No. 00-1260 

In the Supreme Court of the United States 

UNITED STATES OF AMERICA, PETITIONER 

v. 

MARK JAMES KNIGHTS 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

REPLY BRIEF FOR THE UNITED STATES 

THEODORE B. OLSON 

Solicitor General 

Counsel of Record 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

TABLE OF CONTENTS 

Page 

A. This Court’s analysis of “special needs” searches of 

probationers does not preclude a state from institu- 
ting a consent-search condition to supervise proba- 
tioners ...................................................................................... 1 

B. A consent-search condition does not conflict with 

“special needs” analysis generally ...................................... 
5 

C. A probationer’s consent need not take the form of 

a knowing and intelligent waiver in order to meet 

Fourth Amendment standards ........................................... 

7 

D. Respondent’s consent was not shown to be compelled 

by a claim of state authority to search .............................. 
10 

E. The consent given by respondent was not an uncon- 
stitutional condition of his probation ................................. 
12 

TABLE OF AUTHORITIES 

Cases: 

Argersinger v. Hamlin, 407 U.S. 25 (1972) ........................ 

10 

Dolan v. City of Tigard, 512 U.S. 374 (1994) .................... 

12, 13 

Ferguson v. City of Charleston, 121 S. Ct. 1281 

(2001) ........................................................................................ 6 

Griffin v. Wisconsin, 483 U.S. 868 (1987) ..... 

1, 2, 3, 4, 6, 7, 13 

Hudson v. Palmer, 468 U.S. 517 (1984) ............................. 

14, 16 

Johnson v. Zerbst, 304 U.S. 458 (1938) .............................. 

7 

Minnesota v. Murphy, 465 U.S. 420 (1984) ....................... 

15 

Morrissey v. Brewer, 408 U.S. 471 (1972) .......................... 

6 

Ohio v. Robinette, 519 U.S. 33 (1996) ................................. 

8 

People v. Soto, 212 Cal. Rptr. 696 (1985) ........................... 

4 

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ..... 

7, 8, 9, 11 

Texas v. Brown, 460 U.S. 730 (1983) .................................. 

11 

United States v. Biswell, 406 U.S. 311 (1972) ................... 

11 

United States v. Broce, 488 U.S. 563 (1989) ...................... 9 

(I) 

II 

Cases—Continued: Page 

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 

(1995) ........................................................................................ 

14, 15 

Zap v. United States, 328 U.S. 624 (1946) ......................... 

11 

Constitution: 

U.S. Const.: 

Amend. IV ..................................................... 

3, 4, 7, 8, 10, 15, 16 

Amend. V ................................................................................ 

16 

Double Jeopardy Clause .................................................. 

9 

Self-Incrimination Clause ................................................ 15 

In the Supreme Court of the United States 

No. 00-1260 

UNITED STATES OF AMERICA, PETITIONER 

v. 

MARK JAMES KNIGHTS 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

REPLY BRIEF FOR THE UNITED STATES 

A. This Court’s Analysis Of “Special Needs” 

Searches Of Probationers Does Not Preclude A 
State From Instituting A Consent-Search Con- 
dition To Supervise Probationers 

Respondent contends (Br. 11-23) that under Griffin 

v. Wisconsin, 483 U.S. 868 (1987), any warrantless 
search of a probationer must “be a probation search, 
not an investigatory search conducted to further law 
enforcement interests.” Resp. Br. 14. In respondent’s 
view, a search of a probationer may be deemed to 
further a “special need” of the government, distinct 
from the general governmental interest in enforcement 
of the criminal law, only if the search is conducted by a 
probation officer whose duties include the rehabilitation 

(1) 

2 

of the probationer as well as the protection of the 
public. See Resp. Br. 19-20. He therefore argues that 
the consent-search condition in this case is uncon- 
stitutionally broad. Griffin, however, does not under- 
mine the constitutionality of California’s decision to 
seek a probationer’s consent to searches by any law en- 
forcement officer as a means of assuring adequate 
supervision. 

