JOSEPH G. GRIFFIN, PETITIONER V. STATE OF WISCONSIN No. 86-5324 In the Supreme Court of the United States October Term, 1986 On Writ of Certiorari to the Supreme Court of Wisconsin Brief for the United States as Amicus Curiae Supporting Respondent TABLE OF CONTENTS Question presented Interest of the United States Statement Summary of argument Argument: The probation officers' search of petitioner's residence did not violate the Fourth Amendment A. A warrantless search conducted on reasonable suspicion is valid in certain contexts B. A probation officer may conduct a warrantless search in circumstances such as those in this case 1. Probationers have lesser legitimate privacy interests than persons not under criminal sentence 2. There is a strong public interest in permitting probation officers to conduct warrantless searches on reasonable suspicion as a condition of probation 3. The search of petitioner's house was authorized by a valid condition of probation Conclusion QUESTION PRESENTED Whether a probation officer's warrantless search of a probationer's home is reasonable under the Fourth Amendment where the probation officer has reasonable grounds to suspect a probation violation and the search is authorized by a general regulatory scheme defining the conditions of probation. INTEREST OF THE UNITED STATES This case raises an important question concerning the validity under the Fourth Amendment of a probation officer's search of a probationer's house. The United States has a strong interest in the Fourth Amendment standards that apply to searches of federal probationers and parolees. Federal law authorizes courts to impose "such terms and conditions as the court deems best" when placing a convicted defendant on probation. 18 U.S.C. (& Supp. III) 3651; see 18 U.S.C. (Supp. III) 3563. Pursuant to this authority, federal courts have frequently imposed conditions permitting searches of probationers among the conditions of their probation. See, e.g., Owens v. Kelley, 681 F.2d 1362 (11th Cir. 1982). Similarly, the United States Parole Commission has authority to impose "reasonable conditions" when placing a prisoner on parole. 18 U.S.C. 4203(b)(2), 18 U.S.C. (& Supp. III) 4209; see United States v. Binder, 313 F.2d 243 (6th Cir. 1963); Gould v. Green, 141 F.2d 533 (D.C. Cir. 1944). A decision in this case regarding the constitutionality of warrantless searches of probationers and parolees will therefore have a significant impact on the operation of the federal probation and parole systems. STATEMENT Petitioner was convicted by a jury in the circuit court of Rock County, Wisconsin, of possession of a firearm by a convicted felon, in violation of Wis. Stat. Ann. Section 941.29(2) (West Supp. 1986). He was sentenced to two years' imprisonment. The Court of Appeals of Wisconsin (Pet. App. A13-A24) and the Supreme Court of Wisconsin affirmed his conviction (Pet. App. A1-A12). 1. In 1983 petitioner was on probation for a 1980 conviction for resisting arrest, disorderly conduct, and obstructing an officer. Prior to that offense, petitioner had been convicted of the felony offense of possession of heroin with intent to deliver it. As a convicted felon, petitioner could not possess firearms without thereby committing a further criminal offense. Wis. Stat. Ann Section 941.29(2) (West Supp. 1986). As a probationer, petitioner was "in the custody" of the Wisconsin Department of Health and Social Services and subject to the department's regulations (Wis. Stat. Ann. Section 973.10 (West 1985 & Supp. 1986)). Those regulations required advance permission before a probationer could obtain a firearm (Wis. Admin. Code HSS Section 328.04(3)(j); Br. in Opp. 102) and authorized warrantless searches if there were reasonable grounds to believe the probationer possessed contraband. Firearms constituted contraband for purposes of the regulations, both because petitioner was a convicted felon and because he had not obtained permission to possess a gun (Pet. App. A8 n.7, A9; Br. in Opp. 101-104). On April 5, 1983, Michael T. Lew, a supervisor in the Bureau of Probation and Parole in Beloit, Wisconsin, received a telephone call from a detective in the Beloit Police Department, informing him that petitioner had or might have guns in his apartment. After waiting two or three hours for petitioner's probation officer, Lew arranged for another probation officer, Joanne Johnson, to accompany him to petitioner's apartment. For their protection, Lew and Johnson were joined by three Beloit police officers. Pet. App. A2. Upon arriving at the apartment, Lew identified himself and his colleagues and said they were going to search the apartment. Lew and Johnson first searched the bedroom and the kitchen, while the police officers accompanied petitioner and a companion to the living room. The police officers did not participate in the search. In the living room, Lew found a handgun, which he turned over to one of the police officers. Lew then directed the officers to take petitioner into custody for a probation violation. When Johnson entered the living room, she took possession of a substance that appeared to be marijuana, which she had seen on a living room table when she first entered the apartment. Pet. App. A2. 2. Petitioner was subsequently charged both with possession of a firearm by a felon and possession of a controlled substance, THC. The trial court denied petitioner's motion to suppress the evidence obtained in his apartment, ruling that the search did not violate petitioner's Fourth Amendment rights. The court held that a probation officer must act reasonably in conducting a search of a probationer's residence and that the search in this case was reasonable. The court further found that the police officers were present only for the probation officers' protection and that the search was not a police search. See Pet. App. A3. The Wisconsin Court of Appeals affirmed petitioner's conviction. It concluded that an exception to the warrant and probable cause requirements was justified by virtue of the nature of probation, which imposes on a probationer certain restrictions as conditions on the grant of liberty. Pet. App. A15-A18. The Wisconsin Supreme Court affirmed the decision of the court of appeals. The court based its holding on a prior Wisconsin case that had noted the limited liberty and privacy interests of