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

U NITED S TATES OF A MERICA , Plaintiff

- Appellee ,

v

.

R ONALD S HARP , Defendant

- Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 21

- 3828

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 de nial 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
wit hout 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 assaul ted 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 Sha rp’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 firea rm.
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 b oth 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. Sha rp 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 (2 001). 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 m uster 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 11 9 ); (2) the terms of the search condition communicated to the person, id. at 852; and (3) the S tate’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 inNo. 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 s upported 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
State s 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 violati ons. 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 cont act. 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 Bai ley. 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 t hat 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 viol ation 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

se arch: 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 a ssumed 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

- lineNo. 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 1 1; 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

- circ umstances 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 8 52.

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

- fact or 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 backgr ound 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 q uestion 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 whetherNo. 21

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the search would have been reasonable under the Fourth Amendment had it been solely pr edicated 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 ‘unam biguously’ 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 priv acy 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 se arch 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” a nd 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 1 2

– 1 4. We agree that is an unusual state of affairs. The Fourt h Amendment’s protections generally apply the same nationwide. See Virginia v. Moore , 553 U.S. 164, 176 (2008). Still, t he Supreme Court’s jurisprudence has not always comported with that principle. For example, officers may conduct suspicionless search es 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

- test ing 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 l egitimate 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 concurrenc e notes that such a doctrine allows one state to confer on its citizens broader federal constitutional protection than is enjoyed byNo. 21

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citizens of other states. Others object that such a doctrine allows the government to reduce its citizens’ rights simply b y 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
gover nment 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 1 1 . 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 legit imate 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 Pa yne , 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 circ umstances. 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 reasonab le 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

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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 1 2, 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 concludi ng 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 w arrantless 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
Amend ment 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 free ly 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.” Pay ne , 588 F. App’x at 431 & n.3.

* * *
The search of Sharp’s home was supported by reasonable suspicion. We AFFIRM.No. 21

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__________________________________ __________ 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 re sidence. 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 , 52 6 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 t he Fourth Amendment. That is the law forNo. 21

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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 f

rom 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 Californ ia 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 paro lee’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 statut e 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 infr inge on citizen’s established constitutional rights. ThisNo. 21

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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 it s 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, ef fectively 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 6 46, 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 S ampson 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 F ourth 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 misunder standing 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 subs tantially diminished expectation of privacy.No. 21

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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 individu alized 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 protec tions 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 re asonableness, 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 fa ir, 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 mus t 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 FourthNo. 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 analysi s.