Amicus Curiae Brief — Samson v. California

Supreme Court of the Anited States = -

DONALD CURTIS SAMSON,

Petitioner,

VS.

THE STATE OF CALIFORNIA,

Respondent.

On Writ of Certiorari to the

California Court of Appeal for the

, First Appellate District

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

KENT S. SCHEIDEGGER ~

CHARLES L. HOBSON

Counsel of Record

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@cjlf.org

QUESTION PRESENTED

Does a parole condition requiring the parolee to consent to

warrantless suspicionless searches that are not arbitrary,

capricious or harassing violate the Fourth Amendment?

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TABLE OF CONTENTS

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PS oe cee ssovtuvicccerecdenesenet iv

TENE GE OP CITES on ccc eieccecescossvences ]

SUMMINETY GE TRCIS GME CORS . ww. ees cccvcccccvcccs 2

Summary of argument sete e ete e eee eens eeeee scenes 3

Argument .......... RES ARM et apr ee gE 4

I

The threat to public safety posed by parolees creates a

special need for close supervision of them by police

a POPP T TTT eee eee ire 5

i EE cabs takes dnevecdacsdeceedvenaen 5

PIE cvs vadesceseuscees sides 9

C. Public safety as a special need ............... 12

Il

The search condition did not violate any reasoriable

expectation of privacy of the defendant ......... ia weet

CNN wi FS cence ccccetasssCivesapeucteteeres 22

(ili)

iv

TABLE OF AUTHORITIES

Cases

44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484,

116 S. Ct. 1495, 134 L. Ed. 2d 711 (1996) -......... 21

Chandler v. Miller, 520 U. S. 305, 117 S. Ct. 1295,

cog SH fo ey rrr 15, 16

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

121 S. Ct. 447, 148 L. Ed. 2d 333 (2000) ........ 14, 15

Connecticut Bd. of Pardons v. Dumschat, 452 U. S. 458,

101 S. Ct. 2460, 69 L. Ed. 2d 158 (1981) ............ 5

Escoe v. Zerbst, 295 U. S. 490, 55 S. Ct. 818,

TL TE ES. 55 ok Gi ieee 18

Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179,

OOS E.. BE Be Pee 6 ibs a ice cbaR cute eee 20

Gagnon v. Scarpelli, 411 U. S. 778, 93 S. Ct. 1756,

i; € tL. FREE me erry + 5,19

Gregg v. Georgia, 428 U. S. 153, 96 S. Ct. 2909,

49 L. Ed. 2d 859 (1976) ......... akhideeiomueeea 20

Griffin v. Wisconsin, 483 U. S. 868, 107 S. Ct. 3164,

OF te Sk Oe PETE dc cu ce thas doecwsacans Passim

Hudson v. Palmer, 468 U. S. 517, 104S. Ct. 3194, .

2 Ee, Be SP UE c ccicccndvndeschecsaacisa 19

Illinois v. Lidster, 540 U. S. 419, 124 S. Ct. 885,

BSF. BE Be Geo chin hice cacdavssssanncs 15

Michigan Dept. of State Police v. Sitz, 496 U. S. 444,

110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990) .......... 14

Pennsylvania Bd. of Probation and Parole v. Scott,

524 U. S. 357, 118 S. Ct. 2014,

141 L. Ed. 2d 344 (1998) ................ 9,10, 11, 18

People v. Burgener, 41 Cal. 3d 505, 224 Cal. Rptr. 112,

EE ds cect Uelevececeeeneeees ye 5

People v. Reyes, 19 Cal. 4th 743, 80 Cal. Rptr. 2d 734,

EE 0.66 on 666 ebteusecccedes 4,15, 18

People v. Rodriguez, 51 Cal. 3d 437, 272 Cal. Rptr. 613,

ee ae re pe tess

Posadas de Puerto Rico Associates v. Tourism Co. of

Puerto Rico, 478 U. S. 328, 106 S. Ct. 2968,

i ee caneewens 21

Reno v. Flores, 507 U. S. 292, 113 S. Ct. 1439,

Se NEE RI een 6

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

109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989) .... 12, 13,17

Smith v. Doe, 538 U. S. 84, 123 S. Ct. 1140,

EE 06 bind cc depeeeasioostens 20

State v. Benton, 695 N. E. 2d 757 (Ohio 1998) ......... 1]

