State v. Turner

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
April 8, 2009 Session

STATE OF TENNESSEE V. CHARLOTTE YVONNE TURNER

Appeal by Permission from the Court of Criminal Appeals
Circuit Court for Obion County
No. C07-192 William B. Acree, Jr., Judge

No. W2007-01590-SC-R11-CD - Filed October 15, 2009

We granted permission to appeal in this case to determine whether the police violated the
constitutional rights of the defendant, a parolee, when they searched her residence without a warrant
but pursuant to a condition of her parole. We adopt the reasoning of the Supreme Court in Samson
v. California, 547 U.S. 843 (2006), and hold that parolees who are subject to a warrantless search
condition may be searched without reasonable or individualized suspicion. The officers who
searched the defendant’s residence knew about her parole status, were aware of the warrantless
search condition of her parole, and did not conduct the search in an unreasonable manner.
Accordingly, the trial court erred in suppressing evidence found during the search of the defendant’s
residence. The judgment of the Court of Criminal Appeals is reversed, and this matter is remanded
to the trial court for further proceedings consistent with this opinion.

Tenn. R. App. P. 11; Judgment of the Court of Criminal
Appeals Reversed; Remanded

CORNELIA A. CLARK, J., delivered the opinion of the court, in which JANICE M. HOLDER, C.J., GARY
R. WADE , and WILLIAM C. KOCH , JR., JJ., joined. SHARON G. LEE , J., filed a dissenting opinion.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Rachel
E. Willis, Asst. Attorney General; Thomas A. Thomas, District Attorney General; and James T.
Cannon, Asst. District Attorney General; for the appellant, State of Tennessee.

James T. Powell, Union City, Tennessee, for the appellee, Charlotte Turner.

OPINION

Factual and Procedural Background

The defendant, Charlotte Yvonne Turner (“Defendant”), was convicted in Kentucky in 2002
of felony possession of controlled substance I and wanton endangerment in the first degree. She
received a seven-year sentence but was paroled by the Commonwealth of Kentucky in February
2005. Defendant was subsequently permitted to move her residency and, in September 2005, her
parole supervision was transferred to Tennessee, where she came to reside in Obion County. In
conjunction with her parole in Tennessee, Defendant signed a standard document in September 2005
in which, among other things, 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.”
The conditions of Defendant’s parole in both Kentucky and Tennessee also prohibited possession
of a weapon, see also Tenn. Code Ann. § 39-17-1307(b)(1)(B) (2006), and required Defendant to
obey federal, state, and local laws.

Defendant was indicted in June 2007 in Obion County for being a felon in possession of a
handgun. Defendant filed a motion to suppress which the trial court granted after a hearing. The
testimony adduced at the hearing includes the following.

In April 2007, Officer Shawn Palmer worked for the Union City Police Department and was
assigned to the 27th Judicial District Drug Task Force. Officer Palmer testified that he knew
Defendant personally and knew that she was “out on parole in Kentucky for trafficking a controlled
substance, crack cocaine, and her parole [had] been transferred to a parole officer here in Tennessee.”
He also knew she had previously been “convicted of dealing drugs here in Obion County.” Officer
Palmer stated that he “had been given information that [Defendant] was still involved in selling crack
cocaine.” Thus, on April 3, when Officer Palmer saw Defendant driving without wearing a seatbelt,
he pulled her over.1 In response to a question by the prosecutor, Officer Palmer admitted that the
stop was “pretextual” in the sense that “sometimes [he] write[s] for a seatbelt; sometimes we don’t.”

During the stop, Defendant identified her passenger as her friend, Torrie Smith. Officer
Palmer and Officer O’Dell ran license and warrant checks on both Defendant and Ms. Smith. Based
on information known to Officer O’Dell and learned from the dispatcher, Ms. Smith was placed
under arrest for criminal impersonation and was found to have outstanding warrants for probation
or parole violation and transporting marijuana.

Officer Palmer contacted Defendant’s parole officer by phone to confirm that Defendant was
subject to searches. Upon receiving verbal confirmation, he conducted a pat-down search of
Defendant which revealed $975 in Defendant’s pocket. Officer Palmer testified: “With the
information that we were given that she’d been involved in dealing drugs again; the passenger had
two warrants out for drug arrests; and the fact that [Defendant] has no form of income whatsoever
and I believe a three time convicted [sic] for drug convictions, we seized the money.” The officers
then told Defendant that they wanted to search her house. Officer Palmer testified that Defendant
“said she didn’t want to and we told her, fine, we’ll just call your parole officer [and] tell her that
you’re not cooperating.” According to Officer Palmer, Defendant then called her parole officer and
confirmed that the conditions of her parole included warrantless searches.

