Amicus Curiae Brief — Samson v. California

IN THE

Supreme Court of the United States

DONALD CURTIS SAMSON,

Petitioner

Vv.

STATE OF CALIFORNIA,

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE CALIFORNIA

COURT OF APPEAL, FIRST APPELLATE DISTRICT

BRIEF OF THE STATES OF PENNSYLVANIA,

ARKANSAS, COLORADO, HAWAII, IDAHO, ILLINOIS,

KENTUCKY, MARYLAND, MICHIGAN, MISSISSIPPI,

MISSOURI, NEVADA, NORTH DAKOTA, OREGON,

SOUTH DAKOTA, TENNESSEE, TEXAS, UTAH,

WASHINGTON, WEST VIRGINIA, AND WYOMING AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

THOMAS W. CORBETT, JR.

Attorney General

Commonwealth. of Pennsylvania

HOWARD G. HOPKIRK

Senior Deputy Attorney General

Counsel of Record

Office of Attorney General JOHN G. KNORR, III

Appellate Litigation Section Chief Deputy Attorney General

15th Fl., Strawberry Sq.

Harrisburg, PA 17120 [Additional counsel on inside

(717) 783-1478 cover]

re ence eae

MIKE BEEBE

Attorney General of

Arkansas

323 Center Street

Little Rock, AR 72201

(501) 682-2007

JOHN W. SUTHERS

Attorney General of

Colorado

1525 Sherman Street

5 Floor

Denver, CO 80203

(303) 866-5691

MARK J. BENNETT

Attorney General of Hawaii

425 Queen St.

Honolulu, HI 96813

(808) 586-1500

LAWRENCE G. WASDEN

Attorney General of Idaho

P.O. Box 83720

Boise, ID 83720

(208) 334-2400

LISA MADIGAN

Attorney General of Illinois

James R. Thompson Ctr.

100 West Randolph St.

Chicago, IL 60601

(312) 814-3000

GREGORY D. STUMBO

Attorney General of

Kentucky

700 Capitol Avenue

Capitol Bidg., Suite 118

Frankfort, KY 40601

(502) 696-5300

J. JOSEPH CURRAN, JR.

_ Attorney General of

Maryland

200 S. Paul Place

Baltimore, MD 21202

(410) 576-6300

MICHAEL A. Cox

Attorney General of

Michigan 3

P.O. Box 30212

525 W. Ottawa Street

Lansing, MI 48909

(517) 373-1124

Jim Hoop

Attorney General of

Mississippi

- P.O. Box 220

Jackson, MS 39205

(601) 359-3820

JEREMIAH W. (JAY) NIXON

Attorney General of

Mi

Supreme Court Building

207 West High Street

Jefferson City, MO 65101

(573) 751-3321 —

GEORGE J. CHANOS

Attorney General of Nevada

Nevada Department of

Justice

100 North Carson Street

Carson City, NV 89701

(77S) 684-1112

*

WAYNE STENEHJEM

Attorney General of

North Dakota

600 E. Boulevard Avenue

Bismarck, MD 58505

(701) 328-2210

HARDY MYERS

Attorney General of Oregon

1162 Court St. , N.E.

Salem, OR 97301

(S03) 378-4732

Lt YRENCE E. LONG

Attorney General of

South Dakota

1302 E. Highway 14,

Suite 1

Pierre, SD 57501

(605) 773-3215

PAUL G. SUMMERS

Attorney General of

Tennessee

P.O. Box 20207

Nashville, TN 37202

(615) 741-5860

GREG ABBOTT

Attorney General of Texas

P.O. Box 12548

Austin, TX 78711

(512) 463-2100

MARK L. SHURTLEFF

Attorney General of Utah

Utah State Capitol

Complex

East Office Bldg.,

Suite 320

Salt Lake City, UT 84114

(801) 538-9600

ROB MCKENNA

Attorney General of

Washington

1125 Washington Street

P.O. Box 40100

Olympia, WA 98504

(360) 753-6200

DARRELL V. MCGRAW, JR.

