Justices Weigh Police Searches of Offenders Given Probation

The Supreme Court on Tuesday took up the case of an accused saboteur of a Northern California power plant to decide whether people on probation can be searched regularly and without a warrant by the police.

California is the only state that says offenders who choose probation over prison must agree to have their homes and cars searched whenever the police want, the justices were told. This policy affects 324,000 Californians, the state’s lawyers said.

It also will affect those who are given probation for “nonviolent drug possession” under Proposition 36, they added. Under the terms of that measure, adopted last year, these drug offenders must be given treatment and probation, not prison.

“Thus, the California electorate has authorized warrantless searches by law enforcement officers,” the state’s lawyers said.

While it has nothing directly to do with the war on terrorism, the case poses a classic test of the need for broader police powers versus claims of traditional constitutional rights.

If the questions and comments from the bench are a good indicator, California’s police will get the extra powers they want.

Nationwide, 4.6 million people were out of prison on probation or parole last year, according to the Justice Department. While these individuals can be questioned or searched by their probation officers, other states do not permit general searches of their homes or vehicles by other law enforcement officials.

Ruling in a case from Napa, the U.S. 9th Circuit Court of Appeals said last year that California’s policy on these police searches and home break-ins was unconstitutional.

“Perhaps it seems quaint to worry much about the sanctity of a home,” wrote Judge Ferdinand Fernandez for the appeals court. But the 4th Amendment does not permit “investigative searches” of homes by the police, he said, unless officers have a warrant.

The Supreme Court heard the government’s appeal on Tuesday in the case of U.S. vs. Knights, 00-1260.

Several justices said people on probation give up some of their rights in exchange for staying out of prison.

“This is a package deal,” said Justice Ruth Bader Ginsburg. The state says a criminal defendant can go free, but only by consenting to be searched regularly, she said.

Justice Stephen G. Breyer agreed. “In prison, you will be searched randomly. Why can’t the state do the same thing by saying we will let you out on probation, but we’ll search you randomly?” he asked.

Breyer said halfway houses can work as an alternative to prison only if law enforcement authorities can check to see that former inmates there are not committing further crimes.

Pointing to the case before the court, Justice Sandra Day O’Connor said California’s policy has shown its value.

In 1998, Mark James Knights was put on probation for a minor drug offense. He signed a standard form saying he would “submit his . . . person, property, place of residence, vehicle [and] personal effects to search at any time . . . by any probation officer or law enforcement officer.”

Police in the Napa area were then investigating at least 30 incidents of vandalism against Pacific Gas & Electric power plants and Pacific Bell, the telephone company. Knights had come under suspicion because he had refused to pay utility bills and had found a way to bypass the electric meters.

Two days after a fire had knocked out phone service at the Napa County Airport, police decided to raid Knights’ home. Acting without a search warrant, they broke into his home. Officers found bomb-making equipment, fuses, bolt cutters, instruction manuals and locks that had been taken from PG&E; plants.

Knights then was indicted in federal court on arson and other charges. But the 9th Circuit ruled that the incriminating evidence must be thrown out because police had violated his rights.

A Justice Department lawyer said that Knights had waived his rights against such searches. He gave “voluntary consent to future searches,” said Malcolm Stewart, an assistant U.S. solicitor general.

He agreed that this search power is not limitless. Putting video cameras in a home, or insisting on lifelong agreement to be searched might go too far, he said.

What about waivers of “your Miranda rights or your rights to be free of coerced confessions?” asked Justice John Paul Stevens. “You can get information out of people if you apply the screw,” he noted.

No, Stewart replied, the government cannot ask people to waive their rights against being tortured.

Hilary Fox, a federal public defender from Oakland, urged the justices to preserve the distinction between “probation searches” and general searches by police for unrelated offenses.

“California’s blanket search policy allows searches any time, day or night, for any reason or no reason, and that is untenable,” she said.

While all the justices listened attentively, none seemed to agree.