bill thank your honor may please the court assistant attorney general eric levin on behalf of the people of the state of illinois when the defendant pled guilty in two thousand and four to a charge of felony retail theft he was sentenced to two years of  probation the trial court ordered that the first year of that probation would be served is what's called intensive probation supervision this is essentially an intermediate sanction the courts often impose that's it's between in between a prison term and ordinary probation i ask you that there is this is statutory creation intensive outpatient or is it a type of probation where the court adds additional conditions it is not a statutory term it is as we spring in our brief illinois probation system is essentially very decentralized the judge centric so there are certain terms that automatically apply to all probationers just by virtue of being on probation there then certain terms that a court may impose in its discretion if it finds that they're reasonably related to either the defendant's crime or to his background in terms of what he'll need to be to properly be rehabilitated this patch also allows for any other reasonable condition that the judge feels is necessary on those grounds and often what is imposed in these cases where a judge believes that we have a high risk criminal offender who perhaps doesn't necessarily need to be in prison but who nevertheless would pose an especially high risk to the community working to remain on probation judges often impose intensive probation supervision the whole mark of which is a search condition like we have in this case so expect practice it's my practice this is uniformly used across the state i don't have any evidence in that regard what i can say is that the term intensive probation supervision itself and the general theory behind it it comes from the literature and criminology and sociology so it is a widely recognized practice across the nation and in fact and i don't know i don't have the statistics on how often it's imposed but we do know from the cases that even as far back as united even has an intensive probation supervision department within the probation office so i believe it is a fairly common or at least regular type of probation that's imposed as soon as your live in that you acknowledge that this court and griffin and the illinois probation orders search conditions did not require searches to be ordered by reasonable grounds and you acknowledge that so are you asking are you taking the position that wilson over even if it was suspicion less we have the the fourth amendment the general balancing task and that's what the court applied in sampson and this court applied and wilson that's separate from special needs that just under general fourth amendment balancing principles and i would suggest court discussed the differences between probationers and parolees it was done in the abstract there was no there was no specific analysis of intensive probation supervision and as we as we set out in our reply brief in particular also in the opening brief but in the reply brief in particular pages four and five we lay out the the conditions of parole that would issue and sampson and contrast there compare them with the conditions of intensive probation supervision to which this defendant was subject to and they are virtually identical if anything the conditions of the defendant's intensive probation supervision were more restrictive than the conditions of parole at issue and sampson sampson for instance was restricted in his right to moot meant in his right to travel and his right with who he could associate with he was subject to drug testing he was subject to he was prohibited from possessing a weapon and of course he was subject to the search condition a  i believe the the parole can be revoked in the defendant is then made to serve the remainder of his sentence that was left i by comparison if there is a if there's a violation of probation the defendant then can be sentenced the probation is revoked and had bennett can then be sentenced to whatever he could have been sentenced to in the first place on this case the defender would have gone back in front of the trial court and he could be it could could have been sentenced on his felony retail theft and i think that's actually an important point here but it shows that the this was not a situation where the intensive probation supervision was imposed in lieu of ordinary probation it was imposed in lieu of prison had had intensive probation supervision not been available for this defendant and for all the high risk defendants who present a special risks to the community of recidivism their alternative would be imprisonment where they would have essentially no fourth amendment rights so i think that's important that goes more to the waiver argument which i'll get to  in a moment and we haven't discussed that yet but i think that is an important point if i can return to justice thomas question as i was saying we have three alternative grounds each one of which would uphold the search in this case one i mention the general fourth on the balancing i believe justice thomas this question right to the special needs doctrine and it is true that this court while recognizing that the administration of a system of probation presented special needs beyond the normal needs of law enforcement the court nevertheless declined to uphold the search in that case under the special needs doctrine because the illinois system of probation does not operate the same way as wisconsin's as we discussed in our brief however we believe that was a misreading of of the griffin special needs doctrine i'm the one hand the court noted that in wisconsin search conditions are imposed by administrative regulation whereas in illinois there are imposed and