State v. Turner
297 S.W.3d 155
Tenn.
2009
Check Treatment

*1 of Tennessee STATE Yvonne

Charlotte TURNER. Tennessee,

at Jackson.

April 2009 Session.

Oct.

The officers who searched the defendant’s status, knew her parole residence about were aware of the warrantless search con- her parole, dition of and did not conduct *3 in an unreasonable manner. Accordingly, the trial court in sup- erred pressing during evidence found the search of the defendant’s residence. The judg- Appeals ment of Criminal reversed, and this matter is remanded to the trial court for further proceedings con- with opinion. sistent this Background Factual Procedural defendant, The Charlotte Yvonne Tur- (“Defendant”), ner was in convicted Ken- Jr., Cooper, Attorney Robert E. General tucky in felony possession 2002 of Moore, Reporter; & Michael E. Solicitor controlled substance I and wanton en- General; Willis, Attorney Rachel E. Asst. dangerment in first degree. She re- General; Thomas, A. District At- Thomas a seven-year ceived sentence but was pa- General; Cannon, torney and James T. roled the. Kentucky Commonwealth of General; Asst. Attorney District for the February in Defendant was subse- appellant, State Tennessee. quently permitted to move residency her Powell, Tennessee, City, James T. Union and, September in her parole su- the appellee, for Charlоtte Turner. Tennessee, pervision was transferred to she in

where came reside Obion County. conjunction In with her OPINION Tennessee, signed in Defendant a stan- J., CLARK, A. CORNELIA delivered September dard document in 2005 in court, opinion in which JANICE which, among things, “agree[d] other she HOLDER, C.J., WADE, R. M. GARY search, warrant, a a without [her] KOCH, JJ., JR., joined. WILLIAM C. vehicle, person, property, place of res- LEE, J., a dissenting SHARON G. filed by any idence Officer Probation/Parole opinion. enforcement, law time.” permission granted appeal We in this in conditions of Defendant’s both police case to determine whether the vio Kentucky prohibited and Tennessee also rights lated the constitutional of the defen weapon, Tenn. possession a see also dant, a when parolee, they searched her 39-17-1307(b)(l)(B) (2006), Ann. Code a pursuant residence without warrant but federal, required obey Defendant of her parole. adopt to condition We state, local laws. reasoning Supreme Court in Sam California, 2007 in Defendant was indicted June son 2193, 165 (2006), County being posses- L.Ed.2d 250 and hold that Obion for felon a mo- handgun. who are to a warrantless sion of Defendant filed suppress the trial court search condition tion to which searched testimony granted hearing. after a suspicion. reasonable or of Defendant which pat-down follow- ed hearing includes the at the adduced Offi- pocket. in Defendant’s revealed $975 ing. the informa- Palmer testified: “With cer Palmer Officer Shawn April In that she’d been given that we were tion City Depart- Police for the Union worked pas- dealing drugs again; involved to the 27th Judicial assigned ment and drug ar- warrants out for senger had two Force. Officer Palmer Task Drug District no rests; fact that has [Defendant] and the personal- Defendant he knew testified I whatsoever and believe form of income “out on she was knew that ly and drug convic- time convicted [sic] three trafficking a controlled sub- Kentucky for tions, The officers money.” we seized *4 cocaine, parole and her stance, [had] crack they wanted to Defendant that then told officer here parole to a transferred been Palmer testified her house. Officer previ- knew she had He also Tennessee.” want to “said she didn’t that Defendant dealing drugs “convicted ously been her, fine, just your call told we’ll and we County.” Officer Palmer here in Obion not you’re tell her that officer parole [and] given “had been information he stated that to Officer Palm- cooperating.” According in sell- wаs still involved that [Defendant] er, parole then called her offi- Defendant Thus, 3, when April on crack cocaine.” ing confirmed that the conditions cer and driving Defendant Palmer saw Officer included warrantless searches. parole her seatbelt, her pulled he wearing agreed to meet Defendant The officers question by to a response In over.1 there and They her residence. drove at Palmer admitted that Officer prosecutor, Defendant to yard waited in the front for in the sense “pretextual” was stop they Officer Palmer stated arrive. seatbelt; for write[s] [he] “sometimes twenty minutes or so.” good “a waited we don’t.” sometimes and, accord- arrived her car Defendant stop, Defendant identified During the said, Palmer, up to Officer “walked ing friend, her Torrie Smith. her passenger said, in the got gun T crying started ” ran li- and Officer O’Dell Officer Palmer then unlocked her house.’ Defendant both Defen- warrant checks on cense and their search. began door and the officers on informa- Ms. Smith. Based dant and caliber hand- They recovered a loaded .38 learned to Officer O’Dell and tion known gun. placed Ms. Smith was dispatcher,

from the cross-examination, counsel defense On impersonation for criminal under arrest parole docu- that Defendant’s established outstanding war- found to and was that she was Kentucky ments from stated parole violation and probation rants for possession for controlled parole on marijuana. transporting substance, “trafficking.”2 Officer not ultimately he contacted Defendant’s Palmer admitted that did Officer Palmer to confirm that a citation to Defendant for seatbelt parole by phone officer issue that, upon He also admitted Upon to searches. violation. Defendant was Defendant, confirmation, he did not find searching verbal he conduct- receiving reflecting pri- certain notices three failing safety while State filed to wear a belt 1. A driver highway may felony driving a car on a Tennessee for the sale of Tennessee convictions substance, prosecuted a Class C misdemeanor. See for judgment orders a controlled 55-9-603(a), (d)(1) (2008). §Ann. Tenn.Code not in the reflecting convictions are also those record. judgment Kentucky orders are 2. The actual although Similarly, record. not in the He nevertheless license or

drugs person. registration, on her driver’s her vehicle to search Defendant’s house based both which she with decided had her. parole of her and the on conditions “[t]he cross-examination, On ac- Defendant States

rulings United that, detained, knowledged being while she Court.” spoke called and with her officer. that Defen- Officer Palmer admitted Her officer read her the pretext was a dant’s violation seatbelt searches; regarding condition did not she his her over his real con- pulling specifically tell Defendant or not whether “that suspected cern was that he she’d she had drive over to her house drugs again.” been Officer Palmer selling Officer Palmer’s demand. stated that his based hearing testimony, After this the trial

information he from one of had received court ruled from the bench granted his “informants.” suppress. Defendant’s motion to The trial if an When asked Defendant had had judge stated that he was “convinced that go to refuse to her house opportunity given there was no consent case to this *5 search, testified, “I for the Officer Palmer house, the search that the felt defendant her, go, her told I told if she didn’t want to no she had choice but to allow into them fine, I’ll the officer.” call Officer they the house or that gone would have that, de- Palmer admitted at time he or she anyway would been taken to house, search he termined to Defendant’s jail.” The trial court “The continued: enough get did not have information to in my search this opinion case was According search warrant. to Officer defendant, permitted of the of person, her Palmer, one hour approximately passed any- when she was I stopped. don’t see pulled from the time he Defendant over to thing unreasonable in that under the exist- searching time he finished her house. However, ing require law. to the defen- Defendant also testified. She stated go to dant to another location with no basis thing that Palmer to the first Officer said her to two whatsoever and detain for one out pulled get her when he her was to over hours, the Court that constitutes an finds say anything of the car. He did not about harassing, arbitrary capricious searching violation. started seatbelt He specifically search.” The court found no got her when out of her car. He also she “any support type evidence to of her car. he searched He indicated that in connection with suspicion” any for looking drugs; was he did not find con- of Defendant’s home and search on her or in car. She person her offered cluded that the search violated the Fourth no to these searches. resistance Ap- Amendment. The Criminal Court ruling on peals affirmed the trial court’s searching