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

109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989) .......... 16

United States v. Edwards, 498 F. 2d 496 (CA2 1974) .... 16

United States v. Knights, 534 U. S. 112, 122 S. Ct. 587,

151 L. Ed. 2d 497 (2001) ....... fen eées 4, 12, 16, 17, 18

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

115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995) .......... 22

Young v. Harper, 520 U. S. 143, 117 S. Ct. 1148,

i etc c ec eenwhnseeees 9,11

United States Constitution

i i ioe i cckéicocaciabanien 16

United States Statutes

icc cctcpaldeecnededrs 5

I ec, ogee Se cs oe 5

State Statutes

I on. os bien ocvuscecndadaneosans 5

Cal. Penal Code § 3067 ...........0.0ceeeeeeese 17, 18

Te IN oo dvtin vei sivdctvessivediense 2

Treatise

3 B. Witkin & N. Epstein, California Criminal Law

SR aly gs ee PR a ER SCS ie Soe 11

5 W. LaFave, Search and Seizure (2004) .............. 16

Miscellaneous

Benedict & Huff-Corzine, Return to the Scene of the

Punishment: Recidivism of Adult Male Property

Offenders on Felony Probation, 1986-1989, 34 Journal

of Research in Crime and Delinquency 237 (1997) ... 6,7

Blenko, The Challenges of Integrating Drug Treatment

Into the Criminal Justice Process,

63 Albany L. Rev. 833 (2000) .............ceeeeees 6

California Department of Corrections and Rehabilitation,

California Prisoners and Parolees 2004 (2005),

http://www.cor.ca.gov/OffenderinfoServices/Reports/

AnnualCalPris/CALPRISON2004.pdf ............... 9

Vii

Langan, Between Prisun and Probation: Intermediate

Sanctions, 264 Science 791 (May 6, 1994) ........... 6

Mackenzie et al., The Impact of Probation on the Criminal

Activities of Offenders, 36 Journal of Research in Crime

i 6

Petersilia, Parole and Prisoner Reentry in the United States,

in Prisons (M. Tonry & J. Petersilia eds., 1999) .... 6,11

Petersilia, Probation in the United States: Practices and

Challenges, National Institute of Justice Journal, No. 233

SL AE 6.0 ch ak nesesnoun eeudkhéeellubeeetee< 5

Petersilia & Turner, Prison Versus Probation in California:

Implications for Crime and Offender Recidivism, in

Community Corrections: Probation, Parole, and

Intermediate Sanctions (Petersilia ed. 1998) ..... 8,9, 10

Scheidegger, Habeas Corpus, Relitigation and the

Legislative Power, 98 Colum. L. Rev. 888 (1998) ..... 21

U. S. Dept. of Justice, Bureau of Justice Statistics,

Recidivism of Felons on Probation, 1986-1989 (1992) .. 6

U. S. Dept. of Justice, Bureau of Justice Statistics, Probation

and Parole Violators in State Prison, 1991 (1995) .... 8,9

U. S. Dept. of Justice, Bureau of Justice Statistics,

Sourcebook of Criminal Justice Statistics 1987

8 Syrenrrs ST SITTLiTy (STL TETTT Li Letide L 7,8

U. S. Dept. of Justice, Bureau of Justice Statistics,

Criminal Victimization 2003 (2004) ................ 8

Wilentz, The Partnership of Judges and Probation—Back to

the Community, 49 Rutgers L. Rev. 1147 (1997) ...... 4

IN THE

Supreme Court of the United States

DONALD CuRTIS SAMSON,

Petitioner,

vs.

THE STATE OF CALIFORNIA,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in

litigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the constitutional protec-

tion of the accused into balance with the rights of the victim

and of society to rapid, efficient, and reliable determination of

guilt and swift execution of punishment.

Parole is an important but risky part of the criminal justice

system. While society can reap significant economic and

rehabilitative gains from parole and other forms of conditional

release, allowing convicted criminals to serve part of their

This brief was written entirely by counsel for amicus, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

sentence in society instead of prison threatens public safety.

Parole search conditions play an important role in limiting

parole’s danger to society by deterring parolees from commit-

ting crimes. Upholding California’s parole search conditions

preserves public safety and helps the rehabilitation of parolees,

which is consistent with the rights of victims and society that

the CJLF was formed to advance.

SUMMARY OF FACTS AND CASE

On September 6, 2002, San Bruno Police Department

Officer Alex Rohleder observed the defendant, Donald Curtis

Samson, walking down the street with another adult and baby.

Joint Appendix (“J.A.”) 10. Samson was on parole for the

- crime of possessing a firearm by an ex-felon. See J. A. 49; Cal.

Penal Code § 12021. Officer Rohleder knew that the defendant

was on parole and had heard from other officers that Samson

might have a parolee at-large warrant out against him. See

J. A. 10. The officer stopped the vehicle and made contact

with Samson. Jbid. While Samson stated that he had taken

care of the warrant, and was in good standing with his parole

officer, Officer Rohleder decided to conduct a “ ‘parole

search’ ” of the defendant. See ibid. The sole justification for

the search was the search condition of Samson’s parole. See

ibid. One condition of Samson’s parole was “that he 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 warrant with or

without probable cause.’” J, A. 10-11, n. 3. While Officer

Rohleder does not always search parolees, he does so regularly.

See J. A. 11. The officer found a cigarette box which con-

tained methamphetamine. See ibid.

Samson was convicted of possession of methamphetamine

in a jury trial. See J. A. 2. The California Court of Appeal re-

jected his Fourth Amendment attack on his parole search based

on a precedent of the California Supreme Court, J. A. 13-14,

and affirmed the conviction with a minor correction. J. A. 29.

The California Supreme Court denied discretionary review

on January 13, 2005. J. A. 30. This Court granted certiorari on

September 27, 2005.

SUMMARY OF ARGUMENT

Public safety is the Achilles’ heel of any parole system.

While society can reap substantial benefits from this less costly

and more rehabilitative alternative to prison, having convicted

criminals serve their sentence in society gambles with public

safety. A parole system that cannot protect the public will lose

support.

The threat to public safety from parolees is all too real.

Studies of felony probationers and parolees show a recidivism

rate that is between six to nineteen times the arrest rate for the

general population. Probationers and parolees were thus

responsible for at least thousands of murders and tens of

thousands of other serious felonies.

Allowing both police and parole officers to conduct parole

searches helps deal with this problem. Having more officers

available for searching supplements the resources of chroni-

cally understaffed probation departments. Police are also better

trained and more experienced at conducting searches than

probation officers. This makes parole searches both more

frequent and more effective, which further deters parolee crime.

In addition to protecting the public, it also aids i in the parolee’s

rehabilitation.

The threat to public safety posed by parole creates a special

need for more extensive supervision of parolees. Certain

threats to public safety create special needs for dispensing with

the Fourth Amendment’s warrant and suspicion requirements.

The fact that the particular public safety interest is related to

crime prevention does not disqualify it from special needs

status, as is demonstrated by airport checkpoints, courthouse

searches, sobriety checkpoints, and informative roadblocks.

