Amicus Curiae Brief — Samson v. California

Supreme Court, U.S.

FILED

NOV 2 8 2005

No. 04-9728 |_ OFFICE OF THE CLERK

—————————___

IN THE

Supreme Court of the United States

DONALD CURTIS SAMSON,

Petitioner,

Vv.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

ON WRIT OF CERTIORARI TO THE CALIFORNIA COURT

OF APPEAL, FIRST APPELLATE DISTRICT

BRIEF OF THE CALIFORNIA PUBLIC

DEFENDERS ASSOCIATION AND THE PUBLIC

DEFENDER OF VENTURA COUNTY, CALIFORNIA,

AS AMICI CURIAE IN SUPPORT OF PETITIONER

Kenneth 1. Clayman, Michael C. McMahon,

Public Defender Counsel of Record for

800 South Victoria Ave. Amici Curiae

Ventura, CA 93009 Hall of Justice, Suite 207

(805) 654-2208 800 South Victoria Ave.

Ventura, CA 93009

(805) 447-7114

November 28, 2005

QUESTION PRESENTED

Does the Fourth Amendment prohibit police from

conducting a warrantless search of a person who is

subject to a parole search condition, where there is no

suspicion of criminal wrongdoing and the sole reason for

the search is that the person is on parole?

TABLE OF CONTENTS

Page

QUESTION PRESENTED jenn enteinesfibigiadtadiibireimnebattinlcaniingsty i is

FES OE TD tetincisirestcinncrtsbiinidbiaebticisiainiovntions ii

TABLE OF AUTHORITIES bbe Comiadadiieailianeesiliscaiaeadaeniniin iv

PCRS GI HS se iicivepscesisiseetistncensicnawioiontesetated 2

PUTT Gna avecncnseipsparadtbnnssiunnsedenbtsiacinnestedieneenses 3

a 1. The historical facts fully and fairly

present the question. :

2. California has a complex system of county

and state probation and parole, in which

many persons have search terms, but many

do not. Law enforcement seeks Fourth

Amendment rules that are understandable

and easy to apply on the streets, but find

EES Ey ORE E> PIES TRE VR ie Be es ee PO Ore 4

SUMMARY OF THE ARGUMENT..................c0.ceeceeee, 8

ARGUMENT Satis bahieieh-amiedanibesilnnd thdhieatibecctea ik ti Dati die ana at tidak ciel 9

I. California’s Fourth Amendment

jurisprudence has been misguided since

its 1994 decision in Jn re Tyrell J.

Inspired by “sloppy analysis,” its

1998 decision in People v. Reyes extends

the “special needs” exception to full-scale

searches conducted in the course of

ordinary law enforcement................0...c..cc0eeeeceee )

es

IT. A “special needs” balancing of interests

dictates that law enforcement searches of

parolees be based upon some quantum

of individualized suspicion. A proper

balance is struck with a requirement that

such searches be based upon reasonable

suspicion, the lowest objective standard

- known under the law

a.

California’s interests in monitoring

and supervising parolees are

legitimate and significant.....................

The searches by officers in the.

field are frequent, unlimited,

full-scale searches and the evidence

seized is often used in new felony

prosecutions. Parolees, and those

persons in propinquity to them, are

detained, inconvenienced, and

a

Use of the familiar “reasonable

suspicion” standard is a practical

alternative. It allows an immediate,

forceful response to any appearance of

misconduct. The state’s interests

are not placed in jeopardy by a

requirement of individualized

civic tinsdactedicdnctbcctacsudtvpnsassns ioe

Ill. Any regulatory program which includes

suspicionless searches of parolees or

probationers must be free of pervasive

entanglement with ordinary law

enforcement

CONCLUSION

- ill -

i _ ooo eee eee eee eee eee eee ee eee eee eee eee eee eee

14

TABLE OF AUTHORITIES

CONSTITUTION:

PIE IN sisi onsccecscrctesssnecansestsbimarel passim

CASES:

California v. Trombetta, 467 U.S. 479 (1984)............0608. 2

Delaware v. Prouse, 440 U.S. 648 (1979).........cccceeeeeeeee 14

In re Tyrell J., 8 Cal.4th 68 (1994)................. 9, 10, 11, 13

In re William R., 133 Cal.App.4th 1004 (2005).............. 11

In re Joshua J., 129 Cal. App.4th 359 (2005)................. 11

Lockyer v. Andrade, 538 US 63 (2003)............cc.ccceceeeeens 3

Maryland v. Buie, 494 U.S. 325 (1990).............cccecceeee: 17

Monge v. California, 524 U.S. 721 (1998).............c.ccccees 2

People v. Burgener, 41 Cal.3d 505 (1986).................000 ll

People v. Lewis, 74 Cal.App.4th 662 (1999)................0.5. 6

People v. Revelles, B180419 [nonpub opn] (2005)............ 11

People v. Reyes, 19 Cal.4th 743 (1998)................. 9,11, 12

People v. Robles, 23 Cal.4th 789 (2000)...............ccceecees 13

People v. Sanders, 31 Cal. 4th 318 (2003)................ 11, 13

People ex rel. Deputy Sheriffs’ Assn. v. County

of Santa Clara, 49 Cal.App.4th 1471 (1996)......... 6

Richards v. Wisconsin, 520 US 385 (1997).............0c000- 17

Skinner v. Railway Labor Executives’

Ass'n, 489 U.S. 602 (1989) ............ cece cseceeees 12, 18

Treasury Empioyees v. Von Raab, 489 U.S. 656

CR wciinchsstisnciusngwisliditneentibemtisaiediadans cc siael 12, 18

United States v. Knights, 534 U.S. 112 (2001)................ 2

Vernonia Sch. Dist. 47) v. Acton, 515 U.S. 646 (1995)....16

STATUTES & REGULATIONS:

Calif. Bus. & Prof. Code, §6070, subd. (b)...................... 2

Calif. Pen. Code, § 1210, subd. (a).........ccccoccsccccccsscccsess 6

Coe, GHIA Be Be I Ci cencesccsctdntdssedeminadnumends 14

Calif Pen. Code, $6 3074-B08B..... .......cccoccccvcscocccccoscesoes 5

-1V-

Calif. Pen. Code, § 3076, subd. (€)............cccceceeeeeeeeeees

Calif. Pen. Code, § 3081, subd. (a)..............ceceeceeeeeees

MISCELLANEOUS:

Rules of the Supreme Court of the

United States, Rule 37.6.............cccccccscsssceseeees

Substance Abuse and Crime Prevention

Ei iididitbcdls dekonsdaddeidededessionsesvnscocces 6,

Trends in Probation and Parole in the States,

William D. Burrell, American Probation

I. os scene connsvoceoes

2

IN THE

DONALD CURTIS SAMSON,

Petitioner,

Vv.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

ON WRIT OF CERTIORARI TO THE CALIFORNIA COURT

OF APPEAL, FIRST APPELLATE DISTRICT

BRIEF OF THE CALIFORNIA PUBLIC

DEFENDERS ASSOCIATION AND THE PUBLIC

DEFENDER OF VENTURA COUNTY, CALIFORNIA,

AS AMICI CURIAE IN SUPPORT OF PETITIONER

INTEREST OF AMICI

In an attempt to assist the Court and to bring to

its attention facts and analysis which have not already

been presented by the parties, we respectfully submit this

amici curiae brief. !

With over 3,000 members, the California Public

Defenders Association (CPDA) is the state’s largest

association of criminal defense attorneys. CPDA has been

a national leader in continuing legal education for defense

attorneys for over 26 years, and is one of only two

organizations deemed by California to be an

“automatically” approved legal education provider. (Calif.

Bus. & Prof. Code, §6070, subd. (b).) CPDA attracts many

private practitioners as associate members. CPDA’s

members are involved in both trial and appellate practice.

