Amicus Curiae Brief — United States v. Knights

| No. 00-1260

In The

SUPREME COURT OF THE UNITED STATES

M ARK JAMES KNIGHTS,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

MOTION FOR LEAVE TO FILE BRIEF AND BRIEF

AMICUS CURIAE OF THE RUTHE «FORD INSTITUTE

IN SUPPORT OF RESPONDENT

James Joseph Lynch, Jr. John W. Whitehead

Counsel of Record Steven H. Aden .

2740 Howe Ave THE RUTHERFORD INSTITUTE

P. O. Box 336 P.O. Box 7482

Sacramento, CA 95812-0336 Charlottesville, VA 22906-7482

Tel.: (916) 448-7871 Tel.: (804) 978-3888

—_ 4, 2001 ~

Ad 9p

i-

QUESTION FOR REVIEW SUGGESTED

BY AMICUS CURIAE

Whether, inlight of Colonnade v. United States, 397 U.S.

72 (1970) and Griffin v. Wisconsin, 483 U.S. 868 (1987), a

condition of probation that a probationer submit to “a search any

time of the day or night by any peace officer with or without a

warrant,” in the absence of legislative approval, is repugnant to the

Fourth Amendment of the Constitution?

“it

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

The Rutherford Institute hereby moves this Honorable Court

for leave to file a brief amicus curiae m support of the Respondent

on the grounds that the brief is desirable in view of the significance

of the issues raised by the Petitioner and by the State of California

in support of a grant of certiorari, and to bring to the Court’s

attention important issues and legal facts not addressed by the

parties and to clarify for the Court pursuant to Supreme Court Rule

15.2 California law and policy, all of which will be helpful to this

court in resolving whether this case is appropriate for review at this

time.

The Solicitor General ofthe United States has consented to

the filing of this brief. Respondent’s counsel has not consented.

The interest of the proposed Amicus in this case is fully set

forth at page | of the Brief.

Respectfully submitted,

James Joseph Lynch, Jr

Counsel of Record

Attorney At Law SBN 85805

2740 Howe Ave

P. O. Box 336

Sacramento, Ca 95812-0336

Office: (916) 448-7871

John W. Whitehead

Dated: April 4, 2001

Steven H. Aden

THE RUTHERFORD INSTITUTE

P. O. Box 336

Charlottesville, VA 22906-7482

(804) 978-3888

Counsel for Amicus Curiae

THE RUTHERFORD INSTITUTE

«iv-

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ............... i

MOTION FOR LEAVE TO FILE ...............0505. 0

CR Ge GPRD ccc ccccccccccccccccoceccecs IV

TABLE OF AUTHORITIES ............00 0c ce ceeeees vi

BRIEF OF THE RUTHERFORD INSTITUTE AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT ............ l

STATEMENT OF AMICUS CURIAE INTEREST

SPEED cc ccccccccevescedsescescses l

SUMMARY OF ARGUMENT peeceveccdvedcnsasesods 2

ARGUMENT IN OPPOSITION TO CERTIORARI ...... 2

I. THE NINTH CIRCUIT’S DECISION IS IN ACCORD

WITH STARE DECISIS OF THIS COURT AND A

MAJORITY OF THE STATE COURTS THAT HAVE

A. There Must Be A Clear, Express, Statutory Authonzation

for a Fourth Amendment Waiver to Be Effective ...... 3

B. This Court Held In Griffin That A State Does Have an

Interest In Close Supervision of those Jn Custodia Legis 6

|

-v-

Imposition of a Statutory Waiver of the 4" Amendment 9

IID ctsccvicisssssowisnckcteesentcata te

Rr idéscncdsncssocstbexedinaeeanaaal Al

sisi ivesdsniséensdusedewivasauts BI

OP ated ixscvcdtseacidievdsdiuccdveinl Cl

-Vi- ' -vii-

TABLE OF AUTHORITIES | Mlinois v. Krull, 480 U.S. 340 (1986). ............20... 4

Cases | Mlinois v. McArthur, 121 S.Ct. 946 (2001).............. 1

Allen v. State, 369 S.E.2d 909 (Ga. 1988). .............. 7 Mlinois v. Wardlow, 528 U.S. 119 (2000). ........ 1

Arkansas Educational Television Comm'n. v. Forbes, 523 Indianapolis v. Edmond 12

hl lala 1 i. a en '

New York v. Burger, 482 U.S. ene

Colonnade Corp. v. United States, 397 U.S. 72 (1970). 3, 12 — ee etnies /

. Ohio v. Reiner, S.Ct. No. 00- curiam

Commonwealth v. La France, 525 N.E.2d 379 (Mass. 1988). maine asec ike

skdenebebanetdadeneddeeusseesdnodaseswaseensacese 7 Payton v. New York, 445 U.S. 573 (1980)............ 3,9

Dearth v. State, 390 So.2d 108 (Fla. App., 1980). ........ 7 | People v. Bravo, 43 Cal.3d 600 (1987). ............. 7,8

i

Ferguson v. City of Charleston, Sup.Ct. No. 99-936 (March People v. Hellenthal, 465 N.W.2d 329 (Mich. 1990) 7,8

SUED ccc ttecathe nbdiucsmbetaecdecapeainads a

People v. Peterson, 233 N.W. (Mich.

Florida v. J.L., 529 U.S. 266 (2000). ..........2--.005: 1 lentes orn ners ,

People v. Way, 319 N.Y:S.

Florida v. Wells, 495 U.S. 1 (1990). ..........02220005- 9. —_— nna ar Senne nee ’

See v. Seattle, 387 U.S. 541 (1967)...............

Frazee v. Dept. of Employment Sec., 489 U.S. 829 (1989) nen oncmmnnersesestse) .

< cchwbuasddanaendebesbeesddesssscestenueteeeisss l Silverthorne Lumber Co. v. United States, 251 U.S. 385

BARRE ERPS aS

Good News Club v. Milford Central School, No. 99-2036 si Mahe hit eeepc .