Allowing a police officer to enforce the search condition

does not violate a defendant’s reasonable expectation of

privacy. There is no right to parole. If the state can deprive a

defendant of all Fourth Amendment rights through a prison

sentence, then the much lesser Fourth Amendment deprivation

found in this case must also be reasonable. Balancing the

defendant’s minimal privacy interests against society’s consid-

erable interest in protecting the public from parolees justifies

the search in this case.

ARGUMENT

The present case takes United States v. Knights, 534 U.S. _

112 (2001) and Griffin v. Wisconsin, 483 U. S. 868 (1987) to

the next step. Parole, probation, and other forms of supervising |

convicted criminals short of imprisonment are vital compo-

nents of the criminal justice system. See Wilentz, The Partner-

ship of Judges and Probation—Back to the Community, 49

Rutgers L. Rev. 1147, 1150-1151 (1997). While these punish-

ments allow criminals to be supervised at considerably less

direct cost to society and can provide a greater means for

rehabilitation, public safety is the Achilles’ heel of supervisory

release. These methods of punishment release convicted

criminals into the public, an inherently dangerous proposition

which requires that the state be able to monitor the released

prisoners effectively. The present case will determine just how

effectively the government can protect society from prisoners

serving their sentences outside of prison. This case is not about

giving the authorities carte blanche to search parolees. Califor-

nia limits the timing and duration of the search, and Califor-

nia’s parole searches cannot be arbitrary or oppressive. See

People v. Reyes, 19 Cal. 4th 743, 753-754, 968 P. 2d 445, 451

(1998). While those parole searches do not have to be justified

by some form of suspicion other than the status of being on

parole, they are still subject to some form of review. This type

of search, and nothing more, is at issue in this case.

I. The threat to public safety posed by parolees

creates a special need for close supervisien of them

by police and parole officers.

Maintaining public safety is an essential part of any parole

or probation system. See, e.g., Griffin v. Wisconsin, 483 U. S.

868, 875 (1987); 18 U.S.C. §§ 3562(a), 3553(aX(2)(C); People

v. Burgener, 41 Cal. 3d 505, 532, 714 P. 2d 1251, 1268 (1986);

Cal. Penal Code §3000. While Griffin relied on both public

safety and rehabilitation to support a special needs finding, see

483 U. S., at 875, the special threats to public safety posed by

parolees is sufficient on its own to justify suspicionless

searches by police and parole officers in the manner allowed by

the California courts.

A. The Threat.

Supervisory release systems must place public safety before

any other interest. While society may benefit from employing

the cheaper and potentially more rehabilitative parole instead

of prison, this form of punishment gambles with public safety.

Anyone who is eligible for parole has already demonstrated an

unwillingness to conform to the law. See Griffin, 483 U. S., at

880. Parolees are thus a far greater threat to commit crimes

than the generally law-abiding citizens with whom they share

freedom. If a supervisory release system cannot protect the

public, public support for it will erode. See Petersilia, Proba-

tion in the United States: Practices and Challenges, -National

Institute of Justice Journal, No. 233, p. 2 (Sept. 1997) =

below as “Probation in the United States”).’ |

2. Although this case addresses a search condition for parolees, this brief

utilizes research and cases on both probation and on parole. There are

no differences between the two that should prevent the use of research

on probation from supporting the search condition in the present case.

This Court generally does not distinguish between the two, as it applies

the same due process standard to their revocation hearings, see Gagnon

v. Scarpelli, 411 U. S. 778, 782 (1973), and often uses the terms

conjunctively. See, e.g., Connecticut Bd. of Pardons v. Dumschat, 452

Unfortunately, the threat to public safety is all too real.

While this subject has not been researched as extensively as it

should be, see Mackenzie et al., The Impact of Probation on the

Criminal Activities of Offenders, 36 Journal of Research in

Crime and Delinquency 423, 424 (1999), recidivism studies

still show that probationers and parolees are responsible for a

disturbingly large proportion of crimes.

These studies center on felony probationers. Typically,

recidivism is calculated by counting the number of these

probationers who have been arrested for a felony during the

first 3 years of probation.’ See Benedict & Huff-Corzine,

Return to the Scene of the Punishment: Recidivism of Adult

Male Property Offenders on Felony Probation, 1986-1989, 34

Journal of Research in Crime and Delinquency 237, 241

(1997); Langan, Between Prison and Probation: Intermediate

Sanctions, 264 Science 791, 792 (May 6, 1994). Estimates of

the recidivism rates for felony probationers range from 22% to

65%. See Benedict & Huff-Corzine, supra, at 239. A federal

study found that 43% of 79,000 probationers were arrested for

a felony within a three-year period of probation. See U. S.

Department of Justice, Bureau of Justice Statistics, Recidivism

of Felons on Probation, 1986-1989, pp. 1, 6 (1992) (Table 4).

Indeed, drug use is the best predictor of whether someone will

reoffend while on probation. See Mackenzie, supra, 36 Journal

of Research in Crime and Delinquency, at 439 (Table);

Benedict & Huff-Corzine, supra, at 245-246. Unfortunately,

drug use is far too common among parolees. See Blenko, The

U. S. 458, 464 (1981); Reno v. Flores, 507 U. S. 292, 322-323 (1993)

(Stevens, J., dissenting). Given the relative lack of research on parole,

see Petersilia, Parole and Prisoner Reentry in the United States, in

Prisons 479, 486 (M. Tonry & J. Petersilia eds., 1999), it makes sense

to utilize both probation and parole research, and to refer to the two

interchangeably.

