# Amicus Curiae Brief — United States v. Knights

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0451%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 112

## Text

UNITED STATES OF AMERICA,

Petitioner,
v.
MARK JAMES KNIGHTS,
Respondent.
On Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

BRIEF OF THE CENTER FOR THE
COMMUNITY INTEREST AS AMICUS CURIAE

IN SUPPORT OF PETITIONER
LYLE ROBERTS : ANDREW N. VOLLMER
WILSON SONSINI GOODRICH Counsel of Record

& ROSATI STEVEN ROSEN
Lancaster Building Westpark WILMER, CUTLER &
7927 Jones Branch Drive PICKERING
Suite 200 2445 M Street, N.W.
McLean, VA 22102 Washington, D.C. 20037
(703) 734-3100 (202) 663-6000

Counsel for Amicus Curiae
The Center for the Community Interest

TABLE OF CONTENTS

ECG Aad eis ah a eens nea I. THE SUSPICIONLESS SEARCH OF KNIGHTS’
JUS PA Deane Rg Cen GRE Me ree Cs RESIDENCE IS VALID UNDER THE FOURTH

Fos Se RS ee aynne Se bet 2 aaa AMENDMENT BECAUSE IT WAS
calncik fy sg ae eRe | BPS | 1. Prison Regulations and Policies Are
SS EE aa i 3 | | at Afforded Considerable Deference Because,
Raney Saas * : | | * Unlike the Legislative and Executive
‘ : ote) Branches, Courts Are Ill-Equipped to Deal
with the Problems Inherent in Penal

Probation and Parole are an Integral Part
of the Penal System, the Administration of
Which, Like Prison Management, Requires

ii
TABLE OF CONTENTS — Continued

B. The Legitimate Interests of Supervision of
Parolees Require Intensive Monitoring,
Including Policies of Conducting Warrantless,
Suspicionless Searches of Supervisees. ............... ll

1. The Court Should Adapt the Factors Used
in Applying the Legitimate Interests Test in
Prison Cases to Community Supervision
CARIB. .xe.ccvssssesesseensenetennuniianinnnnie ll

2. Consideration of the Requisite Factors
Demonstrates That a Policy Decision to
Conduct _ Warrantless, Suspicionless
Searches is Reasonably Related to the
Legitimate Interests of Community
Seaper isha ..censsnssencsesenenennnnaman 13

C. The Warrantless, Suspicionless Search of
Knights’ Residence Satisfies the Legitimate
$arteseets Tet. ...cccccccsscosssesescnsessennssnsensenessnntenainantnt 20

II. EVEN IF THE COURT DOES NOT ADOPT THE
LEGITIMATE INTERESTS’ TEST, THE
SEARCH OF KNIGHTS’ RESIDENCE WAS
REASONABLE UNDER THE FOURTH
AMENDMENT. .....00c:s-ccscessecsseqeossossconeseossossssstosssossesss 21

CONCLUSION ....ccccccssccssccsscccsssesconsposssossssenssonssssssssesssesesss 22

iii
TABLE OF AUTHORITIES
CASES

Page(s)
Bell v. Wolfish, 441 U.S. 520 (1979) ......ccccccccccceeseeeeeeeeeeeees 10
Bennis v. Michigan, 516 U.S. 442 (1996) .0........cccccccecceeeeeees 1
Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir. 1992) ............ 10
Dickerson v. United States, 530 U.S. 428 (2000) ................ |
Griffin v. Wisconsin, 483 U.S. 868 (1987) ....... 6, 7,9, 10, 20
Kansas v. Hendricks, 521 U.S. 346 (1997) ...ccccccccccccceceeeeeeee 1
Latta v. Fitzharris, 521 F.2d 246 (9th Cir. 1975) .............. 18
Michenfelder v. Sumner, 860 F.2d 328 (9th Cir.

EES 12, 20
Montana v. Egelhoff, 518 U.S. 37 (1996) ........ccccccccseeeeeeeeee l
Morrissey v. Brewer, 408 U.S. 471 (1972) ......cccccccccceeeeee 6,7
National Treasury Employees Union v. Von Raab,

ee 10
New Jersey v. T.L.O., 469 U.S. 325 (1985) .........cccccccccceeees 10
New York v. Burger, 482 U.S. 691 (1987) ..........cccccccceceeees 10
O’Connor v. Ortega, 480 U.S. 709 (1987) ........ccccccceeeeeeees 10
O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) ........ 9,12
Pennsylvania Board of Probation and Parole v.

I ines sterenrmsznsensnseneneneess 8
People v. Eiland, 576 N.E.2d 1185 (Ill. App. Ct.

EE ELLA 18
People v. McCullough, 6 P.3d 774 (Colo. 2000) ......... 17, 20
People v. Reyes, 968 P.2d 445 (Cal. 1998) «0.0.0.0... 17, 20
Procunier v. Martinez, 416 U.S. 396 (1974),

overruled on other grounds, Thornburgh v.

Abbott, 490 U.S. 401 (1989) ......cccccccccseseeeeeeeeeeeeeees 5, 6
Skinner v. Railway Labor Executives Ass'n, 489

ES 10
State v. Davis, 577 N.W.2d 763 (Neb. Ct. App.

EEE ee 18
State v. Smith, 589 N.W.2d 546 (N.D. 1999) .0.......ccccccceee 18

State v. Zeta Chi Fraternity, 696 A.2d 530 (N.H.
TIPU cnteasnsnansencnstnsetinconesenessosssesesssscccsscecsecessceuecssees 17, 18

iv
TABLE OF AUTHORITIES — Continued
Thompson v. Souza, 111 F.3d 694 (9th Cir.

TTTIED sessiicnsitteeaiasassamstiisatesaiininsoiitcuasintatasaiusaiaiaiiisinial eens 10, 12, 19
Thornburgh v. Abbott, 490 U.S. 401 (1989) .............:000 5,12
Turner v. Safley, 482 U.S. 78 (1987) .........cccccceeeee 5, 6,9, 12
United States v. Harper, 928 F.2d 894 (9th Cir.

SII cei cianiciiceheataiadhat task cettataehaahieed ll as ahaaalaientiaailiicinias 4
United States v. Hill, 967 F.2d 902 (3d Cir. 1992) .............. 4
Williams v. Price, 25 F. Supp. 2d 605, 609 (W.D.

Ss TT eesti scetataiiatietetinatiemenattaatasiahliiaibbea eit 10
Vernonia School District 47J v. Acton, 515 U.S. 646

I iii ahaa aac al 10

STATUTES
Cal. Penal Code § 1203.1(j) (West 2001) ..........ccccecceeeeeees _20
MISCELLANEOUS
Bureau of Justice Statistics, U.S. Dep’t of Justice,
Corrections Statistics, July 23, 2000 ..........ccccccccceeeeeeees 7

Bureau of Justice Statistics, U.S. Dep't of Justice,
U.S. Correctional Population Reaches 6.3
Million Men and Women: Represents 3.1
Percent of the Adult U.S. Population, July 23,

James H. Burnett, Ceasefire Celebrates First-Year
Successes, MILWAUKEE JOURNAL SENTINEL,
FD, SI SID . cxccccnseernesnnnntinainebeseteniintmanesnnnintnaeane 16, 17
Patricia Davis, Police and Probation Officers Team
Up to Keep Track, WASHINGTON PosT, Mar.

ath SEED exevecisineanenncpevenseiaseennniettacianiedeneteemnentanennetes 16
Editorial, Law Enforcement Losses, BOSTON GLOBE,
DE 14

Tanya Eiserer, Project Directed at Youths: Omaha
Copies Boston Effort in Hopes of Reducing Gun
Violence Among the Young, OMAHA WORLD-
SOR Dan, Ge GIS cengeentmmnens 16

ae ee ie ee ee 7 gears

Vv

TABLE OF AUTHORITIES — Continued

John Ellement, Think Tank Praises Boston’s Police,

BOSTON GLOBE, May 17, 2001 .0..........ccccsccesseeeeeeeneees 15
Donald G. Evans, Project Spotlight -- Partnership

in Supervision, CORRECTIONS TODAY, Vol. 63,

I ig BENE cenncencirccnninssininnianatintdanpepgutiiagsgenamenimeses 16, 18
Peter Hermann, Police Plan Clampdown on

Baltimore Youth Gangs; No-Nonsense Initiative

to Use Talk, Big Stick, BALTIMORE SUN, Jan.