probationers. State v. Tarrell, 74 Wis. 2d 647, 247 N.W.2d 696 (1976). A probationer enjoys only conditional liberty, the court reasoned, and his Fourth Amendment rights are necessarily limited by restrictions that are reasonably related to the dual ends of probation -- rehabilitation of the probationer and protection of the public. Pet. App. A6. The court held that the limitations on a probationer's freedom and the responsibility of a probation officer to determine whether the probationer is complying with the terms of his probation justify an exception to the warrant and probable cause requirements of the Fourth Amendment. Id. at A5-A7. A probation officer's warrantless search of a probationer's home, the court therefore concluded, is valid as long as it meets the basic Fourth Amendment requirement of reasonableness. Id. at A8. The court then held that the reasonableness test was satisfied by the Wisconsin Administrative Code provision that permits probation officers to conduct warrantless searches on less than probable cause. Pet. App. A7-A9. The regulation (Wis. Admin. Code HSS Section 328.21(7); Br. in Opp. 103-104) allows such searches if there are "reasonable grounds to believe" that contraband is present in the probationer's residence. The regulation also sets out guidelines for determining when reasonable suspicion exists. See Pet. App. A8-A9. Applying those guidelines, the court held that the search in this case was not a police search and that the tip from a police detective provided the required reasonable grounds to justify the search. Pet. App. A9-A10. Two justices dissented. One dissenter would have required a warrant for the search, but would have authorized the issuance of the warrant on less than probable cause. Pet. App. A10-A11. The other dissenter concluded that the tip from the police detective was not sufficiently reliable to satisfy the regulatory guidelines and therefore did not provide reasonable grounds for the search. Id. at A10-A12. SUMMARY OF ARGUMENT We agree with the Supreme Court of Wisconsin that the warrantless search of petitioner's residence, conducted on reasonable suspicion of a probation violation, was reasonable under the Fourth Amendment. Although private residences are generally entitled to the protections of both a warrant and probable cause, the "overarching principle * * * embodied in the Fourth Amendment" is one of "reasonableness." United States v. Villamonte-Marquez, 462 U.S. 579, 588 (1983). The Court has accordingly held that a warrantless search on a reduced level of suspicion, or even without any individualized suspicion at all, is reasonable in a variety of contexts, especially where the search is part of a regulatory program rather than an ordinary criminal investigation by law enforcement officers. See, e.g., New Jersey v. T.L.O., 469 U.S. 325 (1985); Donovan v. Dewey, 452 U.S. 594 (1981). Such a search is reasonable where the intrusion on privacy interests is counterbalanced by the governmental interests supporting the search, and the standards governing the search adequately constrain official discretion. Those tests are met in a case such as this one, where probation officers are authorized by a general sentencing and corrections scheme to conduct warrantless searches on reasonable suspicion of a probation violation. Probationers stand between prisoners and free citizens in the liberty they enjoy, and their legitimate privacy interests should be defined accordingly. By definition, probationers are under criminal sentence. They avoid prison, where Fourth Amendment rights in living quarters are non-existent (Hudson v. Palmer, 468 U.S. 517 (1984)), only by submitting to numerous conditions of release, designed both to assist in rehabilitation and to protect the public. Those conditions often tightly regulate probationers' lives and subject probationers to close supervision by probation officers, who have a kind of in loco parentis authority over them. Probationers therefore have lesser legitimate privacy interests than members of the general public. The governmental interests supporting the authority to conduct warrantless searches on reasonable suspicion are closely tied to the purposes of probation and the fact that prison is the alternative to release on probation. Close supervision of probationers may be critical both to their successful rehabilitation and to minimizing the risk that they will engage in conduct that is harmful to society or themselves. The necessary supervision would be impossible in many circumstances if probation officers had to seek a warrant or await the development of full-scale probable cause before exercising their responsibilities to monitor and intervene in probationers' lives. Moreover, many persons convicted of crime would be ill served if sentencing authorities faced the choice between imprisonment and release without the special supervision made possible by a relaxed Fourth Amendment standard. The availability of broad search authority may be the necessary condition for release of convicted defendants who would otherwise be confined in prison. A reasonable suspicion standard in the probation context meets this Court's concerns that there be adequate constraints on official searching discretion. The probable cause standard is peculiarly appropriate to ordinary criminal investigations (see, e.g., Colorado v. Bertine, No. 85-889 (Jan. 14, 1987), slip op. 4), and probation officers are not ordinary law enforcement officers engaged in criminal investigations. Rather, they are essentially regulatory officials and are, moreover, at least as concerned for probationers' welfare as for public safety. Gagnon v. Scarpelli, 411 U.S. 778, 783-784 (1973). Wide discretion is necessary to carry out the oversight functions of the office. A reasonable suspicion standard, when authorized as part of a legislative or administrative scheme for regulating the conduct of criminal offenders not confined in prison, provides an adequate check on the discretion to search. The search of petitioner's house was conducted pursuant to regulations meeting these standards. Recognizing that the rehabilitative and protective purposes of probation require a relaxed Fourth Amendment standard for probation searches, Wisconsin regulations authorize warrantless searches for contraband, but they permit searches only on reasonable suspicion and