IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

April 4, 2019 Session

STATE OF TENNESSEE v. ANGELA CARRIE PAYTON HAMM and 

DAVID LEE HAMM

Appeal by Permission from the Court of Criminal Appeals

Circuit Court for Obion County

No. CC-16-CR-15 Jeff Parham, Judge

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No. W2016-01282-SC-R11-CD

___________________________________

SHARON G. LEE, J., dissenting. 

One afternoon in November 2015, while David and Angela Hamm were not at 

home, four law enforcement officers entered and conducted a search of their home. The 

officers had neither a warrant nor reasonable suspicion of criminal activity. Ms. Hamm 

was on probation; the officers used her probationary status to justify the intrusive home 

search. The majority’s decision to uphold this unreasonable search deprives Ms. Hamm 

and her husband of their rights to be free from unreasonable searches under the Fourth 

Amendment to the United States Constitution and Article I, section 7 of the Tennessee 

Constitution. The majority’s decision also casts a cloud over the lives of more than 

65,000 Tennessee probationers1and thousands of citizens living with probationers, all of 

whom are at risk of having their homes searched by law enforcement lacking reasonable 

suspicion of criminal activity. 

Law enforcement should have, at the least, a reasonable suspicion of criminal 

activity before conducting a warrantless search of a probationer’s home. The majority

bases its ruling on the faulty premise that probationers and parolees should be treated the 

same. But they are not the same. 

 

1

In Tennessee, there are 57,832 probationers and 7,709 offenders in the Community Corrections 

program as of June 30, 2018. Tenn. Dep’t of Correction, Annual Report (FY 2018), available at

https://www.tn.gov/content/dam/tn/correction/documents/AnnualReport2018.pdf.

11/21/2019
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All parolees have committed felonies. Yet some probationers have committed only 

misdemeanors.2Trial courts carefully screen offenders before deciding whether or not to 

grant probation, considering the circumstances of the offense; the offender’s criminal 

record, background, social history, physical and mental condition; and the deterrent effect 

on the offender. State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002); see also

State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978). Trial courts also examine the

offenders’ potential for rehabilitation or treatment. Souder, 105 S.W.3d at 607 (citing 

Tenn. Code Ann. § 40-35-103(5)). Trial courts may deny probation to protect society 

from offenders with a history of criminal conduct, to avoid depreciating the seriousness 

of the offense, to deter others likely to commit similar offenses, or where measures less 

restrictive than confinement have not succeeded. Tenn. Code Ann. § 40-35-103(1)

(2014).

Thus probationers, unlike parolees, have generally committed less serious crimes,3

receive shorter sentences,4have few or no previous convictions,5are less likely to 

reoffend,6and are less of a threat to the public.7Probationers are entitled to all the 

constitutional rights that flow from the degree of liberty that comes with probation rather 

 

2 The majority notes that its decision concerns only a felon who is on probation. Yet this should 

offer no solace to misdemeanants because the rationale and broad language used by the majority make no 

distinction between probationary felons and misdemeanants. 

3 Offenders convicted of certain offenses, including aggravated kidnapping, aggravated sexual 

battery, statutory rape by an authority figure, aggravated child abuse and neglect, and sexual exploitation 

of a minor, are not eligible for probation. Tenn. Code Ann. § 40-35-303(a) (2014).

4 An offender may be granted probation only if the sentence imposed is ten years or less. Id.

5

See id. § 40-35-103(1)(A) (When imposing a sentence involving confinement, a court should 

consider whether “[c]onfinement is necessary to protect society by restraining a defendant who has a long 

history of criminal conduct.”).

6

See id. § 40-35-103(5) (“The potential or lack of potential for the rehabilitation . . . of the 

defendant should be considered in determining the sentence alternative or length of a term to be 

imposed.”).

7

See id. § 40-35-103(1)(A). A trial court’s decision to grant probation implicitly signals the trial 

court’s assessment that the offender poses no significant threat to society. Sean P. Dawson, Castles Made 

of Sand: The Disappearing Fourth Amendment Rights of Probationers and Parolees, 79 U. Pitt. L. Rev. 

285, 300 (2017).
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than incarceration.8The majority’s blanket approval of suspicionless searches of 

probationers is disproportionate and fails to reflect the nature of the crimes committed.9

By lumping probationers in with parolees, the majority ignores the wellestablished prisoner-parolee-probationer continuum relied on by courts. This Court and 

the United States Supreme Court have reasoned that probationers and parolees should be 

treated differently. In State v. Turner, 297 S.W.3d 155, 163 (Tenn. 2009) and State v. 

Stanfield, 554 S.W.3d 1, 9–10 (Tenn. 2018), a majority of this Court acknowledged that 

probationers have a greater expectation of privacy and less need for supervision than 

parolees.10

In Turner, the majority held that law enforcement may, without reasonable 

suspicion, search parolees who are subject to a warrantless search parole condition. 297 

S.W.3d at 167. The majority noted that offenders are subject to a continuum of possible 

punishments based on their criminal conviction. Id. at 161 (quoting Griffin v. Wisconsin, 

483 U.S. 868, 874 (1987)). On this continuum, the punishment for offenders can range 

from solitary confinement to community service. The offender’s place in the continuum 

determines the reasonableness of a search for Fourth Amendment purposes. An 

incarcerated felon has no expectation of privacy and a greater need for supervision, so

prison officials can search the felon’s cell without probable cause or reasonable 

suspicion. A probationer, who has a much greater expectation of privacy and a lesser 

need for supervision, is further along on the continuum. Id. A parolee falls somewhere 

between the incarcerated felon and the probationer on the continuum. Id. at 162.

In Stanfield, the majority expanded the holding in Turner, allowing law 

enforcement to search a parolee’s home with neither a warrant nor reasonable suspicion,

based on his status as a parolee. 554 S.W.3d at 4. As in Turner, the Stanfield majority 

referenced the difference between parolees and probationers, explaining that “‘parolees 

 

8

See Roni A. Elias, Fourth Amendment Limits on Warrantless Searches of Probationers’ Homes, 

25 Widener L.J. 13, 47 (2016); see also State v. Ballard, 874 N.W.2d 61, 72 (N.D. 2016) (comparing 

constraints on a parolee’s liberty with those imposed on a probationer).

9

See Dawson, supra, at 308–09.

10 I dissented in Turner and Stanfield because, in my view, a search of a parolee without 

reasonable suspicion violates a parolee’s rights under Article I, section 7 of the Tennessee Constitution. 

Blanket approval of suspicionless searches precludes meaningful judicial oversight of law enforcement’s 

power to search parolees. Turner, 297 S.W.3d at 174 (Lee, J., dissenting); Stanfield, 554 S.W.3d at 21

(Lee, J., dissenting). The search of a probationer without reasonable suspicion is more offensive than a

suspicionless search of a parolee.
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occupy a place between incarcerated prisoners and probationers’” on the continuum of 

possible limitations to freedoms. Id. at 10 (quoting Turner, 297 S.W.3d at 162).

The United States Supreme Court has also distinguished between parolees and 

probationers and relied on the continuum analysis. In Griffin v. Wisconsin, 483 U.S. 868, 

872 (1987), the Court upheld a warrantless search of a probationer’s home. A state 

regulation authorized probation officers to search a probationer’s home without a warrant 

when the officers had reasonable grounds to believe that the home contained contraband 

or prohibited items. Id. at 870–71. The Court found that the special needs of the state’s 

probation system made the warrant requirement impracticable and justified a lower 

“reasonable grounds” standard for the warrantless search of a probationer. Id. at 875–76. 

The Griffin Court reasoned that “[p]robation is simply one point . . . on a continuum of 

possible punishments” and that the “permissible degree [of impingement upon a 

probationer’s privacy] is not unlimited.” Id. at 874–75.

Next, in United States v. Knights, 534 U.S. 112, 122 (2001), the United States 

Supreme Court upheld a warrantless search of a probationer’s home. The search was 

based on law enforcement’s reasonable suspicion of criminal activity and on a probation 

condition allowing a search with neither a warrant nor reasonable cause.11 In upholding 

the search, the Court departed from the special needs rationale in Griffin and examined 

whether the search was reasonable under the “general Fourth Amendment approach of 

examining the totality of the circumstances, with the probation search condition being a 

salient circumstance.” Id. at 117–18 (internal quotation marks and citation omitted). The 

Court explained that “[t]he touchstone of the Fourth Amendment is reasonableness, and 

the reasonableness of a search is determined ‘by assessing, on the one hand, the degree to 

which it 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. at 118–19 (quoting 

Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). Applying this test, the Court found 

that the probationer had a diminished reasonable expectation of privacy based on the 

search provision in the probation order. Id. at 119–20. The Court then observed that a 

probationer is more likely to violate the law than an ordinary citizen and has a greater 

incentive to hide criminal activities because of the chance of probation revocation and 

incarceration. Id. at 120. Thus, the government had reason to focus more on probationers 

than on ordinary citizens. Id. at 121.

After balancing these considerations, the Court held that law enforcement needed 

“no more than reasonable suspicion to conduct a search of this probationer’s house.” Id.

at 120–21 (emphasis added). In a footnote, the Court in Knights explained that it was not 

deciding “whether the probation condition so diminished, or completely eliminated, 

 

11 Ms. Hamm’s probation condition was not as broad, authorizing only warrantless searches. 
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Knights’ reasonable expectation of privacy . . . that a search by a law enforcement officer 

without any individualized suspicion would have satisfied the reasonableness 

requirement of the Fourth Amendment.” Id. at 120 n.6. The warrantless search in Knights

was supported by reasonable suspicion and the probation search condition, so the Court 

did not address the constitutionality of a suspicionless search based solely on a probation 

condition. 

Five years later, in Samson v. California, 547 U.S. 843, 855–56 (2006), the 

Supreme Court upheld the suspicionless search of a parolee’s home after weighing the

parolee’s significantly diminished expectation of privacy and the government’s 

substantial interest in supervising the parolee. Contrasting the privacy interests of 

parolees with those of probationers, the Court noted that parolees have a lesser 

expectation of privacy than probationers because “parole is more akin to imprisonment 

than probation is to imprisonment.” Id. at 850. Additionally, the State’s interest in 

supervising parolees is overwhelming because parolees are more likely to commit 

additional criminal offenses and the State has an interest in reducing recidivism. Id. at 

853–54. After applying the Knights balancing test, the Court determined that law 

enforcement could conduct a suspicionless search of a parolee. Id. at 857.

The upshot of Turner, Stanfield, Griffin, Knights, and Samson is that probationers 

and parolees are different. Unlike parolees, probationers have greater privacy 

expectations and the government has a lesser interest in supervising them. Thus, 

assuming that the Fourth Amendment allows law enforcement to search a parolee’s home 

without reasonable suspicion, it makes sense to require law enforcement to have at least a

reasonable suspicion of criminal activity before searching a probationer’s home.

In addition, law enforcement searches that are not based on reasonable suspicion 

of criminal activity are at odds with the need for criminal justice reform recognized by 

our nation and our state. See Tenn. Exec. Order No. 6 (Mar. 5, 2019) (recognizing the 

state’s duty to address educational, mental health, and substance abuse issues in support 

of offenders’ “successful reentry into society” and establishing a Criminal Justice 

Reinvestment Task Force to develop recommendations for, among other things, revising 

sentencing guidelines and parole and probation standards); First Step Act of 2018, Pub. 

L. No. 115-391, 132 Stat. 5194, 5224–25 (requiring grant applicants to provide “a plan 

for analysis of the statutory, regulatory, rules-based, and practice-based hurdles to 

reintegration of offenders into the community” and prioritizing grant applications that 

“best . . . review the process by which the applicant adjudicates violations of parole, 

probation, or supervision following release from prison, jail, or a juvenile facility”); see 

also The Pew Charitable Trusts, Fact Sheet: 35 States Reform Criminal Justice Policies 

Through Justice Reinvestment (July 2018) (summarizing the post-2007 “wave of 
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reforms” to sentencing and correction policies, including supervision laws that guide how 

parolees and probationers are monitored). 