Tia: SITE seiursenscceanenntenenatnnnnbiaibantiimmpeiiaiaipabedinspiatadiaiiminameutis 16
James T. Jordan, Boston’s Operation Night Light:

New Roles, New Rules, THE FBI LAw

ENFORCEMENT BULLETIN, Aug. 1, 1998 ......... 14, 15, 167
David M. Kennedy, Pulling Levers: Chronic

Offenders, High-Crime Settings, and a Theory

of Prevention, 31 VAL. U. L. REV. 449 (1997) .......... 14
G. Killinger et al., Probation and Parole in the _
Criminal Justice Systern 14 (1976) ...........ccsscceeeceeeeeeees 6

Mark A.R. Kleinman et al., BOTEC Analysis Corp.,
Massachusetts Inst. For a New Commonwealth,
Criminal Justice in Massachusetts: Putting
Crime Control First, Oct. 1996 ........ccccccesseeserseeeeeeeeeees 9

Eric Lichtblau, Decline in Crime Ending: FBI Says
Violence Data Show a Leveling Off in U.S.

After Years of Lower Rates, L.A. TIMES, May
Us SEE ‘cnssentiupantatieanssncniecintaitnnteioninnenimuetummeanenvanaste 8

Paul Logan, Boston Minister to Describe Crime-
Fighting Ideas, ALBUQUERQUE JOURNAL, Oct.

Bee CITED ccecettsnnmemnctenienusiiiiimunninintiaigtiiaieimmmenne 16, 20

Elizabeth Mehren, National Perspective Crime:
Boston's Youth Violence Program Becomes
Model for Nation, Collaborative Effort Between
Community and Police Credited with Reducing
Homicides, L.A. TIMES, Aug. 24, 1998 ............00+ 14, 15

vi
TABLE OF AUTHORITIES — Continued

Angela Moore, Firehouse Cops Focus on Repeat
Offenders, ST. PETERSBURG TIMES, June 16,

DIITED condnnnssesnnecsvenseesssnanentenssenimmmuteseremensiansnessenascene 16, 20

Dale G. Parent et al., National Inst. of Justice, U.S.
Dep’t of Justice, Responding to Probation and
Parole Violations, July 1994 ...........cccccccceeeceseeeseeeneneeees

Joan Petersilia, A Decade of Experimenting with
Intermediate Sanctions: What Have We
Learned?, FED. PROBATION (1989) ....................0.. 13,

Joan Petersilia, A Crime Control Rationale for
Reinvesting in Community Corrections, 75
Ss STII sitcinsietsicsetatinaistineiacinlaihedinnteintgemecnnesenn

President Clinton Unveils Largest Ever National
Gun Enforcement Initiative, Hails New
Prosecution Data, M2 Presswire, Jan. 19, 2000 .........

President's Memorandum on Deterring and
Reducing Gun Crime, 35 WEEKLY COMP. PRES.

Bs Sn SEE SID sncaicisastasiieneeintinenmniensinnermenasene

Kerry L. Pyle, Note, Prison Employment: A Long-

Term Solution to the Overcrowding Crisis, 77
SE eens Tee CIEE viceeeenstneiniinecereinnrtimnepnmecementene

John Semien, Probation Compliance Project

Targets Youths, COMMERCIAL APPEAL, Feb. 27,

SITU ccccsnsnsccscunenssssevesenseunecunsnessneunsansmanesemecsnsssqencets 16, 20

James J. Stephan, State Prison Expenditures, 1996,
Bureau of Justice Statistics, U.S. Dep’t of
DUSTER, QE TED cecenmeresemenmmn

Gene Stephens, Proactive Policing: They Key to
Successful Crime Prevention and Control, USA
8) ee

U-Pennsylvania: Bush Targets Gun Violence
During Philadelphia Speech, U-WIRE, May 18,

TEED ‘cccnrvesvicinnventesetininiateensenmeneenstemnines ddasotasiahiaaomennsiivann

ar nag"

Vii
TABLE OF AUTHORITIES — Continued

Christine Vendel & Anne Lamoy, Murder Rate

Falls in Both Kansas Citys, KANSAS CITY STAR,

SUIT, Ti STEED ectcessiiniesdtieniammidceninnentsneniinaeiemabiigeneeee 16, 17
White House Fact Sheet on Anti-Gang, Youth

Violence Strategy, U.S. NEWSWIRE, July 22,

TUITE sccisethnenisinitiantatdeapeniapindeghidinmdummtanntiitinataeme 15
Amy Wolfford, Police Turn Up the Heat on Streets:

The Violent Crime Task Force Sweeps East

Greensboro Neighborhoods To Make Arrests

and Ask Residents for their Help, GREENSBORO

News & RECORD, May 5, 2000 .0........cccccceees 16, 18, 20
Candace Zierdt, The Little Engine that Arrived at

the Wrong Station: How to Get Juvenile

Justice Back on the Right Track, 33 U.S.F.L.

Sis GEE TIED sicrenctnintsttsnepnucsntenenienegiicemtniniaiennmalin 14

This amicus curiae brief is submitted in support of
petitioner, the United States of America. By letters filed with
the Clerk of the Court, petitioner and respondent have
consented to the filing of this brief.'

INTEREST OF THE AMICUS

The Center for the Community Interest is a national non-
profit public interest organization founded to provide a voice
for localities and community groups on public safety and
quality-of-life issues. CCI helps cities, states, civic
associations, and community groups to develop and defend
policies that strike a reasonable balance between the rights of
the individual and the needs of the larger community.
Through its National Neighborhood Safety Legal Network,
CCI has organized and provided legal advice to hundreds of
citizens groups across the nation, and has developed a
nationally recognized expertise on legal issues affecting the
safety and quality of life of communities. CCI has
participated in a wide range of public safety and quality-of-
life cases before this Court and other courts throughout the
country,” and has developed model legislation, policies, and
Internet resources that assist communities in addressing
problems such as illegal gangs, disorder in public spaces,

| ‘This brief was prepared in whole by the counsel listed on the cover.
No person or entity, other than the amicus curiae, their members, and
their counsel, made a monetary contribution to the preparation or
submission of this brief.

2 Most recently, CCI participated as amicus curiae before this Court
in Dickerson v. United States, 530 U.S. 428 (2000) (supporting the
admissibility of voluntary confessions given in the absence of Miranda
warnings); Kansas v. Hendricks, 521 U.S. 346 (1997) (defending civil
commitment of certain dangerous sexual offenders); Montana v. Egelhoff,
518 U.S. 37 (1996) (supporting reasonable restrictions on criminal
defenses available to drunk drivers); Bennis v. Michigan, 516 U.S. 442
(1996) (defending asset forfeiture programs to control street prostitution).

2

nuisance properties, open-air drug markets, and adult
businesses in residential neighborhoods.

