Amicus Curiae Brief — Samson v. California

b | ae |

JAN 13 2006

No. 04-9728 | ae eater ey

LERK

In the Supreme Court of the Gnited States

DONALD CURTIS SAMSON, PETITIONER

v.

STATE OF CALIFORNIA

ON WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL

FIRST APPELLATE DISTRICT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

PAUL D. CLEMENT

Solicitor General

Counsel of Record

ALICE S. FISHER

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

JONATHAN L. MARCUS :

Assistant to the Solicitor

General

DEBORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the suspicionless search of a parolee on a

public street by a police officer pursuant to a state

statute authorizing such a search violates the Fourth

Amendment.

(I)

7 ps

i+ a

EP tit, 9 a ee

ras Ce fees yee ;

SDA Sith date oe? ~

pe tee ah? re

te aed

et

nee ese

be

, é

ne

ate ae to aoa

ots eee Les

TET we 5 at is eneh tT:

y ar a Sen vie

TABLE OF CONTENTS

Page

Interest of the United States ...................ccceeeeee 1

BERET AP ipl D781 Fir ery ee AOR Pat NR LENE ARR 2

Summary of argument .............sccccceccsccceccccees 5

Argument:

A suspicionless search of a parolee authorized by a

parole condition mandated by statute complies with the

PO IND 6 Wis Kaine dbdda wbiweceesdivesvesn vas 7

A. The parole search of petitioner was constitutional

under the special needs doctrine ................. 8

1. The parolee’s privacy interest is minimal ...... 9

2. The State’s interest in effectively supervising

4.

5.

parolees presents a “special need” justifying

suspicionless searches ............+.++ee00: 11

California’s decision to subject parolees to

suspicionless searches is a reasonable means of

meeting its special supervisory needs ........ 15

An officer’s discretion to conduct searches is

ESS RRS S PRs aa, SC a 19

That suspicionless parole searches also serve

law enforcement interests and may be con-

ducted by police officers does not remove

them from the ambit of the “special needs”

EE nanckiecesnditentctiesseeneinesnes 24

B. The parole search of petitioner was constitutional

under the Fourth Amendment's traditional totality-of-

the-circumstances test .............ceeeeeeeeeee 27

Conclusion

(IIT)

IV

TABLE OF AUTHORITIES

Cases: Page

Board of Educ. of Indep. Sch. Dist. No. 92 v. Earls,

COB UE SERGI wan cchichdocnevecsbececis 11, 16, 18

Cabell v. Chavez-Salido, 454 U.S. 432 (1982) ........... 26

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

GRE os oscccveccsdiddcanaeiesiciseiatnenn 22, 24

Delaware v. Prouse, 440 U.S. 648 (1979) .........6005- 19

Ewing v. California, 538 U.S. 11 (2008) ............ 14, 15

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

GED oi cuca cnvcvechestneckdaksenseenned 9, 20, 24, 25

Green v. Berge, 354 F.3d 675 (7th Cir. 2004) ........... 13

Griffin v. Wisconsin, 483 U.S. 868 (1987) .........- passim

Heller v. Doe, 509 U.S. 312 (1998) ....... cece cece eeees 15

Hudson v. Palmer, 468 U.S. 517 (1984) ............ 12, 16

Johnson v. United States, 529 U.S. 694 (2000) ........ 1,2

Jones v. Cunningham, 371 U.S. 236 (1963) ............- 9

McMillan v. Pennsylvania, 477 U.S. 79 (1986) ......... 23

Michigan Dep't of State Police v. Sitz,

GBB UB. COG GORD 0 cin ccccnccvosceccesscccccosvces 28

Morrissey v. Brewer, 408 U.S. 471 (1972) ............ 9,12

National Treasury Employees Union v.

Von Raab, 489 U.S. 656 (1989) ..........-- ee eee 16, 18

New Jersey v. T.L.O., 469 U.S. 325 (1985) ........---4.- 7

New York v. Burger, 482 U.S. 691 (1987) ........ 20, 26, 29

Ohio v. Robinette, 519 U.S. 33 (1996) ............--006- 28

Cases—Continued: Page

Owens v. Kelley, 681 F.2d 1362 (11th Cir. 1982) ..... 17, 27

Pennsylvania Bd. of Probation & Parole v.

Scott, 524 U.S. 357 (1998) ......... 2, 9, 11, 12, 18, 26, 29

People v. McCullough, 6 P.3d 774 (Colo. 2000) .......... 17

People v. Middleton, 131 Cal. App. 4th 732

0S RREEREIES LOX AT SS AOTC 13, 19

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

cert. denied, 526 U.S. 1092 (1999) ...4, 13, 16, 20, 21, 22, 29

People v. Sanders, 73 P.3d 496 (Cal. 2003) ............. 20

People v. Willis, 46 P.3d 898 (Cal. 2002) ............ 13, 27

Skinner v. Railway Labor Executives’ Ass'n,

SEE odo ceuvédeneactesesseunsecce 10, 16

Smith v. Maryland, 442 U.S. 785 (1979) .............. 19

Terry v. Ohio, 392 U.S. 1(1968) ................005, 7,21

United States v. Biswell, 406 U.S. 311 (1972) .... 17, 20,29

United States v. Caceres, 440 U.S. 741 (1979) .......... 23

United States v. Consuelo-Gonzalez, 521 F.2d 259

i ie ed cele sense aedeceus 27

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

(9th Cir. 2004), cert. denied, 125 S. Ct. 863

(2005) ......... bdceaisnceadisueadew ex: 12, 14, 15, 21

United States v. Flores-Montano, 541 U.S. 149 (2004) .. 22

United States v. Kincade, 379 F.3d 813 (9th Cir. 2004),

cert. denied, 125 S. Ct. 1638 (2005) .................. 25

United States v. Knights, 534 U.S. 112

tT aduneenncenesneeseeeée 1, 7, 8, 17, 18, 19, 26, 28, 29

United States v. Martinez-Fuerte,

SUED “ecb ccc ddeccensvccococeccccccecs 28

Cases—Continued: Page

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

cert. denied, 537 U.S. 822 (2002) ...........--0000- 1,27

United States v. Montoya de Hernandez,

SE EE hb bdb pkeventbwcebescdéGessvedses 7, 22

United States v. Ramsey, 431 U.S. 606 (1977) .......... 22

United States v. Reyes, 283 F.3d 446 (2d Cir.),

cert. denied, 537 U.S. 822 (2002) ...............0005. 12

United States v. Villamonte-Marquez,

Ss ED bb dd occocdavidevondetcedevies 7

United States v. Watson, 423 U.S. 411 (1976) .......... 15

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

GED scvdvedonrededticdstcusnesécteovidoes 10, 11, 16

Whren v. United States, 517 U.S. 806 (1996) ........... 21

Wyman v. James, 400 U.S. 309 (1971)... 0... ce eee eee 7

Constitution and statutes:

WE Com Bee, FY oc ccccccccccsccccccs 7, 8, 18, 24, 27

Sentencing Reform Act of 1984, Pub. L. No.

98-473, Tit. II, ch. IT:

§ 218(aX(5), 98 Stat. 2027 .... 0... eee ee eee e wees 1

OI GREE BITE oc ccccicvescccccscccccces 1

United States Parole Commission Extension and

Sentencing Commission Authority Act of 2005, Pub.

