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).