State v. Hamm

• Decision Date: 11 August 2017
• Docket Number: No. W2016-01282-CCA-R3-CD,W2016-01282-CCA-R3-CD
• Parties: STATE OF TENNESSEE v. ANGELA CARRIE PAYTON HAMM and DAVID LEE HAMM
• Court: Tennessee Court of Criminal Appeals

STATE OF TENNESSEE v. ANGELA CARRIE PAYTON HAMM and DAVID LEE HAMM

No. W2016-01282-CCA-R3-CD

COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

August 11, 2017

Circuit Court for Obion County

No. CC-16-CR-15

JOHN EVERETT WILLIAMS, J., concurring.

I concur in the majority opinion, but I write separately to express my views regarding the additional issues that arise from warrantless, suspicionless searches of probationers conducted pursuant to a condition of probation.

Totality of the Circumstances/Reasonable Suspicion

I believe that at a minimum, reasonable suspicion is required before the State may conduct a warrantless search of a probationer who is subject to a warrantless search requirement as a condition of probation. While neither the United States Supreme Court nor the Tennessee Supreme Court have addressed whether something less than reasonable suspicion would permit searches of probationers, both courts have addressed the issue as it related to parolees. See Samson v. California, 547 U.S. 843 (2006); State v. Turner, 297 S.W.3d 155 (Tenn. 2009).

Samson involved a challenge by a parolee to a California law requiring every prisoner eligible for 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.'" 547 U.S. at 846 (quoting Cal. Penal Code Ann. § 3067). The issue before the Court was "whether a suspicionless search, conducted under the authority of this statute, violates the Constitution." Id. The Court held that the statute was constitutional under the Fourth Amendment. Id. at 857.

The Court noted that "parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment." Id. at 850. The Court further noted that "'[t]he essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abides by certain rules during the balance of the sentence.'" Id. (quoting Morrisey v. Brewer, 408 U.S. 471, 477 (1972)). Applying the totality of the circumstances approach, the Court concluded that searches under the California law were constitutional. Id. at 852. The Court stated, "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.

The Court concluded that the State's interests were substantial, reasoning that

a State has an "'overwhelming' interest" in supervising parolees because "parolees ... are more likely to commit future criminal offenses." Similarly, this Court has repeatedly acknowledged that a State's interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the tolerated under the Fourth Amendment.

Id. at 853 (quoting Pa. Bd. of Prob. and Parole v. Scott, 524 U.S. 357, 365 (1998)). The Court recognized that "[t]he California Legislature has concluded that, given the number of inmates the State paroles and its high recidivism rate, a requirement that searches be based on individualized suspicion would undermine the State's ability to effectively supervise parolees and protect the public from criminal acts by reoffenders," and agreed that the conclusion made "eminent sense." Id. at 854. The Court further reasoned that "[i]mposing a reasonable suspicion requirement ... would give parolees greater opportunity to anticipate searches and conceal criminality." Id.

In Turner, the Tennessee Supreme Court held that "parolees who are subject to a warrantless search condition may be searched without reasonable or individualized suspicion." 297 S.W.3d at 157. Unlike Sampson, the holding was not based upon a statute that authorized warrantless searches of parolees. Rather, the parolee in Turner signed a document which provided that she "agree[d] to a search, without a warrant, of [her] person, vehicle, property, or place of residence by any Probation/Parole Officer or law enforcement, at any time." Id.

Our supreme court discussed the holding in Sampson that warrantless, suspicionless searches of parolees subject to a warrantless search condition did not violate the Fourth Amendment and concluded that such searches also did not violate the Tennessee Constitution. Id. at 162-66. The court concluded that the analysis in Samson "strikes the correct balance between the severely diminished privacy interests of a convicted felon serving the remainder of his or her sentence on parole release in the community, andsociety's interests in both reintegrating that felon and protecting itself against recidivism." Id. at 165.

In examining the nature of parole, the court recognized that "[o]n the continuum of possible punishments and reductions in freedoms, parolees occupy a place between incarcerated prisoners and probationers." Id. at 162. The court recognized that while on parole, parolees remain under the confinement of their sentences and in the legal custody of the warden and are subject all of the conditions of their parole. Id. at 163 (citations omitted). The court noted that rather than a right, parole is a privilege that the State "may accord to persons incarcerated for committing serious felonies in spite of worrisome statistics of recidivism." Id. at 165. The court stated that "this very real danger of recidivism" must be taken into account in determining the constitutional parameters of what is "reasonable" for parolees. Id.

The court concluded that "[a]lthough a parolee's constitutional protections against unreasonable searches may not be extinguished as completely as those of incarcerated prisoners, parole status is a 'powerful circumstance' much more akin to incarceration than probation or freedom in determining the reasonableness of a search." Id. (footnotes and citations omitted). In reaching this conclusion, the court cited with approval a concurring opinion in United States v. Crawford, which explained that in contrast to probationers, parolees "'have been sentenced to prison for felonies and released before the end of their prison terms'" and are "'deemed to have acted more harmfully than anyone except those felons not released on parole.'" Id. at 165-66 (quoting United States v. Crawford, 372 F.3d 1048, 1077 (9th Cir. 2004) (en banc) (Kleinfeld, J., concurring)). The court held that "[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 166. The court employed the totality of the circumstances approach to determine whether the search of the parolee's home was reasonable and held that a "suspicionless search of a parolee subject to a warrantless search condition, and which is conducted out of valid law enforcement concerns, is not unreasonable." Id. at 167. The court, however, was careful to note that its resolution of the issue of warrantless searches of parolees pursuant to a condition of parole did not require the court to resolve the issue as it related of probationers. Id. at 162 n.4.

There is a conflict among jurisdictions regarding the constitutionality of a warrantless search absent reasonable suspicion of a probationer who is subject to warrantless searches as a condition of probation. Some jurisdictions have held that the warrantless search of a probationer subject to a warrant search condition was constitutional even absent reasonable suspicion based on the totality of the circumstances. See, e.g. United States v. Williams, 650 Fed. App'x. 977, 980 (11th Cir. 2016) (holding that thesuspicionless search the home of a probationer subject to a warrantless search provision was constitutional 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 search of a Tennessee probationer's residence that was not based on reasonable suspicion where the probationer was subject to a warrantless search condition and 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. Adair, 383 P.3d 1132, 1135-38 (Ariz. 2016) (holding that a search of a probationer's home, conducted by probation officers pursuant to valid probation conditions, need not be supported by reasonable suspicion but declining to address the constitutionality of the same search conducted by law enforcement instead of probation officers); State v. Vanderkolk, 32 N.E.3d 775, 779 (Ind. 2015) (concluding that the holding in Samson also applies to probationers and community corrections participants).

Other jurisdictions have held that warrantless searches of probationers subject to a warrantless search condition must be supported by reasonable suspicion. See, e.g. State v. Bennett, 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, 146 A.3d 895, 909 (Vt. 2016) (declining to extend Sampson 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...