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The Ninth Circuit's decision in this case paints the probation search of Knights' apartment as part of modern society's "relentless assault" on privacy. See United States v. Knights, 219 F. 3d 1138, 1144 (CA9 2000). It condemns this search and the California Supreme Court's decisions upholding such searches in unusually strong language:
"In making this decision we need not rely on some resident numen or wait for Fulgora to light our way. We can, instead, rely upon the wisdom of the ages and upon the sagacity of the numerous Ninth Circuit judges who have written before us. If we do not heed all of that history and learning, who will?" Id., at 1145.
Reality is much more prosaic. The probation search in this case is at most a minor extension of Griffin v. Wisconsin, 483 U. S. 868 (1987). Since the probationer in this case consented to the search condition, the search here intrudes less upon a probationer's privacy than the unconsented condition upheld in Griffin. As the danger to public safety posed by probationers like the defendant creates a special need, a warrantless search by a police officer pursuant to a valid probation condition is reasonable without regard to the search's alleged investigatory purpose.
The Ninth Circuit dismissed Detective Hancock's search of Knights' apartment because it was not "conducted for probation purposes" but rather "as a mere subterfuge for the pursuit of [a] criminal investigation[ ]." United States v. Knights, 219 F. 3d 1138, 1145 (CA9 2000). This holding rests on two mistaken premises. One premise, that a court may examine the individual motivation of an officer conducting a special needs search, is addressed in part II. The other mistake is separating public safety from probation's purpose. Maintaining public safety is an essential part of any probation system. See, e.g., Griffin v. Wisconsin, 483 U. S. 868, 875 (1987); 18 U. S. C. §§3562(a), 3553(a)(2)(C); People v. Carbajal, 10 Cal. 4th 1114, 1120, 899 P. 2d 67, 70 (1995); Cal. Penal Code §1202.7. 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 probationers is sufficient on its own to justify warrantless searches by police officers under certain circumstances.
Those circumstances were met in this case. Knights, a drug offender with a prior felony conviction, consented to a valid search condition. See supra, at 2. As in Griffin, the search in this case was supported by reasonable suspicion. See supra, at 2. The only difference between this search and the one in Griffin that could favor the defendant's case is that the search was conducted by a police officer rather than a probation officer. Since protecting public safety from probationers is a special need itself, that distinction has no constitutional significance.
Probation systems must place public safety before any other interest. While society may benefit from employing the cheaper and potentially more rehabilitative probation instead of prison, probation gambles with public safety. Anyone who is eligible for probation has already demonstrated an unwillingness to conform to the law. See Griffin, 483 U. S., at 880. Probationers are thus a far greater threat to commit crime than the law-abiding citizens with whom they share freedom. If probation cannot protect the public, public support for it will erode. See Petersilia, Probation in the United States: Practices and Challenges, National Institute of Justice Journal 2, 2 (Sept. 1997) (cited below as "Probation in the United States").
Unfortunately, the threat to safety is all too real. While probation 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), studies of probationer recidivism still show that probationers 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 three 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, 238-239 (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 238-239. Although the defendant in this case was on probation for a misdemeanor drug offense, see supra, at 2, all drug offenders run a substantial risk of recidivism. 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. Knights, who also had a prior felony conviction, see supra, at 7, was thus a clear risk to reoffend, as Detective Hancock's investigation confirmed.
Even at the lowest recidivism rate, probationers are much more dangerous to the community than the average citizen. If 22% of the general population were arrested for a felony over a three-year period, this country would be a prison camp. 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 three-year period at the 1998 rates, the lowest estimated recidivism rate for probationers, 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 nineteen times this arrest rate.
The FBI index is not an ideal for comparison, however, as it both includes nonfelonies and excludes felonies from its total. Thus the larcenies counted in the index include many misdemeanor larcenies such as shoplifting. See id., at 563. Similarly, 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, 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 probationers. The 1982 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. Ibid. When added to the index rate of 1.0918%, this would give an annual arrest rate of 1.5274%. Over a three-year period the maximum arrest rate under this most conservative reasonable estimate would be 4.5822%, which is still less than one quarter of the lowest estimated recidivism rate for probationers, 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 three-year span. See id., at 338, note. More importantly, the arrest rate for nonprobationers is actually lower than the total crime index because that index includes the arrests of probationers, who have a much higher arrest rate than the civilian population.
Probation's threat to public safety is underscored by the high proportion of state prisoners who were on probation at the time of their offense. As of 1991, 23% of all state prisoners were probation violators, see U. S. Dept. of Justice, Bureau of Justice Statistics, Probation and Parole Violators in State Prison, 1991, p. 3 (1995), and 87% of these probation violators had been arrested for a new offense. See ibid. "Based on the offense that brought them to prison, [in 1991] the 162,000 probation violators committed 6,400 murders, 7,400 rapes, 10,400 assaults, and 17,000 robberies, while under supervision in the community an average of 18 months." Id., at 1. Because many crimes go unreported, see Mackenzie, supra, 36 Journal of Research in Crime and Delinquency, at 427, or unsolved, these arrest figures understate the costs of probation. 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, 65 (Petersilia ed. 1998). Therefore, the real cost of probation is much higher than the arrest records estimate.
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 probationer is equally dangerous, this defendant, with a prior felony and current drug conviction, posed a real risk of reoffending. This risk forms the basis of a special need that justifies the search in this case.
