the th amendment balancing test of knights and sampson or whether instead it was driven by a special need of probation beyond law enforcement and subject us to the griffin special needs analysis by every measure this was a law enforcement search at seven twenty in the morning nine officers from four different law enforcement agencies came to execute a warrantless search scott's home they had no warrant and no reasonable suspicion that he was violating the conditions of his post release supervision nor did they have any reasonable suspicion that he had committed a crime is reasonable suspicion the proper term i think your honor that is within the context of the griffin special needs question reasonably related to the terms of supervision is what's at issue and i think when we talk about the knights and sampson balancing test that we believe applies because this was directed by law enforcement the relevant question is whether the government's legitimate interest in law enforcement outweighed mr scott's reasonable expectation of privacy in cases where it has been clearly and unambiguously expressed to a supervisor that he is subject to suspicion listen warrantless searches as an sanson versus california supreme court has upheld suspicion with searches but here because mr scott was never in fact informed that he was subject to suspicion less warrantless searches that his reasonable expectation of privacy is that he would not and of course a specialist search is very much the writs of assistance against which the th amendment was drafted america courtney thomas testified that the reason she selected to be on skype was because she was instructed by her supervisors to pick some of her supervisor use to be searched as part of this operation spring sweep so this is not a later admitted at joining appendix i believe it's one hundred and twenty dollars yes that mr scott was in fact working he was working for his mother's transportation company and she was not satisfied with the hours that labor but he was working and did have a job she also didn't express any reason to believe that mr scott had either stolen the jewelry or that it was proceeds from sales of drugs or anything else that would indicate a violation of his conditions of what the i think st of all that of except the finding of the court i think if there factional fighting is clearly erroneous this court can refer to it's not clearly a road and if it's not clearly erroneous i think that that finding standing alone is not sufficient to outweigh the rest of the circumstances that sort of shot the fact that he was a lover of sex offender because of his game foliation and the office policy permitted warrantless searches every one hundred and eighty days based on that fact isn't that part of the calculus here too is well i think it can be part of the st that griffin special needs in their offices because he was subject to one warrantless search every one hundred and eighty dollars days subject to both us the level two sex offender policy and the government had asserted the gang policy as well but there is evidence in the record significant evidence in the record that he should not have been subject to that condition mr scott was not in the gang court me thomas his supervising officer had no current information that he was an ok he was under sixteen and or put him within a software spalls that's correct but corney thomas importantly never testified that she wanted to search mr scott anyway and simply submitted his name  it was convenient that operation spring suit sweep was happening at the same time there was some of the record about the coming up morning there were still forty five dollars days remaining so that still a month and a half  the group or no we believe it's just another factor to be considered to suggest that this was not actually motivated by the special needs of the probation office that this really was a law enforcement search seeking warrantless searches of homes of probationers and supervis did but the district court never actually nor the magistrate judge her reach the nights and sampson balancing test because it applied graph and but i believe that only applies when there is in fact a special need beyond the law enforcement and that simply if the search complies with a constitutional state law which this is it's ok under special needs is not i think that's correct your honor only if it is in fact a special need beyond ordinary law enforcement and that's coming from griffin itself right what in the language of gryphon says that it has to be as a special need separate and apart from complying with a constitutional state law that that is the that is the articulation griffen use special needs beyond the normal need for law enforcement and here on the yes that's right and in fact griffin instructed at age seventy five that the interpretation of that statute by state courts and by state law enforcement officers was important  should be considered and i think that's relevant here because we have courtney thomas purporting to execute this delegation of her supervisory authority over mr scott but it's undated she doesn't delegate a specific officer or she could do that contr conduct the search they were present i believe everyone was searching from my understanding i believe they searched as did an a t f officer gerrish and so i believe everyone was searching simultaneously including canine  reasonable to assume they were searching for probationary supervisory purposes well i think your honor it's interesting because in the record betty staley who was the she described herself as the lead probation officer who was present at the search she was asking she saw children's toys in mr scott's apartment and she had to ask whether he was allowed to