1
A driver failing to wear a safety belt while driving a car on a Tennessee highway may be prosecuted for a Class
C misdemeanor. See Tenn. Code Ann. § 55-9-603(a), (d)(1) (2008).

2
 The officers agreed to meet Defendant at her residence. They drove there and waited in the
front yard for Defendant to arrive. Officer Palmer stated that they waited “a good twenty minutes
or so.” Defendant arrived in her car and, according to Officer Palmer, “walked up and said, started
crying and said, ‘I got a gun in the house.’” Defendant then unlocked her door and the officers began
their search. They recovered a loaded .38 caliber handgun.

On cross-examination, defense counsel established that Defendant’s parole documents from
Kentucky stated that she was on parole for possession of a controlled substance, not “trafficking.”2
Officer Palmer admitted that he did not ultimately issue a citation to Defendant for a seatbelt
violation. He also admitted that, upon searching Defendant, he did not find any drugs on her person.
He nevertheless decided to search Defendant’s house based on “[t]he conditions of her parole and
the rulings of the United States Supreme Court.”

Officer Palmer admitted that Defendant’s seatbelt violation was a pretext for his pulling her
over and that his real concern was that he suspected “that she’d been selling drugs again.” Officer
Palmer stated that his suspicion was based on information he had received from one of his
“informants.”

When asked if Defendant had had an opportunity to refuse to go to her house for the search,
Officer Palmer testified, “I told her, I told her if she didn’t want to go, fine, I’ll call the parole
officer.” Officer Palmer admitted that, at the time he determined to search Defendant’s house, he
did not have enough information to get a search warrant. According to Officer Palmer,
approximately one hour passed from the time he pulled Defendant over to the time he finished
searching her house.

Defendant also testified. She stated that the first thing Officer Palmer said to her when he
pulled her over was to get out of the car. He did not say anything about a seatbelt violation. He
started searching her when she got out of her car. He also searched her car. He indicated that he was
looking for drugs; he did not find any on her person or in her car. She offered no resistance to these
searches.

After Officer Palmer finished searching Defendant’s car, he told her to drive to her house so
he could search her house. According to Defendant, “he told me if I didn’t go to my house he was
gonna call my PO or he was gonna take me to jail anyway.” She stated that the time period between
Officer Palmer pulling her over and finishing the search of her house was about two hours.
Defendant testified that Officer Palmer never asked to see her driver’s license or her vehicle
registration, both of which she had with her.

2
The actual Kentucky judgment orders are not in the record. Similarly, although the State filed certain notices
reflecting three prior Tennessee felony convictions for the sale of a controlled substance, the judgment orders reflecting
those convictions are also not in the record.

3
 On cross-examination, Defendant acknowledged that, while being detained, she called and
spoke with her parole officer. Her parole officer read her the parole condition regarding searches;
she did not specifically tell Defendant whether or not she had to drive over to her house at Officer
Palmer’s demand.

After hearing this testimony, the trial court ruled from the bench and granted Defendant’s
motion to suppress. The trial judge stated that he was “convinced that there was no consent given
in this case to search the house, that the defendant felt she had no choice but to allow them into the
house or that they would have gone anyway or she would have been taken to jail.” The trial court
continued: “The search in this case in my opinion was permitted of the defendant, of her person,
when she was stopped. I don’t see anything unreasonable in that under the existing law. However,
to require the defendant to go to another location with no basis whatsoever and detain her for one
to two hours, the Court finds that constitutes an harassing, capricious and arbitrary search.” The
court specifically found no evidence to support “any type of suspicion or reasonable suspicion” in
connection with the search of Defendant’s home and concluded that the search violated the Fourth
Amendment. The Court of Criminal Appeals affirmed the trial court’s ruling on the basis that the
“application of the reasonable parole condition by the police officers, in this case, became
unreasonable as a result of this lengthy seizure of” Defendant, referring to the total time elapsed
between the initial traffic stop and the conclusion of the search of Defendant’s residence. State v.
Turner, No. W2007-01590-CCA-R3-CD, 2008 WL 1891445, at *5 (Tenn. Crim. App. Apr. 29,
2008).

