### 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 - F iled October 15, 2009

S H A R O N G. L E E , dissenting.

I respe ctfully disag ree with the majority

. I n my view, the p o l i ce o fficers’ sear ch of Ms. Turner ’s residenc e without rea sonable or individualiz ed suspicion violates article I
, section 7 of the Tenne ssee Constit ution. Whil e the United States Supreme Court has ruled in Samson v. California, 547 U.S. 843 (2006), that such a sear ch, wi t h o u t re asonable or i ndividualiz ed suspi cion, does not

v i olate the Four

th Amendment to the United States Constit ution, I would hold the T en n es s ee Constit ution provides a g reater deg ree of protec tion ag ainst suspicionless sear ches t h an does the fede ral Constituti on.

I.

Article I , section 7 of the T ennesse e Constituti on provides:

[T] he people shall be sec ure in the ir persons, houses, pape rs and possessions, fr om

unrea sonable sear ches and seizures; and that g ener al war rants, wher eby an office r may be commanded to sear ch suspected place s, wi thout evidenc e of the fac t committed, or to seize any person or persons not named, whose offe nces are not particula rly descr ibed and supported by evidenc e, are dang erous to liberty and oug ht not to be g rante d.

Although this Court has stated that the Tenne ssee provision is “identica l in intent and purpose with the Four th Amendment,” Sneed v. State, 423 S.W .2d 857, 860 (Tenn. 1968), we have also noted that

our sear ch and seizure law has “deve loped independe ntly from fede ral law.” State v. Richards, 286 S.W .3d 873, 877 (Tenn. 2 0 0 9 ). Thus, wher e “ther e has been a settled development of state constitutional law which does not contravene the fede ral, we are not inclin ed t o o v er rule ear lier

1decisions unless they are demonstrably err oneous.” State v. L akin, 588 S.W .2d 544, 549, n.2 (Tenn.

1979) (noting that Tenne ssee decisions applying a partic u lar phrase of sear ch and seizure law are “somewhat more re strictive than” f eder al case l aw)

. Fur

thermore
, even where there is no “settled development of state constitutional law,” we may decline to follow fede ral prec edents when they are “inade quate” to serve the purposes of article I
, section 7. State v. J acumin, 778 S.W .2d 430, 435-36 (Tenn

. 1 9 8 9 ) (rejecting the fede ral “totality of the circ umstances” test for a criminal informant’s reliability in favor of the two-prong ed “basis of knowledg e” and “ver acity ” test); see also Richards, 286 S.W .3d at 877-78; State v. C o x , 171 S.W .3d 174, 183 (Tenn. 2005) (stating “[w]e are fre e to interpre t the provisions of our s t at e constitution to aff ord g reater protec tion than the fede ral constitution.”); State v. Randolph, 74 S.W .3d 330, 335 (Tenn. 2002) (noting that “this Court has not hesitated to extend g reater priva cy protec tions to t he citizens of this State when appropriate under article I
, § 7”); State v. Downey
, 945 S.W .2d 102, 106 (Tenn. 1997) (stating “we rec og nize, as we have in the past, that article I
, section 7 may aff ord citizens of Tenne ssee even g reater protec tion”).

II.

This Court, following the U.S. Supreme Court’s lead in Samson, t o d ay holds that law enfor ceme nt officia ls may detain a parole e subject to a war rantless sear ch condition “without

rea sonable or individualiz ed suspicion,” and may sear ch both the parole e’s person an d h i s or her residenc e, even if the sear ch of the residence i s remote in time and distance from the point of detention.

Whil e I ag ree that a per son who has bee n convicted of a fe lony should be and is subject t o

a differ ent analy sis of what is a “re asonable ” sear ch, a rule that eff ectively g ives police office rs complete and unfetter ed power t o detain and sear ch a citizen, with no cause , rea son, or s uspicion,
g oes too far in my view. Fur ther, as a prac tical matter, the Court’s blanket approva l of suspicionless

sear ches of parole es results in a loss of meaning ful judicial oversig ht and revie w of police power to

sear ch and seize parole es. Whil e the Court observe s that a sear ch “motivated by persona l animosity ”

or with an abusive or hara ssing purpose may be unrea sonable, it will be a rar e instance when a police office r admits such a motivation. Fa r more often, the trial court will be prese nted with a var iation of what Office r Palmer sa id in this case : when asked what justification he had to se nd Ms. Turner back to her house and sear ch her home, he responde d, “[t] he conditions of her parole and the ruling s of the United States Supreme Court.” When such a justificat i o n s uffice s to pass constitutional muster, more w ill rarely , if eve r, be of fer ed.

I believe that a require ment of rea sonable suspicion to sear ch a parole e, a lower bar than the traditional probable cause and sear ch war rant require ment, strikes a more appropri ate balanc e betwee n the individual’s rig ht to be fre e from unrea sonable sear ches and the g o v e r nme nt’ s leg itimate interest in preve nting crime. I ag ree with the Samson dissent reje cting “the conclusion, rea ched by the Court here for the first time, th at a s ea rc h supported by neither individualiz ed suspicion nor ‘spec ial needs’ is nonetheless ‘re asonable .’” Samson, 547 U.S. at 858 (Stevens, J
., dissenting)

. This conclusion, that a “ suspicionless ” sear ch of a parole e is not unrea sonable, means that an office r need

2demonstrate no cause , rea son, nor scintilla of justify ing suspicion to sear ch a person he or she knows
to be on parole under the “standa rd” parole condition imposing a war rantless sear ch term. Fur

ther,

even if a persona l sear ch of a parole e y ields neither evidenc e nor suspicion of wrong doing, the police office r may then insist on being taken to the parolee’s residenc e, even if distant from the stop, in order to sear ch the parole e’s home. As the Samson dissent aptly noted, “[t] he suspicionless sear ch is the very

evil the Four

th Amendment was intende d to stamp out.” I d.

I n th e prese nt case , the majority rec og nizes, corr ectly in my opinion, that “a suspicionless

sear ch could be char acte rized as ‘ar bitrary .’” I ndeed, it is hard for me to see how a sear ch that is truly “suspicionless” could not fair l y be char acte rized as “ar bitrary” and “ca

pricious” in near ly ever

y circ umstance. Neve rtheless, the Court, utiliz ing the “totality of the circ umstances” test, conclude s that an arbitra

ry sear ch of a parole e may pass constitutional muster, notwithstanding our established and repe ated observation that “[t] he essenc e of the prohibiti on against unreasonable searche s and seizures under the Four

th Amendment is to ‘saf

eg uard the privac y and secur ity of individuals ag ainst arb i t r a r y i nvasions by g overnme nt officia ls.’” Randolph, 74 S.W .3d at 334 (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)) (empha sis added ); s ee also State v. Ross, 49 S.W .3d 833, 839 (Tenn. 2001) ; Downey , 945 S.W .2d at 106.

III.

The various rationale s relied upon by the S am s o n Court to support this conclusion, and adopted by this Court today
, have been tho roughly critica lly analy zed by Professor Way

ne R. L aF ave, w ho states in part a s follows:

I n balanc ing the interests in Samson, the majority relied principally upon these considerations: (i) “that parole es have few er expectations o f p rivac y than probationer s, beca

use parole is more akin to imprisonment than probation i s ”; (i i) that “the pa

role sea rch c ondition under Califor nia law – r equiring inmates who opt for parole to submit to suspicionless s ea rches by a parole office r or other peac e office r ‘at any time’ – was ‘cle arly expressed’ to” Samson; (iii) that the state “has an ‘over whelming interest’ in supervising parole es beca use ‘par olees

... are more likely
to commit future criminal offe nses,’ as manifested by the fac t “California ’s parole e population has a 68–to–70 perc ent recidivism rate ”; and (iv) that the “concer n that California’s suspicionless sear ch sy st em gives office rs unbridled discretion to conduct sear ches * * * is belied by California’s prohibition on ‘ar bitrary
, capr icious or har assing ’ sea

rche s.”

But eac h of these points is open to serious dispute. As to (i), it comes dang erously cl o s e to acc eptanc e of the di scre dited “construc tive custody ” and “ac t of g rac e” theories; it hardly follows that parole es are s u bject to suspicionless sear ches b ec ause inmates are , even though (as even the dissenters acknow ledg e), ther e i s “some” differ ence in the state’s interest vis-a-vis parole es g ener ally as compar ed to probationer s g ener ally

. As for (ii), just as in [Unit ed States v.]Knights[, 534 U.S. 112

3(2001)] this is nothing more than circ ular rea soning; while the majority contends that

beca use of the notice to Samson of t he st ate law mandating that parole es submit to suspicionless sear ches he “did not have an expectation of privac y that society would

rec og nize as leg i t imate,” the dissenters corr ectly asser t that the “mer e fac t that a particula r State ref uses to acknow ledg e a parole e’s privac y interest cannot mean that

a parole e in that State h as no expectation of privac y that society is willing to

rec og niz e as l egitimate.” As for (iii), it is essentially the same one-size-fits-a ll conclusion as was reach ed in Knig hts, except that it is worse beca use the “size” deeme d appropr iate for all parole es i s suspicionl ess s ear ches, while in Knig hts the “size” for probationer s was rea sonable suspicion instead of probable cause (at least for r esidenc e sea

rche s). The problem, as t he S amson dissenters aptly put it, is that “the sear ch condition he re is imposed on all parole es – whateve r the nature of their crimes, whatever their likelihood of rec idivism
, and whateve r their supervisory needs, – w ithout any

prog rammatic pr ocedur al protec tions.”

. . .

As for point (iv) in Samson, here is a matter that clea rly g oes bey ond Knig hts, which only approve d of sear ches made upon rea sonable suspicion.

. . . The majority

s ay s t h e “dissent’s claim that parole es * * * are subject to capr icious sear ch es conducte d at the unchec ked ‘whim’ o f l aw enfor ceme nt office rs” ignor es the provision in California law (which, by virtue of Samson appea rs to now be the Four

th Amendment floor on parole e sear ches) by which a parole e sear ch is rea sonable only

so long “as it is not arbitra ry , capr icious or hara ssing.” Of course , as the dissent notes, the traditi o n a l me ans under the Fourth Amendm ent of dealing with that problem has been the “requirement of individualized suspicion,” and one can only wonder whether any lesser standard can provi de a meaningful chec k upon police activity directed toward parolees

. Considering that the fac ts of Samson wer e rea dily found to meet the “not arbitra ry , capr icious or hara ssing” test by the California court, there is some rea son for pe ssimis m.

5 L aF ave, Sear ch an d S ei z u re, § 10.10 (4 ed. 2004) Supp. 2008-09 at 31-33 (footnotes omitted) t h (final e mphasis added)

. 1

As did the Samson Court, the majority relies on the asser tion that “par ole is more akin t o

F o r f u r t h e r s c h o l a r l y c r i t i c i s m o f t h e S a m s o n r e a s o n i n g a n d h o l d i n g , s e e H a r v a r d L a w R e v i e w , T h e S u p r e m e 1

C o u r t
, 2 0 0 5 T e r m - L e a d i n g C a s e s , 1 2 0 H a r v

. L

. R e v

. 1 8 3
, 1 8 8 ( N o v

. 2 0 0 6 ) ( N o t i n g , a m o n g o t h e r t h i n g s , t h a t “ [ i ] f t h e S a m s o n C o u r t m e a n t t o g i v e C a l i f o r n i a u n b r i d l e d d i s c r e t i o n i n p a r o l e e s e a r c h e s , t h e n t h e f l i m s i n e s s o f t h e C a l i f

o r n i a

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

e x p l i c i t g u i d a n c e i n t h e o p i n i o n

. ” ) ; R a c h a e l A

. L y n c h
, T w o W r o n g s D o n ’ t M a k e a F o u r t h A m e n d m e n t R i g h t : S a m s o n C o u r t E r r s i n C h o o s i n g P r o p e r A n a l y t i c a l F r a m e w o r k

, E r r s i n R e s u l t

, P a r o l e e s L o s e F o u r t h A m e n d m e n t P r o t e c t i o n , 4 1 A k r o n L a w R e v i e w 6 5 1 ( 2 0 0 8 ) ; J o h n L a s s e t t e r , S a m s o n v

. C a l i f o r n i a : “ E v i l ” S u s

p i c i o n l e s s S e a r c h e s B e c o m e a P a r t

o f E v e r y d a y L i f e f o r P a r o l e e s , 2 5 L a w & I n e q u a l i t y 5 3 9 ( S u m m e r 2 0 0 7 )

.
4imprisonment than probation is to imprisonment” in support o f i t s conclusion that all parole es,

irrespe ctive of individual circ umstance, are subject to suspicionless sear ches. This observation is

cer tainly true a s far

as it g oes; but in my

view, the fa

r more pe rtinent fac t is that the situations and circ umstances of both parole es and probationer s are m u ch m o re simil ar to fre e citizens than to incar cer ated pr isoners. As L aF ave a ptly notes:

[I ]n most case s the life of a parole e more near ly rese mbles that of an ordinary citizen than that of a prisoner. The parole e is not incar cer ated; he is not subjected to a prison
reg imen, to the rig ors of prison life and the unavoidable company of sociopaths. He does not live in a society whose violent, though usually repr essed, mores nece ssitate iron bars and the clos e wa t ch o f arme d guards. Routine sear ches are nece ssary in prison to preve nt dang erous riots and internal violence

. Su c h s e arc hes are impersonal and, beca use a prisoner’ s possessions are limit ed, unintrusive. A parole e, howeve r, lives in a differe nt environment, one wher e such pro b l ems are absent and sear ches and seizures are intrusive. The parole e lives among people who are fre e to come and
g o when and as t hey wish. Ex cept for t he con d i t ions of parole, he is one of them. Hi s parole repr esents supervision, rathe r than repr ession; and his parole office r i s , ideally
, an advisor, rathe r than an arme d watchma n. I f the parole office r is to be the parole e’s personal prison g uard, it is only beca use t he court dec i d es t h at h e is
, and such a de cision stands on ext raor dinarily shaky g round.

5 L aF ave, Searc h and Seizure, § 10.10(a) at 436 (4 ed. 2004) (quoting Wil liam R. Rapson, t h Extending Search- and-Seizure Protection to Parolees in Calif ornia
, 22 Stan. L

. Rev. 129, 133 (1969))

.

The Court also relies on the assertion that the “awar d of parole to an inca rce rate d prisoner is a privileg e and n o t a ri gh t , ” descr ibing parole as a “privileg e” in four separ ate instances. This descr iption is u n q u estionably true, but does nothing to further the analy sis. Surely there are constitutional limits on what rig hts ma y be reduc ed or taken awa y from a parole e. The question is
not whether the State may awa rd or ref use to awa

rd parole
, but whether
, afte r parole is g rante d, the State may sea rc h t h e person and home of the parole e without any rea sonable, articula ble, or individualiz ed suspicion of wrong doing. As the Supreme Court obse rved in Mor rissey v. Br ewe r, 408 U.S. 471, 482 (1972), “[i] t is hardly useful any longe r to tr y to de al with this problem in terms of whether the parole e’s liberty is a ‘rig ht’ or a ‘privileg e.’ By whateve r name, the liberty is valuable and must be seen as within th e p ro t ec t i on of the Four teenth Amendment.” See also Gra ham v. Richardson, 403 U.S. 365, 374 (1971) (stating that “this Court now has reje cted the concept that constitutional rig hts turn upon whether a g overnme ntal benef it is char acte rized as a ‘rig ht’ or as a ‘privileg e’” ).

IV.

Even though Samson has decisively settled the issue of suspicionless parole e sear ches under the Four th Amendment, Tenne ssee and our sister states clea rly rema in at liberty to establish a highe r

5threshold than the “zero suspicion” floor establ i s h ed by California. The United States Court of

Appea ls for the Tenth Circuit rec og nized this in United States v. Fr eema n, 479 F.3d 7 4 3
, 7 4 7 -4 8 (10th Cir. 2007), observingthat

The [S amson] Court noted “that some States and the Fe dera l Gover nment require a level of individualized suspicion,” and strong ly implied that in such j urisdictions a suspicionless sear ch would rema in impermi ssible. [S amson, 126 S.Ct .] at 2201. Parolee sear ches are there fore an example of the rar e instance in which the contours of a f eder al constitutional right a re de termined, in par

t, by the content of

state law.

. . .

Samson does not repr esent a blanket approva l for war rantless parole e or probationer

sear ches by g ener al l aw enforc ement off icer s without rea sonable suspi cion; rathe r, the Court approve d the constitutionalit y of such sear ches only when authorized under
state law. Kansa s has not g one as far as California in authorizing such sear ches, and 2 this searc h there fore was not per missibl e in the abse nce of rea sonable suspicion.

I d.

As Fr eema

n notes, the Samson Court stated that

Petitioner observe s that the majority of States and the Fede ral Governme nt have been able to further similar interests in reducing recidivism an d p r omoting re-integration, despite havi ng s y stems that permit parolee searche s based upon some leve l of suspicion

. Thus, petitioner contends, California’s sy stem is constitutionally defe ctive by compar ison. Petitioner’s relianc e on the prac tices of jurisdictions other than California, howeve r, is misplac ed. That some States and the Fede ral Gove rnment require a leve l o f i n d ividualized suspicion is of littl e relevance to our determination whether Calif ornia’s supervisory system is d r a wn to mee t its needs and is reasonable
, taking into acc o u nt a parole e’s substantially diminis hed expectation of privac y

.