have children visit his home that's a j one hundred and ninety nine and i think that's telling for why either the assigned supervising officer should be there or the person who is present should have been briefed because that would have spoken powerfully to an idea that this is actually a supervision search that we believe is necessary to effectuate this special notice leave arrive i'm sorry i was going  didn't our court say that supervising in the in the post release context is a special need even though it overlaps with the general law enforcement execution of law enforcement the court recognized that these are not exclusive propositions quite often they do overlap and didn't we increase pacifically recognize that the post release supervision is a special name i think it certainly can be and i think your honour's articulation of quite often is exactly right if in fact this is a search that's motivated by the probation office for probation related is a more professional teachers there that you law from the supreme court to act sort of as a trojan horse things wrong with their i think when the search is the motivation for the search is not coming from the probation office but it's instead coming from law enforcement as it wasn't sampson that's why the sampson surge anything for any routes and right you could and the reason he was searched was simply because he was on parole but it was searched by law enforcement officer and in nice even though the probation not he was someone who was on probation  it involved a tip from law enforcement but i was still without the restrictive conditions that we find here that's correct but nice again the griffin analysis wasn't used in nights despite the fact that nights was in fact on probation think the selection of the analysis is really the critical point here and because the special needs exception the special need beyond law enforcement of the supervising office was not at issue here this was really driven for their there were no person search we're not subject to supervision but it is interesting that there was no effort made to parent supervising officer with the supervising and so even though that he still he did have probably would have been a powerful factor but ultimately this still if no other circumstances had changed this was still driven by law enforcement because of the way that it initiated and because courtney thomas never said i would have conducted the search but for my supervisor's contacting me operation spring sweep because every supervisee has different search conditions searchers need to know what's a violation for a particular person so in this case mr scott's having children's toys in his apartment was a very relevant thing the officers who were present didn't know whether this was a violation of his post really supervision or not and that is certainly a problem you want as we would ask this court to vacate mr scott's conviction and reverse the district  thank you your honor i'm pleased to be here good morning and may please the court i'm here on behalf of the united states and i intend to spend a lot of time talking about a four circuit case that hasn't somehow hasn't come up this morning this course  point is well taken about whether the corking considered i will say we didn't object to it below that's true but to the extent we're looking at the press release i just have to note that the description of it isn't isn't quite accurate because the press release lists the accomplishments of the entire operation which was not just for beijing searches they were searching for probation absconders and they were also searching and serve warrants so when they say that there were fifty one dollars individuals arrested that was in the entire operation now it isn't broken down into how many but i just want to make it clear that we don't have some in the record that says it is fifty two searches and at fifty want to rest come from those searches that's just not in this record i doubt i'd highly doubt that's true you can't take that from the president she says or if it could do searches that is in the press release there were fifty two search from the secretary of state in north carolina who is over this entire apparatus for probation and parole keeping our community safe requires the collaboration of local state and federal law enforcement agencies no agency can do it alone at the exact same statute it was a probation statute in the jet but it's materially if you compare the two it's materially identical the only difference between them is that the one in mint jet required that the search be done for the reef for purposes by the court the reason that absent here is a mandatory condition for sex offender so the court doesn't choose to to allow it so in terms of whether this can this statute complies with the th amendment sima jet the nd thing is whether it requires reasonable suspicion and whether it was allows for suspicion of searches so as a matter sash for interpretation it does not require reasonable suspicion and also that it comply with the th amendment and doing so and so those arguments about whether reasonable suspicion was required here by the statute or by the th amendment i that but this issue of whether his probation officer needed to be there i want to start with the fact and this is again an area where we disagree on the facts for my colleagues are i mean it almost sounded like courtney thomas the probation officer was very an involved  personally selected this offender for this search based on things related to her supervision of head and we know that because that's exactly what she said she said he's wearing all this washy jewelry he's wearing expensive looking  things and the kid a lot of money and he doesn't have a job which he was