                                                                                          08/07/2018
                 IN THE SUPREME COURT OF TENNESSEE
                             AT JACKSON
                               November 8, 2017 Session

   STATE OF TENNESSEE v. JANET MICHELLE STANFIELD, TONY
        ALAN WINSETT and JUSTIN BRADLEY STANFIELD

              Appeal by Permission from the Court of Criminal Appeals
                          Circuit Court for Obion County
                   No. CC-15-CR-84           Jeff Parham, Judge
                      ___________________________________

                            No. W2015-02503-SC-R11-CD
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SHARON G. LEE, J., dissenting in part and concurring in part in the judgment.

       The warrantless search of the home of Tony Winsett, Janet Stanfield, and her son,
Justin Stanfield, violated their rights under Article I, section 7 of the Tennessee
constitution to be free from unreasonable searches and seizures. Mr. Winsett’s parolee
status should not subject him, Ms. Stanfield or Mr. Stanfield to a warrantless and
suspicionless search. The trial court did not err in suppressing evidence from the illegal
search of the Winsett/Stanfield home. The majority does not err in suppressing the
evidence as to Mr. Stanfield, although I do not agree with the majority’s reasoning.

        With nothing more than the knowledge that Mr. Winsett was on parole and a tip
from an informant that Mr. Winsett was using (or selling) methamphetamine and possibly
injecting with needles, police officers entered the curtilage of the Winsett/Stanfield home.
The officers, without a warrant, first searched a burn pile close to the home, finding
plastic bags containing what appeared to be marijuana residue. They found neither
methamphetamine nor needles. They began knocking on the front and back doors of the
home and waited for an answer for ten to twenty minutes—even though there was no
vehicle in the driveway. During this prolonged wait period, one of the officers went to the
side of the house and listened at an open window. Again, with no search warrant. The
officers heard a “running noise” inside the home and concluded someone was inside,
actively destroying evidence. The officers failed to mention hearing this “running noise”
in their post-search reports.

       Fearing the destruction of evidence, the officers forcibly entered the home without
a search warrant while Mr. Winsett, Ms. Stanfield, and Mr. Stanfield were away. Once
inside, the officers encountered a four-legged dog scampering about—perhaps excited by
the door-knocking at both ends of the house—not a two-legged person destroying
evidence. They searched the entire home without a search warrant and without exigent
circumstances.

       When police officers search a home without a warrant, the search is presumptively
unreasonable under both the United States and Tennessee constitutions. See State v.
McCormick, 494 S.W.3d 673, 679 (Tenn. 2016). The Fourth Amendment to the United
States Constitution and Article I, section 7 of the Tennessee constitution guarantee this
basic right. Evidence discovered in an unconstitutional search is not admissible into
evidence. State v. Turner, 297 S.W.3d 155, 160 (Tenn. 2009) (citing Coolidge v. New
Hampshire, 403 U.S. 443, 454–55 (1971)).

       The majority notes that Mr. Winsett had agreed under his parole conditions to a
warrantless search of his “person, vehicle, property, or place of residence by any
Probation/Parole officer or law enforcement officer, at any time without reasonable
suspicion.” But this observation misses the mark. Mr. Winsett did not voluntarily agree to
give up his constitutional rights; he had no choice but to sign this “agreement” to be
released on parole. See State v. Baldon, 829 N.W.2d 785, 802–03 (Iowa 2013)
(concluding that a “parole agreement containing a prospective search provision is
insufficient evidence to establish consent” and “reveals an absence of bargaining power
on behalf of the parolee, rendering contract principles inadequate to entitle the state to
enforce compliance of a search provision”); People v. Huntley, 371 N.E.2d 794, 798
(N.Y. 1977) (holding that the parolee’s signature of parole agreement “is not to be taken
as an unrestricted consent to any and all searches whatsoever or as a blanket waiver of all
constitutional rights to be secure from unreasonable searches and seizures”); Scott v. Bd.
of Prob. & Parole, 698 A.2d 32, 36 (Pa. 1997) (holding parolee’s right to be free from
unreasonable searches and seizures was “unaffected by his signing of the consent to
search provision”).

       In upholding the warrantless search of the Winsett/Stanfield home, the majority
relies on its holding in Turner that law enforcement may search parolees, their homes,
and their vehicles without reasonable or individualized suspicion. 297 S.W.3d at 169. I
dissented in Turner because, under Tennessee’s constitution, law enforcement should not
have the right to search a parolee’s home without a warrant and without reasonable
suspicion.

