*

The Honorable Judith M. Barzilay, Judge of the United States Court of International Trade, sitting by

designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0192p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

RICKEY DONNEL SMITH,

Defendant-Appellant.

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No. 07-1375

Appeal from the United States District Court

for the Eastern District of Michigan at Flint.

No. 05-50062-001—Paul V. Gadola, District Judge.

Argued: April 28, 2008

Decided and Filed: May 22, 2008 

Before: BATCHELDER and SUTTON, Circuit Judges; BARZILAY, Judge.*

_________________

COUNSEL

ARGUED: David A. Koelzer, FEDERAL DEFENDER’S OFFICE, Flint, Michigan, for Appellant.

Robert W. Haviland, ASSISTANT UNITED STATES ATTORNEY, Flint, Michigan, for Appellee.

ON BRIEF: David A. Koelzer, FEDERAL DEFENDER’S OFFICE, Flint, Michigan, for

Appellant. Robert W. Haviland, ASSISTANT UNITED STATES ATTORNEY, Flint, Michigan,

for Appellee.

_________________

OPINION _________________

SUTTON, Circuit Judge. Rickey Smith contends that the district court should have

suppressed evidence that officers discovered in his residence while he was serving the last years of

a 15-to-30-year sentence as a prisoner in a community residential home, which is to say he was

living in a private home while connected to an electronic-monitoring device that ensured he never

left the walls of the home without permission. Because the search was reasonable in view of Smith’s

continuing prisoner status and in view of his knowledge that officers could search his living quarters

as freely as they could search his prison cell and because the exclusionary rule does not apply to

knock-and-announce violations, we affirm.

1
No. 07-1375 United States v. Smith Page 2

I.

In January 1990, a jury convicted Rickey Smith of stealing a car, and, because this was

Smith’s fourth felony, the court sentenced him to 15 to 30 years’ imprisonment as an “habitual

offender.” JA 56. Fourteen years later, in February 2004, the Michigan Department of Corrections

transferred Smith to its Community Residential Program and permitted him to live in a “community

residential home.” See Mich. Dep’t of Corr. Policy Directive 06.03.102 (Oct. 23, 1989). This

arrangement permitted Smith to live in his sister’s home, but it required him to remain there “on

tether,” JA 90—meaning that Smith would have to remain at his sister’s home (unless he obtained

permission to leave) and that the State would ensure he did so by tracking him through a transmitter

on his ankle and a monitoring device connected to a phone jack in the home. 

On July 21, 2004, members of the Department of Corrections responded to a tip that Smith

had guns and drugs in the home. After forcibly entering the home, the officers searched the

basement (where they believed Smith was staying) and discovered two loaded guns under a mattress

in the corner of the room. 

Smith pleaded guilty to one felon-in-possession-of-a-firearm charge, see 18 U.S.C.

§ 922(g)(1), while reserving his right to challenge the court’s denial of his motion to suppress.

II.

A.

“The right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.” U.S. Const. amend. IV. The question here is one

of reasonableness, as the warrant and probable cause requirements generally do not apply to searches

of parolees, probationers or their residences. See Samson v. California, 547 U.S. 843, 857 (2006)

(permitting suspicionless searches of parolees); United States v. Knights, 534 U.S. 112, 118, 121

(2001) (upholding a warrantless search of a probationer’s apartment based on reasonable suspicion

and a probation condition requiring him to submit to a search at any time). That means we must

consider “the degree to which [the search] intrudes upon an individual’s privacy” as well as “the

degree to which it is needed for the promotion of legitimate governmental interests.” Samson, 547

U.S. at 848 (internal quotation marks omitted); see also Virginia v. Moore, 128 S. Ct. 1598, 1604

(2008).

 One factor central to this balancing inquiry is an individual’s status on the “privacy

continuum.” Wilson v. Collins, 517 F.3d 421, 425 n.2 (6th Cir. 2007) (internal quotation marks

omitted); see also Samson, 547 U.S. at 850. At one end of the continuum are free citizens, who

enjoy “absolute liberty.” Knights, 534 U.S. at 119 (internal quotation marks omitted); see also

Wilson, 517 F.3d at 425 n.2. Probationers have fewer expectations of privacy than free citizens, see

Knights, 534 U.S. at 119, and parolees have still “fewer expectations of privacy than probationers,”

Samson, 547 U.S. at 850. At the other end of the spectrum are inmates, who have no legitimate

expectation of privacy from searches of their prison cells. See Hudson v. Palmer, 468 U.S. 517,

525–26 (1984). 