Attorney General of West

Virginia

Building 1, Room E-26

State Capitol Complex

1900 Kanawha Bivd., East

Charleston, WV 25305

(304) 558-2021

PATRICK J. CRANK

Attorney General of

Wyoming

123 State Capitol

Cheyenne, WY 82002

(307) 777-7841

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ..........c.ccccssesessessssceeeeeseeeees i

INTEREST OF THE AMICI ........c.cccescscesesecseseeeeseseaes 1

SUMMARY OF ARGUMENT ..........cccccccccsseesesseseeseees 4

Eon ae ae 6

ABSENT EVIDENCE THAT THE SEARCH OF

SAMSON WAS FOR AN ILLEGITIMATE

PURPOSE, THE SEARCH WAS REASONABLE

SINCE. IT WAS PERFORMED AS A CONDITION

GEeF GUREP IED endennceaccssvseisnecccovarssssopeeninuscseones

A. Suspicionless Searches Are Permissible

Under the Fourth Amendment Where the

Government Has Special Needs Beyond the

Normal Requirements of Law Enforcement....

B. The States Have a Substantial Need to

Conduct Searches of Parolees Absent Any

Reasonable Suspicion of Wrongdoing As a

Condition of Their Parole.....................0.s0+0+

IEE cccccccscocccvecsscccenenscessosooscoonoescssooosonsnes

TABLE OF AUTHORITIES

Cases Page

Chandler v.: Miller,

BD TG. GED GIG vececcccrevvessessovescovscvessssonsoveset 8

Colonnade Catering Corp. v. United States,

A Bf), re G

Donovan v. Dewey,

GEE UG. GG CIDE cccceccnccccccscccsccsescessstesssnccsansat 9

Elkins v. United States,

BOS UBB. BED CAGED cocccccvcccccsceccssescccesesscasoesccscens 6

Griffin v. Wisconsin,

GED UB. GED CIGD ce ccccscvscccccscsseseeeel 9, 10, 14, 17

Hudson v. Palmer,

GBB UB. GUT (BGR occccccsvcccscescecsvesscccessssecvssssnses i)

Michigan Dept. of State Police v. Sitz,

QBS UD. 444 (IDBD) ...crcccccercccescresecsssvcnscoessocssoses 8

Morrissey v. Brewer,

GOB U.B. 471 (1DTD) .nccccccccccscccsccccsceseses 10, 11, 14

National Treasury Employees Union v. Von Raab,

SBD UG. GEG LEGGED ncccccccccccsscccosecccssscsccsstcesess 8,9

New Jersey v. T.L.O.,

QED UB. FEO CRGED ccccccccncccccosccccnccesocesinseseuscsbans 9

New York v. Burger,

GED UD. GEE CIGD cvcccvccsccccscsscnassassesises 8, 15, 16

O’Connor v. Ortega,

GBD UB. TOD CED CD ccccccccesccccccscscoscnsssccesscncnstoses 8

TABLE OF AUTHORITIES - CONT’D.

Cases: Page:

People v. Reyes,

eee 7

Skinner v. Railway Labor Executives Association,

ee Sls GD GEE coceccccccccnescccecessushescsnee 8, 9, 16

United States v. Biswell,

EY CTE cncadl cenpapsnsnpsennutasnenssetocens 9, 16

United States v. Knights, |

Ee 6, 9, 14:

United States v. Martinez-Fuerte,

CR CE 9

Veronia School District v. Acton,

eee 8, 16

Wyoming v. Houghton,

Sn TI TITII ocrrinscenpenepapienidenenspesnnepeoenenenns 6

Constitutional Provisions:

I IIE, (IT a nc cienenennatngennasannendneteneecnsnsntns 6

Other Authorities:

Criminal Justice Statistics (2003), U.S. Dep't |

of Justice, Bureau of Justice Statistics........... 1,12

Probation and Parole in the United States, 2004

U.S. Dep't of Justice, Bureau of Justice

EERE PUREE FERS ee 11

TABLE OF AUTHORITIES - CONT'D.

Other Authorities: Page

2003 State Expenditure Report, National

Association of State Budget Officers ................... 12

Does Parole Work, Urban Institute (March 2005)... 13

J. Gobert & N. Cohen, The Law of Probation and

TE sinioricrciietsetpinnestciiihataniaiinpiabiltaniniipatianaindiibiaitaiainaiaily 15

IV

The States, along with the Federal government,

share the important responsibility of administering the

nation’s criminal justice system. Although the

prevention, detection, investigation and prosecution of

crime are a critical part of that system, society’s ability

to reduce and eliminate crime is ultimately dependent

on the effectiveness of its efforts to punish and

rehabilitate those who have already been convicted in

the nation’s courts.