(October Term 2000) .. 2.6... cece cece cece e cece ees l Slack v. McDaniel, 529 U.S. 472 (2000). ............... 1

G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977). 4 State v. Cullison, 173 N.W.2d 533 (lowa 1970). ........ 7

Griffin v. Wisconsin, 483 U.S. 868 (1987). ........ passim State v. Cumming, 262 N.W.2d 56 (S.D. 1978). ......... 7

-viii-

State v. Davis, 597 P.2d 1280 (Ore. 1979). ..........45. 8

State v. Fields, 686 P.2d 1379 (Hawaii 1984). .......... 7

State v. Finnegan, 439 N.W.2d 496 (Neb. 1989). ........ 8

State v. Fogarty, 610 P.2d 140 (Mont. 1980). ........... 7

State v. Gallagher, 675 P.2d 429 (NM. 1984). .......... 7

State v. Gardner, 619 P.2d 847 (N.M. 1980). ........... 7

State v. Holm, 579 P.2d 860 (Ore. 1978). ..........045. 7

State v. Hovater, $88 P.2d 56 (1978). .......... si eecenailale x

State v. McGivney, 585 P.2d 767 (Ore 1978). ........... 7

State v. Perbix, 331 N.W.2d 14 (ND. 1983)............. 7

Temez v. State, 534 S.W.2d 686 (TX. 1976). ............ 7

United States v. Biswell, 482 U.S. 691 (1972) ........... 3

Wilson v. State, 752 S.W.2d 46 (Ark. 1988). ........... 7

Wyoming v. Houghton, 526 U.S. 295 (1999). ........... l

Constitutions

UNITED STATES CONST. AMEND. IV .............. passim

LY eS ae

en ee eee

: ~ix-

Codes

26 USC §§ 5301(c), 5146, and 7606 .................. 3

Ark. Code Ann. § 5-4-303 2.0.2.0... 00. eee 7

SEIU 6 hod cacoseuseescéeeedscdous 4

Se OP I vn ecnccdecccdeccecsccccecce 10

icccudoiensddeetebbackee cos 10

I i a ig i cos 10

ED ood s ceccc cb ubccandisetere) 10

Cal. Pen. Code § 1203.016 ..................005. 10, 12

Cal. Pen. Code § 1203.1 ....... 0... cece cecucueee 10, 12

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Off. Code Ga. Ann. § 45-8-35 20.0000, 7

EE GaN ducuccddbbecddsesviecdccedes 7

Miscellaneous

3 Rotunda, CONSTITUTIONAL TREATISE, § 20.9, p.34........ 9

-X-

Annotation, Validity of Requirement that, As Condition of

Probation, Defendant Submit to Warrantless Searches, 79

ALR34 1063 . 0... cc cecceees

Annotation, Validity, Under Fourth Amendment, of

Warrantless Search of Parolee or his property by Parole

Officer, 32 ALRFed 155 .......

MODEL PENAL CODE §§ 301.1(2)j)

MODEL PENAL CODE §§ 301.1(2)(1)

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TO THE HONORABLE CHIEF JUSTICE AND

ASSOCIATE JUSTICES OF THESUPREMECOURT OF THE

UNITED STATES:

STATEMENT OF AMICUS CURIAE

INTEREST AND INTRODUCTION '

The Rutherford Institute is an international, non-profit civil

liberties organization headquartered in Charlottesville, Virginia. The

Institute, founded in 1982 by its President, John W. Whitehead,

educates and litigates on behalf of constitutional and civil liberties.

Attomeys affiliated with the Institute fiave filed petitions for writ of

certiorari m the United States Supreme Court in more than two

dozen cases, and certiorari has been accepted in several significant

constitutional cases. See Frazee v. Dept. of Employment Sec.,

489 U.S. 829 (1989); Arkansas Educational Television

Comm'n. v. Forbes, 523 U.S. 666 (1998); and Good News Club

v. Milford Central School, No. 99-2036 (October Term 2000).

Institute attorneys have filed numerous amicus curiae briefs in the

United States Supreme Court in cases involving the rights of the

accused.” Institute attorneys currently handle several hundred cases

nationally, including numerous Fourth Amendment cases. The

1 Amicus curiae The Rutherford Institute files this brief upon

leave of the Court. Counsel for The Rutherford Institute authored

this brief in its entirety. No person or entity, other than the Institute,

its supporters, or its counsel, made a monetary contribution to the

preparation or submission of this brief.

2 See, e.g., Wyoming v. Houghton, 526 U.S. 295 (1999),

Slack v. McDaniel, 529 U.S. 472 (2000), Illinois v. Wardlow, 528

U.S. 119 (2000); Florida v. J.L., 529 U.S. 266 (2000); Indianapolis

v. Edmond, 121 S.Ct. 447 (2000); Ferguson v. City of Charleston,

Sup.Ct. No. 99-936 (March 21, 2001), and Jilinois v. McArthur, 121

S.Ct. 946 (2001).

2

legal education classes in this area as well.

The issue presented by this Petition, the degree to which a

probationer can be searched “any time of the day or night by any

peace officer,” is a question of great concern, insofar as it touches

upon how society deals with offenders and assures itself that the

offender does in fact comply with conditions of probation while on

a discretionary grant of probation. Because of the depth and

breadth of its knowledge on this subject, the Rutherford Institute

believes that its insights on this issue will be helpful to understand

‘more accurately the legal environment in California with respect to

that issue. Sup. Ct. Rule 15.2.

SUMMARY OF ARGUMENT

This court has consistently held that for a search to be valid,

it must either comply withthe Fourth Amendment or be legislatively,

and expressly, authorized. Of the several states, District of

Columbia and the territories of the United States, only three states,

including California, permit search of a probationer any time of the

day or night by any peace officer. Of a large number of state

supreme courts that have considered the issue, all but three have

rejected such a scheme as unconstitutional. The Ninth Circuit Court

of Appeals’ decision is therefore consistent with stare decisis from

this Court and an overwhelming majority of state supreme courts.

As California has not legislatively authorized search and seizure any

time of the day or night by clear and unequivocal language, the court

should decline review, or, in the alternative, grant certiorari, and

summarily dispose of the case per curiam based on stare decisis.

ARGUMENT IN OPPOSITION TO CERTIORARI

—

SP ORR art te OU Ee

‘oo

I. TH" NINTH CIRCUIT’S DECISION IS IN ACCORD

W! ‘1 STARE DECISIS OF THIS COURT AND A

MAJCRITY OF THE STATE COURTS THAT HAVE

CONSIDERED THE ISSUE

A. There Must Be A Clear, Express, Statutory Authorization

For A Fourth Amendment Waiver To Be Effective

While statutory authorization of warrantless searches is not

the sine qua non of a valid search, in the absence of an express

statutory authorization, traditional Fourth Amendment rules must

apply. Colonnade Corp. v. United States, 397 U.S. 72 (1970).

