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III. Allowing police officers to enforce
the search condition did not violate any reasonable
expectation of privacy of the defendant.

Following general Fourth Amendment practice, in special needs cases this Court has "not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable-cause requirements in the particular context." Skinner v. Railway Labor Executives' Assn., 489 U. S. 602, 619 (1989). That is, do the special needs justify the search? See Griffin v. Wisconsin, 483 U. S. 868, 875 (1987). In Griffin, this involved justifying a regulatory system that applied a search condition to every grant of probation. See id., at 870-871. That inquiry took place in the context of the probationer's very limited privacy interests. See id., at 874. This Court then concluded that both the warrant and probable cause requirements would needlessly interfere with the special needs of the probation system. See id., at 876, 878.

This search compares favorably to the one in Griffin. The greatest single difference between the two cases is that Knights consented to his probation search condition, while the search condition was imposed retroactively on Griffin. See id., at 870-871, and n. 1. This substantially reduces Knights' expectation of privacy, placing his search on an even more solid constitutional footing than the one ratified in Griffin.

Consent is a valid exception to the Fourth Amendment's warrant and probable cause requirements. See Schneckloth v. Bustamonte, 412 U. S. 218, 222 (1973). This Court has even upheld a consent to search that was part of an individual's contract with the federal government. See Zap v. United States, 328 U. S. 624, 628-629 (1946), vacated, 330 U. S. 800 (1947). ⁽²⁾ While it is not necessary to invoke Zap to enforce a contract between the probationer and the state, consent substantially influences the balance between privacy and society's interests.

The most recent example of consent's power over privacy is another special needs case, Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995), where the drug testing of students who participated in athletic programs was upheld as a legitimate special needs search. See id., at 664-665. The students' decreased expectation of privacy was a substantial factor in this conclusion, see id., at 664, with consent playing an important role.

"There is an additional respect in which school athletes have a reduced expectation of privacy. By choosing to 'go out for the team,' they voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally. . . . Somewhat like adults who choose to participate in a 'closely regulated industry,' students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy." Id., at 657.

The defendant entered the probation agreement with open eyes. The search condition specifically extended its authority to police officers. See supra, at 2. Had he found this condition too onerous, he could refuse probation and serve his sentence. See People v. Bravo, 43 Cal. 3d 600, 608-609, 738 P. 2d 336, 341 (1987). Just like "participation in an industry that is regulated pervasively to ensure safety," see Skinner, 489 U. S., at 627, Knights chose to participate in probation, which requires substantial regulation of the probationer in order to protect the public, see Griffin, 483 U. S., at 874-875, and thus necessarily limits his privacy.

The Ninth Circuit dismissed Knights' consent, claiming that it was "limited to probation searches, and must stop short of investigative searches." United States v. Knights, 219 F. 3d 1138, 1142 (CA9 2000). This stems from the false distinction between "probation" and "investigation" searches. Since public safety is a special need in the context of probation searches, there are no different types of probation searches; a police officer may rely on a valid search condition in order to further society's interest in deterring probationers from committing crime. See part I C, supra. Indeed, most searches initiated by probation officers are motivated by public safety concerns. See Rackmill, Community Corrections and the Fourth Amendment, 57 Fed. Probation 40, 44 (Sept. 1993).

Another criticism of probationer consent is that the probationer has no real choice. It is argued that since prison is so much worse than any type of probation, the defendant will always accept probation no matter how onerous the conditions. See 4 W. LaFave, Search and Seizure §10.10(b), pp. 763-766 (3d ed. 1996). The premise of this argument is doubtful. See Petersilia, When Probation Becomes More Dreaded Than Prison, 54 Fed. Probation 23, 24 (Mar. 1990). Even assuming the premise, though, the conclusion does not follow. A difficult choice is still a choice. "Our authorities do not impose a categorical ban on every government action affecting the strategic decisions of the accused, including decisions whether or not to exercise constitutional rights." United States v. Dunnigan, 507 U. S. 87, 96 (1993). The fact that one of the two alternatives may seem particularly bad does stop it from being an alternative. As Justice Harlan explained:

"The criminal process, like the rest of the legal system, is replete with situations requiring 'the making of difficult judgments' as to which course to follow. McMann v. Richardson, [397 U. S. 759, 769 (1970)]. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose." McGautha v. California, 402 U. S. 183, 213 (1971).

"In other contexts criminal defendants are required to make difficult choices that effectively waive their constitutional rights." Newton v. Rumery, 480 U. S. 386, 393 (1987). Thus an individual charged with a crime may obtain immunity from prosecution in exchange for abandoning a civil rights action. See id., at 397-398. Plea bargaining provides another example, even though "every such circumstance has a discouraging effect on the defendant's assertion of his trial rights . . . ." Chaffin v. Stynchcombe, 412 U. S. 17, 31 (1973). A suspect also may be required to choose between submitting to a blood-alcohol test or having his refusal used against him in court. See South Dakota v. Neville, 459 U. S. 553, 554 (1983). "[B]eing forced to choose between unpleasant alternatives is not unconstitutional." United States v. Kaczynski, 239 F. 3d 1108, 1115-1116 (CA9 2001) (citing Brady v. United States, 397 U. S. 742, 750 (1970)).

