United States v. Ronald Sharp

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0162p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

┐
UNITED STATES OF AMERICA,
│
Plaintiff-Appellee, │
> No. 21-3828
│
v. │
│
RONALD SHARP, │
Defendant-Appellant. │
┘

Appeal from the United States District Court for the Northern District of Ohio at Cleveland.
No. 1:20-cr-00029-1—Pamela A. Barker, District Judge.

Decided and Filed: July 22, 2022

Before: BATCHELDER, CLAY, and LARSEN, Circuit Judges.
_________________

COUNSEL

ON BRIEF: Catherine Adinaro Shusky, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Cleveland, Ohio, for Appellant. Matthew B. Kall, UNITED STATES ATTORNEY’S OFFICE,
Cleveland, Ohio, for Appellee.

LARSEN, J., delivered the opinion of the court in which CLAY, J., joined.
BATCHELDER, J. (pp. 11–15), delivered a separate opinion concurring in the judgment only.
_________________

OPINION
_________________

LARSEN, Circuit Judge. Ronald Sharp’s parole officer found a gun while searching
Sharp’s home. After the district court denied his motion to suppress, a jury convicted Sharp of
possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). Sharp appeals the denial of
his suppression motion. We AFFIRM.
 No. 21-3828 United States v. Sharp Page 2

I.

After serving a decade in state prison for gross sexual imposition and kidnapping, Sharp
was released on a five-year term of parole in 2015. Sharp’s parole conditions required him to
refrain from unsupervised contact with minors; obtain his parole officer’s approval of any adult
who might supervise his contact with minors; and submit to “warrantless search[es]” of his
person and property “at any time.” Under Ohio law, a parole officer may search a parolee
without a warrant if he has “reasonable grounds” to suspect that the parolee has violated the law
or a parole condition. Ohio Rev. Code § 2967.131(C).

On September 24, 2019, a woman complained to local police that, ten days earlier, Sharp
had sexually assaulted her at his house while her two children slept in a nearby room. She also
stated that Sharp had been assisting her and her children with transportation during the week
prior to the assault. The investigating detective forwarded this information to Sharp’s parole
officer, Campbell Bailey. After reviewing the police report and witness statements, Bailey
concluded that Sharp had violated his parole.

On October 4, nearly three weeks after the alleged assault, Bailey arrested Sharp at his
worksite. Bailey and other officers transported Sharp back to his home, where they conducted a
warrantless search for evidence of a parole violation, including signs that minors had been in
Sharp’s home without authorization. During the search Bailey found a loaded firearm.

A federal grand jury indicted Sharp for possessing a firearm as a felon. Sharp moved to
suppress the gun, arguing that Bailey lacked reasonable suspicion for the search. The district
court denied the motion, concluding that the search was justified both because it satisfied the
special-needs exception to the warrant requirement and because the search was reasonable under
the totality of the circumstances. A jury found Sharp guilty, and the district court sentenced him
to 27 months’ imprisonment. Sharp appeals the denial of his suppression motion.
 No. 21-3828 United States v. Sharp Page 3

II.

“In reviewing the denial of a motion to suppress, we review legal questions de novo and
the district court’s factual findings for clear error.” United States v. Cooper, 24 F.4th 1086,
1090–91 (6th Cir. 2022). We take the evidence in a light most favorable to the government.
United States v. Abdalla, 972 F.3d 838, 844 (6th Cir. 2020).

A.

“The touchstone of the Fourth Amendment is reasonableness . . . .” United States v.
Knights, 534 U.S. 112, 118 (2001). A warrantless search of an individual under criminal
supervision, including a parolee, is reasonable under the Fourth Amendment if it satisfies either
of “two distinct doctrinal frameworks.” United States v. Herndon, 501 F.3d 683, 687–88 (6th
Cir. 2007).

First, under the “special needs” test set out in Griffin v. Wisconsin, a parolee search is
reasonable if it is conducted in accordance with a constitutional state law authorizing warrantless
searches. 483 U.S. 868, 880 (1987); see United States v. Doxey, 833 F.3d 692, 703–04 (6th Cir.
2016). We have already held that Ohio’s parolee search statute, Ohio Rev. Code § 2967.131(C),
passes constitutional muster. United States v. Loney, 331 F.3d 516, 521 (6th Cir. 2003). So, the
only question under the “special needs” framework is whether Bailey’s search complied with
§ 2967.131(C). See United States v. Payne, 181 F.3d 781, 787–88 (6th Cir. 1999). Although the
parties dispute the precise requirements of that statute, they agree that the search passes muster if
Bailey reasonably suspected that he would find evidence of the presence of minors at Sharp’s
house.

