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 

BRIEF FOR THE UNITED STATES 

THEODORE B. OLSON 

Solicitor General 

Counsel of Record 

MICHAEL CHERTOFF 

Assistant Attorney General 

MICHAEL R. DREEBEN 

Deputy Solicitor General 

MALCOLM L. STEWART 

Assistant to the Solicitor 

General 

KIRBY HELLER 

Attorney 

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

QUESTION PRESENTED 

Whether respondent’s agreement to a term of pro- 
bation that authorized any law enforcement officer to 
search his person or premises with or without a war- 
rant, and with or without individualized suspicion of 
wrongdoing, constituted a valid consent to a search by a 
law enforcement officer investigating crimes. 

(I) 

TABLE OF CONTENTS 

Page 

Opinion below ................................................................................. 
1 

Jurisdiction ...................................................................................... 1 

Constitutional provision involved ............................................... 
2 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 
7 

Argument: 

A search to investigate criminal activity based on the 

consent of a probationer given as a condition of release 

from custody is valid under the Fourth Amendment ..... 

10 

A. Respondent’s consent extends by its terms to 

searches conducted for investigative 

purposes .......................................................................... 11 

B. Respondent’s consent to search was valid and 

enforceable as applied to searches conducted for 

investigative purposes ................................................. 
14 

1. An individual may voluntarily give advance 

consent to a search .................................................. 

14 

2. The relinquishment of a constitutional right 

may be made through an agreement with the 

government .............................................................. 18 

3. Requiring consent to search as a condition of 

probation is not an unconstitutional condition ... 
21 

4. A probationer’s consent to search is not invalid 

simply because the alternative is imprison- 
ment ........................................................................... 23 

5. There is no basis for limiting the validity of 

respondent’s consent to “probation searches” ... 
24 

Conclusion ....................................................................................... 29 

(III) 

IV 

TABLE OF AUTHORITIES 

Cases: Page 

Bond v. United States, 529 U.S. 334 (2000) ....................... 

25 

Bordenkircher v. Hayes, 434 U.S. 357 (1978) ............... 

20, 21 

Brady v. United States, 397 U.S. 742 (1970) ..................... 

18, 19 

Bumper v. North Carolina, 391 U.S. 543 (1968) .............. 

15 

Bushman, In re, 1 Cal. 3d 767 (1970) ................................... 

17, 22 

City of Indianapolis v. Edmond, 121 S. Ct. 447 

(2000) ........................................................................................ 25 

Corbitt v. New Jersey, 439 U.S. 212 (1978) ....................... 

19 

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

22 

Florida v. Jimeno, 500 U.S. 248 (1991) ...................... 

12, 24-25 

Griffin v. Wisconsin, 483 U.S. 868 (1987) .... 13, 20, 22, 27, 28, 29 

Illinois v. Rodriguez, 497 U.S. 177 (1990) ......................... 

14, 26 

Katz v. United States, 389 U.S. 347 (1967) ........................ 

17 

McGautha v. California, 402 U.S. 183 (1971) ................... 

19 

New York v. Hill, 528 U.S. 110 (2000) ................................ 

15 

North Carolina v. Alford, 400 U.S. 25 (1970) ................... 

19 

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

18 

People v. Bravo, 43 Cal. 3d 600 (1987), cert. denied, 

485 U.S. 904 (1988) ................................................. 

11, 12, 13, 21 

People v. Mason, 5 Cal. 3d 759 (1971), cert. denied, 

405 U.S. 1016 (1972) ...................................................... 

11, 17, 22 

People v. Reyes, 19 Cal. 4th 743 (1998), cert. denied, 

526 U.S. 1092 (1999) .............................................................. 

18 

People v. Robles, 23 Cal. 4th 789 (2000) ............................. 

13 

People v. Woods, 21 Cal. 4th 668 (1999), cert. 

denied, 529 U.S. 1023 (2000) ..................................... 

6, 13, 14, 17 

Peretz v. United States, 501 U.S. 923 (1991) ..................... 

15 

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

7, 14, 

15, 17, 18 
Texas v. Brown, 460 U.S. 730 (1983) .................................. 

17 

Tyrell J., In re, 8 Cal. 4th 68 (1994), cert. denied, 514 

U.S. 1068 (1995) ...................................................................... 17-18 

V 

Cases—Continued: Page 

United States v. Mezzanatto, 513 U.S. 196 

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

15, 19 

United States v. Olano, 507 U.S. 725 (1993) ..................... 

18 

United States v. Ooley, 116 F.3d 370 (9th Cir. 

1997), cert. denied, 524 U.S. 963 (1998) ............................. 

4, 11 

Washington v. Chrisman, 455 U.S. 1 (1982) ..................... 

14 

Whren v. United States, 517 U.S. 806 (1996) .................... 

6, 9, 

13, 25, 26 

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

8, 15, 16 

330 U.S. 800 (1947) ................................................................ 

17 

Constitution and statutes: 

U.S. Const.: 

Amend. I .................................................................................. 

22 

Amend. IV .......................................................................... passim 

18 U.S.C. 371 .............................................................................. 

4 

18 U.S.C. 844(i) (1994 & Supp. V 1999) ................................. 

4 

18 U.S.C. 922(g)(1) .................................................................... 

4 

Cal. Health & Safety Code § 11550(a) (West 1991) ............ 

2 

Miscellaneous: 

4 Wayne R. LaFave, Search and Seizure: A Treatise 
on the Fourth Amendment (3d ed. 1996) .......................... 23 

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 

BRIEF FOR THE UNITED STATES 

OPINION BELOW 

The opinion of the court of appeals (Pet. App. 1a-14a) 
is reported at 219 F.3d 1138. 

JURISDICTION 

The judgment of the court of appeals was entered on 
August 3, 2000. A petition for rehearing was denied on 
October 5, 2000 (Pet. App. 39a). On December 26, 2000, 
Justice O’Connor extended the time within which to 
file a petition for a writ of certiorari to and including 
February 2, 2001. The petition for certiorari was filed 
on February 2, 2001, and was granted on May 14, 2001. 
The jurisdiction of this Court rests on 28 U.S.C. 1254(1). 

(1) 

2 

CONSTITUTIONAL PROVISION INVOLVED 

The Fourth Amendment to the United States Consti- 
tution provides: 

The right of the people to be secure in their 
persons, houses, papers, and effects, against 
unreasonable searches and seizures, shall not be 
violated, and no Warrants shall issue, but upon 
probable cause, supported by Oath or affirmation, 
and particularly describing the place to be searched, 
and the persons or things to be seized. 