In Colonnade, a case arising under 26 USC §§ 5301(c), 5146,

and 7606 for possible violations of the Internal Revenue Code, the

agents sought evidence of violations and demanded entry to inspect

pursuant to a statutory authorization, which provided for sanctions

on refusal to permit entry but did not expressly provide for a

warrantless entry to search. The Court noted that “Congress has

broad power to design such powers of inspection under the liquor

laws as it deems necessary to meet the evils at hand.” Colonnade,

397 U.S. at 76. It went on, however, to note “that administrative

entry, without consent, upon the portions of the commercial

premises not open to the public may only be compelled through

prosecution or physical force within the framework of a warrant

procedure....” Jd. at 76-77. The Court concluded, “Where

Congress has authorized inspection but made no rules governing the

procedure that inspectors must follow, the Fourth Amendment and

its various restrictive rules apply.” Jd. at 77; cf. United States v.

Biswell, 482 U.S. 691 (1972) (express Congressional

authorization; regulated industry). In Payton v. New York, 445

U.S. 573 (1980), the Court struck down a state statute that

ic

4

permitted warrantless searches absent probable cause. See also

G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977)

(warrantless entry and seizure of assets on company property

unlawful); See v. Seattle, 387 U.S. 541 (1967) (warrantless

administrative inspection m commercial building unlawful);

Silverthorne Lumber Co. v. United States,251 U.S. 385 (1920);

and cf. Illinois v. Krull, 480 U.S. 340, 349-355 (1986) (statutory

scheme for inspection of junk dealers held unconstitutional under

state law) with New York v. Burger 482 U.S. 691, 699-703

(1987) (statutory inspection scheme of junk dealers upheld).

Consequently, where no express legislative authorization exists that

is reasonably related to the purposes of a probation program,

traditional Fourth Amendment procedures must apply to avoid

delegating unfettered discretion to peace officers.

All states make some provision for probation. Not all states

are consistent with what conditions should be required, and some

have not made any statutory provisions at all for conditions.’

3 That there should be legislation, and uniformity in the

legislation, is obvious in light of the states’ various enactments of the

Uniform Act for Out-Of-State Parolee Supervision. See United

States Code and state statutory provisions cited in Appendix A. The

Act does not provide for any particular conditions of probation,

except as follows: “(2) That each receiving state will assume duties

of visitation and of supervision over probationers or parolees of any

sending state and im the exercise of those duties will be governed by

the same standards that prevail for its own probationers and

parolees.” Cal. P.C., § 11177. This provides for discriminatory

treatment. For example, a probationer from Illinois on supervision in

California is subject to searches “any time of the day or night by any

probation officer or peace officer” whereas a probationer from

Califomia on supervision in Illinois is subject to “visits by the

5

Insofar as Fourth Amendment search issues are concemed, the

most common condition found is consistent with the Model Penal

Code § 301.1(2)(j) “to report as directed to the Court or the

probation officer and to permit the officer to visit his home; ...."See

Appendix B, § 1. Many states adopting the (j) provision add “and

elsewhere.” See Appendix B, § 2. A few states provide, in one

form or another for the MPC § 301.1(2)1) “to satisfy any other

conditions reasonably related to the rehabilitation of the defendant

and not unduly restrictive of his liberty or incompatible with his

freedom of conscience.” Appendix B, § 3. Only two states,

Ilimois and North Carolina, have a detailed procedure for

warrantless searches by a probation officer. Appendix B, § 4.

probation officer at the probationer’s home or place of work at

reasonable times.” Twenty-seven jurisdictions have express statutory

provisions for either visits, searches, or both, limited to the probation

officer; one permits the probation officer to use peace officers; none

permit a peace officer to conduct searches. Twenty-seven

jurisdictions have no express statutory provision for visits or searches

by anyone; of these, one, New Mexico, by administrative regulation,

prohibits a probation officer from conducting searches, requiring the

officer to pursue normal search procedures, but by case law allows

a probation officer to conduct searches. Courts in sixteen of the fifty-

four jurisdictions surveyed have considered the issue. Two, Arkansas

and Georgia, give greater latitude than expressly permitted by statute.

In the Arkansas case, on state grounds, the scope of the statute

limiting searches to probation offers was not discussed; the

discussion centered only on federal grounds and the 4th Amendment,

pursuant to Griffin. Eight found that the conditions imposed were

rationally related to a legitimate purpose of rehabilitating the

probationer. Only five were faced with a state statute which had no

express provisions for visits or searches and of those five, only

California permits “blanket searches.” See following discussion and

Appendices A and B.

a

6

Many states expressly provide for drug testing. Appendix B, § 5.

No state, by statute, expressly permits a warrantless search by

peace officers. See generally Appendix B.

A requirement that the several states by legislation authorize

in the first instance the waiver of Fourth Amendment nights, with

necessary safeguards, is essential in view of the importance of this

issue, in order to give clear notice to those who must administer the

program and those who must abide by the terms, provide clear

guidance to probationers on their duties and responsibilities, provide

for uniform treatment of probationers who are subject to relocation

and transfer, and to assure that appropriate consideration is given

to third parties and potential bystanders whose rights should not be

impaired by unreasonable conditions of probation and parole.

B. This Court Held in Griffin that a State Does Have an

Interest in Close Supervision of Those Jn Custodia Legis

Regardless of the applicable standard, a probationer’s, or

parolee's home, like everyone else’s, is protected by the Fourth

Amendment’s requirement that searches be “reasonable.” Griffin

v. Wisconsin, 483 U.S. 868, 873 (1987) (probationer).‘

Supervision is a special need of the state permitting a degree of

impingement upon privacy that would not be constitutional if applied

to the public at large, but the permissible degree is not unlimited.

483 US. at 875. The “special needs” ofa probation system make

the warrant system impracticable and justify the replacement of the

4 The court did not reach the question as to when a police

officer could search In Griffin, the police officer reported he

thought that the probationer had a gun, but it was the probation

officer, not the police, who conducted the search.

“= o—-——- ee ee wee

+

standard of probable cause by “reasonable ground.” 483 U.S. at

875-76.

In most jurisdictions, the result reached in Griffin v.