There are almost 7 million people who are in prison

or under some other type of correctional supervision in

the United States.'! Of these, approximately 96 percent

are in the custody or under the supervision of state

authorities.2 While the threat of incarceration is the

most important deterrent to crime, 71 percent of those

under the correctional supervision of the states (over

4.5 million people) are not in prison, but are on

probation or parole. Furthermore, of those who are in

prison, a vast majority will not complete their sentence

in prison, but will be placed under some type of

supervised release as the last step in_ their

rehabilitation. Although the administration of such

programs typically receive less attention in terms of

both resources and public scrutiny than the operation

of our nation’s prisons, they are no less important in

furthering the goals of rehabilitation and the deterrence

of crime.

' Sourcebook of Criminal Justice Statistics (2003), U.S.

Dep't of Justice, Bureau of Justice Statistics, at p. 479.

2 id.

3 ia.

The supervision of former prisoners while on parole

is a vital and necessary step in the rehabilitation

process. It is completely unrealistic to believe that most

prisoners can successfully transition themselves back

into society without the assistance and support which

parole offers. No matter what rehabilitative services the

states can provide prisoners while in prison, it remains

a highly controlled environment with little or no

personal freedom. Prisoners are simply ill-equipped to

handle the responsibilities which accompany the liberty

offered to them upon their release on their own. Parole

offers individuals not only support in terms of such

things as counseling, job placement, and housing, but

also provides supervision aimed at preventing

recidivism and insuring public safety.

The amici States, like respondent California, will be

unduly hampered in their ability to enforce the

conditions of parole and insure that parolees obey the

law if the same or similar standards apply to parole

searches as apply to searches of members of the

general population. If parole officers or the police must

have probable cause or reasonable suspicion before

they may conduct a search, such conditions become

ineffective and largely meaningless. The deterrent effect

is increased where parolees know that they can be

searched at any time in accordance with the conditions

of their parole. Conversely, where the States are

required to provide an independent justification for a

search beyond the fact that an individual is on parole,

the average parolee is more inclined to believe that he

or she can disregard the terms of his parole or engage

in criminal activity without being caught and returned

to prison. Parolees are more likely to comply with the

conditions of their parole when they believe that there

is a significant likelihood that they wil) in fact be

searched as opposed to merely a theoretical possibility.

If the States are unable to conduct searches until

there are already outward signs that the conditions of

2

parole have been broken, it is extremely difficult to

intervene and take corrective measures short of

rescinding parole or prosecuting the parolee for new

criminal offenses. Ideally, searches of parolees should

be viewed not as an attempt by the government tc

“catch” parolees engaged in criminai activity but

instead as part of the process of rehabilitation. A

system predicated on such searches is not arbitrary or

capricious, but is grounded on sound penological

principles. It allows parole officers to stop undesirable

behavior before it is too late and while remedial

measures short of returning parolees to prison can still

be effective. While parole searches undoubtedly benefit

society as a whole by preventing crime and increasing

public safety, they directly benefit parolees by providing

them with a true incentive to comply with the

conditions of their parole. This is particularly

important considering that most parolees lack the

necessary skills and intrinsic motivation to comply with

the conditions of parole on their own.

SUMMARY OF ARGUMENT

The supervision of parolees by parole authorities

; falls into that small class of cases, recognized by the

Court, in which searches without any individualized

suspicion of wrongdoing are nevertheless “reasonable”

within the meaning of the Fourth Amendment. The

Court has upheld such searches - of closely regulated

businesses, for example - where a _ diminished

expectation of privacy, plus an important governmental

need met by the search, combine to justify them.