STATEMENT 

1. On May 29, 1998, respondent Mark James Knights 
was placed on three years’ summary probation for 
a violation of California Health and Safety Code 
§ 11550(a) (West 1991).1 Section 11550(a) makes it a 
misdemeanor for any person to use, or be under the 
influence of, specified controlled substances. Summary 
probation in California does not involve direct super- 
vision by a probation officer. Pet. App. 4a. Among the 
terms stated on the probation order form was that 
respondent would “[s]ubmit his * * * person, pro- 
perty, 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; Pet. App. 
4a. Respondent signed the form, which stated (immedi- 

1 See J.A. 36-37, 50. On that same date, respondent was sen- 
tenced to 90 days in jail, to commence on August 3, 1998. J.A. 50. 
Thus, respondent was sentenced to a term of probation of slightly 
more than two months, to be followed by a jail term of 90 days, to 
be followed by an additional period of probation. The events that 
gave rise to the present controversy occurred within the first week 
of respondent’s initial probation period. 

3 

ately above respondent’s signature): “I HAVE RE- 
CEIVED A COPY, READ AND UNDERSTAND THE 
ABOVE TERMS AND CONDITIONS OF PROBATION 
AND AGREE TO ABIDE BY SAME.” J.A. 50. 

Three days after respondent was placed on pro- 
bation, a Pacific Gas & Electric (PG&E) power trans- 
former and adjacent Pacific Bell telecommunications 
vault near the Napa County Airport were pried open 
and set on fire with an incendiary device using a gaso- 
line accelerant, causing an estimated $1.5 million in 
damage. Pet. App. 2a-3a; J.A. 45. Respondent had 
been suspected of prior acts of vandalism against 
PG&E property, based on his longstanding grudge 
against the company stemming from a theft-of-services 
complaint made against him by PG&E investigators 
and a prior discontinuation of respondent’s electrical 
services for failure to pay his bill. He therefore 
immediately became a suspect in this case. J.A. 11-12, 
35-36; Pet. App. 2a. On June 3, 1998, after the sheriff ’s 
office had made a variety of observations that sug- 
gested that respondent might be involved in the van- 
dalism,2 a sheriff ’s detective searched respondent’s 
apartment, relying on the consent-to-search condition 
of respondent’s probation order. Pet. App. 4a.3 Based 

2 Shortly after the arson, a sheriff ’s deputy drove by 
respondent’s residence and noticed that the hood of the pick-up 
truck parked in front was warm, suggesting a recent arrival. In 
addition, an associate of respondent was seen disposing of what 
appeared to be pipe bombs, and the associate’s pick-up truck 
contained explosive materials and brass padlocks that appeared to 
match those taken from the PG&E power vault. Pet. App. 3a-4a; 
J.A. 14-16, 35-40. 

3 The officer who conducted the search subsequently attested 
that before searching respondent’s apartment, he was aware that 
respondent was on probation “and that his residence was subject 

4 

on the evidence found in the search—including 
detonation cord, ammunition, liquid chemicals, 
chemistry and electrical manuals, drug paraphernalia, 
and a brass padlock stamped “PG&E”—respondent was 
arrested. J.A. 17; Pet. App. 4a-5a; C.A. E.R. 54. 

2. Respondent was subsequently indicted by a 
federal grand jury for conspiracy to commit arson, in 
violation of 18 U.S.C. 371 and 18 U.S.C. 844(i) (1994 & 
Supp. V 1999); and for being a felon in possession of a 
firearm, in violation of 18 U.S.C. 922(g)(1). J.A. 7-10. 
Respondent moved to suppress the evidence obtained 
in the June 3 search. Pet. App. 5a. 

Relying principally on the Ninth Circuit’s decision in 
United States v. Ooley, 116 F.3d 370 (1997), cert. 
denied, 524 U.S. 963 (1998), the district court granted 
respondent’s motion to suppress. Pet. App. 15a-38a. 
The court explained that “[a]lthough not directly 
addressing the consent issue, [Ooley], implicitly if not 
directly, stands for the proposition that acceptance of a 
search clause as a condition of probation does not fully 
abrogate a defendant’s Fourth Amendment rights.” Id. 
at 25a. The court found that the detective who 

to search at any time, with or without a warrant, warrant of arrest 
or probable cause, by any probation officer or law enforcement 
officer.” J.A. 20. The officer explained that under California law, 
he was entitled to conduct such a search without prior approval 
from any probation officer, J.A. 20-21, and that in any event “be- 
cause [respondent] was on summary probation, there was no pro- 
bation officer specifically assigned to [respondent] that [the officer] 
could contact,” J.A. 21. The officer further explained that at the 
time he conducted the search, he “believed there was probable 
cause to obtain a warrant to search [respondent’s] apartment 
based upon [the officer’s] ongoing investigation of [respondent’s] 
criminal activities,” and that he would have applied for such a 
warrant if the search condition had not been applicable. Ibid.; see 
also J.A. 27. 

5 

conducted the search had a “reasonable suspicion” that 
respondent may have been involved with incendiary 
materials, “the manufacture of which would be 
inconsistent with the rehabilitative aspects of his pro- 
bation.” Id. at 30a. The court held, however, that the 
search was conducted for the purpose of obtaining evi- 
dence in a criminal investigation into arson or manu- 
facture of incendiary devices. Id. at 33a. Based on its 
conclusion that the search of respondent’s house was 
undertaken for investigative rather than probationary 
purposes, the court held that the search was invalid and 
that the items seized therein should be suppressed. Id. 
at 33a-37a. 

