Amicus Curiae Brief — United States v. Knights

IN THE

Supreme Court of the United States

UNITED STATES OF AMERICA,

Petitioner.

VS.

MARK JAMES KNIGHTS,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

KENT S. SCHEIDEGGER

CHARLES L. HOBSON

Counsel of Record

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@cjlf.org

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

QUESTION PRESENTED

Can a law enforcement officer conduct a warrantless search

supported by reasonable suspicion of a probationer’s apartment

when that probationer has consented to a probation condition

authorizing any law enforcement officer to search his person or

premises without a warrant or individualized suspicion?

(i)

———EeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEet———ttst—‘“‘s™OSOSOSC;™~™~™~™~™~—COCOOOO

TABLE OF CONTENTS

re 8

i ee eet eee ried eeeveees iV

ee ee eee ee seed déedeee |

Summary of facts and case... ...........- cece ee eeees 2

CO EEE 3

ee cee kebeceds caeoedcesceceseces 5

I

The threat to public safety from probationers creates a

special need for extending the authority to conduct

probation searches to police officers ................ 6

tence ee eecceseeeccococeses 7

ED vc cccevceccesccoovceees 10

C. Public safety as a special need ............... 13

II

The searching officer's motive for conducting the search

is irrelevant to its constitutionality ................. 17

iil

Allowing police officers to enforce the search condition

did not violate any reasonable expectation of privacy

eee os oe cas eueseseceesece 22

Teen ee eeeeecees 29

(iii)

4 me

TABLE OF AUTHORITIES

Cases

44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484,

134 L. Ed. 2d 711, 116 S. Ct. 1495 (1996) ....... 26, 27

Chaffin v. Stynchcombe, 412 U. S. 17, 36 L. Ed. 2d 714,

es ee SEE 3.0. ns pn bodecudnedeendoaucusd 25

Chandler v. Miller, 520 U. S. 305, 137 L. Ed. 2d 513.

og 8S | EE eee 16, 17

City of Indianapolis v. Edmond, 531 U. S. 32,

148 L. Ed. 2d 333, 121 S. Ct. 447 (2000) ..... 15, 16, 20

Escoe v. Zerbst, 295 U. S. 490, 79 L. Ed. 1566,

8 8 RS re ee 26

Florida v. Wells, 495 U. S. 1, 109 L. Ed. 2d 1,

0 FER 19

Gagnon v. Scarpelli, 411 U. S. 778, 36 L. Ed. 2d 656,

Sido oe Os ee 26

Griffin v. Wisconsin, 483 U. S. 868, 97 L. Ed. 2d 709,

gg RR etree re Passim

Harlow v. Fitzgerald, 457 U. S. 800, 73 L. Ed. 2d 396,

ry hs I ois oe a fee a es 21

Horton v. California, 496 U. S. 128, 110 L. Ed. 2d 112,

kB RP ee 19

Hudson v. Palmer, 468 U. S. 517, 82 L. Ed. 2d 393,

a PED gn ncuceeeuseebdesseesnsece 26

Katz v. United States, 389 U. S. 347, 19 L. Ed. 2d 576,

eT « cobuuucesuuessteseteabeuets 23

Kyllo v. United States, 533 U.S. __

(No. 99-8506, Fume 11, 2001)... 2. cece ccc c ec ceces 22

Maryland v. Macon, 472 U. S. 463, 86 L. Ed. 2d 370,

ED a decvadocbnsteceseceses 18, 19

McGautha v. California, 402 U. S. 183, 28 L. Ed. 2d 711,

ee EE ovediuccucusteneunedeceua 25, 26

Michigan Dept. of State Police v. Sitz, 496 U. S. 444,

110 L. Ed. 2d 412, 110 S. Ct. 2481 (1990) .......... 15

Treasury Employees v. Von Raab, 489 U. S. 656,

103 L. Ed. 2d 685, 109 S. Ct. 1384 (1989) ....... 16, 17

New York v. Burger, 482 U. S. 691, 96 L. Ed. 2d 601,

A oe eee ie cei eens 19

Newton v. Rumery, 480 U. S. 386, 94 L. Ed. 2d 405,

es SE ddccevdegeeebedhakeueedkenst 25

People v. Bravo, 43 Cal. 3d 600, 238 Cal. Rptr. 282, 738

ED wdnceavctisecessesedaenses 13, 24, 27

People v. Carbajal, 10 Cal. 4th 1114, 43 Cal. Rptr. 2d 681,

DGD ccvceostunsacseveneeetieosooes 6

People v. Chandler, 203 Cal. App. 3d 782, 250 Cal. Rptr. 730

Dt ¢ectadadneetedenectéacucstuaecenestoess 10

People v. Rodriguez, 51 Cal. 3d 437, 272 Cal. Rptr. 613,

PRED c<ccgeeseusnvcéudeeeseucanes 26

People v. Woods, 21 Cal. 4th 668, 88 Cal. Rptr. 2d 88, 981

i caceccéenpeuaedanéenecnedeey 22

Posadas de Puerto Rico Associates v. Tourism Co. of P. R.,

478 U. S. 328, 92 L. Ed. 2d 266,

i cn 7 coceagedeedeeunseseeeees 27

Schneckloth v. Bustamonte, 412 U. S. 218,

36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973) ............ 23

vi

Scott v. United States, 436 U. S. 128, 56 L. Ed. 2d 168,

es eh POPE nn. bdeedtdasesscuedcacedinss 20

Skinner v. Railway Labor Executives’ Assn.