they set forth guidelines for determining when such suspicion exists. In this case, a tip from a police detective established reasonable grounds to suspect that petitioner had a gun, and probation officers thus acted reasonably in conducting the search that resulted in its discovery and removal from petitioner's possession. ARGUMENT THE PROBATION OFFICERS' SEARCH OF PETITIONER'S RESIDENCE DID NOT VIOLATE THE FOURTH AMENDMENT A. A Warrantless Search Conducted On Reasonable Suspicion Is Valid In Certain Contexts "The fundamental command of the Fourth Amendment is that searches and seizures be reasonable * * * ." New Jersey v. T.L.O., 469 U.S. at 340. See United States v. Montoya de Hernandez, No. 84-755 (July 1, 1985), slip op. 5; United States v. Villamonte-Marquez, 462 U.S. at 588. Thus, the Fourth Amendment "does not denounce all searches or seizures, but only such as are unreasonable." Carroll v. United States, 267 U.S. 132, 147 (1925). The test of reasonableness, moreover, "is not capable of precise definition or mechanical application." Bell v. Wolfish, 441 U.S. 520, 559 (1979). Rather, in defining the contours of the right to be free from unreasonable searches and seizures, this Court has repeatedly said that "'the specific content and incidents of this right must be shaped by the context in which it is asserted.'" Wyman v. James, 400 U.S. 309, 318 (1971) (quoting Terry v. Ohio, 392 U.S. 1, 9 (1968)). See also New Jersey v. T.L.O., 469 U.S. at 337 ("what is reasonable depends on the context within which a search takes place"). In the context of an ordinary investigation of criminal conduct by law enforcement officers, the Court has generally held that both probable cause and a warrant are necessary to render a search reasonable. See United States v. Karo, 468 U.S. 705, 717 (1984); United States v. United States District Court, 407 U.S. 297, 317 (1972). In other situations, however, searches have been held reasonable without meeting one or both of those requirements. See New Jersey v. T.L.O., 469 U.S. at 340 ("although 'both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, * * * in certain limited circumstances neither is required'" (quoting Almeida-Sanchez v. United States, 413 U.S. 266, 277 (1973) (Powell, J., concurring)). For example, only "reasonable suspicion" is required for a "stop and frisk" under Terry v. Ohio, supra. See also Pennsylvania v. Mimms, 434 U.S. 106 (1977). Reasonable suspicion is likewise sufficient to support a search of the passenger compartment of an automobile during an investigative stop. Michigan v. Long, 463 U.S. 1032 (1983). The Court has also permitted officials to stop cars in the vicinity of the nation's borders and to question their occupants on reasonable suspicion of an immigration violation, United States v. Brignoni-Ponce, 422 U.S. 873 (1975), as well as to open packages mailed from abroad on reasonable suspicion of illegality, United States v. Ramsey, 431 U.S. 606 (1977). In addition, the Court has held that school authorities may conduct warrantless searches of school children on reasonable suspicion of an infraction of school disciplinary rules. New Jersey v. T.L.O., supra. In still other contexts, the Court has recognized that a warrantless search may be reasonable even in the absence of any individualized suspicion of unlawful conduct. For example, the Court held in Hudson v. Palmer, 468 U.S. 517 (1984), that a prisoner has no Fourth Amendment rights in the privacy of his cell. In United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976), the Court held that border officials may stop automobiles at permanent checkpoints without any individualized suspicion. The Court has also held that no individualized suspicion is required for the Coast Guard or Customs Service to board a vessel and to examine its owner's documents. United States v. Villamonte-Marques, supra. Of special importance to this case, the Court has required neither a warrant nor individualized suspicion for certain "administrative" searches -- searches conducted as part of a regulatory program designed to ensure compliance with regulatory requirements. Thus, a warrantless entry to inspect premises, without any particularized suspicion, is permitted if it is authorized by a legislative scheme for pervasively regulated industries. Donovan v. Dewey, supra (inspection of mines); United States v. Biswell, 406 U.S. 311 (1972) (gun dealers); Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970) (alcohol dealers). For similar reasons, a welfare caseworker may enter the home of a welfare recipient in order to ensure compliance with welfare rules. Wyman v. James, supra. Even police officers need not obtain a warrant or have particularized suspicion when they perform various non-criminal "administrative caretaking functions" (South Dakota v. Opperman, 428 U.S. 364, 370 n.5 (1976)), such as searching impounded objects to take inventory pursuant to routine procedures, Colorado v. Bertine, supra; Illinois v. Lafayette, 462 U.S. 640 (1983); South Dakota v. Opperman, supra, or searching a car for the service revolver of an off-duty officer, Cady v. Dombrowski, 413 U.S. 433 (1973). See also Harris v. United States, 390 U.S. 234 (1968) (officer discovered evidence while locking an impounded car). In short, the Court has repeatedly recognized that the Fourth Amendment requirement of "reasonableness" sets different standards in different contexts. Especially outside the context of an ordinary criminal investigation, the probable cause and warrant requirements are often unsuited to fulfilling the purpose of the Fourth Amendment -- to impose a limit of "'reasonableness' upon the exercise of discretion by government officials" in order to protect individuals against arbitrary government invasions. Delaware v. Prouse, 440 U.S. 648, 653-654 (1979). Accordingly, the Court has carefully examined the unique features of each context in deciding the appropriate test of reasonableness to be applied in that context. The Court has articulated a balancing test to govern this inquiry. "The permissibility of a particular law enforcement practice is judged by 'balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.'" United States v. Montoya de Hernandez, slip op. 5 (quoting United States v. Villamonte-Marquez, 462 U.S. at 588). See also Delaware v. Prouse, 440 U.S. at 654; Camara v. Municipal