In assessing Smith’s situation, Samson provides considerable guidance. There, an officer

conducted a suspicionless search of a parolee walking down the street. 547 U.S. at 846–47. A

condition of Samson’s parole order required him “to be subject to search or seizure . . . at any time

of the day or night, with or without a search warrant and with or without cause.” Id. at 846 (internal

quotation marks omitted). After balancing Samson’s privacy interests against the State’s law-andorder interests, the Court held that the search was reasonable because (1) Samson’s status as a
No. 07-1375 United States v. Smith Page 3

parolee, together with his parole-search condition, deprived him of “an expectation of privacy that

society would recognize as legitimate” and (2) the State has an “overwhelming interest in

supervising parolees.” Id. at 850, 852–53 (internal quotation marks omitted). 

Smith had fewer expectations of privacy than Samson. Smith was treated as a “prisoner”

living in a community residential home, Mich. Comp. Laws § 791.265a(1)(c), (9)(b); Mich. Admin.

Code r. 791.4401(2)(h), not as a parolee. And while the State permitted Samson to move freely and

travel within 50 miles of his home without requesting permission and placed no monitoring device

on him, 547 U.S. at 851, the State physically connected Smith to a device that monitored his every

movement and made him obtain approval before leaving the walls of his sister’s home—even if he

wished only to go into the yard or onto the porch, see Mich. Admin. Code r. 791.4425(3); Mich.

Dep’t of Corr. Policy Directive 06.03.102. If “[t]he extent and reach of [Samson’s] conditions

clearly demonstrate[d] that [he had] severely diminished expectations of privacy by virtue of [his]

status alone,” Samson, 547 U.S. at 852, then the same assuredly was true for Smith. 

Nor should any of this have come as a surprise to Smith. The officers’ uncontradicted

testimony shows that they informed Smith that they had as much freedom to enter his home as they

did to enter his prison cell. At an orientation, Smith viewed a video explaining “that the Department

has the authority to go to the home, make home calls if need[ed] to search the premises, his area of

control where he . . . sleeps . . . , just as if he were still in the facility,” JA 94 (emphasis added), and

officials explained to Smith that “his home was his prison,” JA 93; see also Mich. Admin.

Code r. 791.4425(3). No one disputes these facts, and no one argues that an inmate has any

legitimate expectation of privacy from unannounced searches of his prison cell. See Palmer, 468

U.S. at 526 (holding that “society is not prepared to recognize as legitimate any subjective

expectation of privacy that a prisoner might have in his prison cell”). Smith thus was “aware” that

his home was subject to search at any time, with or without suspicion. Samson, 547 U.S. at 852.

Accounting for all of these circumstances—the tether, the need for authorization to leave the walls

of his home and the officers’ authority to search his home at any time—Smith had little, if indeed

any, reasonable expectation of privacy in being free from a suspicionless search of his residence.

The State’s interest in permitting such searches is at least as great as it was in Samson. As

in Samson, “a State has an overwhelming interest in supervising” community-resident prisoners

because they “are more likely to commit future criminal offenses.” Id. at 853 (internal quotation

marks omitted). As in Samson, the State’s interests in reducing recidivism and promoting

rehabilitation “warrant privacy intrusions that would not otherwise be tolerated under the Fourth

Amendment.” Id. And as in Samson, a State’s ability to release individuals into a Community

Residential Program depends on its ability to supervise the inmates effectively, enforce the

conditions of confinement and protect the public from recidivist offenders. See id. at 854. 

Nor do a trio of cases—United States v. Knights, 534 U.S. 112, 121 (2001), Griffin v.

Wisconsin, 483 U.S. 868, 875–76 (1987), and United States v. Henry, 429 F.3d 603, 608–09 (6th

Cir. 2005)—establish that the reasonable-suspicion standard should apply instead. Not only did

Knights, Griffin and Henry all involve probationers, as opposed to parolees or community-resident

prisoners, but all of these cases were decided before Samson. Samson addressed (at least in the

context of a parolee search) 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. Samson, 547 U.S. at 850. Because “parolees have

fewer expectations of privacy than probationers,” the Court held that a suspicionless search of a

parolee was reasonable. Id. at 850, 857. “Imposing a reasonable suspicion requirement,” the Court

added, “would give parolees greater opportunity to anticipate searches and conceal criminality.”

Id. at 854. This reasoning applies with at least as much force to a community-resident prisoner
No. 07-1375 United States v. Smith Page 4

released with an electronic-monitoring device attached to him, prohibited from leaving the home

without permission and told that he has no more privacy in the home than he had in his jail cell. 

Samson, true enough, involved the search of a parolee’s person, not his residence. But the

Court’s reasonableness inquiry focused on the parolee’s status and the freedom-to-search condition

attached to his parole, not on a person-versus-premises distinction. Smith’s status gave him no

greater expectation of privacy than Samson, and the rules governing Smith’s confinement allowed

officers to search the premises and the areas within Smith’s control “just as if he were still in the

facility.” JA 94. Samson thus applies. “Any other rule would diminish the protection to society

given by the search condition [that] permit[s] search at any time.” United States v. Lopez, 474 F.3d

1208, 1213 (9th Cir. 2007) (applying Samson to the search of a parolee’s residence). 

Smith also tries to distinguish Samson on the ground that his search condition was

communicated through a video and orientation discussions, not through a written parole agreement.

That fact neither distinguishes Samson nor diminishes the clarity of the condition. There was no

written search condition for parole because the Department of Corrections did not place Smith on

parole. Individuals released to a community residential home, like prisoners in a correctional

facility, are bound by the Department of Corrections’ rules, which may or may not include a written

agreement. Compare Mich. Admin. Code r. 791.4425(3) (“Each prisoner who is classified to

community status shall be subject to general and special conditions that are established by the head

of the office of residential and electronic programs.”), with id. r. 791.7730(4) (“A paroled prisoner

shall comply with the conditions of parole contained in the parole order and with all subsequent

conditions approved by the chairperson of the parole board.”). Samson expressly declined,

moreover, to rest its holding solely on a consent rationale, 547 U.S. at 852 n.3, explaining that the

written condition was but one “salient” factor in the “totality of the circumstances pertaining to [the

parolee’s] status,” id. at 852 (internal quotation marks omitted). See Wilson, 517 F.3d at 426–27

(refusing to confine Samson to situations in which a suspicionless search is expressly authorized by

a parole agreement). The district court correctly denied Smith’s suppression motion.

B.

Smith independently argues that the officers’ unannounced entry into the residence failed

to comply with the knock-and-announce rule “in violation of the Fourth Amendment and 18 U.S.C.

§ 3109” and contends that the evidence should be suppressed on this ground alone. JA 12; see also

Richards v. Wisconsin, 520 U.S. 385, 394 (1997). We disagree.

1.

Like the district court, we find it unnecessary to resolve the witnesses’ conflicting testimony

to determine whether there was a knock-and-announce violation. And we agree with the district

court that, regardless of whether there was a violation, the Supreme Court has held that the

exclusionary rule does not apply in this setting. Hudson v. Michigan, 547 U.S. 586 (2006),

concluded that, if officers violate the knock-and-announce rule in the course of executing a search

warrant, the victim may file a § 1983 action for money damages but may not suppress the evidence

because that remedy does not further the interests served by the knock-and-announce rule, see id.

at 593, 597, and because at any rate the “deterrence benefits” of the exclusionary rule do not

“outweigh its substantial social costs,” id. at 594 (internal quotation marks omitted).

Nor, contrary to Smith’s suggestion, does Hudson apply only when the officers have a search

warrant. The explanations given by Hudson are not confined to situations in which the officers

violate the knock-and-announce rule after obtaining a warrant as opposed to situations, like this one,

where they allegedly violate the rule when they need not obtain a warrant. In both settings, the

interests served by the knock-and-announce rule—protection of life and limb, protection of property
No. 07-1375 United States v. Smith Page 5

and the opportunity to collect oneself before answering the door—“have nothing to do with the

seizure of the evidence,” id., and nothing to do with whether the Fourth Amendment required the

officers to obtain a warrant. There is nothing about the presence of a warrant that increases the

value of deterring knock-and-announce violations, which the Court tells us “is not worth a lot,” id.

at 596, or that mitigates the “substantial social costs” of suppressing the evidence, id. at 594 (internal

quotation marks omitted).

Smith’s rule also inverts the relative vices and virtues of the two situations. Why should

Smith have more to gain from a knock-and-announce violation when the Fourth Amendment does

not even require the officer to obtain a warrant to search his home because he has little-to-no

expectation of privacy? Or what about a probationer who expressly consents to future searches?

See Knights, 534 U.S. at 114. If there is a potential distinction here, it would be that when the

Fourth Amendment requires the police to have a warrant before they search a home, the victims of

that knock-and-announce violation ought to benefit from the exclusionary rule more than individuals

for whom the Fourth Amendment imposes no such requirement—a distinction quite the opposite

from the one Smith proposes. Yet because Hudson already says that the exclusionary rule does not

apply to the individuals with the greatest and most legitimate expectations of privacy, it necessarily

does not apply to those with the least. 

2.

As for Smith’s reliance on the federal knock-and-announce statute, 18 U.S.C. § 3109, there

is not much to say. It “regulates only federal officers . . . and has no application when state officers,

acting totally without federal involvement, seize evidence that is later offered in a federal

prosecution.” United States v. Gatewood, 60 F.3d 248, 249 (6th Cir. 1995) (internal quotation marks

omitted); see also United States v. Ferguson, 252 F. App’x 714, 719 (6th Cir. Oct. 26, 2007).

Because both sides agree that only state officers conducted the search, the statute does not apply.

III.

For these reasons, we affirm.