### IN THE SUPRE ME C OURT OF TE NNE SS EE AT JACKSON Apri l 8 , 20 09 Ses si on

STATE OF TENNESS EE V


### . CHARLOT TE YVONNE T URNER

Appeal by Per m ission from the Court of Crim inal Ap peals

Circuit Court

for Ob ion Coun ty No. C07-192 William B. Acre e, Jr., Judge

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

We g rante d permiss i o n t o ap p eal in this case to deter mine whether the police violated the constitutional rig hts of the defe ndant, a parole e, when they sear ched her residenc e without a war rant but pursuant to a condition of her parole

. We adopt the rea soning of the Supreme Court in Samson

v. California, 547 U.S. 843 (2006), and hold that parole es who are subject t o a warra ntless sear ch condition may be sear ched without rea s o n ab l e or individualiz ed suspicion. The office rs who

sear ched the defe ndant’s residence knew about her parole status, wer e awa re of the war

rantless

sear ch condition of her parole
, and did not conduct the sear ch in an unrea s o n ab l e m anner. Acc ording ly
, the trial court err ed in suppressing evidenc e found during the sear ch of the defe ndant’s residenc e. The judgme nt of the Court of Criminal Appea ls is reve rsed, and this matter is rema nded to the trial court f

or fur ther proc eeding s consistent with this opi nion.

Tenn. R. App . P . 11; Judgme nt of th e Court of Crim inal

Appeals Rever sed; Rem anded

C O R N E L I A A. C L A R K , J
., delivere d the opinion of the court, in which J A N I C E M. H O L D E R , C.J
., G A R Y R. W A D E , and W I L L I A M C. K O C H , J R ., J J
., joined. S H A R O N G. L E E , J ., filed a dissenting opinion.

Robert E. Cooper, J r., Attorney Gene ral & Reporter ; Mic hael E. Moore, Solicitor Ge nera l; Rac hel E. Wil lis, Asst

. At t orney Gene ral; Thomas A. Thomas, District Attorney Gene ral; and J ames T. Cannon, Asst. District Attorney Gene ral; for

the appe llant, State of Tenne ssee.

J ames T. Powell, Union City , Tenne ssee, f or the a ppellee, Cha

rlotte Turne r.

OP INION

F actual and Proc edural Backgroun d

The defe ndant, Charlotte Yvonne Turner (“D efe ndant”)
, was convicted in Kentucky in 2002 of felony possession of controlled substance I and wanton endan ger m en t in the first deg ree

. She

rec eived a seven- y ear sentenc e b ut was parole d by the Commonwealth of Kentucky in Fe bruar y 2005. Def

endant was subseque n t l y permitted t o move her residenc y and, in September 2005, herparole supervision was transfe rre d to Tenne ss ee , wh er e she came to reside in Obion County

. I n

conjunction with her parole in Tenne ssee, Def endant signe d a standard document in September 2005 in which, among other things, she “ag ree [d] to a sear ch, without a war rant, of [her] person, vehicle,
proper ty , or plac e of residenc e by any Probation/Parole Officer or law e nforc ement, at a

ny time.” The conditions of Defenda nt’s parole in both Kentucky and Te nnessee also prohibited possession of a wea pon, see also Tenn. Code Ann. § 39-17-1307( b)(1) (B ) (2006), and requi re d De fendant to obey fede ral, state, a

nd local laws.

Def endant wa s indicted in J une 2007 in Obion County for being a felon in possession of a handg un. Def

endant filed a mot ion to suppress which the t rial co u rt g rante d afte r a hear ing. The testimony adduce d at the hea

ring includes the following

.

I n April 2007, Offic er Shawn Palmer worke d for the Union City Police Depa rtment and was assig ned to the 27th J udicial District Drug Task For ce. Officer P al m er testified that he knew Def endant persona lly and knew that she was “out on parole in Kentucky for traff icking a controlled substanc e , c r a c k c o c a in e , a nd her parole [had] been transfe rre d to a parole office r here in Tenne ssee.” He also knew she had previously been “convic ted of dealing drug s here in Obion County .” Offic er Palmer stated that he “had been g iven information that [Defenda nt] was still involved in selling c r ack

coca ine.” Thus, on April 3, when Offic er Palmer saw Def endant driving without wea ring a seatbe lt, he pull ed her over. I n respons e t o a question by the prosecutor, Officer Palmer admit ted t hat t he 1 stop was “pre text ual” in the sense that “sometimes [he] write[s] for a seatbe lt; sometimes we don’t.”

During the stop, Def

enda n t i d en t ified her passeng er as her friend, Torrie Smit h. Offic er Palmer and Offic er O’De ll ran license and war rant chec ks on both Def

endant and Ms. Smit h. Ba sed

on information known to Offic er O’De ll an d l ea rn ed from the dispatcher
, Ms. Smit h was place d under a rre st for cr iminal impersonation and was f ound to have outstanding war rants for probation
or par ole violation and transpor ting mar ijuana.

Offic er Palmer contac ted Def endant’ s parole office r by phone to confirm that Def endant was subject to sear ches. Upon rec eiving verba l confirma tion, he conducte d a pat-down sear ch of Def endant which reve aled $975 in Def endant’ s pocket. Offic er Palmer testified : “W i t h the information that we wer e g iven that she’d been involved in dealing drug s ag ain; the passeng er had
two war rants out for drug arr ests; a nd the fac t tha t [Def

endant] has no form of income whatsoeve r and I believe a three time convicted [si c] for drug convictions, we seized the money .” The office rs then t old Defe ndant that they wanted to se arc h her house . Offic er Palmer testified that Def

endant “said she didn’t want to and we told her, fine, we’ll just call y our parole officer [ and] tell her that
y ou’re not cooper ating .” Acc ording to Offic er Palmer, Def endant then called her parole office r and confirme d that the conditions of her parole included wa

rra ntless searc hes.

A d r i v e r f

a i l i n g t o w e a r a s a f

e t y b e l t w h i l e d r i v i n g a c a r o n a T e n n e s s e e h i g h w a y m a y b e p r o s e c u t e d f o r a C l a s s 1
C m i s d e m e a n o r

. S e e T e n n

. C o d e A n n

. § 5 5

- 9

- 6 0 3 ( a )
, ( d ) ( 1 ) ( 2 0 0 8 )

.
2The office rs ag ree d to meet Def endant at her residenc e. They drove there and waited in the front y ard f

or De fenda

nt to arrive. O ffice r Palmer state d that they waited “a good twenty minutes

or so.” Def

endant arr ived in her car and, acc ording to Offic er Palmer, “wa lked up and said, started
cry ing and said, ‘I g ot a g un in the house.’” Def endant then unlocked her door and the office rs beg an their sea rch. The y

rec overe d a loade d .38 caliber handg un.

On cross-e x amination, defe nse counsel established that Def endant’ s parole documents from Kentucky stated that she was on parole for possession of a controlled substance, not “tra fficking .” 2 Offic er Palme r ad mitted that he did not ultimately issue a citation to Def endant for a seatbe lt violation. He also admitted that, upon sear ching Def endant, he did not find any drug s on her person. He ne verthe less decide d to searc h Def endant’ s house base d on “[t] he conditions of her parole and the ruling s of the United States Supreme Court.”

Offic er Palmer admitted that Def endant’ s seatbe lt violation was a prete x t for his pulling her

over and that his r eal conce rn was that he suspected “that she’d been selling drug s ag ain.” Offic er P al m er s t ated that his suspicion was based on information he had rec eived from one of h i s “informa nts.”

When asked if Def

endant had had an opportunity to ref use to g o to her house for the sear ch, Offic er Palmer testified, “I t o l d h er , I t old her if she didn’t want to g o, fine, I ’ll call the parole office r.” Offic er Palmer admitted that, at t he ti me he de termined to sea rch D efe ndant’s house, he did not have enoug h information to g et a sear ch war rant. Acc ording to Offic er Palmer, approximately one hour passed from the time he pulled Def endant over to the ti m e h e fi n i s h ed

sear ching her house

.

Def endant also testified. She stated that the fir st thing Off icer Palmer said to her when he pulled her over was to g et out of the car

. He did not say any thi n g ab o u t a seatbe lt violation. He started sear ching her when she g ot out of her car

. He also sear ched her car

. He indicated that he was looking for drug s; he did not find any on her person or in her car

. She offe red no resistanc e to these

sear ches.

After Offic er Palmer finished sear ching Def endant’ s car , he told her to drive to her house so he could sear ch her house. Acc ording to D efe ndant, “he told me if I didn’t g o to my house he was g onna call my PO or he was g onna take me to jail any way .” She stated that the time period betwee n Offic er Palmer pulling her over and finishing the sear ch of her house was about t wo h o u rs

. Def endant testified that Of

fi cer Palmer never asked to see her driver’ s license or her vehicle
reg istration, both of which she ha d with her.

T h e a c t u a l K e n t u c k y j u d g m e n t o r d e r s a r e n o t i n t h e r e c o r d

. S i m i l a r l y , a l t h o u g h t h e S t a t e f i l e d c e r t a i n n o t i c e s 2

r e f l e c t i n g t h r e e p r i o r T e n n e s s e e f e l o n y c o n v i c t i o n s f

o r t h e s a l e o f a c o n t r o l l e d s u b s t a n c e , t h e j u d g m e n t o r d e r s r e f l e c t i n g t h o s e c o n v i c t i o n s a r e a l s o n o t i n t h e r e c o r d

.
3On cross-e x amination, Def endant acknow ledg ed that, while being detained, she called and spoke with her pa

role off icer . Her parole office r rea d her the parole condition reg arding sear ches; she did not specific ally

tell Defe ndant whethe r or not she ha d to drive over to he r house at Offic er Palmer’s de mand.

After hear ing this testimony
, the trial court ruled from the bench and g rante d Def endant’ s motion to s uppress. The trial judg e stated that he was “convinc ed that there was no consent g iven in this case to sear ch the house, that the defe ndant felt she had no choice but to allow them into the house or that they

would have g one any

way or she would have bee n taken to jail.” The trial court continued: “T h e s ea rc h in this case in my opinion was permitted of the defe ndant, of her person, when she was stopped. I don’t see any thing unrea sonable in that under the exis ting law. Howeve r, to require the defendant to g o to another location wit h no basis whatsoeve r and detain her for one
t o t wo hours, the Court finds that constitutes an hara ssing, capr icious and arbitra ry sear ch.” T h e court spec ifically found no evide nce to support “ any ty pe of suspicion or r easona ble suspicion” in

connec tion with the sear ch of Def endant’ s home and conclude d that the sear ch violated the Four th Amendment. The Court of Criminal Appea ls affirme d the trial cour t’s ruling on the basis that the “applica tion o f the rea sonable parole condition by the police office rs, in this case , beca me

u n re as o nable as a result of this leng thy seizure of” Def endant, ref

err ing to the total time el ap s ed betwee n the initial tra ffic stop a nd the conc lusion of the sear ch of D efe ndant’s re sidence . State v. Turner
, No. W2007-01590-CCA-R3-CD, 2008 WL 1891445, at *5 (Tenn. Crim. App. Apr. 29, 2008).

We g rante d the State’s application for per mission t o appea l in or der to a ddress for the first time the rec ent Supreme Court case dealing with war rantless and suspicionless sear ches of parole es, Samson v. California, 547 U.S. 843 (2006).

STANDARD OF REVIEW

On appe al from a

ruling on a motion to suppress, we will uphold a trial c ourt’s finding s of fac t in a suppression hear ing unless the evidenc e preponde rate s otherwi s e. S t at e v. Odom, 928 S.W .2d 18, 23 (Tenn.1996)

. The preva iling party in the trial court “is entitled to the strong est leg itimate view o f t h e evidence adduce d at the suppression hear ing as well as all rea sonable and leg itimate infere nces that may be draw n from that evidenc e.” I d. The application of the law to the fac ts, howeve r, is a question of law that this Court revie ws de novo. State v. Wil liams, 185 S.W .3d 311, 315 (Tenn. 2006) ; State v. Year g an, 958 S.W.2d 626, 629 (Tenn. 1997).

ANALYSIS

I. The Fourt h Am endm ent

The Four th Amendment to the United States Constit ution provides that “[t] he ri gh t o f the people to be secure in their persons [and] houses .

. . aga i n s t u nreasonable sear ches and seizures, shall not be violated, and no war rants shall issue, but upon probable cause .” U.S. Const. amend. I V (empha sis a dded). Whether or not a pa rticular se arc h is “unrea sonable” and ther efor e in violation

4of t he Fourth Amendment “depe nds upon all of t he circumstance s surrounding the s ear ch .

. . and

the nature of t h e s ea rch

. . . itself.” United States v. Montoy a de Her nandez, 473 U.S. 531, 537 (1985). Upon taking all of the rele vant circ umstances into acc ount, “the permissibilit y of a particula r prac tice ‘is judge d by balanc ing its intrusion on the individual’s Four th Amendment interests ag ainst its promotion of leg itimate g overnme ntal interests.’” Skinner v. Ry

. L abor Ex ecutives’ Ass’n, 489 U.S. 602, 619 (1989) (quoting Delaw are v. Prouse, 440 U.S. 648, 654 (1979))

.

“The essenc e of the prohibition ag ainst unrea sonable sear ches and seizures under the Four th Amendment is to ‘saf

eg uard the privac y and security of i ndividua l s ag ainst arbitra ry invasions by
g o v er n m en t officia ls.’” I d. (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)) (quotation corr ecte d). Thus, the basic constitutional rule is that a war rantless sear ch or seizure is presumed unrea sonable, and any evidenc e discovere d as a result is subject to suppression. Coolidge

v. New Hampshire, 403 U.S. 443, 454-55 (1971); State v. Br idge s, 9 6 3 S

. W

. 2 d 487, 490 (Tenn.1997)

. This basic rule is subject to “a few specific ally established and well-de lineated exceptions[ ,] jealously and car efully draw n.” Coolidge, 403 U.S. at 455 (quoting Katz v. United States, 389 U.S. 347, 357 (1967), and J ones v. Un i t ed S t at es , 357 U.S. 493, 499 (1958))

. “The se exceptions include sear ches and seizures co n ducted incident to a lawful arr est, those y ielding
contra band in ‘plain vi ew,’ those in the ‘hot pursuit’ of a flee ing c riminal, those limit ed to a ‘stop and fr isk’ based on rea sonable suspicion of criminal activity
, those based on probable cause in the
prese nce of exigent circ umstances, 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. Ba rtram, 925 S.W .2d 227, 230, 230 n.2 (Tenn. 1996) ).

II. Warrantless Sear ches of Convicted Defendan ts Serving Sentences May Be Reasonable

The basic rule ag ainst war rantless sear ches is also relaxed if the person being sear ched has been convicted of a criminal offe nse and is serving a sentenc e. The Supreme Court has rec og nized that a criminal conviction subjects the offe nd er t o “a continuum of possible punishments rang ing from solitary confine ment in a maxi mum-secur ity fac ility to a few hours of mandatory community service .” Griff

in v. Wi sconsin, 483 U.S. 868, 874 (1987). An offe nder’ s place on this c ontinuum alters what is “re asonable ” for purposes of the Four th Amendment. For instance, incar cer ated felons have no leg itimate expectation of privac y in their prison cells. See Hudson v. Palmer, 468 U.S. 517, 526 (1984) (holding that “socie ty is not prepa red to re co gn i z e as leg itimate any subjective expectation of privac y that a prisoner might have in his prison cell and

. . . , acc ording ly
, the Four th Amendment proscr iption ag ai n st unrea sonable sear ches does not apply within the confine s of the
pr ison cell”) ; State v. Wil liams, 690 S.W .2d 517, 524 (Tenn. 1985) (re cog nizi ng that “an expectation of privac y is not justified in a jail cell”) ; State v. Dulsworth, 781 S.W .2d 277, 284 (Tenn. Crim. App. 1989) (r ecog nizi ng that, under Palmer, a prisoner’ s expectation of privac y under the Four th Amendment is sever ely

curta iled).

5Probationers rest further along the continuum. Acc ording ly
, probationer s’ privac y interests 3 under the Four

th Amendment are also reduc ed, but are not so far diminis hed as those of incar cer ated felons. See United States v. Knig hts, 534 U.S. 112, 119 (2001). I n Kn i gh t s , the Supreme Court considere d the constitutionality of the wa rra ntless searc h of a probationer’ s home. The defenda nt had acc epted as a condition of his probation that he would “[s] ubmit his

. . . person, proper ty , place of residenc e, vehicle, persona l eff ects, to sear ch at any

time, with or without a sear ch war rant, war rant of arr est or rea sonabl e ca u s e by any probation office r or law enfor ceme nt office r.” I d. at 114. Apply ing the totality of the circ umstances test, of which the defe ndant’s probation sear ch condition

was “a salient circ umstance,” id. at 118, the Court analy zed the rea sonablene ss of the s ea rc h by balanc ing “‘the deg ree to which it intrudes upon an individual’s privac y [aga inst] the deg ree to which it is neede d for the promotion of leg itimate g overnme ntal interests.’” I d. at 119 (quoting Wy oming

v. Houg hton, 526 U.S. 295, 300 (1999))

. The Court specific ally deter mined that th e d ef

endant’ s “status as a

probationer

subject to a sea

rch c ondition informs both si des of that ba lance .” I d.

I n first assessing the deg ree of intrusion upon a probationer ’s privac y interest, the C o u rt

rec og nized that

[i ]nherent in the very nature of probation is that probatione rs d o n o t enjoy the absolute liberty to which ever y citizen is entitled. J ust as other punishments for criminal convictions curta il an offe nder’ s fre edoms, a court g ranting probation may impose rea sonable conditions that deprive the offe nder of some fre edoms enjoy ed by law-a biding c itiz ens.

I d. (interna l quotation marks and citations omitted). The Court conclude d that the sear ch condition “would further the two primary g oals of probation

S reha bilitation and protec ting society from future criminal violations

. ” I d. As a result of the sear ch condition, the probationer ’s rea sonable expectation of privac y

was “ signific antly

diminis hed.” I d. at 119-20.

Turning to the g overnme ntal interest side of the balanc e, the Court re asoned a s follows:

it must be reme mbere d that the very assumption of the instit ution of probation is that the probationer is more like l y t h an t h e ordinary citizen to violate the law. The

rec idivism rate of probationer s is signific antly highe r than t h e gener al crime rate

. And probationer s have even more of an incentive to conce al their criminal activities and quickly dispose of incriminating evidenc e t h an t he ordinary criminal beca use probationer s are awa

re that they

may be subjec t to supervision and face revoc ation of probation, and poss i b l e incar cer ation, in proce eding s in which the trial rig hts of a jury and proof

bey ond a re asonable doubt, among other thing s, do not apply

.

A p r o b a t i o n e r i s o n e w h o h a s b e e n f o u n d g u i l t y o f a c r i m e , u p o n v e r d i c t o r p l e a , b u t h a s b e e n r e l e a s e d b y a 3

c o u r t w i t h o u t i m p r i s o n m e n t “ s u b j e c t t o c o n d i t i o n s i m p o s e d b y t h e c o u r t a n d s u b j e c t t o t h e s u p e r v i s i o n o f t h e p r o b a t i o n

s e r v i c e

. ” T e n n

. C o d e A n n

. § 4 0

- 2 8

- 1 0 2 ( 6 ) ( 2 0 0 6 )

.
6I d. (interna l quotation marks and citations omitted). The Court re cog nized that states have a

dual concern wi th a probationer

. On the one hand is the hope that he will

succe ssfully complete probation and be integ rate d back into the community

. On the other is the conce rn, quite justified, that he will be more likely to eng ag e in criminal conduct than a

n ordinary

member of

the community

.

I d. at 120-21. The Court then conclude d that “the balanc e of these considerations require s no more than rea sonable suspi cion t o conduct a sear ch of [ the] probationer ’s hous e.” I d. at 121 (empha sis added)

.

Be ca u s e t h e sear ch at issue in Knig hts was supported by rea sonable suspicion, the sear ch passed Four

th Amendment muster. I d. at 122. Significa ntly
, the C o u rt l eft open the question “w h ether the probation condition so diminis hed, or completely eliminated, [t he probatione r defe ndant’s] rea sonable expectation of privac y

. . . that a sear ch by a law enfor ceme nt office r without
any individualiz ed suspicion would have satisfied the rea sonablene ss require ment of the Four th Amendment.” I d. at 120 n.6 (empha sis added)

. A sear ch unsupported by any indivi d u ali zed 4 suspicion came be fore the Court in Samson v. California, 547 U.S. 843 (2006).

III. Par olees: Sam son v. Calif ornia

On t he continuum of poss ible punis h m ents and reductions in fre edoms, parole es occupy a place betwee n incar cer ated prisoners and probationer s. Tenne ssee’ s statutory scheme define s parole as “the rele ase of

a [previously

incar cer ated] prisoner to the community . . . prior to the expiration of t he prisoner’s t erm subject to conditions

. . . .” Tenn. Code Ann. § 40-28-102( 5). “Release on parole is a privileg e and not a rig ht

. . . .” I d. § 40-35-503( b) (2006); see also id. § 40-28-117( a) (2006). Under Tenne ssee’ s statutory scheme
, per s o n s re l ea sed outside of prison walls on parole

rema in in the leg al custody of the war den (or rele vant penal supervisor) and are subject to all of the
p ro v i s i o ns upon which their parole is conditioned. I d. § 40-28-117( a); Doy le v. Hampton, 340 S.W .2d 891, 893 (Tenn. 1960). Parolee s rema in under the confine ment of their sentenc es while on parole . Doy le, 340 S.W.2d at 893.

Knig hts did no t address the questi on whether parole es have any rea sonable ex pecta tion of privac y under the Four

th A mendment; that question was rec ently addre ssed by the Supreme Court in Samson.

Donald Curtis Samson wa s a C al i fo rni a parole e. As a condition of his rele ase on parole

u n d er a C ali fornia statute, Samson had ag ree d in writing “to be subject to sear ch or seizur e b y a parole office r or other peac e office r at any time of the day or night, with or without a sear ch war rant

S i m i l a r l y , S t a t e v

. D a v i s , 1 9 1 S

. W

. 3 d 1 1 8
, 1 2 1

- 2 2 ( T e n n

. C r i m

. A p p

. 2 0 0 6 )
, i n v o l v e d a n a l m o s t i d e n t i c a l 4
T e n n e s s e e c o n d i t i o n o f p r o b a t i o n

. T h e C o u r t o f C r i m i n a l A p p e a l s d e c l i n e d t o a d d r e s s w h e t h e r a w a r r a n t l e s s s e a r c h o f
t h e p r o b a t i o n e r w a s p e r s e r e a s o n a b l e b e c a u s e i t f o u n d t h e s e a r c h t o b e s u p p o r t e d b y r e a s o n a b l e s u s p i c i o n

. O u r

r e s o l u t i o n o f t h e i n s t a n t c a s e a l s o d o e s n o t r e q u i r e u s t o r e s o l v e t h i s i s s u e a s t o p r o b a t i o n e r s

.
7and with or without cause .” Samson, 547 U.S. at 846 (quot i n g Cal. Penal Code Ann. § 3067(a)

(West 2000)).

San Br uno Police Offic er Alex Rohleder knew that S am s o n was on parole and believed Samson had an outstanding at-lar g e war rant. Upon seeing Samson out wal king one day
, Offic er Rohleder stopped him and inquired about the war rant. Samson replied that there was no outstanding

war rant a nd that he wa s in good standing with his pa

role office r. Offic er Rohlede r conf irmed this information by radio. Offic er Rohleder never theless conducte d a sear ch of Samson, “ba sed solely

on [S amson’s] status as a parole e,” id. at 846-47, and found methamphetamine on his person. After he was char g ed with pos session, Samson filed a motion to suppress, which t he trial court denied. The Supreme Court upheld the sear ch ag ainst a Four th Amendm en t ch al l en g e. I d. at 847.

Returning to the balanc ing test it had used in Knig hts, the Court first rea soned that “par olees 5 have few er expectations of privac y than probationer s, beca use parole is more akin to imprisonment than probation i s to imprisonment .” I d. at 850 (empha sis added)

. Second, Samson was “unambig uously ” awa

re of the sear ch condition of his parole

. I d. at 852 (quoting Knig hts, 534 U.S. at 119). Thus, “[e]x amining the totality of t he circumstance s perta ining t o [S amson’s] status as a parole e, an established varia tion on imprisonment, includin g the plain terms of the parole sear ch condition,” t he C o u rt co n cl uded that Samson “did not have an ex pecta tion of privacy that society would rec og nize as leg itimate.” I d. (interna l quotation marks and citation omitted).

On the other

side of the sc ale, the Court r easone d that

[t ]he State’s interests, by contra st, are substantial. This Court has repe atedly acknow ledg ed that a State has an “over whelming interest” in supervi s i n g parole es beca use “par olees

. . . are more likely to commit future criminal offe nses.” Simi larly
, this Court has repe atedly acknow ledg ed that a State’s interests in r e d ucing rec idivism and there b y p r o mo ting reinteg ration and positive citizenship among probationer s and parole es war

rant privac y intrusions that would not othe rwise be tolerate d under the Four th Amendment.

I d. at 853 (quot i n g P a. Bd. of Prob. and Parole v. Scott, 524 U.S. 357, 365 (1998))

. The Court

rec og nized that “[t] he C alifornia L eg islature has conclude d that, g iven t he number o f i n m ates the State parole s and its high rec idivism rate , a requirement that sear ches be based on individualiz ed suspicion would undermine the State’s ability to eff ectively supervise parole es and protec t the public from criminal acts by reof fende rs,” and ag ree d that “[t] his conclusion makes eminent sense.” I d. at 854. The Court reasoned that “[i] mposing a rea sonable suspicion require ment

. . . would g ive parole es g rea ter opportunity to anticipate sear ches and conce al criminality .” I d. Henc e, the sear ch of parole e Samson p as s ed Fo u rth Amendment muster even though it was not supported by any

rea sonable or individualized suspicion. I d. at 857.

T h e S a m s o n C o u r t s p e c i f i c a l l y d e c l i n e d t o a n a l y z e t h e s e a r c h u n d e r a c o n s e n t t h e o r y

. 5 4 7 U

. S

. a t 8 5 2 n

. 3

. 5

8The Cour t ’s holding that a parolee could be searche d without any particula rized suspicion has resulted in some criticism. See, e.g ., 5 L aF ave, Searc h and Seizure, § 10.10 at 432-82 (4th ed. 2 004) and Supp. 2008-09 at 27-44. I n our view, howeve r, Samson does not prese nt a s i gn i fi ca n t depar ture from the Court’s ear lier Four th Amendment jurisprudenc e. The Skinner Court reiter ated 6 in 1989 that, alt houg h “some quantum of i ndividualiz ed suspi cion” was “ usually ” necessar y for a

sear ch to be r easona

ble, 489 U.S. at 624 (e mphasis added) , the rule w as not a ha rd and f ast one:

a showing of individualiz ed su spicion is not a constitutional floor, below which a

sear ch must be presumed unrea sonable. I n limit ed circ umstances, wher e the privac y interests implicated by the sear ch are minimal, and wher e an important g overnme ntal interest fur

there d by the i ntrusion would be placed in jeopar dy by a re quirement of individualiz ed suspicion, a sear ch may be rea sonable d es p i t e the absenc e of such suspicion.

I d. (citation omitted) (empha sis added) ; see also Nat’l Trea sury Employ ees Union v. Von Raab, 489 U.S. 656, 665 (1989) (empha siz ing “the longsta nding principle that neither a war rant nor probable

cause , nor, indeed, any measure of individualiz ed suspicion, is an indisp en s ab l e component of

rea sonablene ss in ever

y circ umstance” ). The majority in Samson simply cra fted a narr ow exception
t o t h e usual rule: an exception which is hardly misguided g iven the minimal privac y int er es t s retained by parole es and the g overnme nt’s “over whelming interest” in ensuring that a parole e complies with the conditions of her parole

. As noted by the Colorado Supreme Court e ven befor e Samson was decide d, “[r]equiring individualiz ed suspicion would eliminate a power ful deter rent to parole violations and, consequently
, would place in jeopar dy the S tate’s overwhe lming int ere st in ensuring that a parole e complies with the conditions of his parole .” People v. McCullough, 6 P.3d 774, 781 (Colo. 2000) (En B anc)

.

IV. Tennessee Constitution

Article I
, section 7, of Tenne ssee’ s Constit ution provides simil arly to the Four th Amendment that “the people s hall be secure in their persons [and] houses . . . from unreasonable sear ches a nd seizures.” Tenn. Const. art. I
, § 7 (empha sis added)

. Whil e this Court has not previously addre ssed the scope of a parole e’s constitutio nal privac y interest, we have previously rec og nized that Tenne ssee’ s constitutional provision ag ainst unrea sonable sear ches and seizures is “‘ identical in intent and purpose with the Four th 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

rec og nized its fre edom “to interpre t the provisions of our state co n s t i t u tion to aff ord g rea ter

O u r r e s e a r c h i n d i c a t e s t h a t f e w o f o u r s i s t e r s t a t e h i g h c o u r t s h a v e u n d e r t a k e n a n a n a l y s i s o f S a m s o n i n t h e 6

c o n t e x t o f a c h a l l e n g e t o a s u s p i c i o n l e s s s e a r c h o f a p a r o l e e

. S i m i l a r l y t o o u r h o l d i n g t o d a y , t h e I l l i n o i s S u p r e m e C o u r t h a s a d o p t e d a n d a p p l i e d S a m s o n t o a p a r o l e e s u b j e c t t o a s e a r c h c o n d i t i o n p r o v i d i n g t h a t t h e p a r o l e e “ s h a l l c o n s e n t t o

a s e a r c h o f [ h i s ] p e r s o n , p r o p e r t y , o r r e s i d e n c e u n d e r [ h i s ] c o n t r o l

. ” P e o p l e v

. W i l s o n , 8 8 5 N

. E

. 2 d 1 0 3 3
, 1 0 3 5 ( I l l

. 2 0 0 8 )

. T h e p a r o l e e w a s c o n v i c t e d o f a d r u g o f

f e n s e a f t e r a s u s p i c i o n l e s s s e a r c h o f h i s b e d r o o m

. T h e I l l i n o i s S u p r e m e C o u r t f i r s t n o t e d t h a t “ t h e s e a r c h i n q u e s t i o n w a s n o n c o n s e n s u a l ” i n s p i t e o f t h e w o r d i n g o f

t h e p a r o l e c o n d i t i o n

. I d

. a t 1 0 3 6

. T h e C o u r t s p e c i f i c a l l y r e j e c t e d t h e p a r o l e e ’ s c o n t e n t i o n t h a t S a m s o n w a s d i s t i n g u i s h a b l e b e c a u s e h i s c o n d i t i o n

o f p a r o l e w a s w o r d e d d i f f e r e n t l y t h a n S a m s o n ’ s

. I d

. a t 1 0 4 2

.
9protec tion than the fede ral c onstitut ion,” State v. Cox , 171 S.W .3d 174, 183 (Tenn. 2005), we a re persua ded that the Samson analy sis strikes the corr ect b alanc e betwee n the sever ely diminis hed privac y interests of a convicted felon serving the rema inder of his or her sentenc e on parole rele ase in the community
, and society ’s interests in both reinteg rating that felon and protec ting itself ag ainst

rec idivism

.

The award of parole to an incarce rate d prisoner is a p ri v i leg e and not a right. Tenn. Code Ann. § 40-28-117( a). I t is a privileg e the State of Tenne ssee may acc ord to persons incar cer ated for committing serious felonies in spite of worrisome statistic s o f re cidi vism. Acc ording to the Tenne ssee Depa

rtment of Corre ct i o n R esea rch Br ief Update titled “TDO C Release Trends and Fa ilure Rates [t rac king] Fe lon Release s 1999-2003,” a publication com p i l ed by the Tenne ssee Depa rtment of Correc tion Division of Policy
, Planning, & Resear ch and d at ed Ap ril 27, 2005, 7 felons rele ased to parole in 2000 had a rec idivism rate of 50% within t h e first three y ear s of their rele ase. Close and car eful supervision of Tenne ssee parole es is appropr iate. See Samson, 547 U.S.
at 854 (ac knowledg ing “the g rave safe ty conce rns that attend rec idivism ”). The constitutional
para meters of what is “re asonable ” for parole es m ust take this very rea l dang er of re ci d i v ism into

acc ount.

Although a parole e’s constitutiona l p ro t ec tions ag ainst unrea sonable sear ches may not be exti ng uished as completely as those of incar cer ated prisoners, parole status is a “powe rful 8 circ umstance” much more akin to incar cer ation than probation or fr ee d o m in deter mining the 9

rea sonablene ss of a sear ch. See United States ex rel. Randazzo v. Follette, 282 F. Supp. 10, 13 (S.D.N.Y. 1968); see also United States v. Crawf ord, 372 F.3d 1048, 1077 (9th Cir. 2004) (En Ba nc) (Kleinfe ld, J
., concu rr i ng ) (explaining that parole es, in contra st to probationer s, “have been
sentenc ed to prison for felonies and rele ased befor e the end of their prison terms” and are “dee med
to have acte d more harmfully than any one except those felons not rele ased on parole ”). A prisoner who is acc orded the privileg e of parole must ag ree to be bound by all of the conditions imposed upon his or her relea se. A parole condition requiring that the par olee submit to warr antless sea rche s is

rea sonable in light of the parole e’s signific antly diminis hed privac y interests; the g oals soug ht to be attained by ear ly rele ase; and society ’s leg itimate interest in protec ting itself ag ainst rec idivism

. We there fore adopt the rea soning of Samson and hold that the Tenne ssee Constit ution permits a parole e to be sear ched without a

ny rea sonable or individualiz ed suspicion wher e the pa rolee has ag ree d to

S e e h t t p : / / w w w

. t e n n e s s e e

. g o v / c o r r e c t i o n / p d f / R e c i d i v i s m % 2 0 B r i e f

% 2 0 U p d a t e

. p d f 7

S o m e c o u r t s c o n s t r u i n g S a m s o n h a v e c o n c l u d e d t h a t “ [ t ] h e S u p r e m e C o u r t , f o r a l l i n t e n t s a n d p u r p o s e s , h a s 8
d e c i d e d t h a t a p a r o l e e w h o h a s s i g n e d a s e a r c h c o n d i t i o n [ p r o v i d i n g f o r w a r r a n t l e s s s e a r c h e s b y l a w e n f o r c e m e n t o f

f i c e r s

a t a n y t i m e ] h a s n o F o u r t h A m e n d m e n t r i g h t s , s u b j e c t o n l y t o a p r o t e c t i o n f r o m a r b i t r a r y , c a p r i c i o u s o r h a r a s s i n g

s e a r c h e s

. ” U n i t e d S t a t e s v

. W i d e n e r , N o

. 3 : 0 8

- C R

- 0 1
, 2 0 0 8 W L 4 8 3 1 3 4 4
, a t * 3 ( E

. D

. T e n n

. N o v

. 4
, 2 0 0 8 )

. S e e a l s o , e

. g

. , S t a t e v

. B e n n e t t , 2 0 0 P

. 3 d 4 5 5
, 4 6 2 ( K a n

. 2 0 0 9 ) ; S e g u n d o v

. S t a t e , 2 7 0 S

. W

. 3 d 7 9
, 9 8 ( T e x

. C r i m

. A p p

. 2 0 0 8 )

. W e n e e d n o t r e a c h t h i s i s s u e t o d e c i d e t h i s c a s e

.

“ P a r o l e

. . . i s n o t h i n g m o r e t h a n a c o n d i t i o n a l s u s p e n s i o n o f s e n t e n c e

. . . . T h e s e n t e n c e o f t h e m a n d o e s n o t 9

e x p i r e b e c a u s e o f t h e p a r o l e , n o r d u r i n g t h e p e n d e n c y o f t h e p a r o l e

. ” D o y l e , 3 4 0 S

. W

. 2 d a t 8 9 3

.
10war

rantless sea

rche s by law enf orce ment office rs. 1 0

V. Lim its on Warrantless, Susp icionless Searches of Par olees

Samson g ener ated a dissent which expressed concerns about “a reg ime of suspicionless

sear ches, conducte d pursuant to a blanket g rant of discretion untethere d by any proce dural safe g uards, by law enfor ceme nt personne l who have no specia l interest in the welfa re of the parole e

o r probationer .” Samson, 547 U.S. at 857 (Stevens, J
., dissenting)

. The majority respo n d ed b y observing that “[t] he conce rn that California’s suspicionless sear ch sy stem g ives office rs unbridled discretion to conduct searc hes, t here by inflicting dignitary harms that arouse strong rese ntment in parole es and undermine their ability to reinteg rate into productive society
, is belied by California’s prohibition on ‘ar

bitrary
, capr icious or hara ssing’ sear ches.” Samson, 547 U.S. at 856 (citing People

v. Rey es, 968 P.2d 445, 450, 451 (Cal. 1998); People v. Br avo, 738 P.2d 336, 342 (1987); Cal. Penal Code Ann. § 3067(d) (West 2000)).

Whil e the terms “a rb i t rar y ,” “ca pricious,” and “har assing ” are not easily define d, the C al ifornia Supreme Court considers (1) that “a parole sear ch could become constituti o n al l y ‘unre asonable ’ if made too often, or at an unrea sonable hour, o r i f u nrea sonably prolong ed or for other rea sons establishing arbitra ry or oppressive conduct by the sear ching office r,” Rey es, 968 P.2d
at 451 (quoting People v. Clower, 16 Cal. App. 4th 1737, 1741 (1993)) ; (2) that it is “ar bitrary and
capr icious when the motivation for the sear ch is unrela ted to reha bilitative, ref

ormative or leg itimate law enfor ceme nt purposes, or when the sear ch i s motivated by persona l animosity toward the parole e,” id. (citing I n re Ant h o ny S., 4 Cal. App. 4th 1000, 1004 (1992)) ; and (3) that an “unre stricted sear ch of a probationer or parole e by law enfor ceme nt office rs at their whim or capr ice is a form of hara ssment,” id. ( citing People v. Br emmer, 30 Cal. App. 3d 1058, 1062 (1973))

. See also People v. Smith, 92 C al. Rptr. 3d 106, 112 (Cal. Ct. App. 2009) (recog nizi ng that “[w]hether

a [parole] sear ch is arbitra ry , capr icious, or hara ssing turns on its purpose” ); McCullough, 6 P.3d at 782 (obser

ving that examples of an abusive sear ch include “sea rche s conducte d at an unrea sonable hour, sear ches that are unrea sonably prolong ed, or fre quent and repe ated sear ches that are intended only to hara ss”). A s uspicionless sear ch of a parolee would also be constit ut i o n ally suspect if the law enfor ceme nt office r conducte d it without knowing that the person sear ched was a parole e subject
to warr antless and suspicionless sea rche s. See Samson, 547 U.S. at 856 n.5.

Whil e we ag ree that these are appropr iate fac tors to consider when revie wing whether a

war rantless and suspicionless sear ch of a parole e is unrea sonable and there fore unconstitutional, we al so rec og nize that a suspi cionless s ear ch could be chara cter ized as “arbitrar y .” See Black’ s L aw Dictionary 112 (8th ed. 2004) (“1. Depe nding on individual discretion

. . . .”). A sear ch of this ty pe is not nece ssarily unrea sonable, howeve r. There fore
, the totality of the circ umstances surrounding

a war rantless, suspicionless sear ch of a parole e must be examined to deter mine whether the sear ch is c onstitut ionally unrea sonable. For example, a pattern of repe titive se arc hes while the parole e is
at work or aslee p would be unrea sonable. Searc hes intended to cause the parole e some harm would

I m p o r t a n t l y , s u c h s e a r c h e s m a y b e u n d e r t a k e n o n l y i f t h e s e a r c h i n g o f f i c e r h a s p r i o r k n o w l e d g e o f t h e 10

p a r o l e e ’ s s t a t u s a s s u b j e c t t o s u c h s e a r c h e s

. S e e S a m s o n , 5 4 7 U

. S

. a t 8 5 6 n

. 5

.
11be unrea sonable. A sear ch conduc t ed o u t o f persona l animosity would be unrea sonable. I ndeed,

there may be other situations wher e a war rantless, suspicionless sear ch of a parole e is unrea sonable. A suspicionless sear ch of a parole e subject to a war rantless sear ch condition, and which is conducte d out of valid law e nforc ement conc erns, is not unrea sonable. 1 1

VI. The Search of Defend ant’s Residence

The sea rch pr ovision at issue in S amson was pur suant to a specific C alifornia statute. See Samson, 547 U.S. at 846. Tenne ssee does not have a s imilar stat u t e; rathe r, our statutory scheme allows the Board of

Probation and P arole to “impose [ on parole es] any conditions and li mitations that [i t] deems nece ssary .” Tenn. Code Ann. § 40-28-116( b) (2006). One of the conditions imposed

on Def endant was the war

rantless sear ch provision, which is a standard condition. I t is 1 2
uncontrove rted that Def

endant ag ree d in writing to the war rantless sear ch provision. Moreove r, Offic er Palmer and Def

endant both v er i fi ed this condition of Def endant’ s parole with her parole office r immediately prior to the sear ch of her residenc e. We must now revie w the totality of the circ umstances, of which Def endant’ s status as a parole e and her ag ree ment to the war rantless sear ch condition are salient circ umstances, and d e te r mi n e w h e th e r th e s e a

r c h o f D e f e ndant’s residenc e was 1 3

rea sonable.

The trial court deter

mined that it was not, afte r findi n g o n l y t h at “[t] he total proce ss took
any wher e betwe en one a

nd two hours” a

nd that Def

endant’ s home was loca

ted in “anothe r par

t of Union City ” from wher e the traff ic stop took place

. The Court of Criminal Appea ls ag ree d, holding that “[t] he application of the rea sonable parole condition by the police office rs, in this case , beca me

unrea sonable as a result of this leng thy seizure of [Defenda nt] .” Turner
, 2008 WL 1891445, at *5.

B e c a u s e w e r e c o g n i z e t h a t a s u s p i c i o n l e s s s e a r c h o f a p a r o l e e m a y b e c o n s t i t u t i o n a l l y u n r e a s o n a b l e , w e 11
d i s a g r e e w i t h t h e d i s s e n t t h a t t h e r u l e w e a d o p t t o d a y “ g i v e s p o l i c e o f f i c e r s c o m p l e t e a n d u n f

e t t e r e d p o w e r t o d e t a i n a n d

s e a r c h a c i t i z e n

. ”

W e a r e c o g n i z a n t t h a t t h e s e a r c h p r o v i s i o n a t i s s u e i n S a m s o n s u b j e c t e d C a l i f o r n i a p a r o l e e s t o s e a r c h e s “ w i t h 12

o r w i t h o u t a s e a r c h w a r r a n t a n d w i t h o r w i t h o u t c a u s e

. ” S a m s o n , 5 4 7 U

. S

. a t 8 4 6 ( e m p h a s i s a d d e d )

. S o m e c o u r t s h a v e i n t i m a t e d t h a t “ w i t h o u t c a u s e ” i s t h e e q u i v a l e n t o f “ w i t h o u t s u s p i c i o n

. ” S e e , e

. g

. , U n i t e d S t a t e s v

. F r e e m a n , 4 7 9 F

. 3 d 7 4 3
, 7 4 8 ( 1 0 t h C i r

. 2 0 0 7 ) ; S t a t e v

. O c h o a , 7 6 5 N

. W

. 2 d 6 0 7
,

_ _ , 2 0 0 9 W L 3 9 8 3 9 0
, a t * 3 ( I o w a C t

. A p p

. F e b

. 1 9
, 2 0 0 9 ) ;

s e e a l s o S a m s o n , 5 4 7 U

. S

. a t 8 5 2 ( d e s c r i b i n g t h e C a l i f o r n i a p a r o l e s e a r c h c o n d i t i o n a s r e q u i r i n g p a r o l e e s “ t o s u b m i t t o

s u s p i c i o n l e s s s e a r c h e s ” )

. T h e s e a r c h p r o v i s i o n t o w h i c h D e f e n d a n t a g r e e d d o e s n o t c o n t a i n t h e l a n g u a g e “ w i t h o u t c a u s e ”

o r “ w i t h o u t s u s p i c i o n

. ” W e d o n o t f i n d t h i s d i s t i n c t i o n t o b e d i s p o s i t i v e

. S e e W i l s o n , 8 8 5 N

. E

. 2 d a t 1 0 4 2

. I n d e e d
, D e f e n d a n t h e r s e l f d o e s n o t a r g u e t h i s d i s t i n c t i o n

. T h e p o i n t o f t h e s t a n d a r d s e a r c h c o n d i t i o n u s e d b y T e n n e s s e e ’ s B o a r d

o f P r o b a t i o n a n d P a r o l e i s t o a l e r t p a r o l e e s t h a t l a w e n f o r c e m e n t o f

f i c e r s w i l l b e a b l e t o s e a r c h t h e m a n d t h e i r p r e m i s e s

w i t h o u t t h e u s u a l n e c e s s i t y o f f i r s t o b t a i n i n g a j u d g e ’ s o r m a g i s t r a t e ’ s p e r m i s s i o n

. P a r o l e e s a r e t h u s i n f o r m e d p r i o r t o t h e i r r e l e a s e t h a t t h e i r c o n s t i t u t i o n a l r i g h t s r e g a r d i n g s e a r c h e s a n d s e i z u r e s h a v e b e e n s e v e r e l y r e d u c e d

. N e v e r t h e l e s s , t h e B o a r d o f P r o b a t i o n a n d P a r o l e m a y w i s h t o c o n s i d e r r e v i s i n g i t s s t a n d a r d c o n d i t i o n s t o r e f l e c t e x p l i c i t l y t h a t p a r o l e e s

m a y b e s e a r c h e d w i t h o u t e i t h e r a w a r r a n t o r a n y p a r t i c u l a r i z e d s u s p i c i o n

.

D e f e n d a n t d o e s n o t c o n t e s t t h e o n

- s c e n e s e a r c h o f h e r s e l f o r h e r a u t o m o b i l e

. O n l y t h e s e a r c h o f D e f e n d a n t ’ s 13

r e s i d e n c e i s b e f

o r e u s i n t h i s a p p e a l

.
12We respe ctfully disag ree with the courts below that the sear ch of Def endant’ s residenc e was

unrea sonable. Ba sed on information he had rec eived from an informa n t , Officer Palmer was

conce rned that Def

endant was eng ag ed in drug dealing

. He knew she had been previously convicted for a drug offe nse in Tenne ssee. He k n ew h er parole status and confirme d that she was there by subject to war

rantless sear ches. Upon observing her commit a traff ic infrac tion, which constituted

a Class C misdemeanor and thus violated the terms of her parole
, he pulled her over and conducte d

a sear ch o f h er p er s o n and vehicle. He found no drug s but did find a larg e sum of cash on Def endant’ s p erson. The prese nce of this larg e sum of money toge ther with the absenc e of any 1 4 drug s on Defe ndant’s per son or in her c ar g ave O ffice r Palmer some g rounds to be conce rned tha t Def endant mig ht have r ece ntly made a drug sale a

nd might have more drug s at her r esidenc e. 1 5

Offic er Palmer’ s d ecision to sear ch Def endant’ s residenc e was not unrea sonable when examined under the totality of the circ umstances. There is no proof in the rec ord that Offic er Palmer
acte d for any rea son other than the further ance of leg itimate law enfor ceme nt conce rns. Def endant had been convicted of drug offe nses in two states. Off i cer Palmer had information from an informant that she was curr ently involved in selling cra ck coca ine. He verifie d Def endant’ s parole
status and the war

rantless sear ch condition befor e he proce eded to sear ch her residenc e. Neither the

sear ch of Def

endant’ s vehicle nor that of her residenc e was unrea sonably leng thy

. That the total time of Def endant’ s detention may have been at most two hours, and included a short trip by Def endant in her own ve hicle, did not so prolong the detention as to make the sea rch unr easona

ble.

We hold that the war

rantless sear ch of Def

endant’ s residenc e, made p ursuant to a written condition of her parole
, was rea sonable under the Four t h Am endment of the United States Constit ution and article 1, section 7, of th e T en n essee Constit ution, even if made without any

rea sonable, individualized, or particula rized suspicion.

CONCLUSION

We hold that the warrantless searc h of Defenda nt ’s residence, made pursuant to her status

as a parole e and a written condition of her parole of which she and the sear ching office r wer e awa re,

was rea sonable under the Four th Amendment of the United States Constit ution and article I
, section 7, of the Te nnessee Constit ution, e ven if not suppor ted by rea sonable suspicion. Ac cording ly , the trial court err ed in g ranting Def endant’ s motion to suppress and the Court of Criminal Appea ls err ed

O f f i c e r P a l m e r a l s o f

o u n d D e f

e n d a n t i n t h e c o m p a n y o f a w o m a n w h o h a d a n o u t s t a n d i n g w a r r a n t f o r a 14

p r o b a t i o n o r p a r o l e v i o l a t i o n

. D e f e n d a n t ’ s a s s o c i a t i o n w i t h t h i s w o m a n m a y h a v e c o n s t i t u t e d a v i o l a t i o n o f t h e

c o n d i t i o n s o f h e r K e n t u c k y p a r o l e , w h i c h p r o h i b i t e d D e f e n d a n t f r o m a s s o c i a t i n g “ w i t h a c o n v i c t e d f e l o n e x c e p t f

o r l e g i t i m a t e p u r p o s e s

. ” T h e c o n d i t i o n s o f D e f e n d a n t ’ s T e n n e s s e e p a r o l e i n c l u d e d i n t h e r e c o r d d o n o t c o n t a i n a s i m i l a r p r o h i b i t i o n

.

T h e d i s s e n t i m p l i e s t h a t O f f i c e r P a l m e r ’ s s o l e j u s t i f i c a t i o n f o r s e a r c h i n g D e f

e n d a n t ’ s r e s i d e n c e w a s h i s 15

u n d e r s t a n d i n g o f t h e w a r r a n t l e s s s e a r c h p r o v i s i o n o f h e r p a r o l e a n d r u l i n g s b y t h e U n i t e d S t a t e s S u p r e m e C o u r t

. I n f a c t , O f f i c e r P a l m e r a l s o r e l i e d o n h i s k n o w l e d g e o f D e f e n d a n t ’ s c r i m i n a l h i s t o r y , i n f o r m a t i o n t h a t s h e w a s c u r r e n t l y d e a l i n g d r u g s , h e r p o s s e s s i o n o f a l a r g e s u m o f

c a s h
, a n d h e r t r a v e l i n g w i t h a p e r s o n w h o w a s s u b j e c t t o a n o u t s t a n d i n g w a r r a n t f o r a d r u g o f

f e n s e

.
13in aff

irming the trial court. We there fore reve rse the judgme nt of the Court of Criminal Appea ls and

rema nd this matter to the trial court f or fur ther proc eeding s consistent with this opi nion.

Def endant having been found indige nt, the co s t s o f this cause are taxed to the State of Tenne ssee, f

or which e x ecution may

issue if nec essar

y

.

________________________________ CORNEL I A A. CL ARK, J USTI CE

14