L. No. 109-76, § 2, 119.Stat. 2085 ............-eeeeee: 2

18 U.S.C. 3563(a)(5) ..... OCD OE CE | SAB EEE 23

SIE siicsiiresceveeescccckas egeverss Oe

Vil

Statutes—Continued: Page

LID i ccgtlins cdnsteadcccosodeccscabaoes 2

ED Wk tcvessvccddwceccegsinsosecinsees 2

PEED Vnnccdbestnenpacticescdnegchoan 10, 23

PE EY SvkdoSéldacecvenssvdeccgtuccidegpecus 2

SP GIED debs ccsccdiccdasdccbuscdveducss 2

Cal. Health & Saf. Code § 11377(a) (West 1991) ....... 4

Cal. Penal Code (West): |

PE Sveti cctaccvnccedcéscesscaieds 4

DP GEE cdccdedeccecudecccecvesreestcen sec 26

FE en ce ccdavoncecsadecseesiuces 4

NED Ki ds dccdvccesccddccscdsdecne 12

SP Avicepiddonccatmqvecesenibeeseiiies 10

DP TE peeccpecdscccccdocncccasccvencttses 13

PIED Svidddbdcdncucvascvesawecsheams 2, 13

RAED DUS6d bb codcdeccccssccdusessececes 21

Cal. Code Regs., tit. 15 (2005):

DUE eo idedescecdanticccasdccoccccseccconedeses 10

PEE “sddehedcdedunasanscehsonsecdseanedacteqnes 10

Miscellaneous:

Assem. Comm. on Pub. Safety, Comm. Rep. for

Assembly Bill 2284, 1995-1996 Reg. Legis. Session

ON RE aD Ros Aa RS Be 13, 19

California Att’y Gen., Crime in California 37 (Apr.

WR hn hichs hecho sonidicads wcktacnicoceus 14

Joan Petersilia, Challenges of Prisoner Reentry and

Parole in California 12 CPRC (June 2000) ......... 14

Jeremy Travis & Sarah Lawrence, California's

Parole Experiment, Cal. J., Aug. 2002 _............. 14

VIII

Miscellaneous—Continued: Page

US. Parole Comm'n, Rules & Procedure Manual

GREET Cdkinced cance radsticcawnastausacasounes 23

In the Supreme Court of the Anited States

No. 04-9728

DONALD CURTIS SAMSON, PETITIONER

v.

STATE OF CALIFORNIA

ON WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL

FIRST APPELLATE DISTRICT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case presents the question whether the Fourth

Amendment prohibits the suspicionless search of a pa-

rolee pursuant to a state statute authorizing the search.

The federal government prosecutes cases in which evi-

dence has been obtained pursuant to state parole or pro-

bation searches. See United States v. Knights, 534 U.S.

112 (2001). Moreover, federal courts in some cases have

imposed a similar search condition on federal prisoners

serving a term of supervised release.’ See, e.g., United

' Parole was abolished in the federal system as of November 1,

1987, in favor of supervised release, which is overseen by the sentencing

court rather than the United States Parole Commission. See Johnson

v. United States, 529 U.S. 694, 696-697 (2000); Sentencing Reform Act

of 1984, Pub. L. No. 98-473, Tit. II, Ch. II, §§ 218(a\(5), 235(a)(1), 98

(1)

2

States v. Monteiro, 270 F.3d 465 (7th Cir. 2001). The

United States has participated in other cases involving

Fourth Amendment challenges to state parole and pro-

bation conditions, see Pennsylvania Bd. of Probation &

Parole v. Scott, 524 U.S. 357 (1998); Griffin v. Wiscon-

sin, 483 U.S. 868 (1987). The United States thus has a

significant interest in the Court’s disposition of this

case.

STATEMENT

1. In September 2002, petitioner was on state parole

in California, following a conviction for being a felon in

possession of a firearm. J.A. 10, 47, 49. One of the man-

datory conditions of his parole was that he agree to be

subject to “search or seizure by a parole officer or other

peace officer at any time of the day or night, with or

without a search warrant and with or without cause.”

Cal. Penal Code § 3067(a) (West 2000); J.A. 10 n.3, 47-48.

Petitioner signed a form agreeing to this condition. J.A.

49.

On the afternoon of September 6, 2002, Officer Alex

Rohleder of the San Bruno, California, Police Depart-

ment, saw petitioner, accompanied by a woman and a

Stat. 2027, 2031. Supervised release is imposed “as a part of the

sentence” to follow imprisonment, with the length of the term varying

depending on the severity of the offense (18 U.S.C. 3583¢a) and (b)).

Supervision is carried out by probation officers (18 U.S.C. 3601). Parole

and supervised release are quite similar; as with parole, supervised

release is intended to “improve the odds of a successful transition from

the prison to liberty.” Johnson, 529 U.S. at 708-709. The Parole

Commission still exists by virtue of several statutory extensions, see

United States Parole Commission Extension and Sentencing Com-

mission Authority Act of 2005, Pub. L. No. 109-76, § 2, 119 Stat. 2035,

and United States probation officers supervise federal parolees under

the authority of 18 U.S.C. 4203(b)(4).

3

small child, walking down the street. Officer Rohleder

recognized petitioner from a prior contact and knew that

he was on parole. Rohleder had heard from other offi-

cers that petitioner “might have a parolee at large war-

rant.” J.A. 10. Rohleder parked his patrol car, ap-

proached petitioner and asked if he could speak with

him. J.A. 10, 32.

Officer Rohleder asked petitioner if “he had a war-

rant at that time.” J.A. 10. Petitioner replied that there

had been a parole warrant for his arrest, but that he

“had already taken care of it” and had been “released

from custody.” J.A. 10, 32, 36. Rohleder knew that

when San Francisco police officers previously arrested

petitioner for a domestic violence incident, petitioner

had stated that the police “weren’t going to take him

back to prison.” J.A. 10, 35, 39, 43-44. Rohleder learned

by radioing his dispatcher that petitioner had finished

serving a term for a prior parole violation, and that he

was not subject to a parole warrant.’ Rohleder decided

>to conduct a parole search of petitioner because it was a

condition of parole. J.A. 10, 36-38. Rohleder explained:

“I believe that being [a] parolee, that [petitioner] needs

to make sure he’s still obeying the laws. It’s a privilege

for him to be out here.” J.A. 10, 38. Rohleder testified

that he did not search parolees “all the time,” but con-

ducted parole searches on a “regular basis.” J.A. 11, 39,

44. Rohleder intended to let petitioner go if he had

nothing illegal on him. J.A. 11, 44. During the search,

° At the suppression hearing, petitioner’s parole agent testified that

petitioner had been released in September 2001 after serving 10

months’ imprisonment for a parole violation. J.A. 50-51. Further, on

June 24, 2002, petitioner was arrested on a parole warrant, placed in

custody, and released on August 28, 2002, less than two weeks before

the challenged search. J.A. 51-52.

4

which Officer Rohleder conducted following a prelimi-

nary pat-down for weapons, J.A. 65, Rohleder found a

cigarette box in petitioner’s left breast pocket. Inside

the box was a plastic baggie containing methamphet-

amine. J.A. 11, 33.

