                                                                                                      11/21/2019
                    IN THE SUPREME COURT OF TENNESSEE
                                AT JACKSON
                                      April 4, 2019 Session

       STATE OF TENNESSEE v. ANGELA CARRIE PAYTON HAMM
                      and DAVID LEE HAMM

               Appeal by Permission from the Court of Criminal Appeals
                           Circuit Court for Obion County
                       No. CC-16-CR-15 Jeff Parham, Judge
                       ___________________________________

                               No. W2016-01282-SC-R11-CD
                          ___________________________________




 CORNELIA A. CLARK, J., dissenting.

       I respectfully dissent from the majority’s decision upholding the constitutionality
of the warrantless and suspicionless search of Angela Payton Hamm’s home. In so
holding, the majority erroneously equates the privacy interests of probationers and
parolees despite statements by the United States Supreme Court and this Court that
probationers have greater expectations of privacy than parolees. Samson v. California,
547 U.S. 843, 850 (2006); State v. Stanfield, 554 S.W.3d 1, 10 (Tenn. 2018); State v.
Turner, 297 S.W.3d 155, 162 (Tenn. 2009). I would hold that the state and federal
constitutional safeguards against unreasonable searches and seizures require law
enforcement officers to establish reasonable suspicion for a warrantless search of a
probationer. Here, as the courts below concluded, the State failed to establish reasonable
suspicion for the search. Accordingly, I would hold that the search violated the Fourth
Amendment to the United States Constitution and article I, section 7 of the Tennessee
Constitution and affirm the Court of Criminal Appeals’ judgment upholding the trial
court’s decisions granting the defendant’s motion to suppress and dismissing the
indictments.

                                   I. Constitutional Analysis

       The Fourth Amendment to the United States Constitution1 and article I, section 7
of the Tennessee Constitution2 protect against unreasonable searches and seizures. State

        1
          U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated . . . .”).
v. Hawkins, 519 S.W.3d 1, 33 (Tenn. 2017). “[A]rticle I, section 7 is identical in intent
and purpose with the Fourth Amendment.” State v. Downey, 945 S.W.2d 102, 106
(Tenn. 1997) (quoting Sneed v. State, 423 S.W.2d 857, 860 (1968)). The hallmark
protections of these constitutional provisions are the warrant requirement and the
probable-cause requirement.3 These requirements serve the “essential purpose[s]” of
assuring citizens “that such intrusions are not the random or arbitrary acts of government
agents[,] . . . that the intrusion is authorized by law, and that it is narrowly limited in its
objectives and scope.” Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 621-22 (1989)
(citations omitted). These requirements “also provide[] the detached scrutiny of a neutral
magistrate, and thus ensure[] an objective determination whether an intrusion is justified
in any given case.” Id. at 622 (citations omitted). Searches and seizures conducted
pursuant to warrants are presumptively reasonable, but warrantless searches and seizures
are presumptively unreasonable. Kentucky v. King, 563 U.S. 452, 459 (2011); State v.
McCormick, 494 S.W.3d 673, 678-79 (Tenn. 2016).

       Nevertheless, the ultimate touchstone of analysis under the Fourth Amendment
and article I, section 7 is reasonableness, see King, 563 U.S. at 459; State v. Reynolds,
504 S.W.3d 283, 304 (Tenn. 2016), so exceptions to the warrant or the probable cause
requirement have been recognized, and in certain limited circumstances, neither is
required. Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665 (1989)
(“[N]either a warrant nor probable cause, nor, indeed, any measure of individualized
suspicion, is an indispensable component of reasonableness in every circumstance.”).

       In a number of cases, this Court and the United States Supreme Court have upheld
the constitutionality of searches and seizures based on individualized suspicion that does
not rise to the level of probable cause. See, e.g., Delaware v. Prouse, 440 U.S. 648, 654-
55, (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 560 (1976); United States v.
Brignoni-Ponce, 422 U.S. 873, 881 (1975); Terry v. Ohio, 392 U.S. 1, 21 (1968); State v.
Hanning, 296 S.W.3d 44, 49 (Tenn. 2009). For example, warrantless, suspicionless
searches designed to serve “special needs, beyond the normal need for law enforcement”
have been upheld as reasonable under the Fourth Amendment and article I, section 7.

        2
          Tenn. Const. art. I, § 7 (“[T]he people shall be secure in their persons, houses, papers and
possessions, from unreasonable searches and seizures . . . .”).

        3
           See Kentucky v. King, 563 U.S. 452, 459 (2011) (“The text of the [Fourth] Amendment thus
expressly imposes two requirements. First, all searches and seizures must be reasonable. Second, a
warrant may not be issued unless probable cause is properly established and the scope of the authorized
search is set out with particularity.”); see also Chandler v. Miller, 520 U.S. 305, 308 (1997) (stating that
officials are generally barred “from undertaking a search or seizure absent individualized suspicion”);
State v. Scarborough, 201 S.W.3d 607, 617 (Tenn. 2006) (“Under certain circumstances, searches
conducted without a warrant but pursuant to individualized suspicion of criminal wrongdoing are also
considered reasonable.”)
                                                     -2-
See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32, 37-40 (2000) (collecting cases
approving suspicionless searches to serve special needs); Downey, 945 S.W.2d at 104
(“We, therefore, conclude that the use of a sobriety roadblock, although a seizure, can be
a reasonable seizure under the Tennessee Constitution, provided it is established and
operated in accordance with predetermined operational guidelines and supervisory
authority that minimize the risk of arbitrary intrusion on individuals and limit the
discretion of law enforcement officers at the scene.”). The United States Supreme Court
relied on this special needs doctrine in the first case in which it addressed probationer
searches. Griffin v. Wisconsin, 483 U.S. 868 (1987).