489 U.S. 602, 103 L. Ed. 2d 639,

IGP S. Ce. 14G2 (ISHED) 2. wc cccccccccces 13, 14, 22, 24

South Dakota v. Neville, 459 U. S. 553, 74 L. Ed. 2d 748,

as ED oc cnccbeuscuchesadolaeseen 25

State v. Benton, 695 N. E. 2d 757 (Ohio 1998) ......... 12

Texas v. Brown, 460 U. S. 730, 75 L. Ed. 2d 502,

Sa Gh GE da vduueeuadeadcdsébuenseans 23

United States v. Dunnigan, 507 U. S. 87,

122 L. Ed. 2d 445, 113 S. Ct. 1111 (1993) .......... 25

United States v. Edwards, 498 F. 2d 496 (CA2 1974).... 16

United States v. Kaczynski, 239 F. 3d 1108

hs ccodesakeeennesecdedesssbausaeael 25

United States v. Knights, 219 F. 3d 1138

SE cacdunddcbddnbaanecunuekeaamaie Passim

United States v. Leon, 468 U. S. 897, 82 L. Ed. 2d 677,

a Gh DEED cccnnccsecctcseuasdnceneoue 21

Vernonia Sch. Dist. 47J v. Acton, 515 U. S. 646,

132 L. Ed. 2d 564, 115 S. Ct. 2386 (1995) .... 23,24, 28

Whren v. United States, 517 U. S. 806, 135 L. Ed. 2d 89,

Ses: Gib, PE os cusndnstniddbakeneunieent 19

Zap v. United States, 328 U. S. 624, 90 L. Ed. 1477,

Gey GR, Bry GE oc cweccsdeundecantedsecneeas 23

United States Constitution

ee oe -

vii

United States Statutes

ED nins odecdccuesnuheleunendeines sks 3

PD cvpcdcucecudéubseseenensneuseces 3

ee IED co cccccncoesctsseveseucgues 6

i Cs cccecdcactéudeleeeercuseeeens 6

er rn so? cidecvancunkdekedanse oaud 10

ET «ob 66 Geenddedeveedadeaseotenss 3

State Statute

ee to eS coe ede eteunees 6

Treatise

4 W. LaFave, Search and Seizure (3d ed. 1996) ..... 21, 24

Miscellaneous

Amsterdam, Perspectives on the Fourth Amendment,

SE, CE, oc ccscedeevectasesece 22

Benedict & Huff-Corzine, Return to the Scene of the

Punishment: Recidivism of Adult Male Property

Offenders on Felony Probation, 1986-1989,

34 Journal of Research in Crime and Delinquency

EEE 9. bb G60 e6be4d bebe ss abs sncceectes 7,8

Kim, An Econometric Study on the Deterrent Impact of

Probation, 18 Evaluation Rev. 389 (1994) ........... 10

Langan, Between Prison and Probation: Intermediate

Sanctions, 264 Science 791 (May 6, 1994) ........... 7

Viii

Mackenzie et al., The Impact of Probation on the Criminal

Activities of Offenders, 36 Journal of Research in

Crime and Delinquency 423 (1999) ............. 7, 8,9

M. Nieto, Probation for Adult and Juvenile Offenders:

Options for Improved Accountability

(Cal. Research Bureau 1998) ........... aseducewas 28

Petersilia, Probation in the United States: Practices and

Challenges, National Institute of Justice Journal 2

DE CED cupdeedbcesneusenedenctesetensce 7,11

Petersilia, When Probation Becomes More Dreaded Than

Prison, 54 Fed. Probation 23 (Mar. 1990) ........... 25

Petersilia & Turner, Prison Versus Probation in

California: Implications for Crime and Offender

Recidivism, in Community Corrections: Probation,

Parole, and Intermediate Sanctions 61

I, EE vctdbeddeduseesenceeseusé 10, 11

Rackmill, Community Corrections and the Fourth

Amendment, 57 Federal Probation 40

Pn, SEED nvecdbseeceensabedeceioues 11, 12,21, 24

U. S. Dept. of Justice, Bureau of Justice Statistics,

Sourcebook of Criminal Justice Statistics 1987

DE s¢eesnavees meendweseddswseensdieseses 8,9

U. S. Dept. of Justice, Bureau of Justice Statistics, Probation

and Parole Violators in State Prison 1991 (1995) ...... )

IN THE

Supreme Court of the United States

UNITED STATES OF AMERICA,

Petitioner,

VS.

MARK JAMES KNIGHTS,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in

litigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the due process protection

of the accused into balance with the rights of the victim and of

society to rapid, efficient, and reliable determination of guilt

and swift execution of punishment.

Probation is an important but risky part of the criminal

justice system. While society can reap significant economic

and rehabilitative gains from probation, allowing convicted

criminals to serve their sentence in society instead of prison

—_—

.

This brief was written entirely by counsel for amicus, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

threatens public safety. Probation search conditions play an

important role in limiting probation’s danger to society by

deterring probationers from committing crimes. The Ninth

Circuit's refusal to allow police to conduct such searches

threatens the integrity of this key component of many probation

systems, contrary to the rights of victims and society which

CJLF was formed to advance.

SUMMARY OF FACTS AND CASE

Between 1996 and 1998 the facilities of the Pacific Gas and

Electric Company (PG & E) in Napa County were vandalized

over 30 times. United States v. Knights, 219 F. 3d 1138, 1140

(CA9 2000). Suspicion centered on Mark James Knights and

his friend Steven Simoneau. The vandalism began after

Knights’ electrical service was discontinued, and the incidents

coincided with his court appearances over his theft of power

from PG&E. Jbid.

The sheriff's department set up surveillance of Knights’

apartment on June 3, 1998. About 3:10 a.m., Simoneau was

observed leaving the apartment, carrying what appeared to be

three pipe bombs. He then crossed the street to the Napa River,

where he deposited these objects. See ibid. As Simoneau left

in his truck, Detective Todd Hancock of the Napa County

Sheriff's Department followed him until he stopped in a

driveway. /bid. At this point, Hancock was able to examine

the truck out of Simoneau’s presence. In and around the truck,

Detective Hancock found a Molotov cocktail, explosive

materials, a gasoline can, and two brass padlocks, which fit the

description of the locks removed from the vault of a transformer

that was recently vandalized. /bid. “The truck was seized,

impounded, and later searched pursuart to a warrant.” /bid.

Detective Hancock knew that Knights was on probation for

a misdemeanor drug offense and that one condition of the

probation was to“[s]ubmit his . . . person, property, place of

residence, vehicle, personal effects, to search at any time, with

or without a search warrant, warrant of arrest or reasonable

cause by any probation officer or law enforcement officer.” /d.,

at 1140-1141. After securing permission from his supervisor,

Detective Hancock conducted a warrantless search of Knights’

apartment. The search “turned up detonation cord, ammunition,

unidentified liquid chemicals, instruction manuals on chemistry

and electrical circuitry, Lolt cutters, telephone pole-climbing

spurs, drug paraphernalia, photographs and blueprints stolen

from the burglarized building, and a brass padlock stamped

PG & E.” /d., at 1141.

Knights was indicted in federal court “for conspiracy to

commit arson, for possession of an unregistered destructive

device, and for being a felon in possession of ammunition.”

Ibid. See 18 U.S. C. §§ 371, 922(g); 26 U. S. C. § 5861(g).

The District Court suppressed the evidence seized from

Knights’ apartment, holding that the “probation search was

really a subterfuge for an investigative search ....” Knights,

219 F. 3d, at 1141. The Ninth Circuit upheld the District

Court’s holding. See id., at 1145. Certiorari was granted on

May 14, 2001.

SUMMARY OF ARGUMENT

Public safety is the Achilles’ heel of any probation system.

While society can reap substantial benefits from this less costly

and more rehabilitative alternative to prison, having convicted

criminals serve their sentence in society gambles with public

safety. A probation system that cannot protect the public will

lose support.

The threat to public safety from felony and drug using

probationers is alLtoo real. Studies of felony probationers show

a recidivism rate that is between six to nineteen times the arrest

rate for the general population. As of 1991, 23% of all state

prisoners were probation violators, and 87% of the probation

violators had been arrested for a new offense. Probationers

were thus responsible for at least six thousand murders and tens

of thousands of other serious felonies.

Allowing police to conduct probation searches can help deal

with this problem. Having more officers available for searching

supplements the resources of habitually understaffed probation

departments. Police are also better trained and more experi-

enced at conducting searches than probation officers. This will

make probation searches both more likely and more effective,

which further deters probationer crime. In addition to protect-

ing the public, this will also aid in the probationer’s rehabilita-

tion.

The threat to public safety posed by probation creates a

special need for extending the authority to conduct probation

searches to police officers. Certain threats to public safety

create special needs for dispensing with the Fourth Amend-

ment’s warrant and probable cause requirements. The fact that

the particular public safety interest is related to crime preven-

tion does not disqualify it from special needs status, as is

demonstrated by airport checkpoints.

