Supreme Court Dispatches

Dumb and Dumber Meet the Supremes


Mark James Knights had a problem with his PG&E bill. The California electric company discontinued his service in March 1996, following Knights’ failure to pay a bill and also when it became clear that he was stealing services by bypassing its meter.

So Knights did what any of us would probably have done in his situation. The state alleges that he launched a two-year, $1.5 million campaign of vandalism and arson, destroying PG&E facilities across Napa County. Knights’ heroic consumer vigilantism allegedly included such daring maneuvers as throwing chains on transformers, damaging gas power-switches and power pole guy wires, and escalating to arson and pipe bombs. Knights cleverly diverted police attention by allegedly timing his vandalism to coincide precisely with his court appearances for stealing power.

In May 1998, Knights and his trusty sidekick, Steven Simoneau (hereinafter, “Dumb” to Knights’ “Dumber”), were stopped by the cops near a PG&E natural-gas line, with a pickup full of pipes, bits of chain, tools, and gasoline. They couldn’t explain what they were doing there. After a phone telecommunications vault and adjacent PG&E power transformer were destroyed, the police set up surveillance outside Knights’ apartment. On June 3, 1998, they watched Simoneau leave the apartment with what looked to be pipe bombs. Detective Todd Hancock of the Napa County Sheriff’s Department followed and found, in a visual inspection of Simoneau’s truck, a Molotov cocktail, explosives, a gas can, and two brass padlocks fitting the description of the locks removed from the transformer that was recently vandalized.

Detective Hancock decided not to get a warrant to search Knights’ apartment because Knights was on probation for a misdemeanor drug offense. A condition of that probation was an agreement, signed by Knights, to “submit his … person, property, place of residence, vehicle, personal effects, to search at any time, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer.” Only California, Arkansas, and Georgia allow police such broad powers to search probationers outside the warrant requirements of the Fourth Amendment.

So Hancock busted in on Knights’ apartment at 8 a.m., disrupting the intrepid alleged bomber in bed with his girlfriend (this fact gets a lot of play in the pleadings, although for no constitutional reason that I can discern). Hancock found a detonation cord, ammunition, liquid chemicals, chemistry and electrical circuitry manuals, bolt cutters, telephone pole-climbing spurs, drug paraphernalia, and a brass padlock stamped PG&E. All of which would look pretty bad for Knights, except he won a motion to suppress this evidence in both the federal district court and the 9th Circuit Court of Appeals. Why? The lower courts felt the so-called “probation” search was just a pretext for a criminal investigation. The cops needed a warrant. The government appealed to the Supreme Court.

The Bearded and Sensitive among you are already mad: “Unfair, Dahlia! You only started with this lurid recitation of the crime to poison our minds against this defendant and to sway us into believing that the evidence shouldn’t have been suppressed.” No. I opened with the facts of Knights’ criminal activity to make a different point: This guy is clearly too big a moron to understand that what he signed in his probation agreement allowed the police to search his home anytime and for no reason. Which is, in a roundabout sort of way, Knights’ big argument in this case: Sure, he signed the probation agreement; and sure, a reasonable person should have known his privacy in his home was thus limited. But this is a man who apparently times his arson to coincide with his court appearances.

The issue in United States v. Knights(the most bizarre piece of appellate writing I’ve encountered in a long time) is not just whether the state can compel a petitioner to waive his right against warrantless searches in California. It implicates many other constitutional rights waived by probationers in various states, including restrictions on speech, association, movement, and even reproductive freedoms. One of the crucial issues in this case is whether Knights voluntarily waived his privacy rights when he signed the probation agreement allowing cops to search his home at any time. For one thing, his attorney argues, he didn’t bargain with the state for those conditions. He signed the agreement because the alternative was serving a jail term.

Malcolm L. Stewart, assistant to the solicitor general, defends the probation condition in a one-on-one with Justice Souter over which kinds of police officers Knights might reasonably have expected to ransack his home. Federal officers? Nevada officers?

“Afghan officers?” offers Justice Scalia.

Souter tries to get Stewart to agree that if California police can search probationers without warrants, the fact that Knights signed an agreement is constitutionally irrelevant. Stewart responds that the probation agreement merely provides “an additional check that the conditions are not onerous.”

Justice Ginsberg interrupts him to call a spade a spade. This agreement is simply a notice, she says. “The petitioner can’t negotiate. Defendant really has no choice.” Sign the agreement or go directly to jail. Justice O’Connor disagrees. She thinks defendants have a meaningful choice. If they don’t like the lack of privacy offered by probation, they can always choose the ample privacy afforded in the federal prison system. She says when she used to sentence defendants, they would “many times” take the shorter prison sentence, rather than having the government supervise them over a lengthy probation period. The gang lords must have been nicer in her day.

Justice Stevens wonders which other constitutional rights the state might take away from probationers. “Could you require him to give up his Miranda rights? Could you require a coerced confession, then brutal torture?” He interrupts Stewart to query, “To what extent is this waiver total?” demanding to know whether a probationer can be subject to a body cavity search every six hours.

Hilary A. Fox defends Knights, which can’t be an appetizing assignment. (Does he burn down her office when he gets her bills? Sure, she’s a public defender, but does he torch her car when she loses a motion?) She butts heads with Chief Justice Rehnquist and Scalia over whether her client “consented” to warrantless searches or whether he was merely “acquiescing to a show of authority” on the part of the courts.

Justice Breyer is only a half-step behind O’Connor in the law-and-order Sousa marching band. He wants to know what’s wrong with treating warrantless searches of probationers as “punishment” or mere “incapacitation,” permissible in prisons and halfway houses, and which should also be permissible for those on parole. Scalia tries to paraphrase Breyer’s question as: “I sentence you to 10 years of warrantless searches and seizures,” but Breyer quickly recants: “I may have overstated my case. I’ve obviously misled Justice Scalia.” He later explains that what’s bothering him is that “intermediate punishments”—such as halfway houses and probation should be encouraged and that requires allowing the state to “check up on people.”

I count O’Connor and Justice Kennedy as subscribers to the theory that since a reasonable purpose of probation is the deterrence of future crimes, it’s reasonable to consider a search from criminal activity within the scope of a legal probation search. I also count O’Connor as the jurist most obviously triangulating back from the post-Sept. 11 jurisprudential theory commonly known as “Rights, Schmights.” “With the help of hindsight,” she mutters, referencing Knights’ collection of things-that-make-you-go-boom, “it looks like an eminently reasonable search.” The spectators laugh, forgetting that the whole point of the exclusionary rule is that the fruits of illegal searches are not evaluated in hindsight. Even when it kills us to suppress evidence showing that the moron really did it.

Perhaps it’s simply Knights’ misfortune that he was allegedly blowing things up back in the days when that activity was still half-benign. Knights will give the court an early opportunity to consider whether everything has changed.