1. The Court in Griffin held that “[a] State’s opera- 
tion of a probation system * * * presents ‘special 
needs’ beyond normal law enforcement that may justify 
departures from the usual warrant and probable-cause 
requirements.” 483 U.S. at 873-874. The Court ex- 
plained that probation is imposed as a sanction for a 
criminal offense and is contingent upon the pro- 
bationer’s compliance with specified conditions—first 
among them the duty “to avoid commission of other 
crimes.” Id. at 874. The Court concluded that the 
conditions of probation are designed to further the pro- 
bationer’s rehabilitation and to protect the community, 
and that “[t]hese same goals require and justify the 
exercise of supervision to assure that the restrictions 
are in fact observed. * * * Supervision, then, is a 
‘special need’ of the State permitting a degree of im- 
pingement upon privacy that would not be consti- 
tutional if applied to the public at large.” Id. at 875. 

In the next section of its opinion (see 483 U.S. at 875- 
880), the Court addressed the question whether the 
“special needs” of the State in administering its pro- 
bation system justified the incursion on the proba- 
tioner’s liberty that a nonconsensual warrantless search 
entailed. In finding the search to be reasonable, the 
Court relied in part on the fact that the search was 
overseen not by a police officer, but by a probation 
officer “who, while assuredly charged with protecting 

3 

the public interest, is also supposed to have in mind the 
welfare of the probationer.” Id. at 876. But while the 
identity of the searching officer was deemed relevant to 
whether the intrusion on privacy from the search was 
permissible, it played no part in the Court’s deter- 
mination that the “supervision” of probationers is a 
“special need” of the State distinct from normal law 
enforcement. 

Griffin therefore does not support the effort, under- 
taken by the court of appeals (see Pet. App. 7a-10a) and 
embraced by respondent (see Br. 19-20), to distinguish 
for Fourth Amendment purposes between “probation” 
and “investigation” searches. The state interest under- 
lying the search condition at issue in this case is to 
ensure that probationers—persons who have by 
definition been convicted of criminal offenses (see 
Griffin, 483 U.S. at 874) and who are presumptively 
“more likely than the ordinary citizen to violate the 
law” (id. at 880)—can be more closely monitored than 
other members of the population. That monitoring 
serves both to deter violations of the probation con- 
ditions and to detect violations that occur. Those 
objectives are served equally well whether the moni- 
toring is done by law enforcement or probation officers. 

Here, to facilitate supervision of probationers, the 
Sheriff’s Department’s records enabled law enforce- 
ment personnel to identify probationers subject to the 
search condition. See Resp. Br. 2, 22. The officer who 
conducted the search in this case was aware of re- 
spondent’s probation status and of the search condition, 
and the officer reasonably suspected respondent of 
involvement in criminal activity. See Gov’t Br. 3 & nn. 
2-3. Because respondent’s commission of new crimes 
would violate the most fundamental term of his pro- 
bation, a search designed to confirm or dispel the 

4 

officer’s suspicion directly served a core probation 
purpose. See Gov’t Br. 27-28. 

2. Respondent repeatedly suggests that Griffin 
identified constitutional requirements (including the 
participation of a probation officer) applicable to any 
warrantless search of a probationer. See Resp. Br. 14, 
15, 17. That is incorrect. The Griffin Court did attach 
significance to the facts that the search in question was 
(1) conducted by a probation officer, (2) based on rea- 
sonable grounds to believe that a probation violation 
had occurred, and (3) conducted pursuant to a regu- 
latory scheme that itself satisfied the Fourth Amend- 
ment’s reasonableness requirement. Griffin did not, 
however, hold that any of those features of the Wis- 
consin scheme was a constitutional prerequisite to a 
valid warrantless search in the probation context. 