       In Griffin v. Wisconsin, a Wisconsin regulation permitted probation officials to
search a probationer’s home when the officials had “‘reasonable grounds’ to believe [the
residence contained] contraband—including any item that the probationer [could not]
possess under the probation conditions.” 483 U.S. at 870-71 (citing Wis. Admin. Code
HSS §§ 328.21(4), 328.16(1) (1981)). The probation officials in Griffin received
information from a police detective “that there were or might be guns in [Mr.] Griffin’s
apartment.” Id. at 871. Two probation officers and three plainclothes policemen went to
Mr. Griffin’s apartment to conduct a search, but the probation officers alone searched Mr.
Griffin’s apartment under the authority of Wisconsin’s probation regulation. Id. They
discovered a handgun and charged Mr. Griffin with felony possession of a handgun. Id.
at 872. He moved to suppress the evidence, but the trial court denied his motion, and the
Wisconsin courts affirmed. Id.

       The United States Supreme Court affirmed as well and upheld the constitutionality
of the regulation authorizing the warrantless search based on “‘reasonable grounds’ (not
probable cause).” Id. The Griffin Court explained:

      Although we usually require that a search be undertaken only pursuant to a
      warrant (and thus supported by probable cause, as the Constitution says
      warrants must be), we have permitted exceptions when “special needs,
      beyond the normal need for law enforcement, make the warrant and
      probable-cause requirement impracticable.”

Id. at 873 (quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J.,
concurring in judgment)) (citations omitted). The Griffin Court concluded that “[a]
State’s operation of a probation system . . . presents ‘special needs’ beyond normal law
enforcement that may justify departures from the usual warrant and probable-cause
requirements” of the Fourth Amendment. Id. at 873-74. In reaching this conclusion, the
Griffin Court articulated and relied upon a continuum of privacy rights that has guided
the Supreme Court’s analysis in subsequent cases involving probationers and parolees.
Specifically, the Griffin Court described probation as “simply one point . . . on a
continuum of possible punishments ranging from solitary confinement in a maximum-
                                           -3-
security facility to a few hours of mandatory community service.” Id. at 874. As a result,
said the Supreme Court, probationers “do not enjoy ‘the absolute liberty to which every
citizen is entitled, but only . . . conditional liberty properly dependent on observance of
special [probation] restrictions.’” Id. (alteration in original) (quoting Morrissey v.
Brewer, 408 U.S. 471, 480 (1972)). Therefore, states are permitted “a degree of
impingement upon privacy [during the course of such supervision] that would not be
constitutional if applied to the public at large.” Id. at 875. The Griffin Court held that
strict enforcement of the Fourth Amendment’s warrant requirement “would interfere to
an appreciable degree with the probation system, setting up a magistrate rather than the
probation officer as the judge of how close a supervision the probationer requires.” Id. at
876. The Supreme Court commented that “even more than the requirement of a warrant,
a probable-cause requirement would reduce the deterrent effect of the supervisory
arrangement.” Id. at 878. The Griffin Court concluded that it is “reasonable to permit
information provided by a police officer, whether or not on the basis of firsthand
knowledge, to support a probationer search . . . if the information provided indicates, as it
did [in Griffin], only the likelihood (‘had or might have guns’) of facts justifying the
search.” Id. at 879-80.

       The Griffin Court therefore upheld the warrantless search conducted pursuant to
Wisconsin’s constitutionally valid regulation, which required probation officials to have
individualized suspicion, i.e. “reasonable cause” to believe that contraband was present.
The Griffin Court therefore found it “unnecessary to consider whether . . . any search of a
probationer’s home by a probation officer is lawful when there are ‘reasonable grounds’
to believe contraband is present.” Id. at 880. Nevertheless the Griffin Court emphasized
that the “permissible degree” a state may impinge upon a probationer’s expectation of
privacy is “not unlimited.” Id. at 875.

