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 

REPLY BRIEF FOR THE UNITED STATES 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

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

TABLE OF AUTHORITIES 

Cases: Page 

Atwater v. City of Lago Vista, No. 99-1408 (Apr. 24, 

2001) ......................................................................................... 

8, 9 

Blackledge v. Allison, 431 U.S. 63 (1977) .......................... 

3 

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

4 

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

4 

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

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

5, 7, 8 

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

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

5, 6, 7, 8 

Santobello v. New York, 404 U.S. 257 (1971) .................... 

3 

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

3 

United States v. Conway, 122 F.3d 841 (9th Cir. 

1997), cert. denied, 522 U.S. 1065 (1998) ........................... 

8 

Constitution: 

U.S. Const.: 

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

5, 8 

Amend. V (Due Process Clause) ......................................... 4 

(I) 

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 

REPLY BRIEF FOR THE UNITED STATES 

1. The petition for certiorari explains that, under the 
well-established rule permitting searches based on con- 
sent, petitioner executed a valid and enforceable con- 
sent to future searches when he agreed as a condition of 
probation 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; Pet. 
App. 4a. We further explain that just as a criminal 
defendant may voluntarily plead guilty, thereby relin- 
quishing the right to trial by jury and the various 
procedural rights that would be afforded him at that 
trial, nothing in the Constitution precludes a defendant 
from accepting probation subject to a condition per- 

(1) 

2 

mitting warrantless searches by law enforcement 
officers. 

Respondent contends (Br. in Opp. 5-6) that the 
government “failed to present any of these arguments 
to the court of appeals.” That assertion is without 
basis. The government’s brief in the court of appeals 
distinguished prior Ninth Circuit precedents on the 
ground that the court of appeals “ha[d] never squarely 
considered whether a probationer’s consent to a search 
as a condition of probation is sufficient to authorize any 
probation search, even one that is undertaken for an 
investigative purpose.” Gov’t C.A. Br. 13. We ex- 
plained that under this Court’s precedents, “such a 
consent may constitute a valid waiver of a probationer’s 
Fourth Amendment rights.” Ibid. We observed that 
respondent “agreed to the warrantless search condition 
in return for obtaining the benefit of avoiding a longer 
custodial sentence,” and that “as with waivers of other 
constitutional rights, [respondent’s] consent is not 
rendered involuntary simply because he agreed to the 
search condition when the alternative was to refuse to 
accept the condition and face incarceration.” Id. at 15- 

16. The government’s court of appeals brief also drew 
on prior decisions of this Court and the California Su- 
preme Court upholding guilty pleas entered pursuant 
to plea bargains. Id. at 16. The arguments set forth in 
the petition for certiorari were therefore fully aired in 
the court of appeals.1 

2. Respondent contends (Br. in Opp. 6) that “the 
record is devoid of any factual basis to support” our 
position because the government did not present evi- 
dence that respondent’s agreement to the search 

1 We have lodged a copy of our court of appeals brief with the 
Clerk of this Court. 

3 

condition was the result of a bargained-for exchange. 
But the validity of a property owner’s consent to search 
does not depend on proof of a process of negotiation and 
exchange. It is sufficient that consent was given 
voluntarily, without government coercion. Schneckloth 

v. Bustamonte, 412 U.S. 218, 229 (1973). By the same 
token, a voluntary plea of guilty entered by a properly 
advised defendant is valid and enforceable even if the 
defendant has not negotiated with the government 
regarding the ensuing disposition of the criminal 
charge. Indeed, “[o]nly recently has plea bargaining 
become a visible practice accepted as a legitimate com- 
ponent in the administration of criminal justice. For 
decades it was a sub rosa process shrouded in secrecy 
and deliberately concealed by participating defendants, 
defense lawyers, prosecutors, and even judges.” Black- 
ledge v. Allison, 431 U.S. 63, 76 (1977). Thus, until this 
Court’s decision in Santobello v. New York, 404 U.S. 
257 (1971), when “lingering doubts about the legitimacy 
of the practice were finally dispelled,” Blackledge, 431 
U.S. at 76, it was an open question whether evidence of 
negotiation between the parties could impugn an 
otherwise valid guilty plea. That history is inconsistent 
with any suggestion that a process of bargaining be- 
tween an individual and the government is an essential 
predicate for a waiver of constitutional rights. 

3. Respondent contends (Br. in Opp. 6, 8-9) that the 
Ninth Circuit’s decision is consistent with the weight of 
authority in other courts of appeals. Respondent cites 
no case, however, in which a court of appeals has 
addressed the question whether a criminal defendant 
can execute an enforceable consent to future searches 

4 

as a condition of release on probation.2 Moreover, in 
every one of the court of appeals cases cited at pages 8- 
9 of the brief in opposition, the court sustained the 
validity of the challenged probation or parole search. 