Alternatively, a parolee or probationer search may be deemed reasonable by examining
the “totality of the circumstances.” Samson v. California, 547 U.S. 843, 848 (2006); Knights,
534 U.S. at 118. Relevant factors include: (1) a person’s position on the “continuum” of
criminal punishments, Samson, 547 U.S. at 850–52 (quoting Knights, 534 U.S. at 119); (2) the
terms of the search condition communicated to the person, id. at 852; and (3) the State’s interest
in supervision, id. at 853–54. The parties recognize that Sharp’s status as a parolee “severely
diminished” his expectations of privacy, id. at 852, and that Ohio has a significant interest in
 No. 21-3828 United States v. Sharp Page 4

supervising parolees like Sharp. The parties also agree that Sharp’s search condition authorized
searches based on no more than reasonable suspicion.1 And, as under the special-needs
framework, the parties agree that Bailey’s search was reasonable under the totality of the
circumstances if it was supported by reasonable suspicion.

B.

The search here was supported by reasonable suspicion and therefore passes the tests set
forth both in Griffin and Knights–Samson. Reasonable suspicion exists if, based on the totality
of the circumstances, the officer’s suspicion has “a particularized and objective basis.” United
States v. Cortez, 449 U.S. 411, 417 (1981). This standard is “considerably” lower than “a
preponderance of the evidence,” and is “obviously less demanding” than probable cause. United
States v. Sokolow, 490 U.S. 1, 7 (1989).

Sharp does not contest the reliability of the sexual-assault victim’s report, including her
allegation that children had recently been in Sharp’s home. Rather, his protests are two-
fold: Sharp first contends that the victim’s statement did not indicate that evidence of the
presence of minors would be found at Sharp’s home. But Bailey testified that he would typically
find such evidence—clothing, toys, and the like—in the homes of parolees suspected of similar
violations. Bailey permissibly relied on that experience in suspecting that he would find
evidence in Sharp’s home. Cortez, 449 U.S. at 418.

Sharp next argues that Bailey’s suspicion was stale when he searched the house nearly
three weeks after the alleged contact. We disagree. Four factors inform our analysis. United
States v. Pope, 852 F. App’x 945, 951–52 (6th Cir. 2021). First, we consider whether the
suspected offense (or parole violation) was discrete or continuous. Id. at 951. This factor
weighs in Sharp’s favor because his alleged contact with minors, at least on the facts known to
Bailey, was an isolated occurrence. But the remaining factors weigh strongly against him.

1
Bailey testified that he reviewed with Sharp the standard and special conditions of his release. The
conditions form states that Sharp agreed to “the warrantless search” of his person and property by certain authorized
personnel “at any time.” It makes no mention of the statutory “reasonable grounds” standard for parolee searches,
Ohio Rev. Code § 2967.131(C), but Bailey testified that he understood that he needed reasonable suspicion to search
a parolee’s house.
 No. 21-3828 United States v. Sharp Page 5

Our second consideration is whether the suspect was “nomadic or entrenched.” Id. at 952
(quoting United States v. Frechette, 583 F.3d 374, 378 (6th Cir. 2009)). Sharp, who lived in the
same house between the sexual-assault complaint and Bailey’s search, was clearly the latter.
Indeed, he could not have moved without informing Bailey. Third, the evidence at issue—signs
of children’s presence, like clothes, toys, or a toothbrush—was not “easily consumable or
perishable.” Id.; see also Payne, 181 F.3d at 790 (deeming tip stale in part because “[d]rugs are
not the types of objects that are likely to be kept”). And finally, because Bailey searched Sharp’s
home, which our cases consider a “secure operational base” for criminal activity, the fourth
factor cuts against him too. Pope, 852 F. App’x at 952 (quoting United States v. Elbe, 774 F.3d
885, 890 (6th Cir. 2014)). In light of these factors and a concededly reliable report of Sharp’s
recent unapproved contact with minors, we agree with the district court that Bailey reasonably
suspected that he would find evidence of a parole violation at Sharp’s home. Accordingly, the
search was constitutional under the Fourth Amendment and the district court was right to deny
Sharp’s motion to suppress.

