Reply Brief — Samson v. California

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—— FILED

f r,e )

No. 04-9728

IN THE

Supreme Court of the United States

DONALD CURTIS SAMSON,

Petitioner,

Vv.

STATE OF CALIFORNIA,

Respondent.

ON WRIT OF CERTIORARI TO THE CALIFORNIA COURT

OF APPEAL, FIRST APPELLATE DISTRICT

REPLY BRIEF FOR THE PETITIONER

Martin Kassman

1032 Irving Street

PMB 704

San Francisco, CA 94122

(415) 564-6732

FEBRUARY 10, 2006

Robert A. Long

Counsel of Record

Theodore P. Metzler

Nicholas Cartier

COVINGTON & BURLING

1201 Pennsylvania Ave., NW

Washington, DC 20004-2401

(202) 662-6000

Counsel for Petitioner

TABLE OF CONTENTS

Page

pA RI, OES IO EEN NCEE LO BEEE AS H.AO I i

ee ii

I. The Search Was Unreasonable Under A Balancing

PE aiscciniicihawitsaresctatesainieastniniitinsciiaiapsitsurtinismiiedititiinipaaiienn ]

A. The Search Condition Is Unreasonable Because

It Grants Unconstrained Discretion To Officers ,

RMA a RES een AROS, PRR AS ter a ]

B. The Harm To Privacy Interests Outweighs The

Benefit To The State’s Interests. .....................ce0eceeeees 6

II. The “Special Needs” Doctrine Does Not Justify

We risks iicitainiissaciaceiieielih ear iiaiadiaiadicaiapas tein 14

III. The “Consent” Rationale Does Not Apply. ..............2006 17

TABLE OF AUTHORITIES

CASES

Page(s)

Almeida-Sanchez v. United States, 413 U.S.

ese dincticisndinndtadintiahsied Mapiiecuedcnidiimes 2,6, 17

Berger v. New York, 388 U.S. 41 (1967)...............cccc00006 3,4

Boyd v. United States, 116 U.S. 616 (1886) ....................06 3

Bumper v. North Carolina, 391 U.S. 543

SITIES citschecaiccrniinsadibidtinecinentad hoi oseceibiiiaibtidthatskieascuiotdiaiveabiesiiebidh 19

Burrell v. McIlroy, 423 F.3d 1121 (9th Cir.

UD tesesiicse caitlin cbibighiehecel iia aia dial ai i nica titik ohl 12

California v. Greenwood, 486 U.S. 35 (1988)................... 11

Camara v. Municipal Court, 387 U.S. 523

NOD iis isis nibltclienickipldaceracceletunintimisidibabseinddieness 1, 2, 11

Cardinale v. Louisiana, 394 U.S. 437 (1969).................. 19

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

NED dk dct ncichiticion initial als dncnsbnaesadintitioniinSovmssbibaguiighin 13,14

Delaware v. Prouse, 440 U.S. 648 (1979) ........... 1, 3, 13, 14

Ferguson v. City of Charleston, 532 U.S. 67

RO en cienascuedidbois 14, 15, 16

Florida v. J.L., 529 U.S. 266 (2000) ................ccceeceeeeeeee ees 12

Florida v. Wells, 495 U.S. 1 (1990)...............cccceceeceeeeeeeeeeeee 2

Griffin v. Wisconsin, 483 U.S. 868 (1987)...... 2, 3, 7, 15, 17

Illinois v. Lidster, 540 U.S. 419 (2004) .................... 2, 6, 11

INS v. Delgado, 466 U.S. 210 (1984).............5T ccc 11

Marshall v. Barlow’s, Inc., 436 U.S. 307

EINE ih dienscolehasdlihiiilinstteicin gaseiaiees nah dadaiibindaniamidamshapaibeientiioemaie 11

Michigan Dep't of State Police v. Sitz, 496

rs I Cb tactdenubsitianicsactsnctdditiadanticdactevetbinadies 2, 5, 6

Minnesota v. Murphy, 465 U.S. 420 (1984)...................... 20

Morrissey v. Brewer, 408 U.S. 471 (1972) ...............002:.00005- 7

Nat'l Treasury Employees Union v. Von Raab,

489 U.S. 656 (1989).............. dishaasbiicibnncendlnatbeioass 2, 4, 11

New Jersey v. T.L.O., 469 U.S. 325 (1985)................... 2,13

New York v. Burger, 482 U.S. 691 (1987).....................004. 16

Payton v. New York, 445 U.S. 573 (1980)......... 2,10, 11, 17

-li-

Pennsylvania Board of Probation & Parole v.

Scott, 624 U.S. 357 (1906).............c...cercccersseees 13, 14, 15

People v. Buckley, 2003 WL. 122258 (Cal. Ct.

SA, SE Tig TED hictpwneteniiciinigadtbangrattAsiemeepignenevegomisivess 18

People v. Burgener, 714 P.2d 1251 (Cal. 1986) ............ 7, 18

People v. Guzman, 107 P.3d 860 (Cal. 2005)................... 18

People v. Huntley, 371 N.E.2d 794 (NY 1977)............ owneet 12

People v. Jefferson, 980 P.2d 441 (Cal. 1999)................... 18

People v. Lewis, 74 Cal. App. 4th 662 (Cal. Ct.