Many of CPDA’s clients are on parole or probation, or

both. The California courts have granted CPDA leave to

appear as amicus curiae in well over 30 California cases

which culminated in published opinions. CPDA has also

served as amicus curiae in the United State Supreme

Court in cases involving constitutional issues in criminal

procedure. (See California v. Trombetta, 467 U.S. 479

(1984) [the duty to preserve evidence is limited to

evidence that might be expected to play a significant role

in. the suspect's defense]; Monge v. California, 524 US.

721 (1998) [the double jeopardy clause does not bar retrial

of a prior conviction allegation after an appellate finding

of evidentiary insufficiency]; United States v. Knights, 534

1 Pursuant to Rule 37.6, counsel of record Michae] C. McMahon

states that he is the sole author of this amici curiae brief and

specifically that no counsel for a party authored this brief either

-in whole or in part, and that no person or entity other than the

amici, their members, or their counsel, made a monetary

contribution to the preparation or submission of this brief.

U.S. 112 (2001) [a probation search based up reasonable

suspicion did not violate the Fourth Amendment]; Lockyer

vu. Andrade, 538 US 63 (2003)[ a state court’s affirmance

of a sentence challenged as cruel and unusual was not

objectively unreasonable].)

The second amicus on the brief, the Public

Defender of Ventura County, California, with his fifty

deputies, provides legal representation to thousands of

clients each year, who are being prosecuted in the

criminal courts. Many of his clients are on parole or

probation, or both. The Public Defender’s staff has read

thousands of arrest reports describing California parole

and probation searches and has brought suppression

motions challenging them as unreasonable. The Public

Defender has an accurate impression of the true nature

and extent of these privacy intrusions. He understands

the question presented and the scope of its presentation.

Both the California Public Defenders Association

and the Public Defender of Ventura County have a

substantial interest in the correct resolution of the

question presented in this case. Its resolution will

determine the rights of our clients and affect our practice.

We believe our brief can augment those presented by the

parties and illuminate the history and nature of_ the

current controversy.

STATEMENT

1. The historical facts fully and fairly present

the question.

Pedestrian, Donald Samson, who was _ not

suspected of any wrongdoing, was fully-searched by a

police officer for the sole reason that he was on parole.

The officer found methamphetamine and Samson was

convicted of possessing the drug. The California courts

rejected Samson’s argument that the suspicionless search

violated the Fourth Amendment.

These facts present a “clean” record for the

resolution of the question presented. Nothing suggests

that certiorari was improvidently granted or that the

resolution of the question should await some future case.

2. California has a complex system of county

and state probation and parole, in which many

persons have search terms, but many do not. Law

enforcement seeks Fourth Amendment rules that

are understandable and easy to apply on the

streets, but find none.

Petitioner's brief will contain an _ excellent

overview of the California “state parole” system. A/ici

wish to augment that overview with a description of

California’s “county parole” system.

California has 58 counties. Although Samson was

on state parole, rather than county parole, it is important

for the Court to understand that California residents may

be on county probation, on county parole, or on a state

parole imposed by California, by sister state, or by the

federal system. Some of these persons have a diminished

expectation of privacy as a result of the terms and

conditions of their probation or parole, while many do not.

If the particular probation or parole includes no search

term, the warrant and probable cause requirements fully

apply. As a result, it is not enough for a law enforcement

officer to know that a person is on probation or parole.

The officer must also know whether the particular

probation or parole includes a search term, and the

wording of that search term. As always, the “devil is in

the details.”

In the instant case, the officer who searched

Samson may not have understood the difference between

the rights of a state parolee and a state prisoner. The

officer appears to have believed that Samson was a state

prisoner who had been released from prison “early,” on

parole. The officer testified that he could search Samson,

or other state parolees, without any individualized

suspicion because, “Jt’s a privilege for him to be out there.”

J.A. 38. In fact, persons released from California prisons

and placed on state parole have already served their

entire prison term. Their freedom from custody is not a

privilege, but a matter of right. They have “paid their

debt to society,” and are transitioning to post-prison life.

The parole period is an additional period of supervision

tacked on to the underlying prison sentence by the

operation of state law.

