Amicus Curiae Brief — Samson v. California

——

04-9728 Me | See

eee”

— FIV 23 206

IN THE Ce Trees |

Supreme Court of the United States

o_o

DONALD CURTIS SAMSON,

Petitioner,

—_VYf,——

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

ON WRIT OF CERTIORARI TO THE CALIFORNIA

COUi T OF APPEAL, FIRST APPELLATE DISTRICT

BRIEF AMICI CURIAE OF THE

AMERICAN CIVIL LIBERTIES UNION AND THE

ACLU OF NORTHERN CALIFORNIA

IN SUPPPORT OF PETITIONER

Alan Schlosser Graham A. Boyd

ACLU of Northern California Counsel of Record

1663 Mission Street American Civil Liberties

San Francisco, CA 94103 Union Foundation

(415) 621-2488 1101 Pacific Avenue, Suite 333

Santa Cruz, CA 95060

(831) 471-9000

Steven R. Shapiro

American Civil Liberties

Union Foundation

125 Broad Street

New York, NY 10004

(212) 549-2500

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ............0.ccceccccccressccsescsesenes ]

IE OUT CIEE et Sctiindicccccevesssestestsntsntnabiepaedetnenins |

ES SI SITE onsirncenichieoniciiciondieniotannentannmtnsmeel 2

RET REST SOONER SRE a TE ROC a ee eT TNO 7 5

I. The Special Needs Doctrine Does Not

Apply To A Parole Search Conducted

For General Cnminal Law Enforcement..................... 5

A. The Special Needs Doctrine Is A

Narrow Exception To Fourth

Amendment Warrant And

Probable-Cause Requirements ....................... 7

B. The Suspicionless Search Of A

Parolee By A Police Officer Engaged

In Ordinary Law Enforement

Is Not A Special Need .........0..ccccescssessccoscseseees 13

II. The Fourth Amendment Requires

Individualized Reasonable Suspicion

For Discretionary Searches Of Particular

PN wricipsccsiserstntsevonipntsstasibchaniniessanmanensitegsieentpntndetiines 20

IIIT ciiciscciesncininisslonesibciiesihseinotedepesntilaicisicipidiadibiiiihainnilaniin 27

TABLE OF AUTHORITIES

Cases

Almeida-Sanchez v. United States,

SU gr oa 21, 23

Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawaiomie County

FO ee passim

Camara v. Mun. Court,

I II iceahnisincticeranhtieadiiiatesipcakabaid sausa ills 8,10,21,25

Caroll v. United States,

Se TATED TTETITTIED sitrhienubcndinitelniidesclesihdatibiienitisidimaliaiaiicdaabls 19

Chandler v. Miller, 520 U.S. 305 (1997) ........cccccccccceeseeeeserees 10

City of Indianapolis v. Edmond,

a Se iceiiesiceiieinsinininsisdientarinindiscnitbitatiheinaiants passim

Delaware v. Prouse, 440 U.S. 648 (1979) .........ccccceecceees passim

Ferguson v. City of Charleston,

gS NENT, ORE See Rn narra ane rr em a passim

Griffin v. Wisconsin, 483 U.S. 868 (1987) .............ccc-e000 passim

Marshall v. Barlow’s, Inc.,

em iadintieiiciaciilisicthicinith nines bnssncuhabeiteleaia noes ae

Mich. Dep't of State Police v. Sitz,

eee 11, 14, 21, 24

Michigan v. Tyler, 436 U.S. 499 (1978) 2.......cccccecccesseeeseeeeseees 10

Minnesota v. Dickerson, 508 U.S. 366 (1993) .........c.cccccccceeseeee 5

il

Morrissey v. Brewer, 408 U.S. 471 (1972) ......cccccceecceceeeeeees 6,7

Nat'l Treasury Employees Union v. Von Raab,

gs 8 RES RE Ti ree ARCe oe eT passim

New Jersey v. T.L.O.,

A Ae EIIIES -cosiniscceiniiniemmitatibicedtipindsisiethenintniinasaia passim

New York v. Burger, 482 U.S. 691 (1987) ........ccceececeseceeeeeees 10

O'Connor v. Ortega, 480 U.S. 709 (1987) ..........:..ceecee passim

Pa. Bd. of Probation & Parole v. Scott,

EG IE SII sahindinadhincnsivclspnnetipionecinntsicapsubideihsiaiodtpiosia 17

Skinner v. Ry. Labor Executives’ Ass'n,

gg AL RATE een Aaa SA passim

Terry v. Ohio, 392 U.S. 1 (1968) ......cssecsecseseeseneeeestescenenee D

United States v. Brignoni-Ponce,

SE EEE ME UTED uni cnsinseueicninagapnabatonnsabemaciillinily 20, 21, 23

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

United States v. Martinez-Fuerte,

rs PET duttindicscacncicinnasaniicinsieinsseibiniaaiatio passim

Vernonia Sch. Dist. 47J v. Acton,

A i 8, 11, 20, 22

Whren v. United States, 517 U.S. 806 (1996) ..........0....000000. 10

Regulations

49 C.F.R. § 219.201(a)(1)+(3) (1987) 00... ecceceseeeeeeeeees 22

“**

Other Authorities

William J. Cuddihy, The Fourth Amendment: Origins and

Original Meaning 1501-02, 1507-08 (1990) (unpublished

Ph.D. Dissertation, Claremont Graduate School) ........... Sie

iv

INTEREST OF AMICI CURIAE'

The American Civil Liberties Union (“ACLU”) is a

nationwide, nonprofit, nonpartisan organization with more than

500,000 members dedicated to the principles of liberty and

equality embodied in the Constitution and this nation’s civil

rights laws. The ACLU of Northern California is one of its

regional affiliates. Since its founding in 1920, the protection of

Fourth Amendment nghts has been a central concern of the

ACLU, which has appeared before this Court in numerous

Fourth Amendment cases, both as direct counsel and as amicus

curiae. Of particular note, the ACLU has served as direct

counsel in several of the cases delineating the scope of the

“special needs” exception to the usual Fourth Amendment

standards, including Bd. of Educ. of Indep. Sch. Dist. No. 92 of

Pottawatomie County v. Earls, 536 U.S. 822 (2002), and City of

Indianapolis v. Edmond, 531 U.S. 32 (2000). Because this case

addresses an important Fourth Amendment question, its proper

resolution and the proper application of the special needs

doctrine are matters of substantial concern to the ACLU and its

members.