also required to have as part of his probation my colleague mentioned later in the hearing they went back and forth a bit about whether he had a job but ultimately what miss thomas said was he was trying to work at three am for his mom a delivery van but it just wasn't working out he really had unstable employment he wasn't quite so her susman of him was his expensive looking stuff and isn't working and i would submit to you that that is an indicator to a probation officer that maybe there's a legal activity  the nd thing the argument that she would not have chosen him for the search for operation spring sweep she said she would have chosen him for the search for a search because she had to within the next forty five days and actually i ran this through the c just to check by the time the operation happened it was closer to thirty five dollars days to when she was mandatorily required to search him and i would add later in the hearing she's referred back to what happened with him previously and this is something that i think is very important for the court this defendant had just come under miss thomas a super but only about four months earlier after having been released on a sentence what his rise released was revoked and why was it revoked as she described it from reading the probation record strong arming a probation officer previous search at a previous encounter and where he was she was challenging him and for always returning right before his curfew and he ended up being arrested and revoked on that so i was just a myth she said that was in her mind when she selected him if i'm offered law enforcement resources as a probation officer to search a high risk gang and sex offender defendant who stray who was in prison for strong arming a defendant i would say yes to that and i think anyone would say yes so courtney thomas his probation officer was decisive and taking him for the search she says she supervised about sixty plus sex offenders she picked three or four for this operation and she picked him for specific reasons relating to now she was not a participant in the search staley was and they were for a raid or officers that participated in this search i assume that if it's just a pretext with regard to supervision they would need to send their whole staff on the search i think that's right and this is like so many for so many cases it's all about the details and the testimony at the hearing from agent was on the a t f agent who was there so the team was nine people four of them were probation officers official was a department of corrections  shawn was asked about exactly how this went down is i as i picture it the doors at the top of the balcony there's only a little room on the platform on the platform at the top where the probation officers down below they said they couldn't even see the probation officers on the knock on the door it was just them up there original it very clearly that it's appropriate to have law enforcement assists in these searches it's good for public policy it's good for public safety to have law enforcement officers assisting in the searches and i think that's exactly right it still has to be reasonably related the defendant out of the police lineup after the search and then beyond that when the agents were asked why did you pick this person for the search they basically said well it was basically random we just picked some violent offenders but i guess they were all violent but it was kind of random that's a far cry from doesn't matter for this analysis because she considered those things to be true he was designated to be in the gang at that time and that was what she relied on in making the determination whether later on this is not the right forum to challenge someone's gang designation in  probation nor is it the right form to challenge whether it was really her brother actually not the fact is it led to her thinking it was appropriate to search him and he was required to be search very soon and law enforcement was appropriate when you put all those together now  strayed a little bit from what i said i was going to talk about which was a probation officer versus my probation officer but i think those that background is helpful for it so the statute says a it just it says that it's it's very difficult to get around what the statute says because it is an indefinite article you know i was i was drawn to look at the word a in the dictionary preparing for this or are you meant it and it as an indefinite article it means any of the category of things in the briefing my colleague said that agent really should have said any if they wanted to be any into responses to the st is that they centrally did because a is an indefinite article means any of the category of people known as probation officers but the nd is there are times in the statutes when they do refer to the specific probation officer and i would just direct the court as an example to fifteen a dash one thousand three hundred and forty three dollars b two which is time at regular conditions of probation it says remain within the jurisdiction of the court unless granted written permission to leave the court for his probation officer so there are times when there's others the provision right after it refers to his probation officer there are other ones within the probation statute that refers to offenders probation officer thang then likewise if you look also in one thousand three hundred and forty three b subsection thirteen and fourteen i think this is probably the most powerful demonstration so these are probation search conditions that are very similar to what we have what is a reasonable relationship between this search and his supervision it was that she felt he had conditions that required him to work in