The search in this case compares favorably to airport

checkpoints. Both searches involve consent, while there has

been far more probationer crime than airplane terrorism. Most

airplane passengers are law-abiding citizens, while all! pro-

bationers are convicted criminals, hence the search in this case

stands on at least as good of a footing as these airport searches.

The Ninth Circuit improperly examined the motive of the

searching officer in this case. Although it framed the issue in

terms of the probationers’ consent, striking down a search based

ona searching officer’s investigatory purpose is an inquiry into

his motive. Whether a particular type of search serves a special

need is fair game; the motive of the officer conducting the

search is not. Since the public safety special need was valid,

the fact that the searching officer was not concerned with the

probationer’s rehabilitation is irrelevant. Any other result

—

would be impractical, as ascertaining subjective intent is not

worth the effort in Fourth Amendment cases.

Allowing police officers to enforce the search condition

does not violate the defendant’s reasonable expectation of

privacy. Unlike the probationer in Griffin v. Wisconsin, 483

U.S. 868 (1987), Knights consented to his search condition. At

the very least, this substantially reduces his already limited

expectation of privacy. The fact that prison is the alternative to

probation does not eliminate the consent. A difficult choice is

still a choice. What matters is not the harshness of the prison

sentence, but the comparative lenience of the probation

alternative offered by the state.

There is no right to probation. If the state can deprive a

defendant of all Fourth Amendment rights through a prison

sentence, then the much lesser Fourth Amendment deprivation

found in this case must also be reasonable. Balancing the

defendant’s minimal privacy interests against society’s consid-

erable interest in protecting the public from probationers

justifies the search in this case.

ARGUMENT

The Ninth Circuit’s decision in this case paints the proba-

tion search of Knights’ apartment as part of modern society’s

“relentless assault” on privacy. See United States v. Knights,

219 F. 3d 1138, 1144(CA9 2000). It condemns this search and

the California Supreme Court’s decisions upholding such

searches in unusually strong language:

“In making this decision we need not rely on some resident

numen or wait for Fulgora to light our way. We can,

instead, rely upon the wisdom of the ages and upon the

sagacity of the numerous Ninth Circuit judges who have

written before us. If we do not heed all of that history and

learning, who will?” /d., at 1145.

Reality is much more prosaic. The probation search in this

case is at most a minor extension of Griffin v. Wisconsin, 483

U. S. 868 (1987). Since the probationer in this case consented

to the search condition, the search here intrudes less upon a

probationer’s privacy than the unconsented condition upheld in

Griffin. As the danger to public safety posed by probationers

like the defendant creates a special need, a warrantless search

by a police officer pursuant to a valid probation condition is

reasonable without regard to the search’s alleged investigatory

purpose.

I. The threat to public safety from probationers

creates a special need for extending the authority

to conduct probation searches to police officers.

The Ninth Circuit dismissed Detective Hancock’s search of

Knights’ apartment because it was not “conducted for probation

purposes” but rather “as a mere subterfuge for the pursuit of [a]

criminal investigation| ].” United States v. Knights, 219 F. 3d

1138, 1145 (CA9 2000). This holding rests on two mistaken

premises. One premise, that a court may examine the individ-

ual motivation of an officer conducting a special needs search,

is addressed in part II. The other mistake is separating public

safety from probation’s purpose. Maintaining public safety is

an essential part of any probation system. See, e.g., Griffin v.

Wisconsin, 483 U. S. 868, 875 (1987); 18 U.S. C. §§ 3562(a),

3553(a)(2)(C); People v. Carbajal, 10 Cal. 4th 1114, 1120, 899

P. 2d 67, 70 (1995); Cal. Penal Code § 1202.7. While Griffin

relied on both public safety and rehabilitation to support a

special needs finding, see 483 U. S., at 875, the special threats

to public safety posed by probationers is sufficient on its own

to justify warrantless searches by police officers under certain

circumstances.

Those circumstances were met in this case. Knights, a drug

offender with a prior felony conviction, consented to a valid

search condition. See supra, at 2. As in Griffin, the search in

oe

this case was supported by reasonable suspicion. See supra, at

2. The only difference between this search and the one in

Griffin that could favor the defendant’s case is that the search

was conducted by a police officer rather than a probation

officer. Since protecting public safety from probationers is a

special need itself, that distinction has no constitutional

significance.

A. The Threat.

Probation systems must place public safety before any other

interest. While society may benefit from employing the

cheaper and potentially more rehabilitative probation instead of

prison, probation gambles with public safety. Anyone who is

eligible for probation has already demonstrated an unwilling-

ness to conform to the law. See Griffin, 483 U. S., at 880.

Probationers are thus a far greater threat to commit crime than

the law-abiding citizens with whom they share freedom. If

probation cannot protect the public, public support for it will

erode. See Petersilia, Probation in the United States: Practices

and Challenges, National Institute of Justice Journal 2, 2 (Sept.

1997) (cited below as “Probation in the United States”).

Unfortunately, the threat to safety is all too real. While

probation has not been researched as extensively as it should

be, see Mackenzie et al., The Impact of Probation on the

Criminal Activities of Offenders, 36 Journal of Research in

Crime and Delinquency 423, 424 (1999), studies of probationer

recidivism still show that probationers are responsible for a

disturbingly large proportion of crimes.

These studies center on felony probationers. Typically,

recidivism is calculated by counting the number of these

probationers who have been arrested for a felony during the

first three years of probation. See Benedict & Huff-Corzine,

Return to the Scene of the Punishment: Recidivism of Adult

Male Property Offenders on Felony Probation, 1986-1989, 34

Journal of Research in Crime and Delinquency 237, 238-239

(1997); Langan, Between Prison and Probation: Intermediate

Sanctions, 264 Science 791, 792 (May 6, 1994). Estimates of

the recidivism rates for felony probationers range from 22% to

65%. See Benedict & Huff-Corzine, supra, at 238-239.

Although the defendant in this case was on probation for a

misdemeanor drug offense, see supra, at 2, all drug offenders

run a substantial risk of recidivism. Indeed, drug use is the best

predictor of whether someone will reoffend while on probation.

See Mackenzie, supra, 36 Journal of Research in Crime and

Delinquency, at 439 (Table); Benedict & Huff-Corzine, supra,

at 245-246. Knights, who also had a prior felony conviction,

see supra, at 7, was thus a clear risk to reoffend, as Detective

Hancock’s investigation confirmed.

Even at the lowest recidivism rate, probationers are much

more dangerous to the community than the average citizen, If

22% of the general population were arrested for a felony over

a three-year period, this country would be a prison camp.

Arrest figures reinforce this common sense conclusion. Since

several of the recidivism studies took place in the mid-1980’s,

see Benedict & Huff-Corzine, supra, at 238-239, amicus will

use the 1986 arrest figures for the general population as a

comparison figure. In 1986 the arrest rate for Federal Bureau

of Investigation (FBI) “index” crimes (the combined arrest rates

for 5 violent crimes and 4 property crimes) was 1,091.8 per

100,000 or 1.0918%. U.S. Dept. of Justice, Bureau of Justice

Statistics, Sourcebook of Criminal Justice Statistics 1987, p.

368 (1988). Assuming that no person is arrested for more than

one index crime during any three-year period at the 1998 rates,

the lowest estimated recidivism rate for probationers, 22%,

would still be more than six times this hypothetical arrest rate

for the general population, while the high rate of 65% recidi-

vism is Over nineteen times this arrest rate.