3. The court of appeals affirmed. Pet. App. 1a-14a. 
The court of appeals acknowledged that “a person 
can consent to a search of his home,” and that “[t]here 

* * * can be little doubt that [respondent] did consent 
to searches when he agreed to the terms of his pro- 
bation.” Pet. App. 7a-8a. The court stated, however, 
that prior Ninth Circuit decisions “have made it clear 
that [a probationer’s] consent must be seen as limited to 
probation searches, and must stop short of investigation 
searches. We simply have refused to recognize the 
viability of a more expansive probationary consent to 
search term.” Id. at 8a. The court of appeals found no 
clear error in the district court’s determination that the 
sheriff ’s department was investigating criminal activ- 
ity, rather than conducting a “probation search,” since 
the searching officer was interested in “ending the 
string of crimes” of which respondent was suspected 
and was not “interested in [respondent’s] rehabilita- 
tion.” Id. at 10a. While acknowledging that the search- 
ing officer in this case “had drawn some very good 
inferences from the facts,” the court found that the 
officer “was using the probation term as a subterfuge to 

6 

enable him to search [respondent’s] home without a 
warrant.” Ibid.4 

The court of appeals also rejected the government’s 
contention that Whren v. United States, 517 U.S. 806 
(1996), had superseded prior Ninth Circuit decisions 
distinguishing between probation searches and investi- 
gation searches. The Court in Whren held that a traffic 
stop based on probable cause is objectively reasonable, 
and therefore valid under the Fourth Amendment, re- 
gardless of the subjective motivation of the seizing 
officer. Id. at 811-819. The court of appeals found that 
holding to be inapplicable to this case, explaining that 

[h]ere the issue is not whether a search or seizure 
with probable cause should be invalidated because 
of an officer’s subjective intentions. It is, rather, 
whether, without another basis for a warrantless 
home search, there was consent to the search in the 
first place. That is a different question entirely. It 
depends on whether the consent covers what the 
officer did. 

Pet. App. 11a. The court acknowledged that “the Cali- 
fornia Supreme Court disagrees with our Whren 
analysis.” Ibid. (citing People v. Woods, 21 Cal. 4th 668, 
677-681 (1999), cert. denied, 529 U.S. 1023 (2000)). It 
stated, however, that the California Supreme Court 
“does not control our reading of federal constitutional 

4 The court of appeals acknowledged that “a true probation 
search can serve th[e] ends” of deterring the probationer from en- 
dangering the community and engaging in additional criminal 
activity. Pet. App. 13a. The court refused, however, to hold that 
the search in this case could be sustained as serving the same 
purposes. The court stated that to uphold the search on that basis 
would “indirectly eliminate our cases which rely on the difference 
between probation and investigation searches.” Ibid. 

7 

law, and for the reasons already stated, we find its 
analysis unpersuasive.” Ibid. 

SUMMARY OF ARGUMENT 

As a condition of his probation, respondent agreed to 
submit his person and property to a search at any time, 
with or without a search warrant or reasonable cause, 
at the request of any probation or law enforcement 
officer. That consent to search was valid and rendered 
the search of respondent’s house by law enforcement 
officers reasonable within the meaning of the Fourth 
Amendment. 

A. By its plain terms, respondent’s consent extended 
to searches conducted for the purpose of investigating 
possible violations of the criminal law. There is no 
language in the consent form that limits its scope to 
searches conducted for any particular reason. And 
decisions of the California Supreme Court interpreting 
similar or identical consent-to-search provisions in 
other probation agreements confirm that searches con- 
ducted for investigative purposes fall within the scope 
of the consent. Accordingly, the search conducted of 
respondent’s house was within the scope of his con- 
sent and was therefore reasonable, unless the Fourth 
Amendment rendered the consent invalid. 

B. A consent to search in a probation agreement is 
valid and enforceable as applied to a search conducted 
for investigative purposes. Nothing in the Fourth 
Amendment prevents a defendant from granting such 
consent as a condition of release on probation. 

1. A search conducted pursuant to voluntary consent 
need not be based on probable cause or authorized by a 
judicial warrant. See Schneckloth v. Bustamonte, 412 
U.S. 218, 222 (1973). While consent must be given 
voluntarily, a consent to search may be voluntary even 

8 

if it is motivated by a desire to avoid some concrete 
disadvantage or to obtain a benefit from the govern- 
ment. An individual may also give valid and binding 
prospective consent to a category of searches to be 
performed at unspecified times in the future. See Zap 

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

2. The rule that consent renders a search lawful 
accords with the general principle that an individual 
may choose to forgo assertion of his constitutional 
rights, either unilaterally or pursuant to an agreement 
with the government under which he receives a pro- 
mise of favorable treatment. For example, the Court 
has repeatedly recognized that a criminal defendant’s 
guilty plea may be valid and enforceable even when it is 
motivated by the defendant’s belief that he is likely to 
face greater punishment if he proceeds to trial. A de- 
fendant may similarly agree to conditions on his re- 
lease, rather than face the more onerous restrictions 
on his liberty that he would experience as a prisoner. 
Enforcing such consent-to-search terms furthers the 
long-term interests of defendants as a class, since trial 
judges might be less willing to offer probation if they 
lacked assurance that the probationer’s compliance 
with the conditions of release could be closely 
monitored. 

3. This Court’s “unconstitutional conditions” juris- 
prudence suggests that a State may not condition an 
individual’s release on probation on his agreement to 
waive a constitutional right that is wholly unrelated to 
his status as a probationer. A requirement that pro- 
bationers consent to search, however, directly furthers 
the State’s interest in the effective administration of its 
probation system. Because the premise of conditional 
release is that probationers require more careful moni- 
toring than the average citizen, consents to such moni- 

9 

toring through searches are reasonably related to the 
benefit offered by the government as a quid pro quo. 

4. A probationer’s consent to search given as a 
condition of release is not rendered involuntary by the 
fact that the alternative is incarceration. This Court 
has repeatedly recognized that a guilty plea is not 
rendered involuntary simply because it is motivated by 
a desire to avoid greater punishment. Likewise, the 
voluntariness of the consent term at issue here cannot 
be attacked on the ground that release on probation, 
even with a consent-to-search condition, is substantially 
less onerous than incarceration. The government does 
not coerce an individual simply by presenting him with 
a choice in which one of the alternatives is plainly more 
attractive than the other. 

5. There is no sound basis for limiting the validity of 
a probationer’s consent to “probation” searches rather 
than “investigation” searches. As an initial matter, the 
validity of a consent search should not turn on the sub- 
jective motivation of the searching officer, but should 
turn instead on the objective justification for the intru- 
sion in question. See Whren v. United States, 517 U.S. 
806 (1996). In any event, because the most fundamental 
term of probation is that an individual must refrain 
from committing further crimes, a search intended to 
confirm or dispel the suspicion that a probationer has 
engaged in additional criminal activity directly serves a 
core probation purpose. 