decentralized manner by the sentencing court itself however there was no indication in griffith and that the that the application of the special needs doctrine in any way turned on that fact moreover it's also true that in this case the search condition did not contain grounds requiring that the search be based on reasonable grounds as it did in in in the wisconsin system and britain it's important to note however that right what the court in wisconsin found to be reasonable grounds were not did not rise to the level of reasonable suspicion the the court griffith made that clear and in fact the search there was based solely on on an unverified tip that the probationer quote might have guns in his house  o make clear that it could not have upheld that search on the basis of it being on reasonable suspicion it was instead uphold upheld on the special needs doctrine and the special needs doctrine generally generally applies to suspicion less searches for instance it's been applied to suspicion with border searches and marking as the court has it's been applied to suspicion less road stops to to search for drunk drivers in michigan versus sis it's been it's been appl suspicion less searches to stop motorists to seek information about a recent hit and run illinois versus linster and each of these cases the first question the court asks is does the government have a special need beyond the normal needs of law enforcement all those needs i mentioned and the probation system itself is one of those special needs that discord and griffin has recognized the next step that is to do a balancing test somewhat similar to the general fourth amendment balancing where the court weighs on the one hand the intrusion on the individual's privacy interests against the special need at stake for the government and its need to carry out these searches so so getting big ultimately gets us back to a balancing test where we have on the one hand a probation or such as this probation who is subject to intense of probation supervision who had severely diminished expectations of privacy as i mentioned his expectation of privacy is yes i mean i think as an alternative argument i do believe that in this case there was reasonable suspicion and i don't think a finding that in this case there was a reasonable suspicion would mean that in all cases a probation officer had reasonable suspicion here we know that the probation office now of course in and sampson i believe was sampson noted this that in a probation or parole context where you have an officer who's charged with overseeing a particular probation or oftentimes many of the facts that he knows that form reasonable suspicion will come from that supervisory relationship so here we know that officer chester looked into the probationers background and saw as extensive drug history knew that he was in at tending a and a meetings and knew that many of his past criminal convictions had been substance abuse related so he starts from that basis but then also he observed his behavior he observed his demeanor that and that day at the probation office and those articulable facts that together with the reasonable inferences that can be drawn from them with leader of prudent probation officer to investigate further now obviously those facts are not going to be enough to establish beyond a reasonable doubt that the defend had drugs in his house or even i would i would concede they wouldn't be enough to stablish probable cause but i would say that there's certainly enough to establish the much lower threshold of reasonable suspicion particularly in a probation search cont i think it's also important to know here getting back to the distinction between wisconsin system and griffin and illinois system it's important to note that while while wisconsin impose these conditions  on all all probationers just by virtue of the fact that they're on probation and so perhaps therefore felt the need to narrow the condition by including a reasonable grounds language which in practice the court read to two  almost no suspicion at all that was less than reasonable suspicion and were normally on the other hand is has instituted the reasonable miss at the other end so rather than applying a condition like this to all probationers just by virtue of the fact that drop probation as wisconsin did and indeed as california and illinois does in the terms of parole here illinois said we're only going to apply a restrictive condition like this if the trial court finds it reasonably related to the defendant's crime to his rehabilitation potential etc so in that respect it narrows the scope of the search condition on those grounds and that was something not present in griffin but that adds a level of reasonable  inmate and in that case the parolee is there still a continuum or is being on probation the sending is going on no there's certainly a continuum and in fact even griffin recognize that even probation itself is a continuum so probation can range from the there unsupervised probation which would be essentially almost like not being on probation at all there are certain restrictions but it's very minimally confining to the other hand where we have in this case an intensive probation supervision where there are many restrictive conditions so even probation itself is a continuum and and so that's why i think what this this demonstrates is the need for courts to examine the particular conditions of the defendant's probation rather than applying just categorical distinctions between probation and parole so in a case like this where we look at the probation conditions and they are virtually identical to the prole conditions the the defendant's reason much speculations of privacy are the same but there are still differences as you know between the consequences for violation but where the question is right