In particular, to require that the search be conducted 
by an official having specific responsibility for the 
probationer’s rehabilitation (see Resp. Br. 19-20) would 
substantially undermine the institution of summary 
probation under California law. “A person on summary 
probation in California is not under the direct super- 
vision of a probation officer.” Pet. App. 4a; see People v. 
Soto, 212 Cal. Rptr. 696, 699 n.3 (1985) (citation omitted) 
(“Summary probation * * *, wherein there is 
probation without any probation officer supervision, 

* * * entails the defendant reporting only to the 
court, usually where * * * he commits a subsequent 
offense.”). By making respondent’s release on pro- 
bation contingent on his consent to future searches, the 
sentencing judge in the state case sought to ensure that 
respondent could be closely monitored so that “the 
community [would not be] harmed by the probationer’s 
being at large.” Griffin, 483 U.S. at 875. Because re- 
spondent’s release on summary probation did not entail 

5 

supervision by a probation officer, the search condition 
had as a practical matter to be implemented by persons 
having more general law enforcement responsibilities. 
The practical result of respondent’s position is that 
summary probation simply cannot operate in that man- 
ner; rather, States may authorize warrantless searches 
of probationers, even with their consent, only if specific 
officers are assigned to perform a rehabilitative role. 

3. As the court of appeals recognized, respondent 
“did consent to searches when he agreed to the terms of 
his probation.” Pet. App. 7a-8a; see id. at 8a n.2; Gov’t 
Br. 11-14. Thus, the question in this case is not whether 
the supervisory regime at issue here, which involves 
release into the community subject to close monitoring 
by law enforcement officers generally, may be imposed 
on a criminal defendant over his objection. Rather, the 
question is whether a defendant who is offered an alter- 
native (confinement in a penal institution) that is un- 
questionably constitutional as a sanction for commission 
of a criminal act, but who chooses to accept release on 
probation subject to a search condition, may be held to 
the consequences of that choice. Nothing in Griffin 
suggests that the defendant’s consent to search under 
those circumstances is invalid. 

B. A Consent-Search Condition Does Not Conflict 

With “Special Needs” Analysis Generally 

Apart from Griffin, respondent contends (Br. 23-26) 
that the government’s position in this case, on a more 
general level, conflicts with this Court’s “special needs” 
jurisprudence. Respondent argues that the Court has 
not analyzed those cases under the rubric of “consent,” 
even though such cases frequently involve persons who 
become subject to “special needs” searches as a result 
of their voluntary participation in various endeavors. 

6 

The cases on which respondent relies, however, differ 
from this case in significant respects. 

1. Respondent signed a written form by which he 
expressly “AGREE[D]” to “[s]ubmit his * * * person, 
property, place of residence, vehicle, [and] personal 
effects, to search at anytime, with or without a search 
warrant, warrant of arrest or reasonable cause by any 
probation officer or law enforcement officer.” J.A. 50. 
In light of respondent’s explicit written consent, this 
case does not require the Court to determine whether 
or under what circumstances an individual may be 
deemed to have implicitly consented to search by en- 
gaging in specified conduct after receiving notice that 
those who participate in such conduct will be searched. 

2. The plaintiffs in the cases on which respondent 
relies filed suit to challenge the government’s authority 
to condition participation in various public programs on 
their exposure to searches. This Court understandably 
did not analyze their claims under the rubric of consent 
because those plaintiffs had specifically withheld their 
consent.1 None of those cases involved a situation in 
which an individual who had consented to search 
sought to obtain suppression of the evidence that the 
search produced. 

3. A probationer, like a parolee, enjoys only a 
“conditional liberty” rather than “the absolute liberty 
to which every citizen is entitled.” Griffin, 483 U.S. at 
874 (quoting Morrissey v. Brewer, 408 U.S. 471, 480 
(1972)). The choice with which respondent was con- 
fronted—i.e., selecting between consenting to future 
searches as a condition of probation on the one hand, or 

1 In Ferguson v. City of Charleston, 121 S. Ct. 1281 (2001), the 
question of consent was contested, but the Court decided the case 
on the premise that consent had not been given. See id. at 1288. 