When an individual is required to make a choice involving a constitutional right "[t]he threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved." See McGautha, 402 U. S., at 213. The answer to this question is not found in the relative harshness of the prison sentence; the defendant earned this sentence by committing a crime. What matters is the state's generosity in offering the comparatively lenient alternative of probation with a search condition.

A state does not have to offer probation instead of prison. It is an "act of grace" from the state to the probationer. See Escoe v. Zerbst, 295 U. S. 490, 492 (1935); People v. Rodriguez, 51 Cal. 3d 437, 445, 975 P. 2d 783, 788 (1990). While this does not deprive the probationer of other rights such as due process, see Gagnon v. Scarpelli, 411 U. S. 778, 782, n. 4 (1973) (distinguishing Escoe), probation's status as a privilege is relevant to the Fourth Amendment analysis.

The state can deprive a convicted criminal of all of his or her Fourth Amendment rights.

"Notwithstanding our caution in approaching claims that the Fourth Amendment is inapplicable in a given context, we hold that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell." Hudson v. Palmer, 468 U. S. 517, 525-526 (1984) (emphasis added).

If this complete deprivation of Fourth Amendment rights is constitutional, then it is reasonable for a state to subject a grant of probation to a lesser, albeit broad, deprivation such as the search condition in the present case.

While it requires careful application in constitutional law, "the proposition that greater powers include lesser ones" is still valid as a matter of logic. See 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 511 (1996) (plurality opinion). The problems with its application to constitutional law have come from improper use in First Amendment cases. In Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328 (1986), this Court held that the power to ban gambling necessarily included the lesser power to prohibit the advertising of gambling, see id., at 345-346. The subsequent disapproval of Posadas correctly notes that regulating speech is not a lesser included power of regulating conduct. "The text of the First Amendment makes clear that the Constitution presumes that attempts to regulate speech are more dangerous than attempts to regulate conduct." 44 Liquormart, at 512.

That has not happened in this Fourth Amendment case. Probation is not qualitatively different from incarceration the way speech is qualitatively different from conduct. "Probation is simply one point (or, more accurately one set of points) on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service." Griffin, 483 U. S., at 875. Knights had notice of the search condition, including the authorization of searches by the police, and consented to it when he chose probation over prison. The search was supported by reasonable suspicion. The coincidence between the vandalism and Knights' problems with PG & E, the contents of Simoneau's truck, and Simoneau's close association with Knights, see supra, at 2, at least supported a reasonable suspicion to search Knights' apartment. As the Ninth Circuit noted, Detective Hancock "had drawn some very good inferences from the facts . . . ." Knights, 219 F. 3d, at 1143. ⁽³⁾ What happened to Knights was much less intrusive to his privacy interests than what the state could have done had it chosen to withdraw probation as an alternative to prison. This lesser deprivation must also be deemed reasonable in light of what Knights could have faced in prison.

An individual's home is not a prison cell, but see M. Nieto, Probation for Adult and Juvenile Offenders: Options for Improved Accountability 8 (Cal. Research Bureau 1998) (house arrest for high-risk probationers), but the defendant was not an average resident. He was a convicted criminal who was serving his sentence in the community. In order to protect the community, Knights first had to consent to warrantless, suspicionless searches by any law enforcement officer before being given the relative freedom of probation. This case is not about protecting the sanctity of the home, cf. Knights, 219 F. 3d, at 1144-1145, but about giving the state and criminal defendants the freedom to craft alternative punishments to imprisonment.

The balance of society's interests and the defendant's privacy expectations favors the search. The threat to public safety posed by probationers creates a special interest in deterring probationer's criminal tendencies through the prospect of warrantless searches by police officers without regard to the searching officer's motive. See part I, supra. As demonstrated above, defendant's expectation of privacy "that society recognizes as 'legitimate,' " Vernonia, 515 U. S., at 654, is small.

Upholding this search would encourage creative alternatives to prison. Both society and those probationers who genuinely wish to reform would benefit by holding Knights to his end of the bargain.

CONCLUSION

The decision of the Court of Appeals for the Ninth Circuit should be reversed.

July, 2001

Respectfully submitted,

Charles L. Hobson

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2. Although the Zap decision was vacated on jury selection grounds, this Court has since relied on Zap for the point that consent is a settled exception to the probable cause and warrant requirements of the Fourth Amendment. See, e.g., Texas v. Brown, 460 U. S. 730, 736 (1983); Schneckloth, 412 U. S., at 219; Katz v. United States, 389 U. S. 347, 358, n. 22 (1967).

3. While California does not require any level of suspicion to support probation searches, see Bravo, 43 Cal. 3d, at 610-611, 738 P. 2d, at 342-343, it is unnecessary to decide the constitutionality of that practice in this case, since this search was amply supported by much more than reasonable suspicion.