STATEMENT OF THE CASE

On September 6, 2002, San Bruno police officer Alex

Rohleder was driving his patrol vehicle when he happened upon

Petitioner Donald Curtis Samson, Petitioner’s friend Deborah

Watson, and Watson’s three-year-old son Jefferson as they

' Pursuant to Rule 37.6, counsel for amici state that no counsel for a party

authored this brief in whole or in part and no person other than amici,

their members or counsel, made any monetary contribution to the

preparation or submission of this bref. The parties’ letters consenting to

the filing of this brief have been filed with the Clerk of the Court.

]

walked down the street. Joint Appendix 10, 31, 53 (henceforth

“J.A.”). Officer Rohleder recognized Petitioner from a prior

contact. J.A. 32, 35. Officer Rohleder knew that Petitioner was

on parole and believed that he “might have a parolee at large

warrant.” J.A. 32. He frisked Petitioner for weapons and found

none. J.A. 55. Officer Rohleder asked Petitioner if he had an

outstanding warrant, and Petitioner stated that he had already

resolved the warrant and that “he was in good standing with his

parole agent.” J.A. 32. Officer Rohleder called the matter in

and confirmed that this was correct. J.A. 33. Nevertheless, he

searched Petitioner a second time more thoroughly. J.A. 33, 38.

Officer Rohleder searched Petitioner solely because he was on

parole. J.A. 10, 38. Officer Rohleder admitted that he had no

other reason to search Petitioner, who posed no threat to officer

safety. J.A. 40.

When asked whether he searches all parolees with

whom he makes contact, Officer Rohleder testified: “It

depends.” J.A. 39. He explained: “[i}f I drive by one and I

already dealt with him earlier in the day or have dealt with him,

I just drive by. I have other work to do. I don’t go after

everybody all the time.” /d. During his search of Petitioner,

Ofncer Rohleder discovered a cigarette pack containing a

“plastic baggy” of methamphetamine. J.A. 33. He then

arrested Petitioner. J.A. 11.

Petitioner was on parole on the day Officer Rohleder

searched and arrested him. J.A. 47. His notice of conditions of

parole stated: ““You’ve agreed to search and seizure by a parole

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

with or without a search warrant or with or without cause.” J.A.

48.

SUMMARY OF ARGUMENT

Rather than repeat arguments made elsewhere, this bnef

focuses on the history of the specia’ needs exception to ordinary

2

Fourth Amendment rules and the reasons this exception does

not apply to the suspicionless and discretionary search of

parolees by law enforcement officers. Amici agree with

Petitioner that the search in this case cannot be upheld if

traditional Fourth Amendment rules are applied, but do not

directly address that issue in this brief.

Under the Fourth Amendment, a search generally is

reasonable only if it is supported by some level of

individualized suspicion, usually requiring probable cause and a

warrant. Special needs justifying departure from the normal

warrant and probable-cause requirements arise only in

exceptional circumstances that extend “beyond the normal need

for law enforcement” and that “make the warrant and probable-

cause requirement impracticable.” Griffin v. Wisconsin, 483

U.S. 868, 873 (1987) (citation and quotation marks omitted).

Those circumstances do not exist here. Pursuant to California’s

standard parole search condition permitting suspicionless law

enforcement searches, Officer Rohleder searched Petitioner

solely because he was a parolee. As an ordinary police officer

conducting an ordinary search, Officer Rohleder should be held

to ordinary Fourth Amendment standards.

This Court’s decisions in Edmond, Griffin, Ferguson v.

City of Charleston, 532 U.S. 67 (2001), and United States v.

Knights, 534 U.S. 112 (2001), make clear that the line

separating special needs searches from regular Fourth

Amendment searches lies in the programmatic purpose and

character of the search. If the search is conducted for a genera]

law enforcement purpose, then it must satisfy the traditional

balancing test in order to be constitutional. The special needs

exception only includes those searches conducted for

administrative or non-prosecutorial purposes. In that limited

context, this Court has allowed an exception to the probable-

cause and warrant requirement based on its view that the

probable-cause standard “is peculiarly related to criminal

investigations,” Earls, 536 U.S. at 828 (citation and internal

quotation marks omitted).

3

Thus, in Griffin, this Court described the supervisory

search of a probationer as a special need. This Court did not

hold that every search of a probationer — or, in this case, a

parolee — qualified under~the special needs doctrine. Any

ambiguity in that regard was resolved in Knights, where this

Court applied traditional Fourth Amendment rules in reviewing

a police officer’s search of a probationer for law enforcement

purposes. Officer Rohleder’s search of Petitioner was not a

supervisory search; it was a law enforcement search.

Ferguson, Edmond, Griffin, and Knights together command that

a police officer’s search of a parolee for law enforcement

purposes does not fall within the special needs exception and

must be examined under the usual Fourth Amendment

balancing test.

’ Even assuming arguendo that parolee searches are

considered a special need, the search here violated the Fourth

Amendment because it was based on a complete absence of

suspicion. This Court has held, in an unbroken line of

precedent, that a completely suspicionless search cannot rest on

the discretion of an individual officer; the search must be even-

handed and programmatic. Accordingly, officers have only two

choices: they may single out particular individuals for a search

if they have individualized reasonable suspicion, or they may

search individuals without reasonable suspicion, but only if the

search policy is applied uniformly. The California parole

search condition contains no standards to limit discretion; its

permissive language expressly contemplates searches at any

time, for any purpose, with or without cause. Unsurprisingly,

then, Officer Rohleder neither applied the search policy even-

handedly nor had reasonable suspicion to search Petitioner —

instead, he searched Petitioner for no better reasor than that he

could. This Court should not break from its long line of

precedent by upholding a general search based on nothing but a

police officer’s whim.

ARGUMENT

I. The Special Needs Doctrine Does Not Apply To A Parole

Search Conducted For General Criminal Law

Enforcement

The Fourth Amendment guarantees “(t]he right of the

people to be secure in their persons . . . against unreasonable

searches and seizures.” U.S. Const. amend IV. A police

officer’s command to stop and produce for inspection a

privately held, concealed package, the officer’s inspection of

the interior of the package, and the decision to take custody of

the contents of that package as evidence in support of a criminal

charge constitute, collectively, both a search and a seizure. See

generally Terry v. Ohio, 392 U.S. 1 (1968); Minnesota v.