3. Arrest figures understate the scope of the problem, since many crimes

never result in an arrest. See injra, at 8.

‘Challenges of Integrating Drug Treatment Into the Criminal

Justice Process, 63 Albany L. Rev. 833, 858 (2000).

Even at the lowest recidivism rate, parolees and probation-

ers are much more dangerous to the community than the .

average citizen. A 22% felony arrest rate over a 3-year period

for the general population is unthinkable. Arrest figures

reinforce this common sense conclusion. Since several of the

recidivism studies took place in the mid-1980’s, see Benedict

& Huff-Corzine, supra, at 238-239, amicus will use the 1986

arrest figures for the general population as a comparison figure.

In 1986, the arrest rate for Federal Bureau of Investigation

(FBI) “index” crimes (the combined arrest rates for 5 violent

crimes and 4 property crimes) was 1,091.8 per 100,000 or

1.0918%. U.S. Dept. of Justice, Bureau of Justice Statistics,

Sourcebook of Criminal Justice Statistics 1987, p. 368 (1988).

Assuming that no person is arrested for more than one index

crime during any 3-year period at the 1986 rates, the general

population rate would be about 3% for the period. The lowest

estimated recidivism rate for prisoners on supervisory release,

22%, would still be more than six times this hypothetical arrest

rate for the general population, while the high rate of 65%

recidivism is over 19 times this arrest rate.

The FBI index is not ideal for comparison, however, as it

both includes nonfelonies and excludes felonies from its total.

Thus the larcenies counted in the index include many misde-

meanor larcenies such as shoplifting. See id., at 563. Simi-

larly, the crime index does not count felonies that do not fall

into the property or violence classifications, primarily drug and

weapons offenses. See id., at 368, 562-563. Since the drug

and weapons arrest totals also do not distinguish between

misdemeanors and felonies, adding drug and weapons offenses

to the index crimes would create an excessively conservative

figure, but one that is still far below the recidivism rate for

felony parolees or probationers. The 1986 arrest rate per

100,000 population for drug offenses was 348.6 or 0.3486%,

id., at 368, and 80.7 per 100,000 or 0.087% for weapons

offenses. Jbid. When added to the index rate of 1.0918%, this

would give an annual arrest rate of 1.5274%. Over a 3-year

period the maximum arrest rate under this most conservative

reasonable estimate would be 4.5822%, which is still Jess than

one quarter of the lowest estimated recidivism rate for proba-

tioners, and one-fourteenth of the high rate.

The actual difference is undoubtedly much greater. First,

each arrest in the FBI total does not involve a different person;

some people will be arrested for more than one index crime

during a year or over a 3-year span. See id., at 367, note. More

importantly, the arrest rate for those not on supervisory release

is actually lower than the total crime index because that index

includes the arrests of probationers and parolees, who have a

much higher arrest rate than the civilian population.

A parolee’s threat to public safety is underscored by the

high proportion of state prisoners who were on parole at the

time of their offense. As of 1991, 22% of all state prisoners

were parole violators, see U. S. Dept. of Justice, Bureau of

Justice Statistics, Probation and Parole Violators in State

Prison, 1991, p. 3 (1995), and 43% of parole violators had been

arrested for a new offense. See ibid. “Based on the offense

that brought parolees back to prison, [in 1991] these 156,000

offenders committed at least 6,800 murders, 5,500 rapes, 8,800

assaults, and 22,500 robberi¢s, while under supervision in the

community an average of 13 months.” /d., at 1. Because many

crimes go unreported, see U. S. Dept. of Justice, Bureau of

Justice Statistics, Criminal Victimization 2003, p. 10 (2004), or

unsolved, these arrest figures understate the costs of parole. A

ratio of 10 crimes committed to every arrest is considered “a

conservative figure,” Petersilia & Turner, Prison Versus

Probation in California: Implications for Crime and Offender

Recidivism, in Community Corrections: Probation, Parole, and

Intermediate Sanctions 61, 64 (Petersilia ed. 1998). The

federal government has estimated that recidivism of parolees

and probationers results in “[p]Jrobation and parole violators . . .

compris{ing] 30% of all offenders in State prison for a violent

crime.” Probation and Parole Violators in State Prison, at 1.

Therefore, the real cost of parole and probation is much higher

than the arrest records estimate.

California’ s experience is no different. The rate of parolees

returned to prison with a new term of imprisonment was 13.9%

in 2004 and ranged from 10.6% to 21.1% between 1992 and

2003. See California Department of Corrections and Rehabili-

tation, California Prisoners and Parolees 2004, p. 48 (2005),

http://www.corr.ca.gov/O ffenderInfoServices/Reports/Annual/

CalPris/CALPRISd2004.pdf. Their crimes in 2004 include 97

murders, 591 robberies, 543 assaults with a deadly weapon, 29

rapes, and 56 child molestations. See id., at 49. Within two

years of parole 52.83% of California parolees were returned to

prison for either new offenses or parole violations. See id., at

84. Parole is a dangerous proposition, even with intensive

supervision. |

This empirical evidence reinforces the common-sense

conclusion that placing convicted criminals in society rather

than prison is dangerous enough with adequate supervision, and

intolerably dangerous without it. While not every parolee and

probationer is equally dangerous, this defendant, with a prior

felony conviction, posed a real risk of reoffending. This risk

forms a powerful justification for the search in this case.

B. Policing the Bargain.

Parole is a sort of bargain between the parolee and society.

The parolee is allowed to remain out of prison “in return for the

parolee’s assurance that he will comply with the often strict

terms and conditions of his release.” Pennsylvania Bd. of

Probation and Parole v. Scott, 524 U. S. 357, 365 (1998); see

also Young v. Harper, 520 U.S. 143, 147-148 (1997). Both

sides can benefit from the bargain. The defendant reduces his

time in prison and may have a better chance at rehabilitation,

while the state gets a less expensive alternative to prison, at

least in direct costs. See Petersilia & Turner, supra, at 65.