Court, 387 U.S. 523 (1967). This approach recognizes that not every invasion of privacy is prohibited by the Fourth Amendment, but only "arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals" (United States v. Martinez-Fuerte, 428 U.S. at 554). "Where a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, (the Court has) not hesitated to adopt such a standard" (New Jersey v. T.L.O., 469 U.S. at 341). In examining a particular search practice in light of the degree of intrusion on privacy interests it allows and the strength of the governmental interest supporting it, the Court has often found a third consideration important -- the amount of discretion left to the officials carrying out the search. See, e.g., Donovan v. Dewey, 452 U.S. at 601-604; Delaware v. Prouse, 440 U.S. at 654, 661; Marshall v. Barlow's, Inc., 436 U.S. 307, 320-321 (1978). See also Colorado v. Vertine, slip op. 1 (Blackmun, J., concurring). Because the constitutional constraint on discretion is simply one of "reasonableness" (Delaware v. Prouse, 440 U.S. at 654), the means needed to confine searching discretion adequately vary from context to context. What is required to meet the constitutional concern for controlling discretion depends on the strength of the governmental interests in a particular search practice and the impairment of privacy interests that the practice effects. B. A Probation Officer May Conduct A Warrantless Search In Circumstances Such As Those In This Case We note at the outset that there is no challenge in this case, nor could there reasonably be, to the authority of probation officers to conduct "home visits" at probationers' residences. See 18 U.S.C. (Supp. III) 3563(b)(17) (probationer must "permit a probation officer to visit him at his home or elsewhere as specified by the court"). Indeed, petitioner concedes (Br. 25) that a home visit is valid under the Fourth Amendment. As petitioner observes, such home visits are "clearly both minimally intrusive and directly related to a probation agent's supervisory function" (ibid.). Accordingly, we think it clear that probation officers, in fulfilling their supervisory responsibilities, may constitutionally conduct routine or unscheduled home visits without a warrant or any grounds for suspecting a violation of a condition of probation. See Wyman v. James, supra; United States v. Rea, 678 F.2d 382, 387 (2d Cir. 1982); United States v. Workman, 585 F.2d 1205, 1208 (4th Cir. 1978); 4 W. LaFave, Search and Seizure Section 10.10(c), at 142-144 (2d ed. 1987) (hereinafter cited as LaFave). This case requires the Court to determine whether the Fourth Amendment permits the additional intrusion of a full-scale search of the probationer's home, at least when the search is conducted by probation officers having reasonable suspicion of a probation violation, and when the search is authorized by a general legislative sentencing and corrections scheme. We think it does. We recognize that private residences are "ordinarily afforded the most stringent Fourth Amendment protection." United States v. Martinez-Fuerte, 428 U.S. at 561. But the Fourth Amendment standards are relaxed in a context "(w)here a careful balancing of governmental and private interests suggests that the public interest is best served" by doing so. New Jersey v. T.L.O., 469 U.S. at 341. In the unique context of probation or parole, it is reasonable under the Fourth Amendment for a state to authorize warrantless searches on reasonable suspicion. Probationers and parolees are permitted to be at large only on numerous conditions and under supervision aimed at rehabilitation of the individual and protection of the public. At least where, pursuant to an overall statutory scheme for sentencing and corrections, it is determined that warrantless searches on reasonable suspicion are necessary to serve these correctional goals, that lower standard of Fourth Amendment protection is a reasonable condition of freedom from confinement. /1/ 1. Probationers have lesser legitimate privacy interests than persons not under criminal sentence A probationer has been convicted of a crime and is therefore legitimately subject to a variety of deprivations of liberty. For that reason, the degree of privacy that a probationer may legitimately expect cannot be determined by reference to the privacy rights of the population at large. Rather, it must be judged by reference to the legally authorized treatment of convicted offenders and, more particularly, the character and purposes of probation as "an established variation on imprisonment of convicted criminals." Morrissey v. Brewer, 408 U.S. 471, 477 (1972); see Gagnon v. Scarpelli, 411 U.S. at 783-784. /2/ To begin with, release on probation is a substitute for imprisonment. E.g., 18 U.S.C. (& Supp. III) 3651 (judge may substitute probation for some or all of prison sentence); Wis. Stat. Ann. Section 973.09 (West 1985 & Supp. 1986); 18 U.S.C. (Supp. III) 3563(b)(11) and (12) (court may require probationer to report to prison for nights, weekends, or other intervals of time; court may also require residence at a community correctional facility). If the probationer were in prison, he would have no Fourth Amendment protection at all against searches of his living quarters -- that is, his cell. Hudson v. Palmer, supra. It is therefore unreasonable for a probationer to expect that, when a court has exercised its discretion to release rather than imprison him, his living quarters must remain free from any government scrutiny other than that applicable to members of the general public. /3/ Recognizing that prison is the alternative to probation, some states, such as Wisconsin, treat a probationer as being in "custody." Wis. Stat. Ann. Section 973.10 (West 1985 & Supp. 1986). See also United States v. Thomas, 729 F.2d 120, 123 (2d Cir.), cert. denied, 469 U.S. 846 (1984) (a "parolee is in the legal custody of a parole officer"); LaFave 129 & n.11. Even where that label is not used, however, it is generally recognized that probation places the probationer in a kind of ward status. The probation officer "stands substantially in loco parentis or in the position of a guardian to a ward, one with a history of fractiousness or worse." United States v. Scott, 678 F.2d 32, 34 (5th Cir. 1982) (parole). See also Latta v. Fitzharris, 521 F.2d 246, 249 (9th Cir.) (en banc), cert. denied, 