By contrast, persons on county parole have been

released early from service of a commitment to county

jail. Their parole is completely unrelated to the state

prison system. There is, in each California county, a

Board of Parole Commissioners. “County parole” is

granted pursuant to California Penal Code sections 3074-

3088 by those boards. Many of these parolees do not have

“search terms” and none are required by law. The only

legal requirement is that county parolees must be

supervised by a county parole officer. Id., at §3088.

County parole is a “critical” component of the

California justice system in every county. “The

Legislature finds and declares that the period

immediately following incarceration is critical to

successful reintegration of the offender into society and to

positive citizenship. It is in the interest of public safety

for a county to provide for the supervision of parolees, and

to provide educational, vocational, family and personal

counseling necessary to assist parolees in the transition

between imprisonment and discharge.” (/d., at §3074,

emphasis added.)

County parole is often used to relieve overcrowding

in California’s numerous jails which are operated by a

-5-

county government. California county sheriffs commonly

seek to release inmates on county parole to alleviate jail

- crowding, including inmates the county probation officer

might view as unsuitable for county parole. People ex rel.

Deputy Sheriffs’ Assn. v. County of Santa Clara, 49

Cal.App.4th 1471, 1485-1486 (1996) Other persons are

- placed on county parole as a reward for good work and

behavior while in jail, or pressing family needs and

emergencies. :

The distinction between county and state parole is

significant. When California appellate courts state that

“every parolee” has a search term, this is inaccurate with

regard to the many persons on county parole. See e.g.

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

California search conditions “are now automatic, and

imposed on every parolee”).

The fact that any particular parolee might be on

county parole should be common knowledge in the

California public safety community. Every judge and

every jail inmate is provided with detailed information

regarding county parole. Calif. Penal Code §3076, subd.

(c). County parole may be imposed for as long as two

years following release from the county jail. Jd., §3081,

subd. (a).

Recent developments have added to the complexity

of California’s system of probation and parole. The

Substance Abuse and Crime Prevention Act of 2000

(SACPA), which was enacted by the voters of California,

requires courts to order probation and community-based

drug treatment, rather than incarceration, for certain

criminal offenders who commit nonviolent drug

possession offenses. Calif. Pen. Code, § 1210, subd. (a).

The SACPA also mandates that state parolees who pick

up a new criminal prosecution for a non-violent drug

offense not involving sales, may be entitled to a

treatment-oriented county probation if they are convicted.

Such persons are simultaneously supervised by a state

-6-

parole officer, a county probation officer, and treatment

providers. This organized program of supervision will

routinely include random drug-testing, pursuant to the

supervisors’ protocols. Reasonable estimates are that

approximately 10% of persons entering this new drug

treatment-based county probation are already on state

parole. And, subject to certain narrow exceptions, state

parole may not-be suspended or revoked for commission of

a nonviolent drug possession offense or for violating any

drug-related condition of parole.

The sheer complexity of California's system of

state parole, and county probation and parole, presents a

problematic situation for the peace officer on the street

and those charged with the task of training them on

Fourth Amendment principles. In which situations must

a search be based upon probable cause? When is

reasonable suspicion sufficient?

California’s courts have added to this confusion by

assuring officers that all parolees may be searched

without any quantum of individualized suspicion. If this

is true, may a county probationer (or at least one with a

search term) also be searched at the whim of the officer?

California looks to this Court for much needed

guidance.

~]

SUMMARY OF THE ARGUMENT

A constitutional program of parole supervision

might include a component of random breath, blood, and

urine testing, inspections of the residences of parolees,

and other privacy intrusions, which are not based upon

individualized suspicion.

Currently, California has no incentive to develop

such a program. A series of flawed opinions from the

California Supreme Court has left the authorities with

the impression that parolees have a diminished

expectation of privacy, one that has been diminished into

oblivion. Parolees have become fair game for full-scale

searches by any officer of any law enforcement agency,

without limitation. Any evidence seized in those searches

is most often used in new felony prosecutions.