7 

submitting to incarceration on the other—was the 
direct result of his conviction of a criminal act, for which 
the State might constitutionally have imprisoned him 
regardless of his preference. Although respondent’s 
status as a probationer did not deprive him of all 
Fourth Amendment protections, see id. at 873, his 
diminished liberty interest is surely relevant to the 
constitutional analysis. The cases cited by respondent 
(see Br. 24-26) do not involve situations in which an 
individual’s potential exposure to search resulted from 
his criminal conviction. 

C. A Probationer’s Consent Need Not Take The 

Form Of A Knowing And Intelligent Waiver In 
Order To Meet Fourth Amendment Standards 

Respondent argues (Br. 26-40) that a criminal defen- 
dant’s consent to a category of future searches is valid 
and enforceable only if it is knowing and intelligent 
under the standards set forth in Johnson v. Zerbst, 304 
U.S. 458, 464-465 (1938). Respondent contends that his 
agreement to submit to future searches does not con- 
stitute a valid consent because he was not specifically 
informed, at the time he signed the probation order, of 
his right to refuse consent. That claim lacks merit. 

In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), 
this Court held that 

the question whether a consent to a search was in 
fact “voluntary” or was the product of duress or 
coercion, express or implied, is a question of fact to 
be determined from the totality of all the circum- 
stances. While knowledge of the right to refuse con- 
sent is one factor to be taken into account, the gov- 
ernment need not establish such knowledge as the 
sine qua non of an effective consent. 

8 

Id. at 227. In Ohio v. Robinette, 519 U.S. 33, 39 (1996), 
this Court reaffirmed the Schneckloth Court’s rejection 
of the argument that a consent to search “could not be 
valid unless the defendant knew that he had a right to 
refuse the request.” 

Respondent acknowledges (Br. 30) that under 
Schneckloth, “the Fourth Amendment protection 
against warrantless searches could be lost through a 
defendant’s voluntary consent to search, even without 
knowledge of the right to decline.” He contends, how- 
ever, that a different rule should apply where, as here, 
a defendant consents to a category of future searches as 
part of the disposition of a criminal charge. Respondent 
argues that “a formal agreement to relinquish Fourth 
Amendment rights in the future, * * * obtained by ‘a 
trial judge in the structured atmosphere of a court- 
room,’ must comply with the Johnson v. Zerbst require- 
ments.” Resp. Br. 32 (quoting Schneckloth, 412 U.S. 
at 244). 

The Court in Schneckloth did note the infeasibility of 
applying the Johnson v. Zerbst standard to the sort 
of fluid encounters that often precede consensual 
searches. See, e.g., 412 U.S. at 245 (“It would be un- 
realistic to expect that in the informal, unstructured 
context of a consent search, a policeman, upon pain of 
tainting the evidence obtained, could make the detailed 
type of examination demanded by Johnson.”). The 
principal thrust of the Court’s analysis, however, was 
that the Johnson v. Zerbst standard was inapplicable to 
Fourth Amendment cases because that standard was 
designed to protect a different sort of constitutional 
right. The Schneckloth Court stated that “[o]ur cases 
do not reflect an uncritical demand for a knowing and 
intelligent waiver in every situation where a person has 
failed to invoke a constitutional protection,” id. at 235, 

9 

and explained that “[a]lmost without exception, the 
requirement of a knowing and intelligent waiver has 
been applied only to those rights which the Consti- 
tution guarantees to a criminal defendant in order to 
preserve a fair trial,” id. at 237. The Court concluded 
that 

[t]here is a vast difference between those rights that 
protect a fair criminal trial and the rights guaran- 
teed under the Fourth Amendment. Nothing, either 
in the purposes behind requiring a “knowing” and 
“intelligent” waiver of trial rights, or in the practical 
application of such a requirement suggests that it 
ought to be extended to the constitutional guarantee 
against unreasonable searches and seizures. 