       The Supreme Court revisited the subject of probationer searches in United States
v. Knights when it considered whether law enforcement officers could constitutionality
conduct a warrantless search of a probationer’s home if the officers had reasonable
suspicion to believe the probationer had engaged in criminal activity. 534 U.S. 112, 121
(2001). In Knights, the defendant, who was charged with committing various crimes
while on probation, moved to suppress the State’s evidence because it was seized by law
enforcement officers in a warrantless search of his apartment that was supported by
reasonable suspicion. Id. at 114-16. The Knights search was conducted pursuant to a
condition of probation—not a regulation—that required the defendant to “‘submit his . . .
person, property, place of residence, vehicle, [and] personal effects, to [a] search at
anytime, with or without a search warrant, warrant of arrest[,] or reasonable cause by
any probation officer or law enforcement officer.’” Id. at 114 (emphasis added). The
Knights Court declined to analyze the case according to the special needs doctrine it had
used in Griffin. Id. at 117-18. Rather, the Knights Court evaluated the reasonableness of
the search “under [its] general Fourth Amendment approach of ‘examining the totality of
                                            -4-
the circumstances,’ with the probation search condition being a salient circumstance.” Id.
at 118 (quoting Ohio v. Robinette, 519 U.S. 33, 39 (1996)). Under this approach, the
Knights Court explained, “the reasonableness of a search is determined ‘by assessing, on
the one hand, the degree to which it 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. at 118-19 (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)).
Mr. Knights’ “status as a probationer subject to a search condition inform[ed] both sides
of that balance.” Id. at 119.

        In assessing the degree to which the search intruded upon Mr. Knights’ privacy,
the Supreme Court reiterated that “[p]robation is ‘one point . . . on a continuum of
possible punishments ranging from solitary confinement in a maximum-security facility
to a few hours of mandatory community service.’” Id. (quoting Griffin, 483 U.S. at 874).
Because the “probation order clearly expressed the search condition and [Mr.] Knights
was unambiguously informed of it” the Supreme Court concluded that “[t]he probation
condition . . . significantly diminished [Mr.] Knights’ reasonable expectation of privacy.”
Id. at 119-20 (emphasis added) (footnote omitted).

       Next the Knights Court considered “the governmental interest side of the balance,”
emphasizing the government’s interest in reducing recidivism and noting that
probationers are “‘more likely than the ordinary citizen to violate the law.’” Id. at 120
(quoting Griffin, 483 U.S. at 880). The Knights Court also acknowledged the State’s
interests in rehabilitating and reintegrating probationers into society. Id. at 120-21.

       After weighing the degree to which the search intruded upon Mr. Knights’
significantly diminished privacy interest against the governmental interests in conducting
the search, the Knights Court concluded that “the balance of these considerations requires
no more than reasonable suspicion to conduct a search of this probationer’s house.” Id. at
121. The Knights Court explained:

               Although the Fourth Amendment ordinarily requires the degree of
       probability embodied in the term “probable cause,” a lesser degree satisfies
       the Constitution when the balance of governmental and private interests
       makes such a standard reasonable. Those interests warrant a lesser than
       probable-cause standard here. When an officer has reasonable suspicion
       that a probationer subject to a search condition is engaged in criminal
       activity, there is enough likelihood that criminal conduct is occurring that
       an intrusion on the probationer’s significantly diminished privacy interests
       is reasonable.




                                           -5-
              The same circumstances that lead us to conclude that reasonable
       suspicion is constitutionally sufficient also render a warrant requirement
       unnecessary.

Id. (emphasis added) (citations omitted). Importantly for purposes of this appeal, the
Knights Court both reaffirmed the continuum of privacy rights that it had enunciated in
Griffin and reiterated that a probationer subject to a search condition retains an
expectation of privacy for purposes of constitutional analysis, although it is significantly
diminished. Id. at 119-22. What the Knights Court did not decide is

       whether the probation condition so diminished, or completely eliminated,
       [Mr.] Knights’ reasonable expectation of privacy (or constituted consent)
       that a search by a law enforcement officer without any individualized
       suspicion would have satisfied the reasonableness requirement of the
       Fourth Amendment. The terms of the probation condition permit such a
       search, but we need not address the constitutionality of a suspicionless
       search because the search in this case was supported by reasonable
       suspicion.

Id. at 120 n.6 (citation omitted).

        The United States Supreme Court still has not answered that question for
probationers. But the Supreme Court has addressed “a variation of” that question in
Samson v. California, a case involving parolees. 547 U.S. 843, 847 (2006). In a six-to-
three decision, the Court in Samson upheld a California law requiring every prisoner
released on parole to “‘agree in writing to be subject to search or seizure by a parole
officer or other peace officer at any time of the day or night, with or without a search
warrant and with or without cause.’” Id. at 846 (quoting Cal. Penal Code Ann. § 3067(a)
(West 2000)). The Samson Court discussed Griffin and Knights and reiterated that
“parolees are on the ‘continuum’ of state-imposed punishments.” Id. at 850 (quoting
Knights, 534 U.S. at 119 (internal quotation marks omitted)). The Samson Court
explained that “[o]n this continuum, parolees have fewer expectations of privacy than
probationers, because parole is more akin to imprisonment than probation is to
imprisonment.” Id. (emphasis added). After examining the conditions of parole in
California, the Samson Court declared that “parolees . . . have severely diminished
expectations of privacy by virtue of their status alone.” Id. at 851-52 (emphasis added)
(citations, quotation marks, and brackets omitted). The Samson Court next discussed the
impact the parole search condition had on Mr. Samson’s severely diminished expectation
of privacy and contrasted it with the impact the probation search condition had on the
probationer in Knights, stating:



                                            -6-
      the parole search condition under California law—requiring inmates who
      opt for parole to submit to suspicionless searches by a parole officer or
      other peace officer at any time,—was clearly expressed to petitioner. He
      signed an order submitting to the condition and thus was “unambiguously”
      aware of it. In Knights, we found that acceptance of a clear and
      unambiguous search condition significantly diminished [Mr.] Knights’
      reasonable expectation of privacy.        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
      privacy that society would recognize as legitimate.