Dickerson, 508 U.S. 366 (1993). The general rule requires that

to be reasonable, and thus constitutional, a search must be based

on individualized suspicion of wrongdoing. This Court has

recognized a limited exception to that rule, however, for

searches based on “special needs, beyond the normal need for

law enforcement, mak[ing] the warrant and probable-cause

requirement impracticable.” Griffin, 483 U.S. at 873 (citation

and internal quotation marks omitted); see also Ferguson, 532

U.S. at 74 n.7; Edmond, 531 U.S. at 37.

In Griffin, this Court found that “[sJupervision . . . is a

‘special need’ of the State,” 483 U.S. at 875, “justify[ing]

replacement of the standard of probable cause by reasonable

grounds” when probation officials conduct searches to assess

compliance with probation terms, id. at 876 (internal quotation

marks omitted). In Edmond and Ferguson, by contrast, this

Court rejected application of the special needs exception, where

“the central and indispensable feature of the policy from its

inception was the [involvement] of law enforcement,”

Ferguson, 532 U.S. at 80, and the pursuit of law enforcement

ends. See also Edmond, 531 U.S. at 38, 41, 44. Most recently,

in Knights, this Court upheld a search of a probationer by a

police officer, not because the special needs exception applied,

5

but because the search was deemed reasonable based upon the

existence of individualized suspicion that the probationer had

committed a crime. Knights, 534 U.S. at 117-18, 121-22.

As explained below, the invocation of the special needs

exception has always been premised upon a clear separation of

the nature and programmatic purpose of a search from general

law enforcement goals, requiring the government to justify a

law enforcement search under ordinary Fourth Amendment

rules of warrants, probable cause, and overall reasonableness.

The status of the person being searched — in this case, a person

on parole — may well have implications for that reasonableness

analysis, but that status alone cannot convert an ordinary police

search into a special need. To so find would make the special

needs exception so broad as to swallow the rule of Fourth

Amendment reasonableness, opening the door to standardless

police searches of any member of a societal group having

diminished or attenuated privacy expectations.’ This Court’s

ruling in Knights declined to apply the special needs doctrine to

a police officer’s search of a California probationer, and the

same framework must apply to the substantially similar search

at issue in this case.”

? As discussed in more detail below, many of this Court’s special needs

decisions involve groups of individuals who, like parolees in California,

are subject to various forms of scrutiny. These groups include high

school students, employees in regulated industries, and certain

government employees. In none of these cases did this Court signal a

willingness to allow police searches of anyone at any time, but rather

constructed a careful balancing test, evaluating the precise governmental

interest — an interest that was found, in each case, to exist apart from law

enforcement.

> This case involves a parolee, whereas Griffin and Knights involved

probationers, but probationers and parolees have been treated similarly

under the Fourth Amendment. Probationers and parolees are alike in that

they do not have “the absolute liberty to which every citizen is entitled,

but only . . . the conditional liberty properly dependent on observance of

special parole restrictions.” Morrissey v. Brewer, 408 U.S. 471, 480

6

A. The Special Needs Doctrine Is A Narrow

Exception To Fourth Amendment Warrant And

Probable-Cause Requirements

From its inception, “the evil toward which the Fourth

Amendment was primarily directed was the resurrection of the

pre-Revolutionary practice of using general warrants or ‘writs

of assistance’ to authorize searches for contraband by officers

of the Crown.” New Jersey v. T.L.O., 469 U.S. 325, 335 (1985).

The present case offers a remarkable parallel to this

foundational “evil”: an officer of the state invokes a general

power to search individuals without any particularized

suspicion toward the person being searched or even the belief

that a crime has been committed. If a prototypical case for

Fourth Amendment limitations exists, it is this law enforcement

officer trolling for evidence of a crime, searching individuals

who are suspected of no wrongdoing, in the hope that some

evidence of criminality might be exposed.

Fourth Amendment analysis begins with the strong

presumption that “fa} search or seizure is ordinarily

unreasonable in the absence of individualized suspicion of

wrongdoing.” Edmond, 531 U.S. at 37 (citation omitted).

Exceptions to this fundamental rule are closely guarded, made

in the “limited circurnstances . . . where the program [i]s

designed to serve special needs, beyond the normal need for law

enforcement.” Jd. (citations and internal quotation marks

omitted). A long and consistent pedigree attaches to the judicial

insistence upon cabining the special needs doctrine, reaching

only those searches made for some reason other than law

enforcement. A finding that law enforcement concerns are

(1972); see also Griffin, 483 U.S. at 874 (applying the conditional liberty

concept to probationers). Since the search condition at issue in Knights is

substantially the same as the search condition at issue here, the line drawn

by Griffin and Knights between special needs cases and ordinary Fourth

Amendment cases applies to parolees in the same way that it applies to

probationers.

7

sufficiently absent to justify the special need exception tums on

some combination of the nature of the search and the

relationship between the government actor and the person being

searched, leading to a circumscribed list of contexts in which

the need for individualized suspicion is either lowered or

eliminated.

1. Where a government search is based on legitimate

regulatory or administrative concerns unrelated to criminal law

enforcement, this Court has been willing to dispense with the

traditional probable-cause and warrant requirements when it

appears those requirements are either wumnecessary or

impractical. As this Court has explained, “the traditional

probable-cause standard may be unhelpful in analyzing the

reasonableness of routine administrative functions” where the

government is not seeking evidence of criminal activity but is

instead seeking “to prevent the development of hazardous

conditions or to detect violations that rarely generate articulable

grounds for searching any particular place or person.” Nat'l

Treasury Employees Union v. Von Raab, 489 U.S. 656, 668

(1989) (internal citations omitted).* For instance, in looking for

faulty wiring in a building, the notion of individualized

suspicion is of no relevance to a government inspector.

Camara v. Mun. Court, 387 U.S. 523, 537 (1967). The point of

the inspection is building safety, not “discovery of evidence of

crime.” Jd. In a similar vein, efforts to discover drug and

* The historical context for adopting the Fourth Amendment comports

with the contemporary countenance of suspicionless searches for purely

administrative purposes. Specifically, during the ratification era, a

number of states permitted warrantless inspections of commercial

enterprises pursuant to regulatory objectives, and federal law authorized

limited warrantless commercial searches for tax collection and customs

purposes. See William J. Cuddihy, The Fourth Amendment: Origins and *

Original Meaning 1501-02, 1507-08 (1990) (unpublished Ph.D.

Dissertation, Claremont Graduate School), cited in Vernonia Sch. Dist.

47J v. Acton, 515 U.S. 646, 669 (1995) (O'Connor J., dissenting)

(describing Cuddihy’s work as “one of the most exhaustive analyses of

the original meaning of the Fourth Amendment ever undertaken.”).