In any event, as the petition for certiorari explains 
(at 20-21), the conflict between the Ninth Circuit and 
the California Supreme Court on the legality of “Fourth 
Waiver” searches of state probationers creates sub- 
stantial impediments to effective law enforcement in 
the Nation’s most populous State. That conflict by 

2 Respondent’s reliance (Br. in Opp. 6-7) on Morrissey v. 
Brewer, 408 U.S. 471 (1972), and Griffin v. Wisconsin, 483 U.S. 868 
(1987), is misplaced for essentially the same reasons. Morrissey 
holds that the Due Process Clause imposes some constraints on the 
procedures that may be employed in the parole revocation context, 
notwithstanding the fact that the State is under no constitutional 
obligation to permit release on parole in the first instance. 408 
U.S. at 480-484. Griffin upheld a Wisconsin regulatory scheme 
that authorized warrantless searches of a probationer’s home by a 
probation officer based on “reasonable grounds” to believe that a 
violation of the terms of release had occurred. 483 U.S. at 872-880. 
Neither decision addresses the question whether a probationer (or 
parolee) may execute a valid and enforceable consent to future 
searches as a condition of release into the community. Contrary to 
the suggestion of amicus Rutherford Institute (see, e.g., Br. 2), the 
absence of express statutory authorization for warrantless 
searches of California probationers does not invalidate the search 
in this case. Requests for consent to search are routinely made on 
an ad hoc basis, and amicus identifies no case suggesting that 
the validity of a consent search depends on express statutory 
authorization to request the property owner’s consent. Griffin is 
of no help to amicus; there, the Court sustained a warrantless 
search under administrative regulations promulgated pursuant to 
a statutory grant of authority. 483 U.S. at 870-871. The Court did 
not speak to the issue of consent. 

5 

itself warrants resolution by this Court.3 See Br. of 
Amicus Curiae State of California 3-6. 

4. Respondent contends that the present conflict 
between the Ninth Circuit and the California Supreme 
Court does not warrant this Court’s resolution because 
the California Supreme Court may be in the process of 
revising its probation search jurisprudence. Respon- 
dent relies for that proposition on Justice Brown’s 
dissenting opinion in People v. Woods, 21 Cal. 4th 668, 
683 (1999), cert. denied, 529 U.S. 1023 (2000), and on 
Justice Kennard’s concurring and dissenting opinion in 
People v. Reyes, 19 Cal. 4th 743, 756 (1998), cert. 
denied, 526 U.S. 1092 (1999). That contention lacks 
merit for at least three reasons. 

a. The court in Woods observed that 

[i]n California, probationers may validly consent in 
advance to warrantless searches in exchange for the 
opportunity to avoid service of a state prison term. 
For nearly three decades, [the Supreme Court of 
California] has upheld the legality of searches 

3 Respondent suggests that the conflict in authority is of little 
moment because “California law enforcement officials who choose 
not to comply with federal law in this area retain the option of 
pursuing prosecution in state court.” Br. in Opp. 15. But the 
Fourth Amendment to the United States Constitution applies 
equally to state and federal prosecutions; the fact that the state 
and federal courts in California would resolve the Fourth Amend- 
ment question presented here differently is a reason for this Court 
to grant review, not deny it. Respondent essentially ignores our 
observations that the Ninth Circuit’s decisions in this and prede- 
cessor cases (1) impair the efforts of federal and state authorities 
to engage in cooperative law enforcement (Pet. 20), and (2) create a 
potential risk of civil damages liability in federal court for state 
officials who carry out searches that have long been upheld by the 
California Supreme Court (Pet. 20-21). 

6 

authorized by probation terms that require pro- 
bationers 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. 

21 Cal. 4th at 674-675 (citations and footnote omitted). 
Respondent does not contend that a majority of the 
Supreme Court of California has ever disavowed either 
the ultimate conclusion that such warrantless searches 
are permissible, or the consent rationale on which that 
conclusion has been based. That individual members of 
that court have disagreed with some aspects of the 
majority’s analysis does not lessen the practical signifi- 
cance of the current conflict between the Supreme 
Court of California and the Ninth Circuit. 

b. As the petition for certiorari explains, the court of 
appeals’ analysis in this case rests on a purported 
distinction between “probation” and “investigation” 
searches. The court held that where the purpose of a 
search is to confirm or dispel suspicion that a proba- 
tioner is engaged in criminal activity, the search must 
be authorized by a judicial warrant, even if the proba- 
tioner has previously consented to searches as a 
condition of probation. See Pet. App. 10a, 14a. Respon- 
dent identifies no opinion, however, in which any mem- 
ber of the California Supreme Court has endorsed that 
proposition. 

