More on Today’s Opinion in Samson v. California
David Jakhelln, a summer associate at Akin Gump, has this summary of today’s opinion in Samson:
Just how conditional is the liberty of a parolee under the Fourth Amendment? In a 6-3 decision authored by Justice Thomas, the Court ruled today that, when it is permitted by statute, a suspicionless search of a parolee is reasonable under the Fourth Amendment.
While walking down a California street with a woman and a small child on a September afternoon in 2002, parolee Donald C. Samson was approached by Officer Alex Rohleder. Rohleder had no reason to believe that Samson was engaged in any criminal activity, but he decided to search Samson anyway pursuant to a state statute. Officer Rohleder patted down Samson, found a cigarette package, looked inside, and found methamphetamines. After being charged with possession, Samson moved to suppress the evidence as the fruit of an unreasonable search under the Fourth Amendment.
The trial court denied Samson’s motion, and the appellate court upheld the ruling. The California Supreme Court denied Samson’s petition for review. In the view of the lower courts, Samson’s status as a parolee determined the resolution of his Fourth Amendment challenge: in 1996, the California legislature responded to a perceived problem of high recidivism and insufficient supervision of the large parolee population within the state by granting to parole and police officers the power to conduct suspicionless searches of any parolee. The California Supreme Court ruled, in People v. Reyes, that these suspicionless searches were constitutional, so long as they were not “arbitrary, capricious, or harassing.” The trial court held, and the appellate court agreed, that there was nothing arbitrary, capricious, or harassing about Rohleder’s search of Samson. The Supreme Court granted cert. to determine whether suspicionless searches of parolees are constitutional under the Fourth Amendment reasonableness standard.
The Court ruled that under the “totality of the circumstances,” the suspicionless search of Samson was reasonable under the balancing test set forth in United States v. Knights, a similar case involving a probationer. There the Court explained that the individual’s privacy must be balanced against the “promotion of legitimate governmental interests” in determining the reasonableness of the search.
Noting that parole is a state-imposed punishment served in lieu of prison and that violation of the terms of parole may result in imprisonment, Justice Thomas explained that parolees’ reasonable expectations of privacy must therefore be substantially reduced. Unlike other citizens, parolees are subject to extensive state supervision, including prohibitions on travel, firearms ownership, alcohol consumption, and the like. Moreover, the parolee in California is required to acknowledge in writing before release from prison that she will be subject to suspicionless searches.
On the other side of the balance, the Court found the state interest in preventing recidivism to be “substantial,” even “overwhelming.” Because parolees present such a high risk for engaging in criminal activity, the court found it reasonable to use suspicionless searches – and the element of surprise they provide – to more effectively supervise parolees. Yet California’s discretion is not unlimited. Thomas noted that the state’s prohibition on “arbitrary, capricious, or harassing” searches would guard against capricious enforcement. It is not clear, however, that such a limitation is required by the Fourth Amendment under the Court’s ruling today.
In a feisty dissent, Justice Stevens argued that sanctioning a regime of suspicionless searches permits “the very evil the Fourth Amendment was intended to stamp out.” Noting that the Court had previously sanctioned suspicionless searches only in the case of “special needs” exceptions to the general interest in law enforcement, Justice Stevens assailed the Court for creating a category of constitutionally sanctioned suspicionless searches “unsupported by any special need” and without protections against the state’s unfettered discretion.
For Justice Stevens, the real problem with the court’s decision was that it equated the parolee’s Fourth Amendment liberties with that of the prisoner, who arguably has none, rather than that of the probationer, whose rights are merely diminished. Justice Stevens believed that, as with the probationer in Knights, reasonable suspicion is the minimal standard required under the Fourth Amendment for searches of parolees. This is doubly so because the curtailment of the prisoner’s Fourth Amendment rights are justified only by the special institutional needs presented by confinement – needs which are notably absent when the prisoner becomes the parolee.
The question that remains unanswered after today’s opinion is just how far the state may go in conducting suspicionless searches before running afoul of the “arbitrary, capricious, or harassing” standard or other constitutional limitations. An answer to that question, and the impact of this case will have on the gathering of DNA samples, await another day.
It is difficult to understand what all the fuss is about over the suspicionless searches of parolees.
From a purely policy standpoint, it seems reasonable to believe that (a) the ability to conduct such searches would deter the parolee from unlawful conduct, which deterrence will certainly help keep him or her on the “straight and narrow” and (b) if states are able to supervise parolees strictly, then they are more likely to grant parole, which can, if done right, be a good thing.