that regard and not to engage in criminal conduct and she felt like based on her observations of him that it seemed like there was a very likely explanation for why he would be w have expensive looking shoes but not have a job it sounded as if he had a legitimate job to run that when she made that observation it's not exactly clear it appeared to me from the record that it was relatively close to the time of the search especially since she said he was coming up on his one hundred and eighty days if she decided this three months earlier i don't think she'd have thought that so i and maybe when she's talking more like forty five days that's what she's talking about because the search was closer to thirty five but i can't put a date i don't think it's i don't think she put a date on it law enforcement officer of the probationers person and permissions vehicle upon reasonable suspicion so a probation officer without reasonable suspicion a law enforcement officer with reasonable suspicion that reflects a deliberate choice by the assembly and if a probation officer means a specific probation officer of them what do they mean by a law enforcement officer i think that suggests is there not designating a particular law enforcement officer they need any and are not designating a particular probation officer so on the plain language of the statute this doesn't require the specific probation officer and if it did it was delegated here anyway and i think it's important to think about the law enforcement assistance in these as providing for both public safety and frankly probation officer safety and in distinction in this case be just because courtney thomas wasn't present she didn't supervising him for four months basically she testified she did remember talking to cory thomas about this before the search beforehand to learn about it so court's decision and i believe it was her goes to this idea too of overlapping interests st of all the agent was very clear that their interest was just in assisting but even if you want to take it and say well they were also hoping to generate some federal cases even if you assume that for the sake of argument that is also furthering the probation interest and i say that because it was clear from the long suppression transcript that a lot of these searches are less there are of them others sometimes of warrantless search can involve walking and looking in the door maybe check a few doors and walk out when you have this kind of law enforcement resources assistance you can do real searches and offenders or about them and they know that the possibility that you might have a federal case come out of it if you have a gun during your supervision helps create deterrence so that people impose really supervision don't do that and that fulfills the dual goals of supervision this court talked about in the dead st which is to help these offender succeed and nd is to protect public safety those are provisions interests and they're fully fulfilled by the patients of one force if the court isn't have any further questions i'd be happy to leave the rest of my time thank you very much we ask you a from the was a reasonable suspicion that mr midgette possessed firearm so i think it's distinguished on that basis and turning to why horney thomas selected j v on scott i direct the court's attention to j eighty four when she was asked by the prosecutor how did you become involved in that operation she said quote we became involved based on our supervisors they wanted to conduct they wanted to do searches of offenders that we had so we were asked to pick offenders we wanted to conduct searches on so this was not something that was coming from her and there's good reason for that she so even though mr scott had a previous revocation at the time he was supervised by ms thomas things were going well he was doing well and she recognized that by taking him off this curfew which is simply inconsistent with this idea that she somehow initiated and a law enforcement assistance for what she believed to be a search of a particularly dangerous offender i would also note my colleague invoked probation officer safety and i think of course that's a legitimate concern and if you have a supervising officer who contacts law enforcement asking for assistance that is a very different case than this one here in fact the probation office set itself up to make its officers less safe they were sending officers who were not familiar with and had not been briefed on the conditions of supervision and clickable to each supervisee or familiar with that person's history and circumstances so i think this is a method of of organizing a search actually rendered them less safe  thank the u s marshal service for bringing this campaign to our community and for including the hotel's police department in the effort to remove dangerous fugitives from our streets so i think everything in this case is pointing in one direction which is that law enforcement i don't believe was and who else your honor but i think the consistent message throughout both the press releases and the record in this case is that it was a law enforcement search that should have been subject to the balancing test of sampson and knights and that by asking probation officers to be present the government was attempting to get something under the gryphon a line of cases where if there is compliance with the special need the search would be authorized so without this court to reject that interpretation to reach the analysis under nights and sampson and hold that because of the conditions to which mr scott agreed his reasonable expectation of privacy was violated in this case the evidence should be suppressed there are no further cautious very much was the laura thank you