2. Petitioner was charged with possession of meth-

amphetamine (Cal. Health & Safety Code § 11377(a)

(West 1991)) and moved to suppress the evidence. The

trial court denied the motion, finding that the search

was authorized, “prudent,” and neither arbitrary nor

capricious. J.A. 63. Petitioner proceeded to trial and

was convicted by a jury of the charge against him. J.A.

9. After finding that petitioner had a prior felony con-

viction (Cal. Penal Code § 1170.12(c)(1) (West 2004)) and

had served prior prison terms (id. § 667.5(b) (West

1999)), the trial court sentenced petitioner to seven

-years of imprisonment. J.A. 7, 9.

3. The California Court of Appeals, relying on Peo-

ple v. Reyes, 968 P.2d 445 (Cal. 1998), cert. denied, 526

U.S. 1092 (1999), upheld the parole search. J.A. 9-14. In

Reyes, the California Supreme Court rejected a chal-

lenge to the constitutionality.of tae State’s parole search

condition, holding that a parolee within the State is

properly subject to suspicionless searches so long as

they are not “arbitrary, capricious, or harassing.” 968

P.2d at 450. The California Court of Appeals in this case

found “nothing arbitrary or capricious in the search.”

J.A. 13. In particular, the court found that Officer

Rohleder had not detained petitioner “indiscriminately

or at his whim, but rather recognized him as a parolee,

and thought he may be subject io an outstanding ‘pa-

rolee at large warrant.’” J.A. 14 (quoting J.A. 32). The

court further found that “(t]he lawful basis for the

search did not dissipate when Rohleder learned that the

u

5

warrant was not active,” because petitioner’s parole sta-

tus justified a search, as Rohleder testified, “to deter-

mine whether [petitioner], as a parolee, was ‘still obey-

ing the laws.’” Jbid. (quoting J.A. 38). The reasonable-

ness of the search was additionally supported by “[t]he

testimony by Officer Rohleder that he customarily

searches identified parolees” because that practice “in-

dicates that the search was not conducted by the officer

for the purpose of harassment or due to any personal

animosity toward [petitioner].” Jbid. Finally, the court

found that the search “was not unreasonable in duration

or the circumstances of its execution.” /bid.

4. The California Supreme Court denied petitioner’s

petition for review. J.A. 30.

SUMMARY OF ARGUMENT

The suspicionless search of petitioner in accordance

with his statutorily mandated parole condition is consti-

tutional under the special needs doctrine. Under that

doctrine, special governmental interests “beyond the

normal need for law enforcement” (Griffin v. Wisconsin,

483 '].S. 868, 873 (1987)) will justify searches conducted

without a warrant or probable cause where the State’s

special needs outweigh the searched party’s privacy in-

terests.

In Griffin, this Court upheld the warrantless search

of a probationer’s home without probable cause because

it was conducted pursuant to a state regulation designed

to serve the special need of supervising probationers.

The Court explained that the State’s interest in rehabili-

tating probationers and in protecting the community

from their commission of additional crimes justified re-

laxing the traditional warrant and probable cause re-

6

quirements with respect to a class of persons whose lib-

erty is only “conditional.” Griffin, 483 U.S. at 874-880.

California’s operation of its parole system presents

a special need no less than Wisconsin’s operation of its

probation system. Parolees present a serious threat to

public safety. California’s need to combat that threat

and to ensure that parolees’ behavior remains consistent

with their conditions of parole outweighs the parolee’s

substantially diminished expectation of privacy. Califor-

nia’s judgment that those twin goals are most effectively

served by authorizing suspicionless searches is reason-

able and entitled to deference. The California Supreme

Court has addressed the concern that a suspicionless

search condition affords police officers too much discre-

tion by holding that a parolee retains Fourth Amend-

ment protection against arbitrary, capricious, or harass-

ing searches. The California legislature has reinforced

that protection by forbidding searches conducted solely

for purposes of harassment.

California’s decision to enlist police officers in the

administration of its parole regime does not remove this

case from the special needs domain. Griffin made clear

that the State’s operation of its probation system is a

special need notwithstanding that a principal goal of

that system is to combat recidivism and notwithstanding

the close nexus between probation officers and other law

enforcement officers. The State’s special need to super-

vise parolees. is no less served by authorizing a police

officer to search a parolee, so long as that search is con-

ducted in accordance with the regulatory regime, as was

the case here.

Even if this Court concludes that the special needs

doctrine is inapplicable, the search is constitutional un-

der the totality-of-the-circumstances test that this Court

7

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

That test, like the special needs test, balances the indi-

vidual’s privacy interests against the government inter-

ests served by the search, but, of course, does not re-

quire that those government interests constitute a spe-

cial need. That balancing comes out in the State’s favor,

just as it does under special needs, because a parolee’s

privacy interests are severely diminished and the State

has an overwhelming interest in combating recidivism

by parolees under its supervision.

ARGUMENT

A SUSPICIONLESS SEARCH OF A PAROLEE AUTHO-

RIZED BY A PAROLE CONDITION MANDATED BY

STATUTE COMPLIES WITH THE FOURTH AMEND-

MENT

The suspicionless search of petitioner conducted pur-

suant to a parole search condition mandated by statute

did not violate the Fourth Amendment. “The fundamen-

tal command of the Fourth Amendment is that searches

and seizures be reasonable.” New Jersey v. T.L.O., 469

U.S. 325, 340 (1985). See United States v. Montoya de

Hernandez, 473 U.S. 531, 537 (1985); United States v.

Villamonte-Marquez, 462 U.S. 579, 588 (1983). In defin-

ing the contours of reasonableness under the Fourth

Amendment, this Court has repeatedly said that “the

specific content and incidents of this right must be

shaped by the context in which it is asserted.” Wyman

v. James, 400 U.S. 309, 318 (1971) (quoting Terry v.

Ohio, 392 U.S. 1, 9 (1968)).

The relevant context here is that petitioner was on

parole when Officer Rohleder conducted the search. In

Griffin v. Wisconsin, 483 U.S. 868 (1987), this Court

upheld, under the “special needs” doctrine, the

8

warrantless search of a probationer’s home that was

conducted pursuant to a Wisconsin regulation and sup-

ported by reasonable suspicion. And in United States v.

Knights, 534 U.S. 112 (2001), this Court upheld, under

the “totality of the circumstances,” a warrantless search

of a probationer’s home that was conducted pursuant to

a probation search condition and supported by reason-

able suspicion.

Griffin and Knights both emphasized that proba-

tioners are categorically different from ordinary citizens

for purposes of the Fourth Amendment because proba-

tioners have a diminished expectation of privacy (Grif-

fin, 483 U.S. at 874; Knights, 534 U.S. at 119), and be-

cause they are “more likely than the ordinary citizen to

violate the law.” Griffin, 483 U.S. at 880; see Knights,

534 U.S. at 121. Both decisions also emphasized the im-

portance of the State’s need to combat recidivism. Grif-

fin, 483 U.S. at 875, 876, 878, 880; Knights, 534 U.S. at

120-121. As explained below, the reasons this Court

identified in Griffin and Knights for upholding the pro-

bation searches there support the conclusion that the

search of petitioner, a parolee subject to a statutory

search condition and protected against oppressive or

harassing searches, was constitutional under either

Griffin’s special needs rationale or Knights’s general

totality-of-the-circumstances approach.

