No. 00-1260 

In the Supreme Court of the United States 

UNITED STATES OF AMERICA, PETITIONER 

v. 

MARK JAMES KNIGHTS 

ON PETITION FOR A WRIT OF 
CERTIORARI TO THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

PETITION FOR A WRIT OF CERTIORARI 

BARBARA D. UNDERWOOD 
Acting Solicitor General 

Counsel of Record 

JOHN C. KEENEY 

Acting 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 proba- 
tion 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 

Reasons for granting the petition ............................................... 
6 

Conclusion ....................................................................................... 21 

Appendix A ..................................................................................... 
1a 

Appendix B ..................................................................................... 
15a 

Appendix C ..................................................................................... 
39a 

TABLE OF AUTHORITIES 

Cases: 

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

17 

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

13 

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

13 

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

(2000) ........................................................................................ 17 

Commonwealth v. Walter, 655 A.2d 554 (Pa. Super. 

Ct. 1995) ................................................................................... 

15 

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

14 

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

9, 17 

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

13, 15, 19 

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

12, 18 

New York v. Burger, 482 U.S. 691 (1987) .......................... 

19 

Pennsylvania Bd. of Probation & Parole v. Scott, 

524 U.S. 357 (1998) ................................................................ 

7 

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

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

2, 10, 14 

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

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

11 

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

10, 19 

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

120 S. Ct. 1429 (2000) ............................................... 6, 9, 10, 11, 12 

Peretz v. United States, 501 U.S. 923 (1991) ..................... 12 

(III) 

IV 

Cases—Continued: Page 

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

12 

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

514 U.S. 1068 (1995) .............................................................. 

11 

United States v. Mezzanatto, 513 U.S. 196 (1995) ....... 

12, 13 

United States v. Ooley, 116 F.3d 370 (9th Cir. 1997), 

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

2, 4, 7, 8 

United States v. Richardson, 849 F.2d 439 (9th Cir.), 

cert. denied, 488 U.S. 866 (1988) ......................................... 

8 

United States v. Watts, 67 F.3d 790 (9th Cir. 1995), 

rev’d on other grounds, 519 U.S. 148 (1997) ..................... 

8 

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

5, 11, 17, 18 

Wilson v. Layne, 526 U.S. 603 (1999) ................................. 

20 

Constitution and statutes: 

U.S. Const.: 

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

15 

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

2, 5, 6, 9, 18, 20, 21 

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

3 

18 U.S.C. 844(i) (1994 & Supp. IV 1998) .............................. 

3 

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

4 

26 U.S.C. 5861 ........................................................................... 

4 

42 U.S.C. 1983 (1994 & Supp. IV 1998) ................................ 

20 

Miscellaneous: 

4 Wayne R. LaFave, Search and Seizure: A Treatise 
on the Fourth Amendment (3d ed. 1996) .......................... 15 

In the Supreme Court of the United States 

No. 00-1260 

UNITED STATES OF AMERICA, PETITIONER 

v. 

MARK JAMES KNIGHTS 

ON PETITION FOR A WRIT OF 

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

PETITION FOR A WRIT OF CERTIORARI 

The Solicitor General, on behalf of the United States 
of America, respectfully petitions for a writ of certiorari 
to review the judgment of the United States Court of 
Appeals for the Ninth Circuit in this case. 

OPINION BELOW 

The opinion of the court of appeals (App., infra, 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 (App., infra, 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 jurisdiction of this Court is 
invoked under 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 per- 
sons, houses, papers, and effects, against unrea- 
sonable searches and seizures, shall not be violated, 
and no Warrants shall issue, but upon probable 
cause, supported by Oath or affirmation, and parti- 
cularly 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 summary probation for a drug offense 
under California law.1 Summary probation in California 
does not involve direct supervision by a probation 
officer. App., infra, 4a. As a condition of probation, 
however, respondent signed a form by which he agreed 
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.” C.A. E.R. 73; App., infra, 4a. 
The consent-to-search term, sometimes known as 
the “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 the Fourth 
Waiver constitutes a valid consent to search. See, e.g., 
People v. Bravo, 43 Cal. 3d 600, 605-611 (1987), cert. 
denied, 485 U.S. 904 (1988). 

1 See C.A. E.R. 58, 73. On that same date, respondent was 
sentenced to 90 days in jail, to commence on July 3, 1998. Id. at 58, 

67. 

3 

2. Three days after respondent was placed on pro- 
bation, a Pacific Gas & Electric (PG&E) power 
transformer and adjacent Pacific Bell telecommuni- 
cations vault near the Napa County Airport were pried 
open and set on fire with an incendiary device. App., 
infra, 2a-3a. 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. Accordingly, he immediately became a suspect 
in the case. C.A. E.R. 58; App., infra, 2a. After the 
sheriff’s office made a variety of observations that 
suggested that respondent might be involved in the 
vandalism,2 on June 3, 1998, a sheriff’s detective 
searched respondent’s apartment, relying on the 
consent-to-search condition of respondent’s probation 
order. Id. at 4a. Based 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. C.A. E.R. 54; App., infra, 
4a-5a. 

3. Respondent was subsequently indicted by a 
federal grand jury for conspiracy to commit arson, in 
violation of 18 U.S.C. 371 and 844(i) (1994 & Supp. IV 
1998); being a felon in possession of a firearm, in vio- 

2 Shortly after the arson, a sheriff ’s deputy drove by re- 
spondent’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 explo- 
sive materials and brass padlocks that appeared to match those 
taken from the PG&E power vault. App., infra, 3a-4a. 

4 

lation of 18 U.S.C. 922(g)(1); and possession of an unreg- 
istered destructive device, in violation of 26 U.S.C. 
5861. C.A. E.R. 1-5; App., infra, 5a. Respondent 
moved to suppress the evidence obtained in the June 3 
search. Ibid. 

Relying principally on the Ninth Circuit’s decision 
in United States v. Ooley, supra, the district court 
granted respondent’s motion to suppress. App., infra, 
15a-38a. The court explained that “[a]lthough not 
directly addressing the consent issue, [Ooley], implicitly 
if not directly, stands for the proposition that accep- 
tance 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 conducted the search had a “reasonable suspicion” 
that respondent may have been involved with incendi- 
ary materials, “the manufacture of which would be 
inconsistent with the rehabilitative aspects of his 
probation.” Id. at 30a. The court held, however, that 
the search was conducted for the purpose of obtaining 
evidence in a criminal investigation into arson or 
manufacture of incendiary devices. Id. at 33a. Based 
on its conclusion that the search of respondent’s house 
was undertaken for investigative rather than pro- 
bationary purposes, the court held that the search was 
invalid and that the items seized during it should be 
suppressed. Id. at 33a-37a. 

4. The court of appeals affirmed. App., infra, 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.” App., infra, 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 

5 

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 depart- 
ment was investigating criminal activity, 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] rehabilitation.” App., 
infra, 10a. While the court conceded that “a probation 
officer may also wish to end wrongdoing by a pro- 
bationer,” the court found that the law enforcement 
officer in this case “was using the probation term as a 
subterfuge to enable him to search [respondent’s] home 
without a warrant.” Ibid.3 

The court of appeals also concluded that Whren v. 
United States, 517 U.S. 806 (1996), did not undermine 
its distinction between probation searches and investi- 
gation searches. While Whren relied on the principle 
that the lawfulness of a Fourth Amendment intrusion 
based on probable cause turns on the objective facts, 
and not on the subjective motivation of the searching 
officer, the court of appeals found that the issue here is 
the different one of whether the officers had consent to 
search respondent’s residence for law enforcement 
purposes in the first place, i.e., “whether the consent 

3 The court of appeals acknowledged that “a true probation 
search can serve [the] ends” of deterring criminal activity by the 
probationer. App., infra, 13a. The court refused, however, to hold 
that the search in this case could be upheld as serving the same 
purposes. The court stated that to sustain the search on that basis 
would “indirectly eliminate our cases which rely on the difference 
between probation and investigation searches.” Ibid. 

6 

covers what the officer did.” App., infra, 11a. The 
court acknowledged that “the California Supreme 
Court disagrees with our Whren analysis.” Ibid. (citing 
People v. Woods, 21 Cal. 4th 668, 677-681 (1999), cert. 
denied, 120 S. Ct. 1429 (2000)). It stated, however, that 
the California Supreme Court “does not control our 
reading of federal constitutional law, and for the rea- 
sons already stated, we find its analysis unpersuasive.” 
Ibid. 

REASONS FOR GRANTING THE PETITION 

It is well established that searches based on consent 
are constitutionally permissible, without the need for a 
warrant or particularized cause. In this case, however, 
the court of appeals concluded that the Fourth Amend- 
ment prohibits law enforcement officers who are 
seeking evidence of criminal activity from searching 
based on the consent given by a California probationer 
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.” The court of appeals thus 
reaffirmed a distinction in its cases between “pro- 
bation” searches, which are permissible, and “investi- 
gation” searches, which are not. The court of appeals’ 
holding is incorrect, and—as the court of appeals 
acknowledged—in conflict with the position of the 
Supreme Court of California, which has long upheld 
searches of adult probationers based on consent, with- 
out distinguishing between “probation” searches and 
“investigation” searches. The court of appeals’ holding 
thus threatens to cause substantial disruption of law 
enforcement efforts in California, where state officers 

7 

are now operating under a dual system of inconsistent 
legal standards. 

The court of appeals’ holding warrants this Court’s 
review. In Pennsylvania Board of Probation & Parole 

v. Scott, 524 U.S. 357 (1998), this Court invited the 
parties to brief and argue the question whether “a 
search of a parolee’s residence [must] be based on 
reasonable suspicion to be valid under the Fourth 
Amendment where the parolee has consented to 
searches as a condition of his parole.” 522 U.S. 992 
(1997). The Court ultimately did not reach that issue in 
Scott, however, instead resolving the case on other 
grounds. Because the legal issue remains important, 
and because of the adverse practical consequences 
flowing from the court of appeals’ decision, this Court’s 
resolution of that question is now warranted.4 

1. The court of appeals’ holding in this case is the 
latest in a line of cases invalidating searches based on 
California “Fourth Waiver” consents, when the court of 
appeals has concluded that the search of the pro- 
bationer was not carried out with a view towards 
rehabilitation but was instead an impermissible in- 
vestigative search. “[W]e have long recognized,” the 
court has stated, that “the legality of a warrantless 

4 While Scott was pending before this Court, the government 
filed a petition for certiorari in United States v. Ooley, No. 97-1144, 
another case involving a California probation search conducted 
pursuant to the Fourth Waiver, and suggested that the petition be 
held pending the Court’s decision in Scott. See 97-1144 Pet. at 5-6. 
After the Court issued its decision in Scott without reaching the 
consent issue, the Court denied certiorari in Ooley. See 524 U.S. 
963 (1998). The Ninth Circuit’s refusal to reconsider its rule in this 
case, and its continued conflict with decisions of the California 
Supreme Court, make clear that the issue warrants plenary review 
at this time. 