CCI is extremely concerned that the decision of the
Ninth Circuit in this case, if ratified by this Court, would
dangerously restrict the ability of probation and parole
authorities across the country to supervise and monitor
convicted criminals effectively and would thus compromise
neighborhood safety. Moreover, as advocates for a
reasonable and sensitive balance between individual liberties
and public safety and strong believers in the goals of
rehabilitation, CCI is concerned that the Court’s decision will
have the untoward effect of limiting the availability of
probation and parole for all offenders, including those who
could be successfully reintegrated into the community.

SUMMARY OF ARGUMENT

The warrantless, without reasonable suspicion
(“suspicionless”), search of Knights’ residence by police
officers pursuant to a consent condition of his probation did
not violate his Fourth Amendment rights. This is a vital
issue for probation and parole (“community supervision”)
programs. Any significant limitation on the ability of such
programs to monitor probationers and parolees undermines
their effectiveness. The recent trend in state and federal
courts, the U.S. Court of Appeals for the Ninth Circuit
notwithstanding, has been to find that warrantless,
suspicionless searches conducted pursuant to a community
supervision policy are constitutionally valid.

The Court has recognized that it is ill-suited to address
the complex and urgent problems associated with
administration of the penal system. Accordingly, in
evaluating prison policies that allegedly infringe the
constitutional rights of inmates, the Court has applied the
legitimate interests test instead of strict scrutiny. The same
deferential standard should also be applied to community
supervision policies. Community supervision is a variation

3

on imprisonment and has become the primary means of
punishing and monitoring criminals under sentence. Just as
limitations on the constitutional rights of prisoners are
justified in prisons by the need to deter crime, rehabilitate
prisoners, and maintain institutional security, appropriate
limitations are justified in probation and parole systems by
the need to deter recidivism, monitor rehabilitation, and
maintain community security. A deferential standard of
review for determining the constitutionality of official
policies is needed in both contexts.

In the United States, 4.4 million people are currently on
probation or parole, including many violent offenders.
Accordingly, community supervision programs have a
substantial, not merely legitimate, interest in closely
controlling and monitoring probationers and parolees.
Community supervision programs utilizing warrantless,
suspicionless searches, notably in the city of Boston,
Massachusetts, have been extremely successful in reducing
recidivism and deterring crime. As a result, similar programs
are being implemented rapidly across the country, and
prohibiting them from using warrantless, suspicionless
searches would significantly impair the effectiveness of the
programs. For these reasons, the Court should reverse the
Ninth Circuit and determine that, regardless of the validity of
Knights’ consent, the search of his residence was within the
legitimate interests of the California probation system and
did not violate the Fourth Amendment.

ARGUMENT

CCI urges the Court to reverse the decision of the Ninth
Circuit and hold that the search of Knights’ residence by the
Sheriff's Department of Napa County, California was
reasonable and did not violate Knights’ Fourth Amendment
rights. We first discuss the application of the legitimate
interests test to prison regulations and policies and then show
that the Court should apply the same deference in the parole

4

or probation context. Application of that test demonstrates
that warrantless, suspicionless searches are reasonably
related to the legitimate interests of community supervision
systems and therefore are reasonable under the Fourth
Amendment.

I. THE SUSPICIONLESS SEARCH OF KNIGHTS’
RESIDENCE IS VALID UNDER THE FOURTH
AMENDMENT BECAUSE IT WAS REASONABLY
RELATED TO A_ LEGITIMATE PAROLE
INTEREST.

CCI urges the Court to hold that warrantless,
suspicionless searches of probationers and parolees are
constitutional.’ The Court should reach this holding by
applying the legitimate interests test currently used to assess
prison policies that allegedly infringe the constitutional rights
of prisoners. Under this standard of review, community
supervision policies and practices are constitutionally valid,
and a search is reasonable under the Fourth Amendment, if it
is reasonably related to legitimate community supervision
interests. Warrantless, suspicionless searches of supervisees
more than satisfy the reasonable relationship requirement
because strict controls and effective monitoring systems are a
crucial part of deterring recidivism and fostering
rehabilitation of criminals under sentence, whether the
sentence is being served within or outside prison walls.

> For purposes of the issues discussed here, probation and parole
systems should be treated similarly. See United States v. Hill, 967 F.2d
902, 909 (3d Cir. 1992) (“There is ‘no constitutional difference between
probation and parole for the purposes of the fourth amendment.””)
(quoting United States v. Harper, 928 F.2d 894, 896 n.1 (9th Cir. 1991).

5

A. The Court Should’ Evaluate Alleged
Constitutional Infringements in Probation
Programs Under the Same Deferential Standard
It Applies to Prison Regulations and Policies.

When addressing constitutional claims in the prison
context, the Court has recognized that, unlike the executive
atid legislative branches, courts are ill-equipped to address
the complex problems involved in prison administration. As
a result, the Court has applied the legitimate interests test to
evaluate allegations that official conduct pursuant to a prison
regulation or policy infringed an inmate’s constitutional
rights. For similar reasons, the Court should afford the same
deference in the parole znd probation context.

I. Prison Regulations and Policies Are Afforded
Considerable Deference Because, Unlike the
Legislative and Executive Branches, Courts
Are Ill-Equipped to Deal with the Problems
Inherent in Penal Administration.

When evaluating the constitutionality of prison
regulations and policies, the Court has refused to apply strict
scrutiny and instead has adopted a policy of judicial restraint.
The Court’s approach when an inmate alleges that a prison
regulation or policy infringes a constitutional right is to find
that the regulation or policy “is v-lid if it is reasonably
related to legitimate penological inte ests." This deferential
standard balances the need to protect ‘he constitutional rights
of prisoners with the recognition that “courts are ill equipped
to deal with the increasingly urgent problems of prison
administration and reform.” The “complex and intractable”
issues presented by the penal system simply can not be

4 — Turner v. Safley, 482 U.S. 78, 89 (1987).

5 Procunier v. Martinez, 416 U.S. 396, 404-05 (1974), overruled on
other grounds, Thornburgh v. Abbott, 490 U.S. 401 (1989).

6

effectively addressed by judicial decree.® Instead, they
“require|] expertise, planning, and the commitment of
resources, all of which are peculiarly within the province of
the legislative and executive branches of government.”

2. Probation and Parole are an Integral Part of
the Penal System, the Administration of
Which, Like Prison Management, Requires
Judicial Deference.

The Court should apply the same legitimate interests test
to community supervision programs that it uses to evaluate
allegations of constitutional rights violations in the prison
context. The Court has always recognized that probation and
parole are variations on imprisonment.

Probation is simply one point (or, more accurately,
one set of points) on a continuum of possible

© Turner, 482 U.S. at 84.
Id. at 85. As the Court explained in Turner, “Subjecting the day-to-
day judgments of prison officials to an inflexible strict scrutiny analysis
would seriously hamper their ability to anticipate security problems and
to adopt innovative solutions to the intractable problems of prison
administration. The rule would also distort the decision making process,
for every administrative judgment would be subject to the possibility that
some court somewhere would conclude that it had a less restrictive way
of solving the problem at hand. Courts inevitably would become the
primary arbiters of what constitutes the best solution to every
administrative problem, thereby ‘unnecessarily perpetuatiing] the
involvement of the federal courts in affairs of prison administration.’” /d.
at 89 (quoting Procunier, 416 U.S. at 407).

8 See Griffin v. Wisconsin, 483 U.S. 868, 874 (1987) (“Probation, like
incarceration, is ‘a form of criminal sanction imposed by a court upon an
offender after verdict, finding, or plea of guilty’”) (quoting G. Killinger et
al., Probation and Parole in the Criminal Justice System 14 (1976));
Morrissey v. Brewer, 408 U.S. 471, 477 (1972) (“Rather than being an ad
hoc exercise of clemency, parole is an established variation on
imprisonment of convicted criminals.”).