UAE TRIED sis Siias tata chick ncaheniihlipabacebaplamilicguosbiogaaeenesuripbldinigibadio 18

People v. Reyes, 968 P.2d 445 (Cal. 1998) .... 4, 9, 10, 17, 19

People v. Sanders, 73 P.3d 496 (Cal. 2003).................. 8, 18

People v. Willis, 46 P.3d 898 (Cal. 2002)................0cccce0eee 18

Skinner v. Railway Labor Executives’ Ass'n,

a i a iisisneticanch chiebAreibiesccienncdic 2,5, 11, 15

" Smith v. Maryland, 442 U.S. 735 (1979) .........cccccecceeseseeees 7

Soca v. State, 673 So. 2d 24 (Fla. 1996) ...........ccccece cece eee 12

Terry v. Ohio, 392 U.S. 1 (1968) ...............cccceeecccsesseeeees 5, 12

United States v. Biswell, 406 U.S. 311 (1972)..............0... 16

United States v. Brignoni-Ponce, 422 U.S. 873

REE PIELER oe RCT, SR TCR. 2, 13, 17

United States v. Crawford, 372 F.3d 1048

I le 18

United States v. Johnson, 427 F.3d 1053 (7th

ON BRR RES rR Came ar aR Cale AD ye Oe Bere 12

United States v. Knights, 534 U.S. 112 (2001)......... passim

United States v. Monteiro, 270 F.3d 465 (7th

Oe a a i)

United States v. Ramsey, 411 U.S. 606 (1977)............000.. 17

United States v. United States District Court,

gg IE OR SEO beh DOR Tae CIO RR 2

Vernonia School Dist. 47J v. Acton, 515 U.S. ;

Ge ade cbisntesusstcisbschtgnsMcket cleccastmashdiehiasaes 2, 5, 6, 13

eee

- blll -

CONSTITUTIONAL PROVISION,

STATUTES & REGULATIONS

os SPs PIII, TP cuca hinsiicecrrstciaseenina ania icaleheic emacs passim

BS Bride BI cisthvicisctntsiscnsctssieicvchebdinmtcenleatvnedlioneabia 9

OR Uf ARS RE DE atte Rae HAO Ts 9

PGA le Oe hii eco iersinsctbkncnepnsncisiibiamstiniipteeennebiniabaccietd 9

Cal. Penal Code § 3000.................c::c00008 DEAS TREES RR A, 8, 18

CRE. PORN CRISS SOD ccssicoreipescnscthicviitedcnssenladepisbalibivats 19

Cal. Pomind Cate 6 BiB o..cccvcciessaccssessotercscseceocens 3, 17, 18, 19

UE, FI GN Oe Io ciisiviinssctavititdithcdistinucsticbonbsienscasttbeans 18

SE Ge He: MPI incoiecsdacnte cecpuscnndbnnoccesdicimmenioanenaas 19

Cal. Code Rows. tit. 16, § SBU8.....ciccccsccccdcccsccccsvecossessasesses 19

Cal. Code Regs. tit. 15, § 2512................:ccccsecccssssssssseoneees 18

OTHER

RR Bh TB viccinisiiccsiesceintbibiebicdacaliaitineddbcstatectiuniinies 17

A.B. 2284, 1995-96 Reg. Legis. Session (Cal.

1996) (amended May 6, 1996)..................cccceceeeeeeeeeeess 19

A.B. 2284, 1995-96 Reg. Legis. Session (Cal.

1996) (amended Aug. 26, 1996) .................cccccceeeeeseeees 19

S. Comm. on Crim. Proc., Comm. Rep. for

Assembly Bill 2284, 1995-96 Reg. Legis.

I GI, eR icccdcakandentbintoniititans cenchbceccncecsesebease 19

Thomas Y. Davies, Recovering the Original

Fourth Amendment, 98 Mich. L. Rev. 547

EL SUEIETOED nitivninepsiainctgshdeniedestscttaiaeiuaniicediadibeitantdeideaians dibditinalete thie tints eiicitcalia had 3

Wayne R. LaFave, Search and Seizure: A

Treatise on the Fourth Amendment (4th ed.

Nelson B. Lasson, The History and Development

of the Fourth Amendment to the United

States Conatitution (1970)..............scccccrccsssssessesseeceseeees 3

Tracey Maclin, The Central Meaning of the

Fourth Amendment, 35 Wm. & Mary L. Rev.

Se Ce snteshiscnctddccretuciiniecabicuiahelaecabtlicditsidiiuaiimistiialiesinie 3

-iv-

Joan Petersilia, Challenges of Prisoner Reentry

and Parole in California, 12 CPRC 3 (June

Jeremy Travis and Sarah Lawrence, California's

Parole Experiment, Urban Institute Justice

BRETT ETE 10

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

Statistics, Trends in State Parole 1990-2000

EDN AES SA nO CS a aT ee ae 10

U.S. Parole Comm'n R. & Proc. Mani....................00cccceeeeeees 9

The search in this case failed to meet the most

fundamental requirement of reasonableness under the

Fourth Amendment: the police officer's discretion to

search Petitioner was not limited by an individualized

suspicion standard or by other adequate safeguards. The

Fourth Amendment was adopted precisely to prohibit

discretionary searches by officers in the field.

Accordingly, the States’ leeway to search parolees under

the Fourth Amendment does not extend to the search in

this case. Indeed, Respondent stands virtually alone

among all the States and the federal government in

authorizing the search at issue here.

I. The Search Was Unreasonable Under A

Balancing Analysis.

A. The Search Condition Is Unreasonable

Because It Grants Unconstrained

Discretion To Officers In The Field.

“The essential purpose of the proscriptions in the

Fourth Amendment is to impose a_ standard of

‘reasonableness’ upon the exercise of discretion by

government officials.” Delaware v. Prouse, 440 U.S. 648,

653-54 (1979). In most cases, discretion is limited by

requiring “that the facts upon which an intrusion is based

be capable of measurement against ‘an objective

standard, whether this be probable cause or a less

stringent test” such as reasonable suspicion. /d. at 654

(note omitted). Where “the halance of interests precludes

insistence upon ‘some quantum of individualized

suspicion, other safeguards are generally relied upon to

assure that the individual's reasonable expectation of

privacy is not ‘subject to the discretion of the official in

the field.” Jd. at 654-55 (quoting Camara v. Municipal

Court, 387 U.S. 523, 532 (1967)). In case after case, the

Court has reaffirmed that grants of “standardless and

unconstrained discretion” violate the Fourth

Amendment.' Jd. at 661. The Court has applied this

fundamental principle in cases analyzed under the

“special needs” doctrine as well as under general Fourth

Amendment balancing analysis.?