After Officer Palmer finished rea- “application the basis that the of the car, he told her to drive to her Defendant’s police offi- sonable condition house could her house. Ac- so he search case, cers, in this unreasonable as became Defendant, I cording “he told me if Defen- lengthy a result this seizure of’ my gonna he was call go didn’t house dant, referring elapsed total time to the my jail he take me to gonna PO or was stop the initial and the between traffic anyway.” period She stated that time of Defendant’s conclusion pulling between Palmer her over Officer Turner; v. No. finishing the of her residence. State W2007- house CA-R3-CD, 2008 about 01590-C WL two hours. Defendant testified 2008). (Tenn.Crim.App. Apr.29, Officer never asked to see her *5 Palmer judged by balancing its intrusion on the the State’s for granted application We Amendment interests individual’s Fourth appeal order to address permission legitimate govern against promotion its time the first recent ” Ry. mental v. Labor interests.’ Skinner dealing with warrantless and Court case Ass’n, 602, 619, 109 Executives’ 489 U.S. ‍​‌​‌​​​​​‌​‌​​‌‌​​​​‌‌​‌​​‌​‌​​​‌‌​‌‌‌​‌‌‌‌‌​​​‌‍parolees, suspicionless (1989) (quot L.Ed.2d 639 S.Ct. v. 547 U.S. 126 S.Ct. California, Prouse, 648, 654, (2006). ing Delaware v. 440 U.S. 165 L.Ed.2d (1979)). 59 L.Ed.2d OF REVIEW STANDARD prohibition “The essence ruling from a appeal On against unreasonable searches and sei will suppress, uphold we a trial motion to zures the Fourth Amendment is to under findings suppression of fact court’s security ‘safeguard the of indi the evidence hearing preponderates unless arbitrary invasions against by gov viduals Odom, 928 S.W.2d otherwise. ” (quoting ernment officials.’ Id. Camara v. (Tenn.1996). prevailing party Couri, 523, 528, Municipal strongest trial court “is entitled (1967)) (quota 18 L.Ed.2d view of the evidence adduced at legitimate corrected). Thus, tion the basic constitu hearing as all rea suppression well as tional a warrantless search rule is that legitimate inferences that sonable and unreasonable, presumed seizure is Id. The be drawn from evidence.” evidence as a result is discovered facts, the law to the howev application of suppression. Coolidge v. New Hamp er, law this question *6 shire, 454-55, 443, 2022, 403 91 S.Ct. U.S. Williams, v. novo. State 185 reviews de (1971); 29 v. Bridges, L.Ed.2d 564 State 311, (Tenn.2006); State v. S.W.3d 315 (Tenn.1997). 487, 963 S.W.2d 490 This (Tenn.1997). 626, 958 S.W.2d 629 Yeargan, subject basic rule is to “a few specifically excep established and well-delineated ANALYSIS jealously carefully and drawn.” tions^] The Fourth Amendment I. 455, Coolidge, 91 S.Ct. 2022 403 U.S. States, (quoting The Fourth Amendment to the Katz v. 389 United U.S. 347, 357, 507, 19 provides United States Constitution 88 S.Ct. L.Ed.2d 576 (1967), States, pеople of the be secure v. United 357 right Jones “[t]he 1253, 493, 499, 2 houses un persons against their ... U.S. 78 S.Ct. L.Ed.2d [and] (1958)). seizures, exceptions 1514 searches shall not “These include issue, violated, and no conducted warrants shall and seizures incident arrest, yielding upon probable cause.” to a lawful those contra but U.S. Const. added). view,’ in the ‘plain pur or band those ‘hot amend. IV Whether criminal, fleeing search is suit’ of a those limited to particular “unreasonable” a ‘stop in violation of the Fourth frisk’ based on reasonable sus therefore “depends upon picion activity, the cir of those Amendment all of criminal based surrounding probable presence exigent ... in the of cumstances the search cause circumstances, ... itself.” and those based on con and the nature search Hernandez, 891, 263 S.W.3d 901 Montoya Day, v. de sent.” State v. United States (Tenn.2008) 537, 3304, Cox, 531, v. 171 (citing 105 87 n. 9 473 U.S. S.Ct. (1985). 174, (Tenn.2005), and Upon all the S.W.3d 179 State v. taking L.Ed.2d 381 of 230, Bartram, 227, account, 2 into “the S.W.2d 230 n. relevant circumstances 925 (Tenn.1996)). permissibility particular ‘is practice of

161 Knights, of felons. See States v. II. Warrantless Searches Convicted United 534 Serving 112, 119, 587, Defendants Sentences U.S. S.Ct. 151 L.Ed.2d May (2001). Be Reasonable In Knights, Supreme constitutionality Court considered the rule warrant- against The basic the warrantless of a probationer’s search person relaxed if the less searches is also accepted home. defendant had as a convicted of a being searched has been condition of his probation he would serving offense and is a sentence. criminal “[sjubmit ... person, property, place his that a recognized Court has residence, vehicle, effects, personal subjects conviction the offender to criminal anytime, search at with or punishments possible “a continuum of warrant, warrant of arrest or rea- solitary from confinement in a ranging by any probation sonable cause officer or maximum-security facility to a few hours 114, community law enforcement officer.” Id. at mandatory service.” Griffin Wisconsin, 868, 874, 107 Applying totality v. S.Ct. S.Ct. 587. (1987). test, An 97 L.Ed.2d 709 offend of which circumstances the defen- on this continuum alters what is place er’s probation dant’s “a condition was purposes “reasonable” for of the Fourth circumstance,” salient id. at instance, Amendment. For incarcerated 587, the analyzed the reasonable- “ legitimate expectation felons have no by balancing ness of the search ‘the de- privacy prison in their cells. See Hudson upon to which it an gree intrudеs individu- Palmer, v. U.S. S.Ct. privacy [against] degree al’s to which it (1984) (holding 82 L.Ed.2d 393 promotion legitimate needed for the prepared recognize as “society is not governmental Id. at interests.’” any subjective expectation of legitimate (quoting Wyoming Houghton, S.Ct. 587 prisoner might that a have in his 295, 300, ..., cell prison accordingly, (1999)). specifical- L.Ed.2d 408 The Court against proscription Fourth Anendment ly determined that the defendant’s “status apply unreasonable searches does not probationer to search condi- *7 cell”); the prison within the confines of tion both of that balance.” informs sides Williams, State v. 690 S.W.2d 524 Id. (Tenn.1985) (recognizing expecta that “an assessing degree In first the of intrusion privacy justified jail