       Requiring law enforcement to have reasonable suspicion before conducting a
warrantless search of a parolee “strikes a more appropriate balance between the
individual’s right to be free from unreasonable searches and the government’s legitimate
interest in preventing crime” than a blanket approval of searches based on parolee status
alone. Turner, 297 S.W.3d at 170 (Lee, J., dissenting). Other courts agree that reasonable
suspicion is necessary to justify a warrantless search. See State v. Bennett, 200 P.3d 455,
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463 (Kan. 2009) (holding that “parolees in Kansas have an expectation that they will not
be subjected to suspicionless searches”); Commonwealth v. Moore, 43 N.E.3d 294, 300
(Mass. 2016) (concluding that “reasonable suspicion, but not a warrant, was needed to
justify a search of a parolee’s home”); State v. Heaton, 812 N.W.2d 904, 909 (Minn. Ct.
App. 2012) (concluding that “the search of a parolee’s home requires only reasonable
suspicion”); Commonwealth v. Hughes, 836 A.2d 893, 899 (Pa. 2003) (“A search is only
reasonable where . . . (1) the parole officer had reasonable suspicion to believe that the
parolee committed a parole violation; and (2) the search was reasonably related to the
duty of the parole officer.”); State v. Kline, 891 N.W.2d 780, 783 (S.D. 2017) (“Parole
agents may search a parolee’s residence if they have reasonable suspicion that the parolee
has committed a crime.”). “The suspicionless search is the very evil the Fourth
Amendment was intended to stamp out.” Samson v. California, 547 U.S. 843, 858 (2006)
(Stevens, J., dissenting) (citing Boyd v. United States, 116 U.S. 616, 625–630 (1886)).

        Reasonable suspicion is “a particularized and objective basis for suspecting the
subject of a stop of criminal activity” in the context of an investigatory stop. State v.
Davis, 354 S.W.3d 718, 727 (Tenn. 2011) (quoting State v. Day, 263 S.W.3d 891, 902
(Tenn. 2008)) (internal quotation marks omitted). Determining whether reasonable
suspicion is supported by specific and articulable facts requires consideration of the
totality of the circumstances established by the proof. Davis, 354 S.W.3d at 727 (internal
citations omitted).

        So the issue boils down to whether the police had a reasonable suspicion of
criminal activity before searching the curtilage of the Winsett/Stanfield home and
forcibly entering and searching the home while its residents were away. All the police
had was knowledge that Mr. Winsett was on parole and an uncorroborated tip from a
criminal informant that Mr. Winsett was either “using methamphetamine and possibly
injecting with needles” or “selling ice meth and possibly using hypodermic needles”—
depending on whether you rely on testimony given at the suppression hearing or the
officers’ incident reports. Are these two facts sufficient to satisfy a requirement for
reasonable suspicion? I think not.

        Here, the informant was from the “criminal milieu”; therefore, we do not presume
the reliability of his tip to police. See State v. Tuttle, 515 S.W.3d 282, 301 (Tenn. 2017)
(citing State v. Smotherman, 201 S.W.3d 657, 662 (Tenn. 2006)). In evaluating the tip,
we consider the totality of the circumstances, including the basis for the informant’s
knowledge and the reliability of the informant or the information. Id. (citing State v.
Williams, 193 S.W.3d 502, 507 (Tenn. 2006)).

       The police had limited experience with the criminal informant. He had previously
supplied information that had led to a “case,” but apparently had not, as of yet, led to a
conviction. There is no evidence as to how “fresh” the tip was. The police did not recall
the informant’s basis of knowledge for the tip. In addition, there was no effort by the

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police to corroborate the veracity of the informant’s tip before conducting the search of
the home’s curtilage. Although the police do not have to corroborate every detail of a tip,
“more than the corroboration of a few minor elements of the story is necessary.” State v.
Moon, 841 S.W.2d 336, 341 (Tenn. Crim. App. 1992) (quoting United States v. Bush,
647 F.2d 357, 363 (3rd Cir. 1981)).

       In sum, based on the totality of the circumstances, the police lacked reasonable
suspicion to search the curtilage of the Winsett/Stanfield home and then forcibly enter
and search the home. Evidence found during a search cannot be used to justify the initial
entry.

       For these reasons, I would hold that the trial court did not err in suppressing
evidence uncovered in this warrantless and suspicionless search as to Mr. Winsett, Ms.
Stanfield, and Mr. Stanfield.


                                                  ________________________________
                                                  SHARON G. LEE, JUSTICE




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