Issues
Whether a parolee’s Fourth Amendment expectation of privacy is so diminished by his/her societal status that a parolee can be searched at any time and without reasonable suspicion of wrongdoing?
In 1996 the California Legislature adopted Penal Code section 3067, mandating that every prisoner eligible for release on state parole “shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” Petitioner Samson is a parolee who was arrested for drug possession after a search that was instigated solely because of his parolee status. Samson argues that under the Fourth Amendment he enjoys a diminished yet reasonable expectation to privacy that is eliminated by California’s 1996 parole search condition, which Samson claims “confers unfettered discretion on law enforcement officers to conduct searches of parolees.” The Supreme Court will have to decide whether a parolee's diminished expectation of privacy makes parolees subject to searches where there is no suspicion at all of any wrongdoing.
Questions as Framed for the Court by the Parties
Does the Fourth Amendment prohibit police from conducting a warrantless search of a person who is subject to a parole search condition, where there is no suspicion of criminal wrongdoing and the sole reason for the search is that the person is on parole?
Facts
In 1996, the California Legislature enacted Penal Code section 3067, mandating that every prisoner eligible for release on state parole “shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” Brief for Respondent at 2. Thus, while the Fourth Amendment mandates an officer have “reasonable suspicion” before searching an ordinary person, the California law eliminates this “reasonable suspicion” requirement when the person to be searched is on parole.
On September 6, 2002, Petitioner Donald Samson ("Samson") was walking with a friend and her young child when Samson was observed by Officer Alex Rohleder of the San Bruno, California Police Department. Brief for Petitioner at 4. Officer Rohleder had “just happened to run across” Samson and recognized Samson from a “prior contact” and knew Samson was on parole. Brief for Petitioner at 4. After conducting a fruitless pat-down search of Samson, Officer Rohleder asked whether Samson had an outstanding warrant, to which Samson stated he did not. Brief for Petitioner at 4. Officer Rohleder verified Samson’s statement with dispatch, and then proceeded to search Samson more thoroughly. The officer searched Samson’s pockets and discovered a cigarette box which contained Methamphetamine. The officer also searched Deborah Watson, Samson’s companion. Whether or not the search of Ms. Watson was consented to is in dispute. Brief for Petitioner at 4.
Officer Rohleder arrested Samson, who was later charged with possession of methamphetamine. At the trial court, Samson filed a motion arguing that, since the drugs were a product of an illegal search, they should be suppressed as evidence. Brief for Petitioner at 5. The trial court denied the motion and Samson was found guilty of possession of methamphetamine and sentenced to seven years’ imprisonment. Brief for Petitioner. On appeal, Samson contended that the search was not justified by any “individualized suspicion that he engaged in criminal activity, and that the search was arbitrary, capricious, and harassing.” Brief for Petitioner at 5. The California Court of Appeal rejected both arguments and the California Supreme Court denied Samson’s petition for review. On September 27, 2005, the Supreme Court accepted the case for review.
Analysis
In deciding this case, the Court is likely to consider three theories: the Fourth Amendment’s Balancing Test in assessing an individual’s right to privacy, the Special Needs Doctrine, and the Consent Doctrine.
I. Balancing Test
The Fourth Amendment protects individuals against “unreasonable searches.” U.S. Const., amend. IV. The parties cite to the same Supreme Court test in assessing the reasonableness of a search, under which the court must balance “the degree to which [the search] intrudes upon an individual’s privacy” with “the degree to which [the search] is needed for the promotion of legitimate governmental interests.” See United States v Knights, 534 US 112, 118-19 (2001).
Individual Privacy in the Parole Context
In order to be protected by the Fourth Amendment, an individual must have a “legitimate expectation of privacy” (an objective test) which society is ready to recognize (a subjective test). United States v. Katz, 389 U.S. 347, 360-62 (1967) (Harlan J., concurring)). The lower an individual’s expectation is, the less legitimate the government interest has to be in interfering with that interest. An extreme example involves prison inmates. The Court has held that prisoners have no such expectation; thus, they are not protected against unreasonable searches. See Hudson v. Palmer, 468 U.S. 517, 525-26 (1984). The parties agree that a parolee’s expectation of privacy, when compared to the regular citizen, is diminished. See Brief for Petitioner at 12; see Brief for Respondent at 8.