the level of what expectation of privacy does the particular probationer have in that sense that the expectations of privacy are the same if the conditions are the same and so here we have we have a probation and intensive probation supervision that is at the far end of the continuum if not identical to parole very close to it so that's all case by case basis because as i mentioned there's not a statutory term intensive probation supervision we're central using that as a shorthand for a term of probation that attaches that has comes with that very restrictive conditions and so that the hallmark of which as i said is the search conditions so what i would agree that in in any case where we had a probation or who was subject to a search condition like this and other restrictive conditions on his movement on we could associate with this probation or also was subject to drug tests he was prohibited from possessing weapons all of these together indicate that that probation has a diminished expectation of privacy and so if we have a probation or who is subject to the search conditions again the search in this case depends on there being a search condition in the probation agreements that's what gives the probation officer the authority to do the search the question then is is such a search if done without suspicion constitutional and so that's where the court can first look to the general for the moment balancing test where it would weigh the the probationers severely diminished if not completely extinguished expectation of privacy against the very substantial government interest in closely supervising such probationers against sampson and even knights and griffith do a good job of pointing out that we have probationers  probationers in general present a threat of recidivism but a high risk group has been judged by the court to present and especially high risk and did the statistics we cite in our brief are alarming anywhere between twenty two and sixty five percent of probationers re offend and the and in the case where you have a history of drug abuse as we have here the stakes in statistics are even higher so the government has an overwhelming interest in closely supervising such probationers and when weighed against the probationers diminished expectation of privacy the court in sampson held that such searches without suspicion all are all reasonable under the fourth amendment if we find any limit on those  is and there isn't there's an important limit on this in the search in this case that distinguishes it in a way that favors the reasonableness of it from sampson in sampson and even in nights the probation condition allowed for searches not only by the probationers probation officer but by any law enforcement officer in the field for even general crime control purposes that's what happened in sampson in wilson and in nights here we have a more narrowly tailored search condition which allowed for the  probation to be searched only by his probation officer which i believe cuts in favor of reasonableness both under the general fourth amendment balancing tasks but also would allow this court to apply the special needs doctoring but here we're not talking about a search that was conducted for ordinary law enforcement purposes but a search that was part and parcel of the defendant's probation itself it was carried out by a probation officer who did not stand in the same position these are to be the probation or that ordinary law enforcement officer would but somebody who who was charged with overseeing that probation is rehabilitation and protect and essentially shepherding him through the probation his probation period with the goal of seeing to it that he did not realize that and that he was rehabilitated and so that the court and even the dissent and sampson noted that a situation like that runs all the more reasonable ness to such searches again in our brief we also did the third independent grounds on which the court could uphold the search in this case would be on the theory that by accepting the search condition in this case indeed by affirmatively agreeing to it as part of a filling negotiated guilty plea the defendant prospectively wages fourth amendment rights not we recognize that the court rejected that argument as well in law pathak in the interim however the seventh circuit interpreted in the very same probation order from the same did hold in a prosecution that than was brought in federal court did hold that such a search was valid under the consent hearing and we asked the court to reexamine the law pathak in light of that case is that the burnet that's the barnett case raise your group that not aware of any cases like that but i would i would recommend it just as persuasive authority in terms of that the here the defendant got the benefit of his bargain he was allowed to stay out of prison but by not by not considering that as a waiver the state does not get the benefit of its bargain and essentially the defendant was allowed to profit from the agreement while the state wasn't but again as we mentioned in our brief the court needn't get to that issue because the search can be upheld either under general fourth amendment balancing want of the special needs doctrine thank you thank you on the may please the court councilor my name is lawrence o'neill i represent samuel webb share in this cause a before mr after estrada's to affirm the fifth district appellate court's decision to reverse the trial court's denial of after evidence involving the warrantless search of this home before i get into my argument though i would like to address the distinction between intensive probation and regular protect both patient and the implications of that on this case because intensive probation is not statue no statutory it is really a meaningless term here because the judge can