8 

search depends upon a showing that the search was a 
true probation search and not an investigation search.” 
United States v. Ooley, 116 F.3d 370, 372 (9th Cir. 1997) 
(collecting cases), cert. denied, 524 U.S. 963 (1998). The 
Ninth Circuit’s law in this area is further complicated 
by holdings that even a probation officer cannot make 
a valid probation search if he is in fact acting as 
a “stalking horse” for the police in a criminal investi- 
gation. See United States v. Watts, 67 F.3d 790, 793-794 
(9th Cir. 1995) (“A probation officer acts as a stalking 
horse if he conducts a probation search on prior request 
of and in concert with law enforcement officers.”), rev’d 
on other grounds, 519 U.S. 148 (1997) (per curiam).5 

In invalidating the search in this case, the court of 
appeals at times implied that “investigation” searches 
do not fall within the scope of a probationer’s consent.6 

5 The “stalking horse” doctrine is particularly difficult to apply 
because the Ninth Circuit has made clear that “collaboration 
between a probation officer and police does not in itself render a 
probation search unlawful.” Watts, 67 F.3d at 794. It has also 
stated that “the warrantless search of a probationer’s home need 
not necessarily be initiated, conducted, or even supervised by a 
probation officer to qualify as a probation search.” Ooley, 116 F.3d 
at 372. Yet it has also held that a probation search may be illegal if 
the probation officer approves the search as a “stalking horse” for 
the police, and that a probation officer acts as a “stalking horse” if 
he conducts a probation search “on prior request of and in concert 
with law enforcement officers.” See United States v. Richardson, 
849 F.2d 439, 441 (9th Cir.), cert. denied, 488 U.S. 866 (1988). The 
line-drawing required to implement those positions is thus subtle 
and unpredictable. 

6 See App., infra, 8a (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”); id. at 11a (the question in this case is “whether * * * 
there was consent to the search in the first place,” and the answer 
“depends on whether the consent covers what the officer did”). 

9 

That view, however, is irreconcilable with the language 
of the consent itself, in which respondent agreed with- 
out 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.” C.A. 
E.R. 73; App., infra, 4a. There is no language in that 
consent that limits its scope to searches conducted for a 
particular reason. See Florida v. Jimeno, 500 U.S. 248, 
251 (1991) (“The standard for measuring the scope of a 
suspect’s consent under the Fourth Amendment is that 
of ‘objective’ reasonableness—what would the typical 
reasonable person have understood by the exchange 
between the officer and the suspect?”). The court of 
appeals did not suggest otherwise. Such a construction 
of respondent’s consent would, moreover, be squarely 
at odds with the California Supreme Court’s consistent 
interpretation of a provision that is a standard term of 
probation in the State. See pp. 9-11, infra. The basis 
for the court of appeals’ opinion, in fact, is its legal con- 
clusion that a probationer’s consent to a search for 
investigatory purposes is invalid and unenforceable as a 
matter of Fourth Amendment law. See App., infra, 8a 
(“We simply have refused to recognize the viability of a 
more expansive probationary consent to search term.”). 

That analysis of Fourth Amendment law is in square 
conflict with decisions of the Supreme Court of Cali- 
fornia. “For nearly three decades, [the Supreme Court 
of California] has upheld the legality of searches author- 
ized by probation terms that require probationers to 
submit to searches of their residences at any time of the 
day or night by any law enforcement officer with or 
without a warrant.” People v. Woods, 21 Cal. 4th 668, 
675 (1999), cert. denied, 120 S. Ct. 1429 (2000); see 

10 

People v. Robles, 23 Cal. 4th 789, 795 (2000) (“In 
California, a person may validly consent in advance to 
warrantless searches and seizures in exchange for the 
opportunity to avoid serving a state prison term.”).7 In 
People v. Bravo, 43 Cal. 3d 600 (1987), cert. denied, 485 
U.S. 904 (1988), the court explained that a consent 
search of a probationer’s residence is valid because “[a] 
probationer consents to the waiver of his Fourth 
Amendment rights in exchange for the opportunity to 
avoid service of a state prison term.” Id. at 608. The 
court thus upheld a search by law enforcement officers 
who were acting on a tip that the probationer was 
involved in the sale of narcotics. Id. at 602-603. The 
court made clear that the consent authorized searches 
to fulfill “the rehabilitative and reformative purposes of 
probation or other legitimate law enforcement pur- 
poses.” Id. at 610 (emphasis added).8 

7 In Robles, the court held that a probationer’s prior consent 
to searches of his residence did not validate a search where (a) the 
searching officers were unaware of the probation condition at 
the time they executed the search, and (b) the purpose and effect 
of the search was to obtain evidence of wrongdoing by the pro- 
bationer’s brother, who shared the residence. See 23 Cal. 4th at 
794-800. The court distinguished Woods as a case “which con- 
cerned the legality of a home search premised upon a known 
probation condition.” Id. at 797. In this case, the officer who 
conducted the search of respondent’s apartment submitted a dec- 
laration attesting that he was aware of respondent’s probationary 
status and the attendant search condition before he performed the 
search. C.A. E.R. 49-50. 

8 In assessing the validity of Fourth Waiver searches of adult 
probationers, the California Supreme Court has explicitly relied on 
a consent rationale. See Woods, 21 Cal. 4th at 674-676. In contrast, 
where particular offenders are not offered the opportunity to 
decline release—such as parolees and juvenile probationers—the 

11 

The court of appeals’ decision in this case cannot 
be reconciled with Woods, Bravo, and other decisions 
of the California Supreme Court holding that a criminal 
defendant’s acceptance of a probation search condition 
constitutes a valid and enforceable consent to the 
search of all areas subject to the probationer’s control. 
In particular, the California Supreme Court has speci- 
fically rejected the contention that a search based on 
such a consent is invalid if the searching officer is 
motivated by a desire to investigate possible criminal 
activity. In Woods, for example, 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 investigate 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 incon- 
sistent with this Court’s decision in Whren v. United 
States, 517 U.S. 806 (1996). See 21 Cal. 4th at 678-680. 
It explained “whether the purpose of the search is to 

California Supreme Court has not relied on a consent theory in 
upholding warrantless searches without particularized cause. The 
Court has instead sustained the searches on the theory that such 
persons have a reduced expectation of privacy in light of the con- 
ditional 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 (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). 

12 

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. “Given such con- 
straints,” the court concluded, “there is little to be 
advanced by validating a search merely upon the 
searching officer’s ability to convincingly articulate the 
proper subjective motivation for his or her actions.” 
Ibid. The conflicting positions of the California 
Supreme Court and the Ninth Circuit with respect to 
the relevance of the searching officer’s purpose merits 
this Court’s review. 

2. The court of appeals’ decision is incorrect. 

a. As a general matter, “a search conducted pur- 
suant to a valid consent is constitutionally permissible,” 
Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973), 
and the validity of the search does not turn on the 
officers’ possession of either individualized suspicion or 
a warrant. Accord, e.g., Illinois v. Rodriguez, 497 U.S. 
177, 181 (1990). More generally, “[a] criminal defendant 
may knowingly and voluntarily waive many of the most 
fundamental protections afforded by the Constitution.” 
United States v. Mezzanatto, 513 U.S. 196, 201 (1995); 
see also Peretz v. United States, 501 U.S. 923, 936 (1991) 
(“The most basic rights of criminal defendants are 

* * * subject to waiver.”). 
Those principles are applicable here. This Court has 
recognized that an individual may, within broad limits, 
enter into arrangements with the government under 
which the individual relinquishes constitutional rights 
in return for a promise of favorable treatment. So long 
as the individual is accurately apprised of the options 
available to him, such agreements are generally 

13 

enforceable even when the individual is forced to choose 
between unattractive alternatives. 

That principle is demonstrated most vividly by this 
Court’s repeated recognition 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 (“The 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 
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 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”); Brady v. United States, 
397 U.S. 742, 755 (1970) (“[A] plea of guilty is not invalid 
merely because entered to avoid the possibility of a 
death penalty.”). 

Much the same analysis applies where an individual 
has consented to future searches in order to obtain 
release on probation. In Griffin v. Wisconsin, 483 U.S. 
868 (1987), 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.” Id. at 

14 

874.9 If respondent could have validly entered into a 
plea agreement providing for confinement in a parti- 
cular penal institution, there is no reason that he could 
not also bargain for a less onerous punishment—i.e., 
release into the community on condition that his re- 
sidence could be searched at any time. Indeed, enabling 
defendants to consent to such search terms may further 
their long-term interests in choosing a less onerous 
form of supervision. Compare Bravo, 43 Cal. 3d at 
609 (“Were we to conclude that a probationer’s waiver 
of Fourth Amendment rights were either impermissi- 
ble or limited to searches conducted 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.”). 

b. “Under the well-settled doctrine of ‘unconsti- 
tutional 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). This 
Court’s unconstitutional conditions jurisprudence sug- 
gests that a State may not condition an individual’s 

9 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 
contraband 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 released 
on probation could validly consent to searches without individual- 
ized suspicion as a condition of release. 

15 

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. Pro- 
bationers 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 need of rehabili- 
tation and is more likely than the ordinary citizen to 
violate the law”). The purpose of conditional release is 
to assist in the probationer’s reintegration 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, including the condition of 
not violating the criminal law, is therefore reasonably 
related to the benefit offered by the government as a 
quid pro quo. 

c. 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 sug- 
gested that a potential probationer or parolee has no 
choice but to accept a consent to search provision. 

