# Amicus Curiae Brief — Samson v. California

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0117%3A18

## Record

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

## Text

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

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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

16

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,

17

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0117%3A18. Public record. Not legal advice.