, frisked two men who were standing

outside the house, told a woman who answered the

door to put her hands against the wall, and searched

the house. Ibid. They never found the defendant, but

they did find drugs, and one of the men who was

standing outside was then “arrested and indicted on

federal drug charges.” Ibid.

The “narrow issue” before this Court was

“whether an arrest warrant—as opposed to a search

warrant—is adequate to protect the Fourth Amendment interests of persons not named in the warrant,

when their homes are searched without their consent

and in the absence of exigent circumstances.”

Steagald, 451 U.S. at 212 (emphasis added). This

Court answered no, id. at 222, and explained that the

officers “relied on the warrant as legal authority to enter the home of a third person based on their belief

that [the target of their investigation] might be a

guest there,” id. at 213 (emphasis added). “Regardless

of how reasonable this belief might have been, it was

never subjected to the detached scrutiny of a judicial

officer,” and “[t]hus, while the warrant in this case

may have protected [the target] from an unreasonable

seizure, it did absolutely nothing to protect [the third

party’s] privacy interest in being free from an

7

unreasonable invasion and search of his home.” Ibid.

(emphasis added).

This Court further explained that “[a] contrary

conclusion—that the police, acting alone and in the

absence of exigent circumstances, may decide when

there is sufficient justification for searching the home

of a third party for the subject of an arrest warrant—

would create a significant potential for abuse.”

Steagald, 451 U.S. at 215. “Armed solely with an arrest warrant for a single person, the police could

search all the homes of that individual’s friends and

acquaintances.” Ibid. That temptation could well

prove irresistible to officers engaged in ferreting out

crime, causing the arrest warrant to “serve as the pretext for entering a home in which the police have a

suspicion, but not probable cause to believe, that illegal activity is taking place.” Ibid. (emphases added).

“[A]lthough the subject of an arrest warrant could not

find sanctuary in the home of the third party, the

home remained a ‘castle or privilege’ for its residents.”

Id. at 219 (quoting Semayne’s Case (1604) 77 Eng.

Rep. 194, 198; 5 Co. Rep. 91 a, 91 b). “Whatever practical problems” law enforcement may face, this Court

explained, “the right protected—that of presumptively innocent people to be secure in their homes from

unjustified, forcible intrusions by the Government—is

weighty,” so “in order to render the instant search reasonable under the Fourth Amendment, a search warrant was required.” Id. at 223.

This Court has consistently reaffirmed that courts

must give due weight to the Fourth Amendment

rights of third parties. In Anderson v. Creighton, the

Court held that there is no “exception to the general

rule of qualified immunity for cases involving allegedly unlawful warrantless searches of innocent third

8

parties’ homes in search of fugitives.” 483 U.S. 635

(1987) (emphasis added). And the dissent in that case

criticized the majority for not going far enough and

“ascrib[ing] a far lesser importance to the privacy interest of innocent citizens than did the Framers of the

Fourth Amendment.” Id. at 664 (Stevens, J., dissenting). Similarly, in dissent in Maryland v. King, several Justices of this Court warned against crafting legal rules that “manage[] to burden uniquely the sole

group for whom the Fourth Amendment’s protections

ought to be most jealously guarded: people who are innocent of the State’s accusations.” 569 U.S. 435, 482

(2013) (Scalia, J., dissenting).

B. The Courts of Appeals have likewise recognized the importance of protecting the Fourth Amendment rights of innocent, law-abiding third parties. In

United States v. Thabit, the Eighth Circuit held that

“[a]n officer must have probable cause to believe a

dwelling is the residence of a parolee in order to initiate a warrantless search of a residence not known to

be the home of a parolee.” 56 F.4th 1145, 1151 (8th

Cir. 2023). The court based its holding “on three reasons,” the first of which was that “the potential for violations of the constitutional rights of third parties necessitates a more rigorous standard than reasonable

suspicion.” Ibid.

Similarly, in Motley v. Parks, the Ninth Circuit,

sitting en banc, held that “before conducting a warrantless search pursuant to a parolee’s parole condition, law enforcement officers must have probable

cause to believe that the parolee is a resident of the

house to be searched.” 432 F.3d 1072, 1080 (9th Cir.