A t t h e t i m e o f

t h e s e a r c h o f

M s

. T u r n e r ’ s h o u s e a n d h e r a r r e s t , T e n n e s s e e h a d n o t g o n e a s f a r a s C a l i f

o r n i a i n 2

a u t h o r i z i n g s u c h s e a r c h e s e i t h e r : h e r p a r o l e c o n d i t i o n p r o v i d e d f o r “ a s e a r c h
, w i t h o u t a w a r r a n t , o f [ h e r ] p e r s o n , v e h i c l e , p r o p e r t y , o r p l a c e o f

r e s i d e n c e

. . . , ” w h e r e a s C a l i f o r n i a ’ s p a r o l e c o n d i t i o n p r o v i d e d f o r “ ‘ s e a r c h o r s e i z u r e b y a p a r o l e

o f f i c e r o r o t h e r p e a c e o f

f i c e r a t a n y t i m e o f t h e d a y o r n i g h t , w i t h 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 ) ( q u o t i n g C a l

. P e n a l C o d e A n n

. § 3 0 6 7 ( a ) ( W e s t 2 0 0 0 ) )

. N e i t h e r p a r o l e c o n d i t i o n m e n t i o n s o r p r e c l u d e s “ r e a s o n a b l e s u s p i c i o n , ” a s t a n d a r d t h a t i s c l e a r l y l e g a l l y d i s t i n c t f r o m p r o b a b l e

c a u s e , t h e s t a n d a r d o r d i n a r i l y r e q u i r e d t o s u p p o r t a s e a r c h w a r r a n t

. O f c o u r s e , i f t h e T e n n e s s e 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 f o l l o w s t h e C o u r t ’ s s u g g e s t i o n a t f o o t n o t e 1 2 o f t h e o p i n i o n 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 , ” T e n n e s s e e w i l l t h e n h a v e g o n e a s f

a r , i f n o t f

a r t h e r , t h a n C a l i f

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

.

6Samson, 547 U.S. at 855 (empha sis added)

. As Samson then rec og nized, “ a majority of states and

the Fe d er al Gover

nment” had established a threshold of rea sonable, individualiz ed suspicion to justify a parole e sear ch. Severa l state courts have revisited the issue sub s eq u en t t o the Samson decision and adher ed to a rea sonable suspicion require ment. See Sierra v. State, 958 A.2d 825, 829 (De l. 2008); State v

. Be n n ett , 200 P.3d 455, 462-63 (Ka n. 2009); Commonwealth v. Hunter, 963 A.2d 545, 551-52 (Pa. Super . Ct. 2008).

V.

Pursuant t o t he above analy sis, I would hold that the Tenne ssee Constit ution require s a showing of rea sonab l e suspicion to sear ch a parole e. Article I
, section 7 of the Tenne ssee Constit ution, in addition to providing its citizens prot ec t ion “fr om unrea sonable sear ches and seizures,” also expressly proscr ibes “g ener al war rants, wher eby an office r may b e co m manded to

sear ch suspected place s, without evidenc e of the fac t committed.” I b el i ev e a rea sonable interpre tation of this prohibition includes the issuance of a war rant to sear ch a place in the complete absenc e of rea sonable or individualiz ed suspicion. I f thi s provision disallows a law enfor ceme nt office r to sear ch a place without evidenc e provi d i n g re as onable suspicion pursuant to a g ener al

war rant, it is rea sonable to construe i t as d i s al l owing an office r to sear ch a residenc e without

rea sonable suspicion and without a wa rr ant. “Rea sonable suspicion is not an overly -burde nsome standard of proof.” Be nnett, 200 P.3d at 463. A require ment of rea sonable suspicion does, howeve r, strike a more appropr iate balanc e betwee n the privac y interests of t h e individual and the State’s interest in minimi zing rec idivism and preve nting crime, by providing a meaning ful ch eck on otherwise unfettere d police power t o conduct suspicionless and arbitrar y sear ches, and prese rving

some deg ree of meaning ful judici al o v er s i g ht and revie w in order to curb potential abuses of this
g overnme ntal power

.

For the af oreme ntioned rea sons, Irespe ctfully dissent.

_____________________________ SHARON G. L EE, J USTI CE

7