We granted the State’s application for permission to appeal in order to address for the first
time the recent Supreme Court case dealing with warrantless and suspicionless searches of parolees,
Samson v. California, 547 U.S. 843 (2006).

STANDARD OF REVIEW

On appeal from a ruling on a motion to suppress, we will uphold a trial court’s findings of
fact in a suppression hearing unless the evidence preponderates otherwise. State v. Odom, 928
S.W.2d 18, 23 (Tenn.1996). The prevailing party in the trial court “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. The application of the law to the
facts, however, is a question of law that this Court reviews de novo. State v. Williams, 185 S.W.3d
311, 315 (Tenn. 2006); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

ANALYSIS

I. The Fourth Amendment

The Fourth Amendment to the United States Constitution provides that “[t]he right of the
people to be secure in their persons [and] houses . . . against unreasonable searches and seizures,
shall not be violated, and no warrants shall issue, but upon probable cause.” U.S. Const. amend. IV
(emphasis added). Whether or not a particular search is “unreasonable” and therefore in violation

4
of the Fourth Amendment “depends upon all of the circumstances surrounding the search . . . and
the nature of the search . . . itself.” United States v. Montoya de Hernandez, 473 U.S. 531, 537
(1985). Upon taking all of the relevant circumstances into account, “the permissibility of a particular
practice ‘is judged by balancing its intrusion on the individual’s Fourth Amendment interests against
its promotion of legitimate governmental interests.’” Skinner v. Ry. Labor Executives’ Ass’n, 489
U.S. 602, 619 (1989) (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979)).

“The essence of the prohibition against unreasonable searches and seizures under the Fourth
Amendment is to ‘safeguard the privacy and security of individuals against arbitrary invasions by
government officials.’” Id. (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967))
(quotation corrected). Thus, the basic constitutional rule is that a warrantless search or seizure is
presumed unreasonable, and any evidence discovered as a result is subject to suppression. Coolidge
v. New Hampshire, 403 U.S. 443, 454-55 (1971); State v. Bridges, 963 S.W.2d 487, 490
(Tenn.1997). This basic rule is subject to “a few specifically established and well-delineated
exceptions[,] jealously and carefully drawn.” Coolidge, 403 U.S. at 455 (quoting Katz v. United
States, 389 U.S. 347, 357 (1967), and Jones v. United States, 357 U.S. 493, 499 (1958)). “These
exceptions include searches and seizures conducted incident to a lawful arrest, those yielding
contraband in ‘plain view,’ those in the ‘hot pursuit’ of a fleeing criminal, those limited to a ‘stop
and frisk’ based on reasonable suspicion of criminal activity, those based on probable cause in the
presence of exigent circumstances, and those based on consent.” State v. Day, 263 S.W.3d 891, 901
n.9 (Tenn. 2008) (citing State v. Cox, 171 S.W.3d 174, 179 (Tenn. 2005), and State v. Bartram, 925
S.W.2d 227, 230, 230 n.2 (Tenn. 1996)).

II. Warrantless Searches of Convicted Defendants
Serving Sentences May Be Reasonable

The basic rule against warrantless searches is also relaxed if the person being searched has
been convicted of a criminal offense and is serving a sentence. The 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 (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. See Hudson v. Palmer, 468 U.S. 517,
526 (1984) (holding that “society is not prepared to recognize as legitimate any subjective
expectation of privacy that a prisoner might have in his prison cell and . . . , accordingly, the Fourth
Amendment proscription against unreasonable searches does not apply within the confines of the
prison cell”); State v. Williams, 690 S.W.2d 517, 524 (Tenn. 1985) (recognizing that “an expectation
of privacy is not justified in a jail cell”); State v. Dulsworth, 781 S.W.2d 277, 284 (Tenn. Crim. App.
1989) (recognizing that, under Palmer, a prisoner’s expectation of privacy under the Fourth
Amendment is severely curtailed).