7

7

punishments ranging from solitary confinement in a
maximum-security facility to a few hours of
mandatory community service. A number of
different options lie between those extremes,
including confinement in a medium or minimum-
security facility, work release programs, ‘halfway
houses,’ and probation -- which can itself be more
or less confining depending upon the number and
severity of restrictions imposed.’

The similarity between community supervision and
incarceration is reflected in the fact that probationers and
parolees have only a conditional liberty interest dependent on
observance of special restrictions. '°

In fact, parole and probation are increasingly replacing
the use of prisons as the primary method of punishing and
rehabilitating criminals,’ in large part as a result of
decreasing prison space'* and escalating prison costs.'? At

9 Griffin, 483 U.S. at 874.

10 See id. (“To a greater or lesser degree, it is always true of
probationers (as we have said it to be true of parolees) that they do not
enjoy ‘the absolute liberty to which every citizen is entitled, but only . . .
conditional liberty properly dependent on observance of special
[probation] restrictions."”) (quoting Morrissey v. Brewer, 408 U.S. 471,
480 (1972)).

'! See Joan Petersilia, A Crime Control Rationale for Reinvesting in
Community Corrections, 75 PRISON J. 479, 480-81 (1995); Dale G. Parent

et al., National Inst. of Justice, U.S. Dep’t of Justice, Responding to

Probation and Parole Violations, July 1994, at 1.

12 Prison populations have increased dramatically leading to a serious
overcrowding problem. See, e.g., Bureau of Justice Statistics, U.S. Dep't
of Justice, Corrections Statistics, July 23, 2000 (incarceration rate has
more than tripled since 1980, with the incarceration population growing
an average 5.7% annually between 1990 and midyear 1999); see also
Kerry L. Pyle, Prison Employment: A Long-Term Solution to the

8

the end of 1999, the entire correctional population in the
United States reached 6.3 million people or 3.1% of the
entire population. Of these 6.3 million people, over half, 3.7
million individuals, were on probation, and an additional
712,713 were on parole.'* In addition, roughly 600,000
prisoners are expected to be released from federal and state
prisons into parole in 2001.'°

As probation and parole populations rise, the total
number of people formally supervised under community
supervision programs is also increasing.'© The increased
reliance on community supervision means that many violent
offenders live in our communities. As the Court has
recognized, these individuals “are more likely to commit
future criminal offenses than are average citizens.”"’

Overcrowding Crisis, 77 B.U. L. REv. 151, 152 (1997) (discussing
problem of prison overcrowding).

” Nationally, the total spent on corrections in fiscal year 1996 reached

$24.5 billion, or nearly 80% of all corrections expenditures. State
expenditures have risen 85% since 1990, while federal expenditures have
grown 160% since 1990. See James J. Stephan, State Prison
Expenditures, 1996, Bureau of Justice Statistics, U.S. Dep’t of Justice,
August 1999.

'4 See Bureau of Justice Statistics, U.S. Dep't of Justice, U.S.
Correctional Population Reaches 6.3 Million Men and Women:
Represents 3.1 Percent of the Adult U.S. Population, July 23, 2000.

'S See Eric Lichtblau, Decline in Crime Ending: FBI Says Violence
Data Show a Leveling Off in U.S. After Years of Lower Rates, L.A.
TIMES, May 31, 2001, at Al.

'© In addition, in 1999, 71% of the total corrections population was
supervised as part of formal probation or parole programs. See Bureau of
Justice Statistics, supra note 14.

'7 Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357,
365 (1998). -

9

Further, the objectives of community supervision are
substantially similar to the objectives of prisons. Just as the
limitation on the constitutional rights of prisoners is justified
in prisons by the need to deter crime, rehabilitate prisoners,
and maintain institutional security,'® appropriate limitations
are justified in probation and parole systems by the need to
deter recidivism, monitor rehabilitation, and maintain
community security." Like the running of a prison,
administering a community supervision program is “an
inordinately difficult undertaking that requires expertise,
planning, and the commitment of resources, all of which are
peculiarly within the province of the legislative and executive
branches of government.” Accordingly, when a community
supervision regulation impinges on the constitutional rights
of probationers or parolees, the regulation should be valid if
it is reasonably related to legitimate’ community supervision
interests.

3. The Legitimate Interests Test Should Be
Applied to Alleged Fourth Amendment
Violations of Probationers and Parolees.

As established above, the legitimate interests test should
be applied to community supervision regulations impacting
the constitutional rights of probationers and parolees,
including community supervision regulations related to

18 See O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987).

'9 See Griffin, 483 U.S. at 875 (“{Probation] restrictions are meant to
assure that the probation serves as a period of genuine rehabilitation and
that the community is not harmed by the probationer’s being at large.”),
Mark A.R. Kleinman et al., BOTEC Analysis Corp., Massachusetts Inst.
For a New Commonwealth, Criminal Justice in Massachusetts: Putting
Crime Control First, Oct. 1996, at 20 (goals of probation and parole
include deterring recidivism, rehabilitating offender, and protecting
community).

20 Turner v. Safley, 482 U.S. 78, 84-85 (1987).

10

searches. In Griffin v. Wisconsin, the Court examined a
Fourth Amendment claim by a probationer and stated that a
“[s]tate’s operation of a probation system, like its operation
of a school, government office or prison,” likewise presents
““special needs’ beyond normal law enforcement” that
justifies departure from the usual warrant and probable cause
requirements.”" While the Court has “not, hesitated to
balance the government and privacy interests to assess the
practicality of the warrant and probable cause
requirements,” the balancing test is not the exclusive means
by which Fourth Amendment questions may be resolved in a
“special needs” situation. As required by the Court’s holding
in Turner, courts have applied the legitimate interests test to
all prisoners’ constitutional claims, including Fourth
Amendment claims.” Moreover, in Griffin, the Court
alluded to the possibility of applying the legitimate interests
test in the probation context, but did not decide the
question.“ The Court should now take the next step and

21 Griffin, 483 U.S. at 873-74.

22 Skinner v. Railway Labor Execs. Ass'n, 489 U.S. 602, 619-20
(1989). The Court has used this balancing test, in upholding mandated
drug testing of railway employees (see id. at 619-33), random drug
testing of student athletes (see Vernonia School Dist. 47J v. Acton, 515
U.S. 646, 653-66 (1995)), drug testing of customs agents (see National
Treasury Employees Union v. Von Raab, 489 U.S. 656, 664-66 (1989)),
warrantless inspections of highly regulated businesses (see New York v.
Burger, 482 U.S. 691, 699-703 (1987)), work-related searches of

* desks and offices (see O'Connor v. Ortega, 480 U.S. 709,
721-25 (1987)), searches of students conducted by public school officials
(see New Jersey v. T.L.O., 469 U.S. 325, 337-42 (1985)), and body-cavity
searches of inmates (see Bell v. Wolfish, 441 U.S. 520, 560 (1979)) as
reasonable searches under the Fourth Amendment.

23 See Thompson v. Souza, 111 F.3d 694, 699 (9th Cir. 1997); Covino
v. Patrissi, 967 F.2d 73, 78 (2d Cir. 1992); Williams v. Price, 25 F. Supp.
2d 605, 609 (W.D. Pa. 1997).

24 See 483 US. at 874 n.2.

11

hold that the legitimate interests test is the appropriate
standard by which to evaluate Knights’ Fourth Amendment
claim.

B. The Legitimate Interests of Supervision of
Parolees Require Intensive Monitoring,
Including Policies of Conducting Warrantless,
Suspicionless Searches of Supervisees.