As an initial matter, the Court is likely to assess the degree to which a parolee’s expectation resembles that of a prisoner, rather than a regular citizen. The State of California insists that “[i]t is difficult to conceive of person other than a prison inmate whose reasonable or actual expectation of privacy is less than that of a parolee.” Brief for Respondent at 8 (citing Hudson v. Palmer, 468 U.S. 517 (1984)). Samson argues, however, that the Court has distinguished between prisoners and parolees, see Brief for Petitioner at 12-13, citing Griffin v. Wisconsin, 483 U.S. 873, 874-75 (1987). This distinction, he insists, makes the “unconstrained discretion” which California Law gives law enforcement officers to conduct suspicionless searches unreasonable and thus contrary to Fourth Amendment Jurisprudence. Brief for Petitioner at 18-20.
State Interest
The Supreme Court is likely to next address the state’s interest in conducting the types of searches permitted by California Law. In such a balancing test, the warrantless search in question will only be permitted if the state interest overrides the individual’s interest in maintaining his privacy.
The State of California points to various statistics which demonstrates a parolee’s tendency to commit crime after their release from prison, as well as Supreme Court cases which affirm the tendency of recidivism. See Brief for Respondent at 13-14 (citing Pennsylvania Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 365 (1998) and Ewing v. California, 538 U.S. 11 (2003)). California also stresses that parolees have a “penchant for secrecy” which further strengthens the State’s need to conduct warrantless searches. Brief for Respondent at 14.
Samson does not disagree with the assertion that “aggressive supervision can reduce recidivism.” Brief for Respondent at 17 (quoting Griffin v. Wisconsin, 483 U.S. at 875). He does argue, however, that other mechanisms exist to allow the state to further its interest in supervising parolees, and that a “blanket regime of suspicionless searches” is not warranted. Brief for Petitioner at 9. Furthermore, he argues that California is disregarding the state’s own interest in furthering the reintegration of parolees into society, an interest which is undermined by the type of invasive searches permitted under the California law at issue. See Brief for Petitioner at 13.
It is difficult to predict the outcome of any test where the Court balances the interests of the individual with that of the state since the Court will consider a wide array of factors. Most likely, what will tip the scale in this case is the degree of privacy the Court decides a parolee enjoys—since, the lower that degree is, and the closer it comes to that of a prisoner, the less reason the state needs to provide in conducting searches which invade that privacy. Associate Professor of Law at Cornell Law School, John H. Blume, who is also the Director of Cornell Death Penalty Project, contends that most jurisdictions have laws similar to California’s in that they assume that parolees “have a very diminished expectation due to the normal conditions of parole.” It is his belief that the Court will likely embrace this majority view.
II. Special Needs Doctrine
The Special Needs Doctrine governs searches which are recognized to be valid even without a showing of individualized suspicious. See Brief for Respondent at 21 (citing Illinois v. Lidster, 540 U.S. 419 (2004)). This doctrine refers to “‘needs, beyond the normal need for law enforcement, [that] make the warrant and probable-cause requirement impracticable.’” Griffin v. Wisconsin, 483 U.S. at 873 (quoting New Jersey v. T.L.O., 469 U.S. 325 at 351 (1985) (Blackmun J., concurring)).
The State of California argues that a state’s probation system falls under the Griffin’s Court understanding of “special needs.” See Brief for Respondent at 22. Samson, however, insists that, since its adoption in Griffin, the special needs exception is only justified when that need is “‘divorced from the State’s general interest in law enforcement,’” and consequently, is not justified in this case. Brief for Petitioner at 32-33 (quoting Ferguson v. City of Charleston, 532 U.S. 67, 79 (2001). California argues that Samson is using the wrong test in determining whether the doctrine applies—the test put forth by California holds the “‘special needs’ doctrine could not justify a ‘program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.’” Brief for Respondent at 24 (quoting City of Indianapolis v. Edmond, 531 U.S. 32, 38 (2000)). In this case, by contrast, the search was conducted primarily in order to determine whether Samson was breaking the conditions of his parole—not to determine whether he was undertaking a criminal activity. See id.
Thus, in deciding whether the search in this case is an example of a “special need,” the Court may further define the contours of this doctrine. It is possible that, if the Court finds that the “special needs” doctrine applies, the Court will find it unnecessary to balance the two interests as detailed above.
III. Consent
Finally, the Court may address the question of whether the search in question was justifiable since he consented to the search—not in the literal sense, but in the sense that he consented to parole in the first place. California argues that an inmate may reject parole. See Brief for Respondent at 32. Samson points to the California Supreme Court which held that, in California, “‘[t]he consent exception to the warrant requirement may not be invoked to validate the search of an adult parolee.’” Brief for Petitioner at 39 (quoting People v. Reyes,968 P.2d 445 (1998)).