In California, as elsewhere, probation is "in effect, a bargain made by the People through the Legislature and the courts, with the convicted individual, whereby the latter is in essence told that if he complies with the requirements of probation, he may become reinstated as a law-abiding member of society." People v. Chandler, 203 Cal. App. 3d 782, 788, 250 Cal. Rptr. 730, 733 (1988). Both sides can benefit from the bargain. The defendant avoids prison and may have a better chance at rehabilitation, see Kim, An Econometric Study on the Deterrent Impact of Probation, 18 Evaluation Rev. 389, 390-391 (1994), while the state gets a less expensive alternative to prison, at least in direct costs. See Petersilia & Turner, supra, at 65.
A probationer who commits a crime breaks the bargain. See, e.g., 18 U. S. C. §3563(a)(1) (not committing crime a mandatory probation condition). Crime is a cost not found in most economic comparisons between probation and prison. While 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 probationer 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.
Search conditions can help to control the crime expense. They are "meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationers 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 probation officer's ability to search the probationer "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 undetected and uncorrected." Id., at 875 (discussing probable cause requirement).
Allowing police to rely on search conditions can play an important role in minimizing probation's costs to society. Probation officers are not necessarily the ideal agents for deterring their clients through searches. The resources of probation departments are even more overstretched than other law enforcement agencies, with most probation officers carrying far larger caseloads than the ideal. See Probation in the United States, supra, at 3 (caseload of 258 per officer versus ideal of 30). Many probation officers are not well-equipped to conduct searches safely and efficiently. "Probation officers currently lack protective equipment. They have only minimal self-defense training, may not be armed, and are ill-equipped to conduct searches, as they possess little understanding of chain of custody procedures." Rackmill, Community Corrections and the Fourth Amendment, 57 Fed. Probation 40, 44 (Sept. 1993). Unsurprisingly, one survey of probation officers found them very uncomfortable with the idea of searching their clients. See ibid.
Police can fill in these gaps. Their training makes them safer and more efficient at conducting searches. A probationer is less likely to be deterred by a search condition that can only be executed by an overworked probation officer. If this authority is supplemented by the more numerous and better trained police officers, then probationers are more likely to be searched, and therefore more deterred from committing crimes.
"Being on parole with a consent-to-search condition is akin to sitting under the Sword of Damocles: With knowledge he may be subject to a search by law enforcement officers at any time, [the parolee] will be less inclined to 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 probation 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 probationer crime creates a special need separate from the rehabilitation aspect of Griffin. See part I C, supra. In any event, the deterrence and observation advanced by police searches would also help rehabilitate the probationer. Deterring crime can only help the rehabilitation process, as a probationer who commits crime is not rehabilitated.
If society cannot place an effective search condition upon probationers, then "the opportunity to choose probation might well be denied to many felons by judges whose willingness to offer the defendant probation in lieu of prison is predicated upon knowledge that the defendant will be subject to search at any time for a proper probation or law enforcement purpose." People v. Bravo, 43 Cal. 3d 600, 609, 738 P. 2d 336, 341 (1987). Both probationers and society should be allowed to continue getting the benefit of the type of bargain found in this case.
While allowing police to rely on probation search conditions certainly 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 enforcement 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) (quoting Griffin, 483 U. S., at 873). Society's interest in protecting itself from the substantial dangers posed by higher risk probationers, 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.' " Ibid. (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 and that the community is not harmed by the probationer's being at large." Id., at 875.
Public safety can qualify as a special need without being attached to rehabilitating probationers. In other contexts, a sufficient 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," 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 requirement.
"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 observed.' " Skinner, 489 U. S., at 621 (quoting Griffin, supra, 483 U. S., at 875).
The public safety interest in Skinner was fairly removed from law enforcement interests. Train accidents are not necessarily criminal acts, even if intoxication 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 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 substantially justified by public safety were used in a criminal prosecution 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 constitutional." City of Indianapolis v. Edmond, 531 U. S. 32, 148 L. Ed. 2d 333, 342, 121 S. Ct. 447, 453 (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., 148 L. Ed. 2d, at 344, 121 S. Ct., at 454. 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." Id., 148 L. Ed. 2d, at 344, 121 S. Ct., at 455 (emphasis added).
The present case is more closely analogous to Sitz than Edmond. The search condition is limited to probationers, a group who 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." Id., 148 L. Ed. 2d, at 344, 121 S. Ct., at 454. The logic of probation searches is much more limited, extending no further than parolees. 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 buildings." Chandler v. Miller, 520 U. S. 305, 323 (1997).
This is illustrated by the purest public safety special needs search, airport checkpoints. Millions of innocent individuals are subjected to electronic intrusions upon "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 conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger 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)) (Friendly, J.); accord, Treasury Employees v. Von Raab, 489 U. S. 656, 675, n. 3 (1989).
The public safety probation search in this case compares favorably to the airport searches. Like the airport searches, the probation search condition is consensual. See infra, at 23-26. Probation also 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. It is a danger that is all too real in comparison to airline terrorism.
While the airline searches have helped to ensure that there have been comparatively few incidents of air piracy, see Von Raab, 489 U. S., at 675-676, n. 3, probation-related crime remains a significant blight upon society. The 6,000 or so killed by probationers each year, see supra, at 9, easily exceeds all deaths by airline piracy in or against this country. When the hundreds of thousands of other felonies committed by probationers are taken into account, see supra, at 9, the threat posed by probationers is at least equal to the threats that have justified billions of searches of innocent travelers at this country's airports. See ibid. It is "a concrete danger demanding departure from the Fourth Amendment's main rule." Cf. Chandler, 520 U. S., at 319.
The search condition in this case invaded no innocent privacy. Knights, an ex-felon with a drug conviction, consented to the search condition, including the provision that he could be searched by any law enforcement officer. See supra, at 2. Given the considerable danger posed by Knights and his ilk, California had a special need to allow Detective Hancock to rely on this probation condition.
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