Wisconsin had been a foregone conclusion, with other courts

having moved in the direction of requiring at a minumum that a peace

officer at least have consulted with a probation officer.’

s E.g., State v. Cullison, 173 N.W.2d 533 (lowa 1970)

(parolee; unreasonable search); People v. Way, 319 N.Y.S.2d 16

(New York 1971\parolee; limited scope); People v. Peterson, 233

N.W.2d 250, 254-55 (Mich. 1975) (blanket searches by peace

officers unlawful); Temez v. State, 534 S.W.2d 686 (Tex. 1976);

State v. McGivney, 585 P.2d 767 (Ore 1978); State v. Holm, 579

P.2d 860 (Ore. 1978) (probation Officer; “any peace officer” too

broad); Dearth v. State, 390 So.2d 108 (Fla. App., 1980) (conditions

of probation; fact that probationer agreed to ‘‘unfettered discretion’’

does not make void condition voluntary); State v. Fogarty, 610 P.2d

140 (Mont. 1980) (probation; search condition unconstitutional); State

v. Fields, 686 P.2d 1379, 1389 (Haw. 1984)\probation; probable

cause required); Commonwealth v. La France, 525 N.E.2d 379

(Mass. 1988) (search by probation officer); People v. Hellenthal,

465 N.W.2d 329 (Mich. 1990); State v. Gallagher, 675 P.2d 429

(NM. 1984); State v. Cumming, 262 N.W.2d 56 (S.D. 1978)

(probation officer consent required); State v. Gardner, 619 P.2d 847

(N.M. 1980) (state statute silent; administrative code required

probation officer to seek search warrant, but actual condition

imposed provided that probation officer could conduct search; search

led by probation officer valid); State v. Perbix, 331 N.W.2d 14 (ND.

1983) (search consistent with statutes permitting probation officer to

search) [see now N.D.C.C. 15A-1343 adopting MPC (j)]. But see

People v. Bravo, 43 Cal.3d 600 (1987); Wilson v. State, 752 S.W.2d

46 (Ark. 1988) [see now A.C.A. § 5-4-303 adopting MPC (j)};

Allen v. State, 369 S.E.2d 909 (Ga. 1988) [see now O.C.G.A. § 45-

eee ee a...

It would appear that California is the first state ever to

expressly authorize “blanket searches” of probationers without a

warrant by any peace officer. People v. Bravo, 43 Cal.3d 600

(1987). Bravo, however, was decided only several days after

Griffin, and cites Griffin only once. 43 Cal.3d at 608. Bravo

conflicts with Griffin in that California has no state detailed

regulation of probation, unlike Wisconsin, which authonzed a

departure from Fourth Amendment warrants. In Griffin, there was

an objective standard, approved by the Court, which had to be met

over and above being a mere parolee, and there were detailed

regulations covenng the subject.

The Oregon experience is illuminating. The Supreme Court

noted that while the courts had the power to impose conditions of

probation, and that while a “search and seizure” condition may be

appropriate, there was no express legislative authority, such

conditions could not be unlimited, that the courts were not the

means of defining that imi in the first instance, but did so

reluctantly. Evidently the Oregon legislature took the hint because

it appears to have enacted legislation permitting a “search and

seizure” condition “by the probation officer, or any peace officer

assisting the probation officer.” See State v. Hovater, 588 P.2d

56 (1978); State v. Davis, 597 P.2d 1280 (1979).

8-35 adopting MPC (j)}; State v. Finnegan, 439 N.W.2d 496 (Neb.

1989) (search “by any peace officer” limited to part of drug

rehabilitation program only); People v. Heilenthal, 465 N.W.2d 329

(Mich. 1990) (drug search as part of drug rehabilitation program

approved). See generally, Annotation, Validity of Requirement

that, As Condition of Probation, Defendant Submit to

Warrantless Searches, 79 AL.R. 3d 1083; Annotation, Validity,

Under Fourth Amendment, of Warrantless Search of Parolee or

His Property by Parole Officer, 32 A.L.R. Fed 155.

The great weight of authority thus holds that neither a parolee

nor a probationer may be abused during authorized searches.

Given the purpose of probation and parole, the fact that the

probation and parole officers know their own charges better than

anyone else, and certainly more than a magistrate knows about

unknown citizens when issuing a search warrant, the Fourth

Amendment requires at a minimum that peace officers contact the

parole or probation officer for permission to conduct a searchofthe

parolee or probationer, and no search unless so authorized is valid,

absent exigent circumstances, because the administration of

conditions of parole and probation are a non-delegable duty

necessary to rehabilitate the offender, yet prevent the exploitation

of such persons and the abuse of those not on probation. This

result is consistent with, and required by, this Court’ enunciated

tule of law which forbids the granting of “unfettered discretion” to

peace officers in the area of law enforcement. E.g., Florida v.

Wells, 95 U.S. 1 (1990) inventory of containers where no state

policy authorizes inventory); Payton v. New York, 45 U.S. 573

(1980); Rotunda, CONSTITUTIONAL TREATISE, §§ 20.9, p. 34. It

is for the courts to supervise probationers, through the probation

office, and not for peace officers, and such a delegation is simply

mot permitted.

C. Califomia Has No Detailed Rules amd Regulations for the

Imposition of a Statutory Waiver of The Fourth Amendment

California’s legislature has not chearly and unequivocally

authorized a condition of probation searches “by any peace officer

at any time ofthe day or night with or without a warrant.” P.C., §§

10

1192.3°, 1202.7’, 1202.8°, 1203°, 1203.016", 1203.1",

a (a) A plea of guilty or nolo contendere to an accusatory

pleading charging a public offense, other than a felony specified in

Section 1192.5 or 1192.7, which public offense did not result m

damage for which restitution may be ordered, made on the condition

that charges be dismissed for one or more public offenses arising

from the same or related course of conduct by the defendant which

did result in damage for which restitution may be ordered, may

specify the payment of restitution by the defendant as a condition of

the plea or any probation granted pursuant thereto, so long as the plea

is freely and voluntarily made, there is factual basis for the plea, and

the plea and all conditions are approved by the court ....

? The Legislature finds and declares that the provision of

probation services is an essential element in the administration of

criminal justice. The safety of the public, which shall be a primary

goal through the enforcement of court-ordered conditions of

probation; the nature of the offense; the interests of justice, including

punishment, reintegration of the offender into the community, and

enforcement of conditions of probation; the loss to the victim; and the

needs of the defendant shall be the primary considerations m the

granting of probation.

8 1202.8. (a) Persons placed on probation by a court shall be

under the supervision of the county probation officer who shall

determine both the level and type of supervision consistent with the

court-ordered conditions of probation. (b) Within 30 days of a court

making an order to provide restitution to a victim or to the Restitution

Fund, the probation officer shall establish an account into which any

shall be deposited.

9 1203. (a) As used in this code, “probation” means the

suspension of the imposition or execution of a sentence and the order

1210.1'*, 1203.4 (emphases supplied).