10 

ARGUMENT 

A SEARCH TO INVESTIGATE CRIMINAL ACTIV- 
ITY BASED ON THE CONSENT OF A PRO- 
BATIONER GIVEN AS A CONDITION OF RELEASE 
FROM CUSTODY IS VALID UNDER THE FOURTH 
AMENDMENT 

Respondent was required, as one of the conditions of 
his probation, to “[s]ubmit his * * * person, property, 
place of residence, vehicle, 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. Respondent signed a 
form that stated: “I HAVE RECEIVED A COPY, READ 
AND UNDERSTAND THE ABOVE TERMS AND CON- 
DITIONS OF PROBATION AND AGREE TO ABIDE BY 
SAME.” Ibid. The California Supreme Court has 
repeatedly held that a criminal defendant’s execution of 
such a form constitutes a valid and enforceable consent 
to future searches. In reaching that conclusion, that 
court has relied on the fact that, as a matter of Cali- 
fornia law, a defendant cannot be compelled to accept 
probation against his will. Because the defendant’s 
acceptance of probation reflects a voluntary choice, the 
California Supreme Court has explained, a search con- 
ducted pursuant to a term of the probation agreement 
like the one quoted above is properly treated as 
consensual and therefore reasonable under the Fourth 
Amendment. See pp. 11-12, 17, infra. 

The court of appeals recognized in this case that “a 
person can consent to a search of his home,” and that 
respondent “did consent to searches when he agreed to 
the terms of his probation.” Pet. App. 7a-8a. The court 
concluded, however, that respondent’s “consent must 

11 

be seen as limited to probation searches, and must stop 
short of investigation searches.” Id. at 8a. That 
conclusion is incorrect. Both the language of the con- 
sent form and its consistent interpretation by the 
California courts support the conclusion that respon- 
dent consented to searches for any reason, not simply to 
“probation searches.” And the consent that respondent 
gave is valid under the Fourth Amendment and thus 
justifies the search in this case. 

A. Respondent’s Consent Extends By Its Terms To 

Searches Conducted For Investigative Purposes 

1. A consent-to-search term, sometimes known as a 
“Fourth Waiver,” see United States v. Ooley, 116 F.3d 
370, 371 (9th Cir. 1997), cert. denied, 524 U.S. 963 
(1998), is a common term of probation in California. The 
California Supreme Court has held that persons con- 
victed of crimes within the State may properly be 
required to consent to future warrantless searches as a 
condition of probation, and that a consent to search 
obtained in that manner is valid and enforceable. See, 

e.g., People v. Bravo, 43 Cal. 3d 600, 605-611 (1987), 
cert. denied, 485 U.S. 904 (1988); People v. Mason, 5 
Cal. 3d 759, 764-766 (1971), cert. denied, 405 U.S. 1016 
(1972). That court has also held that a state pro- 
bationer’s consent to search is not ordinarily limited to 
searches based on individualized suspicion of wrong- 
doing. Before the decision in Bravo, “some [California] 
Courts of Appeal ha[d] held that search conditions in 
probation agreements require ‘reasonable cause’— 
defined as something less than probable cause—to 
search.” Bravo, 43 Cal. 3d at 607. In Bravo, however, 
the California Supreme Court held that “if a sentencing 
judge believes that a ‘reasonable cause’ requirement is 
warranted in the particular case, * * * he has the 

12 

discretion to place such language in the probation 
search condition. Absent such express language, how- 
ever, a reasonable-cause requirement will not be im- 
plied.” Id. at 607 n.6. 

2. As this Court explained in Florida v. Jimeno, 500 
U.S. 248, 251 (1991), “[t]he standard for measuring the 
scope of a suspect’s consent under the Fourth Amend- 
ment is that of ‘objective’ reasonableness—what would 
the typical reasonable person have understood by the 
exchange between the officer and the suspect?” As a 
condition of probation, respondent agreed without 
qualification 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; Pet. App. 
4a. There is no language in that consent that limits its 
scope to searches conducted for a particular reason. To 
the contrary, respondent’s express consent to searches 
“by any probation officer or law enforcement officer” 
belies any inference of a distinction between probation 
and investigation searches. 

3. Because consent-to-search terms similar or identi- 
cal to this one are frequently included in California 
probation agreements, a “reasonable person” in respon- 
dent’s position would be justified in construing the 
agreement by reference to California Supreme Court 
precedents. Relevant state court authority makes clear 
that a consent search provision like respondent’s is not 
limited to “probation searches.” 
In People v. Bravo, supra, the court upheld a search 
by law enforcement officers who were acting on a tip 
that the probationer was involved in the sale of nar- 
cotics. 43 Cal. 3d at 602-603. The court made clear that 
the consent authorized searches to fulfill “the rehabili- 

13 

tative and reformative purposes of probation or other 
legitimate law enforcement purposes.” Id. at 610 
(emphasis added). In People v. Woods, 21 Cal. 4th 668 
(1999), cert. denied, 529 U.S. 1023 (2000), the court held 
that a comparable consent-to-search provision author- 
ized a search of the probationer’s residence “whether 
the purpose of the search is to monitor the probationer 
or to serve some other law enforcement purpose, or 
both.” Id. at 681; see id. at 678 (explaining that this 
Court’s decision in Griffin v. Wisconsin, 483 U.S. 868 
(1987), “supports the general conclusion that a regula- 
tion allowing warrantless searches of probationers 
serves to promote the rehabilitative purposes of pro- 
bation and to protect the public from probationer 
misconduct”) (emphasis added). In People v. Robles, 23 
Cal. 4th 789, 795 (2000), the court similarly observed 
that “[b]y allowing close supervision of probationers, 
probation search conditions serve to promote rehabili- 
tation and reduce recidivism while helping to protect 
the community from potential harm by probationers.” 
The pertinent California Supreme Court decisions 
therefore provide no basis on which respondent could 
plausibly have understood his own consent to exclude 
searches conducted for investigative purposes.5 

5 In Woods the court accepted, as supported by substantial 
evidence, the trial court’s finding that the searching officer’s “sole 
reason for searching the [probationer’s] residence was to discover 
evidence against [the probationer’s boyfriend] and not to investi- 
gate whether [the probationer] had violated her probation.” 21 
Cal. 4th at 674. The court nevertheless held that the search was 
authorized by the consent that the probationer had given as a 
condition of release on probation. Id. at 674-682. The court in 
Woods concluded that a focus on the subjective intent of the 
searching officer was inconsistent with this Court’s decision in 
Whren v. United States, 517 U.S. 806 (1996). 21 Cal. 4th at 678- 

14 

In short, neither the text of respondent’s probation 
agreement, nor prior California Supreme Court cases 
involving similar agreements, furnish any basis for con- 
struing respondent’s consent to exclude searches 
conducted for investigative purposes. Rather, respon- 
dent gave unqualified consent to searches by law en- 
forcement officers and probation officers regardless of 
their purpose. That consent authorized the search in 
this case unless, as a matter of constitutional law, a 
consent of that character is invalid. As we now show, 
respondent’s consent is not constitutionally infirm. 