The requirement that the individual officer's

discretion to search be limited is central to the Fourth

Amendment. “[T]he evil toward which the Fourth

Amendment was primarily directed was the resurrection

of the pre-Revolutionary practice of using general

warrants or ‘writs of assistance’ to authorize searches for

contraband by officers of the Crown.” New Jersey v.

T.L.O., 469 U.S. 325, 335 (1985). “The hated writs of

assistance” granted the King’s officers “blanket authority

to search where they pleased.” Payton v. New York, 445

! See, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 882 (1975)

(roving Border Patrol stop unreasonable because the “Fourth

Amendment demands something more than the broad and unlimited

discretion sought by the government”); Almeida-Sanchez v. United

States, 413 U.S. 266, 270 (1973) (search unreasonable because it was

“conducted in the unfettered discretion of the members of the Border

Patrol”); United States v. United States District Court, 407 U.S. 297,

317 (1972) (‘those charged with . . . investigative .. . duty should not

be the sole judges of when to utilize constitutionally sensitive means in

pursuing their tasks”); Camera, 387 U.S. at 532-33. See also Florida

v. Wells, 495.U.S. 1, 4-5 (1990) (container search unreasonable because

State “had no policy whatever with respect to the opening of closed

containers encountered during an inventory search”).

2 See, e.g., Illinois v. Lidster, 540 U.S. 419, 428 (2004) (“police stopped

all vehicles systematically”); Vernonia School Dist. 47J v. Acton, 515

U.S. 646, 650 (1995) (no discretion to select students for drug tests);

Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 454 (1990) (fixed

sobriety checkpoint limits officer's discretion to make stops); Skinner v.

Railway Labor Executives’ Ass'n, 489 U.S. 602, 622 (1989) (“minimal

discretion” to administer drug tests); Nat? Treasury Employees Union

v. Von Raab, 489 U.S. 656, 667 (1989) (drug test “automatic”). In other

special needs cases, the individual! officer's discretion is limited by an

individualized suspicion requirement. See, e.g., Griffin v. Wisconsin,

483 U.S. 868, 871 (1987) (probation officer's discretion limited by

requirements of “reasonable grounds” and supervisor approval); New

Jersey v. T.L.O., 469 U.S. 325, 342 n.8 (1985) (reasonable suspicion

requirement).

~ 3

U.S. 573, 583 n.21 (1980). In 1761 James Otis denounced

writs of assistance as “the worst instrument of arbitrary

power” because they “placed the liberty of every man in

the hands of every petty officer.” Jd. (quoting Boyd v.

United States, 116 U.S. 616, 625-27 (1886)). John Adams

described Otis’s denunciation as “the first scene of the ~

first act of opposition to the arbitrary claims of Great

Britain,” and declared: “[T]hen and there the child

Independence was born.” Id. See also Berger v. New

York, 388 U.S. 41, 58 (1967) (general warrants were “a

motivating factor behind the Declaration § of

Independence’”).$

California’s parole search condition permits the very

evil that the Fourth Amendment forbids. By its terms,

the search condition grants individual officers discretion

to search parolees such as Petitioner, their houses, and

their effects at any hou. of the day or night, with or

without a warrant and with or without cause. J.A. 48;

Cal. Penal Code § 3067(a). Respondent placed

Petitioner's liberty “in the hands of every petty officer.”

Unlike the probation officer in Griffin, the police officer in

this case was not subject to a state regulation that

required him to have “reasonable grounds” for a search

and obtain approval from a supervisor. Griffin, 483 U.S.

at 871. Instead, Officer Rohleder, like the officer in

Prouse, was not “acting pursuant to any standards,

guidelines, or procedures . . . promulgated by either his

department or the State Attorney General.” Prouse, 440

U.S. at 650. Officer Rohleder testified that sometimes he

3 See also Nelson B. Lasson, The History and Development of the

Fourth Amendment to the United States Constitution 51-105 (1970);

Thomas Y. Davies, Recovering the Original Fourth Amendment, 98

Mich. L. Rev. 547, 578 (1999) (“delegation of discretionary authority to

ordinary, ‘petty,’ or subordinate’ officers was anathema to framing-era

lawyers”); Tracey Maclin, The Central Meaning of the Fourth

Amendment, 35 Wm. & Mary L. Rev. 197, 248 (1993) (“[T}he central

purpose of the Fourth Amendment” is “distrust of discretionary police

power.”); NACDL Amicus Br. 16-18.

searches parolees and sometimes he does not. J.A. 39 (“I

don’t go after everybody all the time.”). That is precisely

the unconstrained discretion that is forbidden by the

Fourth Amendment.

Contrary to Respondent's contention (Br. 10-12) the

officer’s discretion to search Petitioner was not effectively

constrained by the requirement of California law that

parolee searches not be “arbitrary, capricious, or

harassing.” This Court has never held that such a

general standard is a constitutionally adequate limitation

on the officer’s discretion. Moreover, California has

interpreted its “arbitrary, capricious, and harassing”

standard in a way that ensures it is not an effective

limitation on the officer's discretion to search. The

California Supreme Court has held that a search is

“arbitrary, capricious, »%r harassing” only if “the

motivation for the search is unrelated to rehabilitative,

reformative, or legitimate law enforcement purposes.”

People v. Reyes, 968 P.2d 445, 451 (Cal. 1998) (emphasis

added). See also Resp. Br. 11 (California forbids searches

conducted “solely to harass”). Any search for evidence of

criminal activity is at least related to a legitimate law

enforcement purpose. So long as the officer testifies that

he was looking for evidence of crime, the search satisfies

California’s standard. Respondent’s argument would

justify searches pursuant to writs of assistance, so long as

the officer searched for contraband or other evidence of

crime.

4 The United States briefly contends (U.S. Br. 20) that the officer's

discretion was properly limited because the search condition applies

only to persons on parole. That is contrary to this Court's decisions,

which have insisted that the individual officer's discretion must be

limited even when only a subsection of the general population is

subject to search. See, e.g., Von Raab, 489 U.S. at 667; Berger, 388

U.S. at 59 (statute authorizing wiretaps of a particular named person

or persons “leaves too much to the discretion of the officer executing

the order”).