423 U.S. 897 (1975) (parole); United States v. Consuelo-Gonzalez, 521 F.2d 259, 265-266 (9th Cir. 1975) (en banc) (probation). This status, with the diminished independence and autonomy it entails, follows from the character of probation as a means of promoting rehabilitation without imprisonment. As this Court said in Roberts v. United States, 320 U.S. 264, 272 (1943), "the basic purpose of probation * * * (is) to provide an individualized program offering a young or unhardened offender an opportunity to rehabilitate himself without institutional confinement under the tutelage of a probation official and under the continuing power of the court to impose institutional punishment for his original offense in the event that he abuse this opportunity." Being subject both to "the tutelage of a probation official" and to the power to be imprisoned, a probationer cannot reasonably have an ordinary free citizen's expectation of privacy. Any expectation of full privacy protection would be unreasonable in light of the wide range of impairments of freedom to which probationers have long been subjected. For example, the federal probation statute authorizes (and in certain circumstances demands) the imposition of conditions requiring probationers not only to obey the law and to pay fines or make restitution, but also to pursue employment, refrain from certain occupations, avoid certain places or people, undergo certain medical or psychological treatment, submit to prison custody at night or on weekends, attend or live at a community corrections facility, work in community service, reside at or avoid specified places, seek permission before leaving the jurisdiction, permit home visits, and answer questions by and report to their probation officers. 18 U.S.C. (Supp. III) 3563. Moreover, under the catchall authorization provision (18 U.S.C. (Supp. III) 3563(b)(20) (probationer must "satisfy such other conditions as the court may impose")), the courts have imposed conditions affecting a wide range of conduct. Much of that conduct, like much of the conduct restricted by the conditions specifically enumerated in the statute, involves activities that are ordinarily constitutionally protected. See United States v. Tonry, 605 F.2d 144, 151 (5th Cir. 1979); United States v. Consuelo-Gonzalez, 521 F.2d at 264-265. /4/ There is, to borrow from the administrative search cases, "a long tradition of close government supervision, of which any person * * * (who becomes a probationer) must already be aware" (Marshall v. Barlow's, Inc., 436 U.S. at 313). With respect to numerous aspects of a probationer's life, the "regulatory presence is sufficiently comprehensive and defined" (Donovan v. Dewey, 452 U.S. at 600) that any claim to full privacy protections would be unreasonable. Not only has there long been pervasive regulation of probationers' conduct generally, but the courts have widely held that probationers have diminished Fourth Amendment privacy rights against searches. /5/ The traditional restrictions on probationers' privacy interest suggests that the actual expectation of privacy is less than that of persons who have not been convicted of crime. It also indicates that the normal expectation of privacy is not one that "society is prepared to recognize as 'reasonable'" for probationers (Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)). In sum, the special character of a probationer's status, the long history of close government regulation of probationers' lives, and the widespread recognition that probationers are afforded lesser protections under the Fourth Amendment than persons who are not under criminal sentence all suggest that probationers have a diminished legitimate expectation of privacy, at least against searches by those who are responsible for their supervision. A search of a probationer's house by probation officers thus works a less serious invasion of legitimate privacy interests than the ordinary house search does. The severity of the intrusion is further reduced if the probationer is informed of the authority to search sufficiently in advance of the search itself -- for example, at the outset of the period of probation or through the promulgation of search regulations. See LaFave 141. 2. There is a strong public interest in permitting probation officers to conduct warrantless searches on reasonable suspicion as a condition of probation Probation, as an alternative to imprisonment, is designed "'to help individuals reintegrate into society as constructive individuals as soon as they are able * * * .'" Gagnon v. Scarpelli, 411 U.S. at 783 (quoting Morrissey v. Brewer, 408 U.S. at 477). See also Roberts v. United States, 320 U.S. at 272 (probation gives offender "opportunity to rehabilitate himself without institutional confinement"). The probation laws, however, subject probationers to conditions not just to aid in their rehabilitation, but also to protect society against them. See, e.g., 18 U.S.C. (Supp. III) 3563, 3553(a)(2). It has thus been widely recognized that the central purposes of probation are both "the rehabilitation of the probationer, and the protection of society." Owens v. Kelley, 681 F.2d at 1367; see United States v. Consuelo-Gonzalez, 521 F.2d at 264. /6/ A critical aim of the conditions imposed on probationers is to prevent the probationer from committing further crimes, both for his own good and for that of society. Refraining from further criminal conduct is the single condition of probation that appears to be universally recognized. See, e.g., 18 U.S.C. (Supp. III) 3563, 3553(a)(2). Close supervision of the probationer is obviously necessary to further that aim by preventing all criminal conduct on the probationer's part, not just conduct of the type involved in the conviction underlying the probation. As one commentator has said in the context of parole, the institution of the parole system represents a legislative judgment that these men can achieve effective rehabilitation only with the aid of supervision and guidance from governmental officials. Certainly this judgment cannot be considered unreasonable. The recidivism rate of parolees is extremely high. In addition, studies have demonstrated that in certain types of cases, at least, close surveillance by parole officials tends to reduce the rate of recidivism among parolees. White, The Fourth Amendment