2005) (en banc), overruled on other grounds by United

States v. King, 687 F.3d 1189 (9th Cir. 2012). The

court reasoned that “[r]equiring officers to have

9

probable cause to believe that a parolee resides at a

particular address prior to conducting a parole search

protects the interest of third parties.” Ibid.

In United States v. Vasquez-Algarin, the Third

Circuit addressed a situation in which officers had secured an arrest warrant and mistakenly believed that

the arrestee resided at a certain apartment. 821 F.3d

467, 472 (3d Cir. 2016). The Third Circuit held that

“to satisfy the reasonable belief standard law enforcement required, but lacked, probable cause.” Ibid. (emphasis added). The court observed that this was “a

case of mistaken belief that underscores the tension

between the residency test” that some Courts of Appeals have developed “and the relatively robust

Fourth Amendment protections guaranteed to thirdparty homes under Steagald.” Id. at 473. “Because

officers may force entry into a home as long as they

have a reasonable belief the suspect resides and is

present there, but must have nothing short of a search

warrant where the suspect is a guest in a third party’s

home, law enforcement’s assessment of a suspect’s

residency is, in effect, a determination of the level of

protection to which a dwelling is entitled.” Ibid. The

court’s “choice about how much and what kind of information must form the basis for that critical determination thus affects not only the homes of arrestees

but also any home that could be mistaken for one.”

Ibid. (emphasis added).

The court emphasized that the “vaunted place of

the home in our constitutional privacy jurisprudence

was central to the Supreme Court’s analysis in . . .

Steagald,” and that “anything less” than a “robust reasonableness standard akin to probable cause . . .would

defeat the ‘stringent . . . protection’ the home is due.”

Id. at 479 (quoting United States v. Martinez-Fuerte,

10

428 U.S. 543, 561 (1976)). “A laxer standard would

effect an end-run around the stringent baseline protection established in Steagald and render all private

homes—the most sacred of Fourth Amendment

spaces—susceptible to search by dint of mere suspicion or uncorroborated information and without the

benefit of any judicial determination,” “intrusions”

which “are ‘the chief evil against which the wording of

the Fourth Amendment is directed.’” Id. at 480 (quoting Payton v. New York, 445 U.S. 573, 585 (1980)).

Similarly, in United States v. Brinkley, officers entered what they thought was the residence of the target of an arrest to execute an arrest warrant. 980 F.3d

377, 380 (4th Cir. 2020). The Fourth Circuit concluded that “interpreting reasonable belief to require

probable cause [that the target of an arrest resides in

the house searched] hews most closely to Supreme

Court precedent and most faithfully implements the

special protections that the Fourth Amendment affords the home.” Id. at 386. In so holding, the Fourth

Circuit relied on this Court’s decision in Steagald,

which recognized that “an arrest warrant . . . does ‘absolutely nothing to protect [the third party’s] privacy

interest in being free from an unreasonable invasion

and search of [her] home.’” Id. at 384 (quoting

Steagald, 451 U.S. at 213).

The Tenth Circuit has likewise recognized the importance of guarding against intrusions on the Fourth

Amendment rights of third parties. In United States

v. Thompson, in which officers searched a third

party’s home after an arrest warrant was issued for

the arrestee, the Tenth Circuit explained that “[a]n

arrest warrant protects the privacy interests of the

person named in the warrant from an unreasonable

seizure; it does not, however, protect the privacy

11

interests of third parties.” 402 F. App’x 378, 379 (10th

Cir. 2010). “Thus, the privacy interests of third parties are violated when police officers invade their

homes to search for the subject of an arrest warrant.”

Id. at 385.

Similar decisions from the Circuits abound.

See, e.g., Lankford v. Gelston, 364 F.2d 197, 202 (4th

Cir. 1966) (“[I]t is only in the rare instance that a person not accused or even suspected of any crime petitions the court for redress of police invasion of his

home. . . . ‘If the officers raid a home, . . . but find

nothing incriminating, this invasion of the personal

liberty of the innocent too often finds no practical redress.’”) (quoting Brinegar v. United States, 338 U.S.