-4-

The emptiness of California's “arbitrary, capricious,

and harassing” standard is confirmed by the undisputed

fact that no California court has ever held that a parolee

or probationer search violated the standard. See Pet. Br.

20. See also Resp. Br. 15 (noting that more than 130,000

persons are on parole in California at any given time).

Respondent contends (Br. 10, 12-13) that the

“arbitrary, capricious, and harassing” standard prohibits

searches that occur at an unreasonable hour or are

unreasonably prolonged, frequent, or humiliating. The

Court has never accepted such marginal! limitations on

discretion as constitutiorzlly sufficient. Otherwise,

searches pursuant to writs of assistance would be

constitutional so long as they were not too lengthy or

frequent.

The unprecedented scope of the searches authorized

by California’s search condition further expands the

officer’s discretion and renders California's “objective”

limitations ineffective. A parolee search in California is

unlike a search authorized by a warrant, which is

“narrowly limited in its objectives and scope,” Skinner,

489 U.S. at 622, because of the constitutional requirement

that the warrant must “particularly describ[e] the place to

be searched, and the persons or things to be seized.” U.S.

Const. amend. IV. It is also unlike a warrantless frisk for

weapons based upon reasonable suspicion, which must be

“confined in scope to an intrusion reasonably designed to

discover guns, knives, clubs, or other hidden instruments

for the assault of the police officer.” Terry v. Ohio, 392

U.S. 1, 29 (1968). And a parolee search in California is

unlike the suspicionless searches this Court has

approved, which have also been limited in scope. See, e.g.,

Vernonia, 515 U.S. at 658; Sitz, 496 U.S. at 453. Unlike

searches this Court has found to be _ reasonable,

California's parole search condition grants police officers

blanket authority to search parolees, their houses, and

their effects for evidence of any crime. The police officer

ike

is not required to consider, or even know, what crimes the

parolee has committed or is likely to commit. The single

fact justifying the search is that the person is on parole.

Lengthy, frequent, and intrusive searches can be justified

on the ground that they might conceivably turn up

evidence of some crime.' It is therefore not surprising

that the California courts, have not invalidated a single

parolee or probationer search on any of these grounds.

In short, the search of Petitioner “was conducted in

the unfettered discretion of’ the police officer and “thus

embodied precisely the evil” this Court repeatedly has

held to be impermissible under the Fourth Amendment.

Almeida-Sanchez, 413 U.S. at 270.

B. The Harm To Privacy Interests Outweighs

The Benefit To The State’s Interests.

1. Suspicionless Searches Effectively

Extinguish Parolees’ Privacy Interests And Invade

The Privacy Of Third Parties. A search condition that

subjects a person to searches by any law enforcement

officer at any time of the day or night, without a warrant

and without cause, undeniably is an extreme intrusion

upon personal privacy. The degree of intrusion in this

case thus differs sharply from other cases in which the

Court has upheld suspicionless searches. See, e.g.,

Lidster, 540 U.S. at 427 (“interfered only minimally”);

Vernonia, 515 U.S. at 660 (invasion of privacy “not

significant”); Sitz, 496 U.S. at 451 (“slight” intrusion).

Respondent contends (Br. 9) that the extreme

intrusion upon Petitioner's privacy is entitled to no

weight because Petitioner had “no subjective expectation

5 For example, Respondent could defend a home search conducted after

midnight on the ground that forbidding such searches would allow

parolees to engage in criminal activity during those hours. Similar

arguments could be made in defense of frequent and intrusive

searches.

of privacy whatever.” That contention conflicts with this

Court’s recognition that, while probationers are subject to

“a degree of impingement upon privacy that would not be

constitutional if applied to the public at large,” “[t)hat

permissible degree is not unlimited” and may be

“exceeded.” Griffin, 483 U.S. at 875. The Court has also

recognized that a parolee’s “condition is very different

from that of confinement in a prison . . . [and] includes

many of the core values of unqualified liberty.” Morrissey

v. Brewer, 408 U.S. 471, 482 (1972). Under this Court’s

decisions, Petitioner clearly had some legitimate

expectation of privacy.®

Respondent does not dispute that suspicionless

searches of parolees entail “a massive intrusion on the

privacy interests of third persons solely because they

reside with a parolee.” People v. Burgener, 714 P.2d 1251,

1269 (Cal. 1986). In this case, the search of Petitioner

plainly intruded on the privacy interests of third persons.

Petitioner's two companions were effectively stopped and

one of them, Deborah Watson, was searched. Watson

testified that she did not consent to the search; the officer

testified that she did. J.A. 11, 56-57. If Watson had not

associated with Petitioner, there is no reason to think

that the officer would have sought to search her.

Watson's association with Petitioner thus placed her in a

situation in which she was required to choose between

consenting to a humiliating public search by a police

officer or risking the consequences of refusing to consent.

6 Respondent contends (Br. 9) that Petitioner's subjective expectation

of privacy was extinguished because he was notified that he could be

searched by any police officer without cause. But notice, by itself,

cannot extinguish all legitimate expectations of privacy. See Smith v.

Maryland, 442 U.S. 735, 740 n. 5 (1979) (“[I]f the Government were

suddenly to announce on nationwide television that all homes

henceforth would be subject to warrantless entry,” loss of subjective

expectation of privacy would play “no meaningful role” in the Fourth

Amendment analysis).

Many reasonable citizens would think twice about

associating with a person who subjects them to such risks.

2. Suspicionless Searches Do Not Further The

State’s Interest In Reintegrating Parolees Into The

Community. The California Supreme Court has

recognized that “[m]any law-abiding citizens might choose

not to open their homes to probationers [or parolees] if

doing so were to result in the validation of arbitrary police

action. If increased numbers of probationers were not

welcome in homes with supportive environments, higher

recidivism rates and a corresponding decrease in public

safety may be expected, both of which would detract from

the optimal successful functioning of the probation

system.” People v. Sanders, 73 P.3d 496, 508 (Cal. 2003)

(brackets in original) (marks and citation omitted).

