# Amicus Curiae Brief — Samson v. California

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0117%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 547 U.S. 843

## Text

——

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0117%3A10. Public record. Not legal advice.