In this part of the brief, we discuss the four-factor
approach the Court has developed to apply the legitimate
interests test to official prison conduct and the ways to adapt
that approach to probation and parole cases. We then apply
the factors to warrantless, suspicionless searches to show that
such searches are reasonably related to the legitimate
interests of probation or parole. This analysis does not
depend on whether a probationer or parolee properly
consented to the search as a condition of probation or parole.
In the probation and parole context, the only question under
the legitimate interests test is whether the policy permitting
warrantless, suspicionless searches is valid, regardless of
whether the policy includes obtaining the consent of the
supervisee.

1. The Court Should Adapt the Factors Used in
Applying the Legitimate Interests Test in
Prison Cases to Community Supervision
Cases.

The factors used to apply the legitimate interests test to
prison regulations and policies should be used to evaluate
constitutional.challenges to official conduct in parole and
probation cases. The Turner court set out four factors to use
in evaluating whether a challenged regulation or policy is
“reasonably related” to legitimate interests: first, whether a
rational connection exists between the regulation or policy
and the legitimate governmental interest invoked as a
justification for the action; second, whether alternative means
of exercising the right allegedly being infringed remain open

12

for the inmate; third, whether accommodation of the right
allegedly being infringed will have an adverse impact on
guards, other inmates, and prison resources; and finally,
whether obvious, easy alternatives to the regulation or policy
exist.”

Although the factors are specific to “prisoner rights”
litigation,” they provide substantial guidance on how. to
establish the “reasonably related” connection in community
supervision litigation. In Thompson v. Souza, a case
examining alleged Fourth Amendment violations in the
prison context, the Ninth Circuit found Turner’s four factors
“instructive” despite the fact that “[nJot all four factors will
be relevant” for every constitutional claim.”’

Although prisons and community supervision systems
have similar legitimate interests and courts should apply
similar factors in evaluating whether a regulation or policy is
reasonably related to those legitimate interests, this does not
mean that a court would necessarily reach the same
conclusion concerning the validity of a regulation or policy
affecting prisoners and community supervisees. For
example, in O’Lone v. Estate of Shabazz, this Court held that
a prison policy affecting the ability of Muslim inmates to
attend religious services was reasonably related to legitimate
penological interests.”* It is less likely that a policy decision
having a simi:ar effect on a group of probationers or parolees
would satisfy the “reasonably related” factors. The factors
need to be applied on a case-by-case basis with the relevant

25 See Turner, 482 U.S. at 89-90.
26 Thornburgh v. Abbott, 490 U.S. 401, 414 (1989).

27 111 F.3d at 699 (quoting Michenfelder v. Sumner, 860 F.2d 328,

331 n.1 (9th Cir. 1988)).
28 See 482 U.S. 342, 353 (1987).

13

differences between prisons and community supervision
systems taken into account.

2. Consideration of the Requisite Factors
Demonstrates That a Policy Decision to
Conduct Warrantless, Suspicionless Searches
is Reasonably Related to the Legitimate
Interests of Community Supervision.

A policy decision to conduct warrantless, suspicionless
searches, when examined using the four factors articulated in
Turner, is reasonably related to the legitimate interests of
community supervision. Probation and parole are a common
alternative to incarceration in the United States. As
probation and parole sentences increasingly incorporate some
aspect of community supervision, the ability to conduct
warrantless, suspicionless searches is not only rationally
related to the interests of probation and parole systems, but is
crucial to the basic execution of these sentences.

Intensive supervision programs date to the early 1980s,
when the state of Georgia developed the first program that
utilized teams of probation officers to closely monitor small
numbers of probationers.”° Since 1985, Virtually every state
has developed some sort of intensive supervision program.”°
In the twenty years since these programs were introduced,
studies have shown that the most successful programs are
those that thoroughly and actively monitor every aspect of
the subject’s daily life. Effective supervision typically
includes monitoring the probationer or parolee through
unannounced home and work visits.’ “By combining police

- See Joan Petersilia, A Decade of Experimenting with Intermediate
Sanctions: What Have We Learned?, FED. PROBATION, Dec. 1989, at 3.

30 See id. a5.
31 See id. at 9.

14

and probation resources, probation supervision has become a
24-hour-a-day, highly accountable reality. -

The model city for modern intensive supervision
programs is Boston, Massachusetts. Between 1990 and
1995, twenty-five percent of gun and knife homicides in
Boston were committed by individuals on probation at the
time of these offenses.** This statistic, and the rising number
of juveniles killed in Boston, prompted the city to create two
intensive supervision programs.

Boston’s Operation Ceasefire and Operation Night Light
were started in 1996. The Ceasefire program implemented
strict supervision of parole, probation, and bail conditions
including frequent home visits and random stops. The
Night Light program is similar but focuses on high-risk youth
offenders and organizes supervision teams who visit homes
of high-risk probationers and parolees up to four nights a
week to ensure they are complying with their probation or
parole terms.*> As a result of these programs, the number of
homicides in Boston dropped from 152 in 1990 to 3/ in
1999.*° In fact, Boston went two and a half years without a

32 id. a8.

33 See Candace Zierdt, The Little Engine that Arrived at the Wrong
Station: How to Get Juvenile Justice Back on the Right Track, 32
U.S.FLL. REV. 401, 430 (1999).

34 See David M. Kennedy, Pulling Levers: Chronic Offenders, High-
Crime Settings, and a Theory of Prevention, 31 VAL. U. L. REV. 449,
462-63 (1997).

35 See James T. Jordan, Boston’s Operation Night Light: New Roles,
New Rules, The FBI Law Enforcement Bulletin, Aug. 1, 1998, at 1 (“FBI
Law Enforcement Bulletin”).

© See Editorial, Law Enforcement Losses, BOSTON GLOBE, May 3,
2001, at Al4.

15

single youth gun homicide.” .A 1997 Boston police
department study showed that more than fifty percent of the
city’s probationers were in compliance with their probation
terms, up from an average of seventeen percent in the early
1990s, before the Ceaseiire and Night Light programs were
instituted.™*

The “Boston Plan,” as it has come to be known, has been
heralded by both President Clinton and President Bush 3 a
model for probationer and parolee re-entry into society.” It
has been studied and copied extensively throughout the
country.” Over 560 law enforcement and municipal
agencies have requested information from the Night Light
program and representatives from over 140 law enforcement

37 See Elizabeth Mehren, National Perspective Crime: Boston's Youth
Violence Program Becomes Model for Nation, Collaborative Effort
Between Community and Police Credited with Reducing Homicides, L.A.
TIMES, Aug. 24, 1998, at AS.

= See FBI Law Enforcement Bulletin, at 1.

39 President Clinton copied measures from Boston’s Ceasefire and
Night Light programs in his July 1998 Anti-Gang and Youth Violence
Strategy, in a 1999 memorandum calling for the development of a youth
violence prevention strategy, and in the largest national firearms
enforcement initiative in American history, unveiled in January 2000. In
May 2001, President Bush based his gun violence reduction plan,
Operation Safe Neighborhoods, on Boston’s Operation Ceasefire. See
White House Fact Sheet on Anti-Gang, Youth Violence Strategy, U.S.
NEWSWIRE, July 22, 1998; President's Memorandum on Deterring and
Reducing Gun Crime, 35 WEEKLY Comp. Pres. Doc. 12, Mar. 20, 1999;
President Clinton Unveils Largest Ever National Gun Enforcement
Initiative, Hails New Prosecution Data, M2 PRESSWIRE, Jan. 19, 2000;
U-Pennsylvania: Bush Targets Gun Violence During Philadelphia
Speech, U-WIRE, May 18, 2001.

. See List of Programs Inspired by the Boston Plan, attached at
Appendix A.