Id. at 241.2 

Schneckloth therefore does not support respondent’s 
contention that the formal courtroom environment in 
which his consent to search was executed mandated an 
advisement of rights that is not required for consent 
searches generally. To the contrary, that courtroom 
setting, far from casting doubt on the voluntariness of 
respondent’s consent to future searches, provides addi- 
tional assurance that the consent was not the product of 
coercion or duress. The formal and public setting of 

2 Indeed, even with respect to constitutional rights specific to 
the criminal trial process, no categorical rule mandates that a 
defendant must have knowledge of the right before he may validly 
relinquish it. In United States v. Broce, 488 U.S. 563, 573 (1989), 
for example, this Court noted that “[o]ur decisions have not sug- 
gested that conscious waiver is necessary with respect to each 
potential defense relinquished by a plea of guilty.” The Court then 
held that the plea in that case had relinquished a potential defense 
under the Double Jeopardy Clause of which the defendant had no 
knowledge. Id. at 572-574. 

10 

respondent’s consent provides obvious protections 
against official pressure. Moreover, because respon- 
dent was sentenced to 90 days’ imprisonment in addi- 
tion to probation (see Gov’t Br. 2 n.1), he was consti- 
tutionally entitled to be represented by counsel in con- 
nection with the state criminal charge. See Argersinger 

v. Hamlin, 407 U.S. 25, 37 (1972). 
At the time of respondent’s state conviction, the 
established rule of California law was that a criminal 
defendant may not be compelled to accept probation. 
See Gov’t Br. 17. Although the record in this case does 
not reveal whether respondent’s attorney in the state 
proceedings advised him of his right to decline pro- 
bation, the circumstances surrounding respondent’s 
consent to search make it more rather than less likely 
that the consent was the product of an uncoerced 
choice. If police officers in a street encounter are not 
required to inform the potential subject of a search of 
his right to refuse consent, there is no reason to impose 
such a requirement in a setting where the subject is 
afforded substantial alternative protections against the 
deprivation of Fourth Amendment rights. 

D. Respondent’s Consent Was Not Shown To Be 

Compelled By A Claim Of State Authority To 
Search 

Much the same analysis applies to respondent’s con- 
tention (Br. 36-40) that his signature on the probation 
form was not a “consent” to searches at all, but simply 
“acquiescence” to the State’s claim of lawful authority 
to search. The form that respondent signed stated that 
he “AGREE[D] TO ABIDE BY” the conditions of pro- 
bation, including the condition that his person and 
property were subject to search at any time. J.A. 50. 
Respondent’s “AGREE[MENT]” arose out of a formal 

11 

judicial proceeding in which he was constitutionally 
entitled to representation by counsel, and prior de- 
cisions of the California Supreme Court had made clear 
that under state law a criminal defendant could not be 
sentenced to probation over his objection. Indeed, the 
court of appeals in this case, while holding that re- 
spondent’s consent was invalid as applied to searches 
conducted for investigative purposes, recognized that 
respondent “did consent to searches when he agreed to 
the terms of his probation.” Pet. App. 7a-8a. 

This Court’s decision in Zap v. United States, 328 
U.S. 624 (1946), makes clear that an individual’s consent 
to a category of future searches may be deemed valid 
and enforceable even when that consent is a required 
condition for receipt of a valuable government benefit 
(there, government contracts). See Gov’t Br. 15-17. 
Contrary to respondent’s suggestion (Br. 38-40), the 
decision in Zap did not turn on the commercial charac- 
ter of the property that was searched. Indeed, in 
subsequent cases involving residential or personal 
property, the Court has cited Zap as authority for the 
proposition that voluntary consent renders a search 
lawful. See Schneckloth, 412 U.S. at 219; Texas v. 
Brown, 460 U.S. 730, 736 (1983) (plurality opinion); 
Gov’t Br. 17 n.7.3 