160, 181 (1949) (Jackson, J., dissenting)).

*

*

*

The precedents of this Court and the Courts of Appeals demonstrate that courts must consider whether

collateral constitutional damage will be inflicted on

third parties when deciding what the Fourth Amendment requires. Here, as in Steagald, these externalities are directly implicated, and this Court should

take them into account.

II. The Arkansas Supreme Court’s Rule Would

Inflict Collateral Constitutional Damage

by Impairing the Fourth Amendment

Rights of Innocent Third Parties.

Law-abiding citizens have every reason to be

proud of their Constitution and its guarantee of the

right to be secure against “unreasonable searches and

seizures.” U.S. Const. Amend. IV. This Court has protected that right from dilution and infringement,

making sure any exception to its protections is “carefully drawn” with its boundaries “jealously” guarded

12

from undue expansion. Jones v. United States, 357

U.S. 493, 499 (1958). This case calls on this Court

once more to protect millions of law-abiding citizens

who have not relinquished any of their Fourth

Amendment rights.

The decision below—doing away with any requirement that the government have probable cause

to believe a place is a probationer’s residence—would

expose countless law-abiding citizens to potential

warrantless searches based on nothing more than reasonable suspicion. The Fourth Amendment requires

more for this sort of intrusion into the home of the ordinary citizen.

A. Crucially, the Supreme Court of Arkansas’s rejection of the probable-cause requirement disregards

core Fourth Amendment rights of the ordinary citizen.

The decision below would allow the government to

conduct warrantless, probable cause-less searches of

the properties of law-abiding citizens based on a mere

suspicion of co-habitation with a possibly violating

probationer. The sheer number of innocent citizens

affected confirms the substantial likelihood of this

harm. Two weeks post release, 83% of post-release

probationers and parolees live somewhere other than

their own home (58% with friends and family); eight

months post release, 70% live somewhere other than

their own home (51% with friends and family); and 14

months post release, 63% live somewhere other than

their own home (42% with friends and family). Carrie

Pettus and Stephanie Kennedy, Housing Stability After Incarceration, Institute for Justice Research and

Development

(Apr.

2022),

https://tinyurl.com/veas4996.

Against that backdrop, if the probationary search

exception is not carefully drawn to cover only the

13

residence of probationers, then the exception easily

swallows the Fourth Amendment protections of lawabiding citizens who associate with probationers—increasing the odds that officers’ judgment calls about

where a probationer resides on any given day will

prove incorrect.

Recognizing these concerns, courts across the

country have emphasized the danger of the probationary search exception’s expansion to non-probationer

residences. See, e.g., Thabit, 56 F.4th at 1151 (“[T]he

potential for violations of the constitutional rights of

third parties necessitates a more rigorous standard

than reasonable suspicion.”); Motley, 432 F.3d at 1079

(“Nothing in the law justifies the entry into and search

of a third person’s house to search for the parolee.”);

United States v. Cervantes, 859 F.3d 1175, 1183 (9th

Cir. 2017) (“[T]he privacy interests of third parties

will often be invaded when officers search a building

other than a residence without first obtaining the consent of the occupants or a warrant.”); State v. Winterstein, 220 P.3d 1226, 1230 (Wash. 2009) (en banc)

(“Even though probationers have a lessened expectation of privacy, third parties not under the control of

the DOC do not. Anytime a question arises about the

actual residence of a probationer, therefore, third

party privacy interests must be considered.”).

And for good reason: This Court has long considered the societal repercussions of a search. Such concerns have motivated this Court to “jealously” guard

and “carefully draw” exceptions to Fourth Amendment protections. Jones, 357 U.S. at 499. For instance, the fact that it is not an arrestee’s home is

what makes a warrantless entry into a third party’s

home to serve an arrest warrant unreasonable and

unconstitutional. See Steagald, 451 U.S. at 213, 216

14

(disallowing entry into third party’s home to serve an

arrest warrant without first obtaining a search warrant unless the search is consensual or justified by exigent circumstances); Georgia v. Randolph, 547 U.S.