A. The Parole Search Of Petitioner Was Constitutional

Under The Special Needs Doctrine

Under this Court’s “special needs” doetrine, special

governmental interests “beyond the normal need for law

enforcement, make the warrant and probable-cause re-

quirement impracticable.” Griffin, 483 U.S. at 873. In

such cases, the Court “employ{s] a balancing test that

9

-weigh[s] the intrusion on the individual’s interest in pri-

vacy against the ‘special needs’ that supported the pro-

gram.” Ferguson v. City of Charleston, 532 U.S. 67, 78

(2001). Applying that test here, California’s interests in

ensuring that parolees honor the conditions that justi-

fied their conditional release and in combating parolee

recidivism create a special need that justifies permitting

police officers to conduct suspicionless searches of parol-

ees pursuant to a search condition mandated by statute.

1. The parolee’s privacy interest is minimal

A parolee does not enjoy “the absolute liberty to

which every citizen is entitled, but only * * * the condi-

tional liberty properly dependent on observance of spe-

cial parole restrictions.” Morrissey v. Brewer, 408 U.S.

471, 480 (1972); see Griffin, 483 U.S. at 874 (emphasiz-

ing conditional liberty of probationers). Indeed;

“{pjarole is a ‘variation on imprisonment of convicted

criminals,’ in which the State accords a limited degree of

freedom in return for the parolee’s assurance that he

will comply with the often strict terms and conditions of

his release.” Pennsylvania Board of Probation & Parole

v. Scott, 524 U.S. 357, 365 (1998) (quoting Morrissey,

408 U.S. at 477). For that reason, the degree of privacy

that a parolee may legitimately expect cannot be deter-

mined by reference to the privacy rights of the popula-

tion at large. Rather, it must be judged by reference to

the legally authorized treatment of convicted offenders

and, more particularly, the character and purposes of

parole. |

Parole “significantly restrain{s] [a parolee’s] liberty

to do those things which in this country free men are

entitled to do.” Jones v. Cunningham, 371 U.S. 236, 243

(1963). As a legal matter, “{ujntil discharged from pa-

10

role, [a prisoner] remains under the custody of the De-

partment of Corrections.” See Cal. Penal Code § 3056

(West 2000) (“Prisoners on parole shall remain under

the legal custody of the department and shall be subject

at any time to be taken back within the inclosure of the

prison.”). Consistent with the parolee’s status as a con-

victed criminal whose release is conditional, California

law imposes substantial restrictions on a parolee’s free-

dom of action. For example, California parolees must

report to their parole officer immediately upon release;

inform their parole officer about a change of employ-

ment location or status within 72 hours; obtain prior

approval from their parole officer for travel beyond 50

miles from their residence and prior written approval to

leave California or to stay outside their county of resi-

dence for more than 48 hours; and must not possess fire-

arms and many other types of weapons. Cal. Code

Regs., tit. 15 § 2512 (2005). In addition, many parolees

must participate in psychiatric treatment; abstain from

drinking alcohol; submit to drug testing; and refrain

from participating in gang activity. Jd. § 2513.°

Given the extensive range of impairments of freedom

to which parolees have long been subjected, their expec-

tation of privacy is substantially diminished. Cf.

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654-657

(1995) (concluding that student athletes “have a reduced

expectation of privacy” in large part on account of the

regulations that flow from “the schools’ custodial and

tutelary responsibility for children”); Skinner v. Rail-

way Labor Executives’ Ass’n, 489 U.S. 602, 627 (1989)

(concluding that railroad employees’ expectation of pri-

* Similar restrictions are imposed on supervised releasees in the

federal system. See 18 U.S.C. 3583(d).

11

vacy is “diminished by reason of their participation in an

industry that is regulated pervasively to ensure safety”).

Because the scope of petitioner’s legitimate expectation

of privacy is so narrow, the State has substantial lati-

tude to impose intrusive conditions in effecting its su-

pervisory responsibilities over him. See Scott, 524 U.S.

at 365 (rejecting application of exclusionary rule to pa-

role revocation proceedings, which “States have wide

latitude under the Constitution to structure” because

parolees enjoy only conditional liberty); Acton, 515 U.S.

at 654 (observing that custodial relationship between

student and “State as schoolmaster” is “[c]entral” to

reasonableness of suspicionless drug testing of student

athletes); Board of Educ. of Indep. Sch. Dist. No. 92 v.

Earls, 536 U.S. 822, 831 (2002) (observing that decision

in Acton “depended primarily upon the school’s custo-

dial responsibility and authority” and relying on that

same factor to uphold suspicionless drug testing of stu-

dents engaged in extracurricular activities).

2. The State's interest in effectively supervising

parolees presents a “special need” justifying

suspicionless searches

Balanced against petitioner’s substantially dimin-

ished privacy rights is California’s compelling interest

in effectively supervising him. In Griffin, this Court

upheld a warrantless search of a probationer’s home

that was conducted on reasonable suspicion pursuant to

a Wisconsin regulation. The Court explained that the

“State’s operation of a probation system, like its opera-

tion of a school, government office or prison, or its su-

pervision of a regulated industry, * * * presents ‘special

needs’ beyond normal law enforcement” that justified a

“departure[} from the usual warrant and probable-cause

12

requirements.” 483 U.S. at 873-874. In particular, the

Court identified rehabilitation of the offender and pro-

tection of the community from recidivism as the two

“goals” that justify “the exercise of supervision to as-

sure that the restrictions [on liberty] are in fact ob-

served.” Jd. at 875.

California’s operation of its parole system presents

no less of a special need. Indeed, California “has an

‘overwhelming interest’ in ensuring that a parolee com-

plies with” the “conditions of his release.” Scott, 524

U.S. at 365 (quoting Brewer, 408 U.S. at 483). Parolees,

in contrast to the probationers at issue in Griffin, “have

been sentenced to prison for felonies and released be-

fore the end of their prison terms.” United States v.

Crawford, 372 F.3d 1048, 1077 (9th Cir. 2004) (en banc)

(Kleinfeld, J., coneurring), cert. denied, 125 S. Ct. 863

(2005). See Cal. Penal Code §§ 3000 et seg. (West 2000).

As such, they are “deemed to have acted more harmfully

than anyone except those felons not released on parole.”

Crawford, 372 F.3d at 1077 (Kleinfeld, J., concurring). -

See Hudson v. Palmer, 468 U.S. 517, 526 (1984) (those

sentenced to terms of imprisonment “have a demon-

strated proclivity for antisocial criminal, and often vio-

lent, conduct”). Because parolees as a class have been

adjudged more dangerous than probationers, the super-

visory needs of the State recognized in Griffin concern-

ing probation searches apply with even greater force to

parole searches. See United States v. Reyes, 283 F.3d

446, 461 (2d Cir.) (Griffin principles “apply a fortiori” to

“federal supervised release, which, in contrast to proba-

tion, is meted out in addition to, not in lieu of, incarcera-

tion”) (citation omitted), cert. denied, 537 U.S. 822

(2002).

13

California amended its parole scheme in 1996 by im-

posing a suspicionless search condition to which all in- ‘

mates must agree to secure release. Cal. Penal Code

§ 3067(a) (West 2000) (requiring inmate to agree to per-

mit warrantless searches, regardless of cause, as a man-

datory condition of parole); see People v. Willis, 46 P.3d

898, 908 (Cal. 2002). The author of the bill explained:

“Prison inmates are released early from prison regard-

less of the threat they pose to our communities. We

must give our local law enforcement officers the tools.

they need to adequately supervise these parolees.” As-

sembly Comm. on Pub. Safety, Comm. Rep. for Assem-

bly Bill 2284, 1995-1996 Reg. Legis. Session (Cal. 1996)

(Bill No. 2284). See People v. Middleton, 131 Cal. App.