Although the entire, standardless scheme is

arbitrary and capricious, California courts promise to

suppress the evidence only if the parolee can prove the

particular search was arbitrary, capricious, or undertaken

for harassment. A search undertaken merely because the

person is a parolee will not result in suppression. As a

practical matter, this safeguard is illusory.

A balancing of interests dictates that ordinary law

enforcement searches of parolees should be based upon

some quantum of individualized suspicion. A

requirement of reasonable suspicion, at least for searches

conducted by officers in the field, is constitutionally

appropriate. Parole supervision and public safety will not

suffer in any significant degree from such a requirement.

Law enforcement will actually benefit by a return of their

attention to subjects who appear suspicious.

The judgment of the California Court of Appeal

should be reversed.

ARGUMENT

1. California’s Fourth Amendment §juris-

prudence has been misguided since its 1994

decision in In re Tyrell J. Inspired by “sloppy

analysis,” its 1998 decision in People v. Reyes

extends the “special needs” exception to full-scale

searches conducted in the course of ordinary law

enforcement.

Amici contend that California’s jurisprudence

regarding searches of probationers and parolees strayed

far off course eleven years ago. The court's failure to

acknowledge and rectify that mistake has hampered its

analysis in more recent cases. Law enforcement, privacy

rights, and public safety have all suffered.

In 1994, the California Supreme Court concluded

that an officer may search a minor who is subject to a

probation search condition without reasonable suspicion

that the minor has violated the law or any condition of

the probation even if the searching officer is unaware of

the suspect’s probationary status. In re Tyrell J., 8 Cal.4th

68, 78 (1994) (Tyrell J.).

In Tyrell J., a police officer had searched the

person of a juvenile without knowing the minor was on

juvenile probation with a search condition, and found a

bag of marijuana in one of his pockets.

But not every appellate victory for the prosecution

proves to be a real benefit for law enforcement. Tyrell JJ.

was wrongly decided and misled law enforcement officers,

prosecutors, and judges, regarding traditional Fourth

Amendment principles. Tyrell J. meant that a search

could be justified based upon facts learned after the

search was completed.

The methodology used to arrive at the result in

Tyrell J. was flawed. The majority opinion in Tyrell J.

determined that the search was not a violation of the

fs

Fourth Amendment by considering “the primary purpose

of the Fourth Amendment exclusionary rule.” Id., at p.

89.

The question of whether the search of the minor's

pocket violated his Fourth Amendment rights should

properly have been resolved before (or at least separately

from) any discussion of whether the exclusionary sanction

was appropriate in that context. The two questions are

inherently separate issues, each requiring separate

analysis.2 While it is entirely possible the California

court might have arrived at the same result without

confusing the two issues, the court’s flawed analysis

creates serious doubts regarding its ultimate conclusion.

For the past eleven years, the California criminal

justice system has suffered as a result of this decision.

Many law enforcement officers have applied the rationale

of Tyrell J. to searches of adults who may later be

discovered to be on either probation or parole. Tyrell J.

encourages law enforcement to search first and ask

questions later. When questions do precede the search,

the first question is invariably, “Are any of you on

probation or parole.” By this diversion of police attention

from the observation of facts which might support an

inference of suspicion of wrongdoing, the quality and

character of criminal investigation has suffered.

Despite controversy, confusion, and criticism, the

California Supreme Court has declined to frankly

overrule its decision in T'yrell J. See, most recently, in

2 If the search of Samson was unreasonable, the exclusionary

rule should apply because the evidence was used to obtain a

criminal conviction. Any further discussion of the deterrent

purpose of the exclusionary rule is both unnecessary and

unhelpful in determining whether the search was

unreasonable.

-10-

People v. Sanders 31 Cal.4th 318, 335, fn. 5 (2003)

(Sanders).

A few days before the writing of this brief, the

California Supreme Court let stand a decision by the

Court of Appeal upholding a search undertaken solely

because the officer knew that the subject was on “parole.”

At the time of the search, the officer did not know

whether the person he was searching was on a California

state parole with a search term, or on a grant of parole

from another agency which did not include a search term.