8

alcoho] use among employees grow from a desire to foster a

safe workplace. See Skinner v. Ry. Labor Executives’ Ass'n,

489 U.S. 602, 628-29 (1989); Von Raab, 489 U.S. at 674; see

also Earls, 536 U.S. at 836 (stating that “the need to prevent

and deter the sybstantial harm of childhood drug use provides

the necessary immediacy for a school testing policy.”).

Under this Court’s cases, the concepts of probable cause

and reasonable suspicion have been deemed “rooted . . . in the

criminal investigatory context,” and the Court has therefore

concluded that “it is difficult to give [those concepts] . . . much

meaning” in the context of searches conducted for

administrative or non-prosecutorial purposes, O’Connor v.

Ortega, 480 U.S. 709, 723 (1987). In contrast, a search

conducted for law enforcement purposes can be expected, and

should be required, to “generate articulable grounds for

searching any particular person or place.” Von Raab, 489 U.S.

at 668.

2. The finding of a special need can turn, as well, upon

the fact that the person performing a search has little or no

connection to law enforcement, both demonstrating that the

search does not serve law enforcement ends, but also

recognizing the reality that most government employees are ill-

equipped to assess the existence of probable cause. Railroad

supervisors, for instance, “are not in the business of

investigating violations of the criminal laws” and “otherwise

have little occasion to become familiar with the intricacies of

this Court’s Fourth Amendment jurisprudence.” Skinner, 489

U.S. at 623. Similarly, this Court has found that “[i}mposing

unwieldy warrant procedures . . . upon [government office]

supervisors, who would otherwise have no reason to be familiar

with such procedures, is simply unreasonable.” O'Connor, 480

U.S. at 722. On the same basis, this Court has seen fit to “spare

teachers and school administrators the necessity of schooling

themselves in the niceties of probable cause” when they suspect

that a student has violated school rules. 7.L.0., 469 U.S. at 343.

9

Unlike railroad supervisors, office managers, and school

teachers, police officers are trained to detect violations of the

law: their central job responsibilities require the ability to

recognize suspicious behavior and investigate potential crimes.

Thus, it is not at all “difficult” to give “meaning” to the concept

of probable cause in the context of a parolee search whose

purpose is “criminal investigat[ion].” O’Connor, 480 U.S. at

723.

3. “While reasonableness under the Fourth Amendment

is predominantly an objective inquiry,” this Court’s “special

needs and administrative search cases demonstrate that purpose

is often relevant” to the special needs analysis. Edmond, 531

U.S. at 47.° The finding of a special need apart from law

enforcement has led this Court regularly to examine

programmatic purposes and to specify the nature of the

governmental interest.

In Camara, 387 U.S. at 535, the special need arose from

the observation that “[t]he primary governmental interest at

Stake is to prevent even the unintentional development of

conditions which are hazardous to public health and safety.”

This Court recognized the special need of hospital officials in

O’Connor, 480 U.S. at 721, “to enter the offices and desks of . .

employees for legitimate work-related reasons wholly

unrelated to illegal conduct. Employers and supervisors are

focused primarily on the need to complete the government

agency’s work in a prompt and efficient manner.” Similarly,

* The rule against inquiry into an officer’s subjective reasons for

~ conducting a particular search, as articulated in Whren v. United States,

517 U.S. 806 (1996), “does not preclude an inquiry into programmatic

purpose” where “relevant to the validity of Fourth Amendment intrusions

undertaken pursuant to a general scheme without individualized

suspicion.” Edmond, 531 U.S. at 45-46 (citing Chandler v. Miller, 520

U.S. 305 (1997); Von Raab; New York v. Burger, 482 U.S. 691 (1987);

Michigan v. Tyler, 436 U.S. 499 (1978); Camara v. Mun. Court, 387 U.S.

$23 (1967). es

10

the need for swift and informal discipline in schools justified

the finding of a special need in 7.L.0., 469 U.S. at 340.

In this Court’s four cases upholding suspicionless drug

testing, a special need arose from concerns about workplace or

school safety, as opposed to general law enforcement. See

Earls, 536 U.S. at 834 (school drug testing based on the

governmental concern with “(t]he drug abuse problem among

our Nation’s youth”); Vernonia, 515 U.S. at 661-62 (same); Von

Raab, 489 U.S. at 666 (purpose of drug testing Customs Service

employees is “to deter drug use among those eligible for

promotion to sensitive positions within the Service and to

prevent the promotion of drug users to those positions’’);

Skinner, 489 U.S. at 631 (recognizing the “Government’s goal

of ensuring safety in rail transportation”).

Significantly, each of these cases involved an

announced policy authorizing designated government officials,

who were not police officers, to conduct a limited search for

specified reasons that were articulated in advance and unrelated

to general law enforcement.© Whether the programmatic

purpose was building safety, workplace efficiency, or school

discipline, this Court was able, in each case, to identify and

describe that purpose in terms clearly distinct from ordinary

enforcement of criminal laws.

Accordingly, this Court has carefully noted the lack of a

law enforcement purpose in cases approving a special need.

The school district policy approved in Earls “[wa]s not in any

way related to the conduct of criminal investigations.” 536 U.S.

at 829. See also Vernonia, 515 U.S. at 658 n.2 (suspicionless

drug testing of student athletes is “nonpunitive” and distinct

° The need to articulate a government purpose unrelated to criminal law

enforcement becomes even more important when the search is conducted

by police officers normally charged with investigating crime. Cf Mich.

Dep't of State Police v. Sitz, 496 U.S. 444, 451 (1990) (sobnety

checkpoint program conducted by state police for purpose of highway

safety, not general law enforcement).

11

from “evidentiary” searches); Von Raab, 489 U.S. at 666 (“It is

clear that the Customs Service’s drug-testing program is not

designed to serve the ordinary needs of law enforcement. Test

results may not be used in a criminal prosecution of the

employee without the employee’s consent.”); Skinner, 489 U.S.

at 620-21 (“The FRA has prescribed toxicological tests, not to

assist in the prosecution of employees, but rather to prevent

accidents and casualties in railroad operations that result from

impairment of employees by alcohol or drugs.”) (citation and

internal quotation marks omitted); 7.L.0., 469 U.S. at 341 n.7

(limiting its holding to “searches carried out by school

authorities acting alone and on their own authority” and

expressly withholding opinion on “the legality of searches

conducted by school officials in conjunction with or at the

behest of law enforcement agencies”).