Certainly, parolees have a diminished expectation of

privacy. The government routinely subjects convicted

criminals, conditionally re‘eased on parole, to a variety

of restrictions, some of which would not be

constitutional if applied to the general public, and

violation of which is grounds for immediate

recommitment. Parolees may, for example, be

forbidden to change their residence without permission,

to consume alcoholic beverages or illegal drugs, to

possess weapons, or to commit further crimes; they

may be required to undergo treatment for drug or

alcohol dependence, or to avoid certain persons or

locations. Parolees are thus, like probationers, in a

supervisory relationship with the government quite

unlike that of free citizens.

Nor can the importance of the governmental interest

be overstated. As the Court has recognized, such

restrictions on parolees serve the dual purpose -of

protecting the public from further harmful behavior,

and of furthering the rehabilitation and reintegration of

the offender into society. The Court has likewise

recognized the overwhelming interest of the government

in promptly recommitting parolees who do not comply

with the conditions of their parole.

4

To ensure compliance with these restrictions,

government requires broad discretion to define the

conditions under which the persons and property of

parolees may be searched. The government may

therefore require that convicted criminals, as a

condition of parole, submit to searches without any

need for an individualized suspicion of wrongdoing, as

long as those searches are related to some legitimate

penological objective such as ensuring that parolees are

complying with the conditions of their release.

ARGUMENT

ABSENT EVIDENCE THAT THE SEARCH OF

SAMSON WAS FOR AN ILLEGITIMATE PURPOSE,

THE SEARCH WAS REASONABLE SINCE IT WAS

PERFORMED AS A CONDITION OF HIS PAROLE.

The Fourth Amendment to the Constitution provides

that the “right of the people to be secure in their

persons, houses, papers, and effects, against

- umreasonable searches and seizures, shall not be

violated....”. U.S. Const. Amend. IV. The prohibition

against unreasonable searches and _ seizures is

applicable to state officers. Elkins v. United States, 364

U.S. 206, 213 (1960). The “touchstone” of the Fourth

Amendment is reasonableness, and reasonableness in

turn is “determined ‘by assessing, on the one hand, the

degree to which it intrudes upon an individual’s privacy

and, on the other, the degree to which it is needed for

the promotion of legitimate governmental interests.”

United States v. Knights, 534 U.S. 112, 118-19 (2001)

(quoting Wyoming v. Houghton, 526 U.S. 295, 300

(1999)).

In United States v. Knights, 534 U.S. 112, 120-21:

(2001), the Court recognized that there are special

circumstances associated with probation which give the

government a heightened interest in conducting

searches while at the same time diminishing an

individual’s expectation of privacy. Although the Court

in Knights did not need to reach the question of

whether suspicionless searches of probationers was

permitted under the Fourth Amendment, see id. at 120

n.6., the Court’s analysis in that case supports such 4

conclusion. Furthermore, the States’ interest in

conducting suspicionless searches of parolees is no less

substantial than its interest in conducting searches of

probationers. Therefore, the Court should rule that

suspicioniess searches of both parolees and

probationers are permissible under the Fourth

Amendment.

In the present case, the petitioner was searched by a

police officer pursuant to a condition of his parole. The

California Court of Appeal, following the California

Supreme Court’s decision in People v. Reyes, 19 Cal.4%

743, 752 (1998), held that a parole search does not

violate the Fourth Amendment “’so long as it is not

arbitrary, capricious or harassing,’ and does not exceed

the scope of the consent.” J.A. at 12. The California

Court of Appeal determined that a parolee who is

released pursuant to a parole condition which permits

that he be searched by law enforcement officials does

not have an expectation of privacy which is violated by

being searched unless the motivation for the search is

unrelated to any “rehabilitative, reformative or

legitimate law enforcement purposes, or when the

search is motivated by posnemee animosity toward the

parolee.” J.A. 13.

The rule established by the California Courts should

be upheld because it is supported by the plain text of

the Fourth Amendment and by prior decisions of this

Court which have held that suspicionless searches are

permissible where the government has “special needs”

which go beyond the normal needs of law enforcement.

The government has a substantial interest in being able

to conduct parole searches as part of the process of

reintegrating those convicted of crimes back into

society. Furthermore, this interest cannot be as

effectively carried out through other means. The States

need the flexibility to operate their parole systems in a

manner which will increase their ability to successfully

rehabilitate parolees, create a greater incentive for

parolees to comply with the conditions of their parole,

and better protect the public by preventing parolees

from committing new crimes while they complete the

rehabilitation process. The Court should give the

States the ability to administer parole more effectively

7

by establishing a bright line rule which permits States

to conduct suspicionless searches as a condition of

parole so long as they are done for a legitimate purpose

such as rehabilitation or law enforcement.