People v. Reveiles,. B180419, [nonpub. opn] (review den.,

November 16, 2005, S137742.) Although an order

denying review creates no precedent, the Court of

Appeal’s underlying decision on the merits shows the

lingering effects of the Tyrell J. approach: the use of

information learned only after a search, to establish its

constitutionality. Despite the erosion of Tyrell J. in the

Sanders decision, the California courts remain confused.

Compare In re William R., 133 Cal.App.4th 1004

(10/27/2005) [Sanders did not overrule Tyrell J.] with In

re Joshua J., 129 Cal.App.4th 359 (5/12/2005) [Sanders

“dismantled the foundation and cornerstones of Tyrell J.”

so that “there is no presently binding Supreme Court

authority” on the issue].

In 1998, the California Supreme Court was

confronted with the same question presented to this Court

in the instant case. In People v. Reyes, 19 Cal.4th 743

(1998) (Reyes) a four-to-three majority of the California

Supreme Court overruled People v. Burgener, 41 Cal.3d

505 (1986) in which it had held that any warrantless

search of a parolee must be justified by a reasonable

suspicion that the parolee has violated, or is planning to

violate, the law or a parole condition. Reyes, at pp. 746,

753-754. The Reyes majority held that “a parole search

may be reasonable despite the absence of particularized

suspicion.” Jd. at p. 753.

7

In Reyes, the California Supreme Court relied

upon two cases from this Court to justify the suspicionless

searches of paroles by officers in the field. But its reliance

on these cases is misplaced.

In Treasury Employees v. Von Raab, 489 U.S. 656

(1989), the design of the United States Customs Service's

urine testing program was clearly separate and distinct

from the ordinary needs of law enforcement:

e The results of the tests could not be used in

a criminal prosecution of the employee

without the employee's consent. Id., at p.

666, and,

e Testing was not subject to the discretion of

officials in the field. Jd., at p. 667.

In the instant case, Samson, a state parolee, was

searched in an exercise of unfettered discretion by a city

police officer in the field. The seized evidence was used in

a criminal prosecution of Samson without his consent.

Neither of these important distinctions was discussed by

the California court.

The second case cited by the Reyes court was

Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602

(1989) Skinner is readily distinguishable, however,

because there:

e the privacy interests implicated by the

searches were “minimal” and the searches

were limited to blood, breath, and urine

workplace testing of employees performing

safety-sensitive tasks, and,

e the employees were already subject to

medical and physical fitness examinations.

In the instant case, the searches at issue are full-

scale searches far more diverse and intrusive than the

blood, breath, and urine testing presented in Skinner.

-12-

The state parolees are not otherwise subject to the

medical and physical fitness examinations, as were the

railway employees.

The California court has persisted in conflating the

initial question of whether the Fourth Amendment has

been violated, with the secondary question of whether

application of the exclusionary rule is an appropriate

sanction for the violation. See e.g. People v. Robles, 23

Cal.4th 789, 799-800 (2000); Sanders, supra, 31 Cal.4th at

pp. 324, 334; and conc. opn., J. Brown, at p. 340,

complaining of the recurring “sloppy analysis.”

This case presents the High Court with an

opportunity to provide the California Supreme Court

with some needed guidance and free it from the muddled

thinking exhibited in Tyrell J. and its progeny. Amici

hope that this guidance will restore the attention of law

enforcement upon the observation of specific and

articulable facts supporting an inference of suspicion of

misconduct. The limited resources of the police can then

be re-focused on those who appear to be involved in

wrongdoing, rather than scattered among thousands of

law-abiding persons, who happen to be on probation or

parole. Amici contend that public safety will not suffer by

the restoration of traditional Fourth Amendment

principles.

Il. A “special needs” balancing of interests

dictates that law enforcement searches of parolees

should be based upon some quantum of

individualized suspicion. A proper balance is

struck with a requirement that such searches be

based upon reasonable suspicion, the lowest

objective standard known under the law.