4th 732, 739-740 (Ct. App. 2005) (discussing legislative

history of 1996 parole amendments).

Available statistics bear out the pressing need for

intensive supervision of parolees. As of August 2000,

California had 158,177 inmates in its prisons. During

* The California Supreme Court held in People v. Reyes, 968 P.2d

445, 448 (1998), that the consent exception cannot validate the search of

an adult parolee because parole was “not a matter of choice” under

California’s Determinate Sentencing Act of 1976. Petitioner was not

sentenced under that scheme, however. Under the law enacted in 1996

and applicable to inmates released on parole for offenses “committed

on or after January 1, 1997,” an inmate’s release on parole is

conditioned on acceptance of the parole condition. See Cal. Penal Code

§ 3067 (West 2000). In light of the new law, the government submits,

as it argued in United States v. Knights, No. 00-1260, that petitioner

validly consented to suspicionless parole searches as a condition of his

parole, which rendered the search of his person by Officer Rohleder

reasonable within the meaning of the Fourth Amendment. See Green

v. Berge, 354 F 3d 675, 680 (7th Cir. 2004) (Easterbrook, J., concurring)

(“People who object to the conditions of release before the end of their

sentences may say no and remain in prison; if they say yes, they have

consented to the conditions.”).

14

that year, 126,117 inmates were released on parole. Of

that number, 90,000 were returned to prison, following

either a conviction for a new crime or for violating a con-

dition of parole. Crawford, 372 F.3d at 1069 (Trott, J.,

concurring) (citing Jeremy Travis & Sarah Lawrence,

California’s Parole Experiment, Cal. J., Aug. 2002).

Further, an April 2001 report prepared by the Califor-

nia Crimina) Justice Statistics Center indicates that

“68% of adult parolees are returned to prison: 55% for

a parole violation and 13% for the commission of a new

felony offense.” /bid. (citing California Attorney Gen-

eral, Crime in California 37 (Apr. 2001)). And the Cali-

fornia Policy Research Center reports that “70% of the

state’s paroled felons reoffend within 18 months.” /bid.

(citing Joan Petersilia, Challenges of Prisoner Reentry

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

Recidivism thus is undeniably a special and extraor-

dinary problem. See Ewing v. California, 538 U.S. 11,

26 (2003) (opinion of O’Connor, J.) (observing that

“[rjecidivism is a serious public safety concern in Cali-

fornia and throughout the Nation” that justifies Califor-

nia’s “three-strikes” law). Moreover, independent of the

concern with parolees committing new crimes, the State

has an interest in ensuring that parolees live up to their

conditions of parole. Likewise, the fact that parolees are

subject to re-incarceration for conduct that is not other-

_ wise criminal—e.g., from failure to report to association

with gang members—underscores how differently situ-

ated they are from ordinary citizens. And, of course, the

prospect of recidivism only magnifies the importance of

vigilance in enforcing parole conditions. Given the

alarming numbers of prisoners who commit new offenses

shortly after being released on parole, it is difficult to

overstate the State’s interest in closely monitoring and

15

supervising parolees to ensure that they comply with the

conditions of their release. See Crawford, 372 F.3d at

1070-1071 (Trott, J., concurring) (“{T}he control and

supervision of parolees as they reintegrate into society

[thus] involves an arena far different from the needs of

‘normal’ law enforcement.”). Indeed, the State has a

special obligation to prevent crimes by parolees because

they are under its supervision and because the State has

chosen to release the parolee from confinement before

the end of his sentence.

3. California’s decision to subject parolees to

suspicionless searches is a reasonable means of

meeting its special supervisory needs

California has made the judgment that it can most

effectively supervise parolees and thereby protect public

safety by authorizing parole and police officers to con-

duct suspicionless searches. This Court should respect

that judgment because California is entitled to reason-

able latitude in developing the most effective policies

to combat parolee recidivism. See Ewing, 538 U.S.

at 24-25 (opinion of O’Connor, J.) (“([OJur tradition of

deferring to state legislatures in making and implement-

ing * * * important policy decisions” implicating public

safety “is longstanding.”) (citing cases); Heller v. Doe,

509 U.S. 312, 320 (1993) (“A statute is presumed consti-

tutional, and the burden is on the one attacking the leg-

islative arrangement to negative every conceivable basis

which might support it.”) (internal quotation marks and

citation omitted); cf. United States v. Watson, 423 U.S.

411, 416 (1976) (“Because there is a strong presumption

of constitutionality due to an Act of Congress, especially

when it turns on what is “reasonable,” [o]bviously the

Court should be reluctant to decide that a search thus

16

authorized by Congress was unreasonable and that the

Act was therefore unconstitutional.”) (internal quotation

marks omitted).

This Court has upheld several other suspicionless

search regimes as effective means to meet governmental

special needs. See Earls, supra; Acton, supra; Skinner,

489 U.S. at 624 (“[A] showing of individualized suspicion

is not a constitutional floor, below which a search must

be presumed unreasonable.”); National Treasury Em-

ployees Union v. Von Raab, 489 U.S. 656 (1989) (uphold-

ing suspicionless drug testing of Customs Service em-

ployees whose jobs would involve drug interdiction or

require carrying firearms). The result here should be

no different.

In upholding the constitutionality of a parole condi-

tion authorizing police officers and parole officers to

conduct suspicionless searches, the California Supreme

Court concluded that “the purpose of the search condi-

tion is to deter the commission of crimes and to protect

the public, and the effectiveness of the deterrent is en-

hanced by the potential for random searches.” People v.

Reyes, 968 P.2d 445, 451 (1998). That conclusion about

the deterrent effect of random searches is unassailable.

A suspicionless search condition provides a powerful

incentive for the parolee to comply with parole condi-

tions and avoid further criminal behavior because, by

increasing the likelihood that improper behavior will be

detected, it dramatically increases the risk he faces by

engaging in conduct that violates the terms of his parole.

See Griffin, 483 U.S. at 875 (“Recent research suggests

that more intensive supervision can reduce recidivism.”);

cf. Palmer, 468 U.S. at 528 (“The uncertainty that at-

tends random searches of cells renders these searches

perhaps the most effective weapon of the prison admin-

17

istrator in the constant fight against the proliferation of

{weapons and drugs].”); United States v. Biswell, 406

U.S. 311, 316 (1972) (upholding statutorily authorized

warrantless search of the defendant gun dealer’s locked

storeroom because, among other reasons, “unan-

nounced, even frequent, inspections are essential” to

deter and detect illegal firearms trafficking).

California could reasonably have concluded that a

parole search condition pegged to a reasonable suspicion

standard would not provide a sufficient level of deter-

rence. If the possibility of a search is remote, the search

condition will not influence the parolee’s conduct or fer-

ret out misconduct carried out with stealth. Because

many parole violations and many crimes, including the

one for which petitioner was prosecuted here, are rela-

tively easy to conceal, and because parolees, facing the

threat of parole revocation, have a special incentive to

conceal them, see Knights, 534 U.S. at 120, a search con-

dition predicated on reasonable suspicion may well fail

to deter violations as effectively as the suspicionless

search condition California has required. See Owens v.