10 

10 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”) 
(citation and internal quotation marks omitted); Commonwealth v. 
Walter, 655 A.2d 554, 556 n.1 (Pa. Super. Ct. 1995) (“Needless to 

16 

That suggestion appears to rest on one of two 
propositions. First is the notion that an individual 
would not, under any circumstances, make a voluntary 
decision to accept a prison term. That proposition is 
demonstrably false: criminal defendants can and often 
do enter into plea agreements that provide for sub- 
stantial periods of incarceration, generally because they 
conclude that their alternatives are even more unat- 
tractive. This Court has repeatedly recognized that a 
plea of guilty is not rendered involuntary simply be- 
cause it is motivated by a desire to avoid greater 
punishment. See p. 13, supra. 

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 advantageous than the other. No one would 
suggest, for example, that a defendant’s guilty plea is 
involuntary if the government offers him a favorable 
plea agreement. In short, no legal principle supports 
the view that an individual’s waiver of constitutional 
rights is rendered unenforceable whenever the benefits 
of that waiver substantially outweigh its costs. 

d. 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 

say, there is no bargaining for terms of parole, nor is it likely that 
any prisoner is going to refuse parole simply because the terms are 
unfavorable.”). 

17 

the terms of his probation.” App., infra, 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. We simply have 
refused to recognize the viability of a more expansive 
probationary consent to search term.” Ibid. The court 
of appeals’ effort to distinguish between “probation” 
and “investigation” searches is misguided. 

In Whren v. United States, 517 U.S. 806 (1996), this 
Court observed that it had consistently “been unwilling 
to entertain Fourth Amendment challenges based on 
the actual motivation 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”). 

11 

11 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. 
Jimeno, supra, and in determining the reasonableness of an 

18 

The seizure in Whren was based on probable cause to 
believe that a traffic violation had been committed, 517 
U.S. at 810, and the Court explained that the existence 
of probable cause ordinarily obviates the need for the 
sort of Fourth Amendment “balancing” process that 
might be necessary in other contexts, see id. at 817-819. 
A property owner’s voluntary consent to search should 
lead to a similar Fourth Amendment conclusion: the 
search is valid if it is within the scope of the consent, 
regardless of a particular searching officer’s motive or 
purpose. The intrusion is the same regardless of 
purpose, and nothing in this Court’s decisions suggests 
that the propriety of a consent search depends on the 
searching officer’s subjective motivation in requesting 
or acting upon the consent. 

The purported distinction between “probation” and 
“investigation” searches is particularly unsound. The 
most fundamental term of probation is that an individ- 
ual must refrain from committing further crimes. 
Where the probationer is suspected of additional 
criminal activity, a search designed to confirm or dispel 
that suspicion directly serves an important probation 
purpose. As the Court in Griffin explained, restrictions 
on a probationer’s liberty “are meant to assure that the 
probation serves as a period of genuine rehabilitation 
and that the community is not harmed by the pro- 
bationer’s being at large. These same goals require and 
justify the exercise of supervision to assure that the 

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

19 

restrictions are in fact observed.” 483 U.S. at 875 
(citation omitted). 

12 

The court of appeals appeared to acknowledge that a 
probation search may be based in part on the desire to 
detect wrongdoing, but suggested that any search 
directed only at that goal (rather than at the rehabili- 
tation of the probationer) cannot be regarded as a 
legitimate probation search. App., infra, 10a. That 
conclusion is without basis. Even where a search is 
conducted solely to determine whether a probationer 
has abused the “conditional liberty” (Griffin, 483 U.S. 
at 874) that the State has chosen to allow him, 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. 
Cf. New York v. Burger, 482 U.S. 691, 712-713 (1987) 
(search intended to ensure that automobile junkyard 

12 In Robles, the Supreme Court of California stated that 
“searches that are undertaken pursuant to a probationer’s advance 
consent must be reasonably related to the purposes of probation.” 
23 Cal. 4th at 797. The court concluded that “a search of a parti- 
cular residence cannot be ‘reasonably related’ to a probationary 
purpose when the officers involved do not even know of a pro- 
bationer who is sufficiently connected to the residence.” Ibid. The 
court did not suggest, however, that searches intended to confirm 
or dispel suspicion of a probationer’s wrongdoing are insufficiently 
related to the purposes of probation to fall within the scope of 
a probationer’s consent. To the contrary, it observed that “[w]ar- 
rantless searches are justified in the probation context because 
they aid in deterring further offenses by the probationer and in 
monitoring compliance with the terms of probation.” Id. at 795; see 
id. at 797 (explaining the court’s prior holding in Woods “that, 
regardless of the searching officer’s ulterior motives, the circum- 
stances presented ample justification for a search pursuant to the 
probation clause at issue because the facts known to the officer 
showed a possible probation violation.”). 

20 

did not facilitate automobile theft was a valid adminis- 
trative search, notwithstanding the fact that the ulti- 
mate purpose of the administrative scheme paralleled 
that of the State’s penal laws). 

3. The Ninth Circuit’s rule warrants this Court’s 
review. The conflict between the Fourth Amendment 
standards announced by the state and federal courts in 
California means that evidence that is constitutionally 
admissible in state prosecutions must be excluded in 
federal prosecutions. The Ninth Circuit’s rule therefore 
places state and local law enforcement officers in the 
most populous State in the Nation in the intolerable 
position of having to choose between following long- 
settled Fourth Amendment rulings of the state courts 
or those of the Ninth Circuit. The Ninth Circuit’s rule 
suffers from the further complication that, even if state 
officers sought to comply with it, the involvement of 
law enforcement officers in a “probation” search may 
taint the entire search if the court concludes that the 
probation department was a “stalking horse” for law 
enforcement. See note 5, supra. And, to the extent 
that the Ninth Circuit’s position means that evidence 
gathered in a probation search cannot be introduced in 
a federal prosecution, the conflict hinders efforts of 
federal and state authorities to engage in cooperative 
law enforcement. 

The court of appeals’ decision has additional ramifi- 
cations for state law enforcement officers who may face 
damages actions under 42 U.S.C. 1983 (1994 & Supp. IV 
1998). The doctrine of qualified immunity protects 
officers against damages liability for conduct that was 
objectively reasonable under prevailing law. Wilson v. 
Layne, 526 U.S. 603, 614 (1999) (whether personal 
liability may be assessed “generally turns on the objec- 
tive legal reasonableness of the action, assessed in light 

21 

of the legal rules that were clearly established at the 
time it was taken”) (internal quotation marks omitted). 
In this case, however, the court of appeals stated that 
“[f ]or at least three decades, it has been the law of this 
circuit that subterfuge probation searches are unconsti- 
tutional.” App., infra, 12a-13a. That statement raises 
the prospect that, if state law enforcement officers are 
sued for damages in federal court under Section 1983 
based on their participation in Fourth Waiver searches, 
they could be held to lack qualified immunity from suit, 
notwithstanding the California Supreme Court’s 
repeated holdings that searches are consistent with the 
Fourth Amendment. Law enforcement officers should 
not be subject to pressures created by such conflicting 
legal regimes. 

CONCLUSION 

The petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

BARBARA D. UNDERWOOD 
Acting Solicitor General 

JOHN C. KEENEY 

Acting Assistant Attorney 

General 

MICHAEL R. DREEBEN 

Deputy Solicitor General 

MALCOLM L. STEWART 

Assistant to the Solicitor 

General 

KIRBY HELLER 

Attorney 

FEBRUARY 2001 

APPENDIX A 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

No. 99-10538 

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT 

v. 

MARK JAMES KNIGHTS; STEVEN SIMONEAU, 
DEFENDANTS-APPELLEES 

[Argued and Submitted July 11, 2000] 
[Filed Aug. 3, 2000] 

Before: CANBY, REINHARDT, and FERNANDEZ, 

Circuit Judges. 

FERNANDEZ, Circuit Judge: 

The United States appeals from an order which sup- 
pressed evidence seized from the home of Mark James 
Knights in a warrantless search conducted by members 
of the Sheriff’s Department of Napa County, California. 
It claims that the evidence was properly seized during a 
probation search. The district court disagreed; so do 
we. We affirm. 

(1a) 

2a 

BACKGROUND 

From 1996 on, Pacific Gas and Electric Company’s 
facilities in Napa County had been subjected to vandal- 
ism over 30 times. Those incidents included short 
circuits caused by throwing chains onto transformers, 
damaging of gas power switches, and damaging of 
power pole guy wires. Suspicion had focused on 
Knights, and on his friend, Steven Simoneau. Many 
things contributed to that. In the first place, those 
vandalisms started after Knights’ electrical services 
had been discontinued in March of 1996 because he not 
only did not pay his bill, but also had found a way to 
steal services by bypassing PG & E’s meter. Detective 
Todd Hancock of the Sheriff ’s Department also thought 
it noteworthy that incidents of vandalism of PG & E 
property seemed to coincide with Knights’ court ap- 
pearance dates regarding the theft of PG & E services. 

More than that, on May 24, 1998, Knights and 
Simoneau were stopped by a sheriff’s deputy near a PG 
& E gas line. They could not explain their presence in 
the area to the deputy, who observed that Simoneau’s 
pick-up truck contained pipes, pieces of chain, tools, and 
gasoline. The deputy asked to search the vehicle, but 
was refused permission. A few days later, a pipe bomb 
was detonated against the exterior of a building where 
a burglary had taken place. That building was not far 
from Knights’ residence. 

For our purposes, the final incident occurred on the 
morning of June 1, 1998. Some miscreant, or mis- 
creants, had managed to knock out telephone service to 
the Napa County Airport by breaking into a Pacific Bell 

3a 

telecommunications vault and setting fire to it. Brass 
padlocks which secured the vault and an adjacent PG & 
E power transformer had been removed, and a gasoline 
accelerant had been used to ignite the fire. Within a 
short time after that incident occurred, a sheriff ’s 
deputy drove by Knights’ residence and observed 
Simoneau’s truck parked in front. The deputy got out 
of his patrol car and felt the hood of Simoneau’s truck. 
It was still warm at the time, which suggested that 
Knights and Simoneau might have been involved in the 
vandalism. The investigation focused even more pur- 
posefully upon them as a result. 