tion of is not a interest, the upon probationer’s privacy a Dulsworth, cell”); 781 S.W.2d that recognized Court (recognizing (Tenn.Crim.App.1989) that, Palmer, prisoner’s expecta under very proba- in the nature of [[Inherent privacy tion of under the Fourth Amend probationers enjoy tion do not curtailed). severely ment is liberty every the absolute to which citi- punish- zen is entitled. Just as other along rest further

Probationers3 for criminal convictions curtail an ments Accordingly, probationers’ the continuum. freedoms, granting a court offender’s the Fourth privacy interests under reduced, condi- probation may impose not reasonable Amendment are also but are deprive the offender of some so far diminished as those of incarcerated tions subject supervision of the probationer 3. A is one who has been found court and to the crime, guilty upon plea, of a verdict or but probation Tenn.Code Ann. 40- service.” by impris- 28-102(6) (2006). has been released court “subject by imposed to conditions the onment enjoyed by law-abiding citi- criminal ordinary freedoms conduct than an mem- the community. ber of zens. 120-21, Id. S.Ct. 587. The Court (internal quotation and citations

Id. marks then concluded that of “the balance these omitted). The Court concluded that requires considerations no more than rea- search condition “would further two suspicion to sonable conduct a of search primary goals probation —rehabilitation probationer’s house.” [the] Id. at protecting society from future criminal added). (emphasis S.Ct. 587 Id. violations.” As result search condition, probationer’s reasonable ex- Knights Because search at issue in pectation privacy “significantly di- was supported reasonable suspicion, 119-20, minished.” Id. at 122 S.Ct. 587. Fourth passed Amendment muster. 122, 122 Id. at S.Ct. 587. Significantly, the Turning to the governmental interest open question Court left “whether the balance, side Court reasoned as probation diminished, condition so or com follows: eliminated, pletely probationer defen [the must be very it remembered that expectation reasonable dant’s] assumption of the of proba- institution ... that a search a law enforcement probationer tion is that the is more like- officer without suspicion individualized ordinary than the ly citizen violate the would have satisfied the reasonableness probation- law. The recidivism rate requirement of the Fourth Amendment.” significantly higher ers is than the gen- Id. at 120 n. S.Ct. 587 crime rate. probationers eral And added).4 A unsupported by any even more of an incentive to conceal came before the criminal quickly their activities and dis- California, Court in Samson v. pose incriminating evidence L.Ed.2d ordinary criminal probationers because (2006). they are aware that supervision and pro- face revocation of III. Parolees: Samson v. California bation, incarceration, possible On the possible pun continuum of proceedings rights which the trial of a freedoms, pa ishments and reductions jury proof beyond occupy рlace rolees between incarcerated doubt, among other do things, apply. prisoners probationers. Tennessee’s (internal quotation Id. marks citations statutory scheme defines as “the omitted). The recognized a [previously pris release of incarcerated] *8 have a states the community oner ‍​‌​‌​​​​​‌​‌​​‌‌​​​​‌‌​‌​​‌​‌​​​‌‌​‌‌‌​‌‌‌‌‌​​​‌‍to ... prior probationer.

dual concern with a expiration prisoner’s On the of the subject term hand the hope one that he will suc- § conditions-” Tenn.Code Ann. 40-28- cessfully 102(5). complete probation and be inte- parole “Release on privilege is a 40-35-503(b) back grated community. into the right....” § On and not a Id. concern, justified, (2006); 40-28-117(a) (2006). the other is the quite § see also id. that he will be likely engage scheme, more in Under Tennessee’s statutory per- Davis, Similarly, State v. probationer per 191 S.W.3d se reasonable be- (Tenn.Crim.App.2006), 121-22 involved an al- by cause found the supported it search to be proba- suspicion. most identical Tennessee condition of Our resolution of the Appeals The Court of Criminal tion. declined case require instant also does not us to re- probationers. to address whether a warrantless search of solve this issue as to press, which the trial prison оutside of walls court denied. The sons released legal custody in the parole Supreme upheld remain against Court (or supervisor) penal warden relevant challenge. a Fourth Amendment Id. at .provisions subject upon are to all of the 847,126 S.Ct. 2193. parole their is conditioned. Id.

