# Amicus Curiae Brief — United States v. Knights

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0451%3A12

## Record

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

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0451%3A12. Public record. Not legal advice.