set the same conditions and call it regular probation whether defended his sentence to intensive probation or not  the order of intensive probation varies from county to county judge to judge the judge could impose the same conditions there were can paint in mr apps years regular intensive probation and a regular probation order and just put the name intensive probation above it certainly that is not a disciplined constitutional way to approach this in this in essence the state is trying to distinguish this case from lamb pathak because lamb pathak found constitutionally protected privacy interest and probation searches must be based upon a reasonable suspicion i wonder this distinction if we are to intensive in regular probation cannot be support definitions or standards upon which to evaluate the differences between intensive and statutory probation so i ask your honour's to find to find that the intensive probation searches that are not based upon a reasonable suspicion this probation order indicated that he shall submit to search is on the the order of this pro of this probation officer there's a lot a lot of cases and again lip attack  is right on point on this two and subsequent cases where the the the condition in a probation that he shall submit it does not imply prospective authority to the police off  probation officer to conduct the search so there was no consent to for a search without a reasonable suspicion some other additional language in this the conditions of probation that here also consented to the use of anything seized as evidence in court proceedings i'm not seeing that language in any of the cases how does that work land well your honor that is the the second part of that the first part of that that he did the first part did not indicate that he consented to a search i think the proper way to interpret that is that he consented to the use of that evidence if he if he if if the search was conducted upon a reasonable suspicion its combat second part to consent to that to use of the evidence in court that are found is conditioned upon the first part of that sense that did not say i consent to the search consequently he he did not agree similar conditions as in lamp attack and the court let this court held the lamp attack but still a probation search not supported by reasonable suspicion would be unconstitutional under the fourth amendment so those conditions first of all they were there were still retain autonomy and privacy notwithstanding the fact that he had conditions of probation now that goes to question the question that if these conditions are so restrictive read that he is expectations of privacy  so well extinguished that every probation here would be subject to searches without a reasonable suspicion so those conditions are not and i do not sufficient enough to extinguish his expectation of good counselor discusses wisconsin versus griffin and that's a best an important case and it's important to note that the court did not hold that the mere fact that the probation system presents special needs for law enforcement but a probationers fourth amendment protections are completely terminated terminated and this is important also in the context of the conditions of posing as mr lamb mr apps are but the fourth amendment protections do not vanish with the implication of the phrase special needs a probation or have may have a reduced expectation of privacy but the expectation of privacy is not an extinguished expectation of privacy so gripping does not authorize a substantial invasions of a probation is privacy without any reasonable suspicion of wrongdoing in fact holding is narrow is the court found in the probation search was reason one of the fourth amendment because it was conducted with a valid state regulation which permitted one with searches probation searches upon reasonable grounds a standard which the court found was present based upon its head but scripted and essence holds that the probation system presents special needs behind typical law enforcement but the special needs does not extinguish the probationers fourth amendment protections and permits suspicion of searches of probationers home but the special needs were met in this particular case there is not a problem with c special needs exception does not apply when the search is done for law enforcement purposes in the present case the search of exercise was conducted for probation purposes in that the probation officer chester asked and receive the state's attorney's permission to residence residence and the probation officer burke at rice was accompanied by two police officers during the fourth century into after his home and search bus indicating that the intent of the search involved law enforcement not merely to force in a probation conditions but further there was no such special needs to protect the public here because the probation officer is allowed absolute to leave the probation office this is the probation officer observed asher  office they're sent to the state maintains that there was no a surprise available to conduct a blood test or some other other test a sobriety test or something along those lines that would elevated the suspicion perhaps but the facts of this case did not establish that that reasonable suspicion based upon what the officer observed now the officer probation officer also check well that's that's a policy policy argument your honor and the important point here is that there was no consent provision in after his probation order and i think chester that the defendant had violated after he violated the terms of his probation the probation officer should have acted on it right there at the at the at the probation office perhaps in the fact that he didn't suggest that there was shall submit now that does not provide the consent to conduct the search where