Respondent does not dispute this, but instead dismisses it

as a “social concern[]” that is not addressed by the Fourth

Amendment. Resp. Br. 16. That is clearly incorrect. This

Court has recognized that, for purposes of the Fourth

Amendment, one of the State’s two legitimate concerns

with a probationer is “that he will successfully complete

probation and be integrated back into the community.”

United States v. Knights, 534 U.S. 112, 120-21 (2001).

California also recognizes that “reintegration of the

offender into society” is a primary purpose of parole. Cal.

Pen. Code § 3000(a)(1). The fact that suspicionless

searches give third parties an incentive not to associate

with parolees, and thus make it more difficult for parolees

to reintegrate into society, is plainly relevant to the

constitutional balancing analysis and weighs against

suspicionless searches.

3. The State’s Interest In Preventing Parolee

Crime Does Not Justify Suspicionless Searches.

Respondent and its amici do not dispute that California

stands virtually alone in authorizing the search in this

case. With the possible exception of South Dakota, no

other State allows police officers to conduct suspicionless

searches of parolees absent consent or a particularized

determination that such searches are reasonable in the

circumstances. See Pet. Br. 28-31 & App. 12a-19a.’

The United States acknowledges that the federal

government has “elected to impose an individualized

suspicion standard” on parolee searches. U.S. Br. 23 n.8

(citing U.S. Parole Comm'n R. & Proc. Man. (Aug. 2003)).§

Moreover, the federal statutes governing “supervised

release” (which has largely replaced parole in the federal

system) omit any search condition—let alone a

suspicionless search condition—from both the general

conditions of supervised release and the discretionary

conditions specified by statute. See 18 U.S.C. §§ 3563(b)

& 3583(d). Only a federal court may impose a search

condition as a condition of supervised release, and then

only upon a finding that the condition is “appropriate”

and “involves no greater deprivation of liberty than is

reasonably necessary.” Jd. § 3583(d)(2).9

7 Respondent asserts (Br. 18) that many States prohibit suspicionless

parolee searches because they have concluded that such searches are

unconstitutional. That is so, but the constitutional analysis includes

an assessment of “the degree to which [the search] is needed.”

Knights, 534 U.S. at 119. The fact that “the vast majority of

jurisdictions that have considered the issue” disagree with California

supports Petitioner's position. People v. Reyes, 968 P.2d 445, 453 (Cal.

1998) (Kennard, J., dissenting).

8 The United States describes this requirement as having “no legal

force,” U.S. Br. 23 n.8, but it represents the federal government's

considered determination that suspicionless parolee searches are

inappropriate. Moreover, the Parole Commission's regulations require

that any search condition be based on an individualized determination

of need. 28 C.F.R. § 2.204(b)(2)(iv).

® The United States asserts (U.S. Br. 1) that federal courts have

imposed search conditions “similar” to the one in this case in “some”

cases. But it cites only one case in support of that proposition, and in

that case the court reversed the district court in part despite

“exceptional conditions that required exceptional vigilance.” United

States v. Monteiro, 270 F.3d 465, 467-68 (7th Cir. 2001); see also id. at

(continued...)

< *

There is no evidence that other States and the federal

government experience greater parolee _ recidivism,

compared to California, because they do not authorize

police officers to search parolees in the absence of

reasonable suspicion of wrongdoing. See Payton, 445 U.S.

at 602 (considering “absence of any evidence that effective

law enforcement has suffered” in other States). To the

contrary, California’s recidivism rates are higher than

those of most other States despite its authorization of

suspicionless parolee searches. Nor is there any

evidence that the California Supreme Court’s elimination

of the reasonable suspicion requirement in Reyes has led

to a decrease in recidivism in California. Instead,

recidivism rates in California remained virtually

unchanged following Reyes.''

Respondent contends (Br. 19) that, regardless of the

practices of other States and the federal government, the

Court should defer to California’s determination that

470-71 (discussing other cases in which appellate court invalidated

search condition).

10 Parolees nationwide successfully completed parole at twice the rate

of parolees in California during the 1990s. U.S. Dept. of Justice,

Bureau of Justice Statistics, Trends in State Parole 1990-2000, at 11

(Oct. 2001). See also Joan Petersilia, Challenges of Prisoner Reentry

and Parole in California, 12 CPRC 3 (June 2000). The difference

between California and other States largely results from California’s

decision to imprison parolees for technical violations at rates well

above the national average. See Jeremy Travis and Sarah Lawrence,

California's Parole Experiment, Urban Institute Justice Policy Center,

at 5 (Aug. 2002) (“The vast majority of the returns to prison in

California are for technical violations, such as missing an appointment

with a parole officer or failing a drug test—not for new crimes. It is in

this area of policy and practice that California departs most sharply

from national trends.”). Indeed, “|njearly two-thirds of [California]

prison admissions are for parole violations, compared to about one-

third nationally.” /d.

'! See U.S. Dept. of Justice, Bureau of Justice Statistics, Trends in

State Parole 1990-2000, at 11 (Oct. 2001) (noting that 19.4% of

California parolees were successfully discharged from parole in 1990,

20.9% were discharged in 1995, and 21.3% were discharged in 1999).

: - 10-

suspicionless parolee searches are justified. But Fourth

Amendment balancing analysis requires the Court to

weigh the harm to privacy interests against the gain to

the State. Knights, 534 U.S. at 118-19. See also Payton,

445 U.S. at 578, 600 (1980) (statutorily-authorized search

unreasonable); Marshall v. Barlow’s, Inc., 436 U.S. 307,

324-25 (1978) (same); Camara, 387 U.S. at 534 (same).

To the extent that the Court may properly defer to

legislatures and law enforcement entities in striking this

balance, the overwhelming judgment of those bodies is

that police officers should not be permitted to conduct

suspicionless parolee searches. See California v.

Greenwood, 486 U.S. 35, 43 (1988) (Court has “never

intimated .. . that whether or not a’search is reasonable

within the meaning of the Fourth Amendment depends on

the law of the particular State in which the search

occurs’).