A. Suspicionless Searches Are Permissible

Under The Fourth Amendment Where

The Government Has Special Needs

Beyond The Normal Requirements Of

Law Enforcement.

To be reasonable under the Fourth Amendment, a

search ordinarily must be based on individualized

suspicion of wrongdoing. Chandler v. Miller, 520 U.S.

305, 313 (1997). The Court has recognized, however,

that in some cases suspicionless searches are

permissible. Id. (citing Vernonia School District v. Acton,

515 U.S. 646, 652-53 (1995) (random drug tests of

student-athletes)); Skinner v. Railway Labor Executives

Association, 489 U.S. 609, 619 (1989) (drug and alcohol

tests for railway employees involved in train accidents);

National Treasury Employees Union v. Von Raab, 489

U.S. 656, 665-66 (1989) (drug tests as condition of

promotion in Customs Service); Michigan Dept. of State

Police v. Sitz, 496 U.S. 444, 447 (1990) (sobriety

checkpoints along highways). The exceptions are based

on “special needs, beyond the normal need for law

enforcement.” Skinner, 489 U.S. at 619.

In addition, the Court has held that in certain

situations probable cause is not necessary to effect a

search. The Court has held, for example, that

government employers and supervisors may conduct

warrantless searches of employees’ desks and offices

without probable cause. O’Connor v. Ortega, 480 U.S.

709, 721-25 (1987). Similarly, the Court has held that

government investigators conducting searches of

closely-regulated businesses need not adhere to the

warrant or probable cause requirements as long as the

searches meet reasonable legislative or administrative

8

standards. New York v. Burger, 482 U.S. 691, 702

(1987) (automobile dismantling business). Accord

Donovan v. Dewey, 452 U.S. 594, 600 (1981) (coal

mining); United States v. Biswell, 406 U.S. 311, 316

(1972) (firearms sales); Colonnade Catering Corp. v.

United States, 397 U.S. 72, 77 (1970) (catering business

engaged in liquor sales). The Court also has held that

the search of a high school student’s purse by school

officials does not require a warrant or probable cause,

New Jersey v. T.L.O., 469 U.S. 325, 340-41 (1985), as

well as that, because of the extraordinary needs of

those charged with administering prisons, the Fourth

Amendment is inapplicable to the search of a prison

inmate’s cell. Hudson v. Palmer, 468 U.S. 517, 526

(1984). Likewise, the Court has held that law

enforcement officials may stop individuals for

questioning or observation at fixed border checkpoints

without a particular level of suspicion. United States v.

Martinez-Fuerte, 428 U.S. 543, 545-50 (1976). Finally,

and closely analogous to this case, the Court has held

that the search of a probationer’s home by state

probation officers, pursuant to a regulation requiring

“reasonable grounds,” does not require a warrant

supported by probable cause. Griffin v. Wisconsin, 483

U.S. 868, 876-77 (1987). See also Knights, 534 U.S. at

121 (requiring “no more than reasonable suspicion to

conduct a search of [a] probationer’s house”).

Thus, the Court clearly has recognized situations

where the usual requirements of the Fourth

Amendment simply do not apply or the particular

circumstances and needs permit “exceptions” to the

general rule. Griffin, 483 U.S. at 873; Knights. When

such special needs exist, the Court has undertaken a

“context-specific” inquiry, examining the competing

interests at stake. National Treasury Employees Union v.

Van Raab, 489 U.S. at 665-66; Skinner, 489 U.S. at

624. In the context of parole, the government has a

substantial need to conduct suspicionless searches

while at the same time the parolee has a diminished

9

expectation of privacy. See Knights, 534 U.S. at 119-

21. Under these circumstances, suspicionless searches

of parolees are reasonable and should be permitted by

the Court.

B. The States Have A Substantial Need To

Conduct Searches Of Parolees Absent

Any Reasonable Suspicion of

Wrongdoing As A Condition Of Their

Parole.