Thus, on June 3, 1998, Hancock set up surveillance of 
Knights’ apartment. At approximately 1:45 a.m., 
Knights and Simoneau arrived at the apartment in 
Simoneau’s pick-up truck. The two proceeded to enter 
the apartment where they remained with the lights on 
until about 3:10 a.m. At that point, Simoneau emerged 
from the apartment carrying three cylindrical items 
cradled in his arms. On the basis of his training, 
Hancock believed those to be pipe bombs. Simoneau 
walked to the truck, placed an object shaped like a jar 
in the back of it, and then walked across the street to 
the bank of the Napa River, where he disappeared 
from view. Hancock then heard three splashes as 
Simoneau, seemingly, deposited those objects in the 
river. Simoneau returned to the truck without the 
cylinders, picked up a glass jar from the truck bed and 
wiped it with a cloth. He then climbed into that truck 
and departed. 

Hancock trailed Simoneau until he stopped in a drive- 
way. When Hancock entered the driveway Simoneau 
was not around, but Hancock discovered a number of 

4a 

suspicious objects in and about the truck. In the bed of 
the truck were a Molotov cocktail and explosive materi- 
als. Also, a gasoline can and two brass padlocks, which 
seemed to fit the description given by PG & E inves- 
tigators of the locks removed from the Pacific Bell and 
PG & E transformer vault two days earlier, were 
observed. The truck was seized, impounded, and later 
searched pursuant to a warrant. 

With all of that information in hand, Hancock decided 
that he would conduct a warrantless “probation” search 
of Knights’ home. As Hancock saw it, he did not need 
to obtain a warrant because at an earlier time Knights 
had been placed on summary probation after he was 
convicted of a state misdemeanor drug offense. A 
person on summary probation in California is not under 
the direct supervision of a probation officer.1 However, 
in this case, a term of that probation required Knights 
to “[s]ubmit his . . . person, property, place of 
residence, vehicle, personal effects, to search at any- 
time, with or without a search warrant, warrant of 
arrest or reasonable cause by any probation officer or 
law enforcement officer.” Relying upon that and the 
authorization of his supervisor, Hancock proceeded. 

He began to organize the search at about 5:00 a.m. 
that morning, and conducted it at 8:00 a.m. after break- 
ing through a door and entering the apartment where 
Knights was still abed. The search was productive. It 
turned up detonation cord, ammunition, unidentified 
liquid chemicals, instruction manuals on chemistry 
and electrical circuitry, bolt cutters, telephone pole- 

1 See People v. Soto, 166 Cal.App.3d 770, 774 n. 3, 212 Cal.Rptr. 
696, 699 n. 3 (1985). 

5a 

climbing spurs, drug paraphernalia, photographs and 
blueprints stolen from the burglarized building, and a 
brass padlock stamped PG & E. Needless to say, 
Knights was arrested. 

Ultimately, Knights found himself in federal court 
because he was indicted for conspiracy to commit arson, 
for possession of an unregistered destructive device, 
and for being a felon in possession of ammunition. See 
18 U.S.C. §§ 371, 922(g); 26 U.S.C. § 5861(d). He moved 
to suppress the evidence seized in the June 3, 1998, 
search, and the government asserted that it was 
conducted pursuant to a probation consent. The district 
court agreed with Knights that the claimed probation 
search was really a subterfuge for an investigative 
search and ordered suppression. This appeal followed. 

STANDARD OF REVIEW 

A district court’s determination of whether there was 
consent to search is generally treated as a factual 
determination, but we have said that in “determining 
whether as a general rule certain types of actions give 
rise to an inference of consent, de novo review is 
appropriate.” United States v. Shaibu, 920 F.2d 1423, 
1425 (9th Cir. 1990). The district court’s conclusion 
that the probation search of Knights’ apartment was 
a subterfuge for a criminal investigation is a factual 
determination which we review for clear error. See 
United States v. Watts, 67 F.3d 790, 793-94 (9th Cir. 
1995), rev’d on other grounds, 519 U.S. 148, 117 S. Ct. 
633, 136 L.Ed.2d 554 (1997). 

6a 

DISCUSSION 

The difficulties at the interface between a person’s 
right to the security of his home and the needs of law 
enforcement are sempiternal. Nonetheless, the balance 
is weighted in favor of the home dweller for reasons 
with a weighty ancient lineage. Coke’s Reports reflect 
that: “the house of every one is to him as his . . . castle 
and fortress, as well for his defence against injury and 
violence, as for his repose. . . .” Semayne’s Case 

5 Coke’s Rep. 91a, 91b (K.B.1603). That meant not 
only that a person could defend his home against 
miscreants, but also that the King’s officers were 
required to give proper notice before entry and had to 
enter in accordance with the law. See id. at 91b-92a. 
Sir Matthew Hale, who died in 1676, also emphasized 
that “every man by the law hath a special protection in 
reference to his house and dwelling.” 1 Matthew Hale, 
Pleas of the Crown 547 (1736). And we read in Wood’s 
Institutes that a sheriff cannot break into a home 
without first giving proper notice, and signifying the 
cause. See Thomas Wood, An Institute of the Laws of 
England 71 (1734). More than that, “[i]f a Justice of 
Peace makes a Warrant upon a bare Surmise, and by 
Virtue thereof One breaks a House . . . It is against 
Magna Charta.” Id. at 615. Finally, as Blackstone said: 
“the law of England has so particular and tender a 
regard to the immunity of a man’s house, that it styles 
it his castle, and will never suffer it to be violated with 
impunity; agreeing herein with the sentiments of 
antient Rome. . . .” 4 William Blackstone, Commen- 
taries *223 (1765). 

7a 

But venerable as they are, we need not depend solely 
on the words of English judges and lawyers for our 
protections. The Fourth Amendment carried forward 
and burnished the principles upon which they relied 
when it commanded that “[t]he right of the people to be 
secure in their persons, houses, papers, and effects, 
against unreasonable searches and seizures shall not be 
violated. . . .” As Justice Story has told us, that 

amendment “seems indispensable to the full enjoyment 
of the rights of personal security, personal liberty, and 
private property. It is little more than the affirmance of 
a great constitutional doctrine of the common law.” See 
Joseph Story, Commentaries on The Constitution of the 
United States, § 1902 (2nd ed. 1851). That was echoed 
and elaborated upon by the redoubtable Thomas M. 
Cooley, who wrote: “[E]very man’s house is his castle. 
The meaning of this is that every man under the pro- 
tection of the laws may close the door of his habitation, 
and defend his privacy in it, not against private 
individuals merely, but against the officers of the law 
and the state itself.” Thomas M. Cooley, The General 
Principles of Constitutional Law 218 (1891). We have 
often said much the same thing. See, e.g., United States 

v. Becker, 23 F.3d 1537, 1539-40 (9th Cir. 1994); see also 
Wilson v. Layne, 526 U.S. 603, 609-13, 119 S. Ct. 1692, 
1697-98, 143 L.Ed.2d 818 (1999). 

Of course, there can be no doubt that a person can 
consent to a search of his home, although we carefully 
scrutinize claims that he has done so. See Shaibu, 920 
F.2d at 1425-26. There also can be little doubt that 
Knights did consent to searches when he agreed to the 

8a 

terms of his probation.2 But we have made it clear that 
his 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. 
That was illustrated in 1985, when we were faced with a 
California probationer who had not had supervision 
services commenced and at whose home a supposed 
probation search was conducted. See Merchant, 760 
F.2d at 965. We had this to say after we reviewed the 
record: 

The facts show that none of the law enforcement 
officers reasonably could have believed that the 
search related to the interests of effective probation 
supervision. There is no showing that the state ever 
made any efforts toward rehabilitating Merchant. 
He did not receive supervision or counseling. In 
fact, he was never even assigned a probation officer. 

The search was conducted because the assistant 
district attorney had received reports of gunfire on 
Merchant’s property. . . . 

2 The government suggests that we have never explicitly said 
that a probationer has consented to a search term. But we have, in 
effect, deemed that the search term is consented to—accepted—by 
the probationer when he is placed upon probation, and we have not 
questioned the binding effect of that consent. So, we have stated 
that a defendant’s probation was “conditioned . . . on his consent” 
to a search term. United States v. Merchant, 760 F.2d 963, 964 (9th 
Cir. 1985). We have also described the limits of a probation search 
term to which, as the government there argued, the defendant had 
“consented” as a “condition of his probation.” United States v. 
Ooley, 116 F.3d 370, 371 (9th Cir. 1997). 

9a 

These facts strongly suggest that the search was a 
subterfuge for conducting a criminal investigation. 
We have condemned the practice of using a search 
condition imposed on a probationer as a broad tool 
for law enforcement. Because the search here 
clearly was not a genuine attempt to enforce pro- 
bation but apparently had a motive of avoidance of 
Fourth Amendment requirements, it is the type of 
law enforcement conduct that ought to be deterred. 
Consequently, the exclusionary rule applies with 
full force. 

Id. at 969 (citations omitted). 

That was not an unusual holding. Rather, it was one 
of a long line of cases. So, over ten years later we dealt 
with the same sort of situation. See Ooley, 116 F.3d at 
372. There, too, a California probationer, with a 
consent to search term like the one in this case, claimed 
that a search by state law enforcement officers was 
merely a subterfuge. Id. at 372. We said, “[w]ith 
respect to probationers, we have long recognized that 
the legality of a warrantless search depends upon a 
showing that the search was a true probation search 
and not an investigation search.” Id. And, we added, 
“[u]nlike an investigation search, a probation search 
should advance the goals of probation, the overriding 
aim of which ‘is to give the [probationer] a chance to 
further and to demonstrate his rehabilitation while 
serving a part of his sentence outside the prison 
walls.’ ” Id. (citation omitted); see also United States v. 
Johnson, 722 F.2d 525, 527-28 (9th Cir. 1983); United 
States v. Consuelo-Gonzalez, 521 F.2d 259, 266-67 (9th 
Cir. 1975) (en banc); cf. Smith v. Rhay, 419 F.2d 160, 
162-63 (9th Cir. 1969) (parole term). 