The Court has held that some suspicionless searches

are reasonable in situations in which “the concept of

individualized suspicion has little role to play.” Lidster,

540 U.S. at 424; see also Von Raab, 489 U.S. at 668

(“probable-cause standard may be unhelpful in analyzing

the reasonableness of routine administrative functions’).

Similarly, the Court has noted that “[rjailroad

supervisors, “school officials,” and “hospital

administrators” “are not in the business of investigating

violations of the criminal laws” and “have little occasion

to become familiar with the intricacies of this Court’s

Fourth Amendment jurisprudence.” Skinner, 489 U.S. at

623. Police officers, in contrast, are in the business of

investigating violations of the criminal laws, and do have

occasion to become familiar with requirements such as

probable cause and reasonable suspicion.

Although the reasonable suspicion standard requires

only “some minimal level of objective justification” for a

search, INS v. Delgado, 466 U.S. 210, 217 (1984),

Respondent contends that the standard would not be met

eR}.

: if a police officer received an “uncorroborated tip” that a

parolee is engaged in criminal activity. Resp. Br. 18

(citing Florida v. J.L., 529 U.S. 266 (2000)). There was no

indication that J.L. was a parolee, and Respondent’s

argument assumes that parole status cannot be

considered as a factor in determining whether there is

reasonable suspicion of criminal activity. Courts have

recognized that prior criminal history may be considered

in determining whether there is reasonable suspicion,'?

and have applied similar reasoning to parolee and

probationer searches. See Soca v. State, 673 So. 2d 24, 25

n.1 (Fla. 1996) (“probationary status may be used as a

factor to establish probable cause”); People v. Huntley, 371

N.E.2d 794, 797 (NY 1977) (“fact of parole status may well

be significant” in establishing probable cause).

Respondent also contends (Br. 20) that in some

circumstances, such as Terry stops, all citizens are subject

to a reasonable suspicion standard, and thus applying

that standard to parolees in all circumstances would

sometimes afford them the same Fourth Amendment

rights as citizens in general. That is also incorrect.

Where the reasonable suspicion standard applies to

citizens in general, it authorizes only a limited search,

such as a brief pat-down for weapons. Terry, 392 U.S. at

26. In the case of a parolee, reasonable suspicion provides

the basis for a much broader search. Knights, 534 U.S. at

115, 122. Moreover, the question in this case is not

whether suspicionless stops of parolees are reasonable

(since Petitioner is not challenging the stop and frisk in

this case). Instead, the question is whether an officer,

having stopped a parolee and frisked him for weapons,

12 See, e.g., United States v. Johnson, 427 F.3d 1053, 1057 (7th Cir.

2005) (“[A]lthough a law enforcement officer's knowledge of a suspect's

criminal history may support the existence of reasonable suspicion,

such knowledge in itself is not enough.”) (citation omitted); Burrell v.

Mcliroy, 423 F.3d 1121, 1124 n.3 (9th Cir. 2005) (same).

-12-

may proceed to a full-blown search in the absencé of any

reasonable suspicion.

Respondent unquestionably has a strong interest in

protecting society from crimes committed by parolees.

But “the gravity of the threat alone cannot be dispositive.”

City of Indianapolis v. Edmond, 531 U.S. 32, 42-43

(2000). Moreover, States have great flexibility to search

parolees within the limits imposed by the Fourth

Amendment. Under Knights, neither a search warrant

nor probable cause is required. The exclusionary rule

does not apply in parole revocation § hearings.

Pennsylvania Board of Probation & Parole v. Scott, 524

U.S. 357, 369 (1998). Other avenues are open to

Respondent. See Prouse, 440 U.S. at 663 (State is free to

develop methods “that involve less intrusion or that do

not involve the unconstrained exercise of discretion”). For

example, California is free to adopt statutory or

regulatory guidelines on parolee searches similar to those

adopted by the United States or other States. It could

also seek to impose a suspicionless search condition based

on a particularized determination of need.'3 What

Respondent may not do, consistent with the Fourth

Ar endment, is grant individual police officers unfettered

discretion to search parolees.

The harm to individual privacy in this case outweighs

any gain to the State’s legitimate interests. Moreover,

13 The Fourth Amendment does not impose a “least restrictive means”

test under which a search is unreasonable solely because the

government has alternative means of achieving its purposes that are

less invasive of individual privacy. See, e.g., Vernonia, 515 U.S. at 663.

But the existence of effective alternatives is a factor in the

reasonableness analysis. See, e.g., T.L.O., 469 U.S. at 343 (Fourth

Amendment “ensure[s] that the interests of students will be invaded

no more than is necessary to achieve the legitimate end of preserving

order in the schools”); Brignoni-Ponce, 422 U.S. at 881, 883 n.8 (1975)

(considering “availability of alternatives to [suspicionless] random

stops” and “absence of practical alternatives” to stops based on

reasonable suspicion).

- 13.-

granting police officers unconstrained discretion to search

is not a permissible means of combating crime under the

Fourth Amendment. Accordingly, the search was

unreasonable.

II. The “Special Needs” Doctrine Does Not Justify

The Search.

Respondent contends (Br. 21-31) that the “special

needs” doctrine provides an alternative justification for

the search. The United States, apparently recognizing

that a balancing analysis does not favor Respondent,

advances the “special needs” doctrine as the primary

justification for the search. U.S. Br. 8-27. This Court's

decisions clearly point to the conclusion that the special

needs doctrine does not apply in this case. And even if it

did, the search could not be justified under that doctrine.

In Edmond, the Court held that “a ‘general interest

in crime control” cannot serve as the “justification for a

regime of suspicionless stops.” 531 U.S. at 41 (quoting

Prouse, 440 U.S. 648, 659 n.18 (1979)). See also id. at 54

(Rehnquist, C.J., dissenting) (special needs doctrine “has

been used to uphold certain suspicionless searches’

performed for reasons unrelated to law enforcement”). In

Ferguson v. City of Charleston, 532 U.S. 67 (2001), the

Court reaffirmed that the “special needs” doctrine applies

only where the “special need” advanced as_ the

justification for the search is “divorced from the State's

general interest in law enforcement.” 532 U.S. at 79. See

also id. at 88 (Kennedy, J., concurring) (“special needs”

cases “do not sustain the active use of law enforcement,

including arrest and prosecutions, as an integral part of a

program which seeks to achieve legitimate, civil

objectives”).