Discussion
The key issue in this case is one this country has been struggling with acutely since September 11, 2001: just how much freedom are we willing to forgo as a society in order to ensure our own safety? Law enforcement agents and champions of civil liberties have been struggling to reach a just and safe equilibrium. This case primarily concerns the interests of a small group in our society—parolees—but nonetheless carries bigger implications as to the new Court’s proclivities when facing issues of government interference with personal freedom.
In United States v Knights, the Supreme Court (hereinafter “the Court) held that “when an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion into the probationer’s significantly diminished privacy interests is reasonable.” 534 US 112, 121 (2001). To determine the reasonableness of a search, “[c]ourts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). Donald Samson (hereinafter “Samson) argues that the “privacy expectations of persons on parole and probation, while significantly diminished, receive a degree of protection under the Fourth Amendment.” Brief for Petitioner at 15.
The California Supreme Court has recognized the problem and has “attempted to address some of these problems by holding that a suspicionless parolee search is unlawful if it is “arbitrary and capricious” because “the motivation for the search is unrelated to rehabilitative, reformative, or legitimate law enforcement purposes,” because it is “motivated by personal animosity toward the parolee,” or because it is undertaken by police “at their whim or caprice” and therefore “a form of harassment.” Brief for Petitioner at 20 (quoting People v. Reyes, 968 P.2d 445, 451 (1998)).
The Court must consider whether or not the California law which induces parolees to sign a waiver subjecting them to searches at the discretion of police officers can be reconciled with the Fourth Amendment right to privacy, which parolees enjoy to a diminished degree. The decision of the Court will have a lasting impact on parolees, their families and associates. It has been argued that parolee searches may violate the rights of non-parolees. See generally Amicus Brief of the American Civil Liberties Union. Some police searches of parolees may include searches of homes or cars which may be shared with friends and families who may not have consented to a search of their personal property. Id. Parolees will learn to conduct themselves in a law-abiding fashion if an officer must have reasonable suspicion in order to perform a search. Id. Requiring the standard of reasonable suspicion would eliminate, or at least reduce, harassment by law enforcement officials. Even in this case, the officer who searched Samson also search Ms. Watson, Samson’s companion, allegedly without her consent. Even though Ms. Watson’s search is not at issue in this case, civil rights activists are worried about the profound implications that arise from a law that subjects all of a parolee’s companions to suspicionless searches. See generally Amicus Brief of the American Civil Liberties Union.
Police officers will also be greatly impacted by the Court’s decision, since they are the ones who have to make the point-blank decisions when confronting parolees. If the Court rules for Samson, officers will have to be much more wary before searching parolees without valid suspicion. This may mean, on the one hand, that officers will have to really check their suspicious before approaching a parolee. On the other hand, if an officer has some doubt, he may forgo searching a suspicious parolee who poses a legitimate threat to society.
The freedom of police officers in ensuring public safety has been supported by several organizations with vested interests in protecting the community. It has been argued that a parolee does not enjoy the absolute liberty to which every citizen is entitled, but instead, parole significantly restrains a parolee’s liberty to do those things which in this country free men are entitled to do. See Amicus Brief of American for Effective Law Enforcement, et al. The Criminal Justice Legal Foundation also argued in favor of the state of California and stated: “Studies of felony probationers and parolees show a recidivism rate that is between six to nineteen times the arrest rate for the general population. Probationers and parolees were thus responsible for at least thousands of murders and tens of thousands of other serious felonies. Allowing both police and parole officers to conduct parole searches helps deal with this problem.” See Amicus Brief of the Criminal Justice Legal Foundation.
Conclusion
In any balancing test, it is difficult to predict which factors the Court will consider most importance. Professor Blume believes that five members of the Court will consider the state’s interests, especially that of preventing parolees from reoffending, compelling enough to override the parolee’s expectation of privacy. He predicts that the Court’s opinion will be rather straight-forward, first establishing that parolees have a diminished expectation of privacy, emphasizing the state’s interest in curbing recidivism, and perhaps embracing the state’s consent theory. As this is a case with important civil liberties implications, the Court’s opinion is likely to provide us with a first look of the new Court’s position on the kind of balance that should be maintained between individual rights and the safety of the public.
Written by: Galit Avitan & Theresa Concepcion
Acknowledgments
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