the evidence is subsequently found so i think that those two clauses has to be have to be looked at separately  consent if the police have probation officer has a reasonable suspicion to search his residence and then evidence is found i think that's when that second half of that statement in the probation that probation condition would kick in and then that would to suppress and there was testimony by mr chester no there was not there's testimony well i thought he testified yes he tested i am so i was thinking of the i think those are the three key facts right yes your honor did the trial court reference those in the in the finding or make those findings that's going to my understanding is that specifically making findings on and that you or i just ruling but i'd like to talk about some of those observations of all here's the context i'm happy to hear your response but i want to know when we look at this case based on the standard review are we allowed to to look at the denial and the testimony to say that it's reasonable that those are the facts that would support a reasonable suspicion or not well the appellate court reversed the trial judge's findings your honor  and and found that there was no reasonable suspicion for that and i believe you know this is you know this is i'm still you know it's still a mixed question of fact  is it is your position mr o'neill that it it wasn't reasonable because there was no connection between the facts known and in observed in the place searched is that part of your memo that that's an important part of my argument  nervously or perhaps even go as far as said that there was or there was some type of a suspicion that he was under the influence of drugs at the probation office it doesn't necessarily follow for reasonable so reasonable in this consideration that he store stash of drugs at his residence there's no connection between the fact that he had that he may have been under the influence of drugs at the probation office and had a stash of drugs that his house ten o'clock at night when the observation occurred in the  morning and he could have a reason to live fred francis that he could have i don't know taken drugs before he walked into the probation office that doesn't that doesn't necessarily mean that he are established any reasonable suspicion that he has dr submit to a search of his person but i want to emphasize that those observations were still very very weak this is far as a reasonable suspicion if the officer probation officer chester is the record does not establish that he was a platoon leader in the marines and he was a youth program coordinator or something along those lines so i don't think that he sufficiently had this qualifications to to make that type of determination versus morris which were parolee case is also very important because those cases in distinguishing the difference between parole and probation clearly they have found that that the probation piers justice tyson the the language you quoted from the probation agreement from the search condition where the defendant agreed to consent to the admission of any evidence seized in a court was an explicit waiver of his rights under the exclusionary rule and would make absolutely no sense if the condition itself was not a waiver of his fourth amendment rights if you assume that language in other cases i'm not a i don't know for me i know it was not in this court did not mention laptop so i don't know if it was in that condition or not but i do know that it has some meaning to it to a term like that and if it doesn't mean that it was a way for a fourth amendment rights it really was superfluous i think the defendant's argument here w essentially cut the legs out from under the probation system if a probation officer is not allowed to act on the information that he knows and on the with an understanding of the probation or who he's charged with overseeing it with that probation as background and history if he's not allowed to act swiftly to uncover evidence of probation violations or other criminal violations or even any manner that any sort yeah well first of all there's no indication in the record that this was a ruse and that the probation officers were acting solely at the behest of law enforcement in fact the testimony was the exactly the opposite this was a decision the decision to search in this case was made by the probation office after after observing the probation or at the probation office for one of his scheduled meetings they felt the need to search them and they then probably just the reasons of course bring in law enforcement officers to a search with the sister i mean going out into the field and searching somebody's home especially here we have a probationer who then would not allow the search and did not live up to the his end of the agreement it can be a dangerous situation and so to bring in law enforcement officers doesn't turn the search from a probation search into a law enforcement search this was a such at the direction and at the behest of the probation office and there's no indication that it was for any reason other than pursuant to the probation itself probation is reasonable expectation of privacy and so i discussed before and we sort of got into this well does it have to be a case by case basis and i would just like to clarify that obviously at its core it is a case by case analysis and insanity even in sampson it had to be case by case analysis just because the state call something parole if they didn't attach to that parole a search condition we we wouldn't have had sampson versus california so so obviously it requires a court to look at the conditions but no regardless of what it's called if the conditions of probation intensive or otherwise are very similar to the conditions of a role that would put it outside of the criminals