103, 109 (2006) (holding that when two co-occupants

are present and one consents to a search while the

other refuses, the search is unconstitutional). Similarly, what makes a search of a third party’s property

unreasonable under the auspices of probationer supervision is that it is not the probationer’s property

that is being searched.

The same constitutional concerns that compelled

this Court to protect the Fourth Amendment rights of

law-abiding citizens in Steagald are present here.

Like executing arrest warrants in an unfamiliar residence, invoking the conditions of a probationer’s release implicates the Fourth Amendment rights of innocent third parties. Therefore, like the Eighth and

Ninth Circuits, this Court should require officers to

have probable cause to believe a probationer resides

in, owns, or controls property before searching it pursuant to the probationer’s release conditions. Anything less would “effect an end-run around the stringent baseline protection established in Steagald and

render all private homes—the most sacred of Fourth

Amendment spaces—susceptible to search by dint of

mere suspicion or uncorroborated information and

without the benefit of any judicial determination.”

Vasquez-Algarin, 821 F.3d at 480.

B. The government also has a strong interest in

protecting the privacy of its law-abiding citizens from

intrusion based on simple association with a probationer. To allow probable cause-less searches of any

residence in which a probationer may be found threatens the privacy of family, friends, and others who

15

advance the government’s interest in “integrat[ing

probationers] back into the community.” United

States v. Knights, 534 U.S. 112, 120–121 (2001). Just

as a “cooperative occupant’s invitation adds nothing to

. . . counter the force of an objecting individual’s claim

to security against the government’s intrusion into his

dwelling place,” Randolph, 547 U.S. at 115, not allowing the diminished privacy rights of one individual to

undermine those of another serves that interest. After all, a government by the people and for the people

is a government with an interest in preserving lawabiding citizens’ constitutional rights—including the

“centuries-old principle of respect for the privacy of

the home,” Wilson v. Layne, 526 U.S. 603, 610

(1999)—and not swallowing those rights within exceptions meant for persons under special state supervision.

To achieve reintegration, probationers must be

able to associate with law-abiding citizens. By penalizing associations between law-abiding citizens and

probationers, the decision below hampers rather than

promotes that important governmental interest. According to the Arkansas Supreme Court, law-abiding

citizens who include and help rehabilitate probationers lose their Fourth Amendment protections as a

price of their generosity.

The effect is chilling. A family member or friend

who would otherwise welcome a probationer visiting

their home would have to reconsider, lest the home be

subject to warrantless, probable cause-less intrusions.

Using probationer search conditions to search the

property of law-abiding citizens based on mere suspicion of probationer residency will encourage distrust

and exclusion—not reintegration into productive society.

16

The government of course has an interest in supervising probationers. But that interest does not forgive any type of search or justify transgressing the

constitutional guarantees of the ordinary citizen. Although the probable-cause requirement will, sometimes, inconvenience probation officers, this Court has

recognized time and again that such inconveniences

cannot outweigh the weighty constitutional interest

at stake. See, e.g., Steagald, 451 U.S. at 222 (recognizing that “inconvenience incurred by the police is

simply not that significant” compared to the right “of

presumptively innocent people to be secure in their

homes from unjustified, forcible intrusions by the

Government”); United States v. United States Dist.

Court for Eastern Dist. of Mich., 407 U.S. 297, 321

(1972) (“Although some added burden will be imposed

upon the [government], this inconvenience is justified

in a free society to protect constitutional values.”);

Mincey v. Arizona, 437 U.S. 385, 393 (1978) (“[T]he

Fourth Amendment reflects the view of those who

wrote the Bill of Rights that the privacy of a person’s

home and property may not be totally sacrificed in the

name of maximum simplicity in enforcement of the

criminal law.”); Bailey v. United States, 568 U.S. 186,

199 (2013) (“[T]he mere fact that law enforcement

may be made more efficient can never by itself justify

disregard of the Fourth Amendment.”).

