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INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) ⁽¹⁾ is a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the due process protection of the accused into balance with the rights of the victim and of society to rapid, efficient, and reliable determination of guilt and swift execution of punishment.

Probation is an important but risky part of the criminal justice system. While society can reap significant economic and rehabilitative gains from probation, allowing convicted criminals to serve their sentence in society instead of prison threatens public safety. Probation search conditions play an important role in limiting probation's danger to society by deterring probationers from committing crimes. The Ninth Circuit's refusal to allow police to conduct such searches threatens the integrity of this key component of many probation systems, contrary to the rights of victims and society which CJLF was formed to advance.

SUMMARY OF FACTS AND CASE

Between 1996 and 1998 the facilities of the Pacific Gas and Electric Company (PG & E) in Napa County were vandalized over 30 times. United States v. Knights, 219 F. 3d 1138, 1140 (CA9 2000). Suspicion centered on Mark James Knights and his friend Steven Simoneau. The vandalism began after Knights' electrical service was discontinued, and the incidents coincided with his court appearances over his theft of power from PG&E. Ibid.

The sheriff's department set up surveillance of Knights' apartment on June 3, 1998. About 3:10 a.m., Simoneau was observed leaving the apartment, carrying what appeared to be three pipe bombs. He then crossed the street to the Napa River, where he deposited these objects. See ibid. As Simoneau left in his truck, Detective Todd Hancock of the Napa County Sheriff's Department followed him until he stopped in a driveway. Ibid. At this point, Hancock was able to examine the truck out of Simoneau's presence. In and around the truck, Detective Hancock found a Molotov cocktail, explosive materials, a gasoline can, and two brass padlocks, which fit the description of the locks removed from the vault of a transformer that was recently vandalized. Ibid. "The truck was seized, impounded, and later searched pursuant to a warrant." Ibid.

Detective Hancock knew that Knights was on probation for a misdemeanor drug offense and that one condition of the probation was to"[s]ubmit his . . . person, property, place of residence, vehicle, personal effects, to search at any time, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer." Id., at 1140-1141. After securing permission from his supervisor, Detective Hancock conducted a warrantless search of Knights' apartment. The search "turned up detonation cord, ammunition, unidentified liquid chemicals, instruction manuals on chemistry and electrical circuitry, bolt cutters, telephone pole-climbing spurs, drug paraphernalia, photographs and blueprints stolen from the burglarized building, and a brass padlock stamped PG & E." Id., at 1141.

Knights was indicted in federal court "for conspiracy to commit arson, for possession of an unregistered destructive device, and for being a felon in possession of ammunition." Ibid. See 18 U. S. C. §§371, 922(g); 26 U. S. C. §5861(g). The District Court suppressed the evidence seized from Knights' apartment, holding that the "probation search was really a subterfuge for an investigative search . . . . " Knights, 219 F. 3d, at 1141. The Ninth Circuit upheld the District Court's holding. See id., at 1145. Certiorari was granted on May 14, 2001.

SUMMARY OF ARGUMENT

Public safety is the Achilles' heel of any probation system. While society can reap substantial benefits from this less costly and more rehabilitative alternative to prison, having convicted criminals serve their sentence in society gambles with public safety. A probation system that cannot protect the public will lose support.

The threat to public safety from felony and drug using probationers is all too real. Studies of felony probationers show a recidivism rate that is between six to nineteen times the arrest rate for the general population. As of 1991, 23% of all state prisoners were probation violators, and 87% of the probation violators had been arrested for a new offense. Probationers were thus responsible for at least six thousand murders and tens of thousands of other serious felonies.

Allowing police to conduct probation searches can help deal with this problem. Having more officers available for searching supplements the resources of habitually understaffed probation departments. Police are also better trained and more experienced at conducting searches than probation officers. This will make probation searches both more likely and more effective, which further deters probationer crime. In addition to protecting the public, this will also aid in the probationer's rehabilitation.

The threat to public safety posed by probation creates a special need for extending the authority to conduct probation searches to police officers. Certain threats to public safety create special needs for dispensing with the Fourth Amendment's warrant and probable cause requirements. The fact that the particular public safety interest is related to crime prevention does not disqualify it from special needs status, as is demonstrated by airport checkpoints.

The search in this case compares favorably to airport checkpoints. Both searches involve consent, while there has been far more probationer crime than airplane terrorism. Most airplane passengers are law-abiding citizens, while all probationers are convicted criminals, hence the search in this case stands on at least as good of a footing as these airport searches.

The Ninth Circuit improperly examined the motive of the searching officer in this case. Although it framed the issue in terms of the probationers' consent, striking down a search based on a searching officer's investigatory purpose is an inquiry into his motive. Whether a particular type of search serves a special need is fair game; the motive of the officer conducting the search is not. Since the public safety special need was valid, the fact that the searching officer was not concerned with the probationer's rehabilitation is irrelevant. Any other result would be impractical, as ascertaining subjective intent is not worth the effort in Fourth Amendment cases.

Allowing police officers to enforce the search condition does not violate the defendant's reasonable expectation of privacy. Unlike the probationer in Griffin v. Wisconsin, 483 U. S. 868 (1987), Knights consented to his search condition. At the very least, this substantially reduces his already limited expectation of privacy. The fact that prison is the alternative to probation does not eliminate the consent. A difficult choice is still a choice. What matters is not the harshness of the prison sentence, but the comparative lenience of the probation alternative offered by the state.

There is no right to probation. If the state can deprive a defendant of all Fourth Amendment rights through a prison sentence, then the much lesser Fourth Amendment deprivation found in this case must also be reasonable. Balancing the defendant's minimal privacy interests against society's considerable interest in protecting the public from probationers justifies the search in this case.

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1. This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.

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