10a 

Here, the district court’s determination that the 
purpose of the Sheriff ’s Department was the investi- 
gation of Knights and the termination of his nefarious 
career, rather than a probation search, was not clearly 
erroneous. Indeed, it was an almost ineluctable con- 
clusion. Detective Hancock, and his cohorts, were not a 
bit interested in Knights’ rehabilitation. They were 
interested in investigating and ending the string of 
crimes of which Knights was thought to be the 
perpetrator. That string began long before his sum- 
mary probation started. In fact, his probation started 
just three days before the last incident. True, a 
probation officer may also wish to end wrongdoing by a 
probationer, but there was no “also” about Detective 
Hancock’s purpose. He was performing his duty as a 
law enforcement officer and had drawn some very good 
inferences from the facts, but he was using the pro- 
bation term as a subterfuge to enable him to search 
Knights’ home without a warrant. In so doing, he 
crossed the frontier that separates citizen privacy from 
official enthusiasm. The subterfuge will not work. That 
would seem to bring this opinion to a logical close, but 
we must pause to consider a number of arguments 
against this result. 

The government first asserts that the Supreme 
Court severely undercut our probation search jurispru- 
dence when it issued Whren v. United States, 517 U.S. 
806, 116 S. Ct. 1769, 135 L.Ed.2d 89 (1996). In fact, says 
the government, our jurisprudence is so weakened that 
this panel should give it the slight tap that will send it 
crashing to the ground. We will not do that for at least 
two reasons beyond pure principle. In the first place, 
we have reiterated our rule since Whren was decided. 
See Ooley, 116 F.3d at 372. Secondly, the government’s 

11a 

argument turns on the notion that the subjective pur- 
poses of the officers should not be considered if, 
objectively, a probation officer could have conducted a 
probation search. That argument is based upon the 
holding of Whren that the reasonableness of traffic 
stops with probable cause does not depend upon the 
subjective intentions of the officers. See Whren, 517 
U.S. at 813, 116 S. Ct. at 1774. That form of argument 
is far off target when applied in the context at hand. 
Here 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. See United 
States v. Woodrum, 202 F.3d 1, 12-13 (1st Cir.), petition 
for cert. filed, 69 U.S.L.W. 3087 (U.S. June 22, 2000) 
(No. 00-60). We recognize that the California Supreme 
Court disagrees with our Whren analysis. See People v. 
Woods, 21 Cal. 4th 668, 677-81, 981 P.2d 1019, 1025-27, 
88 Cal.Rptr.2d 88, 94-97 (1999). But, then, that court 
does not control our reading of federal constitutional 
law, and for the reasons already stated, we find its 
analysis unpersuasive.3 However, mention of that case 
does lead to another of the government’s arguments. 

The government asserts that in order to avoid con- 
fusing state law enforcement officers we should accept 

3 We note that three of the court’s seven justices were of the 
same mind and vigorously dissented. See Woods, 21 Cal.4th at 682, 
981 P.2d at 1028, 88 Cal. Rptr. 2d at 98 (Kennard, J., dissenting); id. 
at 683, 981 P.2d at 1029, 88 Cal. Rptr. 2d at 98 (Brown, J., dis- 
senting). 

12a 

the fruits of their search, even if we think that the 
search was unconstitutional under the United States 
Constitution. We think not. While state court rulings, 
especially on questions of state law, may be of interest, 
they do not determine the legality of a search for 
Fourth Amendment purposes. See Ooley, 116 F.3d at 
372. Application of the exclusionary rule regarding 
searches does not ordinarily turn on state law, even if 
the state courts would take a more stringent view. See 
United States v. Cormier, 220 F.3d 1103 (9th Cir. 2000); 
United States v. Mota, 982 F.2d 1384, 1387 (9th Cir. 
1993); see also id. at 1389 (Fernandez, J., concurring). 
More to the purpose, accepting the government’s argu- 
ment would amount to the recrudescence of the silver 
platter doctrine. But that platter was melted down by 
the Supreme Court in Elkins v. United States, 364 U.S. 
206, 208, 80 S. Ct. 1437, 1439, 4 L.Ed.2d 1669 (1960), 
where the Court rejected the idea that the fruits of a 
search by state officers which would be unconstitutional 
if conducted by federal officers could be introduced in a 
federal criminal trial. We will not refabricate that 
platter. 

The government passingly makes the argument that 
the officers relied in good faith on California law, and, 
therefore, suppression should not follow. We have 
previously rejected just that kind of argument in this 
context. See Merchant, 760 F.2d at 968-69. At any rate, 
the officers were not trapped into relying on some state 
law or ordinance which was later found to be unconsti- 
tutional. See Illinois v. Krull, 480 U.S. 340, 349-50, 107 
S. Ct. 1160, 1167, 94 L.Ed.2d 364 (1987); cf. Grossman v. 
City of Portland, 33 F.3d 1200, 1209-10 (9th Cir. 1994). 
For at least three decades, it has been the law of this 
circuit that subterfuge probation searches are unconsti- 

13a 

tutional. Perhaps the California courts will admit the 
fruits of the search of Knights’ residence; we will not. 

Finally, argues the government, the purposes of a 
probation search were served because Knights was 
supposed to “obey all laws,” was deterred by the search 
from being a threat to the community, and was further 
deterred from engaging in further criminal activity. No 
doubt a true probation search can serve those ends. 
Then, too, so does an investigative search. In fine, with 
its aduncous argument the government hopes to 
indirectly eliminate our cases which rely on the differ- 
ence between probation and investigation searches. It 
cannot.4 

CONCLUSION 

As we enter the 21st Century, citizens find the very 
notion of privacy under almost relentless assault. 
Random suspiciousness taking and testing of body 
fluids proliferates on ever more flimsy grounds; motor 
vehicle departments sell information about those who 
are forced to give it in order to obtain driver’s licenses; 
banks use private account information for other pur- 
poses and provide it to other related entities; when a 
consumer visits a website, a spy is placed in his com- 
puter; it has become easier to invade homes without 
knocking and giving notice; and on and on. In this 
climate, it is easy to develop callouses on our sense of 
privacy. Perhaps it even seems quaint to worry much 

4 The government also suggests that because it could have 
obtained a warrant, it did not have to do so. To state that pro- 
position is to refute it. See United States v. Mejia, 69 F.3d 309, 
319-20 (9th Cir. 1995). 

14a 

about the sanctity of a home where we can speak, listen, 
read, write and think in privacy. Perhaps it seems even 
more quaint to worry about “[a] probationer’s home 
[which], like anyone else’s, is protected by the Fourth 
Amendment’s requirement that searches be ‘reason- 
able.’ ” 

Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S. 
Ct. 3164, 3168, 97 L.Ed.2d 709 (1987). But worry we 
must, and do. 

We now reiterate our insistence that even when a 
probationer has consented to searches of his home as a 
condition of his probation, those searches must be 
conducted for probation purposes and not as a mere 
subterfuge for the pursuit of criminal investigations. In 
making this decision we need not rely on some resident 
numen or wait for Fulgora to light our way. We can, 
instead, rely upon the wisdom of the ages and upon the 
sagacity of the numerous Ninth Circuit judges who 
have written before us. If we do not heed all of that 
history and learning, who will? 

AFFIRMED. 

15a 

APPENDIX B 

UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF CALIFORNIA 

BEFORE THE HONORABLE MARTIN J. JENKINS 

No. CR-99-0108 MJJ 

UNITED STATES OF AMERICA, PLAINTIFF 

v. 

MARK KNIGHTS; STEVEN SIMONEAU, DEFENDANTS 

SAN FRANCISCO, CALIFORNIA 
MONDAY, NOVEMBER 1, 1999 

TRANSCRIPT OF PROCEEDINGS 

APPEARANCES: 

FOR THE UNITED 
MARTHA BOERSCH, ESQ. 

STATES OF AMERICA: 

U.S. ATTORNEY’S OFFICE 

450 GOLDEN GATE AVENUE, 

10TH FLOOR 

SAN FRANCISCO, 

CALIFORNIA 94102 

16a 

FOR THE DEFENDANT 
HILLARY FOX, ESQ. 

MARK KNIGHTS: 
PUBLIC DEFENDER 

1301 CLAY STREET, 

SUITE 200C 

OAKLAND, 

CALIFORNIA 94612 

(510) 637-3500 

FOR THE DEFENDANT 
JAMES S. THOMPSON, ESQ. 

STEVEN SIMONEAU: 

LAW OFFICE OF JAMES S. 

THOMPSON 

819 DELAWARE STREET 

BERKELEY, 

CALIFORNIA 94710 

(510) 525-9123 

REPORTED BY: 
LYDIA R. RADOVICH, CSR #9223 

COMPUTER-AIDED TRANSCRIPTION 

BY TURBOCAT 

DEPUTY WOZNIAK: Calling Criminal 99-0108, 
United States of America v Mark Knights; United 
States of America v. Steven Simoneau. Attorneys, 
please state your appearance for the record. 

MS. BOERSCH: Good afternoon, Your Honor. 
Martha Boersch for the United States. 

THE COURT: 
Good to see you. 

MS. FOX: 

Good afternoon. Hillary Fox on behalf of 

Mark Knights. 

THE COURT: Good afternoon. Mr. Thompson, good 
to see you. 

17a 

MR. THOMPSON: James Thompson appearing on 
behalf of Mr. Simoneau, who’s present in court, Your 
Honor. 

MS. FOX: 
Mr. Knights is present as well. 

THE COURT: Okay. The record should reflect that 
all counsel are present; all parties are present. You 
may all have a seat. The Court had the matters added 
to calendar to issue its decision with respect to the 
motions that are pending before the Court, and the 
Court will do that. With respect to the motion to 
suppress filed on behalf of Mr. Simoneau, the Court 
finds as follows. 

First, with respect to the June 3rd search of Mr. 
Simoneau’s pickup truck, there were several issues 
posited to the Court. The Court notes that the Govern- 
ment raised the issue of standing as to the matter, 
and certainly as a variant in terms of the expectation of 
pri[v]acy that Mr. Thompson relays, the issue of 
whether or not the vehicle was parked with the pro- 
tections afforded by the Fourth Amendment attached. 