which Returning the balancing test it had 40-28-117(a); Doyle Hampton, § in Knights5 used the Court first reasoned (1960). Tenn. 340 S.W.2d “parolees expectations have fewer Parolees remain under the confinement of privacy probationers, than parole because parole. Doyle, while on their sentences imprisonment proba is more akin to 340 S.W.2d at 893. imprisonment.” tion is to Id. at Knights question not address the did added). Second, S.Ct. parolees any whether reasonable ex- “unambiguously” Samson was aware of the the Fourth pectation privacy under parole. search condition of his Id. at Amendment; recently that question was (quoting Knights, 126 S.Ct. 2193 by addressed Court in Sam- 587). Thus, at “[ejxamining S.Ct. son. the totality pertaining of the circumstances Donald Samson was a California Curtis parolee, status as a an estab [Samson’s] parolee. As a condition of his release on lished imprisonment, including variation on statute, parole under a Samson California plain terms of the search condi agreed writing had “to be to tion,” the Court concluded that Samson by officer or seizure expectation privacy “did have an day other officer at time of the peace society recognize legitimate.” would night, with or without a search warrant (internal Id. quotation marks and citation Samson, and with or without cause.” 547 omitted). (quoting scale, On the other side 3067(a) (West Ann. Cal.Penal Code reasoned that 2000)). interests, contrast, State’s [t]he San Bruno Police Officer Alex Rohleder This repeatedly substantial. Court has knew that Samson was on and be- that a State an “over- acknowledged has lieved had an outstanding at-large whelming supervising parol- interest” Upon warrant. Samson out walk- seeing “parolees ees because ... are more like- day, him ing stopped one Officer Rohleder ly to commit future criminal offenses.” inquired about the warrant. Samson Similarly, repeatedly this Court has ac- replied outstanding that there was no war- knowledged that a State’s interests in in good standing rant and that he was with reducing thereby promot- recidivism and parole officer. Officer Rohleder con- his ing reintegration positive citizenship firmed this information radio. Officer among probationers war- Rohleder nevertheless conducted a search rant intrusions that would not Samson, solely “based on [Samson’s] the Fourth otherwise be tolerated under 846-47, parolee,” status as a id. at *9 Amendment. 2193, methamphetamine S.Ct. and found 853, (quoting Id. at Pa. Bd. person. charged on his After he was with Scott, 357, possession, sup- Samson filed a motion to Prob. and Parole v. 524 U.S. 3, specifically Court declined to 547 U.S. at 852 n. 126 S.Ct. 2193. 5. The Samson analyze theory. the search under a consent 365, 2014, 118 S.Ct. 141 L.Ed.2d a showing suspicion of individualized (1998)). floor, not a constitutional recognized The Court below which a “[t]he that, presumed search must be unreasonable. Legislature has concluded California circumstances, In limited where pri- given the number of inmates vacy implicated by interests the search rate, high its paroles and recidivism a re minimal, an important where quirement that searches be based on indi governmental by interest furthered suspicion vidualized would undermine the placed intrusion would in jeopardy by be ability effectively supervise pa State’s a requirement suspi- of individualized protect public rolees and from criminal cion, a search despite be reasonable reoffenders,” by agreed acts suspicion. the absence of such conclusion makes eminent sense.” “[t]his (citation omitted) added); Id. (emphasis Id. at 126 S.Ct. 2193. The Court Treasury see also Nat’l Employees Union “[i]mposing reasoned that a reasonable Raab, 656, 665, v. Von 109 S.Ct. suspicion requirement ... give pa would (1989) (emphasizing 103 L.Ed.2d 685 greater opportunity anticipate rolees longstanding “the principle that neither a criminality.” searches and conceal Id. cause, nor, indeed, probable warrant nor Hence, parolee the search of Samson any measure of individualized suspicion, is passed Fourth Amendment muster even indispensable an component of reasonable- though it not supported by any was rea circumstance”). in every ness The majori- suspicion. sonable or individualized Id. at ty in Samson simply crafted a narrow 857, 126S.Ct. 2193. exception usual rule: an exception The holding parolee Court’s could hardly which is misguided given the mini- be any particularized searched without mal interests retained suspicion has resulted some criticism. government’s and the “overwhelming in- See, LaFave, Seizure, e.g., 5 Search and terest” in ensuring parolee that a complies (4th 2004) § 10.10 at 432-82 Supp. ed. with parole. the conditions of her As not- view, however, 2008-09 at 27-44. In our ed Supreme Colorado even Court Samson present significant does not de- decided, before “[rjequiring Samson was parture from the Court’s earlier Fourth would eliminate a Amendment jurisprudence.6 The Skinner powerful deterrent violations that, Court reiterated in although and, consequently, place in jeopardy would “some quantum of individualized suspicion” overwhelming State’s interest ensur- “usually” necessary for a search to ing parolee that a complies with the condi- reasonable, 489 U.S. at parole.” tions of his People v. McCul- added), (Colo.2000) (En the rule lough, was not 6 P.3d Banc). hard fast one: (2008).

6. Our research indicates that parolee drug few of our sister was convicted of a high analysis state courts undertaken an suspicionless offense after a search of his bed- challenge in the context of a to a Supreme room. The Illinois Court first noted suspicionless parolee. Similarly search of a question that "the search in was nonconsen- holding today, to our the Illinois spite wording sual” in adopted applied Court has Samson to a specifical- condition. Id. at parolee subject provid to a search condition ly rejected parolee’s contention that Sam- ing that the "shall consent to a searсh distinguishable son was because his condition person, properly, [his] residence under differently was worded than Sam- Wilson, People [his] control.” 228 Ill.2d son's. Id. at 1042. 319 Ill.Dec. 885 N.E.2d

165 Tennessee IV. Constitution ting spite serious felonies of worrisome statistics of According recidivism. to the I, 7, Article section of Tennessee’s Con Department Tennessee of Correction Re- provides similarly the Fourth stitution Update search Brief titled “TDOC Release “the shall se people Amendment that [tracking] Trends Failure Rates Felon persons ... cure in their houses [and] 1999-2003,” publication Releases com- from unreasonable searches and seizures.” piled the Tennessee Department of added). I, § art. Tenn. 7 Const. Correction of Policy, Division Planning, & previously this Court has not ad While 27, 2005,7 April Research and dated felons scope parolee’s dressed the of a constitu released in 2000 had a recidivism interest, privacy previously tional we have rate of 50% within years the first three recognized that Tennessee’s constitutional their release. supervi- Close careful provision against unreasonable searches “ parolees sion of Tennessee appropriate. is is and seizures ‘identical intent and ” Samson, 854, Sеe 547 purpose with Fourth Amendment.’ (acknowledging 2193 grave safety “the 330, Randolph, State v. 74 S.W.3d 334 recidivism”). concerns that attend (Tenn.2002) State, (quoting v. Sneed 221 parameters constitutional is what “rea- 6, (1968)). 857, And, Tenn. 423 S.W.2d sonable” for must this very take recognized while this Court has also its danger real of recidivism into account. interpret freedom “to the provisions of our greater state constitution to protec afford Although parolee’s constitu constitution,” tion the federal v. protections tional against unreasonable Cox, (Tenn.2005), 171 S.W.3d we may extinguished not be as com persuaded the Samson analysis pletely as those of prisoners,8 incarcerated the correct strikes balance between the parole status is a “powerful circumstance” severely diminished interests of much akin more than pro incarceration convicted felon serving the remainder bation or freedom9 in determining ‍​‌​‌​​​​​‌​‌​​‌‌​​​​‌‌​‌​​‌​‌​​​‌‌​‌‌‌​‌‌‌‌‌​​​‌‍the rea his or her sentence on parole release in the sonableness of a search. See United community, and society’s interests in both Follette, ex rel. v. States Randazzo reintegrating that protecting felon and it (S.D.N.Y.1968); F.Supp. see also against self recidivism. Crawford, v. United States 372 F.3d (En (9th Cir.2004) Banc) (Kleinfeld, award of an incarcerated J., prisoner privilege right. concurring) is a and not a (explaining parolees, 40-28-117(a). Tenn.Code Ann. It to probationers, is contrast “have been sen privilege the State of Tennessee ac- to prison tenced for felonies released persons cord to incarcerated for commit- prison before end of their terms” and 2008). also, Bennett, http://wwwAennessee.gov/correction/ 7. See e.g., See State v. pdf/RecidivismBriefÚpdate.pdf (2009); Segundo 200 P.3d Kan. State, (Tex.Crim.App. v. S.W.3d construing 8. Some courts Samson have con 2008). We need not reach this issue decide Court, cluded that in "[t]he for all this case. purposes, tents and has decided that a signed [providing who has a search condition nothing ... 9.“Parole more than condi- law enforcement warrantless searches suspension of sentence.... The sen- tional officers at has no Fourth Amend time] expire tence man does not because of rights, only protection ment to a from during parole, pendency nor arbitrary, capricious harassing searches.” parole.” Doyle, 340 S.W.2d at 893. Widener, 3:08-CR-01, United States No. Nov.4, (E.D.Tenn. 2008 WL at *3 *11 166 734, 743, P.2d Cal.Rptr.2d 968 80 harmfully Cal.4th acted more to have