A search not based on suspicion hinders one of the primary goals of criminal 

justice reform—more rehabilitation and less incarceration. These intrusive searches also 

hamper the aims of probation—rehabilitating and reintegrating probationers into society. 

See Knights, 534 U.S. at 113 (2001). A probationer whose privacy is invaded by a 

suspicionless search is prone to resent law enforcement and lose trust in the Rule of Law. 

Probationers who believe they have been mistreated by law enforcement do not have a 

firm foundation on which to successfully rebuild their lives and become productive, 

law-abiding citizens. The majority suggests that probationers are protected from searches 

that are repetitive, disruptive, or harassing. Yet any illegal search invades our privacy, 

disrupts our lives, violates our constitutional rights, and is unacceptable. 

Tennessee would not be alone in requiring reasonable suspicion to justify the 

warrantless search of a probationer; some other states require it. See, e.g., People v. 

Lampitok, 798 N.E.2d 91, 105 (Ill. 2003) (finding that the warrantless search of a 

probationer’s motel room would be constitutional if the police had reasonable suspicion 

of a probation violation); Ballard, 874 N.W.2d at 72 (quoting Samson, 547 U.S. at 850) 

(concluding that a suspicionless search of a probationer’s home was constitutionally 

unreasonable based on a continuum in which “parole is more akin to imprisonment than 

probation”); see also State v. Bennett, 200 P.3d 455, 463 (Kan. 2009) (concluding that 

searches of probationers require reasonable suspicion because probationers have a greater 

expectation of privacy than parolees and, under Kansas law, parolees cannot be searched 

without reasonable suspicion); Commonwealth v. LaFrance, 525 N.E.2d 379, 382–83

(Mass. 1988) (explaining that the state constitution forbids probation condition allowing a 

warrantless search condition of a probationer’s person or home unless a probation officer 

has at least reasonable suspicion that a search might produce evidence of wrongdoing); 

Murry v. Commonwealth, 762 S.E.2d 573, 580 (Va. 2014) (concluding that a probation 

condition authorizing a warrantless and suspicionless search by law enforcement of a 

probationer was unreasonable because the search was unnecessary to facilitate 

rehabilitation and protect the public); State v. Cornell, 146 A.3d 895, 910 (Vt. 2016) 

(emphasizing that warrantless searches of probationers must follow the state 

constitution’s requirement of reasonable suspicion); State v. Lucas, 783 P.2d 121, 126 

(Wash. Ct. App. 1989) (concluding that the state constitution requires a well-founded 

suspicion that a probation violation has occurred to justify a warrantless search of a 

probationer).

Ms. Hamm was subject to a probation condition that allowed law enforcement to 

search her home without a warrant, but the probation condition did not provide for a 
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suspicionless search. Law enforcement had no warrant and lacked reasonable suspicion 

that Ms. Hamm was engaging in criminal activity. Police officers decided to search the 

home where Ms. Hamm lived with her husband based on an unconfirmed tip from a 

criminal informant that there were some “heavy players” in the Glass community. The 

informant did not mention the Hamms by name. When an officer suggested Mr. Hamm’s 

name, the informant nodded her head and smiled. A nod and a smile cannot justify a 

home search. The police also learned from another informant that there were people in 

the Glass community “doing it big.” This unidentified informant’s information was 

second-hand from another unidentified informant and its meaning unclear. The evidence 

does not preponderate against the trial court’s conclusion that law enforcement did not 

have reasonable suspicion to search the home where Ms. Hamm lived. Mr. Hamm was 

collateral damage to the illegal search of Ms. Hamm’s home. He was on neither parole 

nor probation. Mr. Hamm had to endure a home search because he chose to share a 

bedroom with his wife. 

In sum, the majority’s decision to uphold the suspicionless search of the Hamms’ 

home violated the Hamms’ federal and state constitutional rights to be free from 

unreasonable searches. The United States Supreme Court can undo the injustice of the 

majority’s decision; let’s hope it does.

In the interest of justice, I dissent. 

_______________________________

SHARON G. LEE, JUSTICE