Having reviewed the record in the matter, the Court 
finds that the—certainly ostensibly there is—at least 
there was tacit permission for the positioning of the 
vehicle on the roadway. And that raises a factual nexus 
with respect to standing. However, the Court finds 
that the record does not support a finding that the area 
where the truck was parked is within a curtilage of the 
homes such that its afforded protections under the 
Fourth Amendment. 

I reached this conclusion for several reasons, includ- 
ing resolution of factual issues in contention. First, 

18a 

with respect to the credibility issue, the testimony 
of Mr. Simoneau and Detective Hancock, I find that 
Detective Hancock was credible in this matter; I also 
find that Mr. Simoneau was not. 

First, I find that Mr. Simoneau’s testimony regarding 
the objects that he threw into the river, characterized 
as stale baguettes, was implausible for a number of 
reasons. One, the manner in which he carried such 
objects, even by his accounting, with one hand, were 
cradled in a way that to the Court seems inconsistent 
and defies common sense. The manner in which these 
baguettes, according to Mr. Simoneau, were carried are 
suggestive of greater weight and density than what 
would be stale bread. Moreover, the time of night that 
he opines that he was seeking to feed ducks. And the 
splashes of each of the items were sufficiently loud 
enough for Detective Hancock to have heard them with 
his naked ear from a hundred feet away. 

The Court posits its credibility findings with respect 
to Detective Hancock and Mr. Simoneau, finding the 
latter not credible, is based on more than just what the 
Court has just recited. I find that Mr. Simoneau’s testi- 
mony, specifically that he did not recall if he told Ms. 
O’Connor that he was involved in an accident when 
asked a pointed question—the “I don’t recall” answer, 
in this Court’s view, was suggestive of shaping testi- 
mony at least in a way that—the Court finds that such 
recall and absence of recall in a time frame where there 
has just been an accident and he’s been ordered by an 
officer to remain present, that did he not recall whether 
he had told Miss O’Connor that he was in an accident or 
that an accident occurred, in the Court’s view, does not 

19a 

support a finding that he was credible before this 
Court. 

Having resolved the issue of credibility and finding 
that—Detective Hancock, on the other hand, I did find 
to be credible even up to an including the fact that did 
he not occasion surveillance at the 5150 Wildwood 
address, which supports his statement that he did not 
know that Mr. Simoneau lived at that premises on an 
ongoing basis, just depending on Officer Hancock’s 
testimony to be credible, and therefore I resolved the 
following factual conflicts regarding his testimony and 
document Detective Hancock’s testimony: That there 
were cylindrical objects that he observed Mr. Simoneau 
carrying on the morning of June 3rd, 1998; that he 
observed Mr. Simoneau pick up a glass and wipe it off 
before walking over to—excuse me—to deposit 
something that he thought was a glass into the bed of 
the truck; and then when he came back, that Mr. 
Simoneau did pick up a glass and wipe it off before 
entering the pickup truck and driving to 5150 Wild- 
wood. 

And I further find that Officer Hancock was credible 
in his testimony that he could see the tailgate of the 
pickup and the reflectors from his location on the public 
thoroughfare, and 51 joins—that adjoins or is adjacent 
to Wildwood observed through the passenger-side 
window heavy-duty brass-key-type padlocks; that they 
were recently damaged. I find all those factual asser- 
tions to be credible, given the testimony of Detective 
Hancock. 

Moreover, I declare that the testimony of Detective 
Hancock that he did see the truck’s tailgate and 
reflectors from the public thoroughfare—I also note 

20a 

Detective Hancock’s testimony that he could see the 
tailgate and reflectors as not inconsistent with Mr. 
Wright’s testimony. 

First, Mr. Wright indicates that he only notes that 
Mr. Simoneau has spent the time when he comes out of 
his home on the morning thereafter to obtain his news- 
paper. Moreover, Mr. Knights does not provide specific 
testimony as to the location of the vehicle in the night in 
question, which is of crucial significance to this Court. 

Second, at best, Mr. Wright’s declaration indicates 
that one can’t see into the curve when driving by, 
but offers no evidence on the more salient question of 
whether one can see into the curve from a standing 
position, which is where Detective Hancock indicates he 
made these observations from. Consistent with this 
finding, the record reflects that Simoneau’s truck was 
parked closer to the street than to Mr. Wright’s 
residence; that the truck was parked in the turn area of 
the roadway that’s just before an easement along 
access to a separate home, access to which—that is that 
separate home is obtained via this common driveway 
where Simoneau’s vehicle was parked. 

Now having resolved those factual issues and now 
looking at the factors that are set forth in U.S. v. 
DePuis and several other cases that give the Court the 
standard pursuant to which it’s determined whether or 
not this vehicle on this occasion was parked within the 
curtilage of Mr. Wright’s home, I note the following. 

With respect to the first factor, the areas proximity 
to the home, I find that the location of the truck in 
terms of proximity to the home certainly weighs 
against a finding that the vehicle was within the 

21a 

curtilage. This vehicle was parked far enough down the 
road so as not disturb the residents of the home. And it 
was parked—now having made factual findings sup- 
porting and finding credible Detective Hancock’s state- 
ments, it was parked at a place where the reflectors and 
the tail of the truck could be observed. 

The second factor focuses on the nature of the uses 
and the intimate activities of—and whether intimate 
activities of the home are carried on in this area. 
Clearly Mr. Wright’s testimony was that no such 
activities—family picnics, get-togethers or anything of 
that nature—were occurring or ever occurred in the 
area where Mr. Simoneau parked his vehicle. So that 
factor also cuts against a finding that this vehicle was 
parked within the curtilage. 

The third factor—steps taken to protect from public 
view the area at issue—I note that while there are 
trees that do obscure views, there is no testimony that 
these trees were planted for the purposes of protecting 
the driveway from observation. And, in fact, on this 
factual record I have found, crediting Detective Han- 
cock’s testimony, that the vehicle was observable from 
the public thoroughfare. There are “No Trespass” 
signs posted. And, as I previously indicated, Mr. 
Wright’s testimony in this issue was not inconsistent 
with the Court’s finding; as he indicated, that there was 
a blind spot that was difficult to see from a vehicle. 
That is not in conflict with Detective Hancock’s testi- 
mony. 

Now, Simoneau’s testimony that he gave Detective 
Hunter his driver’s license prior in time to Hancock’s 
entry onto the driveway, in this Court’s view, adds 
nothing to the objective prong of this analysis. And to 

22a 

the extent that there is an issue of the officer’s 
subjective state of mind, having found his testimony 
credible that did he not know—and I do find it credible 
—that Simoneau lived there, is consistent with his 
canvassing the neighborhood to find out Simoneau’s 
connection to the private roadway there at 5150 Wild 
Horse Road. 

So to the extent that there was some subjective 
determination being made, I find, having found 
Detective Hancock credible, that, in fact, he did not. 
Therefore the fourth factor—whether the area was 
included within the enclosure surrounding the home—is 
the only factors that argues a support of finding that 
the vehicle was parked within the curtilage. However, 
the clear weight of the evidence with respect to all of 
the factors does not support such a finding. 

As such, the observations of the truck made from a 
place where the officer had a right to be, inasmuch as 
the truck was not parked within the legal curtilage of 
this home, the facts that then innervate the issuance of 
the search warrant allowing for a search and seizure of 
the vehicle the Court finds to pass constitutional 
muster and to be reasonable. 

Having made these findings, Florida v. White poses 
no legal impediment of the officer’s entry on the road 
where the truck was parked or the observations made. 
Moreover, the Court finds the warrant was valid and 
did authorize a search of the vehicle, and that the 
impoundment of the vehicle was lawful. 

With respect to the scope of the testimonies taken, 
which is the next issue addressed in this matter, from 
the truck, Mr. Simoneau’s truck, I do find that under 

23a 

Marx and several other decisions cited by Mr. 
Thompson, that there really is no clear nexus to 
criminality from several of the items that were seized. 
And the officer was involved in general exploration not 
sanctioned by a very specific search warrant. 

Having made this finding, I note as follows; that in 
Officer Stuart’s report of 6/3/98 inventorying the pro- 
perty seized, and more particularly items number 751, 
the silver and turquoise bracelet and brown and black 
necklace, 759, the foreign currency, seven—I have 
“7510,” but the description is a silver-colored braided 
necklace and bracelet, horse pin, gold-colored ring with 
six rows of white stones—none of these items bear any 
nexus of criminality, yet are not within the scope of the 
warrant that authorized seizure, and therefore are sup- 
pressed. 

However, I find the officer’s conduct in seizing these 
items just referred to was not so flagrant with respect 
to the limitations in the search warrant such that this 
was a general search supporting suppression of all 
evidence seized. The items ordered suppressed are 
those specifically delineated by the Court. And with 
the exception of those items referenced, the defendant’s 
motion regarding the items seized at the time of the 
search warrant on June 3rd is denied. 

With respect to the search of the Ford wagon, license 
number CA3LAN399, that occurred on or about June 
5th, the Court notes as follows. First, the Court finds 
that the officer’s action in effecting the search and 
impound of this wagon meets the standards of reason- 
ableness under the Fourth Amendment for the follow- 
ing reasons. First, the vehicle was evidence of a crime 
itself, having been involved in an automobile accident 

24a 

just prior to its seizure. And so the automobile itself 
being fruits of the crime subject to seizure—as applied, 
the impound search under 22655.5, Subsection B, also 
passes constitutional muster inasmuch as there was a 
basis for the seizure and impound of the vehicle. 

As such, the subsequent search and seizure of the 
items in the vehicle are justified under an inventory 
search rationale, and also under the doctrine of dis- 
covery in this matter. Therefore the motion to sup- 
press the items seized from the truck on June 5th is 
denied. 

Having ruled on the issues before the Court with 
respect to the motion of Mr. Simoneau, I now turn to 
the motion filed on behalf of Mr. Knight, and I note as 
follows; that Mr. Knights moves to suppress any and all 
items recovered in the search of his apartment on June 
3rd, 1998, and on June 16, 1998. 

In response, the Government contends that the 
defendant has consented to the search of his residence 
through his entry of a guilty plea and waiver of his 
Fourth Amendment rights as a condition and accep- 
tance of the probation grant. In support of the its 
position the Government relies on Zap v. The United 
States; U.S. v. [Ooley], general concept cases. And the 
California Supreme Court’s decision in People v. Bravo, 
wherein the Court upheld the search of a defendant’s 
residence as a result of his consent to search as a term 
of probation. 