16
and other public agencies have come to Boston to study the
program first hand.

Intensive supervision through unannounced visits is the
building block of the “Boston Plan” programs Started in
numerous cities across the country.** As in Boston, these
programs use frequent home visits and random stops to

*! See FBI Law Enforcement Bulletin, at 1. In May 2001, PolicyLink,

a California think tank, issued a 180-page report in which it advocated
community-based policing, such as that used in Boston, as a national
strategy for handling youth violence. See John Ellement, Think Tank
Praises Boston Police, BOSTON GLOBE, May 17, 2001, at BS.

‘2 Programs utilizing searches of offenders’ homes and workplaces
have been started in Nebraska (Omaha Operation Ceasefire, Operation
Night Light, and Project Impact), Texas (Spotlight Project), Virginia
(Arlington Police and Probation Co-operation program), Tennessee
(Memphis Operation Night Light), New Mexico (Albuquerque Operation
Night Light), Maryland (Baltimore Operation Safe Neighborhoods),
North Carolina (Greensboro and High Point Violent Crime Task Force),
Missouri (Kansas City Operation Night Light), Florida (Tampa Operation
Night Light), Wisconsin (Milwaukee Operation Ceasefire). See Tanya
Eiserer, Project Directed at Youths: Omaha Copies Boston Effort in
Hopes of Reducing Gun Violence Among the Young, OMAHA WOLRD-
HERALD, Dec. 19, 1999, at B1; Donald G. Evans, Project Spotlight --
Partnership in Supervision, CORRECTIONS TODAY, Vol. 63, Feb. 1, 2001;
Patricia Davis, Police and Probation Officers Team Up to Keep Track,
WASHINGTON Post, Mar. 30, 2000, at VO1; John Semien, Probation
Compliance Project Targets Youths, COMMERCIAL APPEAL, Feb. 27,
1999, at B1; Paul Logan, Boston Minister to Describe Crime-Fighting
Ideas, ALBUQUERQUE JOURNAL, Oct. 28, 1999, at B1; Peter Hermann,
Police Plan Clampdown on Baltimore Youth Gangs; No-Nonsense
Initiative to Use Talk, Big Stick, BALTIMORE SUN, Jan. 23, 1998, at Al;
Amy Wolfford, Police Turn Up the Heat on Streets: The Violent Crime
Task Force Sweeps East Greensboro Neighborhoods To Make Arrests
and Ask Residents for their Help, GREENSBORO NEWS & RECORD, May 5,
2000, at B1; Christine Vendel & Anne Lamoy, Murder Rate Falls in Both
Kansas Citys, Kansas City Star, Jan. 3, 2000, at B1; Angela Moore,
Firehouse Cops Focus on Repeat Offenders, St. PETERSBURG TIMES,
June 16, 1998, at B3; James H. Burnett, Ceasefire Celebrates First-Year
Successes, MILWAUKEE JOURNAL SENTINEL, Jan. 26, 2001, at BS.

17

ensure that an offender’s terms of release into the community
are being followed. These programs are also copying
Boston’s success. Various intensive supervision programs in
Kansas City, including an Operation Night Light, are credited
with a twenty-four percent drop in the murder rate and the
lowest number of homicides, 47, in that city in a decade.** In
many cases, these programs have obtained immediate
positive results -- Milwaukee’s implementation of Operation
Ceasefire caused a drop in the city’s homicide rates after only
a year of operation.“ Warrantless, suspicionless home
searches are not only rationally related to the legitimate
interests of these community supervision programs, they are
a fundamental component of many successful programs.

Addressing Turner’s second factor, there are no easy
alternatives to a warrantless, suspicionless search for
determining many types of violations of supervision
conditions. As the Colorado Supreme Court recognized in
upholding warrantless, suspicionless searches of
probationers’ or parolees’ homes:

The ability to conduct surprise searches . . . even
without specific reason to believe that the parolee
[or probationer] has committed a violation, serves as
a powerful deterrent to parole violations and as an
invaluable aid in the [ ] officer’s efforts to assist in
the [supervisee’s] rehabilitation.*°

Numerous other courts have agreed with this assessment.
As the New Hampshire Supreme Court has stated, “simply

43 See Vendel & Lamoy, supra note 42, at B1.

“4 See Burnett, supra note 42, at BS.

‘5 People v. McCullough, 6 P.3d 774, 780 (Colo. 2000) (en banc).

4© See People v. Reyes, 968 P.2d 445, 450-51 (Cal. 1998) (random
searches effectively enable probation system to monitor and deter crime);
State v. Zeta Chi Fraternity, 696 A.2d 530, 541 (N.H. 1997)

-

18

monitoring the probationer’s progress from a distance” may
result in the probationer or parolee “successfully conceal[ing]}
evidence of ongoing criminality or violations of probation
conditions sO. that the probation officer has no suspicion of
misconduct.”

Courts have allowed warrantless, suspicionless searches
because they understood that community supervision
programs must be given the necessary resources to carry out
their monitoring responsibilities. The most successful tool
utilized by community supervision programs is_ the
warrantless, suspicionless search. As discussed above, the
effectiveness of programs utilizing these searches is
unquestionable. Under Texas’ Project Spotlight, , home
searches uncovered 87 weapons in a single county.” The
High Point, North Carolina Violent Crime Task Force credits
home visits to high-risk offenders for ihe city’s drop in
homicides from 16 in 1997 to 5 in 1999. Simply put, there
is no way to replace this “invaluable aid” to community
supervision.

(unannounced searches effective in deterring crime); State v. Smith, 589
N.W.2d 546, 549 (N.D. 1999) (goals of probation system “justify
departure from the usual warrant and probable cause requirements” for
home search); State v. Davis, 577 N.W.2d 763, 800 (Neb. Ct. App. 1998)
(parole system’s ability to make unannounced searches allows effective
monitoring of parolees); People v. Eiland, 576 N.E.2d 1185, 1190 (iil.
App. Ct. 1991) (probation system “must” be allowed to intervene with
“lesser degree of certainty than the fourth amendment would otherwise
require” in order to properly monitor probationers); Latta v. Fitzharris,
521 F.2d 246, 250 (9th Cir. 1975) (en banc) (“impossible” to determine a
parolce’s conduct without conducting home searches).

47 Zeta Chi, 696 A.2d at 539.

8 See cases supra n.46.

? Evans, supra n.42.

7 ie Wolfford, supra n.42, at B1.

19

With respect to the third factor articulated in Turner, not
allowing warrantless, suspicionless searches will have an
adverse impact on parole and probation systems around the
country. The National Institute of Justice of the United
States Department of Justice recently published a landmark
study of crime prevention initiatives in the United States
which found that “opportunity reduction” measures,
including increased police presence and monitoring and
intensive supervision, were common aspects of successful
crime prevention programs. The study found that “[wJhile
most [intensive supervision] efforts are far from the headlines
and newscasts, they appear to be quietly transforming
America into an effective, efficient crime preventing and
controlling society. It is these crimes prevented that are
reflected in statistics as non-events — thus lowering overall
crime fates.”°' Warrantless, suspicionless searches are a
fundamental part of community supervision programs.” A
limitation or the ability of community supervision programs
to engage .n intensive supervision would threaten the
tremendous crime prevention gains they have made.

The final Turner factor, whether alternative means for
exercising the right remain open to the community
supervisee, is difficult to apply in the Fourth Amendment
context because the constitutional right provides that a person
cannot be searched in certain circumstances. This means that
it is unlikely that a person does not have an alternative
method of exercising a Fourth Amendment right when
officials need to conduct a search in a particular manner. “

5! Gene Stephens, Proactive Policing: The Key to Successful Crime
Prevention and Control, USA TODAY, May 1, 2001.
52

See pp. 17-18, supra.