Kelley, 681 F.2d 1362, 1368 (11th Cir. 1982) (“[A] re-

quirement that searches only be conducted when offi-

cers have ‘reasonable suspicion’ or probable cause

that a crime has been committed or that a condition

of probation has been violated could completely under-

mine the purpose of the search condition.”); People v.

McCullough, 6 P.3d 774, 781 (Colo. 2000) (en banc)

(“Requiring individualized suspicion would eliminate a

powerful deterrent to parole violations and, conse-

quently, would place in jeopardy the State’s overwhelm-

ing interest in ensuring that a parolee complies with the

conditions of his parole.”).

‘

18

A search condition based on reasonable suspicion

also might not be as effective in detecting criminal activ-

ity and removing a recidivist or parole violator from the

street in the event deterrence fails, as it did here. As

this Court explained in Von Raab, searches conducted

“without any measure of individualized suspicion” may

be justified where the government not only “seeks to

prevent the development of hazardous conditions,” but

also “to detect violations that rarely generate articulable

grounds for searching any particular place or person,”

and where the government’s need to do so “is suffi-

ciently compelling.” 489 U.S. at 668 (emphasis omit-

ted). California’s interest in combating recidivism

and parole violations by offenders under its supervision

amply justifies suspicionless searches of parol-

ees—individuals who, by virtue of their criminal convic-

tion, pose a demonstrated threat to the safety of the

community, and whose high rates of recidivism have

been thoroughly documented. Cf. Von Raab, 489 U.S. at

673, 677 (upholding suspicionless drug testing of Cus-

toms officers in the absence of any documented history

of drug use by those employees). °

. Given the enormous number of inmates who are released on parole

each year and given their high rate of recidivism, petitioner’s

suggestion (Pet. Br. 27) that suspicionless search conditions be

approved on a case-by-case basis is not well taken. This Court has

permitted the State to regard offenders in the criminal justice system

categorically as a threat to public safety, see Knights, 534 U.S. at 121;

Scott, 524 U.S. at 365; Griffin, 483 U.S. at 880, and there is no sound

reason to depart from that approach here. See Earls, 536 U.S. at 837

(“(T)his Court has repeatedly stated that reasonableness under the

Fourth Amendment does not require employing the least intrusive

means.”).

* Petitioner asserts (Pet. Br. 23) that suspicionless searches could

undermine the State’s interest in rehabilitating prisoners and rein-

19

4. An officer’s discretion to conduct searches is not

unbridled 2

One of petitioner’s principal complaints abeut the

suspicionless search condition is that it gives law en-

forcement officers “[uJnconstrained [d]iscretion.” Pet.

Br. 17. Petitioner is mistaken for several reasons.

First, the authority is strictly limited to parolees. The

greatest concern presented by the provision of too much

discretion to police officers is that they will intrude on

the privacy of ordinary citizens. See Delaware v.

Prouse, 440 U.S. 648, 657 (1979) (invalidating random

stops of motorists for license and registration check be-

cause, among other reasons, stops can involve “unset-

tegrating them into society because the indignity of such searches will

breed resentment in the parolee. The State could reasonably conclude,

however, that whatever the risk that suspicionless searches might trig-

ger parolee resentment to a degree that would undermine rehabilita-

tion, that risk was far outweighed by the immediate need to ensure that

important steps deemed vital to rehabilitation are taking place and to

protect the public from further criminal conduct. See Middleton, 131

Cal. App. 4th at 740 n.7 (law establishing the parole condition at issue

here “places public safety before all other concerns when deciding

whether or not to release a state prison inmate”) (quoting Bill No. 2284,

at 3). It is for state policymakers, rather than the courts, to make the

essentially empirical judgment about the proper balance of consi-

derations bearing on the net efficacy of search conditions.

Petitioner also contends (Pet. Br. 23-24) that a suspicionless search

condition discourages others from sharing a residence with parolees.

That issue is not presented by this case, which involves the search of

petitioner on a public street. See Knights, 534 U.S. at 120 n.6 (declining

to decide whether probation search condition authorizing suspicionless

searches is constitutional because the search at issue was supported by

reasonable suspicion); Smith v. Maryland, 442 U.S. 735, 741 (1979) (in

deciding whether an expectation of privacy is reasonable, “it is

important to begin by specifying precisely the nature of the state

activity that is challenged”).

20

tling show of authority” that “interfere[s} with freedom

of movement” and “may create substantial anxiety”).

That concern is not implicated by California’s statutory

parole scheme because an officer is entitled to conduct

suspicionless searches only of persons known by him to

be parolees. See, e.g., People v. Sanders, 73 P.3d 496,

505 (Cal. 2003) (search cannot be justified as a valid pa-

role search unless officer is aware that the suspect is on

parole and subject to a search condition).

Parolees cannot reasonably expect that law enforce-

ment will give them the same degree of privacy as ordi-

nary citizens enjoy. Rather, parolees can reasonably

anticipate that, in their encounters with parole officers

or the police, the authorities may well need to seek ob-

jective assurance that the parolee is in compliance with

the conditions of his release. And petitioner here, hav-

ing signed an agreement providing that he could be

searched by a parole or police officer at any time with or

without a warrant or cause, had no basis on which to

claim surprise or to be concerned that Officer Rohleder

lacked authority when he conducted the search. See

New York v. Burger, 482 U.S. 691, 711 (1987) (“the vehi-

cle dismantler knows that the inspections to which he is

subject do not constitute discretionary acts by a govern-

ment official but are conducted pursuant to statute”);

Biswell, 406 U.S. at 316 (“When a [gun] dealer chooses

to engage in this pervasively regulated business * * *, he

does so with knowledge that his business records, fire-

arms, and ammunition will be subject to effective inspec-

tion.”).

Second, the California Supreme Court has held that

_a parole condition authorizing suspicionless searches

does not authorize searches that are “arbitrary, capri-

cious or harassing.” Reyes, 968 P.2d at 450. The

21

Reyes court elaborated that “a parole search could be-

come constitutionally ‘unreasonable’ if made too often,

or at an unreasonable hour, or if unreasonably pro-

longed or for other reasons establishing arbitrary or

oppressive conduct by the searching officer.” /d. at 451

(internal quotation marks omitted). The limitations on

timing, frequency, duration, and oppressiveness are ob-

jective protections against unreasonable searches. The

court further explained that a search is “arbitrary and

capricious” when its motivation is “unrelated to rehabili-

tative, reformative or legitimate law enforcement pur-

poses.” /bid. The statute authorizing suspicionless pa-

role searches supplements those standards, requiring

that they not be conducted for the purpose of harass-

ment. See Cal. Penal Code § 3067(d) (West 2000).

These statutory and judiciaily crafted restrictions are

“meaningful” and “represent workable standards state

and federal courts apply every day in assessing the pro-

priety of a variety of government actions.” Crawford,

372 F.3d at 1072 (Trott, J., concurring).’

Petitioner contends (Pet. Br. 19) that the suspicion-

less search condition authorizes “strip searches and

body cavity searches” merely because of his status as a

parolee. But Reyes held that a suspicionless search con-

dition does not extinguish petitioner’s rights under the

Fourth Amendment, which proscribes searches carried

out in an unreasonable manner. 968 P.2d at 450-451.