There is no basis for the Attorney General’s reliance on

of conditional and revocable release nm the community under the

supervision of a probation officer. As used im this code, “conditional

sentence" means the suspension of the imposition or execution of a

sentence and the order of revocable release m the community subject

to gonditions established by the court without the supervision of a

probation officer. It is the intent of the Legislature that both

probation is authorized m any code as a sentencing option for

infractions or misdemeanors.

10 See Appendix at C7. Note that this section, involving home

detention, permits inspection of hte home. Subdivision (b)\(2).

il See Appendix at C1.

12 1210.1. Possession of Controlled Substances; Probation;

exceptions. (a) Notwithstanding any other provision of law, and

except as provided m subdivision (b), any person convicted of a

nonviolent drug possession offense shall receive probation. As a

condition of probation the court shall require participation in and

completion of an appropriate drug treatment program. The court may

also impose, as a condition of probation, participation in vocational

training, family counseling, literacy training and/or community

service. A court may not impose incarceration as an additional

condition of probation. Aside from the limitations imposed in this

subdivision, the trial court is not otherwise limited in the type

of probation conditions it may impose.

It is interesting that even im drug cases, the legislature has

failed to provide explicitly for a statutory waiver of the 4*

amendment.

12

section 1203.1. It is a general grant of authority to administer

probation. Unlike 1203.016 and 1203.10, it contains no hint of

allowing inspections, let alone searches. Thus, the California courts,

in the complete absence of legislative authority, have created a

Fourth Amendment waiver, without any apparent safeguards as set

forth by this Court in Griffin, supra. This court’s decision in

Colonnade, supra, is directly on point: absent legislative approval

in the first instance, the regulation is void for lack of authority.

Moreover, as discussed above, an overwhelming number of state

supreme courts agree that such a provision is unlawful.

CONCLUSION

WHEREFORE, for the reasons set forth above, the Court’s

for Writ of Certiorari, or grant and summarily affirm the decision of

the Ninth Ciruit Court of Appeals per curiam. E.g., Ohio v.

Reiner, S.Ct. No. 00-1028 (3/19/01) (per curiam).

Respectfully submitted,

James Joseph Lynch, Jr

Counsel of Record

Attorney At Law SBN 85805

2740 Howe Ave

P. O. Box 336

Sacramento, Ca 95812-0336

Office: (916) 448-7871

John W. Whitehead

Steven H. Aden

THE RUTHERFORD INSTITUTE

Dated: April 4, 2001

13

P. O. Box 336

Charlottesville, VA 22906-7482

(804) 978-3888

Counsel for Amicus Curiae

THE RUTHERFORD INSTITUTE

Al

APPENDIX A

4 U.S.C. § 112 (2001)

Ala. Code 1975 § 15-22-1

Alaska Stat. §§ 33.36.110, 33.36.120

Ariz. R.S. §§ 31-461 to 31-465

Ark. C.A. §§ 16-93-901 to 16-93-903

Cal. Pen. C. §§ 11175 to 11179

Colo. R.S.A. §§ 24-60-301 to 24-60-309

Conn. G.S.A. §§ 54-132 to 54-138

Del. Code 11 §§ 4358, 4359

D.C. Code 1981, §§ 24-251 to 24-253

Fla. S.A. §§ 949.07 to 949.07

Ga. Official Code §§ 49-2-70, 49-2-71

Hawaii R.S. §§ 353-81, 353-82

Idaho Code §§ 20-301, 20-302

Ill. S.H.A. 730 ILCS 5/3-3-11

A2 A3

Ind. A.C. §§ 11-13-4-1, 11-13-4-2 N.JS.A. §§ 2A:168-14 to 2A:168-17

lowa C.A. § 907A.1 N.M.S.A. 1978 §§ 31-5-1 to 31-5-2

Kan. S.A. § 22-4101, et seq. | N.Y. Executive Law § 259-m

Ky. RS § 439.560 N.C.GS. §§ 148-65.1 to 148-65.2

La. SA-RS. § 15:574.14 N.D.C.C. §§ 12-56-01, 12-56-02

Me. 34-A.R.S.A.$§ 9801, et seq. Ohio R.C. §§ 5149.17 to 5149.23

Md. Code 1957, art. 41, §§ 4-801 to 4-803 57 Okl. St. Ann. §§ 347 to 349

Mass. G.L.A. c. 127, §§ 151A to 151G Ore. RS §§ 144.610 to 144.620

Mich. C.L.A. §§ 798.101 to 798.103 Penn. Stat. 61 §§ 321, 322;

Minn. S.A. § 243.16 Puerto Rico 4 L.P.R.A. §§ 637 to 639

Miss. Code 1972 § 47-7-71 R.I Gen. Laws 1956, §§ 13-9-1 to 13-9-2

Mo. V.A.MSS. § 217.810 | S.C. Code 1976, §§ 24-21-810 to 24-21-830

Mont. C.A. §§ 46-23-1101 to 46-23-1106 | S.D.C.L. §§ 24-16-1 to 24-16-5

Neb. R.R.S. 1943, §§ 29-2637 to 29-2638 Tenn. C.A. § 40-28-401

Nev. R.S. §§ 213.180 to 213.210 Tex. Ann. C.CP. art. § 42.11

N.H. RSA § 651-A:25 Utah C.A. 1953, §§ 77-27-24 to 77-27-31

A4

Vt. Stat. Ann. 28 § 1301

Virgin Islands Code 5 §§ 4631 to 4633

Va. Code 1950, §§ 53.1-166, 53.1-167

Wash. Rev. Code § 9.95.270

W.Va. Code, 28-6-1, 28-6-2

Wis. S.A. 304.13

Wyo. S.1977, §§ 7-13-412 to 7-13-417.