Rights of Parolees and Probationers, 31 U. Pitt. L. Rev. 167, 183-184 (1969) (footnote omitted). The same analysis applies to the decisions of courts to release convicted defendants on probation. LaFave 138. /7/ The close supervision that is essential to serve the aims of probation may require that probation officers have the authority to conduct searches without a warrant and on reasonable suspicion rather than probable cause. A reduced level of suspicion permits the probation officer to determine more effectively whether rehabilitation is taking place. Moreover, a reasonable suspicion standard permits early intervention in order to prevent destructive conduct by the probationer, who is by definition under correctional treatment for a fairly recent crime. /8/ A reasonable suspicion standard also serves the important function of deterrence: it increases the risk to the probationer of engaging in conduct that violates the probation conditions. See Owens v. Kelley, 681 F.2d at 1367. These functions of a reduced level of suspicion are of particular importance for certain classes of probationers, such as drug offenders and career criminals, who may require especially close supervision in order to prevent the recurrence of hard-to-detect criminal activity. In the closely analogous administrative search cases, this Court has approved a reduced level of suspicion for similar reasons. The Court has noted that the searches in such cases are not ordinary criminal investigations by "police or uniformed authority" (Wyman v. James, 400 U.S. at 322-323). Instead, they are designed as part of a regulatory program to enforce compliance with, and to deter violations of, prescribed standards of conduct. A level of suspicion lower than probable cause, or even no individualized suspicion at all, may be necessary for effective regulation, especially when those who are subject to the regulatory program have a history of failing to meet the prescribed standards. See, e.g., Donovan v. Dewey, 452 U.S. at 599, 600, 603. This Court has noted that the standard of probable cause "'is peculiarly related to criminal investigations'" (Colorado v. Bertine, slip op. 4 (citation omitted)). A probation officer is not a law enforcement official and is not "engaged in the often competitive enterprise of ferreting out crime" (Johnson v. United States, 333 U.S. 10, 14 (1948) (footnote omitted)). /9/ Instead, as this Court recognized in Gagnon v. Scarpelli, a probation officer has a "'double duty to the welfare of his clients and to the safety of the general community, (and) by and large concern for the client dominates his professional attitude'" (411 U.S. at 783-784 (citation omitted)). See also State v. Fields, 686 P.2d at 1388 (citation omitted) (probation officer is "'a social therapist in an authoritative setting'"; "a helper, a monitor, and an enforcer"). This dual attitude on the part of probation officers justifies entrusting them with an unusually wide range of discretion. Because of the nature of their responsibilities, probation officers can reasonably be expected to refrain from undue invasions of a probationer's privacy that might hinder rehabilitation. /10/ As this Court noted in Gagnon v. Scarpelli, 411 U.S. at 784, "(b)ecause the probation or parole officer's function is not so much to compel conformance to a strict code of behavior as to supervise a course of rehabilitation, he has been entrusted traditionally with broad discretion * * * ." A probable cause requirement would therefore not only interfere with the goals of the probation system, but it would be unnecessary to guard against the kinds of abuses that a less stringent standard might invite if applied in the law enforcement context. The reasonable suspicion standard, although not as stringent as the probable cause standard, nonetheless provides an effective check against unjustified invasions of privacy. Thus, this Court concluded in Delaware v. Prouse that a reasonable suspicion standard satisfied its concern that law enforcement officials not be left with "unbridled discretion" in conducting spot checks of automobiles away from a fixed check-point (440 U.S. at 648). Similarly, the Court concluded in New Jersey v. T.L.O. that a reasonable suspicion standard was the proper one for preventing "unrestrained intrusions upon the privacy of schoolchildren" and ensuring "that the interests of students will be invaded no more than is necessary to achieve the legitimate end of preserving order in the schools" (469 U.S. at 343). In these and other settings, the Court has held that a reasonable suspicion standard provides a sufficient objective standard of reasonableness against which to measure the exercise of discretion by searching officers where, as in the probation context, the balance of private and governmental interests makes a probable cause standard inappropriate. See Delaware v. Prouse, 440 U.S. at 654; Terry v. Ohio, 392 U.S. at 21; compare Marshall v. Barlow's, Inc., supra (inspection held unreasonable where statute authorized search without any individualized suspicion or other neutral standards). The reasonable suspicion standard thus provides a significant measure of protection to probationers against the risk of arbitrary or harassing searches instituted by probation officers. The warrant requirement, like the probable cause requirement, is ill-suited to probation searches. Like the probable cause requirement, the requirement of a warrant would interfere with the ability to monitor the probationer's progress and to intervene early in a probationer's misconduct. See New Jersey v. T.L.O., 469 U.S. at 340 (warrant requirement "would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools"). A warrant requirement would also impair the deterrence function of a relaxed search standard. As this Court has said on a number of occastions, where "flexibility as to time, scope, and frequency" of searches is an important part of the regulatory program, a warrant requirement may be inadvisable "if inspection is to be effective and serve as a credible deterrent." United States v. Biswell, 406 U.S. at 316; see also Donovan v. Dewey, 452 U.S. at 603. Finally, a warrant requirement may require the involvement of law enforcement officers in every probation search, because, as in the federal system, probation officers may not have the authority to seek a search