The FBI index is not an ideal for comparison, however, as

it both includes nonfelonies and excludes felonies from its total.

Thus the larcenies counted in the index include many misde-

meanor larcenies such as shoplifting. See id., at 563. Simi-

larly, the crime index does not count felonies that do not fall

into the property or violence classifications, primarily drug and

weapons offenses. See id., at 368, 563. Since the drug and

weapons arrest totals also do not distinguish between misde-

meanors and felonies, adding drug and weapons offenses to the

index crimes would create an excessively conservative figure,

but one that is still far below the recidivism rate for felony

probationers. The 1982 arrest rate per 100,000 population for

drug offenses was 348.6 or 0.3486%, id., at 368, and 80.7 per

100,000 or 0.087% for weapons offenses. /bid. When added

to the index rate of 1.0918%, this would give an annual arrest

rate of 1.5274%. Over a three-year period the maximum arrest

rate under this most conservative reasonable estimate would be

4.5822%, which is still less than one quarter of the lowest

estimated recidivism rate for probationers, and one-fourteenth

of the high rate.

The actual difference is undoubtedly much greater. First,

each arrest in the FBI tota! does not involve a different person;

some people will be arrested for more than one index crime

during a year or over a three-year span. See id., at 338, note.

More importantly, the arrest rate for nonprobationers is actually

lower than the total crime index because that index includes the

arrests of probationers, who have a much higher arrest rate than

the civilian population.

Probation’s threat to public safety is underscored by the

high proportion of state prisoners who were on probation at the

time of their offense. As of 1991, 23% of all state prisoners

were probation violators, see U. S. Dept. of Justice, Bureau of

Justice Statistics, Probation and Parole Violators in State

Prison, 1991, p. 3 (1995), and 87% of these probation violators

had been arrested for a new offense. See ibid. “Based on the

offense that brought them to prison, [in 1991] the 162,000

probation violators committed 6,400 murders, 7,400 rapes,

10,400 assaults, and 17,000 robberies, while under supervision

in the community an average of 18 months.” /d., at |. Because

many crimes go unreported, see Mackenzie, supra, 36 Journal

of Research in Crime and Delinquency, at 427, or unsolved,

10

these arrest figures understate the costs of probation. A ratio of

10 crimes committed to every arrest is considered “a conserva-

tive figure,” Petersilia & Turner, Prison Versus Probation in

California: Implications for Crime and Offender Recidivism,

in Community Corrections: Probation, Parole, and Intermediate

Sanctions 61, 65 (Petersilia ed. 1998). Therefore, the real cost

of probation is much higher than the arrest records estimate.

This empirical evidence reinforces the common-sense

conclusion that placing convicted criminals in society rather

than prison is dangerous enough with adequate supervision, and

intolerably dangerous without it. While not every probationer

is equally dangerous, this defendant, with a prior felony and

current drug conviction, posed a real risk of reoffending. This

risk forms the basis of a special need that justifies the search in

this case.

B. Policing the Bargain.

In California, as elsewhere, probation is “in effect, a bargain

made by the People through the Legislature and the courts, with

the convicted individual, whereby the latter is in essence told

that if he complies with the requirements of probation, he may

become reinstated as a law-abiding member of society.” People

v. Chandler, 203 Cal. App. 3d 782, 788, 250 Cal. Rptr. 730,

733 (1988). Both sides can benefit from the bargain. The

defendant avoids prison and may have a better chance at

rehabilitation, see Kim, An Econometric Study on the Deterrent

Impact of Probation, 18 Evaluation Rev. 389, 390-391 (1994),

while the state gets a less expensive alternative to prison, at

least in direct costs. See Petersilia & Turner, supra, at 65.

A probationer who commits a crime breaks the bargain.

See, e.g, 18 U. S. C. §3563(a)(1) (not committing crime a

mandatory probation condition). Crime is a cost not found in

most economic comparisons between probation and prison.

While probation is not simply an economic issue, understanding

its cost helps to determine whether society is getting the benefit

of its bargain with probationers. This hidden cost of proba-

a

11

tioner crime makes it likely “that felony probation sentences are

more expensive than is commonly assumed, both absolutely

and relative to imprisonment... .” Petersilia & Turner, supra,

at 65.

Search conditions can help to control the crime expense.

They are “meant to assure that the probation serves as a period

of genuine rehabilitation and that the community is not harmed

by the probationers being at large.” Griffin, 483 U. S., at 875.

By dispensing with warrants, search conditions help the

authorities respond more “quickly to evidence of misconduct,”

id., at 876, and more importantly, help deter probationers from

committing crimes. See ibid. Too many restrictions on the

probation officer’s ability to search the probationer “would

reduce the deterrent effect of the supervisory arrangement. The

probationer would be assured that so long as his illegal (and

perhaps socially dangerous) activities were sufficiently con-

cealed as to give rise to no more than reasonable suspicion, they

would go undetected and uncorrected.” /d., at 875 (discussing

probable cause requirement).

Allowing police to rely on search conditions can play an

important role in minimizing probation’s costs to society.

Probation officers are not necessarily the ideal agents for

deterring their clients through searches. The resources of

probation departments are even more overstretched than other

law enforcement agencies, with most probation officers

carrying far larger caseloads than the ideal. See Probation in

the United States, supra, at 3 (caseload of 258 per officer versus

ideal of 30). Many probation officers are not well-equipped to

conduct searches safely and efficiently. “Probation officers

currently lack protective equipment. They have only minimal

self-defense training, may not be armed, and are ill-equipped to

conduct searches, as they possess little understanding of chain

of custody procedures.” Rackmill, Community Corrections and

the Fourth Amendment, 57 Fed. Probation 40, 44 (Sept. 1993).

Unsurprisingly, one survey of probation officers found them

12

very uncomfortable with the idea of searching their clients. See

ibid.

Police can fill in these gaps. Their training makes them

safer and more efficient at conducting searches. A probationer

is less likely to be deterred by a search condition that can only

be executed by an overworked probation officer. If this

authority is supplemented by the more numerous and better

trained police officers, then probationers are more likely to be

searched, and therefore more deterred from committing crimes.

“Being on parole with a consent-to-search condition is

akin to sitting under the Sword of Damocles: With knowl-

edge he may be subject to a search by law enforcement

officers at any time, [the parolee] will be less inclined to

have narcotics or dangerous drugs in his possession. The

purpose of an unexpected, unproved search of defendant is

to ascertain whether he is complying with the terms of

probation; to determine not only whether he disobeys the

law, but also whether he obeys the law. Information

obtained under such circumstances would afford a valuable

measure of the effectiveness of the supervision given the

defendant and his amenability to rehabilitation.” State v.

Benton, 695 N. E. 2d 757, 761 (Ohio 1998) (emphasis in

original; internal quotation marks omitted).

While police officers may not share the probation officer’s

interest in rehabilitation, cf. Griffin, supra, 483 U. S., at 876,

this does not invalidate a search based upon the public safety

special interest found in this case. The danger posed by

probationer crime creates a special need separate from the

rehabilitation aspect of Griffin. See part 1 C, supra. In any

event, the deterrence and observation advanced by police

searches would also help rehabilitate the probationer. Deterring

crime can only help the rehabilitation process, as a probationer

who commits crime is not rehabilitated.