C.

On appeal, the government offers an alternative, and brand-new, argument supporting the
search: The officers didn’t need reasonable suspicion at all. The government points out that
Samson authorizes suspicionless searches of parolees “if the release conditions permit[] it.”
Appellee Br. at 19. And that’s the case here, the government says, because Sharp’s search
conditions permitted “warrantless search[es]” of his residence “at any time.” Id. at 22.

There is no reason to entertain this forfeited argument here. Even if Sharp’s search
condition required reasonable suspicion, as the parties assumed below, that standard was easily
satisfied. We note, however, that the government’s Samson analogy is not obvious. Unlike
Sharp’s, the search condition in Samson explicitly authorized searches “at any time . . . with or
without cause,” 547 U.S. at 846 (emphasis added). But we need not resolve the meaning of
Sharp’s search condition today.

The concurring opinion doesn’t resolve it either. As the concurrence sees it, Samson is
unconcerned with what Sharp’s search conditions required; instead, Samson created a bright-line
 No. 21-3828 United States v. Sharp Page 6

rule that parolees, like the cells of incarcerated prisoners, may always be searched without
suspicion. Concurrence Op. at 11; see Hudson v. Palmer, 468 U.S. 517, 525–26 (1984). That
reading of Samson extends well beyond what the government, or any court, has ever suggested.
That reading is also unnecessary; the concurrence does not dispute our conclusion that
reasonable suspicion supported this search. And, most importantly, that reading is mistaken.

The question in Samson was whether a suspicionless search of a parolee, conducted
pursuant to a California statute and a parole condition authorizing such searches, violated the
Fourth Amendment. 547 U.S. at 846. Deploying the same totality-of-the-circumstances test
used in Knights, the Court considered: the fact that parole is more akin to imprisonment than
probation, id. at 850; the “extent and reach” of California’s general parole conditions, id. at 852;
“the plain terms of [Samson’s] parole search condition,” which expressly authorized
suspicionless searches, id.; the fact that Samson’s parole condition was “clearly expressed” to
him, id.; California’s substantial interest in supervising a vast population of parolees with a high
recidivism rate, id. at 853–84; and California’s requirement that parolee searches not be
“arbitrary, capricious, or harassing,” id. at 856. Balancing these factors, the Court concluded that
the suspicionless search of Samson was reasonable under the circumstances. Id. at 852.

Samson quite plainly directs us to apply a “totality of the circumstances” test that
considers the terms of the search condition, along with the defendant’s status and the
government’s interests. Yet, the concurrence would reduce Samson’s multi-factor balancing test
to a single element—whether the defendant is a parolee. Concurrence Op. at 11. That not only
flies in the face of the Court’s mode of analysis, but also ignores its repeated, express reliance on
the parolee’s search condition and background state law (all emphases added):

• “We granted certiorari to decide whether a suspicionless search, conducted under
the authority of this statute, violates the Constitution.” Samson, 547 U.S. at 846.
• “We granted certiorari to answer a variation of the question this Court left open in
[Knights]—whether a condition of release can so diminish or eliminate a released
prisoner’s reasonable expectation of privacy that a suspicionless search by a law
enforcement officer would not offend the Fourth Amendment.” Id. at 847.
• “Because the search at issue in Knights was predicated on both the probation
search condition and reasonable suspicion, we did not reach the question whether
 No. 21-3828 United States v. Sharp Page 7

the search would have been reasonable under the Fourth Amendment had it been
solely predicated upon the condition of probation.” Id. at 850.
• “[A]s we found ‘salient’ in Knights . . . the parole search condition under
California law . . . was ‘clearly expressed’ to [Samson]. He signed an order
submitting to the condition and thus was ‘unambiguously’ aware of it.” Id. at 852
(quoting Knights, 534 U.S. at 119) (citation omitted).
• “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. at 852 (citation and
quotation marks omitted).

Of course, the last line of the Samson opinion “conclude[d] that the Fourth Amendment does not
prohibit a police officer from conducting a suspicionless search of a parolee.” Id. at 857. But it
preceded that statement with the analysis above, which considered both Samson’s “status as a
parolee” and “the plain terms of the parole search condition” as part of its “totality of the
circumstances” analysis. Id. at 852. In concluding that the parole status alone is conclusive, the
concurrence relegates the Court’s many statements about the search condition to the status of
careless dictum. We cannot accept such a dubious reading.

No other court has read Samson as the concurrence does. Each time we have upheld a
suspicionless search under Samson, the defendant was, like Samson himself, subject to a release
condition that authorized such searches, and we considered that fact in our analysis. See United
States v. Massengill, 769 F. App’x 342, 343, 346 (6th Cir. 2019) (condition permitted search “at
any time without reasonable suspicion”); United States v. Brown, 832 F. App’x 397, 400–01 (6th
Cir. 2020) (same); United States v. Tessier, 814 F.3d 432, 433 (6th Cir. 2016) (adopting district
court opinion that construed search condition to permit searches without reasonable suspicion);
United States v. Smith, 526 F.3d 306, 309–11 (6th Cir. 2008) (defendant on community release
was told that “his home was his prison” and he could be searched “as if he were still in the
facility”). And our sister circuits have specifically rejected the notion that Samson authorizes
suspicionless parolee searches regardless of the search condition or background state law.
United States v. Henley, 941 F.3d 646, 650–51 (3d Cir. 2019) (Hardiman, J.); United States v.
Freeman, 479 F.3d 743, 747–48 (10th Cir. 2007) (McConnell, J.).
 No. 21-3828 United States v. Sharp Page 8

The concurrence seems to argue that, despite its explicit language, Samson cannot really
have meant for us to consider the search condition because that would mean that Fourth
Amendment rights could vary state-by-state (or even person-by-person). Concurrence Op. at 12–
14. We agree that is an unusual state of affairs. The Fourth Amendment’s protections generally
apply the same nationwide. See Virginia v. Moore, 553 U.S. 164, 176 (2008). Still, the Supreme
Court’s jurisprudence has not always comported with that principle. For example, officers may
conduct suspicionless searches of impounded vehicles under the inventory-search exception to
the warrant requirement, but only if the relevant jurisdiction has a policy regulating such
searches. Florida v. Wells, 495 U.S. 1, 5 (1990); United States v. Alexander, 954 F.3d 910, 915–
16 (6th Cir. 2020). In that way, a state or locality, by having no policy, can “grant [local drivers]
a Fourth Amendment right (to require . . . individualized suspicion)” that drivers in other
jurisdictions “do not have.” Concurrence Op. at 12. Similarly, the Court has repeatedly
concluded that state-created policies may diminish an individual’s expectation of privacy; it
follows that people subject to those policies are susceptible to searches that might be
constitutionally unacceptable in other regimes. See, e.g., Bd. of Educ. v. Earls, 536 U.S. 822,
832 (2002) (The “regulation of extracurricular activities” by state and local authorities “further
diminishes the expectation of privacy among schoolchildren” who participate, making
suspicionless drug-testing more reasonable.); O’Connor v. Ortega, 480 U.S. 709, 717 (1987)
(plurality opinion) (“Public employees’ expectations of privacy in their offices, desks, and file
cabinets . . . may be reduced by virtue of actual office practices and procedures, or by legitimate
regulation.”); Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 627 (1989) (“[T]he expectations
of privacy of covered employees are diminished by reason of their participation in an industry
that is regulated pervasively to ensure safety . . . .”). Thus, officers in a State with a regulatory
scheme for inspections of a “closely regulated” industry may be able to search commercial
premises without a warrant, while officers in a state without such a scheme would not. New York
v. Burger, 482 U.S. 691, 699–704 (1987).

We acknowledge that there is something counterintuitive about Fourth Amendment
doctrine that looks to “the rules for search and seizure set by government actors as the index of
reasonableness.” Moore, 553 U.S. at 169. The concurrence notes that such a doctrine allows
one state to confer on its citizens broader federal constitutional protection than is enjoyed by
 No. 21-3828 United States v. Sharp Page 9

citizens of other states. Others object that such a doctrine allows the government to reduce its
citizens’ rights simply by notifying them that they should not expect privacy. See Anthony G.
Amsterdam, Perspectives on the Fourth Amendment, 58 Mn. L. Rev. 349, 384 (1974) (famously
quipping that Fourth Amendment theories based on “expectations of privacy” could allow the
government to surveil the whole citizenry “merely by announcing” its plan “half-hourly on
television”). But regardless of whether these critiques are sound, the Court’s decisions reveal
that the Fourth Amendment uniformity principle has not always been applied uniformly.
Happily, the Supreme Court has told us what to do in a case like this. We are to leave to that
Court the task of ironing out any doctrinal tensions we might perceive and “follow the case
which directly controls.” Agostini v. Felton, 521 U.S. 203, 237 (1997). Here, that case is
Samson, which plainly instructs us to factor a parolee’s search conditions into the reasonableness
balance.

D.

We’d be remiss not to respond briefly to the concurrence’s claim that the government
may no longer justify a parolee search under Griffin. Concurrence Op. at 11. Apart from
observing that Sharp is a parolee and not a probationer, the concurrence offers no reason for
concluding that Griffin cannot apply here. There is no such reason. “Griffin remains a legitimate
basis for justifying such a search.” Herndon, 501 F.3d at 688. Although initially applied to a
probationer, Griffin’s “special needs” framework applies a fortiori to parolees, as our cases have
recognized. See Doxey, 833 F.3d at 702–04; United States v. Payne, 588 F. App’x 427, 431 (6th
Cir. 2014). Nothing in Knights or Samson suggests that the Court closed the door on the
government’s ability to justify searches using the Griffin approach; quite the contrary, both were
clear that the totality-of-the-circumstances approach is an alternative to, not a replacement for,
the special-needs test. See Samson, 547 U.S. at 852 n.3; Knights, 534 U.S. at 117–18, 122. If
either is satisfied, the search is constitutional.2 Payne, 588 F. App’x at 431. Other courts agree.

2
We recognize that the Knights–Samson test may often be easier to satisfy than Griffin. Some courts,
however, have deployed Griffin to uphold warrantless, suspicionless probationer searches in unique circumstances.
See, e.g., United States v. LeBlanc, 490 F.3d 361, 363–64 (5th Cir. 2007) (holding that seizure of contraband in plain
view during routine home visit by probation officer satisfied Griffin’s special-needs test despite officer’s lack of
reasonable suspicion). We take no position on such decisions but simply note that Griffin’s test still has a role to
play in Fourth Amendment analysis.
 No. 21-3828 United States v. Sharp Page 10

See, e.g., United States v. Braggs, 5 F.4th 183, 187–88 (2d Cir. 2021) (reading Griffin and
Knights–Samson as alternatives); United States v. Price, 28 F.4th 739, 751 (7th Cir. 2022)
(same); Freeman, 479 F.3d at 746–48 (same).

Contrary to the concurrence’s suggestion, Concurrence Op. at 12, our decision in Smith
does not take Griffin off the table as a way to excuse warrantless parolee searches. Smith
employed the totality-of-the-circumstances test in concluding that a suspicionless search of a
“prisoner” on home confinement satisfied the Fourth Amendment. 526 U.S. at 308. In the
process, we rejected Smith’s argument that either Griffin or Knights set reasonable suspicion as
the constitutional floor for all warrantless searches. Samson, we noted, rejected that proposition
“(at least in the context of a parolee search)” by answering in the affirmative “a question it had
reserved in Knights: ‘whether the search would have been reasonable under the Fourth
Amendment had it been solely predicated’ on the inmate’s condition of release, not on
reasonable suspicion.” Id. at 310. Considering the totality of Smith’s circumstances, including a
search condition permitting officers to “search his living quarters as freely as they could search
his prison cell,” we concluded that Smith’s privacy expectations were diminished below even
those of the parolee in Samson, so the result followed a fortiori from that case. Id. at 308, 310.
While Smith upheld the search under Samson, nothing in the opinion foreclosed applying
Griffin’s special-needs doctrine to parolee searches. A warrantless parolee search that survives
under either Knights–Samson or Griffin “need not pass muster under the other.” Payne, 588 F.
App’x at 431 & n.3.

***

The search of Sharp’s home was supported by reasonable suspicion. We AFFIRM.
 No. 21-3828 United States v. Sharp Page 11

____________________________________________

CONCURRING IN THE JUDGMENT ONLY
____________________________________________

ALICE M. BATCHELDER, Circuit Judge, concurring in the judgment. Sharp is a
parolee, not a probationer. Because Sharp is a parolee, the controlling law is Samson v.
California, 547 U.S. 843 (2006), not Griffin v. Wisconsin, 483 U.S. 868 (1987), or United States
v. Knights, 534 U.S. 112 (2001). Consequently, I cannot join the lead opinion’s analysis.

I.

The Fourth Amendment does not require a parole officer to have reasonable suspicion—
or any individualized suspicion—to justify a search of a parolee’s residence. United States v.
Massengill, 769 F. App’x 342, 346 (6th Cir. 2019) (relying on Samson, 547 U.S. at 857 (“[T]he
Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a
parolee.”)); United States v. Smith, 526 F.3d 306, 310 (6th Cir. 2008); see also United States v.
Herndon, 501 F.3d 683, 688 n.2 (6th Cir. 2007).

“[A] particular Fourth Amendment reasonableness analysis applies to parolee searches,”
one that does not require “an examination of individualized suspicion.” Massengill, 769 F.
App’x at 346 (quotation marks omitted) (relying on Samson, 547 U.S. at 855 n.4). It is instead
“a totality of the circumstances test that requires assessing, on the one hand, the degree to which
the search intrudes upon an individual’s privacy and, on the other, the degree to which it is
needed for the promotion of legitimate governmental interests.” Id. (editorial marks, quotation
marks, and citations omitted) (relying on Samson, 547 U.S. at 848).

Sharp is a parolee with a diminished expectation of privacy. Ohio has a legitimate and
significant interest in supervising Sharp’s parole status. Therefore, the parolee search of his
residence was reasonable, regardless of any (or lack of any) individualized suspicion.

II.

Sharp contends that his probation officer did not satisfy the reasonable-suspicion standard
of Griffin or Knights, so the search violated the Fourth Amendment. That is the law for
 No. 21-3828 United States v. Sharp Page 12

probationers, not parolees. See Smith, 526 F.3d at 310 (rejecting the “reasonable suspicion”
standard of Griffin and Knights for Fourth Amendment analysis of parolee searches).

In substance, Sharp’s claim is that a search of a parolee violates the Fourth Amendment
unless the parole officer can show some articulable, reasonable, individualized suspicion that
justifies the search. At a minimum, the Fourth Amendment right would be a parolee’s right to
privacy—free from search—unless the parole officer has some individualized suspicion to justify
the search. But parolees have no such right under the Fourth Amendment.

In Samson, the Supreme Court considered whether a California law that permits
suspicionless searches of parolees violates the Fourth Amendment. Otherwise stated: does the
Fourth Amendment require that a police officer must have individualized suspicion to search a
parolee? Under either construction of the question, the clear answer was no. The California law
permitting suspicionless searches of its parolees was constitutional because parolees do not have
a Fourth Amendment right to be free from suspicionless searches. Sampson, 547 U.S. at 857. As
a convenient shorthand, I will refer to this as “a parolee’s right to require individualized
suspicion,” meaning, of course, a parolee’s putative right to privacy—free from search—unless
the parole or police officer can show some individualized suspicion to justify the search.

In United States v. Freeman, 479 F.3d 743, 747–48 (10th Cir. 2007), the Tenth Circuit
read Sampson to mean that: “Parolee searches are therefore an example of the rare instance in
which the contours of a federal constitutional right are determined, in part, by the content of state
law.” I cannot agree with that proposition. I cannot agree that state laws—i.e., state legislatures,
state courts, or local agencies—determine Fourth Amendment rights.

If that were correct, then the Ohio legislature, via O.R.C. § 2967.131(c), has granted Ohio
parolees such as Sharp a Fourth Amendment right (to require reasonable, individualized
suspicion) that California parolees do not have. Suppose the Ohio legislature were to repeal this
statute and enact a replacement that replicates the California statute word for word. The new
statute would deny Ohio parolees their existing (apparently state-created) Fourth Amendment
right to require individualized, reasonable suspicion—and violate the Constitution because the
Constitution does not permit states to infringe on citizen’s established constitutional rights. This
 No. 21-3828 United States v. Sharp Page 13

identical statute would be constitutional in California, based on Sampson, but unconstitutional in
Ohio.

The same could be said of California. Suppose the California legislature were to repeal
its statute and enact a replacement that replicates the Ohio statute word for word. Under the
Tenth Circuit’s proposition, the California legislature would be creating for its state’s parolees a
new Fourth Amendment right to require reasonable suspicion, effectively overruling the
Supreme Court’s Fourth Amendment holding in Sampson. I cannot agree that state legislators,
state courts, or local administrators can create, diminish, or eliminate Fourth Amendment rights.