From a constitutional standpoint, I don’t see how a state cannot determine that a “prison” is not necessarily the four walls of a penal institution. In other words, why cannot the state simply deem parole to be a very loose form of confinement? It would seem to me to be a very arbitrary distinction, especially in an era with home detention, furloughs and other alternative incarceration techniques. Does the state lose its right to determine how much supervision criminals serving valid sentences will get simply because it, as a matter of grace, determines that someone should be allowed to walk outside of prison?
I guess that at some point a state could overstep its bounds under this decision, but isn’t that what we have courts for?
Comment by federalist — June 19, 2006 @ 10:23 pm
Federalist,
To be honest, I was surprised and relieved by the balance struck in your post. But I must still politely take issue with your first point: “From a purely policy standpoint, it seems reasonable to believe that (a) the ability to conduct such searches would deter the parolee from unlawful conduct, which deterrence will certainly help keep him or her on the “straight and narrow”.
It might deter them. It might lead them to develop unforeseeable evasive techniques, e.g., traveling in groups of non-parolees and having a non-parolee carry the contraband. Three strikes laws were supposed to specifically deter crime by incapacitating the violators, but had the unintended consequence of spiking the murder rate. No witnesses equal a lower chance of conviction, so someone facing his third strike is likelier to kill during the commission of an otherwise minor property crime.
Comment by Commentator — June 20, 2006 @ 3:33 am
Federalist,
I’m also concerned by your idea that “(a) the ability to conduct such searches would deter the parolee from unlawful conduct, which deterrence will certainly help keep him or her on the ’straight and narrow’.”
This concept strikes me as exactly what the Fourth Amendment was designed to prevent, as it applies equally well to non-parolees. If deterrence of unlawful conduct is compelling enough to justify suspicionless searches, then this decision is frightening.
Given my faith in the Constiution, I cannot agree that deterrence through spontaneous searches is good policy.
Comment by dyeostyn — June 20, 2006 @ 4:59 am
Federalist-
The “fuss” from a constitutional standpoint is that the court yet again resorted to ad-hoc, standardless balancing to justify a search regime. The better route would have been to analyzed this case under the special needs exception to the warrant requirement. To justify a warrantless, suspicionless search under the totality of the circumstances “test” is a dangerous thing. The court would have done better to either carve out another exception (which the gov’t did not ask for), or to fit it into one of the categorical exceptions.
Comment by ksp205 — June 20, 2006 @ 9:11 am
I’m curious about this, and haven’t read the ruling, but is there a requirement under the statute that the officer demonstrate awareness of the parolee’s status ahead of time?
It’s one thing to take an expansive view of incarceration, and the reduced expectation of privacy while under some form of supervision – the parole officer would certainly know about the parolees status, as would any officer sent to respond to a call. But, those doen’t appear to be the facts here; the parolee wasn’t in his residence or at work – just walking down the street, likely looking suspicious.
Does this begin to provide a roadmap for legitimizing all arbitrary police searches (or at least in states with this type of statute)?
It’s easy to imagine that this claim allows the officer to just approach and search anyone he likes while engaged in the statutory activity of detering parolee misconduct – a side stepping of PC – and then, given that the officer was engaged – Hudson doesn’t appear to be at issue, but in a way, Caballes does – or is it the case that the fruit is of a poison tree if you aren’t a parolee, since discovery wouldn’t otherwise be inevitable.
Comment by civil_lib — June 20, 2006 @ 9:17 am
The majority’s Constitutional argument seems to be sound. Clearly, the search would have been permitted had the parolee still been in prison. Parole is simply a continuation of the punishment with less restrictive conditions. The state ought to be able to decide what those conditions will be. It’s hard to see the parade of horribles that the dissent is worried about. For ordinary citizens who are not on parole, the Fourth Amendment still applies as it always has.
Now, as a matter of policy (which is not the Court’s concern), is this a good idea? I don’t know, but Commentator’s argument that parolees will simply get better at concealing crimes seems to be a long stretch. I am also not aware of any serious study demonstrating that Three Strikes laws have made the murder rate go up.
Comment by Marc Shepherd — June 20, 2006 @ 9:36 am
The policy observations I made were simply observations, not arguments as to why the decision was right in my view. The constitutional argument goes to whether incarceration has a fixed meaning under the Constitution, which I think debatable.
Stevens is all bent out of shape because in the prison context we search for contraband, weapons etc. to protect other prisoners and prison guards, and that supposedly is the raison d’etre to the idea that prisoners can be searched at any time, but why do prison guards and other prisoners get more protection than your average ordinary citizen?
Comment by federalist — June 20, 2006 @ 11:45 am
At the end of his dissent, Stevens states that suspicionless searchs may be appropriate for some kinds of offenders:
“Likewise, this might have been a different case had a court or parole board imposed the condition at issue based on specific knowledge of the individual’s criminal history and projected likelihood of reoffending, or if the State had had in place programmatic safeguards to ensure evenhandedness.”