Id. at 852 (emphases added) (citations, footnote, quotation marks, and brackets omitted).
The Samson Court concluded then, that, unlike the probationer in Knights—who retained
some expectation of privacy despite his status and acceptance of the search condition—
the parolee in Samson—by virtue of his status and acceptance of the search condition—
had no expectation of privacy. The Samson Court, which began its analysis by noting
that it was addressing an issue left open in Knights, thus explicitly and plainly
distinguished between the privacy interests of probationers and parolees. Id. at 846, 850-
53.

       The Samson Court drew fewer distinctions between the State’s interests in
supervising probationers and parolees, except to describe the State’s interests in
supervising parolees as “‘overwhelming’ . . . because ‘parolees . . . are more likely to
commit future criminal offenses.’” Id. at 853 (quoting Pa. Bd. of Prob. & Parole, 524
U.S. 357, 365 (1998)). The Samson Court confirmed “that a State’s interests in reducing
recidivism and . . . promoting reintegration and positive citizenship among probationers
and parolees warrant privacy intrusions that would not otherwise be tolerated under the
Fourth Amendment.” Id. (citing Griffin, 483 U.S. at 879; Knights, 534 U.S. at 121). The
Samson Court concluded that “[i]mposing a reasonable suspicion requirement . . . would
give parolees greater opportunity to anticipate searches and conceal criminality.” Id. at
855 (citing Knights, 534 U.S. at 120; Griffin, 483 U.S. at 879). After considering the
State’s interests and the parolee’s lack of any legitimate expectation of privacy, the
Samson Court held that “the Fourth Amendment does not prohibit a police officer from
conducting a warrantless, suspicionless search of a parolee.” Id. at 857.

       In State v. Turner, a majority of this Court “adopt[ed] the reasoning of Samson
and h[e]ld 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.” 297 S.W.3d at 166 (footnote omitted). We
emphasized, however, that Samson is “a narrow exception to the usual rule.” Id. at 164.
Turner also expressly adopted the distinction Samson had drawn between the privacy
                                           -7-
interests of probationers and parolees, stating: “On the continuum of possible
punishments and reductions in freedoms, parolees occupy a place between incarcerated
prisoners and probationers.” Id. at 162. We opined that “parole status is . . . much more
akin to incarceration than probation . . . in determining the reasonableness of a search.”
Id. at 166. In other words, we held that probationers have greater expectations of privacy
than parolees. In the more recent State v. Stanfield decision, this Court reaffirmed Turner
and its adoption of the Samson analysis and again quoted with approval the distinction
Turner and Samson had drawn between the privacy interests of probationers and
parolees. 554 S.W.3d at 10-11.

       In upholding the warrantless and suspicionless search in this case, three of the
justices in the Stanfield majority now abandon this distinction, equate the privacy
interests of parolees and probationers, and uphold warrantless and suspicionless searches
of probationers, citing “logic[]” and “public policy concerns” in support of its ruling.
The majority is not alone in extending Samson to probationers, as courts in other
jurisdictions have done so as well.4 However, I remain convinced that the distinction
drawn in Griffin, Knights, Samson, Turner, and Stanfield remains valid and that
probationers retain greater expectations of privacy than parolees. Indeed, Tennessee
statutes illustrate why this distinction is appropriate.

       Under the Criminal Sentencing Reform Act of 1989 (“the 1989 Act”), trial judges
are encouraged “to use alternatives to incarceration,” Tenn. Code Ann. § 40-35-103(6)
(2014), including probation, to promote effective rehabilitation, id. § 40-35-102(3)(C)
(2014). But the 1989 Act reserves favorable consideration for alternative sentencing to
offenders who have committed less serious crimes—especially mitigated and standard
offenders who have been convicted of Class C, D, or E felonies—and for offenders who
have less lengthy criminal histories. Tenn. Code Ann. § 40-35-102(6)(A) (2014). Only
offenders who receive sentences of ten years or less are eligible for probation

        4
           See, e.g., United States v. Williams, 650 F.App’x 977, 980 (11th Cir. 2016) (upholding the
constitutionality of a suspicionless search of the home of a probationer subject to a warrantless search
provision where the search was conducted primarily by probation officers); United States v. Tessier, 814
F.3d 432, 434-35 (6th Cir. 2016) (upholding a warrantless, suspicionless search of the residence of a
Tennessee probationer who was subject to a warrantless search condition because the search served a
legitimate law enforcement or probationary purpose); United States v. King, 736 F.3d 805, 810 (9th Cir.
2013) (concluding that “a suspicionless search, conducted pursuant to a suspicionless-search condition of
a violent felon’s probation agreement, does not violate the Fourth Amendment”); State v. Vanderkolk, 32
N.E.3d 775, 779 (Ind. 2015) (applying the holding in Samson to probationers and community corrections
participants). Cf. State v. Adair, 383 P.3d 1132, 1135-38 (Ariz. 2016) (upholding as constitutionally
valid a warrantless search of a probationer’s home conducted by probation officers pursuant to
valid probation conditions but declining to address whether law enforcement officers may constitutionally
conduct a warrantless, suspicionless search as there was sufficient evidence in this case).