are “deemed Bravo, (1998); 43 445, 450, Peoplе v. 451 not re- except those felons anyone 282, P.2d 600, Cal.Rptr. 738 238 Cal.3d prisoner A who parole”). leased on (1987); Ann. 336, Penal Cal. Code 342 must privilege accorded 2000)). 3067(d) (West the conditions by all of to be bound agree A or her release. upon his imposed “arbitrary,” “capri the terms While parolee that the submit requiring condition cious,” easily “harassing” are is reasonable searches warrantless defined, Supreme Court the California diminish- significantly parolee’s of the light (1) could “a search that considers interests; sought to goals ed if constitutionally ‘unreasonable’ become release; society’s by early attained often, an unreasonable or at made too protecting itself interest legitimate hour, unreasonably or prolonged if or adopt therefore We against recidivism. arbitrary establishing reasons for other hold that the reasoning Samson searching by the oppressive conduct or permits parolee 734, Tennessee Constitution officer,” 968 Cal.Rptr.2d Reyes, 80 any reasonable or Clower, to be searched v. (quoting People P.2d at 451 parolee where 1737, 1741, 21 Cal. Cal.App.4th 16 by law (2) to warrantless searches agreed (1993)); has that it is “arbi 38 Rptr.2d officers.10 enforcement the motivation capricious when trary and rehabilita unrelated to for the search is Warrantless, Limits on V. law en tive, legitimate or reformative Suspicionless Searches when the search purposes, or forcement Parolees animosity to by personal is motivated (citing id. In re An parolee,” which ex ward a dissent generated S., 6 Cal.App.4th 4 thony regime suspi- “a about pressed concerns (3) (1992)); that an 214 Cal.Rptr.2d to a searches, pursuant conducted cionless or probationer of a “unrestricted of discretion untethered grant blanket at officers by law enforcement parolee enforce safeguards, by law any procedural is a form of caprice or inter their whim special have no personnel ment who harassment,” v. Brem (citing People id. proba or est the welfare 1058, 1062, mer, 106 Cal. Cal.App.3d Samson, at tioner.” (1973)). People v. See also (Stevens, J., Rptr. dissenting). The S.Ct. 2193 Smith, 92 Cal. Cal.App.4th that by observing majority responded (2009) (recognizing suspicion- Rptr.3d concern California’s “[t]he “[wjhether arbitrary, search is [parole] unbridled system gives officers less search pur turns on its searches, harassing or thereby capricious, in to conduct discretion (ob P.3d at 782 McCullough, 6 strong pose”); arouse harms that flicting dignitary of an abusive examples serving and undermine resentment at an conducted include “searches productive ability reintegrate into their hour, un that are prohibition unreasonable society, is belied California’s frequent reasonably prolonged, harassing1 ‘arbitrary, capricious only intended that are Samson, repeated searches searches.” harass”). search of suspicionless A 19 to (citing People Reyes, Samson, U.S. at 856 See searches. be under- such Importantly, such searches prior searching has only if the officer 126 S.Ct. 2193. taken n. subject to knowledge parolee's status as *12 167 constitutionally parolee animosity Indeed, would also be would be unreasonable. suspect if law may enforcement officer there be other situations where a knowing warrantless, it without that conducted suspicionless search of a pa person parolee subject searched was a rolee is suspicionless unreasonable. A suspicionless warrantless search of a parolee subject to a warrant- Samson, at 856 searches. See 547 U.S. condition, less search and which is con 5,n. 2193. S.Ct. out of law ducted valid enforcement con cerns, is unreasonable.11 agree we that

