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)

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