                                                  -8-
consideration. Id. § 40-35-303(a) (2018 Supp.). Persons convicted of certain offenses,
such as vehicular homicide by driving while intoxicated, aggravated kidnapping,
aggravated robbery, aggravated sexual battery, statutory rape by an authority figure,
aggravated child abuse and neglect, certain drug offenses, and certain sexual exploitation
offenses, are not eligible for probation. Id.

        Even if an offender satisfies the criteria for favorable consideration for alternative
sentencing and eligibility for probation, trial judges retain discretion to deny probation
entirely or to impose a sentence of full or partial confinement for other reasons, including
if the trial judge determines that (1) “[c]onfinement is necessary to protect society by
restraining a defendant who has a long history of criminal conduct;” (2) “[c]onfinement is
necessary to avoid depreciating the seriousness of the offense or confinement is
particularly suited to provide effective deterrence to others likely to commit similar
offenses;” or (3) “[m]easures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant.” Tenn. Code Ann. § 40-35-103(1) (2014).
If a trial court “determines that a period of probation is appropriate, the court shall
sentence the defendant to a specific sentence but shall suspend the execution of all or part
of the sentence and place the defendant on supervised or unsupervised probation either
immediately or after a period of confinement for a period of time no less than the
minimum sentence allowed under the classification and up to and including the statutory
maximum time for the class of the conviction offense.” Id. § 40-35-303(c)(1) (2014).
Trial courts may also impose probation for misdemeanor offenses, and in certain limited
circumstances, may sentence misdemeanor offenders to up to two years on probation. Id.
§ 40-35-303(c)(2).

       These Tennessee statutes are designed to give trial courts wide discretion in
imposing probation as a sentence and afford trial courts plenty of discretion to deny
probation, should the trial court determine that releasing an offender will pose too many
risks to the public. No Tennessee statute suggests that the General Assembly believes
warrantless, suspicionless searches are required to advance the State’s interests in
supervising probationers. For example, there is no Tennessee law, like the California law
at issue in Samson, requiring courts to condition probation on a probationer’s willingness
to accept a warrantless, suspicionless search condition. Rather, Tennessee statutes are
designed to ensure that probation is reserved for offenders who commit less serious
offenses, who have minimal criminal histories, and who pose the least recidivism risk and
the least risk of danger to the public. Tennessee statutes give trial courts the discretion
needed to determine which offenders should be incarcerated and which offenders should
be probated.

       On the other hand, parolees, by definition, are offenders that have been ordered to
serve their sentences in confinement. Tenn. Code Ann. § 40-35-501(a)(1) (2014) (“An
inmate shall not be eligible for parole until reaching the inmate’s release eligibility date .
                                             -9-
. . .”); id. § 40-35-501(a)(2) (“[O]nly inmates with felony sentences of more than two (2)
years or consecutive felony sentences equaling a term greater than two (2) years shall be
eligible for parole consideration.”). This fact alone is significant because, under the 1989
Act, “first priority regarding sentencing involving incarceration” is given to “convicted
felons committing the most severe offenses, possessing criminal histories evincing a clear
disregard for the laws and morals of society and evincing failure of past efforts at
rehabilitation.” Tenn. Code Ann. § 40-35-102(5) (emphasis added). These Tennessee
statutes illustrate that parolees are, by definition, closer on the continuum to incarceration
than probationers. Parolees have committed more severe criminal offenses than
probationers, have more lengthy criminal records than probationers, and have failed at
past efforts of rehabilitation.

       These statutory differences between probationers and parolees fully warrant the
distinction that the United States Supreme Court and this Court have drawn between the
privacy interests of probationers and parolees. Therefore, I would reaffirm our prior
decisions distinguishing between the expectations of privacy of probationers and
parolees. I would hold, as some courts in other jurisdictions have held, that searches of
probationers must be based on reasonable suspicion.5

       This holding would be consistent with the Samson Court’s express recognition
that probationers retain greater expectations of privacy than parolees. It also would
recognize that the United States Supreme Court has never approved as constitutionally
permissible warrantless and suspicionless searches of probationers. In Griffin and in
Knights, some level of individualized suspicion supported the searches. In Griffin, the
Supreme Court approved a regulation that permitted warrantless searches based on
“reasonable grounds” to believe that contraband was present, 483 U.S. at 871, and in
Knights, the Supreme Court upheld a warrantless search that was supported by
reasonable suspicion, 534 U.S. at 121-22. This Court certainly is free to interpret the