Although parole in California does not involve consent on the .

10

part of parolee, see infra, at 18, the parolee’s release is still

conditional.

A parolee who commits a crime breaks the bargain. Crime

is a cost not found in most economic comparisons between

parole and prison. While parole or probation is not simply an

economic issue, understanding its cost helps to determine

whether society is getting the benefit of its bargain with

probationers. This hidden cost of probation and parole crime

makes it likely “that felony probation sentences are more

expensive than is commonly assumed, both absolutely and

relative to imprisonment... .” Petersilia & Turner, supra, at

65. Making sure that parolees keep their side of the bargain

and imprisoning those who don’t is an “ ‘overwhelming

interest’ ” of the state. See Scott, 524 U. S., at 365 (quoting

Morrissey v. Brewer, 408 U. S. 471, 483 (1972)).

Search conditions can help to control the crime expense and

preserve society's overwhelming interest in controlling

parolees. Parole and probation “restrictions are meant to assure

that the probation serves as a period of genuine rehabilitation

and that the community is not harmed by the probationer’s

being at large.” Griffin, 483 U. S., at 875. By dispensing with

warrants, search conditions help the authorities respond more

“quickly to evidence of misconduct,” id., at 876, and more

importantly, help deter probationers from committing crimes.

See ibid. Too many restrictions on the officer’s ability to

search the probationer or parolee “would reduce the deterrent

effect of the supervisory arrangement. The probationer would

be assured that so long as his illegal (and perhaps socially

dangerous) activities were sufficiently concealed as to give rise

to no more than reasonable suspicion, they would go unde-

tected and uncorrected.” Jd., at 878 (discussing probable cause

requirement).

“Being on parole with a consent-to-search condition is

akin to sitting under the Sword of Damocles: With knowl-

edge he may be subject to a search by law enforcement

officers at any time, [the parolee] will be less inclined to

Il

have narcotics or dangerous drugs in his possession. The

purpose of an unexpected, unproved search of defendant is

to ascertain whether he is complying with the terms of

probation; to determine not only whether he disobeys the

law, but also whether he obeys the law. Information

obtained under such circumstances would afford a valuable

measure of the effectiveness of the supervision given the

defendant and his amenability to rehabilitation.” State v.

Benton, 695 N. E. 2d 757, 761 (Ohio 1998) (emphasis in

original; internal quotation marks omitted).

While police officers may not share the parole officer’s

interest in rehabilitation, cf. Griffin, supra, 483 U. S., at 876,

this does not invalidate a search based upon the public safety

special interest found in this case. The danger posed by parole

crime creates a special need separate from the rehabilitation

aspect of Griffin. See Part I-C, supra. In any event, the

deterrence and supervision advanced by police searches also

helps to rehabilitate the parolee. Deterring criminal activity can

only help the rehabilitation process, as a parolee who commits

crime is not rehabilitated.

If society cannot place an effective search condition upon

probationers or parolees, then opportunities for early release

may dry up. Parolees, probationers, and society should be

allowed to continue getting the benefit of the type of bargain

found in this case. If not, then society is likely to change that

bargain to the detriment of convicted criminals.

Parole is only a conditional release from state custody. The

parolee must abide by certain rules imposed by the state or lose

his or her liberty. See Scott, 524 U. S., at 365; Young, 520

U. S., at 147. A typical condition is that the parolee not break

the law. See, e.g., Petersilia, Parole and Prisoner Reentry,

supra, at 503. In California, conviction for a crime can be

good cause for revocation of parole. See 3 B. Witkin &

N. Epstein, California Criminal Law § 644, p. 846 (3d ed.

2000). A suspicionless search condition will make it easier to

determine whether parolees are obeying the law. Given the

12

considerable risk of reoffending posed by parolees and proba-

tioners there is a special need to monitor probationers and

parolees. The only question is the extent of this need.

C. Public Safety as a Special Need.

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

Court recognized that the threat of recidivism posed by

probationers helped support a warrantless search of the proba-

tioner’s house based upon reasonable suspicion. See id., at

120-121. It noted the high rate of recidivism among probation-

ers, and their extra incentives to conceal evidence of criminal

behavior. See id., at 120. The legality of suspicionless

searches was not decided in Knights. See id., at 120, n. 6. The

public safety interests recognized in Knights and other cases

also support a special need for the type of suspicionless

searches of parolees found in California.

While allowing suspicionless searches of parolees promotes

public safety, see part I B, supra, the question remains as to

whether this interest qualifies as a special need under the

Fourth Amendment. The special needs that allow law enforce-

ment to dispense with the warrant and lower the necessary

suspicion must go beyond society’s general interest in law

enforcement. See, e.g., Skinner v. Railway Labor Executives’

Assn., 489 U.S. 602, 619 (1989). Society’s interest in protect-

ing itself from the substantial dangers posed by parolees like

the defendant satisfies this standard.

The legitimacy of this interest is found in Griffin itself. The

Griffin Court noted that probation was like incarceration, a

form of punishment for convicted criminals. See 483 U. S.., at

874. Therefore probationers, like prisoners, “do not enjoy “the

absolute liberty to which every citizen is entitled, but only. . .

conditional liberty properly dependent on observance of special

[probation] restrictions.’ /bid. (quoting Morrissey v. Brewer,

408 U. S. 471, 480 (1972)). The special needs in Griffin were

the reasons for the limits on the probationer’s liberty, making

sure that “probation serves as a period of genuine rehabilitation

13

and that the community is not harmed by the probationer’s

being at large.” J/d., at 875.