The balance of these considerations requires more

than reasonable suspicion that a place is a probationer’s residence to conduct a warrantless search of

the ordinary citizen’s home. The probable-cause requirement is the best compromise for safeguarding

the Fourth Amendment rights of innocent citizens

while furthering the government’s dual interests in

integrating probationers back into the community and

combating recidivism.

17

C. Any suggestion that the third-party substantive interest at stake can be accommodated by allowing a non-probationer to invoke the exclusionary rule,

if prosecuted, is belied by this Court’s precedents. To

begin, law-abiding third parties who are not accused

of any crime would have no occasion to invoke the exclusionary rule. Forcing those third parties to file

damages suits to obtain redress would not only impose

burdensome litigation costs but also be impracticable

given qualified immunity and other hurdles. And

even if an ordinary citizen were subjected to a criminal charge, being forced to litigate the issue of exclusion is, standing alone, an unwarranted burden on his

constitutional rights.

The exclusionary rule is a prudential doctrine

whose sole purpose is to deter future Fourth Amendment violations. Herring v. United States, 555 U.S.

135, 141 (2009). Exclusion is “not a personal constitutional right,” nor is it designed to “redress the injury”

caused by an unconstitutional search. Stone v. Powell, 428 U.S. 465, 486 (1976); accord United States v.

Janis, 428 U.S. 433, 454 n.29 (1976) (exclusionary

rule “unsupportable as reparation or compensatory

dispensation to the injured criminal”).

Notably, this Court has described the exclusionary rule as a “bitter pill” that must be applied “only as

a last resort.” Davis v. United States, 564 U.S. 229,

237 (2011) (citation and quotation marks omitted).

That’s because, since the Court made the exclusionary

rule applicable to the States over a half century ago

through the Fourteenth Amendment, Mapp v. Ohio,

367 U.S. 643, 657 (1961), myriad carveouts have

eroded the rule. See, e.g., Davis, 564 U.S. at 249–250;

Herring v. United States, 555 U.S. 135, 147–148

(2009); Hudson v. Michigan, 547 U.S. 586, 599–600

18

(2006); Murray v. United States, 487 U.S. 533, 541–

542 (1988); Illinois v. Krull, 480 U.S. 340, 349–350

(1987); United States v. Leon, 468 U.S. 897, 920–922

(1984). As a result, the exclusionary rule lends little

(if any) succor to the law-abiding citizen whose fullfledged Fourth Amendment rights are violated by a

warrantless, probable cause-less search conducted

based on the unsupported belief that the probationer

resides there—regardless of the litigating party.

In any event, at that point the collateral constitutional damage is already done. Even if the exclusionary rule applied, or even if no evidence of wrongdoing

is found in the law-abiding citizen’s home, the citizen

is harmed by the Fourth Amendment violation itself.

Writing for himself, with the endorsement of Justice

Oliver Wendell Holmes, nearly a century ago, Justice

Brandeis extolled what he viewed as a foundational

tenet of the Fourth Amendment: “To declare that in

the administration of the criminal law the end justifies the means—to declare that the government may

commit crimes in order to secure the conviction of a

private criminal—would bring terrible retribution.

Against that pernicious doctrine this court should resolutely set its face.” Olmstead v. United States, 277

U.S. 438, 485 (1928) (Brandeis, J., dissenting).

If, as the Arkansas Supreme Court concluded, it

is lawful to search a home based on anything less than

probable cause to believe a probationer resides at the

residence, then law-abiding citizens have no meaningful recourse for the intrusion on their Fourth Amendment rights. Against that pernicious result this Court

should resolutely set its face.

*

*

*

19

Before the Court is a case that will either uphold

or diminish the Fourth Amendment rights of millions

of law-abiding citizens. The Court should grant review and uphold those rights.

III. The Arkansas Supreme Court’s Rule Would

Set Poor Incentives for Officers in the

Field Who Are Considering Searching a

Third Party’s Residence.