4. By contrast, this Court has found the special needs

exception inapplicable when the purpose of a search or seizure

is not “one divorced from the State’s general interest in law

enforcement.” Ferguson, 532 U.S. at 79. Significant for the

analysis of the present case, this Court noted in Ferguson that

“fiJn none of our previous special needs cases have we upheld

the collection of evidence for criminal law enforcement

purposes,” id. at 83 n.20, which is plainly what occurred here.

“Without drawing the line at [searches] designed primarily to

serve the general interest in crime control, the Fourth

Amendment would do little to prevent such intrusions from

becoming a routine part of American life.” Edmond, 531 U.S.

at 42. ;

Since law enforcement officers developed and

implemented the drug-testing policy in Ferguson, 532 U.S. at

82 (“throughout the development and application of the policy,

the Charleston prosecutors and police were extensively

involved in the day-to-day administration of the policy”), for

law enforcement purposes, id. at 80 (“the central and

indispensable feature of the policy from its inception was the

use of law enforcement to coerce the patients into substance

12

abuse treatment”), abandonment of Fourth Amendment

requirements could not be justified through the special needs

exception, id. at 84.

Likewise, because the Indianapolis Police Departmerit

created and operated the checkpoint program in Edmond, 531

U.S. at 34-36, and “the . . . program unquestionably ha[d] the

primary purpose of interdicting illegal narcotics,” id. at 40-41,

such stops could “only be justified by some quantum of

individualized suspicion,” id. at 47. This Court emphasized

that:

We have never approved a checkpoint program

whose primary purpose was to detect evidence

of ordinary criminal wrongdoing. Rather, our

checkpoint cases have recognized only limited

exceptions to the general rule that a seizure must

be accompanied by some measure of

individualized suspicion. . . . each of the

checkpoint programs that we have approved was

designed primarily to serve purposes closely

related to the problems of policing the border or

the necessity of ensuring roadway safety.

Because the primary purpose of the Indianapolis

narcotics checkpoint program is to uncover

evidence of ordinary criminal wrongdoing, the

program contravenes the Fourth Amendment.

Id. at 41-42.

—

B. The Suspicionless Search Of A Parolee By A

Police Officer Engaged In Ordinary Law

Enforcement Is Not A Special Need

Petitioner’s suspicionless search by a police officer

engaged in ordinary law enforcement cannot be justified as a

special need under this Court’s decisions. In Griffin, this Court

held that supervision of probationers, when conducted by a

13

probation officer,’ is a special need justifying departure from

the usual probable-cause and warrant requirements. 483 U.S. at

873-75. As in its other special needs cases, this Court tethered

its decision to the nature of the search, the relationship between

the government actor and the person being searched, and the

programmatic purpose of the search. Jd. at 873-79.

In Knights, this Court reaffirmed the Griffin rule but

declined to extend the special needs exception where a

probationer was searched by an ordinary police officer for the

purpose of gathering evidence in a criminal investigation. 534

U.S. at 117-18. The decision to apply ordinary Fourth

Amendment standards (that is, the decision to forego invocation

of the special needs exception) in Knights controls the analysis

in the present case: the search and seizure of Petitioner Samson

was of a similar nature, was performed by a comparable officer,

and had an identical programmatic purpose, as explained in

detail below.

1. In Griffin, this Court found a special need because

every relevant characteristic of the probation regulation at issue

in that case — the nature of the governmental interest, the

relationship between the probation officer and the probationers,

and the programmatic purpose of the search — centered on

supervision of probationers. As this Court noted, the overall

objectives of the probation system (and likewise, the parole

system) are to rehabilitate probationers and protect the

community. Griffin, 483 U.S. at 875. “These . . . goals require

and justify the exercise of supervision to assure that the

[probation] restrictions are in fact observed.” /d. Like the

checkpoint programs upheld in Sitz and United States v.

’ Two probation officers conducted the search, but three police officers

accompanied them. Griffin, 483 U.S. at 871. Since the police officers

only assisted in what was otherwise a probation officer-led supervisory

search, this Court charactenzed the search as “carried out entirely by the

probation officers under the authority of Wisconsin’s probation

regulation.” /d.

14

Martinez-Fuerte, 428 U.S. 543 (1976), the safety-related nature

of the governmental interest is not criminal investigation — even

though those who violate probation, like those who violate laws

against drunk driving and smuggling of aliens, may ultimately

be arrested and prosecuted. Supervision of probationers is thus

a special need going “beyond the normal need for law

enforcement.” Griffin, 483 U.S. at 874.

Furthermore, as in O'Connor and T.L.O., the “not, or at

least not entirely, adversarial” relationship “between the object

of the search and the decisionmaker” was an additional factor in

this Court’s finding of a special need in Griffin. Id. at 879.

Although a probation officer has a stronger connection to law

enforcement than hospital officials (in O’Connor) and teachers

(in 7.L.O.), “neither is he the police officer who normally

conducts searches against the ordinary citizen.” /d. at 876.

Special needs permitting departure from the usual warrant and

probable-cause requirements exist only where such

requirements are “impracticable.” Jd. at 873, 876. According

to this Court, the warrant requirement would “interfere” with

the operation of the probation system because “a magistrate

rather than the probation officer [becomes] the judge of how

close a supervision the probationer requires,” id. at 876, and the

probable-cause requirement would disrupt the “ongoing

supervisory relationship” between the probationer and his or her

probation officer, id. at 879. Given the probation officer’s

unique relationship with the probationer, this Court concluded

in Griffin that it would be “destructive of the whole object of

the continuing probation relationship to insist upon” probable

cause instead of reasonable grounds in this context. Jd.

In determining that the programmatic purpose of the

Wisconsin probation search regulation was supervisory and

non-prosecutorial,: this Court began with the language of the

regulation itself, id. at 870-71, and the needs of “the probation

agency,” id. at 879, rather than the subjective purpose of the

probation officers who searched Griffin's home. Since

probation officers conducted the search of Griffin’s home

15

pursuant to a regulation whose programmatic purpose was

“beyond normal law enforcement,” id. at 874, and the goal of

the search was to assess whether Griffin violated his probation

by possessing a firearm, id. at 871, 875, the search was

sufficiently supervisory in nature to fall within the closely

guarded category of special needs, id. at 874.