Public safety can qualify as a special need without being

attached to rehabilitating parolees. In other contexts, a suffi-

cient threat to public safety supports special needs searches.

Thus, drug testing of railway employees involved in certain

train accidents was reasonable.

“The Government’s interest in regulating the conduct of

railroad employees to ensure safety, like its supervision of

probationers or regulated industries, or its operation of a

government office, school, or prison, ‘likewise presents

“special needs” beyond normal law enforcement that may

justify departures from the usual warrant and probable-

cause requirements:’ ” Skinner, 489 U. S., at 620 (quoting

Griffin, 483 U. S., at 873-874).

Since the employees covered by the relevant regulations were

“engaged in safety-sensitive tasks,” Skinner, 489 U. S., at 620,

the threat to public safety of drug or alcohol-impaired railroad

employees created a special need for the drug testing require-

ment.

“This governmental interest in ensuring the safety of the

traveling public and of the employees themselves plainly

justifies prohibiting covered employees from using alcohol

or drugs on duty, or while subject to being called for duty.

This interest also ‘require[s] and justif[ies] the exercise of

supervision to assure that the restrictions are in fact ob-

served.’” Skinner, 489 U. S., at 621 (quoting Griffin, 483

U. S., at 875).

The public safety interest in Skinner was relatively removed

from law enforcement interests. Train accidents are not

necessarily criminal acts, even if intoyication is involved, and

this Court left undecided whether the routine use of the tests

results in criminal cases would unconstitutionally subvert “the

administrative nature of the FRA’s program.” 489 U. S., at

621, n. 5. But Skinner does not set the boundary of the public

14

safety interest. Special public safety concerns that are much

_. more congruent with law enforcement needs still qualify as

special needs.

Griffin is one example. The proceeds of a search substan-

tially justified by public safety were used in a criminal prosecu-

tion against the subject of the special needs search. See Griffin,

483 U. S., at 870. Indeed, the search condition was justified in

part by the fact that sudden searches would deter probationers

from committing crimes. See id., at 876. Similarly, drunk

driving roadblocks were upheld by this Court even though

those who failed the sobriety tests would be arrested. See

Michigan Dept. of State Police v. Sitz, 496 U. S. 444, 447

(1990). |

Although the Sitz opinion did not clearly classify itself as

a special needs case, subsequent analysis shows that its public

safety rationale is closely allied to law enforcement interests.

“This checkpoint program [in Sitz] was clearly aimed at

reducing the immediate hazard posed by the presence of

drunk drivers on the highways, and there was an obvious

connection between the imperative of highway safety and

the law enforcement practice at issue. The gravity of the

drunk driving problem and the magnitude of the State’s

interest in getting drunk drivers off the road weighed

heavily in our determination that the program was constitu-

tional.” City of Indianapolis v. Edmond, 531 U. S. 32, 39

(2000).

The roadblock in Edmond was struck down because its

purpose, narcotics interdiction, was just part of a general

interest in crime control. See id., at 42. While narcotics are

undoubtedly dangerous, it is a generalized danger with no

particular ties to automobiles. “Only with respect to a smaller

class of offenses, however, is society confronted with the type

of immediate, vehicle-bound threat to life and limb that the

sobriety checkpoint in Sitz was designed to eliminate.” /d., at

43 (emphasis added).

15

Edmond must not be read too broadly. The more general

language in that opinion must be read “as referring in context

to circumstances similar to the circumstances then before the

Court and not referring to circumstances that the Court was not

then considering.” Jllinois v. Lidster, 540 U. S. 419, 424

(2004). Edmond’s “general interest in crime control” is not

synonymous with “every ‘law enforcement’ objective.” Jbid.

Although it is a public safety interest, protecting the public

from parolees is far from Edmond’s general law enforcement

interest.

The present case is more closely analogous to Sitz than

Edmond. The search condition is limited to parolees, a group

which presents a significant, special threat to public safety. See

Part I-A, supra. There was no logical limit to the roadblock in

Edmond. {If it was upheld, “the Fourth Amendment would do

little to prevent such intrusions from becoming a routine part

of American life.” 531 U. S., at 42. The logic of parole

searches is much more limited, extending no further than

parolees. Also, California law places some limits on the

authority to search under the parole condition. Oppressive or

arbitrary searches are not allowed under the search condition.

People v. Reyes, 19 Cal. 4th 743, 753-754, 968 P. 2d 445, 451

(1998). The limited, special need in this case is not diminished

by Edmond.

An interest is not disqualified from being special if it is

related to crime prevention. If there is something about a

particular situation or relationship that makes it unusually

dangerous to public safety, then a special needs search may be

justified. “[W]here the risk to public safety is substantial and

real, blanket suspicionless searches calibrated to the risk may

rank as ‘reasonable’—for example, searches now routine at

airports and at entrances to courts and other official buildings.”

Chandler v. Miller, 520 U.S. 305, 323 (1997).

This is illustrated by the purest public safety special needs

searches, airport and courthouse checkpoints. Millions of

innocent individuals are subjected to electronic intrusions upon

16.

“their persons . . . and effects,” cf. U. S. Const., Amdt. 4,

simply because the threat to public safety from terrorism in

airplanes made any other response unreasonable.