5
 Probationers3 rest further along the continuum. Accordingly, probationers’ privacy interests
under the Fourth Amendment are also reduced, but are not so far diminished as those of incarcerated
felons. See United States v. Knights, 534 U.S. 112, 119 (2001). In Knights, the Supreme Court
considered the constitutionality of the warrantless search of a probationer’s home. The defendant
had accepted as a condition of his probation that he would “[s]ubmit his . . . person, property, place
of residence, vehicle, personal effects, to 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.
Applying the totality of the circumstances test, of which the defendant’s probation search condition
was “a salient circumstance,” id. at 118, the Court analyzed the reasonableness of the search by
balancing “‘the degree to which it intrudes upon an individual’s privacy [against] the degree to which
it is needed for the promotion of legitimate governmental interests.’” Id. at 119 (quoting Wyoming
v. Houghton, 526 U.S. 295, 300 (1999)). The Court specifically determined that the defendant’s
“status as a probationer subject to a search condition informs both sides of that balance.” Id.

In first assessing the degree of intrusion upon a probationer’s privacy interest, the Court
recognized that

[i]nherent in the very nature of probation is that probationers do not enjoy the
absolute liberty to which every citizen is entitled. 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.

Id. (internal quotation marks and citations omitted). The Court concluded that the search condition
“would further the two primary goals of probationSrehabilitation and protecting society from future
criminal violations.” Id. As a result of the search condition, the probationer’s reasonable
expectation of privacy was “significantly diminished.” Id. at 119-20.

Turning to the governmental interest side of the balance, the Court reasoned as follows:

it must be remembered that the very assumption of the institution of probation is that
the probationer is more likely than the ordinary citizen to violate the law. The
recidivism rate of probationers is significantly higher than the general crime rate.
And 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.

3
A probationer is one who has been found guilty of a crime, upon verdict or plea, but has been released by a
court without imprisonment “subject to conditions imposed by the court and subject to the supervision of the probation
service.” Tenn. Code Ann. § 40-28-102(6) (2006).

6
Id. (internal quotation marks and citations omitted). The Court recognized that states have 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. The Court then concluded that “the balance of these considerations requires no more
than reasonable suspicion to conduct a search of [the] probationer’s house.” Id. at 121 (emphasis
added).

Because the search at issue in Knights was supported by reasonable suspicion, the search
passed Fourth Amendment muster. Id. at 122. Significantly, the Court left open the question
“whether the probation condition so diminished, or completely eliminated, [the probationer
defendant’s] 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 (emphasis added).4 A search unsupported by any individualized
suspicion came before the Court in Samson v. California, 547 U.S. 843 (2006).

III. Parolees: Samson v. California

On the continuum of possible punishments and reductions in freedoms, parolees occupy a
place between incarcerated prisoners and probationers. Tennessee’s statutory scheme defines parole
as “the release of a [previously incarcerated] prisoner to the community . . . prior to the expiration
of the prisoner’s term subject to conditions . . . .” Tenn. Code Ann. § 40-28-102(5). “Release on
parole is a privilege and not a right . . . .” Id. § 40-35-503(b) (2006); see also id. § 40-28-117(a)
(2006). Under Tennessee’s statutory scheme, persons released outside of prison walls on parole
remain in the legal custody of the warden (or relevant penal supervisor) and are subject to all of the
provisions upon which their parole is conditioned. Id. § 40-28-117(a); Doyle v. Hampton, 340
S.W.2d 891, 893 (Tenn. 1960). Parolees remain under the confinement of their sentences while on
parole. Doyle, 340 S.W.2d at 893.

Knights did not address the question whether parolees have any reasonable expectation of
privacy under the Fourth Amendment; that question was recently addressed by the Supreme Court
in Samson.

Donald Curtis Samson was a California parolee. As a condition of his release on parole
under a California statute, Samson had agreed 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

4
Similarly, State v. Davis, 191 S.W .3d 118, 121-22 (Tenn. Crim. App. 2006), involved an almost identical
Tennessee condition of probation. The Court of Criminal Appeals declined to address whether a warrantless search of
the probationer was per se reasonable because it found the search to be supported by reasonable suspicion. Our
resolution of the instant case also does not require us to resolve this issue as to probationers.

7
and with or without cause.” Samson, 547 U.S. at 846 (quoting Cal. Penal Code Ann. § 3067(a)
(West 2000)).