2. Knights answers the question left open by Griffin,

making clear that a police officer’s routine search of a

probationer (or, by implication, a parolee) must be evaluated

under the usual Fourth Amendment balancing test. In Knights,

a detective investigating acts of vandalism searched Knights’s

home based on reasonable suspicion that he was involved in

those crimes. 534 U.S. at 114-15. This Court stressed that

Griffin’s “special needs holding made it unnecessary to consider

whether warrantless searches of probationers were otherwise

reasonable within the meaning of the Fourth Amendment,” id.

at 117-18 (citation and internal quotation marks omitted), but

declined to apply the special needs exception, deciding the case

instead on the basis that a probationer search based on

reasonable suspicion was valid under the Fourth Amendment,

~ at 118. That Griffin involved a search “carried out entirely

. probation officers” for the purpose of supervising the

Oe cams Inc aniaaes ea ac ee ae

probation, Griffin, 483 U.S. at 871, whereas Knights involved a

search carried out by a police officer for the purpose of

investigating ordinary criminal activity, Knights, 534 U.S. at

115, proved to be the critical distinction that removed the

probationer search from the special needs framework. The

nature of the search (detecting crime), the identity of the

government official (a police officer), and the lack of any

programmatic purpose apart from criminal law enforcement

placed Knights outside the long line of special needs cases. See

discussion supra Section 1A.

3. Griffin and Knights are opposite sides of the same

coin: searches conducted for supervisory purposes count as

special needs justifying departure from Fourth Amendment

16

safeguards; conversely, searches conducted for general law

enforcement purposes must satisfy the traditional balancing test.

The search of Petitioner Samson lacked the essential

elements that led this Court in Griffin to invoke the special

needs exception. Unlike the probation officer search in Griffin,

a police officer on routine patrol searched Petitioner. Officer

Rohleder knew that Petitioner was on parole (just as the police

officer in Knights knew the probation status of Mr. Knights),

but this mere knowledge did nothing to create a supervisory

relationship and thus failed to place the police officer in a

position to judge “how close a supervision,” Griffin, 483 U.S. at

876, Petitioner required as a parolee. Unlike a supervising

_ parole officer, Officer Rohleder did not “proceed on the basis of

[his] entire experience” with Petitioner or “assess probabilities

in the light of [his] knowledge of [Petitioner’s] life, character,

and circumstances.” /d. at 879. He did not assess probabilities

at all, because his sole reason for searching Petitioner was the

fact that he was on parole. J.A. 10, 38. Officer Rohleder is

precisely the ordinary police officer whom this Court has

distinguished from parole agents conducting parole searches.

See Pa. Bd. of Probation & Parole v. Scott, 524 U.S. 357, 369

(1998) (“Parole agents, in contrast to police officers, are not

engaged in the often competitive enterprise of ferreting out

crime; instead, their primary concern is whether their parolees

should remain free on parole.”) (internal citation and quotation

marks omitted).

Just as this Court in Griffin thoroughly examined the

nature of the Wisconsin probation system to ensure that it was

truly supervisory and did not merely conclude from the fact that

Griffin was a probationer that the search of his home was a

special need, this Court should not conclude that Petitioner’s

mere status as a parolee converts every search into a special

needs search.

4. The California parole search condition to which

Petitioner was subject is substantially the same as the probation

17

search condition at issue in Knights.* Here, as in Knights, an

ordinary police officer conducted the search as part of his daily

routine of investigating and detecting crime.’ The search

condition does not require police officers to “have in mind the

welfare of the [parolee],” or “[pjrovid[e] individualized

counseling designed to foster growth and development of the

client.” Griffin, 483 U.S. at 876 (citation and quotation marks

omitted). Just as this Court treated the search in Knights as

being outside the special needs exception, the same analysis

should apply here.

If a search condition that allows any peace officer to

search a parolee at any time, with or without cause, is not for

the purpose of general law enforcement, it is difficult to

imagine what would »e. Pursuant to this blank check, Officer

Rohleder carned out the search not because he suspected

Petitioner of any wrongdoing, either in terms of violating the

terms of his parole or being guilty of any crime, but merely

because he could. See J.A. 38. The Fourth Amendment was

enacted precisely to protect against this kind of general search

for evidence of a crime without any reason to believe that the

individual is guilty of any wrongdoing. Just as this Court has

* The search condition in Knights stated that Knights would “[s}ubmit his

. . . person, property, place of residence, vehicle, personal effects, to

search at anytime, with or without a search warrant, warrant of arrest or

reasonable cause by any probation officer or law enforcement officer.”

534 U.S. at 114 (internal quotation marks omitted). The search condition

at issue here states: “You've agreed to search and seizure by a parole

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

without a search warrant or with or without cause.” J.A. 4.

* The police officer in Knights had specific reason to believe that Knights

was guilty of the particular crime, while the officer in the present case

lacked even that level of suspicion. Officer Rohleder searched Petitioner

because he “just happened to run across him,” J.A. 34. As discussed

infra at Section II, this search suffers the infirmity, not just of being for

law enforcement purposes, but also of trolling broadly to try to find

evidence of crime.

18

not “sanction[ed] stops justified only by the generalized and

ever-present possibility that interrogation and inspection may

reveal that any given motorist has committed some crime,”

Edmond, 531 U.S. at 44, it should not sanction a police officer’s

suspicionless search of a parolee simply to make sure that “he

had nothing on him illegal,” J.A. 44. No exigent circumstances

accompanied the search in this case that would distinguish it

“from the circumstances under which authorities might simply

stop cars as a matter of course to see if there just happens to be

a felon leaving the jurisdiction.” Edmond, 531 U.S. at 44; see

also Carroll v. United States, 267 U.S. 132, 153-54 (1925) (“It

would be intolerable and unreasonable if a prohibition agent

were authorized to stop every automobile on the chance of

finding liquor, and thus subje*’ all persons lawfully using the

highways to the inconvenience and indignity of such a

search.”).

While the ultimate goal of the California search

condition may be to facilitate the supervision and rehabilitation

of parolees, the immediate programmatic purpose highlighted in

this case is to allow general searches for evidence of

wrongdoing — as shown by Officer Rohleder’s investigatory

search. This is a far cry from the Wisconsin probation search

regulation this Court approved in Griffin, which specifically

authorized supervisory searches carried out by probation

officers. 483 U.S. at 870-71. “Because law enforcement

involvement always serves some broader social purpose or

objective,” describing the purpose of a search at too high a level

of generality would result in “virtually any nonconsensual

suspicionless search [being] immunized under the special needs

doctrine by defining the search solely in terms of its ultimate,

rather than immediate, purpose.” Ferguson, 532 U.S. at 84.