“ “When the risk is the jeopardy to hundreds of human lives

and millions of dollars of property inherent in the pirating

or blowing up of a large airplane, the danger alone meets

the test of reasonableness, so long as the search is con-

ducted in good faith for the purpose of preventing hijacking

or like damage and with reasonable scope and the passen-

ger has been given advance notice of his liability to such a

search so that he can avoid it by choosing not to travel by

air.’ ” United States v. Edwards, 498 F.2d 496, 500 (CA2

1974) (emphasis added by Edwards Court) (quoting United

States v. Bell, 464 F.2d 667, 675 (CA2 1972) (Friendly, J.,

concurring)), quoted with approval in 7reasury Employees,

Inc. v. Von Raab, 489 U. S. 656, 675, n. 3 (1989).

Courtroom searches provide an even better example of how

the need for suspicion can give way to security needs. People

entering courts are often subject to suspicionless searches like

the airport checkpoints. See 5 W. LaFave, Search and Seizure

§ 10.7(a), pp. 313-314 (2004). These searches can be even

more intrusive than their airport counterparts. While people

freely subject themselves to the airport searches in order to

travel by air, witnesses and jurors are compelled by law to enter

courthouses and subject themselves to the search. In spite of

this, courts routinely uphold these searches. See id., at 314-

316. Parolees pose a much greater threat to safety than the

average airline passenger or courthouse denizen, which justifies

greater level of intrusion than found in those searches.

Parole presents an unusual danger to public safety, releasing

into society an individual who “is more likely than the ordinary

citizen to violate the law.” Griffin, 483 U. S., at 880; see also

United States v. Knights, 534 U. S. 112, 120 (2001). It is a

danger that is all too real. See Part I-A, supra. It is “a concrete

danger demanding departure from the Fourth Amendment’s

main rule.” Cf. Chandler, 520 U. S., at 319. Given the high

17

likelihood of reoffense, there is a special need to closely

monitor parolees. In essence, parolees are inherently suspi-

cious. “They are proven guilty, not presumed innocent. They

pose a far greater risk to public safety, and consequently must

be monitored much more closely than the presumptively

innocent person.

Il. The search condition did not violate any reasonable

expectation of privacy of the defendant.

Following general Fourth Amendment practice, in special -

needs cases this Court has “not hesitated to balance the

governmental and privacy interests to assess the practicality of

the warrant and probable-cause requirements in the particular

context.” Skinner v. Railway Labor Executives’ Assn., 489

U. S. 602, 619 (1989). In addition to Fourth Amendment

reasonableness analysis, this Court will also uphold warrantless

or suspicionless searches that are justified by special needs.

See, e.g., Griffin v. Wisconsin, 483 U. S. 868, 875 (1987). In

Griffin, this involved justifying a regulatory system that applied

a search condition to every grant of probation. See id., at 870-

871. That inquiry took place in the context of the probationer’s

very limited privacy interests. See id., at 874. This Court then

concluded that both the warrant and probable cause require-

ments would needlessly interfere with the special needs of the

probation system. See id., at 877-878. Even without special

needs, departures from the warrant and probable cause require-

ments can be justified under the general balancing of interests

that is the foundation of Fourth Amendment analysis. See

United States v. Knights, 534 U. S. 112, 117-118 (2001).

One difference between the two cases is that Samson had

notice that consent to suspicionless searches was a condition of

his parole, see Cal. Penal Code § 3067(a), while the search

condition was imposed retroactively on Griffin. See Griffin,

483 U. S., at 870-871, and n. | (crime in 1980, regulation

promulgated in 1981). This substantially reduces defendant’s

18 -

expectation of privacy, placing his search on an even more

solid constitutional footing than the one ratified in Griffin.

This does not mean that the search condition was consen-

sual in the same sense as a contract between equal parties or

even the consent to probation raised by the government in

Knights. See 534 U. S., at 118. Unlike probation, which can

be refused, in California the prisoner must accept parole. See

People v. Reyes, 19 Cal. 4th 743, 749, 968 P. 2d 445, 448

(1998). Although there is no consent in the traditional sense,

Samson is still serving a conditional release from prison. Cf.

Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S.

357, 365 (1998) (parole as conditional release). He must abide

by his conditions of parole, or risk losing his conditional

freedom for the much greater invasion of privacy found in

prison. Unlike Griffin, the search condition was in the law

before he started his parole. The condition was part of Sam-

son’s sentence. While more invasive than the conditions

upheld in Knights and Griffin, California’s search condition

serves the vital interests of protecting public safety and helping

to determine whether Samson is following his parole condi-

tions.

The parole search condition in this case is part of the

defendant’s sentence, as it is now for every person convicted of

a parole-eligible crime in California. See Cal. Penal Code

§ 3067. When Samson committed the crime for which he was

eventually paroled, the search condition was part of the

punishment that he had notice was a consequence of convic-

tion. While the defendant may not have genuinely consented

to his search condition, see Reyes, 19 Cal. 4th, at 749, 968

P. 2d, at 448, the fact that this is part of the statutory definition

of parole reduces his reasonable expectation of privacy.

A felony conviction entitles the state to make substantial

inroads upon the prisoner’s privacy. A state does not have to

offer parole instead of prison. It is an “act of grace” from the

state to the parolee. See Escoe v. Zerbst, 295 U.S. 490, 492

(1935) (probation); People v. Rodriguez, 51 Cal. 3d 427, 445,

19

795 P. 2d 783, 788 (1990). While this does not deprive the

parolee of other rights such as due process, see Gagnon v.

Scarpelli, 411 U. S. 778, 782, n. 4 (1973) (distinguishing

Escoe), parole’s status as a privilege is relevant to the Fourth

Amendment analysis.

The state can deprive a convicted criminal of all of his or

her Fourth Amendment rights.