warrnt on their own. See Fed. R. Crim. P. 41(a) and (h); 28 C.F.R. 60.2. The public interest in permitting probation officers to conduct warrantless searches on reasonable suspicion of a probation violation is strongest when that authority is part of an overall sentencing and corrections scheme. There is no good reason that a sentencing judge, when determining the proper post-conviction treatment of a criminal defendant, should always be put to the choice of imprisoning the defendant or releasing him without the close supervision that a relaxed Fourth Amendment standard makes possible. Precisely because authority to search on reasonable suspicion may be an important tool of supervision, even for defendants who are otherwise thought not to require imprisonment, there is a strong public interest in making this middle course available in the post-conviction treatment of offenders. Indeed, the unavailability of this intermediate status might lead to the imprisonment of many convicted defendants who would otherwise be released. See United States v. Consuelo-Gonzalez, 521 F.2d at 266; White, supra, 31 U. Pitt. L. Rev. at 183-184 ("rules forbidding certain types of surveillance might affect a particular parolee's chances of being released"). Accordingly, authorizing searches on a reduced level of suspicion would serve the interests of many probationers as well as the public generally. The middle course of relaxed Fourth Amendment protections may be based on individualized determinations by a judge or parole board, as is true in the federal system (18 U.S.C. (Supp. III) 3563, 3651 (probation), 4209 (parole)). It may also be based on a statute or regulation authorizing searches of particular classes of offenders or even all offenders, as Wisconsin has done (Wis. Stat. Ann. Section 973.10 (West 1985 & Supp. 1986); Wis. Admin. Code HSS Section 328.21; Br. in Opp. 104) and as the United States Parole Commission is authorized to do (18 U.S.C. 4203). In either event, the availability of this special search authority is likely to bear heavily on individual sentencing or parole determinations. The case for providing officers with the authority to conduct searches on reasonable suspicion and without a warrant is at its strongest, of course, when the sentencing and corrections system affords a judge the power to make individualized judgments about the appropriateness of such authority in a particular case. Cases-by-case judgment, however, should not be necessary. Congress may make an across-the-board determination to apply a warrantless inspection program to, for example, the entire mining industry (Donovan v. Dewey, supra) or to all gun dealers (United States v. Biswell, supra) without requiring individualized determinations regarding the particular firms that need the closest scrutiny. Because of the diminished privacy interests of probationers and the importance of close supervision, a legislature or administrative agency may reasonably determine that authority for warrantless searches on reasonable suspicion is appropriate for probationers as a whole or for particular categories of probationers. In this regard, it is significant that it is only in cases where the particular search at issue was not legislatively or administratively authorized that the federal courts of appeals have held that a probation or parole search must comply with the warrant or probable cause standards. See United States v. Rea, 678 F.2d at 387 (probation search, not authorized by judge as condition of probation); United States v. Workman, 585 F.2d at 1208 (apparently, same); United States v. Bradley, 571 F.2d 787, 788, 789 (4th Cir. 1978) (parole search, not authorized by statute, regulation, or parole release order). 3. The search of petitioner's house was authorized by a valid condition of probation The search at issue in this case was plainly valid under the standards we have suggested. First of all, the character and purposes of probation in Wisconsin are those of probation generally. Wisconsin treats probationers as being "in the custody" of the Department of Health and Social Services. Wis. Stat. Ann. Section 973.10 (West 1985 & Supp. 1986); Br. in Opp. 101. Probation in Wisconsin aims "to assure public safety, promote social reintegration, (and) reduce repetition of crime." Wis. Admin. Code HSS Section 328.01; Br. in Opp. 101. Accordingly, "probation supervision is a mechanism of control and an attempt to guide offenders into socially appropriate ways of living," and probation officers are directed "to help the client be successfully reassimilated into the community, help the client adjust to and cope with community living, reduce crime, and protect the public." Wis. Admin. Code HSS Section 328.04(1); Br. in Opp. 101. Wisconsin's probation regulations expressly provide for searches of a probationer's living quarters or property by probation officers only "if there are reasonable grounds to believe that the quarters or property contain contraband" (Wis. Admin. Code HSS Section 328.16(4); Br. in Opp. 103), and they define "contraband" to mean any item whose possession by the probationer is forbidden by law or probation conditions (Wis. Admin. Code HSS Section 328.16(1); Br. in Opp. 102). The regulations also provide that a probationer must be notified of all conditions at the outset of probation (Wis. Admin. Code HSS Section 328.04(3); Br. in Opp. 102), that a probation officer "strive to preserve the dignity of clients" in conducting searches (Wis. Admin. Code HSS Section 328.21(5); Br. in Opp. 103), and that "(w)henever feasible" the probationer be given prior notice of a search (Wis. Admin. Code HSS Section 328.21(6); Br. in Opp. 103). The regulations then list 11 factors to be considered in determining whether reasonable grounds exist to suspect a probationer has contraband in a particular case, including the reliability of an informant's information. Wis. Admin. Code HSS Section 328.21(7); Br. in Opp. 103-104. These regulations are obviously closely related to the purposes of probation and are an integral part of the overall sentencing and corrections system in Wisconsin. Further, the notes that accompany and explain the regulations show that careful consideration was given to the need for warrantless searches on reasonable suspicion in order "to deter the possession of contraband" for the benefit of both the