— ——

Bl

APPENDIX B

Section 1: Jurisdictions incorporating Model Penal Code

§ 301.1(2)(j), requiring probationers “to report as directed to the

Court or the probation officer and to permit the officer to visit his

home; ....”:

Ark Code Ann. § 5-4-303

Ga. O.C.G.A. § 45-8-35

Ind. A.1.C. 35-38-2-2.3

Kan. S.A. 21-4610

Ky. RS 533.030

La R.S. 15:574.4

Me. R.S.A. § 1204

Neb. R.R.S. 1993, § 29-2262

N.J.S.A. 2C:45-1

N.Y Penal Law § 65.10

Pa. Stat. 4 § 9754

B2

Section 2: Jurisdictions incorporating Model Penal Code

§ 301.1(2)j) and adding “‘and elsewhere:”

18 USC, § 3563

Colo. R.S.A. § 16-11-204(i)

Fla. S.A. § 948.03

Hawaii RS § 706-624

Ill. CS 5/3-6-3 S.H.A. 730

Miss. Code 1972, § 47-7-35

N.D.C.C. § 12.1-32-07 [limited to reasonable times]

Ore. RS § 137.540

Vt. Stat. 28 § 252 [limited to reasonable times]

Section 3: Junsdictions incorporating Model Penal Code

§ 301.1(2)(1), requiring probationers “‘to satisfy any other conditions

reasonably related to the rehabilitation of the defendant and not

unduly restrictive of his liberty or incompatible with his freedom of

conscience:”

18 USC, § 3563

Ark Code Ann. § 5-4-303

Hawaii RS § 706-624

Ill. CS 5/3-6-3 S.H.A. 730

N.J.S.A. 2C:45-1

Pa. Stat. 4 § 9754

Section 4: Jurisdictions with detailed procedures for

warrantless searches by a probation officer:

Ill. CS 5/3-6-3 S.H.A. 730

N.C.G.S. § 15A-1343

Section 5: Jurisdictions which expressly provide for drug

testing:

18 USC, § 3563

Ariz. R.S. §13-914

Fla. S.A. § 948.03

Hawaii RS § 706-624

Ill. CS 5/3-6-3 S.H.A. 730

Ind. A.L.C. 35-38-2-2.3

Me. R.S.A. § 1204

Miss. Code 1972, § 47-7-35

BA BS

Neb. R.R.S. 1993, § 29-2262 | Md. Code 1957, art. 27, § 641, 641A

Nev. .R.S. 176.185 to 176.227 | Mass. G.L.A. c. 276, § 387, 387A

N.D.C.C. § 12.1-32-07

Mich. C.L.A. § 771.3

Ore. RS § 137.540 Minn. S.A. § 609.135

Puerto Rico Law 34 § 1027a Mo. V.A.M.S. § 217.705

Tex. Ann. C.Cr.P. art. 42.12, § 11 Mont. CA §§ 46-1-202, 46-18-201, 46-23-1001

Section 6: Junsdictions silent on the issues of consent to N.H. RSA 651:2

search:

7 N.M.S.A. 1978, § 31-21-21

Ala. Code 1975, § 15-22-29

Ohio R.C. § 2951.02

Alaska Stat. § 12.55.100

Okl. St.Ann. 22 § 991a

Ariz. R.S. §§ 12-299, et seq.

RI. Gen. Laws 1956, §§ 12-19-8, 21-28-4.21

Cal. Pen. C. §§ 11175 to 11179

S.C. Code 1976 § 24-21-430

Conn. G.S.A. § 53a-30

S.D.C.L. § 23A-27-18

Del. Code 11 § 4332

Tenn.C.A. § 40-35-303

D.C. Code 1981, §§ 24-101 to 24-106

Utah. Code 1953 § 77-18-1

Idaho C. §§ 19-2601 to 19-2607 |

Virgin Islands Code 5 § 3711

lowa C.A. § 907.6

eS

Va. Code 1950, § 19.2-303

Wash. Rev. Code § 9-95-210

W.Va. Code § 62-12-9

Wis. S.A. § 973.09

Wyo. Stat.1977 § 7-13-30

Cl

APPENDIX C

1203.1. (a) The court, or judge thereof, m the order granting

probation, may suspend the imposing or the execution of the

sentence and may direct that the suspension may continue for a

period of time not exceeding the maximum possible term of the

sentence, except as hereinafter set forth, and upon those terms and

conditions as it shall determine. The court, or judge thereof, in the

order granting probation and as a condition thereof, may imprison

the defendant in a county jail for a period not exceeding the

maximum time fixed by law in the case. However, where the

maximum possible term of the sentence ss five years or less, then the

period of suspension of imposition or execution of sentence may, in

the discretion of the court, continue for not over five years. The

following shall apply to this subdivision:

(1) The court may fine the defendant in a sum not to

exceed the maximum fine provided by law in the case.

(2) The court may, in connection with granting probation,

impose either imprisonment in a county jail or a fine, both,

or neither.

(3) The court shall provide for restitution in proper cases.

The restitution order shall be fully enforceable as a civil

judgment forthwith and in accordance with Section 1202.4

of the Penal Code.

(4) The court may require bonds for the faithful observance

and performance of any or all of the conditions of

probation.

C2

(b) The court shall consider whether the defendant as a condition

of probation shall make restitution to the victim or the Restitution

Fund. Any restitution payment received by a probation department

m the form of cash or money order shall be forwarded to the victim

within 30 d ys from the date the payment is received by the

department. Any restitution payment received by a probation

department im the form ofa check or draft shall be forwarded to the

victim within 45 days from the date the payment is received by the

department, provided, that payment need not be forwarded to a

victim until 180 days from the date the first payment is received, if

the restitution paytnents for that victim received by the probation

department total less than fifty dollars ($50). In cases where the

court has ordered the defendant to pay restitutionto multiple victims

and where the administrative cost of disbursing restitution payments

to muluple vicums involves a significant cost, any restitutionpayment

received by a probation department shall be forwarded to multiple

victims when i is cost-effective to do so, but in no event shall

restitution disbursements be delayed beyond 180 days from the

date the payment is received by the probation department.

(c) In counties or cities and counties where road camps, farms, or

other public work is available the court may place the probationer

in the road camp, farm, or other public work instead of in jail. In

this case, Section 25359 of the Government Code shall apply to

probation and the court shall have the same power to require adult

probationers to work, as prisoners confined in the county jail are

required to work, at public work. Eachcounty board of supervisors

may fix the scale of compensation of the adult probationers in that

county.

(d) In all cases of probation the court may require as a condition

of probation that the probationer go to work and earn money for

C3

the support of his or her dependents or to pay any fine imposed or

reparation condition, to keep an account of his or her earings, to

report them to the probation officer and apply those earnings as

directed by the court.

(e) The court shall also consider whether the defendant as a

condition of probation shall make restitution to a public agency for

the costs of an emergency response pursuant to Article 8

(commencing with Section 53150) of Chapter 1 of Part 1 of

Division 2 of the Government Code.

(f) In all felony cases in which, as a condition of probation, a judge

of the superior court sitting by authority of law elsewhere than at the

county seat requires a convicted person to serve his or her sentence

at intermittent periods the sentence may be served on the order of

the judge at the city jail nearest to the place at which the court is

sitting, and the cost of his or her maintenance shall be a county

charge.