This Court has been willing to relax the Fourth Amendment’s

warrant and probable-cause requirements only when the search

is not part of a general enterprise of criminal investigation:

“The special needs cases we have decided do not sustain the

active use of law enforcement, including arrest and

19

prosecutions, as an integral part of a program which seeks to

achieve legitimate, civil objectives.” Jd. at 88 (Kennedy, J.,

concurring). The Court should not change course now.

Il. The Fourth Amendment Requires Individualized

Reasonable Suspicion For Discretionary Searches Of

Particular Parolees

Assuming argue. do that the present case were viewed

as fitting within the special needs exception, the search would

nonetheless be unreasonable because Officer Rohleder acted

with unfettered discretion and in the absence of any

individualized suspicion. While individualized suspicion may

not be an “irreducible requirement” of the Fourth Amendment,

Earls, 536 U.S. at 829 (quoting Martinez-Fuerte, 428 U.S. at

561), it is still the rule rather than the exception. This Court has

never permitted a search focused on a single individual without

at least reasonable suspicion, and a contrary holding that a

police officer could single out a particular parolee on a

discretionary, non-random basis for a suspicionless search

would allow the exception to swallow the rule.'°

'° This Court has reached a consistent result in every special needs case, °

permitting officer discretion for searches only upon some level of

individualized suspicion. Compare Griffin, 483 U.S. at 872 (probation

officers searched probationer’s apartment with reasonable grounds to

believe he violated his probation); O'Connor, 480 US. at 712-13

(hospital personnel searched doctor’s office with suspicion to believe he

improperly managed the hospital’s residency program); 7.L.0., 469 U.S.

at 329-30 (assistant vice principal searched student's purse with

reasonable suspicion to believe it contained cigarettes); Delaware v.

Prouse, 440 U.S. 648, 663 (1979) (roving patrol stops must be based on

reasonable suspicion of violation of license and registration laws); and

United States v. Brignoni-Ponce, 422 U.S. 873, 882 (1975) (same for

immigration violation), with Vernonia, 515 U.S. at 650 (no suspicion

required for drug testing policy applied to all student athletes); Earls, 526

U.S. at 826 (same for extracurricular activity participants); Skinner, 489

U.S. at 608 (same for all covered employees specified by statute); Von

20

Under the California search condition, individual peace

officers determine entirely for themselves if, when, where, and

how they will search a particular parolee; “[t}his kind of

standardless and unconstrained discretion is the evil this Court

has discerned when in previous cases it has insisted that the

discretion of the official in the field be circumscribed, at least to

some extent.” Prouse, 440 U.S. at 661 (citing Almeida-Sanchez

v. United States, 413 U.S. 266, 270 (1973); Camara, 387 U.S.

at 532-33). As this Court, emphasized in striking down

suspicionless stops performed at the discretion of individual

officers, “the reasonableness requirement of the Fourth

Amendment demands something more than the broad and

unlimited discretion sought by the Government.” Brignoni-

Ponce, 422 U.S. at 822. This Court’s steadfast concern with

unlimited discretion manifests itself in the requirement that if an

officer, does not have individualized suspicion to search a

particular person, he must search either everyone or no one in a

given group.

The California search condition violates the rule against

standardless discretion underlying this long line of cases: it

provides neither an individualized suspicion requirement for

searching specific parolees nor a uniform, non-discretionary

manner of searching all parolees without suspicion. Officer

Rohleder singled out Petitioner for a search not because of any

suspicion of wrongdoing, but because he merely felt like

searching him that day. What California permits is far beyond

anything this Court has ever upheld, either as part of the special

needs doctrine or otherwise.

1. Where this Court has upheld suspicionless searches

based on special needs, government officers had little or no

Raab, 489 U.S. at 660-61 (same for all employees in drug interdiction or

firearm-carrying positions); Martinez-Fuerte, 428 U.S. at 559 (no

suspicion required for seizures of motorists at fixed immigration

checkpoints); and Sitz, 496 U.S. at 454 (same for fixed sobriety

checkpoints).

21

discretion to pick and choose who to search. The student and

employee drug testing cases illustrate this point quite well. In

Vernonia and Earls, school officials subjected all students

participating in athletics and extracurricular activities,

respectively, to drug tests on a uniform basis. Vernonia, 515

U.S. at 650 (school tested all athletes at the beginning of their

sport season and randomly tested ten percent of the athletes

each week during the season); Earls, 526 U.S. at 826 (school

tested all students engaging in extracurricular activities before

participation and randomly during participation). In fact, the

drug-testing policy in Earls specifically did not permit the

school to single out individual students unless there was

reasonable suspicion of drug use. Earls, 526 U.S. at 826. The

California search condition gives a blank check to police

officers to conduct searches at their will; this flies in the face of

this Court’s emphasis on the importance of minimizing the

ability of officials to exercise discretion in an arbitrary manner.

See, e.g., Vernonia, 515 U.S. at 663 (expressing concern over

“the risk that teachers will impose testing arbitrarily upon

troublesome but not drug-likely students.”).

Similarly, this Court upheld the drug-testing policies in

Skinner and Von Raab in part because employers uniformly

imposed drug tests on a certain defined group of employees,

rather than imposing drug tests on an ad hoc basis. Skinner, 489

U.S. at 609, 633 (Federal Railroad Administration required

railroads to drug test all employees involved in an accident);

Yon Raab, 489 U.S. at 660-61 (Customs Service drug tested all

employees seeking to be placed in positions involving drug

interdiction and carrying of firearms). In Skinner, one subpart

of the Federal Railroad Administration regulations mandated

testing for all covered employees under three circumstances:

following a “major train accident,” an “impact accident,” and

“[a}jny train incident that involves a fatality to any on-duty

railroad employee.” 489 U.S. at 609 (quoting 49 C.F.R. §

219.201(a)(1)-(3) (1987)). Unlike the California parole search

condition, this subpart of the regulations contained little room

22

for the exercise of discretion. Jd. at 609 n.2. Another subpart

of the regulations permitted railroads to single out particular

employees for drug testing, but only if a supervisor had

reasonable suspicion that the employee’s acts contnbuted to an

accident or certain rule violations. /d. at 611. While this

subpart of the regulations “confer[red] some discretion to

choose those who may be required to submit to testing, [it] also

impose[d] specific constraints on the exercise of that

discretion.” Jd. at 622 n.6.