Interestingly, the defendant Knight also cites to 
[Ooley] and argues that the Government’s consent 
rationale was rejected in this case by the Ninth Circuit. 
The Court in [Ooley] did state as follows in the begin- 

25a 

ning of its analysis of the probation search. In that case 
the Government argues that [Ooley] consented to the 
warrantless search of his residence by having accepted 
as a condition of his probation the State’s requirement 
that he relinquish his Fourth Amendment protections, 
notwithstanding his reference to the issue of consent. 
The Ninth Circuit remanded the case for determination 
of whether the search was a true probation search or 
not. Although 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 defen- 
dant’s Fourth Amendment rights. 

As such, I find that [Ooley] cannot support the 
Government’s consent rationale where the Court re- 
manded the case, notwithstanding the assertion of con- 
sent as a rationale to uphold the search. Moreover, my 
research as failed to disclose a single federal case that 
has addressed the issue of consent in this context now 
before the Court, and determined that the acceptance 
of a search clause as a condition of probation constitutes 
a complete waiver of the party’s Fourth, Amendment 
rights. 

For instance, in Griffin v. Wisconsin the Supreme 
Court addressed the objectives served by the exercise 
of search pursuant to a regulatory scheme for pro- 
bations. The Court sanctioned a departure from 
probable-cause requirement in cases involving a pro- 
bationer search because the State’s operation of a pro- 
bation system, like its operation of a school, govern- 
ment office or the like, presents special needs beyond 
normal law enforcement that may justify departures 

26a 

from the usual warrant and probable-cause require- 
ment. 

Specifically the court stated restrictions on probation 
liberties are meant to assure that probation serves— 
that the probationer serves a period of genuine 
rehabilitation, and that the community is not harmed by 
probationers being at large. These goals require the 
exercise of supervision to assure that restrictions are 
observed. 

As importantly, the Wisconsin court stated that the 
imposition of a full-blown warrant requirement would 
interfere to an appreciable degree with the probation 
system and probation’s ability to respond quickly to 
evidence of misconduct. In upholding the search in 
Wisconsin, the Court found that a tip provided by a 
police detective that the defendant had or may have 
had an illegal weapon at his home constituted the 
requisite reasonable grounds necessary to conduct a 
search. 

Based on the Supreme Court’s decision in Griffin, 
where the Court held that full-blown probable cause 
was not required to establish the reasonableness of a 
probation search under the Fourth Amendment, it 
seems implicit that there is some minimum expectation 
of pri[v]acy that remains, even post acceptance of a 
search clause, as a condition of probation. 

Consistent with the Supreme Court’s decision in 
Griffin v. Wisconsin, the First Circuit, in U.S. v. 
Gianetti, decided—which is 909 Fed. 2d 571—stated 
that the permissible bounds of a probation search are 
governed by the following requirements. First, there 

27a 

must exist a reasonable suspicion and, second, a finding 
that the search was a true probation search. 

While the California Supreme Court authorities re- 
lied on by the Government in Bravo, 43 Cal. 3d, and 
Reyes, 19 Cal. 4th, wholly embrace the Government’s 
rationale regarding the consensual nature of a search 
condition pursuant to a bargain for plea agreement and 
are also persuasive, [Ooley] clearly holds that these 
cases are not controlling. Whereas here the validity for 
a search conducted by State law enforcement officers is 
a question of federal law, given the Court’s ruling in 
[Ooley] and the dearth of authority to support a finding 
of waiver in a probation-search context, I decline to 
adopt a rule at this juncture that—and will analyze a 
search here under [Ooley], Griffin versus—which is 
contained in current Ninth Circuit authority addressing 
validity of probation searches standard determining set 
forth in Griffin v. Wisconsin, [Ooley], and several other 
Ninth Circuit decisions, and is well defined. 

These cases hold that under limited circumstances, 
law enforcement officers may search a probationer’s 
home without obtaining a warrant and without pro- 
bable cause. The permissible bounds of a probation 
search are governed by a reasonable-suspicion stan- 
dard. 

The Government argues here that a reasonable sus- 
picion is not required, but if it is, the record here 
supports such a finding based on the Ninth Circuit 
decision U.S. v. Davis, 32 Fed. 2d 752. In Davis the 
Ninth Circuit defined the reasonable-suspicion stan- 
dard as follows; that the officer must have a reasonable 
suspicion is limited to whether the item that is to be 

28a 

searched is owned controlled or possessed by the 
probationer. 

While I disagree with the Government’s position 
regarding the requirement of reasonable suspicion, I 
find on this record that reasonable suspicion has demon- 
strated a view of Davis and the cases cited there and 
supports each of my conclusions in this regard, which I 
will discuss now. 

First, regarding the requirement of a reasonable 
suspicion, I note that the Ninth Circuit in Davis was 
faced with determining the scope of the reasonable- 
suspicion standard as it relates to the items to be 
searched, because the defendant there, unlike the case 
at bar, conceded that the officers had the requisite 
reasonable suspicion to enter his residence. The Davis 
Court ultimately determined that the police had rea- 
sonable suspicion to search the safe at issue, as it was 
owned controlled or possessed by the probationer. 
While Davis speaks to the issue of the scope of rea- 
sonable suspicion in the probation-search context, it 
does not delineate the contours of the reasonable- 
suspicion standard in its broader application. 

The standard governing reasonable suspicion re- 
quired in a probation-search context is more clearly set 
forth in U.S. v. Gianetta, which is cited in the Ninth 
Circuit decision, and in Gianetta makes clear the rea- 
sonable standard applies to probation searches, and 
defines that standard more specifically that the First 
Circuit held, despite the absence of a regulatory scheme 
such as that at play in Griffin, that Griffin still applies to 
probation searches arising out of plea negotiations. 

29a 

The Gianetta Court held that while a regulatory 
framework such as that operable in Griffin provides 
guidance to probation officers and furnishes constraints 
similar guides is provided in negotiated-plea context 
because the sentencing judge can narrowly tailor the 
scope of the search condition to the circumstances of 
the case. Therefore probation searches sanctioned by 
the courts that are based on reasonable [suspicion] are 
supported by the same special needs justifications and 
have the same characteristics of reasonableness as a 
search upheld in Griffin. 

The Gianetta Court then went on to define rea- 
sonable suspicion as follows. A reasonable suspicion is a 
reasonable belief based on specific and articulable facts 
rather than a mere inchoate or unparticularized sus- 
picion or hunch. In Gianetta, the fact that the probation 
officer had assembled evidence of repeated unauthor- 
ized travel outside the district was sufficient. Gianetta, 
as I indicated previously, supports this Court’s finding 
that as a matter of federal law, [probationers] retain 
some level of pri[v]acy post acceptance of a search con- 
dition. 

Second, regarding whether the Government has met 
its burden to establish suspicion, I find the Government 
has met its burden with respect to the making of 
incendiary devices and/or participation in the arson of 
the PG&E equipment at Devlin Road without error. 
With respect to the use and possession of narcotics, 
first, it is clear that on a continuum reasonable sus- 
picion requires more than a hunch, but something less 
than probable cause. Probable cause, in turn, requires 
something less than a preponderance of the evidence. 

30a 

On this record the Court finds the following facts 
give rise to a reasonable suspicion. First, the history of 
vandalism of the PG&E facilities and the occurrence of 
that vandalism close in time to appearances made in 
court by Mr. Knights. Second, that Knight and 
Simoneau were present at Route 29 Rivendell Road 
(phonetic) May 24th, 1998, at approximately 10:30 near 
the PG&E gas line—near a PG&E gas line; and that 
Knight, prior in time to this, had been arrested for the 
theft of PG&E services, establishing some motivation. 

Moreover, at the time that observation on May 24 a 
sheriff’s deputy noticed and observed chains and pipes 
of the types that were used in the vandalisms, and they 
were seen in the trunk of Mr. Simoneau’s vehicle. 
Thereafter Detective Hancock was aware of Clark’s 
report of the location of Mr. Simoneau’s vehicle near 
the 539 Brown Street residence Mr. Knights lived; and 
that on June 2nd, approximately one hour or so after 
the Devlin Road arson, Deputy Clark touched the hood 
of Mr. Simoneau’s vehicle and found it to be warm. 

Moreover, there was surveillance set up outside of 
Knights’ residence on the evening of June 2nd and into 
the morning of June 3rd. And at their—at that time, 
Mr. Simoneau was observed carrying three cylindrical 
items, which I made actual findings with respect to, out 
of the apartment area of Mr. Knights’ apartment, and to 
deposit those items into the Napa River. 

These facts, in the Court’s view, provide more than a 
hunch that Mr. Knights was involved in and had a 
motivation to be possessed of items of an incendiary 
nature, the manufacture of which would be inconsistent 
with the rehabilitative aspects of his probation. And 

31a 

the Court finds requisite reasonable suspicion on this 
ground and on this basis alone. 

The legal issue left to be determined, then, is 
whether the validity of—regarding the validity of this 
search focuses on whether the search was a true 
probation search or an investigative search in nature. 
This legal requirement, as clearly set forth in the 
[Ooley] decision, focuses on whether or not the record 
demonstrates that the search was to advance the goals 
of probation, the overriding aim of which is to give the 
probationer a chance to further demonstrate his reha- 
bilitation while serving part of his sentence in the 
community. 

The analysis is further complicated here where the 
search clause specifically allows for searches by peace 
officers, probation officers, but fails to make any 
mention—excuse me—but fails—but the record fails to 
reflect the appointment of a probation officer that the 
officer could contact to obtain permission to exercise on 
the probation clause. Because there was no assigned 
probation officer for Officer Handock to contact, the 
record here is a bit more complicated than the cases 
cited by counsel to the Court. While these facts compli- 
cate the analysis, they do not present insurmountable 
roadblocks for the resolution of this matter. 