See Terry, 392 U.S. at 18 (“[A] search which is reason-

able at its inception may violate the Fourth Amendment

by virtue of its intolerable intensity and scope.”). There

" Other constitutional protections also exist. See, eg., Whren v.

United States, 517 U.S. 806, 813 (1996) (observing that the Equal

Protection Clause “prohibits selective enforcement of the law based on

considerations such as race”).

22

is nothing inconsistent in saying that suspicionless

searches of parolees are generally reasonable, but a par-

ticular manner of effectuating the search may not be.

Cf. United States v. Flores-Montano, 541 U.S. 149, 154

n.2 (2004) (upholding suspicionless border search of gas

tank and leaving open “whether, and under what circum-

stances, a border search might be deemed ‘unreason-

able’ because of the particularly offensive manner in

which it is carried out”) (quoting United States v.

Ramsey, 431 U.S. 606, 618 n.13 (1977)); United States v.

Montoya de Hernandez, 473 U.S. 531, 538, 541 (1985)

(observing in the border context that “[rJoutine searches

of the persons and effects of entrants are not subject to

any requirement of reasonable suspicion” but requiring

reasonable suspicion that traveler is smuggling contra-

band in her alimentary canal to justify prolonged deten-

tion “beyond the scope of a routine customs search and

inspection”).

Petitioner argues (Pet. Br. 21-22) that the limitations

imposed by the California Supreme Court on parole

searches are inconsistent with the general rule that the

subjective intent of a law enforcement officer plays no

role in Fourth Amendment analysis. Nothing in the

Fourth Amendment, however, precludes California from

providing an additional form of protection for parolees,

after having assured a baseline of reasonableness by the

objective standards noted above, i.e., whether a parole

search becomes unreasonable by its frequency, timing,

duration, or oppressiveness. Reyes, 968 P.2d at 451. As

petitioner points out (Pet. Br. 22), this Court in City of

Indianapolis v. Edmond, 531 U.S. 32, 46 (2000), sug-

gested that an inquiry into the purpose of a regulatory

search may be limited to the “programmatic purpose,”

but it did not deal with a statute like the one at issue in

23

this case, which makes the searching officer’s purpose

relevant.

The California Court of Appeals applied its protec-

tive standards to the facts of this case and correctly

found that Officer Rohleder’s search of petitioner was

not arbitrary or undertaken for purposes of harassment,

was not motivated by any personal animosity towards

petitioner, and was not unreasonable in duration or man-

ner of execution.® J.A. 13-14.

® Petitioner correctly points out (Pet. Br. 29-81 & n.14) that the

United States Parole Commission’s Rules & Procedure Manual (Aug.

2003) (Manual) provides that a special condition “shall permit searches

only if the Supervision Officer has a reasonable belief that contraband

or evidence of a violation of the conditions of release may be found.”

Manual § 2.204-18(b)(2), at 196 (Notes and Procedures). The Manual’s

requirement that such searches be based on reasonable suspicion,

however, is directed at the officer, was apparently premised on the

Commission’s reading of Griffin, see Manual § 2.204-18(a), at 195-196

(Notes and Procedures) (citing Griffin), and has no legal force. See,

e.g., United States v. Caceres, 440 U.S. 741 (1979). Moreover, offenders

under federal supervision are subject to certain forms of suspicionless

searches, including DNA collection and drug testing. See 18 U.S.C.

3563(aX5) and (9), 3583(d). In any event, the fact that the federal

government and other States have elected to impose an individualized

suspicion standard does not disable California from concluding that the

significant recidivist problem it faces is appropriately dealt with more

effectively by not requiring reasonable suspicion and protecting against

arbitrariness through other means. Cf. McMillan v. Pennsylvania, 477

U.S. 79, 90 (1986) (“That Pennsylvania’s particular approach [to pos-

session of a weapon] has been adopted in few other States does not

render Pennsylvania’s choice ui.constitutional” because, among other

reasons, “our federal system * * * demands tolerance for a spectrum

of state procedures dealing with a common problem of law enforce-

ment.”) (internal quotation marks and brackets omitted).

24

5. That suspicionless parole searches also serve law en-

forcement interests and may be conducted by police offi-

cers does not remove them from the ambit of the “special

needs” doctrine

Petitioner contends (Pet. Br. 33-35) that the Court’s

decisions in Edmond, supra, and Ferguson, supra, fore-

close reliance on the special needs doctrine in this case

because the search here served the general interest in

crime control and was conducted by a police officer.

That contention lacks merit.

In Edmond, the Court found unconstitutional the

suspicionless seizures of vehicles at a highway check-

point because its primary purpose was to uncover evi-

dence of drug violations—a purpose that was “indistin-

guishable from the genera! interest in crime control.”

531 U.S. at 44. Similarly, in Ferguson, this Court held

that a state hospital violated the Fourth Amendment by

testing the urine of pregnant patients for drugs, without

obtaining warrants or the consent of the patients in-

volved, and turning positive results over to the police.

532 U.S. at 76-86. The Court rejected the State’s argu-

ment that the drug testing policy’s ultimate goal of pro-

tecting the health of pregnant women constituted a

“special need” justifying the warrantless intrusions. /d.

at 81-84. The Court found “special needs” analysis to be

inapplicable because the State sought to achieve its ulti-

mate objective through the “use of law enforeement to

coerce the patients into substance abuse treatment.” Jd.

at 80.

As an initial matter, those cases are inapposite be-

cause they involved searches of ordinary citizens. Car-

rying the restrictions this Court has imposed on

searches of ordinary citizens over into searches of parol-

ees would contravene the key holding in Griffin that the

25

need to ensure that the community “is not harmed by

the probationer’s being at large” permits the State “a

degree of impingement upon [a probationer’s and pa-

rolee’s] privacy that would not be constitutional if ap-

plied to the public at large.” 483 U.S. at 875. Indeed,

the Court in Ferguson expressly distinguished Griffin

on the ground that it “is properly read as limited by the

fact that probationers have a lesser expectation of pri-

vacy than the public at large.” 532 U.S. at 80n.15. See

United States v. Kincade, 379 F.3d 813, 832 (9th Cir.

2004) (en banc) (plurality opinion) (“{TJhe whole point of

Ferguson’s having explicitly distinguished Griffin was

to harmonize the two cases—not overrule the latter.”),

cert. denied, 125 S. Ct. 1638 (2005).

Because the search regime at issue here implicates

the privacy interests of offenders in the criminal justice

system and not ordinary citizens, Griffin clearly is the

apposite precedent. The only question is whether Cali-

fornia’s decision to enlist police officers in the adminis-

tration of its parole supervision regime takes Califor-

nia’s policy outside the special needs doctrine. It does

not. Griffin holds that the pursuit of law enforcement

goals—rehabilitation and prevention of recidivism—in

the service of a regulatory regime governing the super-

vision of convicted offenders is itself a special need. See

483 U.S. at 875-880. Indeed, Griffin involved a search

that was the product of the close collaboration of law

enforcement and probation officers. See id. at 871

(search that formed basis for Griffin’s prosecution was

precipitated by tip from police and was conducted by

two probation officers who were not Griffin’s probation

officer, accompanied by three police officers). Griffin

thus makes clear that the special need that arises in the

context of probationers and parolees embodies law en-

26

forcement objectives, but is nonetheless distinct from

the “general interest in crime control” that law enforce-

ment programs targeting ordinary citizens serve.