3 Respondent also suggests (Br. 40 n.16) that Zap has been 
superseded by this Court’s subsequent decision in United States v. 
Biswell, 406 U.S. 311, 315 (1972), which held that “[i]n the context 
of a regulatory inspection system of business premises that is 
carefully limited in time, place, and scope, the legality of the search 
depends not on consent but on the authority of a valid statute.” 
Biswell, however, did not involve a situation where a business 
owner was required to execute an express contractual consent to 
future searches as a condition of a government benefit. Rather, 
the Court in Biswell simply addressed and rejected the suggestion 

12 

E. The Consent Given By Respondent Was Not An 

Unconstitutional Condition Of His Probation 

“Under the well-settled doctrine of ‘unconstitutional 
conditions,’ the government may not require a person 
to give up a constitutional right * * * in exchange for 
a discretionary benefit conferred by the government 
where the benefit sought has little or no relationship to 
the” right whose waiver is at issue. Dolan v. City of 
Tigard, 512 U.S. 374, 385 (1994); see Gov’t Br. 21-22. 
Respondent contends that the State of California may 
not, consistent with the unconstitutional conditions doc- 
trine, make a criminal defendant’s consent to future 
searches a prerequisite to release on probation. Re- 
spondent argues (Br. 40-44) that the condition is invalid 
because (1) no “essential nexus” exists between the 
condition and the State’s interest in administering its 
probation system, and (2) there is no “rough propor- 
tionality” between the burden imposed on the proba- 
tioner and the government interest that the search 
condition is intended to protect. Those arguments lack 
merit. 

1. Respondent argues (Br. 42-43) that the requisite 
nexus between the search condition and the relevant 
state interest is lacking because “[u]nder Griffin, * * * 
a condition requiring a defendant to submit to non-pro- 
bationary searches cannot be essentially connected to 
the state’s interest in the operation of its probation 

that a business owner had consented to search by failing to resist a 
government agent who asserted a statutory right to inspect the 
premises. Ibid. Here, the government does not contend that 
respondent consented to the search of his apartment by declining 
to offer resistance at the time the search took place. Rather, the 
relevant consent occurred when respondent accepted release on 
probation and agreed to the search condition. 

13 

system.” That argument lacks merit for the reasons 
stated at pages 2-4, supra. A search of a known pro- 
bationer, intended to confirm or dispel a law enforce- 
ment officer’s suspicion of new criminal conduct, is not 
properly characterized as a “non-probationary” search. 
Particularly under a probation scheme that does not 
involve supervision by a probation officer, the re- 
quirement that a defendant consent to search by law 
enforcement officers if he is to be released on probation 
bears a direct relationship to the State’s interest in 
ensuring that probationers comply with the terms of 
their release so that “the probation serves as a period of 
genuine rehabilitation and * * * the community is not 
harmed by the probationer’s being at large.” Griffin, 
483 U.S. at 875. 

2. Assuming that some form of the “rough pro- 
portionality” test articulated in Dolan (512 U.S. at 391) 
extends beyond required dedications of real property 
interests and applies to unconstitutional-conditions 
claims generally, that test is satisfied here. “[I]t is the 
very assumption of the institution of probation that the 
probationer is in need of rehabilitation and is more 
likely than the ordinary citizen to violate the law.” 
Griffin, 483 U.S. at 880. The probationer’s knowledge 
that his person or property may be searched at any 
time can reasonably be expected to reduce the fre- 
quency of probation violations. See id. at 876 
(imposition of warrant requirement for searches of 
probationers “would reduce the deterrent effect that 
the possibility of expeditious searches would otherwise 
create”). (That is so even assuming, arguendo, that 
indiscriminate or too-frequent searches might under- 
mine the rehabilitative aspects of probation, see Resp. 
Br. 43 n.17.) And searches by law enforcement officers 

14 

can reveal the existence of probation violations that 
might otherwise have gone undetected. 