“(T]he permissibility of a particular law

enforcement practice is judged by balancing its intrusion

- 19-

on the individual's Fourth Amendment interests against

its promotion of legitimate governmental interests.”

Delaware v. Prouse, 440 U.S. 648, 654 (1979).

Amici suggest that the balancing of interests here

dictates that law enforcement searches of parolees should

be based upon reasonable suspicion, the lowest objective

standard known under the law.

Ila. California’s interests in monitoring and

supervising parolees are legitimate and significant.

The government's interests in monitoring and

supervising parolees are great. California has articulated

those interests in some detail. One interest is the

“successful reintegration of the offender into society and

..positive citizenship.” Cal. Pen. Code, § 3000(a)(1).

Others are the “supervision of and surveillance of

parolees” and “to assist parolees in the transition between

imprisonment and discharge....” Jd.

Parolees have been convicted of at least one crime

and are at risk of re-offending. In the instant case, Mr.

Samson was in possession of some two grams of a

methamphetamine. This was a new violation of law and

of the conditions of parole. It is likely, however, that most

suspicionless parole searches produce nothing more than

humiliation and delay for those parolees who have

remained “above suspicion.” (The courts never see those

cases, because no arrest is made nor charges filed. They

are nevertheless, a part of the intrusion upon privacy

interests which must go onto the other end of the

balancing scale.)

The state’s interest in supervising parolees is

similar to its interest in supervising probationers. As

explained earlier, many people are simultaneously on

both parole and probation, and, the lines between the two

have been blurred.

- 1]4-

The creation of different rules of reasonableness

governing parole and probation searches may or may not

be appropriate. That is a question that need not be

decided in the instant case. But searches of both parolees

and probationers which, as is often the case, result in the

discovery of small quantities of drugs will often not result

in a revocation of that parole or probation under

California’s Substance Abuse and Crime Prevention Act

of 2000.

However, California law enforcement officers are

well aware that such evidence may be used in the

prosecution of a new criminal case. Under California law,

such new offenses are invariably filed as felonies, rather

than misdemeanors, particularly where the defendant is

already on probation or parole.

Under current policies, the state’s legitimate

interests are great, but are virtually identical to its

general interest in ordinary law enforcement.

IIb. The searches by officers in the field are

frequent, unlimited, full-scale searches and the

evidence seized is often used in new felony

prosecutions. Parolees, and those persons in

propinquity to them, are detained, inconvenienced,

and embarrassed.

The parole searches at issue are full scale

searches. Parole (and probation) search intrusions are

far more than minimal. At the end of 2003, some 4.8

million adults were on probation and parole, compared

with approximately 2.1 million adults in jail or prison.

See Trends in Probation and Parol> in the States, William

D. Burrell, American Probation and Parole Association.

These searches directly or indirectly affect the rights of

those persons associated in some way with the parolee.

The parole searches include searches of homes

shared with friends and family, cars shared with co-

- 15-

workers, searches conducted in full public view, searches

following transport to a police station, body cavity

searches, and blood draws for drug and alcohol testing.

The searches infringe upon the rights of non-parolees.

For example, if a car driven by a parolee is stopped for a

search, all of the passengers are also effectively stopped

and detained.

Currently, California’s parole searches are of

unlimited intrusiveness. This weighs heavily in the

balancing process, when compared to the “negligible”

privacy-related significance of school urine sampling

conducted with a discreet protocol. Vernonia Sch. Pist. 47)

v. Acton, 515 U.S. 646, 658 (1995).

Given the extremely intrusive nature of the parole

searches and the use of the seized evidence in new

criminal prosecutions, amici contend that the invasion of

privacy rights is significant.

IIc. Use of the familiar “reasonable suspicion”

standard is a practical alternative. It allows an

immediate, forceful response to any appearance of

misconduct. The state’s interests are not placed in

jeopardy by a requirement of individualized

suspicion.