        5
           See, e.g., State v. Bennett, 288 Kan. 86, 200 P.3d 455, 463 (Kan. 2009) (holding that
a probationer may not be searched by a probation or law enforcement officer absent reasonable suspicion
and that a condition imposed by the trial court subjecting the probationer to random, suspicionless
searches was unconstitutional); State v. Cornell, 146 A.3d 895, 909 (Vt. 2016) (declining to
extend Sampson to searches of probationers and holding that “reasonable suspicion for search and seizure
imposed on probationers is required by the Fourth Amendment”); see also State v. Ballard, 874 N.W.2d
61, 62 (N.D. 2016) (concluding that the suspicionless search of the home of an
unsupervised probationer subject to a warrantless search condition was unreasonable under the Fourth
Amendment); Murry v. Commonwealth, 762 S.E.2d 573, 581 (Va. 2014) (concluding that
a probation condition subjecting a probationer to a warrantless, suspicionless search by any probation or
law enforcement officer at any time was not reasonable in light to the probationer’s background, his
offenses, and the surrounding circumstances).



                                                 - 10 -
Tennessee Constitution as affording greater protection than the United States
Constitution, Doe v. Norris, 751 S.W.2d 834, 838 (Tenn. 1988). On the other hand,

       [w]e are bound by the interpretation given to the United States Constitution
       by the Supreme Court of the United States. This is fundamental to our
       system of federalism. The full, final, and authoritative responsibility for the
       interpretation of the federal constitution rests upon the Supreme Court of
       the United States. This is what the Supremacy Clause means.

Miller v. State, 584 S.W.2d 758, 760 (Tenn. 1979), overruled on other grounds by State
v. Pruitt, 510 S.W.3d 398 (Tenn. 2016).

        Therefore, the United States Constitution, as interpreted by the United States
Supreme Court, establishes the minimal, “floor . . . of constitutional protection” to which
all citizens are entitled. Kreimer v. Bureau of Police, 958 F.2d 1242, 1269 (3d Cir.
1992). I fear that the majority in this case has opened a trap door in the floor of minimal
protection, without any sound legal basis for doing so, by approving warrantless and
suspicionless searches of probationers when the United States Supreme Court has never
done so and has expressly distinguished between probationers and parolees.

        Here, as in Knights, the warrantless, suspicionless search occurred in the
probationer’s home where her expectation of privacy was at its most robust. Vernonia
Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 (1995) (“What expectations are legitimate
varies, of course, with context, depending, for example, upon whether the individual
asserting the privacy interest is at home, at work, in a car, or in a public park.” (citation
omitted)). The “physical entry of the home is the chief evil against which the wording of
the Fourth Amendment is directed.” United States v. U.S. Dist. Court, 407 U.S. 297, 313
(1972); see also Silverman v. United States, 365 U.S. 505, 511 (1961) (“At the very core
[of the Fourth Amendment] stands the right of a [person] to retreat into his own home and
there be free from unreasonable governmental intrusion.”). Therefore, I would require
the State to establish that the search was based on reasonable suspicion of the
probationer’s criminal activity. Knights, 534 U.S. at 121-22 (upholding a search based
on “reasonable suspicion that [the probationer] . . . is engaged in criminal activity”
(citations omitted)). This lesser standard of individualized suspicion is not overly
burdensome, and it strikes the appropriate balance between the State’s legitimate interests
in rehabilitation, prevention of recidivism, and reintegration into society, and the
probationer’s significantly diminished, but not extinguished, expectation of privacy.

      The reasonable suspicion standard would provide some guidance for and restraint
upon the discretion law enforcement officers exercise in probationer searches. Requiring
reasonable suspicion for probationer searches also would lessen, and perhaps even
eliminate, the risk of repeated, disruptive, and potentially harassing searches of
                                            - 11 -
probationers at their homes, schools, places of employment, or other public places.
Indeed, authorizing warrantless, suspcionless searches actually may impede the State’s
legitimate goals of rehabilitation and reintegration. State v. Hamm, No. W2016-01282-
CCA-R3-CD, 2017 WL 3447914, at *13 (Tenn. Crim. App. Aug. 11, 2017) (Williams, J.,
concurring). Such searches call attention to a probationer’s criminal conduct and have
the potential to stigmatize probationers. Many probationers will have little recourse
should warrantless, suspicionless searches become repetitive or harassing. As Judge John
Everett Williams explained in his separate opinion in the Court of Criminal Appeals:

              While such intimidating and harassing searches might be
       challengeable in a motion to suppress if officers happen to discover
       evidence of illegal activity, a probationer who is following the law and the
       conditions of probation but nevertheless continues to be subject to
       intimidating and harassing searches has little recourse.

              A suspicionless search of a probationer at . . . her place of
       employment runs the risk of disrupting the business and could subject the
       employer and other employees to a search that would not otherwise be
       constitutionally permissible. As a result, an employer has less of an
       incentive to hire a probationer subject to this condition.

Hamm, 2017 WL 3447914, at *13-14 (Williams, J., concurring).