In Griffin v. Wisconsin, the court premised its

conclusion that a state’s operation of a probation

system presents special needs, justifying departures

from the usual requirements, on the fact that probation

-like incarceration- is a “form of criminal sanction

imposed by a court upon an offender after verdict,

finding, or plea of guilty;” it represents one of several

options on a “continuum of possible punishments

ranging from solitary confinement in a maximum

security facility to a dew hours of mandatory

community service.” 483 U.S. at 874 (citations

omitted).

The operation of a system of supervised release on

parole - just as a probation system - presents special

needs justifying departure from the usual Fourth

Amendment requirements. As the Court has

recognized, the “essence” of parole is release from

prison, before completion of the sentence, on the

condition that the prisoner abide by -certain rules

during the balance of he sentence. Morrissey v. Brewer,

408 U.S 471, 477 (1972). Parole has become an

“integral part” of the nation’s overall system of

managing offenders. Id. The Court has described parole

as follows:

Rather than being an ad hoc exercise of

clemency, parole is an_ established

variation on imprisonment of convicted

10

criminals. Its purpose is to help individuals

reintegrate into society as constructive

individuals as soon as they are able,

without being confined for the full term of

the sentence imposed. It also serves to

alleviate the costs to society of keeping an

individual in prison.

Id. in recognition of the conditional liberty restored to

an offender by parole, the Court has held that

revocation of parole deprives him not of an “absolute”

interest but of an interest “properly dependent on

observance of special parole restrictions,” id. at 480,

and the revocation needs to be accompanied by only

informal procedural protections. Id. at 487-88.

Furthermore, as the Court recognized in Morrissey,

to accomplish the purpose of parole, those who are

granted permission to leave prison early properly may

be subjected to very specific conditions. These

conditions “restrict their. activities substantially beyond

the ordinary restrictions imposed by law on an

individual citizen,” id. at 478, and can include such

restrictions as the need to seek permission to change

residences, a prohibition against consumption of

alcohol, and the direction to refrain from association

with certain individuals or engaging in certain

activities. Id.

The States have a significant interest in monitoring

those individuals who are on parole to insure that they

comply with the conditions of parole and do not engage

in criminal activity. Unfortunately, the rate of

recidivism among those on parole is relatively high. In

2004, only 46 percent of parolees successfully

completed their period of supervision.* This raises

4 Probation and Parole in the United States, 2004, U.S.

Dep’t of Justice, Bureau of Justice Statistics, at p. 9.

1]

concerns regarding not only the effectiveness of parole

for purposes of rehabilitation, but also the effectiveness

of parole in deterring crime and insuring public safety.

However, limiting parole and keeping people in prison

longer is not a viable solution to this problem.

The cost of building and operating prisons is already

a significant constraint on the budgets of state

governments. In 2003, the states spent $39.4 billion

for items related to corrections.5 This represents 3.5

percent of all expenditures in state budgets

nationwide. The cost to the states of corrections has

been growing by 7.1 percent per year since 1990.” The

cost of building additional prisons and paying to

operate them would place an even greater strain on

state budgets at a time when funding for other

programs is already being cut.

Housing individuals in prison is significantly more

expensive than supervising them while they live in the

community. Although less than 30 percent of those

under correctional supervision are in prison,’ 81.5

percent of all expenditures go towards prison

construction and operating costs.? In 2003, it cost the

states approximately $15,200 for each inmate kept in

prison. Conversely, the cost of keeping someone on

probation or parole was only $1,400..° Even if

eliminating or greatly reducing the use of probation and

5 2003 State Expenditure Report, National Association of

State Budget Officers, at p. 56.

© Id. at p. 4.

7 Id. at p. 56.

8 Sourcebook of Criminal Justice Statistics (2003), U.S.

Dep’t of Justice, Bureau of Justice Statistics, at p. 479.

9 Id. at p. 14.

10 Jd. at pp. 14 & 479.

12

parole would further the goals of rehabilitation, it is not

fiscally possible.

Although correctional supervision differs in

significant respects among the states, all probationers

and parolees are subject to terms and conditions which

both facilitate the rehabilitative process and help deter

the commission of mew crimes. Typically, these

conditions include the right of parole officers and other

law enforcement officials to search individuals, their

property, and their residences to determine whether

they are complying with the conditions of their release.