B. Respondent’s Consent To Search Was Valid And 

Enforceable As Applied To Searches Conducted 
For Investigative Purposes 

1. An individual may voluntarily give advance 
consent to a search 

Although the Fourth Amendment generally requires 
that a search be authorized by a judicial warrant based 
upon probable cause, it is “well settled that one of the 
specifically established exceptions to the requirements 
of both a warrant and probable cause is a search that is 
conducted pursuant to consent.” Schneckloth v. 
Bustamonte, 412 U.S. 218, 219 (1973); accord, e.g., 
Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); Wash- 
ington v. Chrisman, 455 U.S. 1, 9-10 (1982). That 
principle is consistent with the general rule, articulated 
“in the context of a broad array of constitutional and 

680. It explained that “whether the purpose of the search is to 
monitor the probationer or to serve some other law enforcement 
purpose, or both, the search in any case remains limited in scope to 
the terms articulated in the search clause and to those areas of the 
residence over which the probationer is believed to exercise 
complete or joint authority.” Id. at 681 (citation omitted). 

15 

statutory provisions,” that “presumes the availability of 
waiver.” New York v. Hill, 528 U.S. 110, 114 (2000) 
(internal quotation marks omitted); see also United 
States v. Mezzanatto, 513 U.S. 196, 201 (1995) (“[a] 
criminal defendant may knowingly and voluntarily 
waive many of the most fundamental protections af- 
forded by the Constitution”); Peretz v. United States, 
501 U.S. 923, 936 (1991) (“The most basic rights of 
criminal defendants are * * * subject to waiver.”). 

Consent must be voluntary to be constitutionally 
valid, Schneckloth, 412 U.S. at 222; Bumper v. North 
Carolina, 391 U.S. 543, 548 (1968), but an individual’s 
consent to search may be deemed voluntary, for Fourth 
Amendment purposes, even if it is motivated by the 
subject’s belief that refusal to consent will result in 
concrete disadvantages. In describing the benefits of 
consent searches, the Court in Schneckloth observed 
that “[i]f the [consent] search is conducted and proves 
fruitless, that in itself may convince the police that an 
arrest with its possible stigma and embarrassment is 
unnecessary, or that a far more extensive search pur- 
suant to a warrant is not justified. In short, a search 
pursuant to consent may result in considerably less 
inconvenience for the subject of the search.” 412 U.S. 
at 228. Plainly, then, a consent search cannot be found 
involuntary simply because an individual consents out 
of a desire to avoid a greater intrusion. 

This Court’s decision in Zap v. United States, 328 
U.S. 624 (1946), reflects the view that an individual’s 
consent to search may be deemed voluntary even when 
that consent is a required condition for receipt of a 
valuable government benefit. The petitioner in Zap 
“entered into contracts with the Navy Department 
under which he was to do experimental work on air- 
plane wings and to conduct test flights.” Id. at 626. 

16 

Pursuant to statutory requirement (ibid.), the contract 
between the parties stated that “[t]he accounts and 
records of the contractor shall be open at all times to 
the Government and its representatives, and such 
statements and returns relative to costs shall be made 
as may be directed by the Government.” Id. at 627. 
Government agents subsequently inspected petitioner’s 
business books and records over his objection. Ibid. 
This Court held that the search was lawful, explaining 
that “when petitioner, in order to obtain the Govern- 
ment’s business, specifically agreed to permit inspec- 
tion of his accounts and records, he voluntarily waived 
such claim to privacy which he otherwise might have 
had as respects business documents related to those 
contracts.” Id. at 628.6 

Zap further establishes the proposition—central to 
this case—that a consent to search may be granted in 
advance, and without specific restrictions. The defen- 
dant in Zap did not give consent at the time the search 
was conducted; to the contrary, he attempted (unsuc- 
cessfully) to prevent the search from occurring. 328 
U.S. at 627. The Court nevertheless found that the 
defendant was bound by his prior contractual commit- 
ment to permit inspection of his books and records. 
Zap makes clear that an individual may give valid and 

6 The three dissenting Justices in Zap were of the view that an 
unlawful seizure had occurred in the course of the search and that 
the seized item therefore should not have been admitted into evi- 
dence at petitioner’s trial. See 328 U.S. at 632-633 (Frankfurter, J., 
dissenting). Those Justices agreed with the majority, however, 
that “the Government had authority, as a result of its contract with 
the petitioner and the relevant statutes, to inspect the petitioner’s 
books and records.” Id. at 632. 

17 

binding prospective consent to a category of searches to 
be performed at unspecified times in the future.7 

Under California law, a criminal defendant may not 
be compelled to accept probation. Rather, “[i]f the 
defendant considers the conditions of probation more 
harsh than the sentence the court would otherwise 
impose, he has the right to refuse probation and under- 
go the sentence.” People v. Mason, 5 Cal. 3d at 764 
(quoting In re Bushman, 1 Cal. 3d 767, 776 (1970)). But 
under Zap, a defendant may validly choose to accept 
the benefits of release with an advance consent to 
search in lieu of the prison sentence that would other- 
wise be carried out. Id. at 765 (“The Zap case is 
controlling here, for it upheld the validity of an advance 
waiver of Fourth Amendment rights akin to the pro- 
visions of the probation condition before us.”).8 

7 The judgment in Zap was subsequently vacated on other 
grounds. See Zap v. United States, 330 U.S. 800 (1947). This 
Court has continued to treat Zap as good law, however, and has 
cited it as authority for the proposition that a search based on 
consent is lawful notwithstanding the absence of a judicial warrant 
and/or probable cause. See Schneckloth, 412 U.S. at 219; Katz v. 
United States, 389 U.S. 347, 358 n.22 (1967); Texas v. Brown, 460 
U.S. 730, 736 (1983) (plurality opinion). 