San Bruno Police Officer Alex Rohleder knew that Samson was on parole and believed
Samson had an outstanding at-large warrant. Upon seeing Samson out walking one day, Officer
Rohleder stopped him and inquired about the warrant. Samson replied that there was no outstanding
warrant and that he was in good standing with his parole officer. Officer Rohleder confirmed this
information by radio. Officer Rohleder nevertheless conducted a search of Samson, “based solely
on [Samson’s] status as a parolee,” id. at 846-47, and found methamphetamine on his person. After
he was charged with possession, Samson filed a motion to suppress, which the trial court denied.
The Supreme Court upheld the search against a Fourth Amendment challenge. Id. at 847.

Returning to the balancing test it had used in Knights,5 the Court first reasoned that “parolees
have fewer expectations of privacy than probationers, because parole is more akin to imprisonment
than probation is to imprisonment.” Id. at 850 (emphasis added). Second, Samson was
“unambiguously” aware of the search condition of his parole. Id. at 852 (quoting Knights, 534 U.S.
at 119). Thus, “[e]xamining the totality of the circumstances pertaining to [Samson’s] status as a
parolee, an established variation on imprisonment, including the plain terms of the parole search
condition,” the Court concluded that Samson “did not have an expectation of privacy that society
would recognize as legitimate.” Id. (internal quotation marks and citation omitted).

On the other side of the scale, the Court reasoned that

[t]he State’s interests, by contrast, are substantial. This Court has repeatedly
acknowledged 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
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 “[t]his conclusion makes eminent sense.” Id. at
854. The Court reasoned that “[i]mposing a reasonable suspicion requirement . . . would give
parolees greater opportunity to anticipate searches and conceal criminality.” Id. Hence, the search
of parolee Samson passed Fourth Amendment muster even though it was not supported by any
reasonable or individualized suspicion. Id. at 857.

5
The Samson Court specifically declined to analyze the search under a consent theory. 547 U.S. at 852 n.3.

8
 The Court’s holding that a parolee could be searched without any particularized suspicion
has resulted in some criticism. See, e.g., 5 LaFave, Search and Seizure, § 10.10 at 432-82 (4th ed.
2004) and Supp. 2008-09 at 27-44. In our view, however, Samson does not present a significant
departure from the Court’s earlier Fourth Amendment jurisprudence.6 The Skinner Court reiterated
in 1989 that, although “some quantum of individualized suspicion” was “usually” necessary for a
search to be reasonable, 489 U.S. at 624 (emphasis added), the rule was not a hard and fast one:

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.

Id. (citation omitted) (emphasis added); see also Nat’l Treasury Employees Union v. Von Raab, 489
U.S. 656, 665 (1989) (emphasizing “the longstanding principle that neither a warrant nor probable
cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of
reasonableness in every circumstance”). The majority in Samson simply crafted 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. As noted by the Colorado Supreme Court even before
Samson was decided, “[r]equiring individualized suspicion would eliminate a powerful deterrent to
parole violations and, consequently, would place in jeopardy the State’s overwhelming interest in
ensuring that a parolee complies with the conditions of his parole.” People v. McCullough, 6 P.3d
774, 781 (Colo. 2000) (En Banc).

IV. Tennessee Constitution

Article I, section 7, of Tennessee’s Constitution provides similarly to the Fourth Amendment
that “the people shall be secure in their persons [and] houses . . . from unreasonable searches and
seizures.” Tenn. Const. art. I, § 7 (emphasis added). While this Court has not previously addressed
the scope of a parolee’s constitutional privacy interest, we have previously recognized that
Tennessee’s constitutional provision against unreasonable searches and seizures is “‘identical in
intent and purpose with the Fourth Amendment.’” State v. Randolph, 74 S.W.3d 330, 334 (Tenn.
2002) (quoting Sneed v. State, 423 S.W.2d 857, 860 (Tenn. 1968)). And, while this Court has also
recognized its freedom “to interpret the provisions of our state constitution to afford greater

6
Our research indicates that few of our sister state high courts have undertaken an analysis of Samson in the
context of a challenge to a suspicionless search of a parolee. Similarly to our holding today, the Illinois Supreme Court
has adopted and applied Samson to a parolee subject to a search condition providing that the parolee “shall consent to
a search of [his] person, property, or residence under [his] control.” People v. W ilson, 885 N.E.2d 1033, 1035 (Ill.
2008). The parolee was convicted of a drug offense after a suspicionless search of his bedroom. The Illinois Supreme
Court first noted that “the search in question was nonconsensual” in spite of the wording of the parole condition. Id. at
1036. The Court specifically rejected the parolee’s contention that Samson was distinguishable because his condition
of parole was worded differently than Samson’s. Id. at 1042.