_ Although the scope and frequency of such searches

differ, they allow state officials to monitor the activities —

of probationers and parolees without the types of.

restrictions which apply to searches of members of the

general population.

As a matter of public policy, eliminating the

supervision of former prisoners as they adjust to life in

the community ultimately would undermine the goals of

the criminal justice system. The recidivism rate of

those on parole is highest during the time immediately

after their release from prison and the chances of

successfully meeting the conditions of parole steadily —

increase over time.'! Individuals who have been

recently released on parole are at a greater risk of

violating the conditions of their parole or committing

new crimes than any other group in the population with

the possible exception of those who are simply

unconditionally released from prison. Therefore, there

is a definite need for the states to be able to more

closely monitor the activities of those released from

prison while on parole.

'! Does Parole Work, Urban Institute (March 2005), at p.

13, Fig. 4.

13

Supervision of parolees, therefore, plainly is a

“special need” of the States “permitting a degree of

impingement upon privacy that would not be.

constitutional if applied to the public at large.” Griffin

v. Wisconsin, 483 U.S. at 875. While restrictions upon

a free citizen’s right to travel or to associate with others

of his choosing certainly could present significant

constitutional concerns, the Court has recognized that

the diminished expectation of privacy of probationers

and parolees, together with society’s need to supervise

them closely, permits these restrictions. The Court has

stated:

To a greater or lesser degree, it is always

true of probationers (as we have said it

to be true of parolees) that they do not

enjoy “the absolute liberty to which every

citizen is entitled, but only ... conditional

liberty properly dependent on observance

of special ... restrictions.”

Griffin, 483 U.S at 874 (quoting Morrissey, 408 U.S. at

480).

As such, parolees are subject to conditions

governing their activities that could not be imposed

upon the general public but which, because of the

special importance of monitoring their behavior, are

appropriate and thus constitutional. See Griffin, 483

U.S. at 874-75. See also Knights, 534 U.S. at 120-21.

Conditions which permit the government to search

parolees are no different than conditions requiring

substance abuse treatment, mental health treatment or

other rehabilitative programming, all of which

demonstrate diminished privacy expectations by a

parole over his conduct and person. Morrissey v.

Brewer, 408 U.S. at 478-79. As the Court noted in

Mormissey, “[Cljonditions serve a dual purpose; they

prohibit, either absolutely or conditionally, behavior

that is deemed dangerous to the restoration of the

14

individual into normal society. And through the

requirement of reporting to the parole officer and

seeking guidance and permission before doing many

things, the officer is provided with information about

the parolee and an opportunity to advise him.” id. at

478. As further explained by a leading commentator:

The probation or parole officer has the

primary responsibility for supervision of a

parolee’s or probationer’s rehabilitative

process. This caseworker, charged with

monitoring the offender’s performance,

owes a responsibility to the public to.

ensure that probationers and parolees who

pose a threat to public safety are not

permitted to remain free absent

compliance with conditions which obviate

possible danger.

J. Gobert & N. Cohen, The Law of Probation and Parole,

§8.02 (1983) (footnotes omitted).

It is thus apparent that parole plays an extremely

important function in a State’s overall penological

system. The government not only must monitor the

parolee’s activities so as to assist the parolee’s

reintegration into society, but also must protect the

public by taking action, where appropriate, to remove

the parolee from society if the parole conditions are not

met. There can be little doubt that, just like conditions

requiring treatment or restricting his association with

other offenders, a parole condition which permits

searches by parole agents or by law enforcement

officials is a significant tool in the rehabilitative process

and in protecting society.

The Court’s decisions addressing suspicionless

searches in the drug-testing area and in closely-

regulated businesses provide an apt analogy to the

parole situation. In New York v. Burger, 482 U.S. 691

1S

(1987), for example, the Court recognized that, as in

other situations of special need, where the individual’s

privacy interest is weakened and the government's

interest in regulation of behavior is heightened, a

warrantless surprise inspection is reasonable if it meets

certain criteria: a substantial governmental interest; a

need for warrantless inspections to further the

regulatory purpose; and the absence of unlimited

discretion on the part of the inspection officers. 482

U.S. at 702-03. Accord Vernonia School District v.