53 See Thompson, 111 F.3d at 699 (“{T]he second Turner factor --
availability of other avenues for exercising the right infringed upon -- is
much more meaningful in the [First [A]mendment context than the

20

Nonetheless, as long as a warrantless, suspicionless search is
pursuant to and part of a valid community supervision
system, overall consideration of the four factors indicates that
the search is reasonably related to legitimate parole
interests.**

C. The Warrantless, Suspicionless Search of
Knights’ Residence Satisfies the Legitimate
Interests Test. .

We now apply the legitimate interests test described
above to the search of Knights’ residence to demonstrate that
the search did not violate his Fourth Amendment rights. The
search of Knights’ residence by the Napa County Sheriff's
Department was pursuant to a policy of the California
probation system, as established by the California legislature.
The California legislature authorized both the inclusion of the
search consent as a condition of the terms of Knights’
probation and, by implication, the warrantless, suspicionless
search of Knights’ residence.*° Pursuant to this authority,

[Flourth or [E]ighth, where the right is to be free from a particular
wrong.”) (quoting Michenfelder v. Sumner, 860 F.2d 328, 331 n.1 (9th
Cir. 1988)).

4 | Not every type of search conducted pursuant to a community
supervision policy will meet the legitimate interests test. Courts have
cautioned that “arbitrary, capricious, or harassing” searches may be
unreasonable, and will infringe even on the “greatly reduced” privacy
interest of a probationer or parolee. See People v. McCullough, 6 P.3d
774, 782 (Colo. 2000) (en banc); People v. Reyes, 968 P.2d 445, 451
(1998). See also Griffin v. Wisconsin, 483 U.S. 868, 874 (1987)
(probationers have lesser expectation of privacy than the public at large).
Modern community supervision programs, however, usually have the
flexibility needed to avoid such searches.

55 The applicable California statute states that the sentencing court
may impose “reasonable conditions” to facilitate the “reformation and
rehabilitation of the probationer.” Cal. Penal Code § 1203.1(j) (West
2001). ;

21
Knights was required to consent to warrantless, suspicionless
searches as a condition of his probation.

The decision to create a probation condition allowing for
warrantless, suspicionless searches is exactly the type of
policy decision that should be entitled to deference under the
legitimate interests test. As explained in Section I(B), a
warrantless, suspicionless search of a probationer or parolee
conducted pursuant to a probationary policy or regulation is
reasonably related to the legitimate interests of a
probationary system. There is nothing in the record to
indicate that the search of Knights’ residence, which was
conducted pursuant to an active police investigation, was
arbitrary, capricious, or harassing. Accordingly, the search
of Knights’ residence satisfied these requirements, was
reasonable, and did not violate the Fourth Amendment.

Il. EVEN IF THE COURT DOES NOT ADOPT THE
LEGITIMATE INTERESTS TEST, THE SEARCH
OF KNIGHTS’ RESIDENCE WAS REASONABLE
UNDER THE FOURTH AMENDMENT.

Even if the Court-declines to adopt the legitimate
interests test, it still should find that the search of Knights’
residence pursuant to his search consent was constitutional
under Griffin’s balancing test. For the reasons discussed in
Section I of this brief, the state’s need for effective methods
to solve the problems of community supervision far
outweighs the limited expectation of privacy held by
probationers and parolees. Consent searches without
reasonable suspicion Satisfy the reasonableness requirement
of the Fourth Amendment in the context of community
supervision, even if the legitimate interests test is not applied
in this case. We defer to the fuller discussion of this
argument and related points in the brief of the United States.

22

CONCLUSION

For the foregoing reasons, the Court should decide that
the search of Knights’ residence did not violate his Fourth
Amendment rights. It therefore should reverse the decision
of the Ninth Circuit.

Respectfully submitted,
LYLE ROBERTS ANDREW N. VOLLMER
WILSON SONSINIGOODRICH Counsel of Record

& ROSATI STEVEN ROSEN
Lancaster Building Westpark © WILMER, CUTLER &
7927 Jones Branch Drive PICKERING
Suite 200 2445 M Street, N.W.
McLean, VA 22102 Washington, D.C. 20037
(703) 734-3100 (202) 663-6000

Counsel for Amicus Curiae
The Center for the Community Interest

APPENDIX

APPENDIX A

PARTIAL LIST OF PROGRAMS
INSPIRED BY THE BOSTON PLAN

Omaha, Ne. Operation Ceasefire

Started in August 1999, the program utilizes teams of
probation, police and parole officers to closely monitor
high-crime neighborhoods and the hangouts of suspects
in order to combat gun violence. The teams both
conduct searches and execute warrants.’

Omaha, Ne. Operation Night Light

Teams of two police officers and a probation or police
officer visit the homes of violent and at-risk offenders to
ensure they are following the terms of their parole or
probation. The teams have the right to conduct
warrantless searches if such searches are a part of the
terms of the youth’s probation. If a violation is found, a
number of sanctions are used, ranging from stricter
curfews and increased drug testing to a revocation of

parole or probation.’

Omaha, Ne. Project Impact

Under frutes Reanant, Wich was tnenshed to Desens
1999, police and probation officers make unannounced
visits to the homes of youths on probation or parole,
closely monitor gang members, and join with
community groups to offer educational and employment

' Tanya Eiserer, Project Directed at Youths: Omaha Copies Boston
Effort in Hopes of Reducing Gun Violence among the Young, OMAHA
WORLD-HERALD, Dec. 19, 1999, at B1.

> aw

2a

alternatives to youths.° A series of drive-by shootings in
May 2000 led to increased neighborhood sweeps and
police presence, and the formation of a South Omaha
Project Impact Team.*

Texas Project Spotlight

Instituted in seven counties, the Project embraces
supervising probationers in the community and
enforcing probation conditions through partnerships
between police and community agencies. Teams of
three individuals from various public agencies provide
intense supervision through day, evening and weekend
visits to probationers’ homes, schools, and places of
employment. Educational and employment services are
also provided.”

Providence, R.I. Safe Streets

Modeled after Operation Night Light, Safe Streets
represents Providence’s attempt to implement a five-year
plan to overhaul its probation system. Since 1995,
repeat offenders have committed more than 1,400 crimes
in Rhode Island, and almost half of the people on
probation, approximately 11,000 offenders, do not have
even cursory checks with a probation officer as a term of
their probation. There is little to no supervision of
probationers to ensure that they are attending mandated
counseling sessions and meetings with probation
counselors, or to follow up if probationers do fail to
appear. Safe Streets involves probation counselors

3

4

Id.
Tanya Eiserer, Beefed-Up Patrols Target Recent Violence, OMAHA

WORLD-HERALD, May 6, 2000, at 17.

5

Donald G. Evans, Project Spotlight — Partnership in Supervision,

CORRECTIONS TODAY, Vol. 63, Feb. 1, 2001.

3a

riding with police officers to more closely monitor high-
risk offenders at their homes and hangouts. °

6. Arlington, Va. Police and Probation Co-operation

In March 1998, Arlington County’s police department
and probation office partnered to more closely supervise
probationers by visiting their homes and job sites. Of the
42 probation offices in Virginia, 22 have started some
form of community-oriented probation and parole
services, each tailored to the specific needs of the
community but intended to provide a bridge between the
police and probation offices for better monitoring of
parolees and probationers.’

