A Stitch in Haste

For the second time in two weeks I am fully supportive of a Supreme Court ruling that does not find a Fourth Amendment violation.

In ... Samson v. California (04-9728), the Court decided that the Fourth Amendment does not prohibit a police officer from searching a parolee, even without a warrant. ... The Court, in an opinion written by Justice Clarence Thomas, relied heavily upon a 2001 precedent, U.S. v. Knights, [534 U.S. 112 (2001),] allowing a warrantless search of the apartment of a probationer. Parolees, Thomas wrote, have fewer expectations of privacy than probationers. The ruling was by a vote of 6-3.

Entirely correct. Some hasty stitches:

--If there is no "right to parole," then there can be no "right to parole without restrictions." If the convict doesn't want to consent to unlimited and unrestricted warrantless searches during the length of his parole, then he can serve out his sentence in jail. It's like any other proposed contract: "offer + acceptance" or "offer + rejection."

--Last week's case, Hudson v. Michigan, 04-1360, which aroused such bizarre libertarian outrage, was about a search subsequent to a valid warrant. This case carves out an entirely new (but wholly correct) exception to the warrant requirement itself. Therefore, one would think that any libertarian upset with last week's holding should be even more upset with this one. Will they be? Somehow I'm skeptical.

--On the other hand, given the ongoing sex offender mania and its premise of permanent recidivism as the basis for lifetime registries and prohibitions on residence and occupation and such, one wonders whether some activist legislature will now jump the shark and propose extending Samson to a lifetime forfeiture of Fourth Amendment protection for convicted sex offenders, even after the term of the parole has ended. Now that would be an outrageous law and a scary Supreme Court case.

More thoughts from Sentencing Law & Policy, Concurring Opinions, Crime and Consequences.