If society cannot place an effective search condition upon

probationers, then “the opportunity to choose probation might

13

well be denied to many felons by judges whose willingness to

offer the defendant probation in lieu of prison is predicated

upon knowledge that the defendant will be subject to search at

any time for a proper probation or law enforcement purpose.”

People v. Bravo, 43 Cal. 3d 600, 609, 738 P. 2d 336, 341

(1987). Both probationers and society should be allowed to

continue getting the benefit of the type of bargain found in this

case.

C. Public Safety as a Special Need

While allowing police to rely on probation search condi-

tions certainly promotes public safety, see part I B, supra, the

question remains as to whether this interest qualifies as a

special need under the Fourth Amendment. The special needs

that allow law enforcement to dispense with the warrant and

lower the necessary suspicion must go beyond society’s general

interest in law enforcement. See, e.g., Skinner v. Railway

Labor Executives’ Assn., 489 U. S. 602, 619 (1989) (quoting

Griffin, 483 U.S., at 873). Society’s interest in protecting itself

from the substantial dangers posed by higher risk probationers,

like the defendant, satisfies this standard.

The legitimacy of this interest is found in Griffin itself. The

Griffin Court noted that probation was like incarceration, a

form of punishment for convicted criminals. See 483 U. S., at

874. Therefore probationers, like prisoners, “do not enjoy ‘the

absolute liberty to which every citizen is entitled, but only . . .

conditional liberty properly dependent on observance of special

[probation] restrictions.’ ” /bid. (quoting Morrissey v. Brewer,

408 U. S. 471, 480 (1972)). The special needs in Griffin were

the reasons for the limits on the probationer’s liberty, making

sure that “probation serves as a period of genuine rehabilitation

and that the community is not harmed by the probationer’s

being at large.” /d., at 875.

Public safety can qualify as a special need without being

attached to rehabilitating probationers. In other contexts, a

sufficient threat to public safety supports special needs search-

14

es. Thus, drug testing of railway employees involved in certain

train accidents was reasonable.

“The Government’s interest in regulating the conduct of

railroad employees to ensure safety, like its supervision of

probationers or regulated industries, or its operation of a

government office, schoo!, or prison, ‘likewise presents

“special needs” beyond normal law enforcement that may

justify departures from the usual warrant and probable-

cause requirements.’ ” Skinner, 489 U. S., at 620 (quoting

Griffin, 483 U. S., at 873-874).

Since the employees covered by the relevant regulations were

“engaged in safety-sensitive tasks,” 489 U. S., at 620, the threat

to public safety of drug or alcohol impaired railroad employees

created a special need for the drug testing requirement.

“This governmental interest in ensuring the safety of the

traveling public and of the employees themselves plainly

justifies prohibiting covered employees from using alcohol

or drugs on duty, or while subject to being called for duty.

This interest also ‘require[s] and justiflies] the exercise of

supervision to assure that the restrictions are in fact

observed.’ ” Skinner, 489 U. S., at 621 (quoting Griffin,

supra, 483 U. S., at 875).

The public safety interest in Skinner was fairly removed

from law enforcement interests. Train accidents are not

necessarily criminal acts, even if intoxication is involved, and

this Court left undecided whether the routine use of the tee*s

results in criminal cases would unconstitutionally subvert “the

administrative nature of the FRA’s program.” 489 U. S., at

621, n. 5. But Skinner does not set the boundary of the public

safety interest. Special public safety concerns that are much

more congruent with law enforcement needs still qualify as

special needs.

Griffin is one example. The proceeds of a search substan-

tially justified by public safety were used in a criminal prosecu-

tion against the subject of the special needs search. See Griffin,

15

483 U. S., at 870. Indeed, the search condition was justified in

part by the fact that sudden searches would deter probationers

from committing crimes. See id., at 876. Similarly, drunk

driving roadblocks were upheld by this Court even though those

who failed the sobriety tests would be arrested. See Michigan

Dept. of State Police v. Sitz, 496 U. 8. 444, 447 (1990).

Although the Sitz opinion did not clearly classify itself as a

special needs case, subsequent analysis shows that its public

safety rationale is closely allied to law enforcement interests.

“This checkpoint program [in Sitz] was clearly aimed at

reducing the immediate hazard posed by the presence of

drunk drivers on the highways, and there was an obvious

connection between the imperative of highway safety and

the law enforcement practice at issue. The gravity of the

drunk driving problem and the magnitude of the State’s

interest in getting drunk drivers cff the road weighed

heavily in our determination that the program was consti-

tutional.” City of Indianapolis v. Edmond, 531 U. S. 32,

148 L. Ed. 2d 333, 342, 121 S. Ct. 447, 453 (2000).

The roadblock in Edmond was struck down because its

purpose, narcotics interdiction, was just part of a general

interest in crime control. See id., 148 L. Ed. 2d, at 344, 121

S. Ct., at 454. While narcotics are undoubtedly dangerous, it is

a generalized danger with no particular ties to automobiles.

“Only with respect to a smaller class of offenses, however, is

society confronted with the type of immediate vehicle-bound

threat to life and limb that the sobriety checkpoint in Sitz was

designed to eliminate.” /d., 148 L. Ed. 2d, at 344, 121 S. Ct.,

at 455 (emphasis added).

The present case is more closely analogous to Sitz than

Edmond. The search condition is limited to probationers, a

group who presents a significant, special threat to public safety.

See part I A, supra. There was no logical limit to the roadblock

in Edmond; if it was upheld, “the Fourth Amendment would do

little to prevent such intrusions from becoming a routine part of

16

American life.” /d., 148 L. Ed. 2d, at 344, 121 S. Ct., at 454.

The logic of probation searches is much more limited, extend-

ing no further than parolees. The limited, special need in this

case is not diminished by Edmond.

An interest is not disqualified from being special if it is

related to crime prevention. If there is something about a

particular situation or relationship that makes it unusually

dangerous to public safety, then a special needs search may be

justified. “[WJhere the risk to public safety is substantial and

real, blanket suspicionless searches calibrated to the risk may

rank as ‘reasonable’—for example, searches now routine at

airports, and at entrances to courts and other buildings.”

Chandler v. Miller, 520 U. S. 305, 323 (1997).

This is illustrated by the purest public safety special needs

search, airport checkpoints. Millions of innocent individuals

are subjected to electronic intrusions upon “their persons . . .

and effects,” cf. U. S. Const., Amdt. 4, simply because the

threat to public safety from terrorism in airplanes made any

other response unreasonable.

“ ‘When the risk is the jeopardy to hundreds of human lives

and millions of dollars of property inherent in the pirating

or blowing up of a large airplane, the danger alone meets

the test of reasonableness, so long as the search is con-

ducted in good faith for the purpose of preventing hijacking

or like damage and with reasonable scope and the passenger

has been given advance notice of his liability to such a

search so that he can avoid it by choosing not to travel by

air.” United States v. Edwards, 498 F.2d 496, 500 (CA2

1974) (emphasis added by Edwards Court) (quoting United

States v. Bell, 464 F. 2d 667, 675 (CA2 1972) (Friendly, J.,

concurring)) (Friendly, J.); accord, Treasury Employees v.