8 In assessing the validity of Fourth Waiver searches of adult 
probationers, the California Supreme Court has continued to rely 
on a consent rationale. See People v. Woods, 21 Cal. 4th at 674-676. 
That court has recognized, however, that parolees and juvenile 
probationers, who are not offered the opportunity to decline 
conditional release, cannot be said to have consented to searches 
conducted without a warrant and/or probable cause. In validating 
warrantless searches of such offenders without particularized 
cause, the California Supreme Court has instead relied on the 
theory that such persons have a reduced expectation of privacy in 
light of the conditional nature of their release, and that the interest 
in maintaining close supervision of such persons justifies the 
intrusions in question. See In re Tyrell J., 8 Cal. 4th 68, 81-90 

18 

2. The relinquishment of a constitutional right may 
be made through an agreement with the govern- 
ment 

The rule that an individual may voluntarily consent 
to a search that might otherwise be prohibited by the 
Fourth Amendment accords with the general principle 
that an individual may, within broad limits, enter into 
agreements with the government under which he for- 
goes the exercise of constitutional rights in return for a 
promise of favorable treatment. Such agreements are 
not rendered unenforceable simply because the waiver 
of rights is prompted by the desire to obtain a benefit 
or avoid a burden, or because the individual is forced to 
choose between unattractive alternatives.9 

This Court has repeatedly recognized that a criminal 
defendant’s guilty plea, which waives a panoply of trial 
rights, may be valid and enforceable even where it is 
motivated by the defendant’s belief that he is likely to 
face greater punishment if he proceeds to trial. In 
Brady v. United States, 397 U.S. 742, 755 (1970), for 
example, the Court held that “a plea of guilty is not 

(1994) (juvenile probationers), cert. denied, 514 U.S. 1068 (1995); 
People v. Reyes, 19 Cal. 4th 743, 747-754 (1998) (adult parolees), 
cert. denied, 526 U.S. 1092 (1999). 

9 The procedural prerequisites to a valid relinquishment of con- 
stitutional rights vary depending on the right at issue, see 
generally United States v. Olano, 507 U.S. 725, 733 (1993), but for 
Fourth Amendment rights, this Court has held that the subject 
need not be specifically aware of his right to refuse consent before 
he may voluntarily consent to a search. Ohio v. Robinette, 519 U.S. 
33, 39-40 (1996); Schneckloth, 412 U.S. at 227; see id. at 227-248. In 
any event, nothing in the court of appeals’ opinion in this case 
suggests that its holding turned on the failure of California officials 
to engage in any particular colloquy with respondent at the time he 
signed the probation agreement. 

19 

invalid merely because entered to avoid the possibility 
of a death penalty.” In a variety of situations, the 
Court recognized, a criminal “defendant might never 
plead guilty absent the possibility or certainty that the 
plea will result in a lesser penalty than the sentence 
that could be imposed after a trial and a verdict of 
guilty.” Id. at 751. The Court “decline[d] to hold, how- 
ever, that a guilty plea is compelled and invalid under 
the Fifth Amendment whenever motivated by the 
defendant’s desire to accept the certainty or probability 
of a lesser penalty rather than face a wider range of 
possibilities extending from acquittal to conviction and 
a higher penalty authorized by law for the crime 
charged.” Ibid.; accord, e.g., Corbitt v. New Jersey, 439 
U.S. 212, 218-223 (1978); North Carolina v. Alford, 400 
U.S. 25, 31 (1970). 

10 

This Court has since held that the government may 
attempt through negotiation to persuade a defendant 
to plead guilty to a criminal charge. See, e.g., 
Mezzanatto, 513 U.S. at 209-210 (“[t]he plea bargaining 
process necessarily exerts pressure on defendants to 
plead guilty and to abandon a series of fundamental 
rights, but we have repeatedly held that the govern- 
ment may encourage a guilty plea by offering sub- 
stantial benefits in return for the plea”) (internal 

10 As the Court explained in McGautha v. California, 402 U.S. 
183 (1971), 

[t]he criminal process, like the rest of the legal system, is re- 
plete with situations requiring the making of difficult judg- 
ments as to which course to follow. 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. 

Id. at 213 (citation and internal quotation marks omitted). 

20 

quotation marks omitted); Bordenkircher v. Hayes, 434 
U.S. 357, 363 (1978) (“acceptance of the basic legitimacy 
of plea bargaining necessarily implies rejection of any 
notion that a guilty plea is involuntary in a consti- 
tutional sense simply because it is the end result of the 
bargaining process”; defendant’s guilty plea held to 
be voluntary even though it “may have been induced 

* * * by fear of the possibility of a greater penalty 
upon conviction after a trial”). The Court’s plea-bar- 
gaining cases do not suggest that a process of negotia- 
tion is a prerequisite to a valid plea. Rather, the Court 
has simply recognized that the government does not 
coerce the plea by giving the defendant assurance of its 
likely beneficial consequences, or even by affirmatively 
encouraging the defendant to forgo exercise of his 
constitutional rights. That the terms of respondent’s 
probation on the state charges appear not to have been 
the subject of negotiation therefore does not call into 
question the voluntariness of respondent’s consent to 
search. It is sufficient that respondent gave his assent 
to those terms as part of a voluntary choice. 

In Griffin v. Wisconsin, supra, this Court observed 
that “[p]robation 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.” 483 U.S. at 874. 

11 Insofar as the 

11 In Griffin, this Court upheld a warrantless search of a pro- 
bationer’s house based on a state regulation that permitted such 
searches where “reasonable grounds” existed to believe that con- 
traband would be found. The Court did not adopt a “reasonable 
grounds” (or other individualized suspicion) requirement as a con- 
stitutional floor, and it did not consider whether a person offered 
probation could validly consent to searches without individualized 
suspicion as a condition of release. 

21 

Constitution is concerned, respondent could have 
validly entered into a plea agreement that not only 
specified the length of his incarceration, but that pro- 
vided as well for confinement in a particular penal 
institution with a particular level of restraint. That 
being the case, there is no reason that respondent could 
not also enter into an agreement providing for a less 
severe punishment—i.e., release into the community on 
the condition that his residence could be searched at 
any time. See Bravo, 43 Cal. 3d at 609 (“A pro- 
bationer’s waiver of his Fourth Amendment rights is no 
less voluntary than the waiver of rights by a defendant 
who pleads guilty to gain the benefits of a plea 
bargain.”) (citing Bordenkircher, 434 U.S. at 360-364). 
Indeed, enabling defendants to consent to such search 
terms may further their long-term interests as a class. 
As the California Supreme Court observed in Bravo, if 
“a probationer’s waiver of Fourth Amendment rights 
were either impermissible or limited to searches con- 
ducted only upon a reasonable-suspicion standard, the 
opportunity to choose probation might well be denied to 
many felons by judges whose willingness to offer the 
defendant probation in lieu of prison is predicated upon 
knowledge that the defendant will be subject to search 
at any time for a proper probation or law enforcement 
purpose.” Ibid. 