2. This Court has applied a similarly strict standard to

motorist stops, allowing suspicionless searches and seizures

only where officers faced constraints over their discretion in

selecting whom they would stop. The contrast between this

Court’s analysis (and the results) in Brignoni-Ponce, 422 U.S.

at 882-83, and Martinez-Fuerte, 428 U.S. at 559, is telling.

Both cases concerned seizures of motorists in order to detect

illegal immigration, a purpose sufficiently removed from

ordinary law enforcement to permit seizures without probable

cause or a warrant. See Brignoni-Ponce, 422 U.S. at 878-80;

Martinez-Fuerte, 428 U.S. at 551-53. Yet, in the former, this

Court was “unwilling to let the Border Patrol dispense entirely

with the requirement that officers must have reasonable

suspicion to justify roving-patrol stops,” Brignoni-Ponce, 422

U.S. at 882, because “a requirement of reasonable suspicion for

stops allows the Government adequate means of guarding the

public interest and also protects residents of the border areas

from indiscriminate official interference,” id. at 883. See also

Almeida-Sanchez, 413 U.S. at 268 (rejecting as unreasonable

the Border Patrol’s asserted “extravagant license to search”

automobiles by roving patrol “without a warrant,” “without

probable cause to believe the cars contain aliens,” and without

consent). By contrast, this Court upheld fixed immigration

checkpoints because “field officers may stop only those cars

passing the checkpoint, [so] there is less room for abusive or

harassing stops of individuals than there was in the case of

roving-patrol stops.” Martinez-Fuerte, 428 U.S. at 559.

23

This Court applied the same reasoning in examining

police stops removed from the border. In both Sitz and Prouse,

the primary purpose for the stops was to ensure highway safety

(apprehending drunk drivers and unlicensed drivers}—a

purpose that was sufficiently divorced from the general interest

in law enforcement. See Sitz, 496 U.S. at 451; Prouse, 440 U.S.

at 658-59. Nevertheless, this Court struck down the roving

patrols employed in Prouse because “{t]he marginal

contribution to roadway safety possibly resulting from a system

of spot checks cannot justify subjecting every occupant of every

vehicle to a seizure . . . at the unbridled discretion of law

enforcement officials.” 440 U.S. at 661. In Sitz, this Court

upheld the fixed sobriety checkpoint program partly on the

ground that “this case” does not involve “a challenge to random

highway stops,” as Prouse did. 496 U.S. at 454. Instead, the

sobriety checkpoints were “selected pursuant to [established]

guidelines, and uniformed police officers stop[ped] every

approaching vehicle”; therefore, “the intrusion . . . [wa]s for

constitutional purposes indistinguishable from the checkpoint

stops . . . upheld in Martinez-Fuerte.” Id. at 453."

Like the patrolman in Prousé who “decided to pull [the _

motorist] off’ the road merely because he “saw the car in the

area and wasn’t answering any complaints,” 440 U.S. at 650-51

(internal quotation marks omitted), Officer Rohleder does not

search all parolees “all the time,” but only if he has no “other

work to do” or has not already “dealt with” the parolee. J.A.

39. In other words, he searches parolees whenever he feels like

it. This Court’s reasoning in Prouse is highly applicable here:

'’ Similarly, in Edmond, written directives instructed officers that they

“must conduct each stop in the same manner” and gave them “no

discretion to stop amy vehicle out of sequence.” 531 U.S. at 35.

However, as discussed supra Section I.A, the primary law enforcement

purpose of the Edmond checkpoints puts them outside the special needs

exception.

24

When there is not probable cause to believe that

a driver is violating any one of the multitude of

applicable traffic and equipment regulations — or

other articulable basis amounting to reasonable

suspicion that the driver is unlicensed or his

vehicle unregistered — we cannot conceive of

any legitimate basis upon which a patrolman

could decide that stopping a particular driver for

a spot check would be more productive than

stopping any other driver.

440 U.S. at 661.

3. The California search condition imposes no specific

constraints on the exercise of an officer’s discretion to search

parolees. Cf Von Raab, 489 U.S. at 667 (the Customs Service

“does not make a discretionary determination to search based

on a judgment that certain conditions are present”). Under the

search condition, “[t]he process” for searching a parolee is not

“automatic,” like the process for drug testing a Customs Service

employee “pursu[ing] a covered position.” /d. A search is not

“undertaken pursuant to previously specified ‘neutral criteria.””

Prouse, 440 U.S. at 662 (quoting Marshall v. Barlow’s, Inc.,

436 U.S. 307, 323 (1978)). No regulations or standards curb

the “discretion of the official in the field” to use the search

condition as an excuse to search any particular parolee.

Camara, 387 U.S. at 532. These searches are not “established”

or carried out in a “regularized manner” that provides “visible

evidence, reassuring to law-abiding [citizens], that the

{searches] are duly authorized and believed to serve the public

interest.” Martinez-Fuerte, 428 U.S. at 559. Unlike the

suspicionless searches and seizures approved in special needs

and checkpoint cases, officers acting pursuant to the California

search condition do not automatically search all parolees upon

the occurrence of certain predetermined events (such as -

applying for a safety-sensitive employment position or joining

an athletic team). These searches do not have to be conducted

25

in an even-handed manner — as Officer Rohleder’s search of

Petitioner certainly illustrates.

If there is one rule governing this Court’s special needs

jurisprudence, it is that government officers cannot have free

reign to search whomever they choose, whenever they choose,

for whatever reason they choose. “The essential purpose of the

proscriptions in the Fourth Amendment is to impose a standard

of reasonableness upon the exercise of discretion by

government officials, including law enforcement agents, in

order to safeguard the privacy and security of individuals

against arbitrary invasions... .” Prouse, 440 U.S. at 653-54

(citations and internal quotation marks omitted). California has

only two options: either require individualized reasonable

suspicion for the search of a particular parolee or search all

parolees on a uniform and non-discretionary basis without

suspicion. Since the California parole search condition falls

into neither category, it is unconstitutional.

26

CONCLUSION

For the reasons stated, the judgment of the California

Court of Appeal should be reversed.

Respectfully submitted, '”

Graham A. Boyd

Counsel of Record

American Civil Liberties

Union Foundation

1101 Pacific Ave., Ste. 333

Santa Cruz, CA 95060

(831) 471-9000

Steven R. Shapiro

American Civil Liberties

Union Foundation

125 Broad Street

New York, NY 10004

(212) 549-2500

Alan Schlosser

ACLU of Northern California

1663 Mission Street

San Francisco, CA 94103

(415) 621-2488

'2 4mici wish to acknowledge the contributions of Elizabeth C. Wang in

wniting this brief.

27