9
protection than the federal constitution,” State v. Cox, 171 S.W.3d 174, 183 (Tenn. 2005), we are
persuaded that the Samson analysis 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, and society’s interests in both reintegrating that felon and protecting itself against
recidivism.

The award of parole to an incarcerated prisoner is a privilege and not a right. Tenn. Code
Ann. § 40-28-117(a). It is a privilege the State of Tennessee may accord to persons incarcerated for
committing serious felonies in spite of worrisome statistics of recidivism. According to the
Tennessee Department of Correction Research Brief Update titled “TDOC Release Trends and
Failure Rates [tracking] Felon Releases 1999-2003,” a publication compiled by the Tennessee
Department of Correction Division of Policy, Planning, & Research and dated April 27, 2005,7
felons released to parole in 2000 had a recidivism rate of 50% within the first three years of their
release. Close and careful supervision of Tennessee parolees is appropriate. See Samson, 547 U.S.
at 854 (acknowledging “the grave safety concerns that attend recidivism”). The constitutional
parameters of what is “reasonable” for parolees must take this very real danger of recidivism into
account.

Although a parolee’s constitutional protections against unreasonable searches may not be
extinguished as completely as those of incarcerated prisoners,8 parole status is a “powerful
circumstance” much more akin to incarceration than probation or freedom9 in determining the
reasonableness of a search. See United States ex rel. Randazzo v. Follette, 282 F. Supp. 10, 13
(S.D.N.Y. 1968); see also United States v. Crawford, 372 F.3d 1048, 1077 (9th Cir. 2004) (En Banc)
(Kleinfeld, J., concurring) (explaining that parolees, in contrast to probationers, “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”). A prisoner
who is accorded the privilege of parole must agree to be bound by all of the conditions imposed upon
his or her release. 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. We
therefore adopt the reasoning of Samson and hold that the Tennessee Constitution permits a parolee
to be searched without any reasonable or individualized suspicion where the parolee has agreed to

7
See http://www.tennessee.gov/correction/pdf/Recidivism%20Brief%20Update.pdf

8
Some courts construing Samson have concluded that “[t]he Supreme Court, for all intents and purposes, has
decided that a parolee who has signed a search condition [providing for warrantless searches by law enforcement officers
at any time] has no Fourth Amendment rights, subject only to a protection from arbitrary, capricious or harassing
searches.” United States v. W idener, No. 3:08-CR-01, 2008 W L 4831344, at *3 (E.D. Tenn. Nov. 4, 2008). See also,
e.g., State v. Bennett, 200 P.3d 455, 462 (Kan. 2009); Segundo v. State, 270 S.W .3d 79, 98 (Tex. Crim. App. 2008).
W e need not reach this issue to decide this case.

9
“Parole . . . is nothing more than a conditional suspension of sentence . . . . The sentence of the man does not
expire because of the parole, nor during the pendency of the parole.” Doyle, 340 S.W .2d at 893.

10
warrantless searches by law enforcement officers.10

V. Limits on Warrantless, Suspicionless Searches of Parolees

Samson generated a dissent which expressed concerns about “a regime of suspicionless
searches, conducted pursuant to a blanket grant of discretion untethered by any procedural
safeguards, by law enforcement personnel who have no special interest in the welfare of the parolee
or probationer.” Samson, 547 U.S. at 857 (Stevens, J., dissenting). The majority responded by
observing that “[t]he concern that California’s suspicionless search system gives officers unbridled
discretion to conduct searches, thereby inflicting dignitary harms that arouse strong resentment in
parolees and undermine their ability to reintegrate into productive society, is belied by California’s
prohibition on ‘arbitrary, capricious or harassing’ searches.” Samson, 547 U.S. at 856 (citing People
v. Reyes, 968 P.2d 445, 450, 451 (Cal. 1998); People v. Bravo, 738 P.2d 336, 342 (1987); Cal. Penal
Code Ann. § 3067(d) (West 2000)).