Von Raab, 489 U. S. 656, 675, n. 3 (1989).

The public safety probation search in this case compares

favorably to the airport searches. Like the airport searches, the

probation search condition is consensual. See infra, at 23-26.

17

Probation also presents an unusual danger to public safety,

releasing into society an individual who “is more likely than the

ordinary citizen to violate the law.” Griffin, 483 U. S., at 880.

It is a danger that is all too real in comparison to airline

terrorism.

While the airline searches have helped to ensure that there

have been comparatively few incidents of air piracy, see Von

Raab, 489 U. S., at 675-676, n. 3, probation-related crime

remains a significant blight upon society. The 6,000 or so

killed by probationers each year, see supra, at 9, easily exceeds

all deaths by airline piracy in or against this country. When the

hundreds of thousands of other felonies committed by proba-

tioners are taken into account, see supra, at 9, the threat posed

by probationers is at least equal to the threats that have justified

billions of searches of innocent travelers at this country’s

airports. See ibid. It is “a concrete danger demanding depar-

ture from the Fourth Amendment’s main rule.” Cf. Chandler,

520 U. S., at 319.

The search condition in this case invaded no innocent

privacy. Knights, an ex-felon with a drug conviction, consented

to the search condition, including the provision that he could be

searched by any law enforcement officer. See supra, at 2.

Given the considerable danger posed by Knights and his ilk,

California had a special need to allow Detective Hancock to

rely on this probation condition.

II. The searching officer’s motive for conducting the

search is irrelevant to its constitutionality.

In addition to ignoring the public safety special need, the

Ninth Circuit’s decision also improperly relied on Detective

Hancock’s alleged motivation for searching Knights’ apart-

ment. The Ninth Circuit asserts that its decision is not based

upon the motivation behind the search, but “rather, whether,

without another basis for a warrantless home search, there was

18

consent to search in the first place.” United States v. Knights,

219 F. 3d 1138, 1143 (CA9 2000). This distinction cannot

carry the analytical load that the circuit court gives it. Knights

did in fact consent to warrantless, suspicionless searches of his

“place of residence . . . by any probation officer or law enforce-

ment officer.” /d., at 1141. The Ninth Circuit limited the scope

of Knights’ consent, holding that “we have made it clear that

his consent must be seen as limited to probation searches, and

must stop short of investigative searches. We simply have

refused to recognize the viability of a more expansive proba-

tionary consent to search term.” /d., at 1142. This is no more

than an inquiry into the motive of the searching officer.

The manner in which the court found the improper investi-

gatory purpose shows that this looks into the searching officer’s

state of mind:

“Detective Hancock, and his cohorts, were not a bit inter-

ested in Knights’ rehabilitation. They were interested in

investigating and ending the string of crimes of which

Knights was thought to be the perpetrator... . True, a

probation officer may also wish to end wrongdoing by a

probationer, but there was no ‘also’ about Detective

Hancock’s purpose.” /d., at 1143 (emphasis added).

Quoting another Ninth Circuit opinion, the court reiterated,

“ ‘Because the search here clearly was not a genuine attempt to

enforce probation but apparently had a motive of avoidance of

Fourth Amendment requirements, it is the type of law enforce-

ment conduct that ought to be deterred.’ ” /d., at 1142 (empha-

sis added) (quoting United States v. Merchant, 760 F. 2d 963,

969 (CA9 1985)).

Motive has little place in Fourth Amendment analysis. This

Court has repeatedly declined to invalidate an objectively legal

search on the basis of the searching officer’s allegedly improper

motivations. In Maryland v. Macon, 472 U. S. 463 (1985), an

undercover officer purchased two obscene magazines from an

adult bookstore with marked money to facilitate an arrest and

19

prosecution for selling obscene materials. See id., at 465-466.

The fact that the officer intended to recover the marked money

did not transform the purchase into a warrantless search.

“Objectively viewed, the transaction was a sale in the ordinary

course of business. The sale is not retrospectively transformed

into a warrantless seizure by virtue of the officer’s subjective

intent to retrieve the purchase money to use as evidence.” /d.,

at 471.

As this Court emphasized in a plain view doctrine case,

“evenhanded law enforcement is best achieved by the

application of objective standards of conduct, rather than

standards that depend upon the subjective state of mind of

the officer. The fact that an officer is interested in an item

of evidence and fully expects to find it in the course of a

search should not invalidate its seizure if the search is

confined in area and duration by the terms of the warrant or

valid exception to the warrant requirement.” Horton v.

California, 496 U.S. 128, 138 (1990).

Special needs searches present a more complex version of

the general rule. This Court has noted that “an inventory search

must not be a ruse for general rummaging in order to discover

evidence.” Florida v. Wells, 495 U.S. 1,4 (1990). Similarly,

in upholding a warrantless administrative inspection, this Court

observed that the search did not seem to be “a ‘pretext’ for

obtaining evidence of respondent’s violation of the penal laws.”

New York v. Burger, 482 U. S. 691, 716-717, n. 27 (1987).

These statements do not give courts license to second-guess

the motives of officers making special needs searches. Instead,

these “quoted statements simply explain that the exemption

from the need for probable cause (and warrant); which is

accorded to searches made for the purpose of inventory or

administrative regulation, is not accorded to searches that are

not made for those purposes.” Whren v. United States, 517

U. S. 806, 811 (1996) (emphasis in original). Therefore, “our

cases dealing with intrusion that occur pursuant to a general

20

scheme absent individualized suspicion have often required an

inquiry into purpose at the programmatic level.” City of

Indianapolis v. Edmond, 531 U.S. 32, 148 L. Ed. 2d 333, 346,

121 S. Ct. 447, 457 (2000).

In other words, the need behind a special needs search must

actually be special, and the search must advance those needs.

Since the primary purpose of the checkpoint at issue in Edmond

was interdicting narcotics, which is no more than a “ ‘general

interest in crime control,’ ” the checkpoint was invalid. See id.,

at 345, 121 S. Ct., at 455 (quoting Delaware v. Prouse, 440

U. S. 648, 659, n. 19 (1979)). Had the program instead been

supported by a special need like deterring drunk driving, or

policing the borders on checkpoints, it would have been upheld.

See id., at 344, 121 S. Ct., at 454-455.

This narrow exception does not allow courts to peer into the

minds of the officers executing a special needs search.

“Finally, we caution that the purpose inquiry is in this context

to be conducted only at the programmatic level and is not an

invitation to probe the minds of individual officers acting at the

scene.” /d., at 347, 121 S. Ct., at 457. So long as the “pro-

grammatic purpose,” or special need, is valid, then search

pursuant to that need is legal.

Allowing police officers to execute probation searches

advances the public safety special need brought about whenever

a felon, drug offender, or other high-risk individual is granted

probation. See part I, supra. The fact that “Detective Hancock,

and his cohorts, were not a bit interested in Knights’ rehabili-

tation,” Knights, 219 F. 3d, at 1143, has no bearing on the

legality of Detective Hancock’s search pursuant to a valid

probation condition. Since the search condition itself was valid,

the reasons for undertaking the search are irrelevant. “We have

since held that the fact that the officer does not have the state of

mind which is hypothecated by the reasons which provide the

legal justification for the officer’s actions does not invalidate

the action taken as long as the circumstances, viewed objec-

tively, justify that action.” Scott v. United States, 436 U. S.