7. Memphis, Tn. Operation Night Light
Created in 1999 by the state Department of Probation,
the Shelby County Sheriff's Office and the Memphis
Police Department, the program matches two-person
teams of probation and police officers who make nightly
visits to up to 15 probationers suspected of non-
compliance with the terms of their probation.*

8. Albuquerque, N.M. Operation Night Light
Started in 1999 by the city’s Metropolitan Criminal
Justice Coordinating Council, this program pairs
sheriff's deputies with juvenile probation officers in
order to surveille juvenile offenders who are under

© Gerald M. Carbone & David Herzog, Overwhelmed: Many
Criminals Go Unsupervised as Caseloads Crush Probation System,
PROVIDENCE JOURNAL, Mar. 4, 2001, at Al.

7 Patricia Davis, Police and Probation Officers Team Up to Keep
Track, WASHINGTON Post, Mar. 30, 2000, at VO1.

$ John Semien, Probation Compliance Project Targets Youths,
COMMERCIAL APPEAL, Feb. 27, 1999, at B1.

4a

curfew or on probation in order to keep them from
“falling through the system’s cracks.”

9. Baltimore, Md. Operation Safe Neighborhoods
Federal, state, and community agencies review case files
and target repeat offenders who- will be closely
monitored for any violation of their parole or probation.
Officials also meet with the parolees and probationers to
inform them that any violations of their parole or
probation, even minor, will result in long prison
sentences and to inform them of counseling options.'°
Police target groups suspected of violence for special
attention, ranging from daily visits to sustained
misdemeanor arrests. Officials use a close relationship
between police and prison officials to seek out juvenile
offenders to monitor juvenile offenders in their homes, at
their schools, and at hang-outs in order to ensure that
they are complying with the terms of their parole or
probation.

10. Greensboro, N.C. Violent Crime Task Force
Created in 1999, the task force seeks to combine
prevention, enforcement, and community services in a
way that will reduce crime rates. In May 2000, the task
force executed its first neighborhood sweep. For two
days local, federal, and state probation and police
officers joined forces to patrol neighborhoods, visiting

9 Paul Logan, Boston Minister to Describe Crime-Fighting Ideas,
ALBUQUERQUE JOURNAL, Oct. 28, 1999, at B1.

10 Sheila Hotchkin, Officials: Violence Will not be Tolerated in Park
Heights, ASSOCIATED PRESS NEWSWIRES, Apr. 25, 2000.

1! Peter Hermann, Police Plan Clampdown on Baltimore Youth
Gangs; No-Nonsense Initiative to Use Talk, Big Stick, BALTIMORE SUN,
Jan. 23, 1998, at Al.

— ————_

Sa

high-risk offenders, making arrests, and asking residents
for their help in monitoring probationers and parolees in
the future.'?

11. High Point, N.C. Violent Crime Task Force
Started by Police Chief Louis Quijas, the task force is
similar to the Greensboro task force. Since it’s
inception, homicides in High Point have dropped from
16 in 1997 to 14 in 1998 to 5 in 1999."°

12. Brooklyn, N.Y. Adoption of the “Boston Plan”

In October 1999, after six years of a reduction in crime,
crime rates rose in Brooklyn and prompted city, state,
and federal crime-fighting authorities to implement
many of the measures used to fight crime in Boston.
These included more systematic coordination among
police, probation officers and community groups to
monitor gang members, parolees, and probationers.
Officials also meet with gang members to inform them
that increased monitoring will occur and to present
alternatives to violence. Those who do not attend
meetings are considered to be in violation of their parole
or probation. '*

13. Kansas City, Mo. Operation Night Light
Between -1998 and 1999, Kansas City’s murder rate
dropped 24% and the number of homicides, 47, was the

'2 Amy Wolfford, Police Turn Up the Heat on Streets The Violent

Crime Task Force Sweeps East Greensboro Neighborhoods To Make
Arrests and Ask Residents for their Help, GREENSBORO NEWS &
RECORD, May 5, 1000, at Al.

13 Id.

'4 Fred Kaplan, Brooklyn Adopts ‘Boston Plan’ on Slayings, BOSTON
GLOBE, Oct. 14, 1999, at Al4.

6a

lowest in a decade. The implementation of various
intensive supervision programs, including Operation
Night Light, is credited with the drop in homicides.
Teams of police and probation officers focus their
monitoring efforts on first-time young offenders in the
hopes of preventing repeat offenses.

14. Tampa, Fl. Operation Night Light

Tampa’s plan meshes police officers, probation officers,
and neighborhood watch programs in order to surveille
repeat offenders. The program expands an earlier
program in which a police officer was placed in each
neighborhood fire station in the city. These officers
identify repeat and high-risk offenders in_ the
community, then meet with neighborhood watch
programs to share photos, case histories, and addresses
of known felons. A bulletin board in each neighborhood
fire station also lists information on high-risk offenders
recently released into each neighborhood. '°

15. Allentown, Pa. Ride Along Program
Started in March 2000, at least one weekend night a
month probation officers accompany police as they
patrol bars and other hangouts looking for individuals
violating their parole or probation. The program was
started because of persistent violence and homicides
outside Allentown bars; in each homicide that occurred
outside a bar in Allentown since 1995 either the victim
or assailant was on parole. In its first year, the program
was responsible for the arrests of 45 probation or parole
violators and resulted in no shootings or homicides

13 Christine Vendel & Anne Lamoy, Murder Rate Falls in Both
Kansas Citys, KANSAS City STAR, Jan. 3, 2000, B1.

7 Angela Moore, Firehouse Cops Focus on Repeat Offenders, ST.
PETERSBURG TIMES, June 16, 1998, at B3.

Ta

outside Allentown bars. While most Pennsylvania
counties do not allow probation officers to ride with
police, plans have begun to imitate the program in some
counties. ,

16. Milwaukee, Wi. Operation Ceasefire

Milwaukee’s Operation Ceasefire was started in January
2000, with its roots directly in the Boston and Richmond
programs. In April 2000, Milwaukee police and various
clergymen met and decided to send representatives to
Boston to study all aspects of that city’s plan.'"®
Milwaukee’s plan involves a joint federal-state-local
task force, which pursues and prosecutes illegal gun use
and possession. In its first year, Operation Ceasefire led
to the prosecution of 684 people, homicide dropped two
percent, and homicides with a gun dropped nine
percent.'?

17. Milwaukee, Wi. Community Safety Coalition
The Coalition is part of Milwaukee’s Operation
Ceasefire program. The Coalition organizes meetings in
which prominent law enforcement and other city
officials to confront high-risk parolees and probationers

'7 Keith Herbert, The Fast Round-Up: Police and County Officers
Swoop into Allentown Bars on Weekend Nights Looking for Probation
Violators. It Takes Only Minutes to Get their Man, ALLENTOWN
MORNING CALL, Mar. 11, 2001, at Al.

‘8 James H. Burnett, Police-Clergy Partnership Finding Other Anti-
Crime Collaborators, MILWAUKEE JOURNAL SENTINEL, Apr. 15, 2000, at
BS. :

19

James H. Burnett, Ceasefire Celebrates First-Year Successes,
MILWAUKEE JOURNAL SENTINEL, Jan. 26, 2001, at BS.

8a

with their behavior and assist them with Job placement,
educational options, and drug counseling.

18. Chicago, Il. Project for Violence Prevention
The Project was created by Gary Slutkin, a public-health
professor at the University of Illinois. By September
2000, more than 125 religious leaders had joined the
Project in an attempt to counsel youth and work with
police to monitor chronic troublemakers in their
neighborhoods.”'

20 Jessica McBride, Telling it Straight, MILWAUKEE JOURNAL
SENTINEL, Mar. 22, 2001, at B1.

- Mary Cagney, Pastors Work with Police to End Gin Violence,

CHRISTIANITY TODAY, Sept. 4, 2000, at 34.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0451%3A11. Public record. Not legal advice.