(g) (1) The court and prosecuting attorney shall consider whether

any defendant who has been convicted of a nonviolent or

nonserious Offense and ordered to participate in community service

as a condition of probation shall be required to engage in the

removal of graffiti in the performance of the community service. For

the purpose of this subdivision, a nonserious offense shall not

inchude the following:

(A) Offenses in violation of the Dangerous Weapons

Control Law (Chapter 1 (commencing with Section

12000) of Title 2 of Part 4).

(B) Offenses involving the use of a dangerous or deadly

C4

weapon, including all violations of Section 417.

(C) Offenses involving the use or attempted use of violence

against the person of another or involving injury to a victim.

(D) Offenses involving annoying or molesting children.

(2) Notwithstanding subparagraph (A) of paragraph (1), any

person who violates Section 12101 shall be ordered to perform not

less than 100 hours and not more than 500 hours of community

service as a condition of probation.

(3) The court and the prosecuting attorney need not consider a

defendant pursuant to paragraph (1) if the following circumstances

exist:

(A) The defendant was convicted of any offense set forth

in subdivision (c) of Section 667.5 or subdivision (c) of

Section 1192.7.

(B) The judge believes that the public safety may be

endangered if the person is ordered to do community

service or the judge believes that the facts or circumstances

or facts and circumstances call for imposition of a more

substantial penalty.

(h) The probation officer or his or her designated representative

shall consider whether any defendant who has been convicted of a

nonviolent and nonserious offense and ordered to participate in

community service as a condition of probation shall be required to

engage in the performance of house repairs or yard services for

senior citizens and the performance of repairs to senior centers

< me CERES Sr et ote et Oe

RS

C5

through contact with local senior service organizations in the

performance of the community service.

(i) (1) Upon conviction of any offense involving child abuse or

neglect, the court may require, in 4ition to any or all of

the above-mentioned terms of imprisonment, fine, and

other reasonable conditions, that the defendant shall

participate in counseling or education programs, or both,

including, but not limited to, parent education or parenting

programs operated by community colleges, school districts,

other public agencies, or private agencies.

(2) Upon conviction of any scx offense subjecting the

defendant to the registration requirements of Section 290,

the court may order as a condition of probation, at the

request of the victim or in the court's discretion, that the

defendant stay away from the victim and the victim's

residence or place of employment, and that the defendant

have no contact with the victim in person, by telephone or

electronic means, or by mail.

(j) The court may impose and require any or all of the above-

mentioned terms of imprisonment, fine, and conditions, and other

reasonable conditions, as it may determine are fitting and proper to

the end that justice may be done, that amends may be made to

society for the breach of the law, for any injury done to any person

resulting from that breach, and generally and specifically for the

reformation and rehabilitation of the probationer, and that should

the probationer violate any of the terms or conditions imposed by

the court in the matter, it shall have authority to modify and change

any and all the terms and conditions and to reimprison the

probationer in the county jail within the limitations of the penalty of

C6

the public offense involved. Upon the defendant being released

from the county jail under the terms of probation as originally

granted or any modification subsequently made, and in all cases

where confinement in a county jail has not been a condition of the

grant of probation, the court shall place the defendant or

probationer in and under the charge of the probation officer of the

court, for the period or term fixed for probation. However, upon

the payment of any fine imposed and the fulfillment of all conditions

of probation, probation shall cease at the end of the term of

probation, or sooner, in the event of modification. In counties and

cities and counties in which there are facilities for taking fingerprints,

those of each probationer shall be taken and a record of them kept

and preserved.

(k) Notwithstanding any other provisions of law to the contrary,

except as provided in Section 13967, as operative on or before

September 28, 1994, of the Government Code and Section

13967.5 of the Government Code and Sections 1202.4, 1463.16,

paragraph (1) of sutativision (a) of Section 1463.18, and Section

1464, and Section 1203.04, as operative on or before August 2,

1995, all fines collected by a county probation officer in any of the

courts of this state, as a condition of the granting of probation or as

a part of the terms of probation, shall be paid into the county

treasury and placed in the general find for the use and benefit of the

county.

(1) If the court orders restitution to be made to the victim, the board

of supervisors may add a fee to cover the actual administrative cost

of collecting restitution but not to exceed 10 percent of the total

amount ordered to be paid. The fees shall be paid into the general

fund of the county treasury for the use and benefit of the county.

See

C7

1203.016. (a) Notwithstanding any other provision of law, the

board of supervisors of any county may authorize the correctional

administrator, as defined in subdivision (h), to offer a program

under which mmimum security inmates and low-risk offenders

committed to a county jail or other county correctional facility or

granted probation, or inmates participating m a work furlough

program, may voluntarily participate in a home detention program

during their sentence in lieu of confinement in the county jail or other

county correctional facility or program under the auspices of the

probation officer.

(b) The board of supervisors may prescribe reasonable rules and

regulations under whicha home detention program may operate.

As a condition of participation in the home detention program, the

inmate shall give his or her consent im writing to participate m the

home detention program and shall in writing agree to comply with

the rules and regulations of the program, including, but not limited

to, the following rules:

(1) The participant shall remain within the interior premises

of his or her residence during the hours designated by the

(2) The participant shall admit any person or agent

designated by the correctional administrator into his or her

residence at any time for purposes of verifying the

participant's compliance with the conditions of his or her

detention.

(3) The participant shall agree to the use of electronic

monitoring or supervising devices for the purpose ofhelping

to verify his or her compliance with the mules and

C8

regulations of the home detention program. The devices

shall not be used to eavesdrop or record any conversation,

except a conversation between the participant and the

person supervising the participant whichis to be used solely

for the purposes of voice identification.

(4) The participant shall agree that the correctional

administrator in charge of the county correctional facility

from which the participant was releaseci may, without

further order of the court, immediately retake the person

into custody to serve the balance of his or her sentence if

the electronic monitoring or supervising devices are unable

for any reason to properly perform their function at the

designated place of home detention, if the person fails to

remain within the place of home detention as stipulated in

the agreement, ifthe person willfully fails to pay fees to the

provider of electronic home detention services, as

stipulated in the agreement, subsequent to the written

notification of the participant that the payment has not been

received and that return to custody may result, or if the

person for any other reasonno longer meets the established

criteria under this section. A copy of the agreement shall be

delivered to the participant and a copy retained by the

(c) Whenever the peace officer supervising a participant has

reasonable cause to believe that the participant is not complying

with the rules or conditions of the program, or that the electronic

monitoring devices are unable to function properly inthe designated

place of confinement, the peace officer may, under general or

specific authorization of the correctional administrator, and

without a warrant of arrest, retake the person into custody to

so ee She

C9

complete the remainder of the original sentence.