The core value protected by the Fourth Amendment is “the right of a [person] to retreat into his own

home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365

U.S. 505, 511 (1961). The Arkansas Supreme Court’s

rule undermines this and incentivizes officers to make

more rash judgment calls than under a probablecause standard.

A. Under the Bailey ruling, officers could be

tempted to leverage a probationer’s possible stay at a

third party’s residence to conduct a warrantless

search of that residence, regardless of whether there

is knowledge that the probationer actually resides

there. The probable-cause standard acts as a check on

police authority by requiring a well-grounded belief

that a location is, indeed, the probationer’s residence

before searching it. Lowering this requirement to reasonable suspicion reduces the need for officers to

gather clear, corroborated evidence, creating less incentive for thorough investigation. This can result in

searches based on incomplete information or vague

associations, making it easier for officers to justify intrusive searches without substantial oversight.

Put another way, a reasonable-suspicion standard

encourages officers to transmute a probationer’s

waiver into a license to investigate third parties’

20

residences without a warrant. This erodes the Fourth

Amendment rights of innocent individuals simply because they are family members, associates, or acquaintances of the probationer. “The security of one’s

privacy against arbitrary intrusion by the police” is

“at the core of the Fourth Amendment,” and such a

right should not be lowered by those who simply associate (wittingly or not) with probationers. Wolf v. Colorado, 338 U.S. 25, 27 (1949).

B. This rule also encourages less diligence in investigations. Probable cause requires a thorough investigation and substantiated evidence. Reasonable

suspicion requires “obviously less” “proof of wrongdoing” than probable cause. Navarette v. California, 572

U.S. 393, 397 (2014); accord Alabama v. White, 496

U.S. 325, 330 (1990) (holding that “reasonable suspicion can arise from information that is less reliable

than that required to show probable cause”); United

States v. Arvizu, 534 U.S. 266, 274 (2002) (explaining

that “the concept of reasonable suspicion is somewhat

abstract”). Lowering the threshold to reasonable suspicion may lead officers to avoid careful vetting and

verification, incentivizing officers to cut corners in the

investigative process.

C.

The rule also encourages “pretextual”

searches. With the bar lowered to reasonable suspicion, officers may feel empowered to conduct searches

under the pretext of a probation-related investigation

to potentially uncover unrelated criminal activity.

See Steagald, 451 U.S. at 215 (warning against the

prospect that without a search warrant, officers could

rely on a “pretext for entering a home in which [they]

have a suspicion, but not probable cause to believe,

that illegal activity is taking place”). By framing a

search as targeting a probationer’s residence, officers

21

could use the relaxed standard to gain entry and

search areas without obtaining a warrant or demonstrating probable cause. This would be particularly

problematic in communities where probationers are

more common or in communities that are at risk of

selective enforcement and bias.

And any misconduct from this lax rule is not easily undone. While a third party may argue for exclusion of any evidence that is uncovered during that

search and later introduced in a criminal case against

that third party, as discussed above, exclusion is

never guaranteed, is “not a personal constitutional

right,” and is not designed to “redress the injury”

caused by an unconstitutional search. Stone, 428 U.S.

at 486. And officers can use the fact that evidence was

uncovered during a search to extract cooperation

agreements and widen the scope of an investigation—

all piggybacking on a violation of a fundamental constitutional right.

22

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Jacob T. Spencer

Counsel of Record

Gibson, Dunn & Crutcher LLP

1700 M Street, N.W.

Washington, D.C. 20036

(202) 955-8500

jspencer@gibsondunn.com

Bryston C. Gallegos

Gibson, Dunn & Crutcher LLP

2001 Ross Avenue, Suite 2100

Dallas, TX 75201

Anne M. Champion

Lefteri J. Christos

Neel M. Lakhanpal

Gibson, Dunn & Crutcher LLP

200 Park Avenue

New York, NY 10166

Andrew M. Kasabian

Gibson, Dunn & Crutcher LLP

3161 Michelson Drive, Suite

1200

Irvine, CA 92612

Counsel for Amicus Curiae

November 15, 2024