This statement seems to deflate his entire argument, as he is basically conceding the suspicionless searches are legitimate in some circumstances – ultimately he simply disagrees that they are necessary in this case
Comment by Ben Kennedy — June 20, 2006 @ 1:27 pm
As is often the case, the US Supremes have now twice ( Sampson, and Davis/Hammond) issued high profile cases that will try our souls as defense attorneys while the government explores new ways to fit every case within the “exception” to our Constitutional Rights.
If the Founders wished the 4th Amendment rights to be so very circumscribed by the government…perhaps they would not have used…”shall not be violated”.
Sampson really changes nothing as far as 4th amendment motions here in California…(closing foootnote) but Court’s and Prosecutor’s may see it as the openning they need to eliminate 4th amendment protections for Californians. How do we identify and distinguish the “arbitrary and capricious” from the “vigorous enforcement”?
As for Davis…it will open the Confrontation Clause to every bit as much chicanary as did the “Roberts” reliability standards.
If the Founding Fathers wanted “Confrontation” limited to “testimonial” statements that were the product of “interrogations” perhaps they would have chosen different language.
If the staement is offered for the truth of the matter stated, and the statement is material to guilt or innocence…confrontation is the only Constitutionally permissible process.
Comment by DJMIII — June 20, 2006 @ 3:37 pm
Which is more erosive of our liberty: forcing a lawabiding citizen to submit to a suspicionless search for the privilege of riding public transportation, or requiring a parolee to submit to a suspicionless search for the privilege of walking a public street? Parole did not exist in the United States when the 14th Amendment was ratified. Does it make any sense to argue that, by ratifying the 14th Amendment, the States agreed that, if they ever in the future permitted the parole of offenders, that they could not condition parole on submission to random searches?
Comment by leviathan — June 20, 2006 @ 4:04 pm
Leviathan states: “Parole did not exist in the United States when the 14th Amendment was ratified.”
That’s not entirely true. For example, in the early 19th century NY had a “good-time” law, rewarding inmates with time off their sentence for good behavior. See http://parole.state.ny.us/INTROhistory.html.
I don’t know how widespread these laws were, but we know that at least Massachusetts had parole officers by 1837.
Comment by ksp205 — June 20, 2006 @ 4:44 pm
“Sampson really changes nothing as far as 4th amendment motions here in California…(closing foootnote) but Court’s and Prosecutor’s may see it as the openning they need to eliminate 4th amendment protections for Californians.”
Slippery slope arguments are sometimes valid, but I really can’t see how this slope is at all slippery. There is a simple, bright, clear difference between law-abiding people and those who have been convicted of felonies and placed in the custody of the Department of Corrections, whether they be physically behind bars or on parole.
The most intrusive suspicionless search presently authoritized, in my view, is the search on entering the courthouse. Unlike airports, many of the people entering courthouses are not there voluntarily. Jurors, witnesses, and defendants (both civil and criminal) have been summoned or subpoenaed. Unlike the Samson case, many of them have done nothing wrong. Yet these searches are authorized.
Comment by Kent Scheidegger — June 20, 2006 @ 5:17 pm
With respect to the courthouse searches, there is one difference that is probably relevant–parolees are continuously subject to warrantless searches/jurors in a courthouse are only subject to such searches on a one-off basis.
I think that the fact that these guys are criminals who have not yet “paid their debt to society” is the most salient fact.
Comment by federalist — June 20, 2006 @ 6:02 pm
One other factor to consider is that if states cannot include these types of conditions it may limit situations in which the state is willing to risk paroling inmates. Thus, this decision may actually be positive from a standpoint of correctional policy.
Comment by ward — June 21, 2006 @ 11:45 am
ksp205 writes:”…in the early 19th century NY had a “good-time” law, rewarding inmates with time off their sentence for good behavior. See http://parole.state.ny.us/INTROhistory.html.” Credit for “good time” is not parole.
ksp205 also writes: “…we know that at least Massachusetts had parole officers by 1837.” Do you have a citation for a Massachusetts’s statute that authorized parole in 1837? I based my statement on 2 Neil P. Cohen, The Law of Probation and Parole, § 1:12 (2d ed. 1999) (“Parole’s initial use [in the United States] came in 1876…”)
When I referred to public transportation, I was thinking of government owned subways relied on by the least advantaged among us, not our airports where crippled old ladies with metal plates in their bodies are forced to strip, although any suspicion of dangerousness is totally absurd and should be causing lawyers as a group to march on Washington.
Comment by leviathan — June 21, 2006 @ 12:36 pm