While the terms “arbitrary,” “capricious,” and “harassing” are not easily defined, the
California Supreme Court considers (1) that “a parole search could become constitutionally
‘unreasonable’ if made too often, or at an unreasonable hour, or if unreasonably prolonged or for
other reasons establishing arbitrary or oppressive conduct by the searching officer,” Reyes, 968 P.2d
at 451 (quoting People v. Clower, 16 Cal. App. 4th 1737, 1741 (1993)); (2) that it is “arbitrary and
capricious when the motivation for the search is unrelated to rehabilitative, reformative or legitimate
law enforcement purposes, or when the search is motivated by personal animosity toward the
parolee,” id. (citing In re Anthony S., 4 Cal. App. 4th 1000, 1004 (1992)); and (3) that an
“unrestricted search of a probationer or parolee by law enforcement officers at their whim or caprice
is a form of harassment,” id. (citing People v. Bremmer, 30 Cal. App. 3d 1058, 1062 (1973)). See
also People v. Smith, 92 Cal. Rptr. 3d 106, 112 (Cal. Ct. App. 2009) (recognizing that “[w]hether
a [parole] search is arbitrary, capricious, or harassing turns on its purpose”); McCullough, 6 P.3d at
782 (observing that examples of an abusive search include “searches conducted at an unreasonable
hour, searches that are unreasonably prolonged, or frequent and repeated searches that are intended
only to harass”). A suspicionless search of a parolee would also be constitutionally suspect if the
law enforcement officer conducted it without knowing that the person searched was a parolee subject
to warrantless and suspicionless searches. See Samson, 547 U.S. at 856 n.5.

While we agree that these are appropriate factors to consider when reviewing whether a
warrantless and suspicionless search of a parolee is unreasonable and therefore unconstitutional, we
also recognize that a suspicionless search could be characterized as “arbitrary.” See Black’s Law
Dictionary 112 (8th ed. 2004) (“1. Depending on individual discretion . . . .”). A search of this type
is not necessarily unreasonable, however. Therefore, the totality of the circumstances surrounding
a warrantless, suspicionless search of a parolee must be examined to determine whether the search
is constitutionally unreasonable. For example, a pattern of repetitive searches while the parolee is
at work or asleep would be unreasonable. Searches intended to cause the parolee some harm would

10
Importantly, such searches may be undertaken only if the searching officer has prior knowledge of the
parolee’s status as subject to such searches. See Samson, 547 U.S. at 856 n.5.

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be unreasonable. A search conducted out of personal animosity would be unreasonable. Indeed,
there may be other situations where a warrantless, suspicionless search of a parolee is unreasonable.
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.11

VI. The Search of Defendant’s Residence

The search provision at issue in Samson was pursuant to a specific California statute. See
Samson, 547 U.S. at 846. Tennessee does not have a similar statute; rather, our statutory scheme
allows the Board of Probation and Parole to “impose [on parolees] any conditions and limitations
that [it] deems necessary.” Tenn. Code Ann. § 40-28-116(b) (2006). One of the conditions imposed
on Defendant was the warrantless search provision, which is a standard condition.12 It is
uncontroverted that Defendant agreed in writing to the warrantless search provision. Moreover,
Officer Palmer and Defendant both verified this condition of Defendant’s parole with her parole
officer immediately prior to the search of her residence. We must now review the totality of the
circumstances, of which Defendant’s status as a parolee and her agreement to the warrantless search
condition are salient circumstances, and determine whether the search of Defendant’s residence13 was
reasonable.

The trial court determined that it was not, after finding only that “[t]he total process took
anywhere between one and two hours” and that Defendant’s home was located in “another part of
Union City” from where the traffic stop took place. The Court of Criminal Appeals agreed, holding
that “[t]he application of the reasonable parole condition by the police officers, in this case, became
unreasonable as a result of this lengthy seizure of [Defendant].” Turner, 2008 WL 1891445, at *5.

11
Because we recognize that a suspicionless search of a parolee may be constitutionally unreasonable, we
disagree with the dissent that the rule we adopt today “gives police officers complete and unfettered power to detain and
search a citizen.”