(d) Nothing im this section shall be construed to require the

correctional administrator to allow a person to participate in this

program if it appears from the record that the person has not

in custody. A person shall be eligible for participation in a home

detention program only if the correctional administrator concludes

that the person meets the criteria for release established under this

section and that the person's participation is consistent with any

reasonable rules and regulations prescribed by the board of

supervisors or the administrative policy of the correctional

(1) The rules and regulations and administrative policy of

the program shall be written and reviewed on an annual

basis by the county board of supervisors and the

be given to or made available to any participant upon

request.

(2) The correctional administrator, or his or her designee,

shall have the sole discretionary authority to pemnit

program participation as an alternative to physical custody.

All persons referred or recommended by the court to

participate im the home detention program pursuant to

subdivision (e) who are denied participation or all persons

removed from program participation shall be notified in

writing of the specific reasons for the denial or removal.

The notice of denial or removal shall imchde the

participant's appeal rights, as established by program

sministeative policy.

C10

(e) The court may recommend or refer a person to the correctional

administrator for consideration for placement in the home detention

program. The recommendation or referral ofthe court shall be given

great weight in the determination of acceptance or denial. At the

time of sentencing or at any time that the court deems it necessary,

the court may restrict or deny the defendant's participation in a

home detention program.

(f) The correctional administrator may permit home detention

program participants to seek and retain employment in the

community, attend psychological counseling sessions or educational

or vocational training classes, or seek medical and dental

assistance. Willful failure of the program participant to return to the

place ofhome detention not later than the expiration of any period

of time during which he or she is authorized to be away from the

place of home detention pursuant to this section and unauthorized

departures from the place of home detention are punishable as

provided in Section 4532.

(g) The board of supervisors may prescribe a program

administrative fee to be paid by each home detention participant

that shall be determined according to his or her ability to pay.

Inability to pay all or a portion of the program fees shall not

preclude participation in the program, and eligibility shall not be

enhanced by reason of ability to pay. All program administration

and supervision fees shall be administered in compliance with

Section 1208.2.

(h) As used in this section, the following words have the following

meanings:

(1) “Correctional administrator" means the sheriff,

Cll

probation officer, or director of the county department of

corrections.

(2) "Minimum security inmate" means an inmate who, by

established local classification criteria, would be eligible for

placement in a Type IV local detention facility, as

described in Title 15 of the California Code of Regulations,

or for placement into the community for work or school

activities, or who is determined to be a minimum security

risk under a classification plan developed pursuant to

Section 1050 of Title 15 of the California Code of

Regulations.

(3) “Low-risk offender" means a probationer, as defined by

the National Institute of Corrections model probation

system.

(i) Notwithstanding any other law, the police department of a city

where an office is located to which persons on an electronic

monitoring program report may require the county correctional

information shall be limited to the name, address, date of birth, and

offense committed by the home detainee. Any information received

by a police department pursuant to this paragraph shall be used

only for the purpose of monitoring the impact of home detention

programs on the community.

(j) It is the intent of the Legislature that home detention programs

credibility, and public safety. In the furtherance of these standards,

the following shall apply:

C12

(1) The correctional administrator, with the approval of the

board of supervisors, may administer a home detention

program pursuant to written contracts with appropriate

public or private agencies or entities to provide specified

program services. No public or private agency or entity

may operate a home detention program in any county

without a written contract with that county's correctional

administrator. However, this does not apply to the use of

electronic monitoring by the California Department of

Corrections or the Department of the Youth Authority as

established in Section 3004. No public or private agency

Or entity entering into a contract may itself employ any

person who is in the home detention program.

(2) Program acceptance shall not circumvent the normal

booking process for sentenced offenders. All home

detention program participants shal] be supervised.

(3) (A) All privately operated home detention programs

shall be under the jurisdiction of, and subject to the terms

and conditions of the contract entered into with, the

(B) Each contract shall include, but not be limited to, all of

the following:

(i) A provision whereby the private agency or

entity agrees to operate in compliance with any

available standards promulgated by state

Board of Corrections, and all statutory provisions

and mandates, state and county, as appropriate

(i) A provision that clearly defines areas of

respective responsibility and liability of the county

and the private agency or entity.

(ai) A provision that requires the private agency or

entity to demonstrate evidence of financial

responsibility, submitted and approved by the

board of supervisors, im amounts and under

conditions sufficient to fully indemnify the county

for reasonably foreseeable public hability, mchuding

legal defense costs, that may arise from, or be

proximately caused by, acts or omissions of the

contractor. The contract shall provide for annual

review by the correctional administrator to ensure

compliance with requirements set by the board of

supervisors and for adjustment of the financial

responsibility requirements if warranted by

caseload changes or other factors.

(iv) A provision that requires the private agency

or entity to provide evidence of financial

any Operations pursuant to the contract or at any

time requested by the board of supervisors or

(v) A provision that permits the correctional

C14

administrator to immediately terminate the contract

with a private agency or entity at any time that the

contractor fails to demonstrate evidence of financial

(C) All privately operated home detention programs shall

comply with all appropriate, applicable ordinances and

regulations specified ir. subdivision (a) of Section 1208.

(D) The board of supervisors, the correctional

administrator, and the designee of the correctional

admunistrator shall comply with Section 1090 of the

Government Code m the consideration, making, and

execution of contracts pursuant to this section.

(E) The failure of the private agency or entity to comply

with statutory provisions and requirements or with the

standards established by the contract and with the

correctional administrator may be sufficient cause to

terminate the contract.

(F) Upon the discovery that a private agency or entity with

whom there is a contract is not in compliance pursuant to

this paragraph, the correctional administrator shall give 60

days’ notice to the director of the private agency or entity

that the contract may be canceled if the specified

deficiencies are not corrected.

(G) Shorter notice may be given or the contract may be

canceled without notice whenever a serious threat to public

safety is present because the private agency or entity has

failed to comply with this section.

=

C15

(k) For purposes of this section, “evidence of financial

bility" may include, but is not limited to, certified copies of

any of the following:

(1) A camrent liability insurance policy.

(2) A current errors and omissions insurance policy.

(3) A surety bond.