Salita

21

128, 138 (1978). The fact that Detective Hancock was wearing

a sheriff's uniform does not allow a court to examine his

motivations, or attribute motives to him. Cf. Knights, 219

F. 3d, at 1143. (“True, a probation officer may also wish to end

wrongdoing by a probationer, but there was no ‘also’ about

Detective Hancock’s purpose”).

In addition to being contrary to precedent, this approach is

too difficult to apply. Even partisans of the pro-

bation/investigation distinction appreciate the difficulty in

finding an improper investigatory purpose. See 4 W. LaFave,

Search and Seizure §10.10(e), pp. 794-797 (3d ed. 1996).

“Moreover, the circumstances surrounding the search are not

likely to point inevitably toward one purpose as opposed to the

other.” /d., at 795. Where both police and probation officers

are involved in the search, cf. Griffin v. Wisconsin, 483 U. S.

868, 871 (1987) (police tip), courts would have to untangle the

different purposes of the different officers. See ibid. The

motive issue does not stop at searches involving the police.

Probation officers may also conduct searches motivated by

public safety concerns. One survey indicates that most searches

conducted by probation officers are motivated by public safety

concerns. See Rackmill, Community Corrections and the

Fourth Amendment, 57 Fed. Probation 40, 44 (Sept. 1993).

Logically, every probation search will require an inquiry into

the searching officer’s motive if the Ninth Circuit’s position is

upheld.

Inquiries into the subjective intent behind discretionary

actions like searches are often far ranging and difficult. Cf.

Harlow v. Fitzgerald, 457 U. S. 800, 816-817 (1982) (subjec-

tive good faith standard requires a too-complex inquiry for

qualified immunity cases). “[W]e believe that ‘sending state

and federal courts on an expedition into the minds of police

officers would produce a grave and fruitless misallocation of

judicial resources.’ ” United States v. Leon, 468 U.S. 897, 922,

n. 23 (1984) (quoting Massachusetts v. Painten, 389 U. S. 567,

22

565 (1968) (White, J., dissenting)). Attempts to prevent police

pretext are likely to backfire.

As one authority noted in the stop and frisk context, “surely

the catch is not worth the trouble of the hunt when courts set

out to bag the secret motivations of policemen .... A subjec-

tive purpose to do something that the applicable legal rules say

there is sufficient objective cause to do can be fabricated all too

easily and undetectably.” Amsterdam, Perspectives on the

Fourth Amendment, 58 Minn. L. Rev. 436, 436-437 (1974)

(footnotes omitted); accord, People v. Woods, 21 Cal. 4th 668,

681, 981 P. 2d 1019, 1028 (1999).

Neither the public nor the law is served well by complex,

arbitrarily subjective standards. “The people in their houses, as

well as the police, deserve more precision.” Kyllo v. United

States, 533 U.S. _ (No. 99-8508, June 11, 2001) (slip op., at

11-12). This requires a “line” that is “not only firm but also

bright.” /d. (slip op., at 12). Such a line would be formed by

arule that police officers can conduct searches pursuant to valid

probation conditions, without regard to any purported motive.

III. Allowing police officers to enforce

the search condition did not violate any reasonable

expectation of privacy of the defendant.

Following general Fourth Amendment practice, in special

needs cases this Court has “not hesitated to balance the govern-

mental and privacy interests to assess the practicality of the

warrant and probable-cause requirements in the particular

context.” Skinner v. Railway Labor Executives’ Assn., 489

U. S. 602, 619 (1989). That is, do the special needs justify the

search? See Griffin v. Wisconsin, 483 U. S. 868, 875 (1987).

In Griffin, this involved justifying a regulatory system that

applied a search condition to every grant of probation. See id.,

at 870-871. That inquiry took place in the context of the

probationer’s very limited privacy interests. .See id., at 874.

This Court then concluded that both the warrant and probable

23

cause requirements would needlessly interfere with the special

needs of the probation system. See id., at 876, 878.

This search compares favorably to the one in Griffin. The

greatest single difference between the two cases is that Knights

consented to his probation search condition, while the search

condition was imposed retroactively on Griffin. See id., at 870-

871, and n. 1. This substantially reduces Knights’ expectation

of privacy, placing his search on an even more solid constitu-

tional footing than the one ratified in Griffin.

Consent is a valid exception to the Fourth Amendment's

warrant and probable cause requirements. See Schneckloth v.

Bustamonte, 412 U. S. 218, 222 (1973). This Court has even

upheld a consent to search that was part of an individual's

contract with the federal government. See Zap v. United States,

328 U. S. 624, 628-629 (1946), vacated, 330 U. S. 800 (1947).

While it is not necessary to invoke Zap to enforce a contract

between the probationer and the state, consent substantially

influences the balance between privacy and society’s interests.

The most recent example of consent’s power over privacy

is another special needs case, Vernonia School Dist. 47J v.

Acton, 515 U.S. 646 (1995), where the drug testing of students

who participated in athletic programs was upheld as a legiti-

mate special needs search. See id., at 664-665. The students’

decreased expectation of privacy was a substantial factor in this

conclusion, see id., at 664, with consent playing an important

role.

“There is an additional respect in which school athletes

have a reduced expectation of privacy. By choosing to ‘go

out for the team,’ they voluntarily subject themselves to a

2. Although the Zap decision was vacated on jury selection grounds, this

Court has since relied on Zap for the point that consent is a settled

exception to the probable cause and warrant requirements of the Fourth

Amendment. See, e.g., Texas v. Brown, 460 U. S. 730, 736 (1983);

Schneckloth, 412 U. S., at 219; Katz v. United States, 389 U. S. 347,

358, n. 22 (1967).

24

degree of regulation even higher than that imposed on

students generally. ... Somewhat like adults who choose

to participate in a ‘closely regulated industry,’ students who

voluntarily participate in school athletics have reason to

expect intrusions upon normal rights and privileges,

including privacy.” /d., at 657.

The defendant entered the probation agreement with open

eyes. The search condition specifically extended its authority

to police officers. See supra, at 2. Had he found this condition

too onerous, he could refuse probation and serve his sentence.

See People v. Bravo, 43 Cal. 3d 600, 608-609, 738 P. 2d 336,

341 (1987). Just like “participation in an industry that is

regulated pervasively to ensure safety,” see Skinner, 489 U. S..

at 627, Knights chose to participate in probation, which requires

substantial regulation of the probationer in order to protect the

public, see Griffin, 483 U. S., at 874-875, and thus necessarily

limits his privacy.

The Ninth Circuit dismissed Knights’ consent, claiming that

it was “limited to probation searches, and must stop short of.

investigative searches.” United States v. Knights, 219 F. 3d

1138, 1142 (CA9 2000). This stems from the false distinction

between “probation” and “investigation” searches. Since public

safety is a special need in the context of probation searches,

there are no different types of probation searches; a police

officer may rely on a valid search condition in order to further

society’s interest in deterring probationers from committing

crime. See part 1 C, supra. Indeed, most searches initiated by

probation officers are motivated by public safety concerns. See

Rackmill, Community Corrections and the Fourth Amendment,

57 Fed. Probation 40, 44 (Sept. 1993).

Another criticism of probationer consent is that the proba-

tioner has no real choice. It is argued that since prison is so

much worse than any type of probation, the defendant will

always accept probation no matter how onerous the conditions.