12
W e are cognizant that the search provision at issue in Samson subjected California parolees to searches “with
or without a search warrant and with or without cause.” Samson, 547 U.S. at 846 (emphasis added). Some courts have
intimated that “without cause” is the equivalent of “without suspicion.” See, e.g., United States v. Freeman, 479 F.3d
743, 748 (10th Cir. 2007); State v. Ochoa, 765 N.W .2d 607, __, 2009 W L 398390, at *3 (Iowa Ct. App. Feb. 19, 2009);
see also Samson, 547 U.S. at 852 (describing the California parole search condition as requiring parolees “to submit to
suspicionless searches”). The search provision to which Defendant agreed does not contain the language “without cause”
or “without suspicion.” W e do not find this distinction to be dispositive. See W ilson, 885 N.E.2d at 1042. Indeed,
Defendant herself does not argue this distinction. The point of the standard search condition used by Tennessee’s Board
of Probation and Parole is to alert parolees that law enforcement officers will be able to search them and their premises
without the usual necessity of first obtaining a judge’s or magistrate’s permission. Parolees are thus informed prior to
their release that their constitutional rights regarding searches and seizures have been severely reduced. Nevertheless,
the Board of Probation and Parole may wish to consider revising its standard conditions to reflect explicitly that parolees
may be searched without either a warrant or any particularized suspicion.

13
Defendant does not contest the on-scene search of her self or her automobile. Only the search of Defendant’s
residence is before us in this appeal.

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 We respectfully disagree with the courts below that the search of Defendant’s residence was
unreasonable. Based on information he had received from an informant, Officer Palmer was
concerned that Defendant was engaged in drug dealing. He knew she had been previously convicted
for a drug offense in Tennessee. He knew her parole status and confirmed that she was thereby
subject to warrantless searches. Upon observing her commit a traffic infraction, which constituted
a Class C misdemeanor and thus violated the terms of her parole, he pulled her over and conducted
a search of her person and vehicle. He found no drugs but did find a large sum of cash on
Defendant’s person.14 The presence of this large sum of money together with the absence of any
drugs on Defendant’s person or in her car gave Officer Palmer some grounds to be concerned that
Defendant might have recently made a drug sale and might have more drugs at her residence.15

Officer Palmer’s decision to search Defendant’s residence was not unreasonable when
examined under the totality of the circumstances. There is no proof in the record that Officer Palmer
acted for any reason other than the furtherance of legitimate law enforcement concerns. Defendant
had been convicted of drug offenses in two states. Officer Palmer had information from an
informant that she was currently involved in selling crack cocaine. He verified Defendant’s parole
status and the warrantless search condition before he proceeded to search her residence. Neither the
search of Defendant’s vehicle nor that of her residence was unreasonably lengthy. That the total time
of Defendant’s detention may have been at most two hours, and included a short trip by Defendant
in her own vehicle, did not so prolong the detention as to make the search unreasonable.

We hold that the warrantless search of Defendant’s residence, made pursuant to a written
condition of her parole, was reasonable under the Fourth Amendment of the United States
Constitution and article 1, section 7, of the Tennessee Constitution, even if made without any
reasonable, individualized, or particularized suspicion.

CONCLUSION

We hold that the warrantless search of Defendant’s residence, made pursuant to her status
as a parolee and a written condition of her parole of which she and the searching officer were aware,
was reasonable under the Fourth Amendment of the United States Constitution and article I, section
7, of the Tennessee Constitution, even if not supported by reasonable suspicion. Accordingly, the
trial court erred in granting Defendant’s motion to suppress and the Court of Criminal Appeals erred

14
Officer Palmer also found Defendant in the company of a woman who had an outstanding warrant for a
probation or parole violation. Defendant’s association with this woman may have constituted a violation of the
conditions of her Kentucky parole, which prohibited Defendant from associating “with a convicted felon except for
legitimate purposes.” The conditions of Defendant’s Tennessee parole included in the record do not contain a similar
prohibition.

15
The dissent implies that Officer Palmer’s sole justification for searching Defendant’s residence was his
understanding of the warrantless search provision of her parole and rulings by the United States Supreme Court. In fact,
Officer Palmer also relied on his knowledge of Defendant’s criminal history, information that she was currently dealing
drugs, her possession of a large sum of cash, and her traveling with a person who was subject to an outstanding warrant
for a drug offense.

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in affirming the trial court. We therefore reverse the judgment of the Court of Criminal Appeals and
remand this matter to the trial court for further proceedings consistent with this opinion.

Defendant having been found indigent, the costs of this cause are taxed to the State of
Tennessee, for which execution may issue if necessary.

________________________________
CORNELIA A. CLARK, JUSTICE

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