While these apprоpriate factors to consider when re The VI. Search of Defendant’s viewing a suspi- whether warrantless and Residence eionless search of a is parolee unreason provision search at issue in unconstitutional, able and we therefore pursuant Samson was to a specific Califor recognize also that a suspicionless search Samson, nia 846, statute. See at could be “arbitrary.” characterized as See 2193. Tennessee not have does a (8th 2004) Dictionary Black’s Law ed. statute; rather, similar our statutory (“1. Depending on individual discre scheme allows the Board of Probation and ”). tion .... A search type of this is not to “impose Parole parolees] any [on condi unreasonable, necessarily however. tions and that limitations [it] deems neces Therefore, totality of circum 40-28-116(b) sary.” Ann. § TenmCode warrantless, surrounding suspi- stances a (2006). imposed One the conditions parolee cionless search of a must be exam Defendant was the pro warrantless search ined to determine whether vision, which is a standard condition.12 It constitutionally unreasonable. For exam is uncontroverted that pattern agreed a Defendant ple, repetitive searches while writing to the parolee asleep provi is at work be warrantless search or would Moreover, sion. unreasonable. intended to Officer Searches cause Palmer and De parolee harm be both some would unreason fendant verified this condition of De A personal able. search conducted out of fendant’s with her parole officer recognize suspicionless provision 11. Because we that which Defendant may constitutionally search of a agreed be language does not contain the "with- unreasonable, disagree we with the dissent out cause” or suspicion.” "without We do today “gives adopt police we rule dispositive. not find this distinction to be complete power officers and unfettered de- Wilson, See 319 Ill.Dec. N.E.2d at tain and search citizen.” Indeed, Defendant herself does not argue point this distinction. The of the stan- cognizant provi 12. We are that the search dard search condition used Tennessee's subjected sion at issue California Board Probation Parole is to alert parolees to searches "with or parolees that law enforcement will officers search warrant and with or without cause." premises be аble to search them and their Samson, U.S. at S.Ct. 2193 necessity obtaining without the usual of first added). Some courts have inti judge’s magistrate’s permission. Parol- equivalent mated that "without cause” is the prior ees are thus informed to their release See, suspicion.” e.g., of "without United rights regarding their constitutional Freeman, (10th States v. 479 F.3d severely re- seizures been Cir.2007); Ochoa, 765 N.W.2d Nevertheless, duced. the Board of Probation (Iowa Ct.App. 2009 WL at *3 Samson, may revising 2009); and Parole wish to consider its Feb. see also explicitly standard conditions reflect (describing 126 S.Ct. 2193 the Califor requiring nia either a pa search condition as searched without searches”). suspicionless any particularized suspicion. rolees "to submit warrant her over parole, pulled of her terms of her he prior to the search immediately person a search her and vehi- must review the totali- conducted We now residence. circumstances, drugs of which Defen- cle. He found but did ty of the no find *13 agree- large person.14 a and her of cash Defendant’s sum on dant’s status condition presence large money the warrantless search The of this sum of ment to circumstances, determine any drugs the together are salient with absence of resi- the search of Defendant’s person gave whether in her car Defendant’s or reasonable. dence was Palmer to be grounds Officer some con- might recently that have cerned Defendant it trial court determined that was have drug might made a sale and more not, finding that total only “[t]he after at her drugs residence.15 anywhere one and took between process and that home two hours” Defendant’s was Officer to search De- Palmer’s decision City” part located in “another of Union fendant’s residence was not unreasonable stop place. where the traffic took from totality examined when under the Appeals agreed, of Criminal The Court proof There no the circumstances. of the rea- holding application that “[t]he any for record that Officer Palmer acted parole police condition offi- sonable of legiti- reason other the furtherance case, cers, in this became unreasonable as law mate enforcement concerns. Defen- of lengthy [Defen- a result of this seizure drug been dant had convicted offenses Turner, 1891445, at 2008 WL *5. dant].” had in two states. Officer Palmer infor- an she mation from informant was respectfully with the disagree We courts currently selling crack involved cocaine. resi- below that search of Defendant’s He status parole verified Defendant’s Based on infor- dence was unreasonable. warrantless he search condition before informant, an mation he had received from her proceeded residence. Nei- was that Defen- Officer Palmer concerned ther the search of Defendant’s vehicle nor engaged drug dealing. was He dant unreasonably her residence was previously knew had been convicted she That the total time of Defen- lengthy. He knew drug for a offense in Tennessee. may have been at dant’s detention most parole her status confirmed she hours, trip by two a short thereby included subject was to warrantless vehicle, in her Upon her commit a Defendant own did not so observing searches. infraction, to make prolong a detention as traffic which constituted Class misdemeanor and thus violated the search unreasonable. C implies 13. Defendant does the on-scene 15.The dissent that Officer Palmer’s not contest Only of her or justification searching self her automobile. sole for Defendant’s is before search Defendant’s residence understanding was of the war- residence his appeal. inus this provision rantless search of her rulings by States United Court. Palmer found Defendant Officer also fact, relied on In Officer Palmer also his company outstanding a woman had who an knowledge history, of Defendant’s criminal probation a warrant for violation. currently dealing information that was she Defendant’s with this woman association cash, drugs, possession large her of a sum of constituted violation of the conditions traveling person who and her with was Kentucky parole, prohibited of her which De- outstanding drug an warrant for a associating fendant from "with convicted offense. legitimate except purposes.” felon conditions of Defendant’s Tennessee in the included record do not contain simi- prohibition. lar Constitution, I search of the United States would that the warrantless We hold residence, to a pursuant provides made hold the Tennessee Defendant’s Constitution rea- parole, of her greater degree protection against suspi- written condition Amendment of the Fourth sonable under cionless searches than does the federal and article States Constitution United Constitution. Constitution, 7, of the section Tennessee reasonable, indi- evеn if made without I. vidualized, particularized suspicion. I, Article section of the Tennessee provides: Constitution CONCLUSION *14 hold that the warrantless search We people shall be secure in their [T]he residence, pursuant made to Defendant’s houses, persons, papers possessions, as a and a written con- her status from unreasonable searches and sei- of which she and the dition of her zures; warrants, and that general aware, was reason- searching officer were whereby may an officer be commanded Amendment of the able under the Fourth suspected places, to search without evi- I, article States Constitution and United committed, dence of the fact or to seize Constitution, 7, section of the Tennessee named, any person persons whose supported suspi- even if not reasonable are not particularly offences described the trial court erred in Accordingly, cion. evidence, supported are danger- suppress motion to granting Defendant’s liberty to ought grant- ous not to Appeals erred and the Court of Criminal ed. the trial court. We therefore affirming Although has the this Court stated judgment of the Court of reverse provision Tennessee is “identical in intеnt and remand this matter Appeals Criminal purpose with the Fourth Amend proceedings to the trial court for further State, 6, ment,” 221 Tenn. 423 Sneed opinion. consistent with this 857, (1968), S.W.2d 860 we also noted having indigent, Defendant been found that our search and seizure law has “devel of this are taxed to the the costs cause federal law.” oped independently from Tennessee, which execution State of Richards, 873, 877 State v. 286 S.W.3d may necessary. issue if (Tenn.2009). Thus, where “there has been of state constitution development a settled LEE, J., dissenting filed a SHARON G. al law which does not contravene the fed opinion. eral, to earlier we are not inclined overrule LEE, dissenting. G. SHARON demonstrably are er they decisions unless 544, Lakin, S.W.2d disagree majori- with the roneous.” State v. respectfully I (Tenn.1979) view, (noting n. that Tennes ty. my police In officers’ search particular phrase applying Turner’s residence without reason- see decisions of Ms. law are “somewhat ar- of search and seizure suspicion able or individualized violates law). I, case 7 of the more restrictive than” federal ticle section Tennessee Consti- Furthermore, there is no “set even where Supreme tution. While the United States development of state constitutional California, has ruled in Samson v. tled law,” to follow federal we decline 165 L.Ed.2d search, (2006), “inadequate” precedents they when such I, purposes of article section suspicion, serve Jacumin, S.W.2d 435-36 Fourth Amendment to State v. does not violate the (Tenn.1989) (rejecting “totality police the federal rare when a instance officer admits often, for a criminal circumstances” test such a motivation. Far more reliability informant’s favor two- trial will be presented court with a varia- pronged knowledge” “basis of “veraci tion of what Officer Palmer this said test); Richards, see also 286 S.W.3d at ty” justification case: when asked what he had 877-78; Cox, State v. 171 S.W.3d 183 to send Ms. Turner back to her house and (Tenn.2005) (stating are free to in “[w]e home, responded, search her he con- “[t]he state terpret provisions of our constitu ditions her rulings and the than greater protection tion afford United States When Court.” constitution.”); v. Randolph, federal justification such a suffices consti- pass (Tenn.2002) (noting 74 S.W.3d muster, ever, tutional more will if rarely, “this Court has not hesitated ex be offered. greater privacy tend protections I a requirement believe that of reason- citizens of appropriate this State when un able to search parolеe, lower I, 7”); article Downey, der State v. bar probable traditional cause (Tenn.1997) (stating S.W.2d “we requirement, and search warrant strikes a *15 recognize, we past, as have in the that appropriate more balance the in- between I, 7 may article section afford citizens of right to be dividual’s free from unreason- even greater protection”). Tennessee government’s legiti- able searches and the in preventing mate interest I crime.

