Dissenting:
In a case rendered today, Michael Helphenstine v. Commonwealth of Kentucky, 2012-SC-000251-MR, this Court considered the propriety .of the search of a parolee’s residence because an evidentiary hearing was not- held on the motion to suppress, and only legal arguments were considered. Helphenstine also challenged the denial of the motion to suppress on legal grounds. We held that Helphenstine had not preserved the hearing issue, and affirmed the trial court’s ruling on the legal merits. Helphenstine primarily argued that the motion to suppress should have been granted because of the warrantless search of his residence. We denied his claim based on the fact that the Commonwealth. had, by regulation, allowed the search of a parolee’s residence without a warrant, and by accepting parole Helphen-stine had in fact consented to the search. We also noted that, even so, such searches must satisfy the Fourth Amendment’s reasonableness requirement. Under the facts of the case, we held that the search was reasonable.
The important point of Helphenstine is that he actually got a consideration of whether the search was reasonable.
In this case, the majority holds that under federal law, such a search need not be reasonable: “suspicionless” searches of parolee’s residence are appropriate, track-*417mg of the federal standard set forth in Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). Both Helphenstine and this case rely on a parolee’s consent that allows a warrantless search. But, in Helphenstine, the reasoning went on to a second step: considering whether the warrantless search was reasonable. Under Samson, such “reasonable suspicion is not required.” Thus it would appear that to this extent, Kentucky and federal precedent differ. Under Kentucky law, there is a greater degree of scrutiny than under federal law. Presumably, if the facts in Helphenstine warranted, an unreasonable warrantless search would be suppressed.
Yet in this case, because the Appellant raised only his Fourth Amendment rights, and did not specifically mention the Kentucky Constitution, we have adopted the federal rule and held that reasonable suspicion is not required in his case.
I find these two cases oxymoronic. Either we should adopt the Samson reasoning as applying to all Kentucky cases similarly situated, or we should recognize that Kentucky law provides a level of review beyond that allowed in federal court. Because I believe the Kentucky view is more appropriate, I concurred in Helphenstine and dissent in this case. A court is not constrained to consider only the law argued by a party when other law is applicable. Doing so results in the disparate analysis in these two cases.