# Amicus Curiae Brief — Samson v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0117%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2006 - **Citation:** 547 U.S. 843 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0117%3A09. Public record. Not legal advice.