Petitioner was searched by a police officer engaged in

law enforcement, and thus the “special needs” doctrine

does not apply. Police officers are “engaged in the often

competitive enterprise of ferreting out crime.” Scott, 524

- }4.

U.S. at 368 (marks and citation omitted). See also

Ferguson, 532 U.S. at 100 (Scalia, J., dissenting) (law

enforcement officials “ordinarily have a law enforcement

objective”). Officer Rohleder confirmed that he searched

petitioner “to make sure he’s still obeying the laws.” J.A.

38.

In Griffin, the Court applied the special needs

doctrine to a probationer search. But ihe search in

Griffin, unlike the search in this case, was “carried out

entirely by the probation officers.” 483 U.S. at 871. The

Court's opinion stressed that while “a probation officer is

‘ not an impartial magistrate, neither is he the police

officer who normally conducts searches against the

ordinary citizen.” Jd. at 876. The Court observed that

probation officers have “an ongoing supervisory

relationship” with the probationer that “is not, or at least

not entirely, adversarial,” and a probation agency can

“proceed on the basis of its entire experience with the

probationer, and . . . assess probabilities in the light of its

knowledge of his life, character, and circumstances.” I/d.

at 879; see also Scott, 524 U.S. at 368 (parole officers,

unlike police officers, have a “relationship with parolees

[that] is more supervisory than adversarial”). In this

case, unlike Griffin, no parole officer had any involvement

in the search.

Moreover, the Court explained in Ferguson that

Griffin must be read in the light of the Court’s subsequent

decisions applying the “special needs” doctrine, which

have clearly required that “there was no law enforcemeiit

purpose. behind the searches” and “little if any,

entanglement with law enforcement.” 532 U.S. at 79

n.15. In addition, a post-Griffin decision expressly

“reserved the question whether ‘routine use in criminal

prosecutions of evidence obtained pursuant to [an] -

administrative scheme” would invalidate the search

program. /d. (quoting Skinner, 489 U.S. at 621 n.5).

-15-

Respondent seeks to rely on the Court’s statement in

Ferguson that “Griffin is properly read as limited by the

fact that probationers have a lesser expectation of privacy

than the public at large.” 532 U.S. at 79 n.15. But a

lesser expectation of privacy may lead to a reduced degree

of Fourth Amendment protection under a balancing

analysis (as the Court held in Knights). But it has no

logical bearing on whether the search is conducted by a

police officer for a law enforcement purpose, and thus is

irrelevant to whether the “specia! needs” doctrine applies

here. In Knights, the Court applied general Fourth

Amendment balancing analysis, rather than “special

needs” analysis, to a police officer's search of a California

probationer. The same analysis applies here. See Pet. Br.

36-37.

Even if the “special needs” doctrine did apply, it

would not justify the search in this case. The Court's

“special needs” cases have “employed a balancing test.”

Ferguson, 532 U.S. at 78. For the reasons explained in

Part I above, the balance here tips decidedly against

Respondent. In particular, this Court’s decisions applying

the special needs doctrine have required either

individualized suspicion or other safeguards to limit the

discretion of the officer in the field. See note 1, supra

(collecting cases). In New York v. Burger, 482 U.S. 691

(1987), cited by Respondent (Br. 28), the Court dealt with

searches of regulated businesses rather than human

beings. The Court emphasized that a “properly

administrative” regulatory scheme “must limit the

discretion of the inspecting officers,” and “must be

‘carefully limited in time, place, and scope.” Jd. at 703

(quoting United States v. Biswell, 406 U.S. 311, 315

(1972)). The Court noted that officers were “allowed to

conduct an inspection only during the regular and usual

business hours,” and the scope of the search was limited

to “the records as well as any vehicles or parts of vehicles

which are subject to the record keeping requirements” of

the statute. Jd. at 711-12 (brackets and marks omitted).

- 16-

The parole search condition at issue in this case imposes

no such limitations on the discretion of police officers.'*

III. The “Consent” Rationale Does Not Apply.

Contrary to Respondent’s contention (Br. 32-37), the

search in this case cannot be upheld on a consent

rationale.'5 The California Supreme Court has held that

“[t]he consent exception to the warrant requirement may

not be invoked to validate the search of an adult parolee”

in California. Reyes, 968 P.2d at 448. The court

explained that, under California law, “parole is not a

matter of choice. The Board of Prison Terms must

provide a period of parole; the prisoner must accept it.

Without choice, there can be no voluntary consent to

inclusion of the search condition.” Jd. (citation omitted).

This Court is bound by the California Supreme Court’s

interpretation of state law. See Griffin, 483 U.S. at 875.

Respondent incorrectly contends (Br. 32-33) that the

California Supreme Court's rejection of the consent

rationale in Reyes was superseded by Cal. Penal Code

§ 3067. Reyes was decided after the enactment of Section

3067, and subsequent decisions have reaffirmed its

14 Searches made at the border (rather than near the border as in

Brignoni-Ponce and Almeida-Sanchez) are in a special category:

“{Sjearches made at the border, pursuant to the longstanding right of

the sovereign to protect itself by stopping and examining persons and

property crossing into this country, are reasonable simply by virtue of

the fact that they occur at the border.” United States v. Flores-

Montano, 541 US. 149, 152-53 (2004) (quoting United States v.

Ramsey, 411 U.S. 606, 616 (1977)). That rationale does not apply to

parolee searches.

'S Respondent did not argue in the courts below or in its brief in

opposition to certiorar that Petitioner consented to the search.