3. Requiring consent to search as a condition of 
probation is not an unconstitutional condition 

The fact that a California defendant must agree to 
probation does not mean that a sentencing judge’s 
choice of probation terms is free from any constitutional 
constraint. “Under the well-settled doctrine of ‘uncon- 
stitutional conditions,’ the government may not require 
a person to give up a constitutional right * * * in 

22 

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). This 
Court’s unconstitutional conditions jurisprudence sug- 
gests that a State may not condition an individual’s 
release on probation upon his agreement to forgo 
the exercise of a constitutional right—e.g., the First 
Amendment right to engage in religious observance, or 
to make public statements critical of the government— 
that is wholly unrelated to his status as a probationer. 

A requirement that probationers consent to search, 
by contrast, directly furthers the State’s interest in the 
effective administration of its probation system. The 
California Supreme Court has explained that, as a 
matter of state law, “[a] condition of probation * * * is 
invalid if it (1) has no relationship to the crime of which 
the defendant is convicted, (2) relates to conduct that is 
not itself criminal, or (3) requires or forbids conduct 
that is not reasonably related to future criminality.” 
People v. Mason, 5 Cal. 3d at 764 (quoting In re Bush- 
man, 1 Cal. 3d at 776-777). The court in Mason con- 
cluded, however, that “a condition of probation which 
requires a prior narcotics offender to submit to a search 
meets the test set forth in Bushman, since that con- 
dition is reasonably related to the probationer’s prior 
criminal conduct and is aimed at deterring or dis- 
covering subsequent criminal offenses.” Ibid. 

The same reasoning explains why a consent-to-search 
term is not an unconstitutional condition as a matter of 
federal law. Probationers present a heightened risk of 
committing further criminal or other antisocial acts, 
thus justifying close monitoring and supervision. See 
Griffin, 483 U.S. at 880 (“it is the very assumption of 
the institution of probation that the probationer is in 

23 

need of rehabilitation and is more likely than the ordi- 
nary citizen to violate the law”). The purpose of con- 
ditional release is to assist in the probationer’s rein- 
tegration into the community, while minimizing the 
threat to the public safety and welfare that release may 
entail. A search designed to assess the probationer’s 
compliance with the conditions of his release is 
therefore reasonably related to the benefit offered by 
the government as a quid pro quo. 

4. A probationer’s consent to search is not invalid 
simply because the alternative is imprisonment 

A probationer’s consent to search given as a con- 
dition of release is not rendered involuntary by the fact 
that the alternative is incarceration. It has been 
suggested that a potential probationer or parolee has 
no choice but to accept a consent to search provision. 

12 

That suggestion appears to rest on one of two pro- 
positions. First is the notion that an individual would 
not, under any circumstances, make a voluntary de- 
cision to accept a prison term. That proposition is de- 
monstrably false: criminal defendants can and often do 
enter pleas of guilty (with or without plea agreements) 
that they know will result in substantial periods of 
incarceration, generally because they regard their 
alternatives as even more unattractive. This Court has 
repeatedly recognized that a guilty plea is not rendered 
involuntary simply because it is motivated by a desire 
to avoid greater punishment. See pp. 18-20, supra. 

12 See, e.g., 4 Wayne R. LaFave, Search and Seizure: A Treatise 
on the Fourth Amendment § 10.10(b), at 764-765 (3d ed. 1996) (“to 
speak of consent in this context is to resort to a manifest fiction, for 
the probationer who purportedly waives his rights by accepting 
such a condition has little genuine option to refuse”) (footnote and 
internal quotation marks omitted). 

24 

Alternatively, the view that a probationer lacks any 
true choice in the matter may rest instead on the 
perception that no one would choose to spend time in 
prison in preference to release on probation because 
probation, even with a consent-to-search condition, is 
substantially less onerous than incarceration. That 
reasoning is also flawed. The government cannot be 
said to coerce an individual simply by presenting him 
with a choice in which one of the alternatives is plainly 
more attractive than the other. No one would suggest, 
for example, that a defendant’s guilty plea is involun- 
tary if the government offers him a particularly favor- 
able plea agreement. In short, no legal principle sup- 
ports the view that an individual’s waiver of consti- 
tutional rights is rendered unenforceable whenever the 
benefits of that waiver substantially outweigh its costs. 

5. There is no basis for limiting the validity of 
respondent’s consent to “probation searches” 

The court of appeals acknowledged both that “a 
person can consent to a search of his home,” and that 
respondent “did consent to searches when he agreed to 
the terms of his probation.” Pet. App. 7a-8a. The court 
held, however, that respondent’s “consent must be seen 
as limited to probation searches, and must stop short of 
investigation searches.” Id. at 8a; see also ibid. (“We 
simply have refused to recognize the viability of a more 
expansive probationary consent to search term.”). 
Although the court did not offer a precise definition of 
the term “probation search,” it apparently had in mind 
a search conducted for rehabilitative or similar pur- 
poses. See id. at 10a (stating that the searching officer 
and his colleagues “were not a bit interested in [respon- 
dent’s] rehabilitation” but instead “were interested in 
investigating and ending the string of crimes of which 

25 

[respondent] was thought to be the perpetrator”). The 
court of appeals’ distinction between “probation” and 
“investigation” searches is flawed. First, the proper 
focus in this area of Fourth Amendment analysis is on 
the objective justification for the officer’s conduct, not 
on its subjective purpose. Second, identifying criminal 
activity by a probationer is centrally related to a critical 
term of probation: that the individual refrain from 
further violations of the criminal law. 

a. In Whren v. United States, 517 U.S. 806 (1996), 
this Court stated that it had consistently “been unwill- 
ing to entertain Fourth Amendment challenges based 
on the actual motivations of individual officers.” Id. at 
813. The Court explained that the “principal basis” for 
its refusal to consider the subjective motivation of the 
searching or seizing officer “is simply that the Fourth 
Amendment’s concern with ‘reasonableness’ allows 
certain actions to be taken in certain circumstances, 
whatever the subjective intent.” Id. at 814. See also 
Bond v. United States, 529 U.S. 334, 338 n.2 (2000) (in 
determining whether an officer’s actions constitute a 
“search,” “the issue is not [the officer’s] state of mind, 
but the objective effect of his actions”). 

13 

13 In City of Indianapolis v. Edmond, 121 S. Ct. 447 (2000), the 
Court held that a traffic checkpoint violates the Fourth Amend- 
ment when its “primary purpose” is to serve general criminal law 
enforcement interests in interdicting narcotics. Id. at 458. The 
Court explained that, in contrast to cases such as Whren and Bond, 
“our cases dealing with intrusions that occur pursuant to a general 
scheme absent individualized suspicion have often required an 
inquiry into purpose at the programmatic level.” Id. at 457. The 
Court noted that “subjective intent was irrelevant in Bond 
because the inquiry that our precedents required focused on the 
objective effects of the actions of an individual officer.” Ibid. This 
Court’s consent-search precedents similarly focus on objective con- 
siderations, both in analyzing the scope of consent, see Florida v. 