The Government asserts that the search—that a 
search that is motivated in whole or part by a law 
enforcement officer’s belief that a probationer is com- 
mitting a new crime serves a probationary purpose. In 
addition, the Government argues that efforts via search 
geared to determine if Mr. Knights was making ex- 
plosive devices addresses issues of potential harm to 
the community, therefore serves an additional pro- 

32a 

bationary purpose. The Government asserts through 
the testimony of Officer Hancock that in effecting the 
search of Knights’ residence, the officer acted to ensure 
that he wasn’t involved in the possession of or manu- 
facture of any weapons, and a search to deter such 
conduct fosters rehabilitation and serves the objective. 

Facts known to Hancock prior to the execution of the 
probation search, prior to the search June 1998, are the 
following. First, Defendant Knight suspected in a 
PG&E vandalism dating back to 1996. Officer Hancock 
was involved in that investigation. 

Second, on June 2nd Hancock learned from Deputy 
Clark that Simoneau’s truck was parked at Knights’ 
residence roughly one hour after the Devlin Road 
arson. When he palpated the hood, the hood felt warm. 

Third, on June 2nd Hancock learned from Deputy 
Hunter that Simoneau and Knight had been together in 
Simoneau’s vehicle on May 24th at Route 29 at ap- 
proximately 10:30 at night, and that Hunter had ob- 
served chains and bars, the types of objects that were 
used in a vandalism of PG&E equipment, in the back of 
Mr. Simoneau’s truck, consistent with this evidence. 
And on June 2nd prior to surveillance of Knights’ home, 
Hancock prepared an operations order and obtained 
permission to search Knights’ home at a time when the 
objective evidence pointed to Knight as a suspect in the 
arson that had occurred on Devlin Road. 

This evidence in its totality establishes that Knight 
was present with Mr. Simoneau and that he was in 
Simoneau’s truck, where objects were observed con- 
sistent with those used to vandalize PG&E property, 
but even after adding in the observations that were 

33a 

made on the morning of June 3rd, 1998, outside of 
Knights’ residence, the Court finds that the objective 
evidence, as opposed to the subjective evidence or 
characterization of the purpose of the probation search, 
does not support the Government’s conclusion that this 
search was conducted for purposes consistent with 
goals served by probation; that is to say notwith- 
standing Officer Hancock’s testimony that he was 
concerned about deterring the commission of crime 
based on possession or manufacture of incendiary 
devices and effecting the search of Knights’ residence, 
the weight of the objective evidence supports a finding 
that a search here was undertaken for purposes of 
fostering the investigation of Mr. Knights’ involvement 
in the possession and manufacture of incendiary devices 
primary to obtain evidence toward a criminal investi- 
gation for arson or manufacture of those same incendi- 
ary devices. And under current Ninth Circuit law, this 
search was invalid here. 

Just as in U.S. v. Merchant, Officer Hancock’s failure 
to seek permission of the Court is objectively troulbed 
[sic]. Officer Hancock took time to seek permission 
from his supervisor to conduct a probation search on 
June 2nd, a day before the search of Knights’ residence. 
He failed, though, to use that same time to seek 
permission from the Court. Merchant, a 1984 Ninth 
Circuit decision, clearly indicates that in the absence of 
an assigned probation officer, it is a sentencing judge 
who retains he power to require supervision of the 
probationer to punish violations of conditions of 
probation and to reoke probation. And Merchant cites 
California authority In Re: Osslo, O-s-s-l-o, at 51 Cal. 
2d, 371. Here, as in Merchant, where the issue was 
discussed in the context of objective good faith, I find 

34a 

the objective facts strongly suggest the search was 
subterfuge conducting a criminal investigation. 

The prosecution next argues that the Supreme 
Court’s decision in [Whren] alters significantly the 
Court’s analysis of whether the search is a true pro- 
bation search or not. This is because [Whren] enunci- 
ates the principle under the Fourth Amendment is 
objective reasonableness, and where there is objective 
evidence to support a finding of probable cause, the 
Court is not to be concerned with the officer’s state of 
mind in analyzing Fourth Amendment issues. 

I find that [Whren] imposes no safe harbor for the 
Government with respect to the justification of this 
search. First [Ooley] is post [Whren] by a full year, yet 
the Ninth Circuit remanded [Ooley] to the trial court 
for purposes of ascertaining whether the search under- 
taken in that case was a true probation search. The 
standard enunciated in [Ooley] is consistent with the 
requirement that probation searches, as special needs 
searches, can be effected on something less than pro- 
bable cause. Moreover, [Whren] is fully consistent with 
the analysis here. 

Finding that, based on my view of the objective 
evidence without regard to subjective concerns, the 
weight of the objective evidence supports a finding as a 
matter of fact that this search was undertaken for pur- 
poses of investigating Mr. Knights’ involvement in the 
manufacture of incendiary devices. As such, if [Whren] 
applies at all, it requires that there be objective 
evidence that the probation search at issue was for pro- 
bation purposes. The record in this case, I have found, 
fails to establish any such objective evidence, other 
than Office Hancock’s after-the-fact declaration that 

35a 

this search was to determine if the defendant was 
committing crimes involving incendiary devices, which 
is inconsistent with the goals of probation. 

I note that to the extent that there is any objective 
evidence to support the search of Mr. Knights’ resi- 
dence for probation purposes, it would have to be as set 
forth in the June 2nd request by Detective Hancock of 
the supervisor to effect the search for drugs. However, 
on this record there is no reasonable suspicion to 
support such a search. 

Now in so ruling, I find that any probation search 
could be characterized in like fashion to the charac- 
terization asserted here by the Government, and would 
render all probation searches appropriately character- 
ized as rehabilitative in nature as valid. 

Second, in spite of the Court, the Government’s 
questioning of the proper contours that should govern 
the Court’s determination of whether this is a probation 
search or not, I am not at liberty to depart from Ninth 
Circuit precedent on this question. 

Third, I note that the analysis of the consent-waiver 
issue by the California Supreme Court in cases such as 
Bravo, while they are persuasive, the issue in terms of 
the validity of the search is a matter of federal law. I 
say this because the government has pushed the Court 
to consider—and I have considered it—the quandary 
local law enforcement officers find themselves in, given 
the standards enunciated in [Ooley] versus the bright 
line rule enunciated by the California Supreme Court in 
Bravo. While these cases approach the issue differ- 
ently, the legal positions that they articulate and the 
conflict emanating from these holdings has been long- 

36a 

standing and has not varied over time. As such, the 
officers have or should have been on notice regarding 
the law of probation searches with respect to Ninth 
Circuit as a matter of federal criminal procedure and 
with respect to the California Supreme Court’s analysis 
in Bravo. 

Lastly, the Government offers two other alternative 
rationales for upholding the search of Mr. Knights’ 
residence: The doctrine of inevitable discovery and 
good faith under Leon regarding inevitable discovery. 
The court finds that on these facts the Court has a 
significant question as to whether a warrant would 
have issued from Knights’ residence. The affidavit at 
issue fails to set forth training and experience regard- 
ing Hancock’s ability to identify the objects carried by a 
Simoneau on the morning of June 3rd as pipe bombs. 
While the record articulated based on the totality of the 
evidence provides, in this Court’s view, a basis for a 
reasonable suspicion, I have already noted that that 
standard is less than a fair probability that is required 
for the issuance of a search warrant. 

I find the affidavit here deficient regarding the 
officer’s training and experience with respect to the 
standard necessary for the issuance of a search warrant 
with respect to Mr. Knights’ residence. The affidavit, 
while articulating the vandalisms occurred within 
several days of Knights’ arrests far conduct related to 
PG&E property, failed similarly to articulate any facts 
or officer’s expertise connecting Knights’ home as a 
place where the items of contraband might reasonably 
be found. Based on the absence of these facts, I find 
there are significant questions on this record as to 
whether a warrant would have issued. 

37a 

Moreover, the exercise of discretion incumbent in the 
issuance of a search warrant by a neutral magistrate 
cuts against the policy that underpins the doctrine of 
inevitable discovery. The Court finds inevitable dis- 
covery does not support the reasonableness of the 
search in this matter. 

Finally, the Court finds that the existence of long- 
standing clearly delineated case law in the Ninth 
Circuit regarding the standard governing probation 
searches, the application of the good faith rationale for 
upholding such a search, cut against a finding that any 
reasonable officer could have reasonably relied to 
his—in good faith on California authority solely in the 
exercise and effecting the search in this matter. 
Finding no rationale supported objectively in the re- 
cord to sustain the Government’s burden of proof with 
respect to this search of Mr. Knights’ residence on June 
3rd, I hereby suppress all evidence seized during that 
search. 

Finally, with respect to the June 16th, 1998, search, 
having reviewed the entirety of the record, the Court 
finds there is clearly a basis to find common authority 
based on the mutual use of the property by a person, in 
this case defendant Knights’ girlfriend, Kathy Brown. 
And the record supports a finding of joint access or 
control. Moreover, she was present on the 3rd at the 
time of the search, and again on the 16th. 

There is one bedroom in the residence, and both Miss 
Brown and Mr. Knights have access to that residence 
and that bedroom. She was observed packing objects 
when the officers arrived. All these facts establish, at a 
minimum, access, if not control. The testimony further 
was that the door to the apartment was ajar and Miss 

38a 

Brown allowed the officers entry, further supporting an 
objective finding of access and control. Under the Kelly 
decision of the facts as delineated by the Court, I find 
the officers had consent to search, and as such, I deny 
the request to suppress the evidence as a result of the 
search of Mr. Knights’ residence on June 16, 1998. 

Those are the rulings that the Court enters with 
respect to both motions to suppress in this matter. 

* * * * * 

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APPENDIX C 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

No. 99-10538 
D.C. No. CR-99-00108-MJJ 

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT 

v. 

MARK JAMES KNIGHTS; STEVEN SIMONEAU, 
DEFENDANTS-APPELLEES 

[Filed: Oct. 5, 2000] 

ORDER DENYING PETITION FOR REHEARING 
AND PETITION FOR REHEARING EN BANC 

Before: CANBY, REINHARDT, and FERNANDEZ, 

Circuit Judges. 

The panel has unanimously voted to deny the appel- 
lant’s petition for rehearing. The petition for rehearing 
en banc was circulated to the judges of the court, and no 
judge requested a vote for a en banc consideration. 

The petition for rehearing and the petition for re- 
hearing en banc are DENIED.