yes and to be even more specific if the conditions of probation include a search condition which requires the probationer to submit to searches without reasonable suspicion and to then waive his exclusionary his rights and the exclusionary rule if you have a search condition like that you're in intensive probation supervision that's essentially the doc that's the hallmark of intensive probation supervision is a condition that allows the probation officer to closely supervise his charge pathak in this sense can be distinguished on the grounds that not only was it not talking about the term intensive probation supervision there's no indication was strict of the probation is but the search condition is what allows the probation officer to to carry out those other conditions and to make sure that the probation is living up to those conditions so the key fact both in the parole cases and in the probation cases is the existence of the search condition but again that basically would burn that home well barnett was purely decided under the waiver theory so it would not it would not address he didn't address whether the search was even absent a waiver whether the search would have been proper under general fourth  balancing or under the special needs doctrine but that was purely based on the the theory that the defendant here waived his fourth amendment rights and in that respect it's true that law pathak did hold that the way in which of a condition like this that the fan that shall submit to a search was not a prospective consent to that search because when the time came the defendant of course still had the ability to say no i'm not going to let you search with the u s supreme court and samson agree with your a generic role and the generic probation there's no indication that they were analyzing any specific type of probation i think what's important is to go back to griffin where the court did know that even probation itself can range from the less confining to the more confin and what was important in sampson was that the court looked at the conditions to which the calling was subject and concluded from those conditions that the defendant's expectation of privacy was virtually nil and i think it would come to the exact same result in this case if they were to analyze the  conditions of probation or that or the supreme court was unaware of different conditions and provisions when they drew a line between parolees and probation i don't think they were unaware of the differences in probation but i think they were trying to make the point that parole is different than just some sort of general probation and i think they would make the same point in this case that an intensive probation supervision including all of these search conditions is itself different from an ordinary case of probation briefly on the special needs point i would just mention that under the special needs doctrine the court courts don't consider rather any particular search itself was supported by individual individualized suspicion that's the case in the border search cases the in the drunk driver search cases in illinois vs lyster where the court court upheld suspicion with searches of motorists to search for information about a crime and none of those cases was there any reason to believe that the particular person stopped was engaged in wrong doing what the special needs doctrine asks and the first question under the special needs doctrine is is there a special need is beyond normal law enforcement and i think everybody concedes that probation does prevent present that type of special need this court recognized that in moptop if we are dealing with the special needs beyond the normal need of law enforcement the question is then after balancing the intrusion on the individual's privacy advance the degree to which the search is needed to meet that special need question is whether the program itself is reasonable under the fourth amendment and for the reasons i've discussed you know the fact that the probationers reason why expectational privacy was severely diminished if not completely extinguished and on the other hand the overwhelming need of the state to closely supervised such probationers as a suspicion a search condition is reasonable under the fourth amendment and there's good reason there's good reason to have a suspicion less search condition rather than a a search based on reasonable suspicion the court talked about this in sampson and tonight's a a high risk probation or who knows that if he violates his probation he's most likely going to prison has a great incentive to conceal his  criminality to destroy evidence to to to basically thwart the probation system and the defendant's argument would force probation officers to take the same steps that in dealing with their probation or that an ordinary law enforcement officer w take in simply investigating general crime and that would severely undermined the purposes of the parole system we've asked the court to reverse the judgment of the appellate court and affirm the conviction entered by the trial court thank you thank you and before i close this case i want i know that the eighth grade students are going to i believe leave is that correct i'm sure you found these arguments extraordinarily excited or maybe not now but we're delighted that you were here and so when you go home tonight tell your parents tell your friends tell your aunts and uncles that you witnessed history in the making today this is the first time in the history of the almost supreme court when seven members were comprised with three women on the court justice read a gar justice in burke and justice mary jane tice's so you do work excited today at least maybe you can be excited about that historical fact thank you case number one zero eight four four one people versus afshar will be