26 

The seizure in Whren was based on probable cause to 
believe that a traffic violation had been committed, see 
517 U.S. at 810, but a property owner’s voluntary con- 
sent to search justifies a similar Fourth Amendment 
conclusion: the search is valid if it is within the scope of 
the consent, objectively construed, regardless of a 
particular searching officer’s motive or purpose. The 
intrusion is the same in either case, and nothing in this 
Court’s decisions suggests that the propriety of a con- 
sent search depends on the searching officer’s sub- 
jective motivation in requesting or acting upon the 
consent. 

14 

Jimeno, supra, and in determining the reasonableness of an 
officer’s reliance on consent, see Illinois v. Rodriguez, supra. The 
objective approach of Whren and Bond is therefore applicable 
here. 

14 Different considerations would be implicated if the officers 
who conducted a Fourth Waiver search were alleged to have acted 
for constitutionally impermissible reasons—e.g., on the basis of the 
probationer’s race or religion. Compare Whren, 517 U.S. at 813 
(“agree[ing] * * * that the Constitution prohibits selective 
enforcement of the law based on considerations such as race,” 
while observing that “the constitutional basis for objecting to 
intentionally discriminatory application of laws is the Equal Pro- 
tection Clause, not the Fourth Amendment”). But neither re- 
spondent nor the court of appeals has suggested that the detective 
who conducted the search in this case harbored any such imper- 
missible motives. To the contrary, although the court of appeals 
held that the warrantless search in this case violated the Fourth 
Amendment, it recognized that the officer’s desire to search 
respondent’s apartment was prompted by legitimate law enforce- 
ment considerations. See Pet. App. 10a (stating that the searching 
officer and his colleagues “were interested in investigating and 
ending the string of crimes of which [respondent] was thought to 
be the perpetrator * * * and had drawn some very good 
inferences from the facts”). 

27 

b. Even if consideration of the searching officer’s 
subjective purpose were otherwise appropriate in this 
context, the purported distinction between “probation” 
and “investigation” searches is unsound. A probationer 
has by definition been convicted of a criminal offense, 
and “it is the very assumption of the institution of pro- 
bation 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. And the most 
fundamental term of probation is that an individual 
must refrain from committing further crimes. As the 
Court in Griffin explained, restrictions on a pro- 
bationer’s liberty “are meant to assure that the pro- 
bation serves as a period of genuine rehabilitation and 
that the community is not harmed by the probationer’s 
being at large. These same goals require and justify 
the exercise of supervision to assure that the restric- 
tions are in fact observed.” Id. at 875 (citation omitted). 
The officer who searched respondent’s apartment 
was not, it is true, specifically tasked with the super- 
vision of probationers. The officer’s investigative 
efforts focused upon respondent for reasons unrelated 
to his probation status, and the officer would likely 
have wished to search respondent’s apartment even if 
respondent had not been a probationer. See note 3, 
supra. It does not follow, however, as the court of 
appeals believed, that the searching officer “was using 
the probation term as a subterfuge.” Pet. App. 10a. 
Where (as here) law enforcement officials come to sus- 
pect that a probationer is engaged in additional criminal 
activity, a search designed to confirm or dispel that 
suspicion directly serves an important probation pur- 
pose, even though the searching officer views his role as 
the detection and investigation of crime rather than the 
monitoring of specific individuals. Uncovering criminal 

28 

acts by probationers allows the government to protect 
the community against harms flowing from their con- 
ditional release, either by revoking probation or begin- 
ning a new prosecution. The State may therefore make 
release on probation contingent upon the probationer’s 
voluntary consent to searches by police officers who are 
investigating crimes, as well as to searches that are 
conducted by probation officers or specifically 
conceived as measures for administering the probation 
system. 

15 

15 In upholding the Wisconsin regulation authorizing probation 
officers to conduct warrantless searches based on “reasonable 
grounds” to believe that a probation violation had occurred in 
Griffin, the Court noted that a probation officer is not “the police 
officer who normally conducts searches against the ordinary 
citizen.” 483 U.S. at 876. The search in Griffin took place pursuant 
to an administrative scheme. Respondent, however, specifically 
consented to searches “by any probation officer or law enforce- 
ment officer.” J.A. 50. Whatever relevance the probation officer’s 
distinct status and responsibilities may have to the propriety of an 
administrative program of non-consensual searches, nothing in 
Griffin precludes a State from requiring consent to searches by a 
broader category of law enforcement officers as a condition of 
release on probation. 

In any event, nothing in Griffin suggests that an officer’s 
motivation for conducting a particular search is in any way 
relevant to the constitutional analysis. The search in that case was 
conducted by two probation officers and three plainclothes police- 
men, based on a tip that guns were or might be present in Griffin’s 
apartment. 483 U.S. at 871. When the officers found a handgun, 
Griffin was arrested and charged with possession of a firearm by a 
convicted felon, which is itself a felony under Wisconsin law. Id. at 
871-872. Griffin thus involved a search for evidence of criminal 
activity. The direct and foreseeable result of the search was the 
probationer’s arrest—and this Court reviewed his conviction for 
the offense that led to that arrest. 

29 

The court of appeals appeared to acknowledge that a 
valid probation search may be based in part on the 
desire to detect wrongdoing. Pet. App. 10a. The court 
suggested, however, that any search directed only at 
that goal (rather than at the rehabilitation of the 
probationer) cannot be regarded as a legitimate proba- 
tion search. Ibid. That conclusion is without basis. 
Even where a search is conducted solely to determine 
whether a probationer has abused his “conditional 
liberty” (Griffin, 483 U.S. at 874) by committing crimes 
that warrant prosecution, the search helps to ensure 
“that the community is not harmed by the probationer’s 
being at large” (id. at 875) and thereby directly serves a 
core probation purpose. 

CONCLUSION 

The judgment of the court of appeals should be 
reversed. 

Respectfully submitted. 

THEODORE B. OLSON 

Solicitor General 

MICHAEL CHERTOFF 

Assistant Attorney General 

MICHAEL R. DREEBEN 

Deputy Solicitor General 

MALCOLM L. STEWART 

Assistant to the Solicitor 

General 

KIRBY HELLER 

Attorney 

JULY 2001