Opinion
No. W2016-01282-SC-R11-CD
11-21-2019
STATE of Tennessee v. Angela Carrie Payton HAMM and David Lee Hamm
OPINION
Roger A. Page, J.
I. Facts and Procedural History
The Obion County Drug Task Force conducted a warrantless search of the residence of probationer Angela Hamm and her husband, David Hamm, which yielded illegal drugs and drug-related contraband. Defendant Angela Hamm had agreed, pursuant to probation conditions imposed in a prior case, to a warrantless search of her person, property, or vehicle at any time. We granted the State’s appeal in this case to consider whether the warrantless search of a probationer’s residence who is subject to a search condition requires officers to have reasonable suspicion of illegal activity prior to conducting the search. We conclude that it does not and therefore reverse the trial court’s judgment and the Court of Criminal Appeals’ decision affirming the same.
In November 2013, an Obion County jury convicted defendant Angela Hamm (formerly Angela Carrie Payton) of manufacturing a controlled substance. The trial court ordered her to serve a six-year sentence. The sentence was suspended, and she was placed on supervised probation. Notably, the probation order included a warrantless search condition, which stated: "I agree to a search, without a warrant, of my person, vehicle, property, or place of residence by any Probation/Parole Officer or law enforcement officer, at any time."
Thereafter, it appears that Angela Hamm married defendant David Hamm and moved into his Obion County home. The record indicates that Clifton Hamm also resided with the defendants.
Approximately two years later, on November 16, 2015, Officer James Hall with the Obion County Sheriff’s Department/Obion County Drug Task Force received information from an informant that "heavy players" were trafficking methamphetamine in Glass, a community in Obion County. The informant, who had drug charges pending against her, volunteered information about certain drug traffickers bringing methamphetamine to Obion County from across the river. She did not indicate how she obtained the information nor would she identify the traffickers by name. However, when specifically asked about David Hamm, the informant smiled and nodded.
On November 17, 2015, drug task force agents went to the defendants’ house to conduct a warrantless "probation search" pursuant to Angela Hamm’s probation order. The agents assumed they had reasonable suspicion to conduct such a search based on the information gathered from the above-mentioned informant. When officers knocked on the door of the residence, no one answered. Clifton Hamm’s teenage son was standing in the front yard and told them that the defendants had just left but that Clifton Hamm and others were in the shop behind the house. The agents walked behind the house to the detached shop where they encountered Clifton Hamm and two other men. The group appeared to be watching security camera footage, but Clifton Hamm quickly turned off the television.
The agents then entered the house through an unlocked side door and proceeded to perform a warrantless search of the residence, including the defendants’ shared bedroom. Therein, the agents found pills, two glass pipes, methamphetamine, and scales.
The defendants were each arrested and later jointly indicted for six counts of possession of controlled substances with intent to sell or deliver and one count of possession of drug paraphernalia. Tenn. Code Ann. § 39-17-434(a) (possession with intent to sell or deliver 0.5 grams or more of a Schedule II controlled substance, methamphetamine); -417(a)(4) (possession with intent to deliver a Schedule IV controlled substance, alprazolam); -417(a)(4) (possession with intent to sell or deliver a Schedule II controlled substance, morphine); -417(a)(4) (possession with intent to sell or deliver a Schedule II controlled substance, amphetamine); -417(a)(4) (possession with intent to sell or deliver a Schedule IV controlled substance, clonazepam); -417(a)(4) (possession with intent to sell or deliver a Schedule II controlled substance, hydrocodone); and -425(a) (possession of drug paraphernalia). Both defendants filed motions to suppress the evidence seized as a result of the warrantless search of their home. At the hearing on the defendants’ motions, the State presented the testimony of Officers James Hall and Ben Yates.
Officer Hall testified that he received the information in question from the informant in November 2015. He confirmed that the decision to search the defendants’ home was made based on the information provided to him by the informant. He acknowledged that the informant was a "known methamphetamine user." However, Officer Hall believed the informant to be reliable because she was not a paid informant nor was she "throw[ing] bones at somebody else to keep [ ] attention off of [herself].... She was already caught."
Officer Yates added that agents were also armed with previously obtained relevant information from two additional informants at the time of the search. He had received second-hand information from a "reliable informant" that the defendants were "doing it big in Glass." When asked about the informant’s reliability, Officer Yates replied, "This informant has been involved in numerous narcotic cases, the seizure of narcotics, [and] made numerous cases for the drug task force." He acknowledged, however, that the informant received his information from "friends that purchase methamphetamine" and that the informant had not personally observed the illegal activity.
In addition, an informant cooperating with drug task force agents had previously attempted to purchase methamphetamine—albeit unsuccessfully—from Clifton Hamm at his residence. However, agents were unaware that Clifton Hamm was residing with the defendants at the time.
Both agents testified that prior to performing the search of the defendants’ home, they confirmed with the local probation office that Angela Hamm was on probation and that the probation order subjected her to a warrantless search. Conversely, both acknowledged that David Hamm was not on probation at the time of the search. According to their testimony, the agents were unaware that the defendants shared a bedroom until they entered the home.
In its May 2, 2016 order, the trial court granted the motions to suppress, stating that it could "find nothing by way of articulable facts to support the reasonable suspicion of the officer to justify a search pursuant to the probation order...." The trial court reviewed the factors upon which the State relied to establish reasonable suspicion and addressed each in turn:
1) Officer James Hall received a tip from a person he had pulled over on a traffic stop that generally said there were some "heavy players" in the Obion County Glass Community.
2) This person however never mentioned a name or how she knew this information.
3) Officer Hall suggested the name of Defendant David Hamm, to the person
who winked and smiled, but never mentioned the Defendant Angela Hamm.
4) Officer Ben Yates testified he received information from a reliable informant that there were some people in Glass "doing it big."
5) The informant was not identified, nor was there any indication as to why the informant was reliable.
6) The informant’s information was second-hand information from another informant who had attempted unsuccessfully to purchase drugs from another resident (Clifton Hamm) at the location.
(emphasis removed).
The State appealed to the Court of Criminal Appeals, which affirmed the trial court’s decision to grant the motions to suppress in a plurality opinion authored by Judge Camille McMullen. State v. Hamm , No. W2016-01282-CCA-R3-CD, 2017 WL 3447914, at *1 (Tenn. Crim. App. Aug. 11, 2017). It concluded that the State was required to have reasonable suspicion to support the probation search and that the State lacked such suspicion in the case at hand. Id. at *9. Judge John Everett Williams filed a separate concurring opinion agreeing that the State lacked reasonable suspicion to conduct the search and further concluding that Angela Hamm’s signature on the probation order did not constitute a valid consent to search. Id. at *10-16 (Williams, J., concurring). Finally, Judge Alan Glenn filed a separate dissenting opinion concluding that the agents had reasonable suspicion to search Angela Hamm’s house and that the search was also lawful as to David Hamm under the doctrine of common authority. Id. at *17-18 (Glenn, J., dissenting).
We granted the State’s application for permission to appeal in this case to consider "[w]hether law enforcement must have reasonable suspicion of a probationer’s criminal wrongdoing to support a search of the probationer’s residence under an agreed-to warrantless-search condition of probation."
II. Standard of Review
On appeal from a ruling on a motion to suppress, we will uphold the trial court’s findings of fact unless the evidence preponderates against those findings. State v. Stanfield , 554 S.W.3d 1, 8 (Tenn. 2018) (citing State v. Hawkins , 519 S.W.3d 1, 32 (Tenn. 2017) ; State v. Bell , 429 S.W.3d 524, 528 (Tenn. 2014) ; State v. Climer , 400 S.W.3d 537, 556 (Tenn. 2013) ; State v. Turner , 297 S.W.3d 155, 160 (Tenn. 2009) ; State v. Day , 263 S.W.3d 891, 900 (Tenn. 2008) ; State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996) ). " ‘Questions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.’ " Id. (quoting Hawkins , 519 S.W.3d at 32 ; Odom , 928 S.W.2d at 23 ). "The party prevailing in the trial court on a motion to suppress ‘is entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences that may be drawn from that evidence.’ " Id. (quoting Turner , 297 S.W.3d at 160 ; Odom , 928 S.W.2d at 23 ). We review the trial court’s application of the law to the facts de novo with no presumption of correctness. Id. (citing Hawkins , 519 S.W.3d at 32-33 ; State v. Walton , 41 S.W.3d 75, 81 (Tenn. 2001) ); Turner , 297 S.W.3d at 160.
III. Analysis
A. The Fourth Amendment
The Fourth Amendment to the United States Constitution guarantees that " ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause....’ " State v. Christensen , 517 S.W.3d 60, 68 (Tenn. 2017) (quoting U.S. Const. amend. IV ); State v. McCormick , 494 S.W.3d 673, 678 (Tenn. 2016). Similarly, article I, section 7 of the Tennessee Constitution provides that " ‘the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures[.]’ " Christensen , 517 S.W.3d at 68 (quoting Tenn. Const. art. I, § 7 ).
The search and seizure provisions of the federal and state constitutions are " ‘identical in intent and purpose.’ " Id. (quoting Sneed v. State , 221 Tenn. 6, 423 S.W.2d 857, 860 (1968) ). "Under both constitutional guarantees, reasonableness is ‘the ultimate touchstone.’ " Stanfield , 554 S.W.3d at 9 (citing Brigham City, Utah v. Stuart , 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ; McCormick , 494 S.W.3d at 679 ). Determining whether a particular search is "unreasonable" and therefore a violation of the rights guaranteed by the Fourth Amendment " ‘depends upon all of the circumstances surrounding the search ... and the nature of the search ... itself.’ " Turner , 297 S.W.3d at 160 (quoting United States v. Montoya de Hernandez , 473 U.S. 531, 537, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985) ). While a search is presumptively reasonable when conducted on the basis of probable cause and with a warrant, warrantless searches and seizures are presumptively unreasonable regardless of whether law enforcement actually had probable cause to conduct a search. See McCormick , 494 S.W.3d at 678-79 (citations omitted). However, there are circumstances where the reasonableness standard of the Fourth Amendment and article I, section 7 requires neither probable cause nor a warrant. See Samson v. California , 547 U.S. 843, 846-47, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) ; Turner , 297 S.W.3d at 157.
B. Warrantless and Suspicionless Search of Angela Hamm’s Residence (Probationer)
At the outset, we note that the analysis employed herein is confined to whether reasonable suspicion is required for a probation search pursuant to search conditions. "Reasonable suspicion is a less demanding standard than probable cause" and "can be established with information that is different in quantity or content than that required to establish probable cause and ... can arise from information that is less reliable than that required to show probable cause." State v. Keith , 978 S.W.2d 861, 866 (Tenn. 1998) (internal citations omitted).
In State v. Stanfield , this Court recently considered whether reasonable suspicion must support a warrantless search of a parolee’s residence. Stanfield , 554 S.W.3d at 4. Relying on Samson v. California and State v. Turner , we held that the search of defendant Winsett’s residence was constitutionally reasonable based solely upon Winsett’s status as a parolee, even though officers neither had a search warrant nor sought to obtain a warrant prior to searching the residence. Id. at 11.
Because we decided the Stanfield case based on defendant Winsett’s status as a parolee, we did not reach the question of whether officers had or needed reasonable suspicion to conduct the search of his residence.
Also, initially at issue in Stanfield was the relative expectation of privacy attending co-defendant Stanfield, who was on probation at the time of the search. Id. at 8. However, it was not necessary for us to reach the issue of whether reasonable suspicion was required to conduct a warrantless search of a probationer’s residence because the search of defendant Stanfield’s belongings fell within the purview of common authority. Id. at 15. We now address whether, under Tennessee law, reasonable suspicion is required for law enforcement officers to conduct a warrantless search of a probationer’s residence.
1. State v. Stanfield
In reaching our decision in Stanfield , this Court undertook a thorough review of Samson v. California and State v. Turner , both of which addressed parole searches conducted without reasonable suspicion pursuant to a search condition. We noted that in Turner , this Court adopted the rationale and holding of Samson , stating:
For a more comprehensive review of these cases, see State v. Stanfield , 554 S.W.3d at 9-13.
"The [United States] Supreme Court has recognized that a criminal conviction subjects the offender to ‘a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service.’ Griffin v. Wisconsin , 483 U.S. 868, 874, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). An offender’s place on this continuum alters what is "reasonable" for purposes of the Fourth Amendment. For instance, incarcerated felons have no legitimate expectation of privacy in their prison cells...."
Stanfield , 554 S.W.3d at 10 (quoting Turner , 297 S.W.3d at 161 ). This Court in Turner expressly held that under both federal and Tennessee state constitutional protections, "[a] parole condition requiring that the parolee submit to warrantless searches is reasonable in light of the parolee’s significantly diminished privacy interests; the goals sought to be attained by early release; and society’s legitimate interest in protecting itself against recidivism." Id. at 11 (quoting Turner , 297 S.W.3d at 166 (footnote omitted)). Moreover, the "State has an ‘overwhelming interest’ in supervising parolees because ‘parolees ... are more likely to commit future criminal offenses.’ " Id. (quoting Turner , 297 S.W.3d at 163 ) (quoting Samson , 547 U.S. at 853, 126 S.Ct. 2193 ). In Stanfield , this Court made clear that the search of a parolee’s residence could be constitutional without consideration of reasonable suspicion. Id.
Stanfield echoed the holdings of Samson and Turner in emphasizing that courts must consider "the totality of the circumstances" in assessing the reasonableness of a search. Id. at 9 (quoting Samson , 547 U.S. at 848, 126 S.Ct. 2193 ) (internal quotation marks omitted). That determination requires a balancing, " ‘on the one hand, the degree to which [a search] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ " Id. (alteration in original) (quoting Samson , 547 U.S. at 848, 126 S.Ct. 2193 ) (internal quotation marks omitted). Integral to this "balancing" is the fact that " ‘parolees ... have severely diminished expectations of privacy by virtue of their status alone.’ " Id. at 10 (quoting Samson , 547 U.S. at 852, 126 S.Ct. 2193.)
In Samson , the United States Supreme Court also found it "salient," as did we, that the search condition at issue in that case was "clearly expressed" to the defendant. Id. (internal quotation marks and citations omitted) (citing Samson , 547 U.S. at 852, 126 S.Ct. 2193 ). The United States Supreme Court pointed out that Samson "signed an order submitting to the condition and thus was unambiguously aware of it." Id. (quoting Samson , 547 U.S. at 852, 126 S.Ct. 2193 ) (internal quotation marks omitted).
In balancing the diminished expectation of privacy enjoyed by a parolee "with the State’s ‘overwhelming interest’ in supervising parolees, ‘[who] are more likely to commit future criminal offenses,’ and the State’s interests in reducing recidivism and in promoting reintegration and positive citizenship," this Court concluded that the State’s substantial interest in supervising parolees " ‘warrant[s] privacy intrusions that would not otherwise be tolerated under the Fourth Amendment.’ " Id. (quoting Samson , 547 U.S. at 853, 126 S.Ct. 2193 ). "The Turner Court described Samson as ‘a narrow exception to the usual rule: an exception which is hardly misguided given the minimal privacy interests retained by parolees and the government’s "overwhelming interest" in ensuring that a parolee complies with the conditions of her parole.’ " Id. at 10-11 (quoting Turner , 297 S.W.3d at 164 ).
While Stanfield is instructive in the matter at hand, it is not dispositive because the defendant in this case was on probation, not parole. " ‘On the continuum of possible punishments and reductions in freedoms, parolees occupy a place between incarcerated prisoners and probationers.’ " Id. at 10 (quoting Turner , 297 S.W.3d at 161 ). Thus, we look to the United States Supreme Court, federal circuit courts, and our sister states to survey various approaches to warrantless and suspicionless searches of probationers’ residences.
2. Warrantless Search of a Probationer’s Residence
It is undisputed that the Obion County Drug Task Force did not obtain a warrant prior to searching the defendant’s residence but that the officers were aware of her status as a probationer. We must next consider what degree of suspicion, if any, is necessary to support a warrantless search of a probationer.
a. United States Supreme Court
In United States v. Knights , the United States Supreme Court considered the constitutionality of a search that was premised on the probation condition requiring Knights to "[s]ubmit 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." United States v. Knights , 534 U.S. 112, 114, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (internal quotation marks omitted). Three days after Knights was placed on probation, evidence obtained during an investigation into the arson of a utilities transformer and telecommunications vault led law enforcement officers to conduct a search of Knights’ apartment. Id. at 115, 122 S.Ct. 587. The detective leading the investigation was aware of Knights’ status as a probationer and, accordingly, thought obtaining a search warrant was unnecessary. Id. The 3:10 a.m. search revealed evidence connecting Knights with the crimes and subsequently resulted in his being indicted for conspiracy to commit arson, possession of an unregistered destructive device, and being a felon in possession of ammunition. Id. at 115-16, 122 S.Ct. 587.
Knights filed a motion to suppress the evidence in the district court. Id. at 116, 122 S.Ct. 587. In granting the motion, the district court concluded that although the detective had reasonable suspicion to believe that Knights was involved with incendiary materials, the search was impermissible because its purpose was "investigatory" rather than "probationary." Id. The Court of Appeals for the Ninth Circuit affirmed. Id. (citation omitted). The United States Supreme Court granted certiorari "to assess the constitutionality of searches made pursuant to this common California probation condition." Id.
The district court found, and Knights conceded on appeal, that the search in question was supported by reasonable suspicion. Id. at 122, 122 S.Ct. 587. In reversing the district court and the Ninth Circuit, the United States Supreme Court addressed the following:
The State has a dual concern with a probationer. On the one hand is the hope that he will successfully complete probation and be integrated back into the community. On the other is the concern, quite justified, that he will be more likely to engage in criminal conduct than an ordinary member of the community.
Id. at 120-21, 122 S.Ct. 587. As such, stated the Court, "the balance of these considerations requires no more than reasonable suspicion to conduct a search of [the] probationer’s house." Id. at 121, 122 S.Ct. 587 (emphasis added).
This is consistent with prior United States Supreme Court precedent, which has held that
[w]hen the balance of interests precludes insistence on a showing of probable cause, we have usually required "some quantum of individualized suspicion" before concluding that a search is reasonable. We made it clear, however, that a showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable. In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion.
Skinner v. Ry. Labor Executives’ Ass'n , 489 U.S. 602, 624, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).
Because the search at issue in Knights was supported by reasonable suspicion, the search passed Fourth Amendment muster. Id. at 122, 122 S.Ct. 587. Accordingly, the Court held "that the warrantless search of Knights, supported by reasonable suspicion and authorized by a condition of probation, was reasonable within the meaning of the Fourth Amendment." Id. Of note, however, was the question left unanswered:
We do not decide whether the probation condition so diminished, or completely eliminated, Knights’ reasonable expectation of privacy (or constituted consent ...) that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment. The terms of the probation condition permit such a search, but we need not address the constitutionality of a suspicionless search because the search in this case was supported by reasonable suspicion.
Id. at 120 n.6, 122 S.Ct. 587. Thus, the precise question of whether reasonable suspicion must attend the search of a probationer’s residence is yet unresolved by our highest Court. b. Other Jurisdictions
The Supreme Court declined to address whether Knights’ acceptance of the search condition constituted consent because it concluded "that the search of Knights was reasonable under our general Fourth Amendment approach of ‘examining the totality of the circumstances,’ ..., with the probation search condition being a salient circumstance." Knights , 534 U.S. at 118, 122 S.Ct. 587 (citing Ohio v. Robinette , 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) ). Our holding today is consistent with Knights and Robinette in that we need not address whether the defendant’s acceptance of the search condition in her probation agreement constituted consent because the totality of the circumstances establish that the search was constitutionally reasonable. The Knights Court also rejected the "dubious logic [ ] that an opinion upholding the constitutionality of a particular search implicitly holds unconstitutional any search that is not like it" because such reasoning "runs contrary to Griffin ’s express statement that its ‘special needs’ holding made it ‘unnecessary to consider whether’ warrantless searches of probationers were otherwise reasonable within the meaning of the Fourth Amendment." Id. at 117-18, 122 S.Ct. 587 (quoting Griffin v. Wisconsin , 483 U.S. 868, 878, 880, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) ).
Although the Sixth Circuit Court of Appeals’ decisions interpreting Tennessee law are not binding on this Court, see Payne v. State , 493 S.W.3d 478, 492 (Tenn. 2016), we nonetheless find that court’s decision in United States v. Tessier , 814 F.3d 432 (6th Cir. 2016), to be instructive. In that case, the Sixth Circuit upheld a search based on the same Tennessee probation condition at issue in this case. Tessier , 814 F.3d at 433. Tessier was on probation for a 2011 Tennessee felony conviction for sexual exploitation of a minor. Id. His probation order contained the provision, "I agree to a search, without a warrant, of my person, vehicle, property, or place of residence by any Probation/Parole officer or law enforcement officer, at any time." Id.
The Tessier court characterized this search provision as being a "standard" search condition that applies to all probationers in Tennessee. Id. at 433.
Law enforcement officers searched Tessier’s residence as a part of "Operation Sonic Boom," a joint operation between the United States Marshal’s Office and Metro Nashville/Davidson County law enforcement and probation officers. United States v. Tessier , No. 3:13-00077, 2014 WL 4851688, at *1 (M.D. Tenn. Sept. 29, 2014). Officers searched residences of all known sex offenders in the jurisdiction during the three-day operation. Id. During the search of Tessier’s residence, which all parties agreed was not supported by reasonable suspicion, officers seized evidence of child pornography. Tessier , 814 F.3d at 433. He pleaded guilty to a federal child pornography charge but reserved the right to challenge the denial of his motion to suppress based on the warrantless, suspicionless search. Id.
The district court’s order denying Tessier’s motion to suppress reframed the pivotal issue as follows: "Consistent with the Fourth Amendment, can a probationer who has been convicted of a felony and who has executed a probation order in which he ‘agree[s] to a search, without a warrant’ be subjected to a search in the absence of reasonable suspicion?" Tessier , 2014 WL 4851688, at *3 (alteration in original). Noting that "[t]his question is yet unanswered by the United States Supreme Court or the Court of Appeals for the Sixth Circuit[,]" the court relied on "cases from those courts as well as other circuit courts and the Tennessee Supreme Court [to] provide guidance ... to answer the question in the affirmative." Id.
The Tessier court "adopted" the district court’s reasoning contained in the order denying the motion to suppress. Id. (citing Tessier , 2014 WL 4851688, at *1 ).
The district court began with two "non-controversial" premises:
First, constitutional rights can be waived, and "[i]t is well-settled that a person may waive his Fourth Amendment rights by consenting to a search." United States v. Carter , 378 F.3d 584, 587 (6th Cir. 2004) (citing Davis v. United States , 328 U.S. 582, 593-94 [66 S.Ct. 1256, 90 L.Ed. 1453] (1946) ). Second, even though entering into a probation order allows the possibility of home searches, the alternative is likely imprisonment and constant surveillance, a far greater encroachment on Fourth Amendment rights.
Tessier , 2014 WL 4851688, at *6 (alteration in original). The court then " ‘examin[ed] ... the totality of the circumstances’ and ... ‘assess[ed], on the one hand, the degree to which [the search] intrudes upon an individual’s privacy and, on the other hand, the degree to which it is needed for the promotion of legitimate governmental interests.’ " Id. at *7 (quoting Wyoming v. Houghton , 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) ). The district court reasoned that a defendant’s status as a probationer subject to a search condition was integral to both sides of that balance because " ‘[i]nherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled.’ " Id. (alteration in original) (quoting Knights , 534 U.S. at 119, 122 S.Ct. 587 (internal quotation marks omitted)). Moreover, " ‘it is reasonable to conclude that the search condition would further the two primary goals of probation—rehabilitation and protecting society from future criminal violations.’ " Id. (quoting Knights , 534 U.S. at 119, 122 S.Ct. 587 ).
The court found that the search of Tessier’s residence did not violate the Fourth Amendment and, accordingly, denied his motion to suppress. Id. In doing so, the district court dispelled the defendant’s argument that "his probation order d[id] not contain language about a search ‘with or without reasonable cause’ and ... that the absence of such language mean[t] that a search could only be conducted based upon reasonable suspicion." Id. The court summarized the defendant’s argument: "After all, a search warrant requires ‘probable cause,’ and so, the argument goes, in the absence of a search warrant there must be reasonable suspicion." Id. Rejecting the defendant’s argument, the court relied on Tennessee law, reasoning that
as the Tennessee Supreme Court in Turner held, a logical reading of that language is that no warrant will be required, not that, in its stead, reasonable suspicion is required. While Turner involved a parolee[,] ... the point the language is intended to make cannot be any different for probationers—the language informs them, as well, that judicial preview is not necessary before a search may occur.
Id. at *7 (emphasis added); see Turner , 297 S.W.3d at 167 n.12 ); see also United States v. King, 736 F.3d 805, 809 (9th Cir. 2013) (explaining that while a probationer had a greater expectation of privacy than that of a parolee, id. (citing Samson , 547 U.S. at 852, 126 S.Ct. 2193 ), the probationer nonetheless began with a "lower expectation of privacy than the average citizen" that was "significantly diminished" by the probation search condition, id. at 809 (citing Knights , 534 U.S. at 120, 122 S.Ct. 587 ), and concluding that the probationer-defendant’s expectation of privacy was lessened and that the search conducted in that case intruded on his legitimate expectation of privacy "only slightly").
States have differing standards with regard to the distinction between parolees’ and probationers’ expectations of privacy, and thus, the level of suspicion required to support a warrantless search in each case. See 5 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 10.10, n.12 (5th ed. 2019), (Oct. update) available at Westlaw SEARCHSZR10.10 ("compar[ing] State v. Cornell , [202 Vt. 19, 146 A.3d 895 (2016) ] (notwithstanding Samson , reasonable suspicion still required for searches directed at probationers), and Murry v. Commonwealth , [288 Va. 117, 762 S.E.2d 573 (2014) ] (rejecting a probation condition extending to suspicionless searches by police for ‘purely investigative’ reasons, noting Samson [ ] made distinction between parolees and probationers); with State v. Vanderkolk , 32 N.E.3d 775 (Ind. 2015) (while ‘the facts in Samson involved a parolee, not a probationer, and the Samson Court made a point of distinguishing the two,’ ‘despite the differences on the continuum of personal liberty, we nevertheless find that parolees and probationers both share equivalent understandings that their freedom from incarceration is conditional and subject to monitoring,’ and thus both ‘who have consented or been clearly informed that the conditions of their probation or community corrections program unambiguously authorize warrantless and suspicionless searches, may thereafter be subject to such searches’ ")); see also Jay M. Zitter, Annotation, Validity of Requirement That, as Condition of Probation, Defendant Submit to Warrantless Searches , 99 A.L.R.5th 557, § 9(a), (b) (2002) (citing cases distinguishing probationers from parolees and requiring reasonable suspicion for probation searches and cases aligning probationers’ and parolees’ expectations of privacy, thereby not requiring reasonable suspicion).
c. Tennessee
Upon consideration of the United States Supreme Court’s opinions, the Sixth Circuit Court of Appeals’ decision in Tessier, the varying opinions from other federal circuits and states, and our decisions in Stanfield and Turner, we acknowledge that the State’s substantial interests in supervising probationers as well as parolees " ‘warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment.’ " Stanfield , 554 S.W.3d at 10 (quoting Samson, 547 U.S. at 853, 126 S.Ct. 2193 ). "[T]he state has an interest in a probationer’s successful completion of probation and in his or her reintegration into society." King , 736 F.3d at 809 (citing Knights , 534 U.S. at 120-21, 122 S.Ct. 587 ). In balancing the diminished expectation of privacy attending a probationer with the State’s interests in reducing recidivism and promoting reintegration and positive citizenship, we conclude that it is logical to extend the same reduced expectation of privacy to probationers that we do to parolees. Accordingly, a probation condition of which a defendant unquestionably is aware, coupled with the slight intrusion upon her privacy, weigh in favor of the State’s interests. Therefore, we hold that probation search conditions that permit a search, without warrant, of a probationer’s person, vehicle, property, or place of residence by any Probation/Parole Officer or law enforcement officer, at any time, do not require law enforcement to have reasonable suspicion.
The case before this Court concerns a felon placed on supervised probation. The expectation of privacy of misdemeanants placed on probation is not addressed herein.
Whether reasonable suspicion was established by the facts of this case is pretermitted by our decision that reasonable suspicion is not required for the search of a probationer’s residence.
Our decision is supported by public policy concerns. " ‘[T]he very assumption of the institution of probation’ is that the probationer ‘is more likely than the ordinary citizen to violate the law.’ " Knights , 534 U.S. at 120, 122 S.Ct. 587 (quoting Griffin , 483 U.S. at 880, 107 S.Ct. 3164 ). The Supreme Court has recognized that
probationers have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may be subject to supervision and face revocation of probation, and possible incarceration, in proceedings in which the trial rights of a jury and proof beyond a reasonable doubt, among other things, do not apply[.]
Id.
3. Application
Just as in Stanfield , as a condition of defendant Angela Hamm’s probation, she signed a probation order that contained the condition, among other things, that " I agree to a search, without a warrant, of my person, vehicle, property, or place of residence by any Probation/Parole officer or law enforcement officer, at any time ." Her signature on the document clearly illustrates that the defendant was "unambiguously" aware of the search condition contained in the probation document, and the officer conducting the search was aware of her status as a probationer. See Stanfield , 554 S.W.3d at 10 (citing Samson , 547 U.S. at 852, 126 S.Ct. 2193 ). Thus, the search of defendant Hamm’s residence was constitutionally reasonable.
Justice Lee asserts that suspicionless searches "hinder[ ] one of the primary goals of probation—rehabilitating and reintegrating probationers into society"—and that probationers who feel they have been mistreated by law enforcement lack a firm foundation upon which to rebuild their lives. Justice Clark posits that "[r]equiring reasonable suspicion for probationer searches also would lessen, and perhaps even eliminate, the risk of repeated, disruptive, and potentially harassing searches of probationers at their homes, schools, places of employment, or other public places." Contrary to the concerns espoused in the dissents in this case, we again emphasize that this decision does not afford law enforcement unfettered and unreviewable discretion. See id. at 12.
A constitutional guardrail is still in place to prevent the intrusions described by the dissenting justices. Like a parolee, a warrantless and suspicionless search of a probationer could be deemed unreasonable and therefore unconstitutional under circumstances indicating that the search was conducted for reasons other than valid law enforcement concerns. Such a search would also be unconstitutional if conducted without knowledge that the person searched was a probationer who was subject to warrantless and suspicionless searches. See id. (citing Turner , 297 S.W.3d at 166-67 ). Accordingly, we reiterate that as a procedural safeguard, " ‘the totality of the circumstances surrounding a warrantless, suspicionless search ... must be examined to determine whether the search is constitutionally unreasonable.’ " Id. (quoting Turner , 297 S.W.3d at 167 ). We note, however, just as we determined with respect to a parolee, that a suspicionless search of a probationer "subject to a warrantless search condition, and which is conducted out of valid law enforcement concerns, is not unreasonable." See id. (quoting Turner , 297 S.W.3d at 167 ).
In her dissent, Justice Lee emphasizes our state and national trend toward reforming criminal justice systems to encourage rehabilitation over incarceration. The majority does not subscribe to the proposition that rehabilitation and probation search conditions are mutually exclusive. Indeed, the United States Supreme Court noted, "Just as other punishments for criminal convictions curtail an offender’s freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens." Knights , 534 U.S. at 119, 122 S.Ct. 587. Similarly, Justice Clark addresses at length the trial court’s discretion in suspending a defendant’s sentence and ordering the defendant to submit to supervised probation. Nothing in the majority opinion limits that discretion. To the contrary, Knights explained that "[t]he judge who sentenced Knights to probation determined that it was necessary to condition the probation on Knights’ acceptance of the search provision. It was reasonable to conclude that the search condition would further the two primary goals of probation-rehabilitation and protecting society from future criminal violations." Id. The trial court in this case also determined that the search condition was necessary. This is supported by Deputy Hall’s testimony that "[s]ome documents of State probation or parole are somewhat similar, somewhat different." 4. Reasonableness
"A probationer’s home, like anyone else’s, is protected by the Fourth Amendment’s requirement that searches be ‘reasonable.’ " Griffin, 483 U.S. at 873, 107 S.Ct. 3164. Pursuant to Turner , we must now engage in a review of the totality of the circumstances, " ‘of which [the] [d]efendant’s status as a [probationer] and her agreement to the warrantless search condition are salient circumstances, and determine whether the search of [the] [d]efendant’s residence was reasonable.’ " Stanfield , 554 S.W.3d at 12 (alteration in original) (quoting Turner , 297 S.W.3d at 168 (footnote omitted)).
Here, the record demonstrates that the search was constitutionally reasonable. Officers Hall and Yates were aware of Angela Hamm’s probation status and conducted a search based upon what they deemed to be credible information to determine whether she was engaging in drug activity—a valid law enforcement concern. The officers arrived at the home during the daylight hours, not during the night. There is no evidence in the record that suggests that the officers were acting in an arbitrary manner. The record is devoid of any proof that they sought to cause the defendant any harm, that they acted out of personal animosity, or that the search was one of a pattern of repetitive searches while the defendant was at work or asleep.
The majority opinion in this case strikes a balance between a probationer’s reduced expectation of privacy and promotion of the State’s legitimate interests. Concerns enumerated by the dissents, such as probationers being subjected to repetitive, disruptive, or harassing searches at their homes, schools, places of employment, or public places are assuaged by the touchstone of reasonableness.
Accordingly, considering the totality of the circumstances, the search of the defendant’s bedroom was clearly permissible. We conclude that because Officers Hall and Yates knew about the defendant’s status as a probationer and because the defendant was aware that she was subject to warrantless searches at any time as a condition of her probation, officers did not err in searching certain areas of the defendant’s residence. Absent any evidence whatsoever that the search in question was unreasonable in a constitutional sense and keeping in mind the State’s significant interests in combating recidivism and thwarting illegal drug activity by probationers, we hold that evidence seized during the warrantless search of the defendant’s residence was admissible against her and that the trial court erred in suppressing the evidence. We reverse the trial court’s decision granting the defendant Angela Hamm’s motion to suppress and the Court of Criminal Appeals’ opinion affirming the decision.
C. Warrantless Search of Defendant David Hamm’s Possessions in Shared Bedroom
We next address the trial court’s decision to grant defendant David Hamm’s motion to suppress. As stated supra , defendants David and Angela Hamm shared a bedroom within the residence, thus, their legal statuses intertwine. Therefore, it is necessary to consider whether the doctrine of common authority applies to the search of belongings that were found within the bedroom but that clearly belonged to David Hamm.
In Stanfield , we expressly adopted the doctrine of common authority as it applies to parole searches of areas of a residence over which a parolee has common authority. 554 S.W.3d at 13-15 (citing United States v. Matlock , 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) ; People v. Pleasant , 123 Cal.App.4th 194, 19 Cal. Rptr. 3d 796, 798 (2004) ; People v. Smith , 95 Cal.App.4th 912, 116 Cal. Rptr. 2d 694, 697 (2002) ; State v. Bartram , 925 S.W.2d 227, 230-31 (Tenn. 1996) ); see also United States v. Cantley , 130 F.3d 1371, 1377 (10th Cir. 1997) (concluding that parole search was lawful as to parolee’s wife because officers only searched common areas and the one bedroom that was identified as belonging to Cantley); United States v. Davis , 932 F.2d 752, 758-59 (9th Cir. 1991) (rejecting co-defendant’s argument that officers exceeded scope of warrantless search of probationer’s residence when they searched a safe that was under the apparent joint control of probationer and co-defendant); State v. Yule , 905 So. 2d 251, 264 (Fla. Dist. Ct. App. 2005) ("The non-probationer’s diminished expectation of privacy extends to those portions of the shared residence over which the probationer and non-probationer have joint dominion. ‘Persons who live with probationers cannot reasonably expect privacy in areas of a residence that they share with probationers.’ " Pleasant , 19 Cal.Rptr.3d at 798.); State v. West , 185 Wis.2d 68, 517 N.W.2d 482, 491 (1994) (stating that a "parole search may extend to all parts of the premises to which the probationer or parolee has common authority, just as if it were a consent search"). In doing so, this Court relied on language from a Minnesota decision that held, "Non-probationers who choose to live with probationers ‘assume the risk that they too will have diminished Fourth Amendment rights in areas shared with the probationer.’ " State v. Bursch , 905 N.W.2d 884, 890 (Minn. Ct. App. 2017) (quoting State v. Adams , 788 N.W.2d 619, 623 (N.D. 2010) ). We conclude that the privacy intrusion upon an individual sharing a bedroom (i.e., an area with common authority) with a probationer is not so invasive that it would not be tolerated under the Fourth Amendment. See Stanfield , 554 S.W.3d at 15.
We find extension of the doctrine of common authority to warrantless probation searches to be reasonable, especially in consideration of the fact that this Court has applied the doctrine in a case involving spousal consent, where neither party was subject to diminished privacy interests. State v. Pritchett , 621 S.W.2d 127, 134 (Tenn. 1981) ("A wife can consent to the search of her home, and if objects are found [that] would incriminate her husband, such objects are admissible in evidence."); see also State v. Talley , 307 S.W.3d 723, 734 (Tenn. 2010) (holding that a live-in girlfriend can consent to search based on the doctrine of common authority).
Nevertheless, the government bears the burden of proving the common authority doctrine applies. Illinois v. Rodriguez , 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). The State has satisfied its burden in this case. The officers believed the defendants to be either married or "seeing each other," and Angela Hamm had been living in David Hamm’s home "for quite some time." Angela Hamm and David Hamm shared a bedroom in the residence. Thus, by virtue of the doctrine of common authority, law enforcement officers did not err in searching and seizing all items of contraband found in the shared bedroom. The trial court, therefore, erred in suppressing the evidence against David Hamm. We reverse the trial court’s granting of defendant David Hamm’s motion to suppress and the Court of Criminal Appeals’ decision affirming that decision.
In her dissent, Justice Clark espouses concerns that a probationer might encounter difficulty finding suitable housing because "[a]nyone sharing a residence with a probationer loses a portion of his or her own constitutional protections because areas of the residence over which the probationer exercises common authority also will be subject to warrantless, suspicionless searches under the common authority doctrine." The dissent continues by noting that in this case, officers did not limit their search to areas of the residence over which the defendant exercised common authority. Roommates or house-mates of probationers need not be concerned with searches of their private quarters. That issue was foreclosed by Stanfield. 554 S.W.3d at 18 ("To give clear guidance to law enforcement officers, we emphasize that law enforcement is only permitted to conduct a search of a certain area of a parolee’s residence if ‘the facts available to the officers ... support a reasonable belief that the [parolee] has at least common authority over the area searched.’ [State v. ] Davis , 965 P.2d [525] at 533 [ (Utah App. 1998) ]. By so holding, this Court is balancing the State’s interests in enforcing the terms of parole by not allowing parolees to create a ‘loophole’ by residing with a non-parolee while simultaneously respecting the Fourth Amendment rights of an unencumbered citizen by not allowing law enforcement officers unfettered access to all areas inside the parolee’s residence.") (alteration in original).
CONCLUSION
We hold that because of the probation conditions to which defendant Angela Hamm was subject, the probation search of portions of defendant Angela Hamm’s residence was constitutionally permissible. Because the defendants shared a bedroom, the search of David Hamm’s personal belongings located within that bedroom was proper pursuant to the doctrine of common authority. The trial court erred in suppressing the evidence against both defendants. Therefore, we reverse the Court of Criminal Appeals’ decision to the contrary and remand this cause to the trial court for proceedings consistent with this opinion.
It appearing that the defendants Angela Hamm and David Hamm are indigent, costs of this appeal are taxed to the State of Tennessee.
Cornelia A. Clark, J., filed a separate dissenting opinion.
Sharon G. Lee, J., also filed a separate dissenting opinion.
Cornelia A. Clark, J., dissenting.
I respectfully dissent from the majority’s decision upholding the constitutionality of the warrantless and suspicionless search of Angela Payton Hamm’s home. In so holding, the majority erroneously equates the privacy interests of probationers and parolees despite statements by the United States Supreme Court and this Court that probationers have greater expectations of privacy than parolees. Samson v. California, 547 U.S. 843, 850, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) ; State v. Stanfield, 554 S.W.3d 1, 10 (Tenn. 2018) ; State v. Turner, 297 S.W.3d 155, 162 (Tenn. 2009). I would hold that the state and federal constitutional safeguards against unreasonable searches and seizures require law enforcement officers to establish reasonable suspicion for a warrantless search of a probationer. Here, as the courts below concluded, the State failed to establish reasonable suspicion for the search. Accordingly, I would hold that the search violated the Fourth Amendment to the United States Constitution and article I, section 7 of the Tennessee Constitution and affirm the Court of Criminal Appeals’ judgment upholding the trial court’s decisions granting the defendant’s motion to suppress and dismissing the indictments.
I. Constitutional Analysis
The Fourth Amendment to the United States Constitution and article I, section 7 of the Tennessee Constitution protect against unreasonable searches and seizures. State v. Hawkins, 519 S.W.3d 1, 33 (Tenn. 2017). "[A]rticle I, section 7 is identical in intent and purpose with the Fourth Amendment." State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997) (quoting Sneed v. State, 221 Tenn. 6, 423 S.W.2d 857, 860 (1968) ). The hallmark protections of these constitutional provisions are the warrant requirement and the probable-cause requirement. These requirements serve the "essential purpose[s]" of assuring citizens "that such intrusions are not the random or arbitrary acts of government agents[,] ... that the intrusion is authorized by law, and that it is narrowly limited in its objectives and scope." Skinner v. Ry. Labor Execs. Ass'n, 489 U.S. 602, 621-22, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (citations omitted). These requirements "also provide[ ] the detached scrutiny of a neutral magistrate, and thus ensure[ ] an objective determination whether an intrusion is justified in any given case." Id. at 622, 109 S.Ct. 1402 (citations omitted). Searches and seizures conducted pursuant to warrants are presumptively reasonable, but warrantless searches and seizures are presumptively unreasonable. Kentucky v. King, 563 U.S. 452, 459, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) ; State v. McCormick, 494 S.W.3d 673, 678-79 (Tenn. 2016).
U.S. Const. amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....").
In Tennessee, there are 57,832 probationers and 7,709 offenders in the Community Corrections program as of June 30, 2018. Tenn. Dep't of Correction, Annual Report (FY 2018), available at https://www.tn.gov/content/dam/tn/correction/documents/AnnualReport2018.pdf.
Tenn. Const. art. I, § 7 ("[T]he people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures....").
The majority notes that its decision concerns only a felon who is on probation. Yet this should offer no solace to misdemeanants because the rationale and broad language used by the majority make no distinction between probationary felons and misdemeanants.
See Kentucky v. King, 563 U.S. 452, 459, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) ("The text of the [Fourth] Amendment thus expressly imposes two requirements. First, all searches and seizures must be reasonable. Second, a warrant may not be issued unless probable cause is properly established and the scope of the authorized search is set out with particularity."); see also Chandler v. Miller, 520 U.S. 305, 308, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997) (stating that officials are generally barred "from undertaking a search or seizure absent individualized suspicion"); State v. Scarborough, 201 S.W.3d 607, 617 (Tenn. 2006) ("Under certain circumstances, searches conducted without a warrant but pursuant to individualized suspicion of criminal wrongdoing are also considered reasonable.")
Offenders convicted of certain offenses, including aggravated kidnapping, aggravated sexual battery, statutory rape by an authority figure, aggravated child abuse and neglect, and sexual exploitation of a minor, are not eligible for probation. Tenn. Code Ann. § 40-35-303(a) (2014).
Nevertheless, the ultimate touchstone of analysis under the Fourth Amendment and article I, section 7 is reasonableness, see King, 563 U.S. at 459, 131 S.Ct. 1849 ; State v. Reynolds, 504 S.W.3d 283, 304 (Tenn. 2016), so exceptions to the warrant or the probable cause requirement have been recognized, and in certain limited circumstances, neither is required. Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) ("[N]either a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance.").
In a number of cases, this Court and the United States Supreme Court have upheld the constitutionality of searches and seizures based on individualized suspicion that does not rise to the level of probable cause. See, e.g., Delaware v. Prouse, 440 U.S. 648, 654-55, 99 S.Ct. 1391, 59 L.Ed.2d 660, (1979) ; United States v. Martinez-Fuerte, 428 U.S. 543, 560, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) ; United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) ; Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; State v. Hanning, 296 S.W.3d 44, 49 (Tenn. 2009). For example, warrantless, suspicionless searches designed to serve "special needs, beyond the normal need for law enforcement" have been upheld as reasonable under the Fourth Amendment and article I, section 7. See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32, 37-40, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) (collecting cases approving suspicionless searches to serve special needs); Downey, 945 S.W.2d at 104 ("We, therefore, conclude that the use of a sobriety roadblock, although a seizure, can be a reasonable seizure under the Tennessee Constitution, provided it is established and operated in accordance with predetermined operational guidelines and supervisory authority that minimize the risk of arbitrary intrusion on individuals and limit the discretion of law enforcement officers at the scene."). The United States Supreme Court relied on this special needs doctrine in the first case in which it addressed probationer searches. Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987).
In Griffin v. Wisconsin, a Wisconsin regulation permitted probation officials to search a probationer’s home when the officials had " ‘reasonable grounds’ to believe [the residence contained] contraband—including any item that the probationer [could not] possess under the probation conditions." 483 U.S. at 870-71, 107 S.Ct. 3164 (citing Wis. Admin. Code HSS §§ 328.21(4), 328.16(1) (1981)). The probation officials in Griffin received information from a police detective "that there were or might be guns in [Mr.] Griffin’s apartment." Id. at 871, 107 S.Ct. 3164. Two probation officers and three plainclothes policemen went to Mr. Griffin’s apartment to conduct a search, but the probation officers alone searched Mr. Griffin’s apartment under the authority of Wisconsin’s probation regulation. Id. They discovered a handgun and charged Mr. Griffin with felony possession of a handgun. Id. at 872, 107 S.Ct. 3164. He moved to suppress the evidence, but the trial court denied his motion, and the Wisconsin courts affirmed. Id.
The United States Supreme Court affirmed as well and upheld the constitutionality of the regulation authorizing the warrantless search based on " ‘reasonable grounds’ (not probable cause)." Id. The Griffin Court explained:
Although we usually require that a search be undertaken only pursuant to a warrant (and thus supported by probable cause, as the Constitution says warrants must be), we have permitted exceptions when "special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable."
Id. at 873, 107 S.Ct. 3164 (quoting New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (Blackmun, J., concurring in judgment)) (citations omitted). The Griffin Court concluded that "[a] State’s operation of a probation system ... presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements" of the Fourth Amendment. Id. at 873-74, 107 S.Ct. 3164. In reaching this conclusion, the Griffin Court articulated and relied upon a continuum of privacy rights that has guided the Supreme Court’s analysis in subsequent cases involving probationers and parolees. Specifically, the Griffin Court described probation as "simply one point ... on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service." Id. at 874, 107 S.Ct. 3164. As a result, said the Supreme Court, probationers "do not enjoy ‘the absolute liberty to which every citizen is entitled, but only ... conditional liberty properly dependent on observance of special [probation] restrictions.’ " Id. (alteration in original) (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ). Therefore, states are permitted "a degree of impingement upon privacy [during the course of such supervision] that would not be constitutional if applied to the public at large." Id. at 875, 107 S.Ct. 3164. The Griffin Court held that strict enforcement of the Fourth Amendment’s warrant requirement "would interfere to an appreciable degree with the probation system, setting up a magistrate rather than the probation officer as the judge of how close a supervision the probationer requires." Id. at 876, 107 S.Ct. 3164. The Supreme Court commented that "even more than the requirement of a warrant, a probable-cause requirement would reduce the deterrent effect of the supervisory arrangement." Id. at 878, 107 S.Ct. 3164. The Griffin Court concluded that it is "reasonable to permit information provided by a police officer, whether or not on the basis of firsthand knowledge, to support a probationer search ... if the information provided indicates, as it did [in Griffin ], only the likelihood (‘had or might have guns’) of facts justifying the search." Id. at 879-80, 107 S.Ct. 3164.
The Griffin Court therefore upheld the warrantless search conducted pursuant to Wisconsin’s constitutionally valid regulation, which required probation officials to have individualized suspicion, i.e. "reasonable cause" to believe that contraband was present. The Griffin Court therefore found it "unnecessary to consider whether ... any search of a probationer’s home by a probation officer is lawful when there are ‘reasonable grounds’ to believe contraband is present." Id. at 880, 107 S.Ct. 3164. Nevertheless the Griffin Court emphasized that the "permissible degree" a state may impinge upon a probationer’s expectation of privacy is "not unlimited." Id. at 875, 107 S.Ct. 3164.
The Supreme Court revisited the subject of probationer searches in United States v. Knights when it considered whether law enforcement officers could constitutionality conduct a warrantless search of a probationer’s home if the officers had reasonable suspicion to believe the probationer had engaged in criminal activity. 534 U.S. 112, 121, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). In Knights, the defendant, who was charged with committing various crimes while on probation, moved to suppress the State’s evidence because it was seized by law enforcement officers in a warrantless search of his apartment that was supported by reasonable suspicion. Id. at 114-16, 122 S.Ct. 587. The Knights search was conducted pursuant to a condition of probation—not a regulation—that required the defendant to " ‘submit his ... person, property, place of residence, vehicle, [and] personal effects, to [a] search at anytime, with or without a search warrant, warrant of arrest[,] or reasonable cause by any probation officer or law enforcement officer.’ " Id. at 114, 122 S.Ct. 587 (emphasis added). The Knights Court declined to analyze the case according to the special needs doctrine it had used in Griffin. Id. at 117-18, 122 S.Ct. 587. Rather, the Knights Court evaluated the reasonableness of the search "under [its] general Fourth Amendment approach of ‘examining the totality of the circumstances,’ with the probation search condition being a salient circumstance." Id. at 118, 122 S.Ct. 587 (quoting Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) ). Under this approach, the Knights Court explained, "the reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ " Id. at 118-19, 122 S.Ct. 587 (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) ). Mr. Knights’ "status as a probationer subject to a search condition inform[ed] both sides of that balance." Id. at 119, 122 S.Ct. 587.
In assessing the degree to which the search intruded upon Mr. Knights’ privacy, the Supreme Court reiterated that "[p]robation is ‘one point ... on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service.’ " Id. (quoting Griffin, 483 U.S. at 874, 107 S.Ct. 3164 ). Because the "probation order clearly expressed the search condition and [Mr.] Knights was unambiguously informed of it" the Supreme Court concluded that "[t]he probation condition ... significantly diminished [Mr.] Knights’ reasonable expectation of privacy." Id. at 119-20, 122 S.Ct. 587 (emphasis added) (footnote omitted).
Next the Knights Court considered "the governmental interest side of the balance," emphasizing the government’s interest in reducing recidivism and noting that probationers are " ‘more likely than the ordinary citizen to violate the law.’ " Id. at 120, 122 S.Ct. 587 (quoting Griffin, 483 U.S. at 880, 107 S.Ct. 3164 ). The Knights Court also acknowledged the State’s interests in rehabilitating and reintegrating probationers into society. Id. at 120-21, 122 S.Ct. 587.
After weighing the degree to which the search intruded upon Mr. Knights’ significantly diminished privacy interest against the governmental interests in conducting the search, the Knights Court concluded that "the balance of these considerations requires no more than reasonable suspicion to conduct a search of this probationer’s house." Id. at 121, 122 S.Ct. 587. The Knights Court explained:
Although the Fourth Amendment ordinarily requires the degree of probability embodied in the term "probable cause," a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable. Those interests warrant a lesser than probable-cause standard here. When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable.
The same circumstances that lead us to conclude that reasonable suspicion is constitutionally sufficient also render a warrant requirement unnecessary.
Id. (emphasis added) (citations omitted). Importantly for purposes of this appeal, the Knights Court both reaffirmed the continuum of privacy rights that it had enunciated in Griffin and reiterated that a probationer subject to a search condition retains an expectation of privacy for purposes of constitutional analysis, although it is significantly diminished. Id. at 119-22, 122 S.Ct. 587. What the Knights Court did not decide is
whether the probation condition so diminished, or completely eliminated, [Mr.] Knights’ reasonable expectation of privacy (or constituted consent) that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment. The terms of the probation condition permit such a search, but we need not address the constitutionality of a suspicionless search because the search in this case was supported by reasonable suspicion.
Id. at 120 n.6, 122 S.Ct. 587 (citation omitted).
The United States Supreme Court still has not answered that question for probationers. But the Supreme Court has addressed "a variation of" that question in Samson v. California, a case involving parolees. 547 U.S. 843, 847, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). In a six-to-three decision, the Court in Samson upheld a California law requiring every prisoner released on parole to " ‘agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.’ " Id. at 846, 126 S.Ct. 2193 (quoting Cal. Penal Code Ann. § 3067(a) (West 2000)). The Samson Court discussed Griffin and Knights and reiterated that "parolees are on the ‘continuum’ of state-imposed punishments." Id. at 850, 126 S.Ct. 2193 (quoting Knights, 534 U.S. at 119, 122 S.Ct. 587 (internal quotation marks omitted)). The Samson Court explained that "[o]n this continuum, parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment. " Id. (emphasis added). After examining the conditions of parole in California, the Samson Court declared that "parolees ... have severely diminished expectations of privacy by virtue of their status alone. " Id. at 851-52, 126 S.Ct. 2193 (emphasis added) (citations, quotation marks, and brackets omitted). The Samson Court next discussed the impact the parole search condition had on Mr. Samson’s severely diminished expectation of privacy and contrasted it with the impact the probation search condition had on the probationer in Knights, stating:
the parole search condition under California law—requiring inmates who opt for parole to submit to suspicionless searches by a parole officer or other peace officer at any time,—was clearly expressed to petitioner. He signed an order submitting to the condition and thus was "unambiguously" aware of it. In Knights, we found that acceptance of a clear and unambiguous search condition significantly diminished [Mr.] Knights’ reasonable expectation of privacy. Examining the totality of the circumstances pertaining to petitioner’s status as a parolee, an established variation on imprisonment, including the plain terms of the parole search condition, we conclude that petitioner did not have an expectation of privacy that society would recognize as legitimate.
Id. at 852, 126 S.Ct. 2193 (emphases added) (citations, footnote, quotation marks, and brackets omitted). The Samson Court concluded then, that, unlike the probationer in Knights—who retained some expectation of privacy despite his status and acceptance of the search condition—the parolee in Samson—by virtue of his status and acceptance of the search condition—had no expectation of privacy. The Samson Court, which began its analysis by noting that it was addressing an issue left open in Knights, thus explicitly and plainly distinguished between the privacy interests of probationers and parolees. Id. at 846, 850-53, 126 S.Ct. 2193.
The Samson Court drew fewer distinctions between the State’s interests in supervising probationers and parolees, except to describe the State’s interests in supervising parolees as " ‘overwhelming’ ... because ‘parolees ... are more likely to commit future criminal offenses.’ " Id. at 853, 126 S.Ct. 2193 (quoting Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 365, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998) ). The Samson Court confirmed "that a State’s interests in reducing recidivism and ... promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment." Id. (citing Griffin, 483 U.S. at 879, 107 S.Ct. 3164 ; Knights, 534 U.S. at 121, 122 S.Ct. 587 ). The Samson Court concluded that "[i]mposing a reasonable suspicion requirement ... would give parolees greater opportunity to anticipate searches and conceal criminality." Id. at 855, 126 S.Ct. 2193 (citing Knights, 534 U.S. at 120, 122 S.Ct. 587 ; Griffin, 483 U.S. at 879, 107 S.Ct. 3164 ). After considering the State’s interests and the parolee’s lack of any legitimate expectation of privacy, the Samson Court held that "the Fourth Amendment does not prohibit a police officer from conducting a warrantless, suspicionless search of a parolee." Id. at 857, 126 S.Ct. 2193.
In State v. Turner, a majority of this Court "adopt[ed] the reasoning of Samson and h[e]ld that the Tennessee Constitution permits a parolee to be searched without any reasonable or individualized suspicion where the parolee has agreed to warrantless searches by law enforcement officers." 297 S.W.3d at 166 (footnote omitted). We emphasized, however, that Samson is "a narrow exception to the usual rule." Id. at 164. Turner also expressly adopted the distinction Samson had drawn between the privacy interests of probationers and parolees, stating: "On the continuum of possible punishments and reductions in freedoms, parolees occupy a place between incarcerated prisoners and probationers." Id. at 162. We opined that "parole status is ... much more akin to incarceration than probation ... in determining the reasonableness of a search." Id. at 166. In other words, we held that probationers have greater expectations of privacy than parolees. In the more recent State v. Stanfield decision, this Court reaffirmed Turner and its adoption of the Samson analysis and again quoted with approval the distinction Turner and Samson had drawn between the privacy interests of probationers and parolees. 554 S.W.3d at 10-11.
In upholding the warrantless and suspicionless search in this case, three of the justices in the Stanfield majority now abandon this distinction, equate the privacy interests of parolees and probationers, and uphold warrantless and suspicionless searches of probationers, citing "logic[ ]" and "public policy concerns" in support of its ruling. The majority is not alone in extending Samson to probationers, as courts in other jurisdictions have done so as well. However, I remain convinced that the distinction drawn in Griffin, Knights, Samson, Turner, and Stanfield remains valid and that probationers retain greater expectations of privacy than parolees. Indeed, Tennessee statutes illustrate why this distinction is appropriate.
See, e.g., United States v. Williams, 650 F.App'x 977, 980 (11th Cir. 2016) (upholding the constitutionality of a suspicionless search of the home of a probationer subject to a warrantless search provision where the search was conducted primarily by probation officers); United States v. Tessier, 814 F.3d 432, 434-35 (6th Cir. 2016) (upholding a warrantless, suspicionless search of the residence of a Tennessee probationer who was subject to a warrantless search condition because the search served a legitimate law enforcement or probationary purpose); United States v. King, 736 F.3d 805, 810 (9th Cir. 2013) (concluding that "a suspicionless search, conducted pursuant to a suspicionless-search condition of a violent felon’s probation agreement, does not violate the Fourth Amendment"); State v. Vanderkolk, 32 N.E.3d 775, 779 (Ind. 2015) (applying the holding in Samson to probationers and community corrections participants). Cf. State v. Adair, 241 Ariz. 58, 383 P.3d 1132, 1135-38 (2016) (upholding as constitutionally valid a warrantless search of a probationer’s home conducted by probation officers pursuant to valid probation conditions but declining to address whether law enforcement officers may constitutionally conduct a warrantless, suspicionless search as there was sufficient evidence in this case).
An offender may be granted probation only if the sentence imposed is ten years or less. Id.
Under the Criminal Sentencing Reform Act of 1989 ("the 1989 Act"), trial judges are encouraged "to use alternatives to incarceration," Tenn. Code Ann. § 40-35-103(6) (2014), including probation, to promote effective rehabilitation, id. § 40-35-102(3)(C) (2014). But the 1989 Act reserves favorable consideration for alternative sentencing to offenders who have committed less serious crimes—especially mitigated and standard offenders who have been convicted of Class C, D, or E felonies—and for offenders who have less lengthy criminal histories. Tenn. Code Ann. § 40-35-102(6)(A) (2014). Only offenders who receive sentences of ten years or less are eligible for probation consideration. Id. § 40-35-303(a) (2018 Supp.). Persons convicted of certain offenses, such as vehicular homicide by driving while intoxicated, aggravated kidnapping, aggravated robbery, aggravated sexual battery, statutory rape by an authority figure, aggravated child abuse and neglect, certain drug offenses, and certain sexual exploitation offenses, are not eligible for probation. Id.
Even if an offender satisfies the criteria for favorable consideration for alternative sentencing and eligibility for probation, trial judges retain discretion to deny probation entirely or to impose a sentence of full or partial confinement for other reasons, including if the trial judge determines that (1) "[c]onfinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;" (2) "[c]onfinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide effective deterrence to others likely to commit similar offenses;" or (3) "[m]easures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant." Tenn. Code Ann. § 40-35-103(1) (2014). If a trial court "determines that a period of probation is appropriate, the court shall sentence the defendant to a specific sentence but shall suspend the execution of all or part of the sentence and place the defendant on supervised or unsupervised probation either immediately or after a period of confinement for a period of time no less than the minimum sentence allowed under the classification and up to and including the statutory maximum time for the class of the conviction offense." Id. § 40-35-303(c)(1) (2014). Trial courts may also impose probation for misdemeanor offenses, and in certain limited circumstances, may sentence misdemeanor offenders to up to two years on probation. Id. § 40-35-303(c)(2).
These Tennessee statutes are designed to give trial courts wide discretion in imposing probation as a sentence and afford trial courts plenty of discretion to deny probation, should the trial court determine that releasing an offender will pose too many risks to the public. No Tennessee statute suggests that the General Assembly believes warrantless, suspicionless searches are required to advance the State’s interests in supervising probationers. For example, there is no Tennessee law, like the California law at issue in Samson, requiring courts to condition probation on a probationer’s willingness to accept a warrantless, suspicionless search condition. Rather, Tennessee statutes are designed to ensure that probation is reserved for offenders who commit less serious offenses, who have minimal criminal histories, and who pose the least recidivism risk and the least risk of danger to the public. Tennessee statutes give trial courts the discretion needed to determine which offenders should be incarcerated and which offenders should be probated.
On the other hand, parolees, by definition, are offenders that have been ordered to serve their sentences in confinement. Tenn. Code Ann. § 40-35-501(a)(1) (2014) ("An inmate shall not be eligible for parole until reaching the inmate’s release eligibility date...."); id. § 40-35-501(a)(2) ("[O]nly inmates with felony sentences of more than two (2) years or consecutive felony sentences equaling a term greater than two (2) years shall be eligible for parole consideration."). This fact alone is significant because, under the 1989 Act, "first priority regarding sentencing involving incarceration" is given to "convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society and evincing failure of past efforts at rehabilitation." Tenn. Code Ann. § 40-35-102(5) (emphasis added). These Tennessee statutes illustrate that parolees are, by definition, closer on the continuum to incarceration than probationers. Parolees have committed more severe criminal offenses than probationers, have more lengthy criminal records than probationers, and have failed at past efforts of rehabilitation. These statutory differences between probationers and parolees fully warrant the distinction that the United States Supreme Court and this Court have drawn between the privacy interests of probationers and parolees. Therefore, I would reaffirm our prior decisions distinguishing between the expectations of privacy of probationers and parolees. I would hold, as some courts in other jurisdictions have held, that searches of probationers must be based on reasonable suspicion.
See, e.g., State v. Bennett, 288 Kan. 86, 200 P.3d 455, 463 (Kan. 2009) (holding that a probationer may not be searched by a probation or law enforcement officer absent reasonable suspicion and that a condition imposed by the trial court subjecting the probationer to random, suspicionless searches was unconstitutional); State v. Cornell, 202 Vt. 19, 146 A.3d 895, 909 (2016) (declining to extend Samson to searches of probationers and holding that "reasonable suspicion for search and seizure imposed on probationers is required by the Fourth Amendment"); see also State v. Ballard, 874 N.W.2d 61, 62 (N.D. 2016) (concluding that the suspicionless search of the home of an unsupervised probationer subject to a warrantless search condition was unreasonable under the Fourth Amendment); Murry v. Commonwealth, 288 Va. 117, 762 S.E.2d 573, 581 (2014) (concluding that a probation condition subjecting a probationer to a warrantless, suspicionless search by any probation or law enforcement officer at any time was not reasonable in light to the probationer’s background, his offenses, and the surrounding circumstances).
See id. § 40-35-103(1)(A) (When imposing a sentence involving confinement, a court should consider whether "[c]onfinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct.").
This holding would be consistent with the Samson Court’s express recognition that probationers retain greater expectations of privacy than parolees. It also would recognize that the United States Supreme Court has never approved as constitutionally permissible warrantless and suspicionless searches of probationers. In Griffin and in Knights, some level of individualized suspicion supported the searches. In Griffin, the Supreme Court approved a regulation that permitted warrantless searches based on "reasonable grounds" to believe that contraband was present, 483 U.S. at 871, 107 S.Ct. 3164, and in Knights, the Supreme Court upheld a warrantless search that was supported by reasonable suspicion, 534 U.S. at 121-22, 122 S.Ct. 587. This Court certainly is free to interpret the Tennessee Constitution as affording greater protection than the United States Constitution, Doe v. Norris, 751 S.W.2d 834, 838 (Tenn. 1988). On the other hand,
[w]e are bound by the interpretation given to the United States Constitution by the Supreme Court of the United States. This is fundamental to our system of federalism. The full, final, and authoritative responsibility for the interpretation of the federal constitution rests upon the Supreme Court of the United States. This is what the Supremacy Clause means.
Miller v. State, 584 S.W.2d 758, 760 (Tenn. 1979), overruled on other grounds by State v. Pruitt, 510 S.W.3d 398 (Tenn. 2016).
Therefore, the United States Constitution, as interpreted by the United States Supreme Court, establishes the minimal, "floor ... of constitutional protection" to which all citizens are entitled. Kreimer v. Bureau of Police, 958 F.2d 1242, 1269 (3d Cir. 1992). I fear that the majority in this case has opened a trap door in the floor of minimal protection, without any sound legal basis for doing so, by approving warrantless and suspicionless searches of probationers when the United States Supreme Court has never done so and has expressly distinguished between probationers and parolees.
Here, as in Knights, the warrantless, suspicionless search occurred in the probationer’s home where her expectation of privacy was at its most robust. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) ("What expectations are legitimate varies, of course, with context, depending, for example, upon whether the individual asserting the privacy interest is at home, at work, in a car, or in a public park." (citation omitted)). The "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) ; see also Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) ("At the very core [of the Fourth Amendment] stands the right of a [person] to retreat into his own home and there be free from unreasonable governmental intrusion."). Therefore, I would require the State to establish that the search was based on reasonable suspicion of the probationer’s criminal activity. Knights, 534 U.S. at 121-22, 122 S.Ct. 587 (upholding a search based on "reasonable suspicion that [the probationer] ... is engaged in criminal activity" (citations omitted)). This lesser standard of individualized suspicion is not overly burdensome, and it strikes the appropriate balance between the State’s legitimate interests in rehabilitation, prevention of recidivism, and reintegration into society, and the probationer’s significantly diminished, but not extinguished, expectation of privacy.
The reasonable suspicion standard would provide some guidance for and restraint upon the discretion law enforcement officers exercise in probationer searches. Requiring reasonable suspicion for probationer searches also would lessen, and perhaps even eliminate, the risk of repeated, disruptive, and potentially harassing searches of probationers at their homes, schools, places of employment, or other public places. Indeed, authorizing warrantless, suspicionless searches actually may impede the State’s legitimate goals of rehabilitation and reintegration. State v. Hamm, No. W2016-01282-CCA-R3-CD, 2017 WL 3447914, at *13 (Tenn. Crim. App. Aug. 11, 2017) (Williams, J., concurring). Such searches call attention to a probationer’s criminal conduct and have the potential to stigmatize probationers. Many probationers will have little recourse should warrantless, suspicionless searches become repetitive or harassing. As Judge John Everett Williams explained in his separate opinion in the Court of Criminal Appeals:
While such intimidating and harassing searches might be challengeable in a motion to suppress if officers happen to discover evidence of illegal activity, a probationer who is following the law and the conditions of probation but nevertheless continues to be subject to intimidating and harassing searches has little recourse.
A suspicionless search of a probationer at ... her place of employment runs the risk of disrupting the business and could subject the employer and other employees to a search that would not otherwise be constitutionally permissible. As a result, an employer has less of an incentive to hire a probationer subject to this condition.
Hamm, 2017 WL 3447914, at *13-14 (Williams, J., concurring).
Warrantless, suspicionless searches also may hamper rehabilitation by making it difficult for probationers to find housing. Anyone sharing a residence with a probationer loses a portion of his or her own constitutional protections because areas of the residence over which the probationer exercises common authority also will be subject to warrantless, suspicionless searches under the common authority doctrine. Id. In addition, searches often are not confined to common areas. As Judge Williams noted, the officers in this case did not limit their search to areas over which Angela Payton Hamm exercised common authority but searched every room of the residence except one. Id.
Another troubling aspect is that the majority’s decision cannot logically be limited to supervised probationers who have been convicted of felony offenses, like Angela Payton Hamm, although the majority purports to do so by including a single footnote. The decision discusses "probationers" broadly and provides no basis for distinguishing between felons on supervised probation and persons serving sentences on community corrections or unsupervised probationers. Although the majority by that same footnote also purports to exempt from its analysis misdemeanants placed on probation, the majority again offers no reasoned basis for this exemption. The basis for such an exemption certainly is not apparent from the majority’s analysis. For example, if the severity of an offense could serve as a reason for distinguishing between felony and misdemeanor probationers, why would it not also serve as a basis for distinguishing between parolees and probationers? While the full breadth of the majority’s decision allowing warrantless, suspicionless searches remains to be seen, it clearly encompasses 57,832 probationers that the Tennessee Department of Correction reported supervising as of June 30, 2018. Tenn. Dep't of Corr., Annual Report 6 (2018) (available at https://www.tn.gov/content/dam/tn/correction/documents/AnnualReport2018.pdf). This number rises to 65,541 Tennesseans if the majority’s decision extends to persons serving sentences on community corrections. Id.
There are over five times more probationers (57,832) in Tennessee than parolees (11,163). Tenn. Dep't of Corr., Annual Report 6 (2018) (available at https://www.tn.gov/content/ dam/tn/correction/documents/AnnualReport2018.pdf).
See id. § 40-35-103(5) ("The potential or lack of potential for the rehabilitation ... of the defendant should be considered in determining the sentence alternative or length of a term to be imposed.").
The majority’s ruling and the rulings of courts in other jurisdictions upholding the constitutionality of such warrantless, suspicionless searches of probationers constitute a serious erosion of the Fourth Amendment’s protection against unreasonable searches and seizures. "The historical record demonstrates that the framers believed that individualized suspicion was an inherent quality of reasonable searches and seizures." Thomas K. Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches & Seizures, 25 U. Mem. L. Rev. 483, 489 (1995). The United States Supreme Court should grant review on this issue and restore this core Fourth Amendment protection for probationers by holding that warrantless searches of probationers are constitutionally permissible only if based upon reasonable suspicion of a probationer’s involvement in criminal activity. Until the United States Supreme Court acts, however, the Tennessee General Assembly should restore this minimal protection by enacting a statute that requires law enforcement officials to establish reasonable suspicion for warrantless searches of probationers. E.g., Kan. Stat. Ann. § 21-6607(c)(5) (West 2011) (requiring that searches of probationers by law enforcement and probation officials be "based on reasonable suspicion" of probation violations or criminal activity). As already explained herein, a statute imposing this minimal individualized suspicion requirement would advance the State’s interests in rehabilitation and reintegration.
II. Reasonable Suspicion Was Not Established
Here, the trial court found that the State had failed to establish that the search of Angela Payton Hamm’s home was supported by reasonable suspicion. A trial court’s findings of fact in a suppression hearing are upheld on appeal unless the evidence preponderates against those findings. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). "The credibility of witnesses, the weight and value of the evidence, and the resolution of conflicts in the evidence are matters entrusted to the trial judge." State v. Climer, 400 S.W.3d 537, 556 (Tenn. 2013) (citing Odom, 928 S.W.2d at 23 ). The evidence does not preponderate against the trial court’s findings.
Courts consider the totality of the circumstances when determining whether specific and articulable facts establish reasonable suspicion. State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992) (citing United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ). The relevant non-exclusive circumstances are "[the officer’s] objective observations, information obtained from other police officers or agencies, information obtained from citizens, and the pattern of operation of certain offenders." Id. (citing Cortez, 449 U.S. at 418, 101 S.Ct. 690 ). "A court must also consider the rational inferences and deductions that a trained police officer may draw from the facts and circumstances known to him." Id. (citing Terry, 392 U.S. at 21, 88 S.Ct. 1868 ). But, reasonable suspicion must be based on something more than an officer’s "inchoate and unparticularized suspicion or ‘hunch.’ " Hanning, 296 S.W.3d at 49 (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868 ). The officers here had only second hand non-specific information, and only one statement from an unidentified informant who had friends that claimed to have purchased methamphetamine from the defendants.
In particular, Deputy James Hall of the Obion County Sheriff’s Office received information from a female, Lindsey Gream, when he served her with an arrest warrant arising from an incident in Dyer County. After thanking him "for taking her to the hospital and keeping her alive," she told Deputy Hall "there [were] some heavy players in Obion County that [law enforcement officers] needed to watch." When Deputy Hall asked her to identify them, she refused "to say specifically who exactly," but told him that they were located in "Glass." When Officer Hall said "David Hamm," Ms. Gream "looked at [him], nodded her head, and smiled." Ms. Gream told Deputy Hall that "they" had been trafficking ice methamphetamine to Obion County and "making trips frequently across the river." She gave no indication of how she knew of these illegal activities but indicated that she believed "they" had "re-upped that day, [or] a couple of days prior ... which mean[t] receiving, buy[ing] more methamphetamine or narcotics." Deputy Hall used the pronoun "they" in his testimony but identified David Hamm as the only person Ms. Gream identified. If he had information implicating Angela Payton Hamm in any illegal activities, Deputy Hall did not discuss it in his testimony.
In footnote five of its brief to this Court, the State appears to interpret Glass as a common street name for methamphetamine, but the record belies this interpretation and indicates that, as used in this case, the word refers to a location not a drug.
See id. § 40-35-103(1)(A). A trial court’s decision to grant probation implicitly signals the trial court’s assessment that the offender poses no significant threat to society. Sean P. Dawson, Castles Made of Sand: The Disappearing Fourth Amendment Rights of Probationers and Parolees , 79 U. Pitt. L. Rev. 285, 300 (2017).
Officer Ben Yates of the Union City Police Department provided the only testimony about information implicating Angela Payton Hamm in illegal activity. Officer Yates said that he received information from "a reliable informant" one day before the warrantless, suspicionless search at issue here. This reliable informant told Officer Yates "that David Hamm and Angela Payton were ‘doing it big in Glass.’ " According to Officer Yates, this informant "had been involved in numerous narcotic cases, the seizure of narcotics, made numerous cases for the drug task force" but had not personally observed David Hamm or Angela Payton Hamm involved in illegal drug activities or transactions and had never personally been inside the residence that was searched. The informant’s secondhand information came from the informant’s "friends [who] purchase[d] methamphetamine."
In the transcript on appeal, quotation marks that apparently were intended to indicate the statement the informant made to Officer Yates appear only around the words "doing it big in Glass."
See Roni A. Elias, Fourth Amendment Limits on Warrantless Searches of Probationers’ Homes , 25 Widener L.J. 13, 47 (2016) ; see also State v. Ballard , 874 N.W.2d 61, 72 (N.D. 2016) (comparing constraints on a parolee’s liberty with those imposed on a probationer).
Officer Yates did not interview the informant’s friends or corroborate by any other means the informant’s information. Officer Yates acknowledged that another informant "who was cooperating with the drug task force" went to the residence that was searched and attempted to purchase methamphetamine from Clifton Hamm, who also lived there, but was unable to do so. Officer Yates did not explain why the controlled drug buy failed. The State has also suggested that Clifford Hamm’s suspicious conduct concerning the security cameras also established reasonable suspicion. But Angela Payton Hamm was not on the property when this conduct occurred, and it bore no connection to her. In short, the record overwhelmingly supports the trial court’s finding that the officers lacked specific and articulable facts necessary to establish reasonable suspicion that Angela Hamm was engaged in criminal activity.
III. Consent
In the Court of Criminal Appeals, the State also sought to justify the search by arguing that Angela Payton Hamm consented to warrantless, suspicionless searches when she accepted the probation search condition. See Hamm, 2017 WL 3447914, at *16 (Williams, J., concurring) (discussing consent). The State has not raised that issue in this Court, and for good reason, because the record wholly belies the assertion. The unrefuted proof in the record establishes that the probation search condition Angela Payton Hamm accepted should be understood as waiving only the warrant and probable cause requirements and requiring reasonable suspicion. The search condition stated: "I agree to a search, without warrant, of my person, vehicle, property, or place of residence by any Probation/Parole Officer or law enforcement officer, at any time." Deputy Hall testified that this search condition required the officers to have reasonable suspicion for any search. Deputy Hall was asked: "Why did you think you needed reasonable suspicion, when [Angela Payton Hamm’s probation] document says nothing about it?" He responded: "Some documents of State probation or parole are somewhat similar, somewhat different. On some documents it actually has in there without reasonable suspicion. This document, however, does not say without reasonable suspicion. That’s why I established reasonable suspicion prior to the search. " (Emphasis added.) Therefore, even assuming a probationer’s acceptance of a probation search condition may, in some circumstances, be deemed consent to suspicionless searches, the unrefuted proof establishes that this is not one of those circumstances and that Angela Payton Hamm did not consent to suspicionless searches by her acceptance of the probation search condition here.
Finally, in light of Deputy Hall’s unrefuted testimony that the probation search condition obligated the State to establish reasonable suspicion for any search, the majority could have avoided deciding whether warrantless, suspicionless probationer searches are constitutionally permissible and resolved this appeal by deciding whether this search was supported by reasonable suspicion. See Keough v. State, 356 S.W.3d 366, 371 (Tenn. 2011) ("This Court decides constitutional issues only when absolutely necessary for determination of the case and the rights of the parties. Where an appeal can be resolved on non-constitutional grounds, we avoid deciding constitutional issues." (citations omitted)). The majority has instead chosen to resolve the constitutional issue and approve warrantless, suspicionless searches of probationers. Therefore, I am constrained to respectfully dissent from the majority’s decision.
Sharon G. Lee, J., dissenting.
One afternoon in November 2015, while David and Angela Hamm were not at home, four law enforcement officers entered and conducted a search of their home. The officers had neither a warrant nor reasonable suspicion of criminal activity. Ms. Hamm was on probation; the officers used her probationary status to justify the intrusive home search. The majority’s decision to uphold this unreasonable search deprives Ms. Hamm and her husband of their rights to be free from unreasonable searches under the Fourth Amendment to the United States Constitution and Article I, section 7 of the Tennessee Constitution. The majority’s decision also casts a cloud over the lives of more than 65,000 Tennessee probationers1 and thousands of citizens living with probationers, all of whom are at risk of having their homes searched by law enforcement lacking reasonable suspicion of criminal activity.
Law enforcement should have, at the least, a reasonable suspicion of criminal activity before conducting a warrantless search of a probationer’s home. The majority bases its ruling on the faulty premise that probationers and parolees should be treated the same. But they are not the same.
All parolees have committed felonies. Yet some probationers have committed only misdemeanors.2 Trial courts carefully screen offenders before deciding whether or not to grant probation, considering the circumstances of the offense; the offender’s criminal record, background, social history, physical and mental condition; and the deterrent effect on the offender. State v. Souder , 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002) ; see also State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978). Trial courts also examine the offenders’ potential for rehabilitation or treatment. Souder , 105 S.W.3d at 607 (citing Tenn. Code Ann. § 40-35-103(5) ). Trial courts may deny probation to protect society from offenders with a history of criminal conduct, to avoid depreciating the seriousness of the offense, to deter others likely to commit similar offenses, or where measures less restrictive than confinement have not succeeded. Tenn. Code Ann. § 40-35-103(1) (2014).
Thus probationers, unlike parolees, have generally committed less serious crimes,3 receive shorter sentences,4 have few or no previous convictions,5 are less likely to reoffend,6 and are less of a threat to the public.7 Probationers are entitled to all the constitutional rights that flow from the degree of liberty that comes with probation rather than incarceration.8 The majority’s blanket approval of suspicionless searches of probationers is disproportionate and fails to reflect the nature of the crimes committed.
See Dawson, supra , at 308–09.
By lumping probationers in with parolees, the majority ignores the well-established prisoner-parolee-probationer continuum relied on by courts. This Court and the United States Supreme Court have reasoned that probationers and parolees should be treated differently. In State v. Turner , 297 S.W.3d 155, 163 (Tenn. 2009) and State v. Stanfield , 554 S.W.3d 1, 9–10 (Tenn. 2018), a majority of this Court acknowledged that probationers have a greater expectation of privacy and less need for supervision than parolees.
I dissented in Turner and Stanfield because, in my view, a search of a parolee without reasonable suspicion violates a parolee’s rights under Article I, section 7 of the Tennessee Constitution. Blanket approval of suspicionless searches precludes meaningful judicial oversight of law enforcement’s power to search parolees. Turner , 297 S.W.3d at 174 (Lee, J., dissenting); Stanfield , 554 S.W.3d at 21 (Lee, J., dissenting). The search of a probationer without reasonable suspicion is more offensive than a suspicionless search of a parolee.
In Turner , the majority held that law enforcement may, without reasonable suspicion, search parolees who are subject to a warrantless search parole condition. 297 S.W.3d at 167. The majority noted that offenders are subject to a continuum of possible punishments based on their criminal conviction. Id. at 161 (quoting Griffin v. Wisconsin , 483 U.S. 868, 874, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) ). On this continuum, the punishment for offenders can range from solitary confinement to community service. The offender’s place in the continuum determines the reasonableness of a search for Fourth Amendment purposes. An incarcerated felon has no expectation of privacy and a greater need for supervision, so prison officials can search the felon’s cell without probable cause or reasonable suspicion. A probationer, who has a much greater expectation of privacy and a lesser need for supervision, is further along on the continuum. Id. A parolee falls somewhere between the incarcerated felon and the probationer on the continuum. Id. at 162.
In Stanfield , the majority expanded the holding in Turner , allowing law enforcement to search a parolee’s home with neither a warrant nor reasonable suspicion, based on his status as a parolee. 554 S.W.3d at 4. As in Turner , the Stanfield majority referenced the difference between parolees and probationers, explaining that " ‘parolees occupy a place between incarcerated prisoners and probationers’ " on the continuum of possible limitations to freedoms. Id. at 10 (quoting Turner , 297 S.W.3d at 162 ). The United States Supreme Court has also distinguished between parolees and probationers and relied on the continuum analysis. In Griffin v. Wisconsin , 483 U.S. 868, 872, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), the Court upheld a warrantless search of a probationer’s home. A state regulation authorized probation officers to search a probationer’s home without a warrant when the officers had reasonable grounds to believe that the home contained contraband or prohibited items. Id. at 870–71, 107 S.Ct. 3164. The Court found that the special needs of the state’s probation system made the warrant requirement impracticable and justified a lower "reasonable grounds" standard for the warrantless search of a probationer. Id. at 875–76, 107 S.Ct. 3164. The Griffin Court reasoned that "[p]robation is simply one point ... on a continuum of possible punishments" and that the "permissible degree [of impingement upon a probationer’s privacy] is not unlimited." Id. at 874–75, 107 S.Ct. 3164.
Next, in United States v. Knights , 534 U.S. 112, 122, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), the United States Supreme Court upheld a warrantless search of a probationer’s home. The search was based on law enforcement’s reasonable suspicion of criminal activity and on a probation condition allowing a search with neither a warrant nor reasonable cause. In upholding the search, the Court departed from the special needs rationale in Griffin and examined whether the search was reasonable under the "general Fourth Amendment approach of examining the totality of the circumstances, with the probation search condition being a salient circumstance." Id. at 117–18, 122 S.Ct. 587 (internal quotation marks and citation omitted). The Court explained that "[t]he touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ " Id. at 118–19, 122 S.Ct. 587 (quoting Wyoming v. Houghton , 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) ). Applying this test, the Court found that the probationer had a diminished reasonable expectation of privacy based on the search provision in the probation order. Id. at 119–20, 122 S.Ct. 587. The Court then observed that a probationer is more likely to violate the law than an ordinary citizen and has a greater incentive to hide criminal activities because of the chance of probation revocation and incarceration. Id. at 120, 122 S.Ct. 587. Thus, the government had reason to focus more on probationers than on ordinary citizens. Id. at 121, 122 S.Ct. 587.
Ms. Hamm’s probation condition was not as broad, authorizing only warrantless searches.
After balancing these considerations, the Court held that law enforcement needed "no more than reasonable suspicion to conduct a search of this probationer’s house." Id. at 120–21, 122 S.Ct. 587 (emphasis added). In a footnote, the Court in Knights explained that it was not deciding "whether the probation condition so diminished, or completely eliminated, Knights’ reasonable expectation of privacy ... that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment." Id. at 120 n.6, 122 S.Ct. 587. The warrantless search in Knights was supported by reasonable suspicion and the probation search condition, so the Court did not address the constitutionality of a suspicionless search based solely on a probation condition. Five years later, in Samson v. California , 547 U.S. 843, 855–56, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), the Supreme Court upheld the suspicionless search of a parolee’s home after weighing the parolee’s significantly diminished expectation of privacy and the government’s substantial interest in supervising the parolee. Contrasting the privacy interests of parolees with those of probationers, the Court noted that parolees have a lesser expectation of privacy than probationers because "parole is more akin to imprisonment than probation is to imprisonment." Id. at 850, 126 S.Ct. 2193. Additionally, the State’s interest in supervising parolees is overwhelming because parolees are more likely to commit additional criminal offenses and the State has an interest in reducing recidivism. Id. at 853–54, 126 S.Ct. 2193. After applying the Knights balancing test, the Court determined that law enforcement could conduct a suspicionless search of a parolee. Id. at 857, 126 S.Ct. 2193.
The upshot of Turner , Stanfield , Griffin , Knights , and Samson is that probationers and parolees are different. Unlike parolees, probationers have greater privacy expectations and the government has a lesser interest in supervising them. Thus, assuming that the Fourth Amendment allows law enforcement to search a parolee’s home without reasonable suspicion, it makes sense to require law enforcement to have at least a reasonable suspicion of criminal activity before searching a probationer’s home.
In addition, law enforcement searches that are not based on reasonable suspicion of criminal activity are at odds with the need for criminal justice reform recognized by our nation and our state. See Tenn. Exec. Order No. 6 (Mar. 5, 2019) (recognizing the state’s duty to address educational, mental health, and substance abuse issues in support of offenders’ "successful reentry into society" and establishing a Criminal Justice Reinvestment Task Force to develop recommendations for, among other things, revising sentencing guidelines and parole and probation standards); First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5224–25 (requiring grant applicants to provide "a plan for analysis of the statutory, regulatory, rules-based, and practice-based hurdles to reintegration of offenders into the community" and prioritizing grant applications that "best ... review the process by which the applicant adjudicates violations of parole, probation, or supervision following release from prison, jail, or a juvenile facility"); see also The Pew Charitable Trusts, Fact Sheet: 35 States Reform Criminal Justice Policies Through Justice Reinvestment (July 2018) (summarizing the post-2007 "wave of reforms" to sentencing and correction policies, including supervision laws that guide how parolees and probationers are monitored).
A search not based on suspicion hinders one of the primary goals of criminal justice reform—more rehabilitation and less incarceration. These intrusive searches also hamper the aims of probation—rehabilitating and reintegrating probationers into society. See Knights , 534 U.S. at 113, 122 S.Ct. 587 (2001). A probationer whose privacy is invaded by a suspicionless search is prone to resent law enforcement and lose trust in the Rule of Law. Probationers who believe they have been mistreated by law enforcement do not have a firm foundation on which to successfully rebuild their lives and become productive, law-abiding citizens. The majority suggests that probationers are protected from searches that are repetitive, disruptive, or harassing. Yet any illegal search invades our privacy, disrupts our lives, violates our constitutional rights, and is unacceptable.
Tennessee would not be alone in requiring reasonable suspicion to justify the warrantless search of a probationer; some other states require it. See, e.g. , People v. Lampitok , 207 Ill.2d 231, 278 Ill.Dec. 244, 798 N.E.2d 91, 105 (2003) (finding that the warrantless search of a probationer’s motel room would be constitutional if the police had reasonable suspicion of a probation violation); Ballard , 874 N.W.2d at 72 (quoting Samson , 547 U.S. at 850, 126 S.Ct. 2193 ) (concluding that a suspicionless search of a probationer’s home was constitutionally unreasonable based on a continuum in which "parole is more akin to imprisonment than probation"); see also State v. Bennett , 288 Kan. 86, 200 P.3d 455, 463 (2009) (concluding that searches of probationers require reasonable suspicion because probationers have a greater expectation of privacy than parolees and, under Kansas law, parolees cannot be searched without reasonable suspicion); Commonwealth v. LaFrance , 402 Mass. 789, 525 N.E.2d 379, 382–83 (1988) (explaining that the state constitution forbids probation condition allowing a warrantless search condition of a probationer’s person or home unless a probation officer has at least reasonable suspicion that a search might produce evidence of wrongdoing); Murry v. Commonwealth , 288 Va. 117, 762 S.E.2d 573, 580 (2014) (concluding that a probation condition authorizing a warrantless and suspicionless search by law enforcement of a probationer was unreasonable because the search was unnecessary to facilitate rehabilitation and protect the public); State v. Cornell , 202 Vt. 19, 146 A.3d 895, 910 (2016) (emphasizing that warrantless searches of probationers must follow the state constitution’s requirement of reasonable suspicion); State v. Lucas , 56 Wash.App. 236, 783 P.2d 121, 126 (1989) (concluding that the state constitution requires a well-founded suspicion that a probation violation has occurred to justify a warrantless search of a probationer).
Ms. Hamm was subject to a probation condition that allowed law enforcement to search her home without a warrant, but the probation condition did not provide for a suspicionless search. Law enforcement had no warrant and lacked reasonable suspicion that Ms. Hamm was engaging in criminal activity. Police officers decided to search the home where Ms. Hamm lived with her husband based on an unconfirmed tip from a criminal informant that there were some "heavy players" in the Glass community. The informant did not mention the Hamms by name. When an officer suggested Mr. Hamm’s name, the informant nodded her head and smiled. A nod and a smile cannot justify a home search. The police also learned from another informant that there were people in the Glass community "doing it big." This unidentified informant’s information was second-hand from another unidentified informant and its meaning unclear. The evidence does not preponderate against the trial court’s conclusion that law enforcement did not have reasonable suspicion to search the home where Ms. Hamm lived. Mr. Hamm was collateral damage to the illegal search of Ms. Hamm’s home. He was on neither parole nor probation. Mr. Hamm had to endure a home search because he chose to share a bedroom with his wife.
In sum, the majority’s decision to uphold the suspicionless search of the Hamms’ home violated the Hamms’ federal and state constitutional rights to be free from unreasonable searches. The United States Supreme Court can undo the injustice of the majority’s decision; let’s hope it does.
In the interest of justice, I dissent.