II. agree rejecting with the Samson dissent Court, This following U.S. the conclusion, “the by reached here the Court Samson, today lead in Court’s holds that time, for the first that a supported search may law enforcement a pa- officials detain by neither nor subject rolee to a warrantless search con- ‘special needs’ is ‘reason- nonetheless dition “without individual- ” Samson, able.’ U.S. at suspicion,” ized may search both the (Stevens, J., dissenting). This con- residence, parolee’s person her and his or ” clusion, a “suspicionless of a that search if even the search of the is residence re- parolee unreasonable, not is that an means mote in time and point distance from the reason, cause, officer need demonstrate no оf detention. nor scintilla of justifying suspicion to I agree person While that a who has person search a he or she be on knows to felony been convicted of a be and should is parole under the “standard” condi- subject a analysis to different of what is a tion term. imposing warrantless search search, “reasonable” effectively a rule that Further, even if a personal of a search gives police complete officers and unfet- neither yields suspi- evidence nor power citizen, tered to detain and search wrongdoing, cion of police the officer cause, reason, no suspicion, goes with being then parolee’s insist taken to the Further, far my practical too view. as a residence, even if stop, distant from matter, approval Court’s blanket search the parolee’s order to home. As suspicionless parolees searches of results noted, aptly dissent sus- “[t]he in a loss meaningful judicial oversight picionless search very is the evil and review of police power to search and stamp Fourth Amendment was intended to parolees. seize While the Court observes out.” Id. personal ani- “motivated case, mosity” or with an or hаrassing present recog- abusive In the the majority unreasonable, nizes, purpose may it correctly my opinion, will be a “a sus-

J71 rate”; percent could be characterized as a 68-to-70 recidivism picionless search Indeed, (iv) it me ‘arbitrary.’” is hard for the “concern that California’s truly “suspicion- that is see how search suspicionless system gives offi- fairly be characterized as less” could cers unbridled discretion to conduct * * * “arbitrary” “capricious” nearly ev- is belied California’s Nevertheless, ery circumstance. prohibition on ‘arbitrary, capricious or Court, utilizing “totality of the circum- harassing’ searches.” test, an arbitrary stances” concludes that open But each of these points is parolee may constitutional pass search of (i), dispute. serious As to ‍​‌​‌​​​​​‌​‌​​‌‌​​​​‌‌​‌​​‌​‌​​​‌‌​‌‌‌​‌‌‌‌‌​​​‌‍it comes dan- muster, notwithstanding our established gerously close to acceptance of the dis- repeated observation that es- “[t]he custody” credited “constructive and “act prohibition against sence unreason- theories; grace” it hardly follows that able searches and seizures under suspicionless to ‘safeguard Fourth Amendment are, searches because inmates even security against of individuals (as though even the dissenters acknowl- arbitrary by government invasions offi- ” edge), there is “some” difference in the (quot- at 334 Randolph, cials.’ S.W.3d state’s parolees gener- interest vis-a-vis Court, ing Municipal Camara ally compared probationers gener- 18 L.Ed.2d 930 S.Ct. (ii), ally. just As for as in [United (1967)) added); see also State v. States Knights v.] [534 Ross, (Tenn.2001); S.W.3d (2001) nothing this is more ] at 106. Downey, S.W.2d *16 reasoning;

than circular while the ma- III. jority contends that because of the no- tice to Samson of the state law mandat- upon by The various rationales relied ing parolees suspicionless that submit to support the Samson this conclu- searches he “did not have an expectation sion, adopted by today, this Court privacy society of that recognize would analyzed thoroughly critically been legitimate,” as LaFave, correctly dissenters by Wayne Professor R. who particu- assert that the “mere fact that a part in states as follows: acknowledge lar State a parol- refuses Samson, balancing In the interests in privacy ee’s interest cannot mean that a majority principally upon relied in parolee expectation that State has no (i) parolees these “that considerations: privacy society willing of that is tо rec- expectations have fewer than (iii), ognize legitimate.” As for it is parole probationers, because is more essentially the same one-size-fits-all con- is”; imprisonment probation akin to than Knights, clusion as was reached in ex- (ii) that “the search condition un- cept that it is worse because the “size” requiring der California inmates law— parolees for all is appropriate deemed opt suspi- who to submit to searches, Knights suspicionless while by cionless officer or reason- probationers the “size” for ‘at peace other officer time’—was (iii) probable instead of cause Samson; able ‘clearly expressed’ to” searches). (at The least for residence ‘overwhelming “has an state interest’ aptly dissenters problem, as supervising parolees ‘parol- because it, put is that “the search condition here likely ees ... are more to commit future ” offenses,’ imposed parolees criminal as manifested is on all —whatever crimes, parolee population fact “California’s has the nature of their whatever recidivism, Court, their likelihood of and what- As did the Samson majority needs, supervisory ever their relies on the “parоle assertion that is more —without akin to any programmatic procedural imprisonment probation protec- is to imprisonment” in support tions.” of its conclusion

that all parolees, irrespective of individual circumstance, are to suspicionless (iv) Samson, point As for here is a searches. This observation certainly clearly matter goes beyond goes; view, true as far as it my but in Knights, only which approved pertinent far more fact is that the situa- upon searches made suspi- tions and circumstances of both ... majority says cion. the “dis- probationers are much more similar to * * * sent’s claim that parolees are sub- free citizens than to prison- incarcerated ject capricious searches conducted at ers. As aptly LaFave notes: the unchecked ‘whim’ of law enforce- most [I]n cases the life of a parolee ignores ment officers” provision nearly more resembles of an ordi- (which, by California law virtue of Sam- nary citizen than that of a prisoner. appears son to now be the Fourth parolee incarcerated; is not he is searches) parolee Amendment floor on subjected not prison to a regimen, which a seаrch is reasonable the rigors prison life and the unavoid- only so long “as it is not arbitrary, capri- able company of sociopaths. He does course, harassing.” cious or Of as the society violent, live in a whose notes, dissent the traditional means un- though usually repressed, mores neces- der the Fourth Amendment dealing sitate iron bars and the close watch of problem ivith that has been the “require- guards. armed Routine searches are ” ment suspicion, necessary in prison prevent danger- only one can wonder whether any lesser ous riots and internal violence. Such standard provide can a meaningful and, impersonal searches are because upon check police activity directed to- prisoner’s possessions limited, unin- parolees. ward Considering that *17 parolee, however, trusive. A in lives facts of Samson readily were found to environment, different one where such meet arbitrary, the “not capricious or problems are absent and searches and harassing” by court, test the California seizures are intrusive. parolee The there some pessimism. is reason for lives among people who are free to come LaFave, Seizure, § Sеarch and 10.10 go and when they and as wish. Except (4th 2004) ed. Supp. 2008-09 at 31-33 for the conditions of parole, he is one of (footnotes omitted) (final emphasis add- parole them. His represents supervi- ed).1 sion, rather than repression; and his scholarly For further of opinion.”); criticism the Sam Lynch, Rachael A. Two reasoning holding, son see Harvard Law Wrongs Don’t aMake Fourth Amendment Review, Court, Supreme 2005 Term— Right: Samson Choosing Proper Court Errs in Cases, 120 Harv. L. Rev. Leading Framework, Result, Analytical Errs in Parolees (Nov. 2006) (Noting, among things, other Protection, Lose Fourth Amendment 41 Akron give "[i]f Samson Court meant to Califor (2008); Lassetter, Law Review 651 John Sam- searches, nia unbridled parolee discretion in son v. Suspicionless “Evil" California: then the flimsiness of the California standard Everyday Searches Become a Part of Life for problem, is not a but if the Court did not Parolees, (Summer Inequality 25 Law & discretion, grant intend to level this it 2007). provided should explicit guidance more is, advisor, ideally, concept rights officer an that constitutional turn If rather an armed watchman. upon a governmental whether is benefit per- parolee’s officer is to be the ‘right’ characterized as a as a ‘privi- or prison only guard, sonal it is because lege’”). is,