Officer Rohleder’s search was conducted under the

auspices of a statute designed to serve the same special

supervisory goals as the regulation pursuant to which

the search was conducted in Griffin.’ No sound basis for

drawing a constitutional line between the two based on

the uniform of the law enforcement officer therefore

exists. See Cal. Penal Code § 830.5 (West 1992) (“peace

officers” include parole and probation officers); Cabell v.

Chavez-Salido, 454 U.S. 432, 443 (1982) (“Even a casual

reading of the [California] Penal Code makes clear that

the unifying character of all categories of peace officers

is their law enforcement function.”); Willis, 46 P.3d at

908-909 (parole officers, inter alia, “often work{] hand

in hand with police”; “may ‘carry firearms’ under speci-

fied terms”; may make arrests; and must be trained in

the exercise of arrest powers and use of firearms) (quot-

ing Cal. Penal Code § 830.5 (West 1992)); see also Scott,

524 U.S. at 375 (Souter, J., dissenting) (“Parole officers

* * * often serve as beth prosecutors and law enforce-

ment officials in their relationship with probationers and

parolees.”) (internal quotation marks omitted); cf. Bur-

* Contrary to petitioner’s suggestion (Pet. Br. 36), this Court in

Knights did not reject application of the special needs doctrine on the

ground that the search was related to a law enforcement purpose.

While the Court observed that the search at issue in Knights was not

“just like” the search in Griffin, it did not hold that the special needs

doctrine was inapplicable. 534 U.S. at 117-118. Rather, the Court did

not reach that issue because it “ound the search constitutional under the

totality of the circumstances regardless of whether it served a special

need. Jd. at 118-122. So too here the Court may uphold the search

under the totality of the circumstances without addressing whether it

served special needs. See Part B, infra.

27

ger, 482 U.S. at 712-717 (finding no constitutional signifi-

cance in the fact that police officers were allowed by

statute to conduct the warrantless searches of the auto-

mobile dismantling businesses and rejecting claim that

statute was designed to afford the police an expedient

way to enforce criminal laws)."° The Fourth Amendment

does not provide a ready basis for regulating state deci-

sions allocating resources and responsibilities between

parole and police officers. Combating parolees’ recidi-

vism and promoting their rehabilitation are special

needs that a state may address by authorizing police

officers to search them.”

B. The Parole Search Of Petitioner Was Constitutional

Under The Fourth Amendment’s Traditional Totality-of-

the-Circumstances Test

Knights held that searches of probationers con-

ducted without probable cause or a warrant may be con-

'° Several factors justify enlisting the assistance of police officers to

conduct parole searches. First, large caseloads may hinder a parole

officer’s ability to conduct searches, thus decreasing their deterrent

value. See United States v. Monteiro, 270 F.3d 465, 471 (7th Cir. 2001).

Second, because police officers have greater training and expertise in

conducting searches, parole officers may wish to enlist their assistance,

particularly in instances where a search may entail a significant level of

risk. Finally, permitting police officers to conduct parole searches

“enhance{s] mutual trust between [parole officers] and their [parolees]

by allowing the supervisors to avoid searching the [parolee].” Owens,

681 F.2d at 1369 & n.14 (citing United States v. Consuelo-Gonzalez, 521

F.2d 259, 270-271 (9th Cir. 1975) (Wright, J., dissenting)).

"| Outside the parole and probation context, the participation of police

officers may have a tendency to belie a stated special need unrelated to

law enforcement. But in the parole and probation context here, when

the special need is a law enforcement need distinct from general crime

control, the participation of one type of law enforcement officer rather

than another does not give rise to any comparable inference.

28

stitutional under the “general Fourth Amendment ap-

proach of ‘examining the totality of the circumstances,”

regardless of whether they serve a special need or fall

under another exception to the warrant requirement.

534 U.S. at 118, 119-122 (quoting Ohio v. Robinette, 519

U.S. 33, 39 (1996)). In so holding, the Court explained

that because a probationer is “more likely to engage in

criminal conduct than an ordinary member of the com-

munity,” the State’s “interest in apprehending violators

of the criminal law, thereby protecting potential victims

of criminal enterprise, may * * * justifiably focus on pro-

bationers in a way that it does not on the ordinary citi-

zen.” Jd. at 121."

Here, even assuming that Officer Rohleder’s role in

conducting the parole search rendered the special needs

doctrine inapplicable, the search was nonetheless consti-

tutional under Knights’s totality-of-the-circumstances

analysis. Under that test, the reasonableness of the pa-

role search is determined “by assessing, on the one

hand, the degree to which it intrudes upon an individ-

ual’s privacy, and, on the other, the degree to which it is

needed for the promotion of legitimate governmental

interests.” Knights, 534 U.S. at 118-119 (internal quota-

tion marks omitted).

‘2 Knights has thus established a flexible Fourth Amendment

framework for evaluating searches of offenders in the criminal justice

system that recognizes that such searches serve special law enforce-

ment interests and target a discrete class of individuals with diminished

privacy rights. Cf. Michigan Dep't of State Police v. Sitz, 496 U.S. 444

(1990) (upholding suspicionless seizures of motorists at sobriety

checkpoint to promote highway safety); United States v. Martinez-

Fuerte, 428 U.S. 543 (1976) (upholding suspicionless seizures of

motorists at Border Patrol checkpoint to prevent alien smuggling).

29

As explained above, parolees’ privacy rights are sig-

nificantly diminished by their status as convicted crimi-

nals under the supervision of the State, as well as by

their written agreement to subject themselves to

suspicionless searches as a condition of parole. See

Knights, 534 U.S. at 119-120 (probationer was “unam-

biguously informed of” search condition). Balanced

against that attenuated expectation of privacy is the

“overwhelming” governmental interests advanced by the

search condition. See Scott, 524 U.S. at 365."

There are other factors that provide additional sup-

port for concluding that the search was reasonable.

First, the search was conducted pursuant to a statute

that authorized it. See Burger, supra; Biswell, supra.

Second, petitioner expressly agreed to the search condi-

tion authorizing the search in order to secure his release

from prison. See note 4, supra. Third, the search took

place on a public street, not in the parolee’s home with

its heightened constitutional protections.

Finally, as crafted by the California legislature and

interpreted by the judiciary, the parole condition does

not authorize searches that are arbitrary or capricious

or for purposes of harassment; the searches may not be

motivated by factors unrelated to rehabilitation or pro-

tection of public safety and they must be conducted in a

reasonable manner. Reyes, 968 P.2d at 450-451. With

these protections against abuse in place, the absence of

individualized suspicion should not tip the balance that

'S In Knights this Court found that it is “reasonable to conclude that

the search condition would further the two primary goals of probation

—rehabilitation and protecting society from future crirninal violations.”

534 U.S. at 119. That finding applies equally to the similar parole

search condition here. See Part A(3), supra.

30

the Knights Court found weighs in favor of the State’s

interest in protecting public safety.

CONCLUSION

The judgment of the California Court of Appeal

should be affirmed.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

ALICE S. FISHER

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

JONATHAN L. MARCUS

Assistant to the Solicitor

General —

DEBORAH WATSON

Attorney

JANUARY 2006