Accordingly, Respondent is not entitled to raise the issue here. See

S. Ct. Rule 15.2; Payton v. New York, 445 U.S. at 583.

holding that the consent rationale does not apply to

parole search cases in California.'®

Section 3067 does not provide that an “inmate will

not be released until he or she has agreed to all parole

conditions.” Resp. Br. 9 n.6. Instead, it provides that an

inmate shall not be released on parole until he agrees to

the search condition “or has no remaining worktime

credit, whichever occurs earlier. Cal. Penal Code

§ 3067(b) (emphasis added). '? Respondent’s contention

also conflicts with other provisions of California law. See

Cal. Penal Code § 3000(b)(1) (“At the expiration of a term

... of imprisonment imposed pursuant to Section 1170...

the inmate shall be released on parole . . .”); Burgener,

714 P.2d at 1266 n.12 (describing § 3000(b)(1) as a

“mandatory kick-out” provision); Cal. Code Regs. tit. 15,

§ 2512(a) (“[P]arole conditions are not a contract but are

specific rules governing all parolees whether or not the

16 See, e.g., People v. Guzman, 107 P.3d 860, 867 (Cal. 2005) (parole is

“mandatory from the offender's perspective”); Sanders, 73 P.3d at 503

n.3 (search condition “imposed as a condition of parole, which

defendant could not refuse”); People v. Willis, 46-P.3d 898, 908-09

(2002) (“Under section 3067, a California parolee must agree ‘to be

subject to search or seizure by a parole officer or other peace officer.”’);

People v. Lewis, 74 Cal. App. 4th 662, 668 (Cal. Ct. App. 1999) (parole

search conditions are “automatic, and imposed on every parolee” in

California); People v. Buckley, 2003 WL 122258, at *4 (Cal. Ct. App.,

Jan 7, 2003) (unpublished) (“parole search condition is not justified by

a consent theory since parolees have no choice but to accept a search

condition”). See also United States v. Crawferd, 372 F.3d 1048, 1063-

64 (9th Cir. 2004) (en banc) (Trott, J., concurring) (“It is a conceptual

mistake to consider the imposition of conditions on a parolee in

California as a ‘waiver of rights .... [T]he consent/waiver doctrine is

irrelevant in this context.”).

'7 In California “most felonies"—including violations of California

Penal Code § 12021, for which Petitioner was sentenced—‘“carry a

‘determinate’ prison sentence consisting of a specific number of-months

or years in prison.” People v. Jefferson, 980 P.2d 441, 445 (Cal. 1999).

A prisoner sentenced to a determinate sentence “must be released

upon expiration of his ‘term’ less good-time credits.” Jd. at 447

(alteration in original) (marks and citation omitted).

- 18-

parolee has signed the form containing the parole

conditions.”); id. § 2511 (notice of parole must contain

parole search condition).

The legislative history of § 3067 confirms its plain

meaning. The California Assembly passed a bill that

would have provided that an inmate “shall not be released

on parole unless he or she agrees” to the search condition.

A.B. 2284, 1995-96 Reg. Legis. Session, at 14 (Cal. 1996)

(amended by Assembly on May 6, 1996). The bill would

have accomplished this result by “provid{ing] that all

terms of imprisonment are indeterminate.” S. Comm. on

Crim. Proc., Comm. Rep. for Assembly Bill 2284, 1995-96

Reg. Legis. Session, at 3 (Cal. 1996). The Senate rejected

this approach and instead passed a provision providing

only for loss of worktime credits. A.B. 2284, 1995-96 Reg.

Legis. Session, at 7 (Cal. 1996) (amended by Senate on

Aug. 26, 1996). The Senate’s version was enacted into

law. 1996 Cal. Stat. 4656-57.'8

Even if the consent rationale was properly presented

in this case and not foreclosed by California statutes and

judicial decisions, Respondent has not proved that

Petitioner consented to blanket suspicionless searches,

and that his consent was “freely and voluntarily given.”

Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968).'9

18 Respondent also cites Cal. Penal Code § 3060.5, but that provision

deals with revocation of parole, not refusal to grant parole, and it went

into effect long before Reyes was decided. The California Supreme

Court expressly considered § 3060.5 in its opinion in People v.

Burgener and concluded that parolees in California do not consent to

suspicionless searches. 714 P.2d 1251, 1266 n.12 (Cal. 1986). The

court reaffirmed that conclusion in Reyes.

19 “Questions not raised below are those on which the record is very

likely to be inadequate.” Cardinale v. Louisiana, 394 U.S. 437, 439

(1969). Here, a single witness testified that Petitioner signed a

document consenting to suspicionless searches. J.A. 48. But the

witness testified that he was not present when the document was

signed and could not say whether the signature is Petitioner's. J.A. 50.

Moreover, a “Notice and Conditions of Parole” form issued by the

(continued...)

-19-

Whether the “alternative” to consent was an additional

period of imprisonment followed by parole subject to

suspicionless searches, or imprisonment (subject to

suspicionless searches) for the entire time the prisoner

would otherwise be on parole, Petitioner could not avoid

being subject to suspicionless searches. Consequently, “to

speak of-consent in this context is to resort to a manifest

fiction, for the probationer who purportedly waives his

rights by accepting such a condition has little genuine

option to refuse.” 5 Wayne R. LaFave, Search and

Seizure: A Treatise on the Fourth Amendment § 10.10(b),

at 440-41 (4th ed. 2004) (marks and note omitted).

Moreover, the consent rationale could be employed to

strip parolees of any number of constitutional rights for

lengthy periods, up to and including the remainder of

their lives. This Court expressed its disapproval of using

the consent rationale to strip probationers of

constitutional rights in Minnesota v. Murphy, 465 U.S.

420, 435 & n.7 (1984), and it did not apply the consent

rationale in Knights. It should not do so here.

CONCLUSION

The judgment of the court of appeals should be

reversed.

California Department of Corrections requires only an

acknowledgement that “I have read or have had read to me and

understand the conditions of parole as they apply to me.” See NACDL

Br. la-2a. This suggests that Petitioner's “agreement,” if any, was

“essentially no more than acknowledgement of the force of law.”

Crawford, 323 F.3d at 727 (Trott, J., dissenting).

- 20 -