Warrantless Searches: Exception for Parolees
As discussed in our last blog, searches of persons, residences, or automobiles without probable cause or consent are presumed unlawful unless an exception is met. In a 2009 case styled State v. Turner, the Tennessee Supreme Court was asked to decide if a search of a parolee’s home without consent or probable cause was nevertheless a legal search due to the fact that the parolee had agreed to warrantless searches as a condition of her parole.
The defendant in Turner had been convicted of multiple felonies in Kentucky in 2002. She was paroled in 2005 and allowed to move to Tennessee. However, as a condition of her parole supervision being transferred to Tennessee, the defendant agreed to warrantless searches of her person, property, vehicle, or residence by any law enforcement officer at any time. Not surprisingly, the defendant’s home was later searched without reasonable suspicion and a handgun was found in her home, leading to the defendant’s arrest for being a felon in possession of a handgun. The defendant contended that the search was unreasonable under the Tennessee and the United States Constitutions. The Tennessee Supreme Court did not agree. Further details on the facts surrounding this case can be found in our previous blog article dealing with this case.
The Tennessee Supreme Court held that parolee’s have reduced privacy rights from those of ordinary citizens which in effect limit their expectations of privacy under the Fourth Amendment of the United States Constitution. Therefore, a warrantless search in the manner described above that is not based on reasonable suspicion that the subject of the search is involved in criminal activity will be permissible under the Fourth Amendment where two conditions are met. First, the parolee must have previously agreed to warrantless searches by law enforcement officials. Second, the searching officer must have prior knowledge of the parolee’s status as subject to such searches. Unfortunately, for the defendant, both of these requirements were met in her case.
These two requirements basically combine to have the same effect as if the parolee had given the law enforcement official consent to search the home. By agreeing to warrantless searches by law enforcement officials, the parolee has effectively given consent. A law enforcement official must then become aware that the parolee has agreed to such searches prior to executing the search, effectively obtaining consent to the search.
One key principle that defendants or their attorneys should take from this case is that the police officer cannot execute an unlawful search and then later make the search lawful by learning of the parolee’s agreement to warrantless searches. The requirement that a law enforcement official learn of the parolee’s status prior to executing the search eliminates a potential avenue of abuse of the search and seizure process by law enforcement officials and gives the defense a possible ground for suppression of the evidence if the search is executed unlawfully.
Source: State v. Turner, 34 TAM 43-1 (Tenn. 2009)
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