The proportionality of the consent-search condition is 
also supported by the fact that if a prisoner chose incar- 
ceration rather than release on probation, he would be 
subject to wholly random searches in prison. An incar- 
cerated prisoner has no expectation of privacy in his 
cell. See Hudson v. Palmer, 468 U.S. 517, 522-530 
(1984). Thus, the consent-search condition does not in- 
volve an intrusion on privacy that deprives the defen- 
dant of a right he would otherwise enjoy if he elected to 
remain in prison. Accordingly, the requirement that a 
defendant consent to future searches in order to receive 
probation is proportionate both to the threat to public 
safety that the defendant’s release may pose and to the 
limited privacy interests possessed by a convicted de- 
fendant whose alternative to probation is imprison- 
ment. 

Respondent contends (Br. 42) that “in the Fourth 
Amendment context, the inquiry under unconstitu- 
tional conditions would mirror the inquiry the Court 
currently performs under the ‘special needs’ analysis.” 
While this Court has never so held, as a practical mat- 
ter, the choice between the two approaches is unlikely 
to have outcome-determinative effects—and would not 
do so here—so long as respondent’s right to refuse 
probation on the state charge is recognized as relevant 
to the “special needs” balancing. In Vernonia School 
District 47J v. Acton, 515 U.S. 646 (1995), for example, 
this Court employed “special needs” analysis in con- 
cluding that student athletes could constitutionally be 
required to undergo random drug testing as a condition 
of participation in interscholastic sports. Id. at 652-666. 
In concluding that such testing imposed no substantial 
intrusion on the students’ legitimate privacy expecta- 

15 

tions, the Court relied in part on the diminished privacy 
expectations of elementary and secondary school 
students generally. See id. at 654-657. The Court also 
observed, however, that “[t]here is an additional re- 
spect in which school athletes have a reduced expec- 
tation 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.” Id. at 657. Similarly here, if this Court 
were to scrutinize the consent-search condition under 
the rubric of “special needs,” respondent’s right under 
California law to decline probation and to accept an un- 
questionably constitutional alternative sanction would 
be directly relevant to the Fourth Amendment analysis 
and would support the conclusion that the consent- 
search condition is reasonable.4 

3. Respondent’s reliance (Br. 43-44) on Minnesota v. 
Murphy, 465 U.S. 420 (1984), is misplaced. The Court 
in Murphy suggested, though it did not squarely hold, 
that the government may not make release on pro- 
bation contingent on an individual’s willingness to forgo 
exercise of his Fifth Amendment privilege against self- 
incrimination (although the probationer’s failure to 
provide required answers can support or contribute to a 
revocation of probation). See id. at 435 & n.7. Uphold- 
ing the search condition here, however, does not imply 

4 The likelihood that few defendants would prefer imprison- 
ment to probation with a consent-search condition does not render 
the consent involuntary as a matter of law. See Gov’t Br. 24. If 
the conditions of probation were made substantially more onerous, 
so that many defendants believed release on probation to be less 
desirable than incarceration, the constitutional relevance of the 
defendant’s right to choose between the two sanctions would be 
apparent. The State does not negate the element of choice by 
making the terms of probation more favorable to the defendant. 

16 

that release on probation may be conditioned on a re- 
nunciation of any and all constitutional rights. See 
Gov’t Br. 22. And there is no basis for respondent’s 
effort to extrapolate any Fifth Amendment rule found 
in Murphy to the Fourth Amendment context pre- 
sented here. The probationer in Murphy sought to 
assert a right (protection against compelled self- 
incrimination) that an incarcerated prisoner would 
retain. Here, by contrast, respondent, by agreeing to 
the consent-search condition, did not surrender any 
Fourth Amendment protection that he would have had 
if he had chosen (or California had imposed) the alter- 
native sanction of imprisonment. See Hudson v. 
Palmer, supra. 

* * * * * 

For the reasons stated above and in our opening 
brief, the judgment of the court of appeals should be 
reversed. 

Respectfully submitted. 

THEODORE B. OLSON 

Solicitor General 

SEPTEMBER 2001