In Woods, Justice Brown’s dissenting opinion argued 
that officers could not rely on the Fourth Waiver to 
justify a warrantless search whose purpose was to 
investigate allegations of wrongdoing against the 
probationer’s co-resident. Justice Brown would have 
held that the investigation of the co-resident was 
unconnected “to the reasons for imposing [a search] 
condition in the first place, i.e., to monitor the proba- 

7 

tioner’s progress and compliance with the terms of 
probation.” 21 Cal. 4th at 691 (citation omitted). 
Justice Kennard’s concurring and dissenting opinion in 
Reyes took the view “that a warrantless search of a 
parolee is permissible only if there is a ‘reasonable 
suspicion’ that the parolee has committed a crime or has 
violated the terms of parole.” 19 Cal. 4th at 756-757 
(citation omitted). The search in this case appears valid 
under either of those approaches.4 Neither of those 
opinions suggests that the applicability of a warrant 
requirement turns on whether a search aimed at the 
probationer is conducted for a “probation” or “investi- 
gation” purpose. 

c. In Reyes, the California Supreme Court held that 
a state parolee may be subjected to warrantless 
searches without any showing of individualized suspi- 
cion, even though a California prisoner is not entitled to 
refuse parole and therefore cannot be said to have 
consented to the search condition. The court sustained 
the search on the theory that parolees have a reduced 
expectation of privacy in light of the conditional nature 
of their release, and that the interest in maintaining 
close supervision of parolees justifies the intrusions in 

4 Because respondent consented to searches “with or without a 
search warrant, warrant of arrest or reasonable cause by any pro- 
bation officer or law enforcement officer,” C.A. E.R. 73; Pet. App. 
4a, the validity of the search in this case does not depend on 
whether the searching officers had individualized suspicion of 
wrongdoing. The district court found, however, that “reasonable 
suspicion” existed, see Pet. App. 30a-31a, and the court of appeals 
did not question that holding. Rather, the court found that the 
search was invalid because the officers who conducted it were 
“using the probation term as a subterfuge to enable [them] to 
search [respondent’s] home without a warrant.” Id. at 10a 
(emphasis added). 

8 

question. 19 Cal. 4th at 747-754; see Pet. 10-11 n.8. In 
Woods, Justice Brown’s dissenting opinion stated that 
“the consent theory articulated in People v. Bravo 

* * * may be largely moot in light of [Reyes]. * * * 
Th[e] administrative necessity rationale of Reyes 
applies equally to probationers and should effectively 
supersede the fictive consent justification of Bravo.” 
21 Cal. 4th at 686; see Br. in Opp. 12. 

Justice Brown’s statement provides no support for 
respondent’s suggestion (Br. in Opp. 12-13) that the 
present conflict between the Ninth Circuit and the 
Supreme Court of California may resolve itself without 
this Court’s intervention. To the contrary, Justice 
Brown simply recognized that under Reyes, warran- 
tless searches of adult probationers may be permissible 
without regard to the validity of the probationer’s 
consent. That such searches are now potentially 
sustainable under California Supreme Court precedent 
on two bases rather than one scarcely diminishes the 
conflict between that court’s decisions and those of the 
Ninth Circuit. 

5. The petition for certiorari explains (at 8 & n.5, 20) 
that the Ninth Circuit’s probation search cases, taken 
together, have failed to articulate coherent and admin- 
istrable standards for distinguishing valid from invalid 
searches. See United States v. Conway, 122 F.3d 841, 
843 (9th Cir. 1997) (Wallace, J., concurring in the result) 
(“Our precedent on the Fourth Amendment standards 
governing state probation searches is in considerable 
disarray.”), cert. denied, 522 U.S. 1065 (1998). The need 
for such standards is of critical importance to admini- 
stration of the Fourth Amendment, “lest every discre- 
tionary judgment in the field be converted into an 
occasion for constitutional review.” Atwater v. City of 
Lago Vista, No. 99-1408 (Apr. 24, 2001), slip op. 26; see 

9 

ibid. (“Often enough, the Fourth Amendment has to be 
applied on the spur (and in the heat) of the moment, and 
the object in implementing its command of reason- 
ableness is to draw standards sufficiently clear and 
simple to be applied with a fair prospect of surviving 
judicial second-guessing months and years after an 
arrest or search is made.”). 

Respondent contends (Br. in Opp. 13) that “[t]he rule 
is simple: the consent-to-search term of a probation 
agreement is limited to probationary searches, and not 
investigatory searches.” But because the most funda- 
mental term of probation is that an individual must 
refrain from committing further crimes, any meaning- 
ful effort to monitor and supervise a probationer will 
necessarily involve efforts to determine whether the 
subject is involved in criminal activity. The purported 
distinction between probation and investigation 
searches is especially elusive as applied to persons on 
summary probation in California, who are not directly 
supervised by a probation officer. See Pet. App. 4a. 

* * * * * 

For the reasons stated above, and for those stated in 
the petition for a writ of certiorari, the petition should 
be granted. 

Respectfully submitted. 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

APRIL 2001