See 4 W. LaFave, Search and Seizure § 10.10(b), pp. 763-766

(3d ed. 1996). The premise of this argument is doubtful. See

25

Petersilia, When Probation Becomes More Dreaded Than

Prison, 54 Fed. Probation 23, 24 (Mar. 1990). Even assuming

the premise, though, the conclusion does not follow. A difficult

choice is still a choice. “Our authorities do not impose a

categorical ban on every government action affecting the

strategic decisions of the accused, including decisions whether

or not to exercise constitutional rights.” United States v.

Dunnigan, 507 U. S. 87, 96 (1993). The fact that one of the

two alternatives may seem particularly bad does stop it from

being an alternative. As Justice Harlan explained:

“The criminal process, like the rest of the legal system,

is replete with situations requiring ‘the maxing of difficult

judgments’ as to which course to follow. McMann v.

Richardson, [397 U. S. 759, 769 (1970)]. Although a

defendant may have a right, even of constitutional dimen-

sions, to follow whichever course he chooses, the Constitu-

tion does not by that token always forbid requiring him to

a McGautha v. California, 402 U. S. 183, 213

“In other contexts criminal defendants are required to make

difficult choices that effectively waive their constitutional

rights.” Newton v. Rumery, 480 U. S. 386, 393 (1987). Thus

an individual charged with a crime may obtain immunity from

prosecution in exchange for abandoning a civil rights action.

See id., at 397-398. Plea bargaining provides another example,

even though “every such circumstance has a discouraging effect

on the defendant’s assertion of his trial rights . . . .”. Chaffin v.

Stynchcombe, 412 U. S. 17, 31 (1973). A suspect also may be

required to choose between submitting to a blood-alcohol test

or having his refusal used against him in court. See South

Dakota v. Neville, 459 U. S. 553, 554 (1983). “[BJeing forced

to choose between unpleasant alternatives is not unconstitu-

tional.” United States v. Kaczynski, 239 F.3d 1108, 1115-1116

(CA9 2001) (citing Brady v. United States, 397 U. S. 742, 750

(1970)).

26

When an individual is required to make a choice involving

a constitutional right “(t]he threshold question is whether

compelling the election impairs to an appreciable extent any of

the policies behind the rights involved.” See McGautha, 402

U. S., at 213. The answer to this question is not found in the

relative harshness of the prison sentence; the defendant earned

this sentence by committing a crime. What matters is the

state’s generosity in offering the comparatively lenient alterna-

tive of probation with a search condition.

A state does not have to offer probation instead of prison.

It is an “act of grace” from the state to the probationer. See

Escoe v. Zerbst, 295 U. S. 490, 492 (1935); People v. Rodri-

guez, 51 Cal. 3d 437, 445, 975 P. 2d 783, 788 (1990). While

this does not deprive the probationer of other rights such as due

process, see Gagnon v. Scarpelli, 411 U. S. 778, 782, n. 4

(1973) (distinguishing Escoe), probation’s status as a privilege

is relevant to the Fourth Amendment analysis.

The state can deprive a convicted criminal of all of his or

her Fourth Amendment rights.

“Notwithstanding our caution in approaching claims that

the Fourth Amendment is inapplicable in a given context,

we hold that society is not prepared to recognize as legiti-

mate any subjective expectation of privacy that a prisoner

might have in his prison cell and that, accordingly, the

Fourth Amendment proscription against unreasonable

searches does not apply within the confines of the prison

cell.” Hudson v. Palmer, 468 U. S. 517, 525-526 (1984)

(emphasis added).

If this complete deprivation of Fourth Amendment rights is

constitutional, then it is reasonable for a state to subject a grant

of probation to a lesser, albeit broad, deprivation such as the

search condition in the present case.

While it requires careful application in constitutional law,

“the proposition that greater powers include lesser ones” is still

valid as a matter of logic. See 44 Liquormart, Inc. v. Rhode

Es ee

27

Island, 517 U. S. 484, 511 (1996) (plurality opinion). The

problems with its application to constitutional law have come

from improper use in First Amendment cases. In Posadas de

Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328

(1986), this Court held that the power to ban gambling neces-

sarily included the lesser power to prohibit the advertising of

gambling, see id., at 345-346. The subsequent disapproval of

Posadas correctly notes that regulating speech is not a lesser

included power of regulating conduct. “The text of the First

Amendment makes clear that the Constitution presumes that

attempts to regulate speech are more dangerous than attempts

to regulate conduct.” 44 Liqguormart, at 512.

That has not happened in this Fourth Amendment case.

Probation is not qualitatively different from incarceration the

way speech is qualitatively different from conduct. “Probation

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

continuum of possible punishments ranging from solitary

confinement in a maximum-security facility to a few hours of

mandatory community service.” Griffin, 483 U. S., at 875.

Knights had notice of the search condition, including the

authorization of searches by the police, and consented to it

when he chose probation over prison. The search was sup-

ported by reasonable suspicion. The coincidence between the

vandalism and Knights’ problems with PG & E, the contents of

Simoneau’s truck, and Simoneau’s close association with

Knights, see supra, at 2, at least supported a reasonable

suspicion to search Knights’ apartment. As the Ninth Circuit

noted, Detective Hancock “had drawn some very good infer-

ences from the facts... .” Knights, 219 F. 3d, at 1143.2 What

happened to Knights was much less intrusive to his privacy

interests than what the state could have done had it chosen to

3. While California does not require any level of suspicion to support

probation searches, see Bravo, 43 Cal. 3d, at 610-611, 738 P. 2d, at

342-343, it is unnecessary to decide the constitutionality of that practice

in this case, since this search was amply supported by much more than

28

withdraw probation as an alternative to prison. This lesser

deprivation must also be deemed reasonable in light of what

Knights could have faced in prison.

An individual’s home is not a prison cell, but see M. Nieto,

Probation for Adult and Juvenile Offenders: Options for

Improved Accountability 8 (Cal. Research Bureau 1998) (house

arrest for high-risk probationers), but the defendant was not an

average resident. He was a convicted criminal who was serving

his sentence in the community. In order to protectthe commu-

nity, Knights first had to consent to warrantless, suspicionless

searches by any law enforcement officer before being given the

relative freedom of probation. This case is not about protecting

the sanctity of the home, cf. Knights, 219 F. 3d, at 1144-1145,

but about giving the state and criminal defendants the freedom

to craft alternative punishments to imprisonment.

The balance of society’s interests and the defendant’s

privacy expectations favors the search. The threat to public

safety posed by probationers creates a special interest in

deterring probationer’ s criminal tendencies through the prospect

of warrantless searches by police officers without regard to the

searching officer’s motive. See part 1, supra. As demonstrated

above, defendant’s expectation of privacy “that society recog-

nizes as ‘legitimate,’ ” Vernonia, 515 U. S., at 654, is small.

Upholding this search would encourage creative alternatives

to prison. Both society and those probationers who genuinely

wish to reform would benefit by holding Knights to his end of

the bargain.

29

CONCLUSION

The decision of the Court of Appeals for the Ninth Circuit

should be reversed.

July, 2001

Respectfully submitted,

CHARLES L. HOBSON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation