CA6: Parole “stalking horse” rationale likely no longer good law; question is whether state parole law allowed the search

The probation and parole search “stalking horse” rationale probably is no longer good law. Defendant here was a person of interest in a homicide, and the police got his parole officer to conduct a search which was valid under state law. United States v. Brown, 2020 U.S. App. LEXIS 33354 (6th Cir. Oct. 20, 2020):

The district court, applying Samson, denied Brown’s motion to suppress based on the totality of the circumstances and the terms and conditions of the Parole Certificate signed by Brown. It held “that this parole certificate is an example where reasonable suspicion is not required [for a search] because the State of Tennessee included that as part of its conditions for the alternative to incarceration.”

Samson and Sweeney control this case, not Griffin. The terms and conditions of the search provision at issue in Samson were written pursuant to a specific California statute. See Samson, 547 U.S. at 846. While Tennessee does not have a similar statute, its statutory scheme provides that the Tennessee Board of Probation and Parole “[i]n granting parole … may impose any conditions and limitations that [it] deems necessary.” Tenn. Code § 40-28-116(b). Interpreting that provision, the Tennessee Supreme Court upheld the warrantless search of a parolee’s residence pursuant to the terms and conditions of her parole. “[P]arolees who are subject to a warrantless search condition may be searched without reasonable or individualized suspicion” as long as the search is not conducted in “an unreasonable manner.” State v. Turner, 297 S.W.3d 155, 157 (Tenn. 2009). The court concluded: “[w]e therefore adopt the reasoning of Samson and hold that the Tennessee Constitution permits a parolee to be searched without any reasonable or individualized suspicion where the parolee has agreed to warrantless searches by law enforcement officers.” Id. at 166. The holding in Turner applies to the terms and conditions of parole at issue here.

Brown agreed to specific search conditions as set forth by the terms of his parole. Those terms provide that law-enforcement officers can search Brown even without “reasonable suspicion.” Brown signed and agreed to these terms to obtain parole. Officers searched Brown because he was a parolee and “a person of interest” in a homicide. In Samson, the Supreme Court upheld a search of a parolee solely based on his status as a parolee. 547 U.S. at 852. Here, law-enforcement officers had not one, but two, reasons to search Brown: the terms and conditions of his parole and his status as a person of interest in a homicide investigation. See Sweeney, 891 F.3d at 237. Further, Brown does not argue on appeal, nor is there any evidence, that the search was arbitrary, capricious, or harassing. The district court did not err in denying the motion to suppress.