In the Tenth Circuit, the area of state probation and parole search is about the only area where the Fourth Amendment is informed by state law, and state law determines limits on state actors in the first instance, and then Fourth Amendment on ultimate reasonableness. Yet, a CODIS hit on DNA determined reasonableness here. United States v. Johnson, 2017 U.S. Dist. LEXIS 187003 (D. Kan. Nov. 13, 2017):
As Mabry is controlling precedent, the Court must apply its principles to the facts of this case. Under Kansas law—as set forth in Toliver—a suspicionless search of a parolee’s residence violates the Fourth Amendment even when a parolee agreed in writing to such a search as a condition of his parole. Thus, in this case, the first search of Johnson’s house violates Kansas law despite the fact that the PostRelease Agreement specifically allows such a search by KDOC parole officers. But the Court’s inquiry does not end there. As stated in Mabry, a search that violates state law may still be permissible if the officers had reasonable suspicion that contraband was located at the defendant’s residence or a crime had taken place. The Court must therefore determine whether Special Agents Bansemer and Richardson and Sergeant Pfeifer had reasonable suspicion to search Johnson’s residence.
“Reasonable suspicion is a less demanding standard than probable cause.” It is “merely a particularized and objective basis for suspecting criminal activity.” “To determine whether … investigating officers had reasonable suspicion, [the Court] consider[s] both the quantity of information possessed by law enforcement and its reliability, viewing both factors under the totality of the circumstances.”
There are sufficient facts in this case for the Court to conclude that the officers had reasonable suspicion to search Johnson’s residence. Detective Mellard from the WPD testified at the hearing that a CODIS search revealed that DNA obtained from one of the burglary sites matched the DNA of Johnson. As a result, a KDOC Order to Arrest and Detain had been issued for Johnson in addition to an arrest warrant from the Sedgwick County District Court. Therefore, the officers had a particularized and objective basis for suspecting criminal activity at Johnson’s residence.
When considered in light of the totality of the circumstances, the Court concludes that the first search of the residence was reasonable under the Fourth Amendment. …