In United States v. Henley, 941 F.3d 646, 650 (3d Cir. 2019), the government argued that
“the Fourth Amendment requires no suspicion to justify a warrantless parole search, even if
Pennsylvania law would.” Id. at 650. The Third Circuit disagreed and, like the Tenth Circuit in
Freeman, read Sampson as holding that state law (or state regulation or local policy) determines
a parolee’s Fourth Amendment rights: i.e., because California law allows a parolee search
without individualized suspicion, California parolees had no Fourth Amendment right to require
individualized suspicion; but, because Pennsylvania law requires reasonable suspicion for a
search, Pennsylvania parolees do have a Fourth Amendment right to require reasonable
suspicion.

From that mistaken premise, Henley concludes that the Fourth Amendment requires
reasonable suspicion for a parolee search unless “a statute []or a condition of parole provides that
[the parolee] was subject to a search without suspicion.” Id. at 651. Along the way, Henley
appears to have relied on a misunderstanding of a paragraph in Samson, which says:

Petitioner [Sampson] observes that the majority of States and the Federal
Government have been able to further similar interests in reducing recidivism and
promoting reintegration, despite having systems that permit parolee searches
based upon some level of suspicion. Thus, petitioner contends, California’s
system is constitutionally defective by comparison. Petitioner’s reliance on the
practices of jurisdictions other than California, however, is misplaced. That some
States and the Federal Government require a level of individualized suspicion is
of little relevance to our determination whether California’s supervisory system is
drawn to meet its needs and is reasonable, taking into account a parolee’s
substantially diminished expectation of privacy.
 No. 21-3828 United States v. Sharp Page 14

Sampson, 547 U.S. at 855 (footnote omitted). It appears that the Third Circuit in Henley read
this paragraph to mean that Sampson allowed California to eliminate its parolees’ Fourth
Amendment right to individualized suspicion, but because California’s action has no bearing on
Fourth Amendment rights in other jurisdictions, Sampson does not deprive other parolees (in
general or elsewhere) of their existing Fourth Amendment right to require reasonable suspicion.

That is backwards. That paragraph in Sampson means that, regardless of any additional
protections (above and beyond the Fourth Amendment’s requirements) that other jurisdictions
might afford their parolees, California’s omission of such additional protections does not violate
the Fourth Amendment. That is because the Fourth Amendment on its own does not require a
showing of individualized suspicion for parolee searches. See also Sampson, 547 U.S. at 855 n.4
(“The touchstone of the Fourth Amendment is reasonableness, not individualized suspicion.
Thus, . . . we have also recognized that the Fourth Amendment imposes no irreducible
requirement of such [individualized] suspicion.” (quotation marks and citations omitted)).

Therefore, to the extent that Sharp claims that the Fourth Amendment requires a parole
officer to show some articulable, reasonable, individualized suspicion to justify the search, that
claim fails because parolees have no such “irreducible” right under the Fourth Amendment.

III.

To be fair, Sharp does not really argue that the search was unreasonable under the Fourth
Amendment; he argues that the search did not comply with Ohio law or his parole conditions:

To support a warrantless search under Ohio Revised Code § 2967.131(C),
there must be ‘reasonable grounds’ to believe evidence of the violation will be
found in [the parolee’s] home. See Ohio v. Karns, 2011-Ohio-6109, ¶ 33, 196
Ohio App. 3d 731, 737–38; Ohio v. Howell, No. 97CA824, 1998 WL 807800, at
*5 (Ohio Ct. App. Nov. 17, 1998). The facts in this case do not satisfy the
‘reasonable grounds’ requirement of O.R.C. § 2967.131(C).

Sharp’s Appellant Br. at 18 (paragraph break omitted).

But “in federal court, [the exclusionary rule] only requires the court to exclude evidence
seized in violation of the Federal Constitution.” United States v. Wright, 16 F.3d 1429, 1434
(6th Cir. 1994). “[S]tate law has no independent significance in determining whether the Fourth
 No. 21-3828 United States v. Sharp Page 15

Amendment has been violated.” United States v. Henry, 429 F.3d 603, 607 n.3 (6th Cir. 2005).
“While the states are free to impose rules for searches and seizures that are more restrictive than
the Fourth Amendment, those rules will not be enforced in a federal criminal proceeding.”
United States v. Beals, 698 F.3d 248, 263 (6th Cir. 2012).

Ohio law is irrelevant to Sharp’s motion in federal court. I believe that it is likewise
irrelevant to our determination of Sharp’s Fourth Amendment rights under Sampson.

IV.

For these reasons, I concur in the lead opinion’s judgment but not its analysis.