thе court that he and such a decides on extraordinarily shaky decision stands IV. ground. though Even decisively Samson has set- LaFave, Seizure, 10.10(a) Search tled the issue suspicionless parolee (4 2004) (quoting at 436 ed. R. William Amendment, searches under the Fourth Rapson, Extending Search-and-Seizure Tennessee and sister clearly our states California, to Protection Parolees in remain liberty to a higher establish (1969)). 129, 133 Stan. L. Rev. threshold than suspicion” the “zero floor The Court also relies on assertion established California. The United an that the “award of incarcerat States of Appeals for the Tenth prisoner privilege right,” ed is a and not a recognized Circuit this in v. United States describing parole as a “privilege” four Freeman, (10th 479 F.3d 747-48 Cir. separate instances. description This is 2007), observing that true, unquestionably nothing but does The [Samson] Court noted “that some analysis. Surely further there are States and the Federal Government re- rights may constitutional limits on what quire a level of suspicion,” away reduced or taken from a parolee. strongly implied juris- that in such question may is whether a suspicionless dictions search would re- parole, but award refuse award impermissible. [Samson, main whether, after parole granted, is the State at 2201. S.Ct.] Parolee searches are person search the and home example therefore an in- of the rare reasonable, parolee any articula- stance in which the of a contours federal ble, suspicion wrong or individualized determined, right constitutional doing. As the Court observed in part, content of state law. Brewer, Morrissey (1972), 33 L.Ed.2d 484 “[i]t represent Samson does not blanket hardly longer try useful deal approval for warrantless problem pro- with this terms whether the by general bationer searches law en- parolee’s liberty ‘privilege.’ is a or a ‘right’ name, forcement officers without By libei’ty whatever is valuable *18 rather, suspicion; approved and the the protection must seen as within constitutionality of the Fourteenth the of such searches Amendment.” See also Richardson, 365, 374, only v. Graham 403 U.S. when authorized under state law. (1971) (stat has as gone S.Ct. 29 L.Ed.2d 534 Kansas not as far California searches,2 ing rejected authorizing that “this Court now has such and this parole peace 2. At time of of search Ms. Turner’s officer or other officer at arrest, gone night, day house and her time Tennessee had not or with or a without " authorizing as California such far search and with or without warrant cause.' Samson, provid- searches either: her condition at search, warrant, added) (quoting “a (emphasis ed for without a [her] of Cal.Penal Code vehicle, 3067(a) (West 2000)). person, place property, resi- Ann. of Neither ...," precludes dence whereas California’s con- condition "reasonable mentions or " provided suspicion,” clearly legally a dition ‘search seizure a standard that is (Pa.Su Hunter, 551-52 permissible in 963 A.2d was not therefore search per.Ct.2008). suspicion. of reasonable the absence Id. V. I analysis, to the above would Pursuant notes, the Samson Court As Freeman re- Tennessee Constitution hold

stated to quires showing suspicion a of reasonable majority that the Petitioner observes I, 7 of parolee. a Article section search and the Federal Government States Constitution, of to the Tennessee in addition to similar inter- have been able further un- providing protection its citizens “from promot- and reducing recidivism ests seizures,” ex- also reasonable searches re-integration, despite having sys- ing warrants, proscribes “general pressly parolee based permit tems that to whereby an officer be commanded Thus, upon suspicion. level some evidence suspected places, of contends, system petitioner California’s I reason- of fact committed.” believe a in- constitutionally compari- prohibition this interpretation is defective able prac- the issuance of a to search son. Petitioner’s reliance cludes warrant place a in the of reason- complete absence jurisdictions tices of other Califor- If this suspicion. individualized however, able or nia, misplaced. is That some offi- provision a law enforcement disallows re- States and Federal Government place cer to search a without evidence suspicion a quire level individualized providing suspicion pursuant reasonable determina- is little relevance to our warrant, general a it is reasonable to con- supervisory tion whether California’s disallowing strue it as an officer its system is drawn meet needs suspicion a reasonable residence without reasonable, pa- into account a taking sus- and without warrant. “Reasonable substantially expecta- rolee’s diminished overly-burdensome stan- picion is an tion of privacy. Bennett, 200 P.3d at 463. proof.” dard of Samson, 126 S.Ct. 2193 suspicion A requirement of reasonable added). recog- As Samson then howеver, does, appropriate strike more nized, “a and the Feder- majority states between the interests of balance had al Government” established thresh- interest individual and State’s reasonable, old of minimizing preventing recidivism justify Several state search. crime, by providing meaningful check on subsequent courts have ‍​‌​‌​​​​​‌​‌​​‌‌​​​​‌‌​‌​​‌​‌​​​‌‌​‌‌‌​‌‌‌‌‌​​​‌‍revisited the issue police to con- power otherwise unfettered to the decision and adhered to a searches, arbitrary suspicionless duct suspicion requirement. See Si- meaningful degree preserving some (Del.2008); State, erra v. 958 A.2d judicial oversight and review in order Bennett, State v. 288 Kan. 200 P.3d of this potential governmental curb abuses (2009); power. 462-63 Commonwealth *19 cause, explicitly parolees may be searched probable fleet distinct from standard required ordinarily support a search war- any particularized without either warrant or course, rant. Of if the Tennessee Board of gone suspicion,” will then have Tennessee sug- Probation and Parole follows the Court's farther, far, in authoriz- if not than California gestion opinion "con- at footnote ing suspicionless parolee searches. revising re- sider its standard conditions to reasons, I re- For aforementioned

spectfully dissent. et

David GOFF al. GREER

ELMO & SONS

CONSTRUCTION

CO., INC. Tennessee,

Supreme Court of

at Nashville.

June 2009 Session.

Nov.