       Warrantless, suspicionless searches also may hamper rehabilitation by making it
difficult for probationers to find housing. Anyone sharing a residence with a probationer
loses a portion of his or her own constitutional protections because areas of the residence
over which the probationer exercises common authority also will be subject to
warrantless, suspicionless searches under the common authority doctrine. Id. In
addition, searches often are not confined to common areas. As Judge Williams noted, the
officers in this case did not limit their search to areas over which Angela Payton Hamm
exercised common authority but searched every room of the residence except one. Id.

       Another troubling aspect is that the majority’s decision cannot logically be limited
to supervised probationers who have been convicted of felony offenses, like Angela
Payton Hamm, although the majority purports to do so by including a single footnote.
The decision discusses “probationers” broadly and provides no basis for distinguishing
between felons on supervised probation and persons serving sentences on community
corrections or unsupervised probationers. Although the majority by that same footnote
also purports to exempt from its analysis misdemeanants placed on probation, the
majority again offers no reasoned basis for this exemption. The basis for such an
exemption certainly is not apparent from the majority’s analysis. For example, if the
severity of an offense could serve as a reason for distinguishing between felony and
                                           - 12 -
misdemeanor probationers, why would it not also serve as a basis for distinguishing
between parolees and probationers? While the full breadth of the majority’s decision
allowing warrantless, suspicionless searches remains to be seen, it clearly encompasses
57,832 probationers that the Tennessee Department of Correction reported supervising as
of June 30, 2018. Tenn. Dep’t of Corr., Annual Report 6 (2018) (available at
https://www.tn.gov/content/dam/tn/correction/documents/AnnualReport2018.pdf).6 This
number rises to 65,541 Tennesseans if the majority’s decision extends to persons serving
sentences on community corrections. Id.

         The majority’s ruling and the rulings of courts in other jurisdictions upholding
the constitutionality of such warrantless, suspicionless searches of probationers constitute
a serious erosion of the Fourth Amendment’s protection against unreasonable searches
and seizures. “The historical record demonstrates that the framers believed that
individualized suspicion was an inherent quality of reasonable searches and seizures.”
Thomas K. Clancy, The Role of Individualized Suspicion in Assessing the
Reasonableness of Searches & Seizures, 25 U. Mem. L. Rev. 483, 489 (1995). The
United States Supreme Court should grant review on this issue and restore this core
Fourth Amendment protection for probationers by holding that warrantless searches of
probationers are constitutionally permissible only if based upon reasonable suspicion of a
probationer’s involvement in criminal activity. Until the United States Supreme Court
acts, however, the Tennessee General Assembly should restore this minimal protection
by enacting a statute that requires law enforcement officials to establish reasonable
suspicion for warrantless searches of probationers. E.g., Kan. Stat. Ann. § 21-6607(c)(5)
(West 2011) (requiring that searches of probationers by law enforcement and probation
officials be “based on reasonable suspicion” of probation violations or criminal activity).
As already explained herein, a statute imposing this minimal individualized suspicion
requirement would advance the State’s interests in rehabilitation and reintegration.

                      II. Reasonable Suspicion Was Not Established

       Here, the trial court found that the State had failed to establish that the search of
Angela Payton Hamm’s home was supported by reasonable suspicion. A trial court’s
findings of fact in a suppression hearing are upheld on appeal unless the evidence
preponderates against those findings. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
“The credibility of witnesses, the weight and value of the evidence, and the resolution of
conflicts in the evidence are matters entrusted to the trial judge.” State v. Climer, 400
S.W.3d 537, 556 (Tenn. 2013) (citing Odom, 928 S.W.2d at 23). The evidence does not
preponderate against the trial court’s findings.


       6
          There are over five times more probationers (57,832) in Tennessee than parolees (11,163).
Tenn. Dep’t of Corr., Annual Report 6 (2018) (available at https://www.tn.gov/content/
dam/tn/correction/documents/AnnualReport2018.pdf).
                                              - 13 -
       Courts consider the totality of the circumstances when determining whether
specific and articulable facts establish reasonable suspicion. State v. Watkins, 827
S.W.2d 293, 294 (Tenn. 1992) (citing United States v. Cortez, 449 U.S. 411, 417 (1981)).
The relevant non-exclusive circumstances are “[the officer’s] objective observations,
information obtained from other police officers or agencies, information obtained from
citizens, and the pattern of operation of certain offenders.” Id. (citing Cortez, 449 U.S. at
418). “A court must also consider the rational inferences and deductions that a trained
police officer may draw from the facts and circumstances known to him.” Id. (citing
Terry, 392 U.S. at 21). But, reasonable suspicion must be based on something more than
an officer’s “inchoate and unparticularized suspicion or ‘hunch.’” Hanning, 296 S.W.3d
at 49 (quoting Terry, 392 U.S. at 27). The officers here had only second hand non-
specific information, and only one statement from an unidentified informant who had
friends that claimed to have purchased methamphetamine from the defendants.

        In particular, Deputy James Hall of the Obion County Sheriff’s Office received
information from a female, Lindsey Gream, when he served her with an arrest warrant
arising from an incident in Dyer County. After thanking him “for taking her to the
hospital and keeping her alive,” she told Deputy Hall “there [were] some heavy players in
Obion County that [law enforcement officers] needed to watch.” When Deputy Hall
asked her to identify them, she refused “to say specifically who exactly,” but told him
that they were located in “Glass.”7 When Officer Hall said “David Hamm,” Ms. Gream
“looked at [him], nodded her head, and smiled.” Ms. Gream told Deputy Hall that “they”
had been trafficking ice methamphetamine to Obion County and “making trips frequently
across the river.” She gave no indication of how she knew of these illegal activities but
indicated that she believed “they” had “re-upped that day, [or] a couple of days prior . . .
which mean[t] receiving, buy[ing] more methamphetamine or narcotics.” Deputy Hall
used the pronoun “they” in his testimony but identified David Hamm as the only person
Ms. Gream identified. If he had information implicating Angela Payton Hamm in any
illegal activities, Deputy Hall did not discuss it in his testimony.

       Officer Ben Yates of the Union City Police Department provided the only
testimony about information implicating Angela Payton Hamm in illegal activity. Officer
Yates said that he received information from “a reliable informant” one day before the
warrantless, suspicionless search at issue here. This reliable informant told Officer Yates
“that David Hamm and Angela Payton were ‘doing it big in Glass.’”8 According to
Officer Yates, this informant “had been involved in numerous narcotic cases, the seizure

        7
          In footnote five of its brief to this Court, the State appears to interpret Glass as a common street
name for methamphetamine, but the record belies this interpretation and indicates that, as used in this
case, the word refers to a location not a drug.
        8
           In the transcript on appeal, quotation marks that apparently were intended to indicate the
statement the informant made to Officer Yates appear only around the words “doing it big in Glass.”
                                                 - 14 -
of narcotics, made numerous cases for the drug task force” but had not personally
observed David Hamm or Angela Payton Hamm involved in illegal drug activities or
transactions and had never personally been inside the residence that was searched. The
informant’s secondhand information came from the informant’s “friends [who]
purchase[d] methamphetamine.”

        Officer Yates did not interview the informant’s friends or corroborate by any other
means the informant’s information. Officer Yates acknowledged that another informant
“who was cooperating with the drug task force” went to the residence that was searched
and attempted to purchase methamphetamine from Clifton Hamm, who also lived there,
but was unable to do so. Officer Yates did not explain why the controlled drug buy
failed. The State has also suggested that Clifford Hamm’s suspicious conduct concerning
the security cameras also established reasonable suspicion. But Angela Payton Hamm
was not on the property when this conduct occurred, and it bore no connection to her. In
short, the record overwhelmingly supports the trial court’s finding that the officers lacked
specific and articulable facts necessary to establish reasonable suspicion that Angela
Hamm was engaged in criminal activity.

                                       III. Consent

       In the Court of Criminal Appeals, the State also sought to justify the search by
arguing that Angela Payton Hamm consented to warrantless, suspicionless searches when
she accepted the probation search condition. See Hamm, 2017 WL 3447914, at *16
(Williams, J., concurring) (discussing consent). The State has not raised that issue in this
Court, and for good reason, because the record wholly belies the assertion. The unrefuted
proof in the record establishes that the probation search condition Angela Payton Hamm
accepted should be understood as waiving only the warrant and probable cause
requirements and requiring reasonable suspicion. The search condition stated: “I agree to
a search, without warrant, of my person, vehicle, property, or place of residence by any
Probation/Parole Officer or law enforcement officer, at any time.” Deputy Hall testified
that this search condition required the officers to have reasonable suspicion for any
search. Deputy Hall was asked: “Why did you think you needed reasonable suspicion,
when [Angela Payton Hamm’s probation] document says nothing about it?” He
responded: “Some documents of State probation or parole are somewhat similar,
somewhat different. On some documents it actually has in there without reasonable
suspicion. This document, however, does not say without reasonable suspicion. That’s
why I established reasonable suspicion prior to the search.” (Emphasis added.)
Therefore, even assuming a probationer’s acceptance of a probation search condition
may, in some circumstances, be deemed consent to suspicionless searches, the unrefuted
proof establishes that this is not one of those circumstances and that Angela Payton
Hamm did not consent to suspicionless searches by her acceptance of the probation
search condition here.
                                           - 15 -
        Finally, in light of Deputy Hall’s unrefuted testimony that the probation search
condition obligated the State to establish reasonable suspicion for any search, the
majority could have avoided deciding whether warrantless, suspicionless probationer
searches are constitutionally permissible and resolved this appeal by deciding whether
this search was supported by reasonable suspicion. See Keough v. State, 356 S.W.3d
366, 371 (Tenn. 2011) (“This Court decides constitutional issues only when absolutely
necessary for determination of the case and the rights of the parties. Where an appeal can
be resolved on non-constitutional grounds, we avoid deciding constitutional issues.”
(citations omitted)). The majority has instead chosen to resolve the constitutional issue
and approve warrantless, suspicionless searches of probationers. Therefore, I am
constrained to respectfully dissent from the majority’s decision.



                                                   _________________________________
                                                   CORNELIA A. CLARK, JUSTICE




                                          - 16 -