Searches based upon reasonable suspicion are a

practical alternative to suspicionless searches. Parolees

will soon learn that if they conduct themselves in a law-

abiding manner and remain free of ambiguous conduct or

suspicious situations, they will not be hassled or subject

to arbitrary searches, at least not by law enforcement

officers with no nexus with parole supervision. The very

purpose of parole is to encourage just such good behavior.

Use of a reasonable suspicion standard actively

encourages compliance with both the letter and the spirit

of parole regulations. Although the warrant and

probable-cause requirement is impracticable in the

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context of parole supervision, a requirement of reasonable

suspicion is not, at least not when the searches are

conducted by ordinary law enforcement as opposed to an

independent parole supervision program.

Although some argue that suspicionless searches

of parolees and’ probationers promote public safety, this

premise should commence, rather than conclude, our

analysis.

This Court has refused to approve routine privacy

intrusions in other contexts where officer safety was the

legitimate governmental interest sought to be promoted.

See Maryland v. Buie, 494 U.S. 325 (1990) (rejecting the

state’s claim that a protective sweep of a home is valid

without reasonable suspicion when the area may contain

someone who is a threat to the police; a protective sweep

of a home is permissible only where there is reasonable

suspicion that the area to be swept harbors an individual

posing a danger to those on the arrest scene); see also

Richards v. Wisconsin, 520 US 385 (1997) (rejecting a

blanket rule permitting police to effectuate an

unannounced entry of a home whenever they possess a

search warrant for narcotics).

Constitutional rights often mean that government

may not pursue it interests in the most economical and

efficient manner. The reasonable way of doing business is

not always the fastest or the least expensive. The

Framers surely must have appreciated that protecting

these rights would often create some _ resulting

inconvenience, some delay, or some additional costs.

When performing a balancing of interests, the

Court cannot discard the right to individual privacy

merely because protecting it may result in some

inconvenience to the government's legitimate pursuit of

other interests.

Can the Court fairly conclude that requiring

individualized suspicion for searches of parolees by law

<i

Ill.

enforcement would have a significantly detrimental effect

on their supervision or would it render their supervision

impracticable?

Amu contend that the important governmental

interests furthered by the parole searches will not be

placed in jeopardy by a requirement of individualized

suspicion. |

Any regulatory program which includes

suspicionless searches of parolees’ or

probationers should be free of pervasive

entanglement with ordinary law enforcement.

Conceivably, the California legislature and parole

authorities could develop a reasonable, structured,

program to monitor and supervise parolees, which

included a component of suspicionless searches.

Such a program might include a component of

random breath, blood, and urine testing, inspections of

the residences of parolees, and other privacy intrusions,

which are not based upon individualized suspicion. Such

a program would need to be less arbitrary and capricious

than the current unstructured policy, which leaves

everything to the unfettered discretion of every law

enforcement officer in the field.

A constitutional program would need to look much

more like the structured programs at issue in Treasury

Employees v. Von Raab, supra, or Skinner v. Railway

Labor Executives’ Ass’n., supra. Neither of those

programs was designed so as to create a pervasive

entanglement with ordinary law enforcement. In those

programs, the primary consequences of the searches were

not new criminal prosecutions. In those programs, the

decision to search was not made by a law enforcement

officer in the field. In those programs, the searches were

limited in scope. The privacy invasions were minimal.

a

California needs a new, well-conceived program for

parole searches. But the state will have no incentive to

develop such a program until this Court clarifies that

California’s current policy is unreasonable.

Finally, amici believe that any attempt to design a

program of suspicionless searches for parolees should be

left, in the first instance, to state authorities. This Court

will have the last word; it need not have the first.

RKKKKEKEKEEKREEKKEKEEKEEREEEERKEEEKEEKKKKKKKKK

CONCLUSION

The judgment of the California Court of Appeal

should be reversed. |

Respectfully submitted,

. c

Kenneth I. Clayman, Michael C. McMahon,

Public Defender Counsel of Record for

800 South Victoria Ave. Amici Curiae

Ventura, CA 93009 Hall of Justice, Suite 207

(805) 654-2208 800 South Victoria Ave.

Ventura, CA 93009

(805) 447-7114

November 28, 2005

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