public and the probationer. Wis. Admin. Code HSS Section 328 Appendix (Note: HSS Section 328.21); Br. in Opp. 104-107. The standards provide guidance to probation officers, and they are judicially enforceable, as the opinion of the Supreme Court of Wisconsin demonstrates. See Pet. App. A8-A10. In short, the regulations establish "'reasonable legislative or administrative standards'" (Donovan v. Dewey, 452 U.S. at 599 (quoting Camara v. Municipal Court, 387 U.S. at 538)). By incorporating the reasonable suspicion standard, those standards adequately limit the discretion of probation officers. The search of petitioner's house at issue in this case was conducted pursuant to those regulations. It was authorized and carried out by probation officers. The search was for contraband -- guns that petitioner was prohibited from possessing by law and by the conditions of his probation. Finally, in concluding that there were "reasonable grounds" to suspect that petitioner had a gun, the trial court, the appellate court, and the Supreme Court of Wisconsin were clearly correct. The statement by a detective from the Beloit Police Department that there were or might be guns in petitioner's apartment created an articulable and reasonable basis for suspecting that petitioner in fact had guns. See New Jersey v. T.L.O., 469 U.S. at 345-346 (report from teacher gave school principal reasonable grounds for suspecting that student had cigarettes). The search of petitioner's home therefore satisfied the requirements of the Fourth Amendment. CONCLUSION The judgment of the Supreme Court of Wisconsin should be affirmed. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General RICHARD G. TARANTO Assistant to the Solicitor General KATHLEEN A. FELTON Attorney MARCH 1987 /1/ There may be other circumstances where a warrantless probation search is constitutionally reasonable. We argue only that the standards met in this case are sufficient to satisfy the Fourth Amendment, not that all are necessary for constitutional validity. /2/ For purposes of the Fourth Amendment analysis in this case, we think there is no significant difference between probationers and parolees, both of whom enjoy a conditional liberty authorized by a system of post-conviction treatment of criminal offenders and both of whom may serve time in prison prior to their release into this distinctive status. See Gagnon v. Scarpelli, 411 U.S. at 782; LaFave 138 & n.49. Throughout this brief, we occasionally discuss parole as well as probation, and we draw on cases from both areas. /3/ This is not to suggest that a probationer is constructively in prison and can be treated accordingly. The rule of Hudson v. Palmer, supra, is based on the special need for maintaining order in the prison, and that need is not relevant to probation. As we explain, however, related governmental interests do support an intermediate standard for what constitutes a reasonable probation search. We suggest here both that the looming potential of confinement and the fundamental fact of being under criminal sentence substantially color a probationer's expectation of privacy. /4/ The same kinds of limitations are routinely imposed as conditions of parole. See 28 C.F.R. 2.40 (enumerating conditions of release); Morrissey v. Brewer, 408 U.S. at 478 (parole restrictions common on, e.g., liquor use, association with certain persons, employment, residence, marriage, traveling, owning or driving a car, borrowing money). /5/ E.g., Owens v. Kelley, 681 F.2d at 1366-1368; United States v. Scott, 678 F.2d at 35; United States v. Consuelo-Gonzalez, 521 F.2d at 265-166; United States ex rel. Santos v. New York State Board of Parole, 441 F.2d 1216 (2d Cir. 1971), cert. denied, 404 U.S. 1025 (1972); People v. Burgener, 41 Cal. 3d 505, 714 P.2d 1251, 224 Cal. Rptr. 112 (1986); State v. Fields, 67 Hawaii 268, 686 P.2d 1379, 1387-1390 (1984); State v. Velasquez, 672 P.2d 1254, 1258-1261 (Utah 1983); People v. Huntley, 43 N.Y.2d 175, 371 N.E.2d 794, 401 N.Y.S.2d 31 (1977). See also LaFave 127-128 ("weight of authority" favors diminished Fourth Amendment protections for parolees and probationers). /6/ The same holds true for parole. See 18 U.S.C. 4206; Morrissey v. Brewer, 408 U.S. at 477; United States v. Jarrad, 754 F.2d 1451, 1454 (9th Cir. 1985), cert. denied, No. 84-6659 (Oct. 7, 1985); United States v. Thomas, 729 F.2d at 123. /7/ In a recent Rand Corporation study of recidivism among persons on probation for felony convictions in California, over half of the persons studied were charged with crimes, and almost two-thirds were rearrested, within 40 months of being sentenced. See Petersilia, Probation and Felony Offenders, 49 Fed. Probation 4 (June 1985). /8/ This case provides a good illustration of the value of a reduced standard of suspicion. From all that appears, the Wisconsin probation officials, acting on less than probable cause, were able to discover petitioner's possession of a gun before he had an opportunity to use it. /9/ In the federal system, probation officers, who also serve as parole officers, are not "law enforcement officers" entitled to obtain search warrants. Fed. R. Crim P. 41(a) and (h); 28 C.F.R. 60.2. /10/ The justification for warrantless probation searches on reasonable suspicion is not limited to a single probation officer assigned to a particular probationer. Not all probation systems may provide for such individual assignment, and the non-adversarial attitude described in Gagnon extends to probation officers generally, especially when one officer is substituting for a fellow officer. We note, in addition, that a probation search that would be reasonable if conducted by a probation officer should also be deemed reasonable if authorized by a probation officer, even though carried out by or in conjunction with others. Although the way a particular search is conducted may be affected marginally by the probation officer's participation, the most important factor is that the decision to search be made by a probation officer. Moreover, at least in the federal system, probation officers may be sufficiently distant from the residences of probationers that they must, as a practical matter, rely on local law enforcement officers to perform searches that the probation officers deem necessary. See United States v. Consuelo-Gonzalez, 521 F.2d at 271 (Wright, J., dissenting).