Acton, 515 U.S. at 661; Skinner, 489 U.S. at 627. The

Court thus has recognized the value of unannounced

suspicionless searches in the context of State

regulation of commercial enterprises and other related

situations where “an important governmental interest

furthered by the intrusion would be placed in jeopardy

by a requireme.tt of individualized suspicion...

Skinner, 489 U.S. at 624. In holding that warrantless

inspections of junkyards by police officers did not

violate the Fourth Amendment, the Court in Burger

noted, “if inspection is to be effective and serve as a

credible deterrent, unannounced, even frequent,

inspections are essential.” Id. (quoting United States v.

Biswell, 406 U.S. at 316). Indeed, as the Court stated

in Burger, surprise is “crucial” if the government

regulatory scheme is to function. Burger, 482 U.S. at

710.

If wumannounced suspicionless searches are

essential” and “crucial” in the context of commercial

regulation, they surely aré equally as important -if not

more so — in the context of managing a State parole

system charged with protecting the public. The value of

the search depends upon the parole agent or police

officer’s ability to locate any contraband before the

parolee has an opportunity to remove it or dispose of it.

A parole search provision - like the unannounced

inspection in the commercial regulatory situation and

suspicionless drug testing in the railway transportation

situation - thus enables the government to conduct a

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search that serves as a “credible deterrent.” Id.; accord

Skinner, 489 U.S. at 628.

This is not to suggest, however, that such a consent

provision should authorize all searches no matter when

or how conducted. Just as prison inmates should be

governed by policies and rules that are “reasonably

related to legitimate penological objectivities,” so too

should parolees be entitied to expect that searches of

their residence and person are reasonably related to the

legitimate penological objectives of parole supervision.

Accord Griffin v. Wisconsin, 483 U.S. at 876-77

(reasonable state regulation governing searches of

probationers’ homes satisfies Fourth Amendment).

The value of a parole search is eliminated if a

parolee knows that the government must have a

particular suspicion of a violation or must obtain a

warrant before conducting a search. The Court in

Griffin acknowledged the value of such a search, even

on the basis of an “unauthenticated tip,” 483 U.S. at

878, and held that the search of a probationer’s

residence based on such a tip was reasonable. /d. at

879.

In such circumstances it is both

unrealistic and destructive of the whole

object of the continuing probation

relationship to insist upon the same degree

of demonstrable reliability of particular

items of supporting data, and upon the

same degree if certainty of violation, as is

required in other contexts. In some cases -

especially those involving drugs or illegal

weapons — the probation agency must be

able to act based upon a lesser degree of

certainty than the Fourth Amendment

would otherwise require in order to

intervene before a probationer does

damage to himself or society. The agency,

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moreover, must be able to proceed on the

basis of its entire experience with the

probationer, and to assess probabilities in

the light of its knowledge of his life,

character, and circumstances. ree

Id. at 879 (emphasis added).

Although the present case involves a search of a

parolee, and not a probationer; and the search was

conducted by a police officer, and not a parole agent,

the same principles should apply. Absent evidence that

the search of Samson was for a purpose unrelated to a

legitimate government interest such as rehabilitation or

law enforcement, the search was reasonable since it

was a valid condition of his parole. The Court should

affirm the decision of the California Court of Appeal and

establish a bright line rule allowing the States to

conduct suspicionless searches of parolees as a

condition of their release so long as it is not done for an

illegitimate purpose or out of personal animosity

directed towards the parolee.

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CONCLUSION

The Court should affirm the judgment of the Court

of Appeal of the State of California, First Appellate

District, Division One.

Respectfully submitted, |

THOMAS W. CORBETT, JR.

Attorney General

Commonwealth of Pennsylvania

HOWARD G. HOPKIRK

Senior Deputy Attorney General

Counsel of Record

JOHN G. KNORR, III

Chief Deputy Attorney General

Office of Attorney General

Appellate Litigation Section

15th Fl., Strawberry Square

Harrisburg, PA 17120

(717) 783-1478 - Direct

(717) 772-4526 - Fax

COUNSEL FOR AMICI STATES

DATED: January 11, 2006

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