“Notwithstanding our caution in approaching claims that

the Fourth Amendment is inapplicable in a given context,

we hold that society is not prepared to recognize as legiti-

mate any subjective expectation of privacy that a prisoner

might have in his prison cell and that, accordingly, the

Fourth Amendment proscription against unreasonable

searches does not apply within the confines of the prison

_ cell.” Hudson v. Palmer, 468 U. S. 517, 525-526 (1984)

(emphasis added). |

If this complete deprivation of Fourth Amendment rights is

constitutional, then it is reasonable for a state to subject a grant

of parole to a lesser, albeit broad, deprivation such as the

search condition in the present case.

Prison inmates lose their expectation of privacy in prison

for several reasons. The loss of privacy in one’s cell is broadly

supported by “the concept of incarceration and the needs and

objectives of penal institutions.” /d., at 526. Institutional

security was a significant concern, see id., at 526-527, along

with similar concerns like controlling the flow of contraband

and maintaining sanitation. See id., at 527. Parole raises

similar concerns. Parolees and probationers pose a signifi-

cantly greater risk to public safety than the average person. See

Part I, supra. Discouraging the parolee from obtaining drugs

or firearms is consistent with the rehabilitative and public

safety goals of parole. See Part I-B, supra. These create a

special need for a substantially reduced expectation of privacy

for parolees. See Part I-C, supra.

20

Sentences are not just about security and rehabilitation. In

addition to incapacitating criminals and giving them opportuni-

ties to rehabilitate, sentences also punish. If prison, or sen-

tences short of prison, are to succeed, they must first punish the

criminal. The quality of punishment gives the criminal law its

deterrent, and the punitive quality of sentencing also serves the

wortiwhile goal of retribution. See Gregg v. Georgia, 428

U. S. 153, 183-186 (1976) (lead opinion). If the consequence

of a criminal conviction does not punish, then it is not a

sentence.

This need to punish is another justification for depriving

convicted criminals of their privacy. Prison, or any alternative,

should induce some burden on the person being punished.

Typically this involves some “ ‘affirmative disability or

restraint.’ ” Smith v. Doe, 538 U. S. 84, 99 (2003) (quoting

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963)). A

lack of privacy, in addition to serving the security interests

noted in Hudson, also helps to punish convicted criminals.

While parole is a lesser punishment than prison, it is still a

punishment. The search condition advances the interests of

keeping Californians safe, fostering rehabilitation, and making

sure that the sentence continues to punish the lawfully con-

victed criminal.

The criminal conviction substantially diminishes the

parolee’s reasonable expectation of privacy. A person commit-

ting a crime in California is responsible to know that he or she

can be subject to the near complete deprivation of privacy

inherent in a prison sentence, or the lesser deprivation of the

parole search condition. While the state’s authority to punish

is limited by the Eighth Amendment, given the considerable

deference given to noncapital sentences under the Eighth

Amendment, see Ewing v. California, 538 U.S. 11, 25 (2003)

(plurality), there is no credible Eighth Amendment claim

against the California search condition.

While it requires careful application in constitutional law,

“the proposition that greater powers include lesser ones” is still

21

valid as a matter of logic. See 44 Liguormart, Inc. v. Rhode

Island, 517 U. S. 484, 511 (1996) (plurality opinion). The

problems with its application to constitutional law have come

from improper use in First Amendment cases. See Scheideg-

ger, Habeas Corpus, Relitigation and the Legislative Power, 98

Colum. L. Rev. 888, 953-954 (1998). In Posadas de Puerto

Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328

(1986), this Court held that the power to ban gambling neces-

sarily included the lesser power to prohibit the advertising of

gambling. See id., at 345-346. The subsequent disapproval of

Posadas correctly notes that regulating speech is not a lesser

included power of regulating conduct. “The text of the First

Amendment makes clear that the Constitution presumes that

attempts to regulate speech are more dangerous than attempts

to regulate conduct.” 44 Liguormart, supra, at 512.

That has not happened in this Fourth Amendment case.

Parole is not qualitatively different from incarceration in the

way that speech is qualitatively different from conduct.

“Probation is simply one point (or, more accurately, one set of

points) on a continuum of possible punishments ranging from

solitary confinement in a maximum-security facility to a few

hours of mandatory community service,” Griffin, 483 U. S., at

875, and parole is simply another point on that continuum.

What happened to Samson was less intrusive to his privacy

interests than what the state could have done had it chosen to

withdraw parole as an alternative to prison. This lesser

deprivation must also be deemed reasonable in light of what

Samson could have faced in prison.

Defendant was a convicted criminal who was serving part

of his sentence in the community. In order to protect the

community, Samson was subject to warrantless, suspicionless

searches by any law enforcement officer as a condition of being

given the relative freedom of parole. This case is about giving

the state and criminal defendants the freedom to craft alterna-

tive punishments to imprisonment. A state should be given the

22

freedom to craft alternatives to prison that still punish while

maintaining public safety.

The balance of society’s interests and the defendant’s

privacy expectations favors the search. The threat to public

safety posed by parolees creates a special interest in deterring

probationer’s criminal tendencies through the prospect of

warrantless searches by police officers without regard to the

searching officer’s motive. See Part I, supra. As demonstrated

above, defendant’s expectation of privacy “that society recog-

nizes as ‘legitimate,’ ” Vernonia School Dist. 47J v. Acton, 515

U. S. 646, 654 (1995), is small. A search subject to the parole

search condition as interpreted by the California courts is

reasonable.

Upholding this search would encourage creative alterna-

tives to prison. Both society and those parolees who genu.nely

wish to reform would benefit by upholding the search of

Samson. A judicial rejection of this condition of Samson’s

conditional release will lead to more crime and further pres-

sures to limit parole.

CONCLUSION

The decision of the California Court of Appeal should be

affirmed.

January, 2006

Respectfully submitted,

CHARLES L. HOBSON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation