Divided appellate panel debates the proper standard for search of probationer’s home

Does the search of a probationer’s home require reasonable suspicion or is it lawful so long as it is reasonable based upon the totality of the circumstances?  A divided Tennessee Court of Criminal Appeals panel recently wrestled with this question.  Here are links to the court’s opinion, the concurrence, and the dissent.

Judge Camille R. McMullen, writing for the court, noted that neither the United States Supreme Court nor the Tennessee Supreme Court have explicitly addressed whether something less than reasonable suspicion would justify searches of probationers.  However, the court of criminal appeals had previously stated that, “[w]hen a person has signed a probation agreement providing written consent for a warrantless search of the person’s residence, such a search may be conducted if reasonable suspicion for the search exists.”  State v. Tracy Lynn Carman-Thacker, No. M2014-01859-CCA-R3-CD, 2015 WL 5240209, at *5 (Tenn. Crim. App. Sept. 8, 2015) (citing United States v. Knights, 534 U.S. 112 (2001)).  The court then considered whether United States v. Tessier, 814 F.3d 432 (6th Cir. 2016) applied to the present case.  In Tessier, the Sixth Circuit held that the warrantless search of a probationer’s home was constitutional under the totality of the circumstances and absent reasonable suspicion because the probationer was subject to a “standard” search condition.  The condition in Tessier read: “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.”  Interestingly, the court noted that the condition in the present case was the same as the condition in Tessier but disagreed that the provision was “standard.”  The court reasoned that our state legislature has not authorized warrantless searches as a condition of probation, there is not a uniform warrantless search provision to which every probationer in Tennessee is subject, and three different warrantless search provisions are used in the district the defendant is from.  Because the search condition was not “standard,” Judge McMullen determined that reasonable suspicion was required.

While Judge McMullen’s reasoning was sound, the decision creates an interesting quandary.  The Sixth Circuit has previously ruled that the above probation condition is “standard.”  The state appellate court didn’t seem to be relying on the State constitution in its decision.  Perhaps, the “standard” decision wasn’t part of the Tessier holding and thus not controlling.  Please let me know if you have the answer to this question.

Moving on, the concurring opinion written by Judge John Everett Williams took issue issue with the lower standard.  The opinion relied on the reasoning in Samson v. California, 547 U.S. 843 (2006), where the United States Supreme Court held that reasonable suspicion is not required for the search of parolees.  In reaching this conclusion, the Supreme Court reasoned, “parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.”  Conversely, if probationers have a higher expectation of privacy than parolees, then shouldn’t a search of probationers require reasonable suspicion?

The concurrence also emphasized the goals of probation, i.e., rehabilitation and protecting society from future criminal violations.  Both goals are furthered by probationers obtaining employment, furthering their education, supporting their families, and maintaining housing.  Suspicionless searches undermine these goals.  For example, the risk of a suspicionless search makes it less likely than an employer will hire a probationer because the search could disrupt business and subject the employer and other employees to searches that would otherwise be constitutionally impermissible.

Finally, Judge Alan E. Glenn’s dissenting opinion did not directly address which standard should apply.  Rather, the opinion considered the totality of the circumstances and determined that there was reasonable suspicion to make a limited search of the defendants’ residence.

In conclusion, it’s unclear if reasonable suspicion is required to search a probationer’s home.  It may depend on whether you are in federal court or in state court.  It may also depend on what panel you get.  Hopefully, higher courts weigh in on the matter, soon.

State v. Hamm, No. W2016-01282-CCA-R3-CD (Tenn. Crim. App. Aug. 11, 2017)

Clay County Defendant’s Sentence Upheld

Yesterday, the Tennessee Court of Criminal Appeals upheld Judge David Patterson’s denial of alternative sentencing for a Clay County, Tennessee defendant.  Previously, the defendant had pled nolo contendere to attempted aggravated child neglect, a Class B felony.  As part of her plea agreement, she agreed to serve an eight-year term in the manner imposed by the trial court.

The trial court sentenced the defendant to serve eight-years at thirty percent, noting: (1) The defendant had failed to submit to a drug screen prior to the sentencing hearing; (2) The victim was particularly vulnerable because of his infancy; (3) The victim was “almost dead” and the defendant failed to recognize the problem; (4) The indictment originally charged a Class A felony.

On appeal, the defendant argued that the trial court erred because (1) The defendant did not have a long criminal history; (2) She successfully completed a previous sentence on probation; (3) She complied with the terms of her bail for the instant charge; (4) The trial court failed to properly consider mitigating factors; (5) There was no evidence to suggest that she intentionally or knowingly neglected the victim; (6) She brought the victim to the hospital after being told to do so; (7) There was no evidence of neglect to any of her other five children; (8) She gave birth to two children while on bail prior to her guilty plea, and those children will not be able to raised by their mother; and (9) Her confinement will not act as a deterrence and will not act to prevent the depreciation of the seriousness of the offense.

Despite the above arguments, the court of criminal appeals upheld the trial court’s decision, stating that a trial court’s sentencing decision is reviewed for abuse of discretion, with a presumption of reasonableness granted to within-range sentences reflecting a proper application of the purposes and principles of the Sentencing Act.  In this case, the trial court properly took into account the sentencing considerations in T.C.A. § 40-35-103 and whether any enhancement and mitigating factors existed.  See generally T.C.A. §§ 40-35-113, -114.  The trial court also “look[ed] behind the plea bargain” to see that the defendant was originally charged with aggravated child neglect, a Class A Felony that is ineligible for alternative sentencing.  Taking all of this into account, the court of criminal appeals determined that the trial court did not abuse its discretion and upheld the sentence of confinement.

State v. McLerran, No. M2016-02005-CCA-R3-CD (Tenn. Crim. App. Aug. 8, 2017)

In termination of parental rights cases, substantial compliance is about effort, not outcome

The Tennessee Court of Appeals recently reiterated that, when analyzing whether a parent substantially complied with DCS permanency plans, a trial court should focus on effort instead of outcome.  In the case, the mother completed each task in the first and second permanency plan.  Concerning the third plan, the mother finished substance abuse treatment at Bradford and passed a hair follicle drug screen.  While she still had substance abuse and mental health issues that affected the best interest determination, the court stated that these issues are not the focus for substantial compliance.  Rather, effort is the focus for substantial compliance, and given the mother’s efforts over a two-year period, the appellate court reversed the trial court and held that the mother substantially complied with DCS’s permanency plans.

In Re: Zane W., No. E2016-02224-COA-R3-PT (Tenn. Ct. App. July 6, 2017)

Gainsboro man arrested for allegedly having sex in a bathroom at the Putnam County Fair

The Herald Citizen reports that the Putnam County Sheriff’s Department has arrested a Gainsboro man for having sex in a bathroom at the Putnam County Fair. Reportedly, a deputy told the couple to come out after observing “the feet of a man and a woman beneath one of the stalls.”   Interestingly, the woman was not named in the warrants for the man’s arrest nor is it stated in the story that she was arrested.

Regardless, the man is charged with disorderly conduct and resisting arrest.  Disorderly conduct occurs when:

(a) A person commits an offense who, in a public place and with the intent to cause public annoyance or alarm:

(1) Engages in fighting or in violent or threatening behavior;

(2) Refuses to obey an official order to disperse issued to maintain public safety in dangerous proximity to a fire, hazard or other emergency; or

(3) Creates a hazardous or physically offensive condition by an act that serves no legitimate purpose.

(b) A person also violates this section who makes unreasonable noise that prevents others from carrying on lawful activities. 

T.C.A. § 39-17-305.  Disorderly conduct is a C misdemeanor carrying up to 30 days in jail and a $50 fine.

Based on the fact that the woman wasn’t arrested, I’m guessing the defendant’s disorderly conduct charge is for either “violent behavior,” i.e., recoiling from the deputy, or “threatening behavior,” i.e., repeatedly reach in his pockets.

For fun, let’s assume the State charged him with disorderly conduct for having sex in the fair bathroom.  Did the man want to “cause public annoyance and alarm” or did he have a simpler goal in mind?  Also, could we really say the sex had no legitimate purpose?  As the ACLU loves to remind us, procreation is a fundamental right.  How dare the State tell us that sex is not a legitimate purpose!

Then again, maybe there was “unreasonable noise” that prevented others from “carrying on lawful activities,” such as using the bathroom.  That would be enough to convict him.  However, the witness testimony could get a bit interesting.  “How did the noise affect you?”  “It gave me a severe case of stage fright.”  But wouldn’t loud noises actually help stage fright… This hypothetical has obviously gone on for too long.

Practically speaking, if the guy had just put his clothes on and left the fair, he probably wouldn’t have been charged with anything, at least anything that would stick.

Hindering secured creditor conviction reversed for insufficient evidence

It’s rare to see a conviction overturned for insufficiency of the evidence because the standard is so high, i.e., no rational jury could have found the accused guilty.  Moreover, after a conviction, the presumption of innocence is replaced with the presumption of guilt.  All questions about the credibility of witnesses, the weight of their testimony, and the reconciliation of conflicts, goes in the State’s favor.  The State, and not the defendant, is entitled to the “strongest legitimate view of the evidence and to all reasonable and legitimate inferences that may be drawn therefrom.”

Given this high standard, it’s not surprising that when there is a reversal for insufficient evidence, it’s in an area of law that students dread and attorneys avoid – secured transactions.  While secured transactions seems daunting, most people have experience with it, e.g., paying for a car overtime.  To use an example, if you owe your neighbor $100 and tell him, “Keep my lawn mower until I pay you back,” you’ve participated in a secured transaction.  Your lawn mower is security for the payment.  If you don’t pay him, he can keep your mower until you do (or eventually and with the proper notice, sell it).  If you do pay him, you get your lawn mower back.

In criminal law, there is theft and there is hindering a secured creditor.  If you steal your neighbor’s lawn mower, you’ve committed a theft.  If you “steal” your lawn mower back from your neighbor after you’ve told him to keep it until you pay the $100 you owe him, you’ve not committed a theft.  Why?  Because you haven’t stolen his property.  The lawn mower isn’t his.  It’s yours.  However, while you haven’t committed a theft, you have hindered a secured creditor, an E Felony.

Under Tennessee Code Annotated section 39-14-116, hindering a secured creditor occurs when:

(a) A person who claims ownership of or interest in any property which is subject of a security interest, security agreement, deed of trust, mortgage, attachment judgment or other statutory or equitable lien commits an offense who, with intent to hinder enforcement of that interest or lien, destroys, removes, conceals, encumbers, transfers, or otherwise harms or reduces the value of the property.

Notably, the intent to hinder enforcement must be present at the same time one “destroys, removes, conceals, encumbers, transfers, or otherwise harms or reduces the value of the property.”  If someone lacks this criminal intent, he may be liable for civil damages, but he isn’t guilty of a crime.

In this case,  the defendant bought a car with a loan, listing the alleged victim as the lienholder on the bill of sale.  Then, the defendant obtained a second loan from Tennessee Title Loans, Inc. without telling them about the first loan.  Finally, he registered the vehicle and did not mention the first loan.

The Tennessee Court of Criminal Appeals held that this evidence was insufficient for any rational jury to convict the defendant of hindering a secured creditor.  The court reasoned that, while the defendant was not forthcoming about the first loan, there was nothing else to support an inference that he intended to hinder enforcement when he obtained the second loan.  Unlike previous cases where the evidence was sufficient, at the time the second loan was taken out, the defendant was not trying to avoid repossession of the vehicle nor was the defendant engaged in a fraudulent scheme to sell encumbered vehicles to third parties.  Given there were no additional facts to support an inference of intent and mere knowledge of a first loan when obtaining a second loan is not criminal, the appellate court reversed the judgment of the trial court and vacated the defendant’s conviction.

State v. Carey, No. E2016-01125-CCA-R3-CD (Tenn. Crim. App. Aug. 9, 2017)