                                                                                      03/05/2020
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                               August 6, 2019 Session

               STATE OF TENNESSEE v. GREG PATTERSON

               Appeal from the Circuit Court for Lauderdale County
                    No. 10466    Joseph H. Walker III, Judge


                           No. W2018-01799-CCA-R3-CD


The Defendant, Greg Patterson, was involved in dependent and neglect proceedings in
juvenile court and tested positive for methamphetamine in a drug screen ordered by that
court. He was, thereafter, charged with attempted aggravated child neglect for exposing
his two-year-old child to methamphetamine. The trial court denied the Defendant’s
pretrial motion to suppress the drug screen results, and a jury ultimately convicted the
Defendant as charged. On appeal, the Defendant submits that the trial court erred by
denying his suppression motion because he did not voluntarily consent to a search and,
moreover, because the special needs exception to the warrant requirement does not apply.
Following our review, we conclude that the search was constitutionally reasonable as a
special needs exception. Accordingly, the judgment of the trial court is affirmed.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and NORMA MCGEE OGLE, J., joined.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Mark E. Davidson, District Attorney General; and Julie K. Pillow,
Assistant District Attorney General, for the appellant, State of Tennessee.

Jason R. Creasy, Dyersburg, Tennessee, for the appellee, Greg Patterson.

                                   OPINION
                             FACTUAL BACKGROUND

       The Defendant was ordered by a juvenile court judge to undergo hair-follicle drug
screening during dependent and neglect proceedings concerning the Defendant’s two-
year child. Following his positive result, the Lauderdale County Grand Jury, on October
2, 2017, charged the Defendant with attempted aggravated child neglect for exposing his
child to methamphetamine, a Class B felony. See Tenn. Code Ann. §§ 39-12-101, -15-
402.

        Prior to trial, the Defendant filed a motion to suppress the “results of [the] drug
screen” that was ordered in juvenile court, alleging that the search violated the Fourth
Amendment to the United States Constitution. The Defendant maintained that he did not
voluntarily consent to the search, noting that he “was not advised of his constitutional
rights[,] including self-incrimination[,] prior to” being required to submit to drug
screening. The State filed a response, asserting first that the Defendant provided valid
consent to search by appearing at the drug-screening center, “signing the disclosure
form,” and “submitting to the test.” The State also indicated that the Defendant had no
expectation of privacy because he “was well aware of the nature of [the juvenile]
proceedings with regard to the neglect of his child” and that his drug screen results were
to be provided to the juvenile court and used to determine the outcome of those
proceedings. Alternatively, the State maintained that the search fell within the “special
needs” exception to the warrant requirement due to the fact it was ordered by a juvenile
court judge in relation to a dependent and neglect petition that had been filed against the
Defendant on behalf of his two-year-old child. The State noted that the juvenile court
had the “responsibility of protecting” the children of Tennessee and that in this case,
“there was a legitimate suspicion that the parents were using drugs and that the child[]
had been drug exposed as a result.” The State concluded that under these circumstances,
“the safety interests outweighed the privacy interests of the individual.”

       A hearing was held on January 25, 2018, where the following evidence was
adduced.1       The Lauderdale County Juvenile Court Administrator, Kim Coffee, was
called to testify and confirmed that Officer Dennis Hardee2 filed a dependent and neglect
petition with the juvenile court on June 12, 2017, concerning the Defendant, the
Defendant’s two-year-old3 child (“J.P.”),4 and the child’s mother. The petition also
1
  We note that the actual exhibits from the hearing were not presented or certified to this court. However,
the transcript clearly described each exhibit before said piece of evidence was entered into evidence. In
addition, all of the exhibits were attached to the State’s response to the Defendant’s motion to suppress
and, thus, are a part of the technical record on appeal. Although this is not the proper way to certify
exhibits to the appellate court, we will rely on them in issuing our opinion because it is clear that these
were the exhibits entered into evidence at the suppression hearing.
2
 The transcript spells the officer’s last name as Hardy, but the documents in the record reflect the spelling
as Hardee. Because the officer himself assisted in preparation of the dependent and neglect petition, we
will use the spelling contained therein.
3
  Although all references were to this child being two years of age, including her age listed on the petition
itself, it appears that she was in fact only one year of age at the time the petition was filed based upon her
birthdate provided therein.

                                                     -2-
involved an older child of the mother’s, nine-year-old M.M., who lived with the couple;
M.M. was fathered by another man, F.J. Specifically, with regard to Officer Hardee’s
employment, Ms. Coffee stated that he “work[ed] for [her]” as an investigator for the
Lauderdale County Juvenile Court, though, she also agreed that he was “actually a police
officer[.]”

       Ms. Coffee indicated that Officer Hardee’s affidavit in the petition was “pretty
lengthy.” Officer Hardee’s affidavit reads, in pertinent part, as follows:

               [S]aid children are dependent and neglected in that the children’s
        mother . . . admitted that she and the [Defendant] have drug addictions
        including methamphetamine and have used methamphetamine in a
        bathroom of the home and the shop behind the home of [the Defendant].
        The [Defendant] has punched the mother in the face, breaking her jaw, and
        knocking her to the ground while she was holding [J.P.] The mother states
        that she lied when she received medical treatment and stated that she fell.
        On September 15, 2016, the mother reports that [the Defendant] blacked
        her eye and left bruises all over her body. She states that she has been
        slapped, bitten and spit on by [the Defendant]. The mother has filed two
        Orders of Protection against the [Defendant] in the past but has dropped
        both. The [Defendant] is currently on parole5 on drug charges and the
        mother reports that he was fired from MidSouth Suppliers after wrecking a
        work vehicle and failing a drug screen. The mother was fired from her job
        at O’Reilly’s recently for refusing to take a drug screen. The [paternal]
        grandmother, [T.P.], resides in the home with the parents and the [children],
        and she has been incarcerated in the Lauderdale County Jail for Vandalism
        and Resisting Arrest involving the mother . . . . [The Defendant] insists that
        [T.P] is too mentally unstable to live on her o[w]n. [The Defendant and
        T.P.] fight each other, and [T.P.] has threatened the mother in front of
        [M.M.] [The Defendant] has hit himself in the face repeatedly, outraged
        because he thought the mother was lying to him. The mother reports that
        she has seen the [Defendant] sell drugs outside their home and also done
        drugs with people at their shop. [T.P.] has also threatened to kill herself on
        multiple occasions. [The Defendant and T.P.] both have threatened to kill
        the mother. There are voice recorders hidden around the home and cameras
        on the outside of the home. The mother contacted [M.M.’s] father, [F.J.],

4
  It is the policy of this court to refer to minors by their initials. To protect the minors’ privacy, we will
also refer to family members by their initials.
5
  Based upon the testimony at trial and the judgment form, it appears that the Defendant was on
probation, not parole.
                                                     -3-
       on Saturday, stating that she needed help for her drug addiction and she
       wanted [M.M.] to stay with him. The mother stated that she was going to
       be admitted into Lakeside. However, she feared for the safety of her
       youngest child, [J.P.,] and therefore, only agreed to do outpatient treatment
       three days per week. Today, the mother is going to check herself into
       Lakeside for inpatient treatment and stated the [Defendant] needs to do the
       same.

        Ms. Coffee explained that, generally, after a dependent and neglect petition was
filed with the juvenile court, the juvenile court judge reviewed the petition and decided
whether emergency removal of the child(ren) was necessary. In this case, the juvenile
court judge entered an order on the same day the petition was filed, June 12, 2017, and
placed the minor children in protective custody. Specifically, the juvenile court judge
determined that there was probable cause to believe the children were dependent and
neglected within the meaning of the law; that the children were subjected to an immediate
threat to their health and safety to the extent that delay for a hearing would likely result in
severe or irreparable harm; that there was no less drastic alternative to removal available
that would reasonably and adequately protect the children’s health and safety pending a
preliminary hearing; and that it was contrary to the children’s welfare at that time to
remain in the care, custody, or control of the Defendant and their mother. In so
concluding, the juvenile court judge cited to the detailed facts set forth in Officer
Hardee’s affidavit.

       Following a June 15, 2017 hearing, the juvenile court judge issued a written
“Order on Preliminary Hearing.” Ms. Coffee acknowledged that this was not “a consent”
order. Initially, it was stated in the order that all concerned parties had agreed “to pass”
the preliminary hearing until July 6, 2017, although the hearing was originally scheduled
for that day, June 15, 2017. Ms. Coffee affirmed that a preliminary hearing was the
proceeding where the juvenile court judge would determine if there was probable cause
to move forward on the dependent and neglect petition; accordingly, Ms. Coffee agreed
that no probable cause determination had been made at the time the June 19, 2017 order
was entered. The juvenile court order further reflected that the Defendant, the children’s
mother, and both children were to “have a hair-follicle test[,] or in the case of [the
Defendant] a nail clipping if insufficient hair[,] within four hours after court” adjourned.
Ms. Coffee recalled that the Defendant requested F.J. also be tested, so the juvenile court
judge ordered that F.J. submit to a hair-follicle drug screen if paid for by the Defendant
by 2 p.m. that day.

       Ms. Coffee then reviewed two documents signed by the Defendant when he
presented at the drug-screening center, RapidCare. The first one was a document signed
by the Defendant authorizing RapidCare to disclose “protected health information to [his]

                                              -4-
employer.” On this form, RapidCare was self-described as a twenty-four-hour
“occupational healthcare service” or “primary/urgent care clinic.” The second document
was a form signed by the Defendant at 2:45 p.m. on June 15, 2017,6 confirming that a
hair-follicle sample would be collected and that the sample would be screened by a “ten-
drug-panel” test. Ms. Coffee agreed that the juvenile court received the results of the
various drug screens preformed on the individuals involved in this case and that the
results of the Defendant’s specimen revealed the presence of 3,660 pg/mg amphetamine
and 14,618 pg/mg methamphetamine. Ms. Coffee further confirmed that J.P.’s hair-
follicle “ten-drug-panel” screen performed at 3:04 p.m. on June 15, 2017, showed the
presence of 229 pg/mg amphetamine and 1,649 pg/mg methamphetamine in her
specimen.

        Officer Hardee also testified at the suppression hearing that he was “an
investigator” for the Lauderdale County Juvenile Court and that he had been employed
with the Lauderdale County Sheriff’s Department since 2006 in various positions.
Officer Hardee confirmed that after speaking with the children’s mother in this case, he
filed a dependent and neglect petition. He indicated that the mother gave a three- to five-
page statement detailing the things occurring in the home. Officer Hardee indicated that
he did not conduct any further investigation at that time outside of taking the mother’s
statement. Officer Hardee agreed that he included this information in the affidavit to the
petition and that he signed said petition affirming that the details contained therein were
true and correct.

        Officer Hardee relayed that the mother declined a drug test on June 12, 2017, the
day the petition was filed, because she was confident it would yield positive results.
Officer Hardee also went to the Defendant that day to make him “aware of the petition.”
At that time, Officer Hardee conveyed to the Defendant that he could take a drug test if
he was so inclined, but the Defendant refused. According to Officer Hardee, “[t]here was
no active criminal investigation at that point in time[.]” Officer Hardee affirmed, though,
that following the dependent and neglect proceedings in juvenile court, he forwarded the
file, including the drug screen results, to the district attorney’s office. When the
Defendant’s case was taken before the grand jury, Officer Hardee was “the presenting
officer” whose testimony resulted in the Defendant’s being indicted.

       On cross-examination, Officer Hardee indicated that at the time he filed the
dependent and neglect petition, he did not have enough information to obtain a search
warrant for a drug-screening specimen from the Defendant. He confirmed that he could
not file criminal charges against the Defendant based solely on the statement of the


6
  The Defendant incorrectly dated the document June 13, 2017. However, it is clear from the record that
the correct date was June 15, 2017.
                                                 -5-
mother, an admitted methamphetamine user. In addition, Officer Hardee did not recall a
probable cause determination ever taking place in juvenile court.

       On recross examination, Officer Hardee stated that he neither personally obtained
the hair-follicle sample from the Defendant nor escorted the Defendant to the drug-
screening center. Officer Hardee affirmed that the Defendant presented at RapidCare “of
his own volition[.]”

       Thereafter, the trial court entered a written order denying the Defendant’s
suppression motion. The trial court initially recounted the juvenile court’s protective
custody order of June 12, 2017, included findings therein by the juvenile court that there
was probable cause to believe that J.P. was a dependent and neglected child and that J.P.
was subjected to an immediate threat. The trial court indicated that the juvenile court
relied on the statement of the mother, which was a statement against penal interest, in
rendering its findings. The trial court referenced a portion of the order recounting the
mother’s statement that she and the Defendant had drug addictions and used
methamphetamine in their home.

       Based upon these facts, the trial court concluded that “[t]he juvenile court made a
probable cause determination” in the June 12, 2017 protective custody order, “and[,]
therefore[,] it was lawful to order the [D]efendant to submit a hair sample for a drug test.”
The trial court continued, “It was not necessary to re-state the probable cause in the order
of June 15.” According to the trial court, in spite of the fact that “[t]here was no search
warrant issued, . . . the warrantless search [of the Defendant] was not unreasonable based
on the facts that were before the juvenile court judge.” The trial court indicated that
“[t]here was specific individualized suspicion that methamphetamine was in the
environment where the two-year-old child was living.” The trial court further reasoned,
“Here the concern was on dependency and neglect of a two-year old due to the drug use
of her parents, and the need to obtain information about the parent’s behavior was
increased, and the requested drug testing was not unconstitutional.”

       The trial court next addressed a Utah Supreme Court case, State v. Moreno, 203
P.3.d 1000 (Utah 2009), because it was cited by both parties at the suppression hearing.
The trial court distinguished Moreno, reasoning that the Moreno case dealt with a
delinquent child rather than a dependent and neglect proceeding. The trial court noted
that in that case, the parent was ordered “to take a drug test, which was deemed
unconstitutional because the focus of the court was on modifying the behavior of the
juvenile.” However, where, as here, according to the trial court, the focus was on
protecting children and concern for their welfare, the “parent has a much less expectation
of privacy.” The trial court then cited the following language from Moreno: “In the
presence of a welfare concern related to the parent’s drug use, the government’s interest
is decidedly increased, as are the possible consequences of waiting until there is a
                                             -6-
probable cause for a search.” 203 P.3.d at 1011. Thus, according to the trial court, the
Moreno court implied that “even without probable cause, requiring a drug test of a parent
could be permissible where the focus is protecting a child.” However, the trial court
reiterated that in the Defendant’s case, “there was probable cause.”

        Alternatively, the trial court found that the Defendant gave voluntary consent to
drug screening. The trial court explained, “The [D]efendant submitted to the collection
of hair in an effort to maintain custody of the child. He was not forced to go to the clinic
for the hair sample but did so, and voluntarily signed the forms.” The trial court
continued that “[w]hile the [D]efendant . . . was ordered to take a drug test for the
dependent and neglect hearing, the failure to do so would have resulted in custody or
visitation issues” and not criminal proceedings. In addition, the trial court concluded that
it was not required the Defendant be “advised of his rights,” specifically the right to
refuse, before consenting to the drug screen.

        Thereafter, the Defendant proceeded to a jury trial and was convicted as charged.
The trial court sentenced the Defendant as a Range I, standard offender to eight years of
split confinement, with service of six months’ incarceration to be followed by community
corrections. The special conditions section of the judgment form indicated that the
Defendant was on six years’ probation for a prior methamphetamine conviction at the
time he committed this offense, that the Defendant admitted he had suffered from an
addiction to methamphetamine for over twelve years, and that the Defendant was to be
granted furlough to receive drug rehabilitation treatment.

       After the denial of the Defendant’s motion for new trial, wherein the Defendant
raised the suppression issue, he filed a timely appeal. The case is now before us for our
review.

                                       ANALYSIS

        On appeal, the Defendant argues that the trial court erred in denying the
suppression motion because the hair-follicle search was conducted without a warrant and
none of the recognized exceptions to the warrant requirement apply to the drug screening
in this case. Specifically, the Defendant contends that he did not give valid consent:
“Being compelled by a court order to submit to a hair-follicle drug screen cannot and is
not uncontaminated by duress or coercion and is not the product of a free and
unconstrained choice.” Addressing the State’s argument regarding the “special needs”
exception, the Defendant responds that it does not validate the search in this case because
a law enforcement officer filed the petition against the Defendant and received the drug
test results, and he cites Ferguson v. City of Charleston, 532 U.S. 67 (2001), in support.


                                            -7-
       The State responds that the trial court properly denied the Defendant’s motion.
The State’s argument is three-fold: (1) The search was reasonable because “[o]rdering
drug testing during dependency and neglect juvenile court proceedings falls within the
special needs exception to the warrant requirement”; (2) regardless, if there was a
violation of the Defendant’s Fourth Amendment rights, “suppression is not the
appropriate remedy because the sole purpose of the suppression doctrine is to deter future
unlawful police conduct,” which is not present here; and (3) finally, “even if there were
an unreasonable search, and even if suppression were appropriate, any such error was
harmless beyond a reasonable doubt because the test was merely superfluous to [the
mother’s] testimony” at trial.

        On appellate review of suppression issues, the prevailing party “is entitled to the
strongest legitimate view of the evidence adduced at the suppression hearing as well as
all reasonable and legitimate inferences that may be drawn from the evidence.” State v.
Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (quoting State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996)). Questions about “the assessment of witness credibility, the weight and
value of evidence, and the resolution of evidentiary conflicts are entrusted to the trial
court” as the trier of fact. State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008). When the
trial court “makes findings of fact in the course of ruling upon a motion to suppress, those
findings are binding on appeal unless the evidence in the record preponderates against
them.” Id. Conversely, a trial court’s conclusions of law, along with its application of
the law to the facts, are reviewed de novo without any presumption of correctness. Id.

       Both the federal and state constitutions offer protection from unreasonable
searches and seizures with the general rule being “that a warrantless search or seizure is
presumed unreasonable and any evidence discovered subject to suppression.” Talley,
307 S.W.3d at 729 (citing U.S. Const. amend. IV; Tenn. Const. art. I, § 7). The search
and seizure provisions of the federal and state constitutions are “identical in intent and
purpose.” State v. Christensen, 517 S.W.3d 60, 68 (Tenn. 2017) (quoting Sneed v. State,
423 S.W.2d 857, 860 (1968)). “Under both constitutional guarantees, reasonableness is
‘the ultimate touchstone.’” State v. Stanfield, 554 S.W.3d 1, 9 (Tenn. 2018) (citing
Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006); State v. McCormick, 494
S.W.3d 673, 679 (Tenn. 2016)). Whether a particular search meets the reasonableness
standard “is judged by balancing its intrusion on the individual’s . . . interests against its
promotion of legitimate governmental interests.’” Skinner v. Railway Labor Executives’
Assn., 489 U.S. 602, 619 (1989) (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979)).

       A search or seizure is ordinarily unreasonable in the absence of individualized
suspicion of wrongdoing. Chandler v. Miller, 520 U.S. 305, 308 (1997). Determining
whether a particular search is “unreasonable” and, therefore, a violation of the rights
guaranteed by the Fourth Amendment “depends upon all of the circumstances

                                             -8-
surrounding the search . . . and the nature of the search . . . itself.” State v. Turner, 297
S.W.3d 155, 160 (Tenn. 2009) (quoting United States v. Montoya de Hernandez, 473
U.S. 531, 537 (1985)). “While a search is presumptively reasonable when conducted on
the basis of probable cause and with a warrant, warrantless searches and seizures are
presumptively unreasonable regardless of whether law enforcement actually had probable
cause to conduct a search.” State v. Hamm, 589 S.W.3d 765, 771 (Tenn. 2019) (citing
McCormick, 494 S.W.3d at 678-79). This is merely a presumption, however, and there
are several exceptions to the probable cause and warrant requirements, including
investigatory detentions, searches incident to a valid arrest, seizure of items in plain view,
exigent circumstances, consent searches, vehicle searches, container searches, and
searches in which the special needs of law enforcement make the probable cause
requirement impracticable. Tamez v. City of San Marcos, 118 F.3d 1085, 1093 (5th Cir.
1997) (citing David Orlin, et al., Warrantless Searches and Seizures, 85 Geo. L.J. 847,
847 (1997) (collecting cases)).

       At the outset, we will quickly dispense with any consent argument. Initially, we
note that the State has seemingly abandoned the argument on appeal that the Defendant
provided valid consent to search. Moreover, we also agree with the Defendant that any
such argument is without merit because the Defendant was compelled by the juvenile
court’s order to submit to a drug screen. Officer Hardee testified at the suppression
hearing that he had previously informed the Defendant of the dependent and neglect
petition and that the Defendant was offered a voluntary drug screen at that time, but the
Defendant refused. The Defendant only submitted to drug screening after being ordered
by the court to do so. The RapidCare consent form he signed was a release of “protected
health information to [his] employer”; the other RapidCare form was merely his assent to
the procedures to be performed.

       In addition, the State failed to present any evidence at the suppression hearing that
the Defendant was given the option to refuse the drug screen simply by termination of his
parental rights. Accordingly, the State’s argument in the trial court that if the Defendant
refused, then he would only have visitation or custody issues, not criminal problems, does
not hold weight. The Defendant would be faced with criminal contempt if he failed to
appear at the drug-screening center for testing regardless of whether any criminal charges
were ever brought against him. Criminal contempt “is punishment for failing to comply
with an order.” Sherrod v. Wix, 849 S.W.2d 780, 786 n.4 (Tenn. Ct. App. 1992); see also
Tenn. Code Ann. § 29-9-102. It is designed “to preserve the power and vindicate the
dignity and authority of the law and the court as an organ of society.” Baker v. State, 417
S.W.3d 428, 436 (Tenn. 2013) (citation omitted). Criminal contempt is often regarded as
a “crime.” Id. Thus, we cannot say that the Defendant’s consent was the product of a
free and unrestrained choice. See State v. Doe, 233 P.3.d 1275, 1282 (Idaho 2010)
(noting that the magistrate court’s authority to issue criminal contempt sanctions against

                                             -9-
the parents in a juvenile delinquency proceeding required “virtually all the ordinary
protections” afforded by the United States Constitution) (citations omitted).

        Irrespective of consent, the Tennessee Supreme Court has observed that there are
limited circumstances “where the reasonableness standard of the Fourth Amendment and
article I, section 7 requires neither probable cause nor a warrant.” State v. Stanfield, 554
S.W.3d 1, 9 (Tenn. 2018) (citing Samson v. California, 547 U.S. 843, 846 (2006); Turner,
297 S.W.3d at 157); see also 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.”). 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. See, e.g., City of
Indianapolis v. Edmond, 531 U.S. 32, 37-40 (2000) (collecting cases approving
suspicionless searches to serve special needs); State v. Downey, 945 S.W.2d 102, 104
(Tenn. 1997) (“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, in discussing the special needs exception to the
warrant requirement, has recognized that programmatic searches performed in the
absence of a warrant or individualized suspicion may be permissible “in those
exceptional circumstances in which special needs, beyond the normal need for law
enforcement, make the warrant and probable-cause requirement impracticable.”
O’Connor v. Ortega, 480 U.S. 709, 720 (1987) (quoting New Jersey v. T.L.O., 469 U.S.
325, 351 (1985) (Blackmun, J., concurring in judgment)). For example, the Court, in
Vernonia School Dist. 47J v. Acton, held that a public-school district’s student athlete
drug policy, which included a random urinalysis requirement for participation in
interscholastic athletics, did not violate the student’s federal constitutional right to be free
from unreasonable searches. 515 U.S. 646, 652-665 (1995). The Supreme Court has also
determined that “suspicionless” drug testing of United States Customs Service employees
“who appl[ied] for promotion to positions directly involving the interdiction of illegal
drugs, or to positions that require[d] the incumbent to carry a firearm, [was] reasonable”
and did not violate the Fourth Amendment. Von Raab, 489 U.S at 679. Additionally,
drug and alcohol tests for railway employees involved in train accidents or found to be in
violation of particular safety regulations were upheld in Skinner, 489 U.S. at 618-34. The
Skinner Court, in so holding, reasoned, “The [g]overnment’s interest in regulating the
conduct of railroad employees to ensure safety, like its supervision of probationers or
regulated industries, or its operation of a government office, school, or prison, . . .

                                             -10-
[“]presents ‘special needs’ beyond normal law enforcement that may justify departures
from the usual warrant and probable-cause requirements.” Id. at 621. Similarly, in the
context of probation, the United States Supreme Court has held that “[a] State’s operation
of a probation system, like its operation of a school, government office or prison, or its
supervision of a regulated industry, . . . ‘presents special needs’ beyond normal law
enforcement that may justify departures from the usual warrant and probable cause
requirements.” Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987) (internal quotation
marks omitted).

        We briefly digress to note that the United States Supreme Court has also held “that
the warrantless search of [a defendant], supported by reasonable suspicion and authorized
by a condition of probation, was reasonable within the meaning of the Fourth
Amendment.” United States v. Knights, 534 U.S. 112, 114 (2001) (considering the
constitutionality of a search that was premised on the probation condition requiring the
defendant to “[s]ubmit his . . . person, property, place of residence, vehicle, personal
effects, to search at any time, with or without a search warrant, warrant of arrest or
reasonable cause by any probation officer or law enforcement officer”). Moreover, the
Tennessee Supreme Court has recently taken this a step further by holding “that
probation search conditions that permit a search, without warrant, of a probationer’s
person, vehicle, property, or place of residence by any Probation/Parole Officer or law
enforcement officer, at any time, do not require law enforcement to have reasonable
suspicion.” Hamm, 589 S.W.3d at 777. Such searches are still evaluated for their
reasonableness under the “general Fourth Amendment approach of ‘examining the
totality of the circumstances,’ with the probation search condition being a salient
circumstance.” Knights, 534 U.S. at 118 (emphasis added) (quoting Ohio v. Robinette,
519 U.S. 33, 39 (1996)); see Hamm, 589 S.W.3d at 779.

       Here, it was clearly established that the Defendant was on six years of probation
for a methamphetamine conviction at the time he was ordered by the juvenile court judge
in the dependent and neglect proceeding to submit to drug screening. While Officer
Hardee’s affidavit mistakenly referred to parole, the Defendant was in fact on release into
the community. However, the State did not seek to justify the warrantless search by
arguing that the Defendant accepted such as a condition of his probation. Moreover,
neither the specific conditions of the Defendant’s probation nor his consent to those
conditions were ever established for the record. Because it does not appear that the
Defendant’s probationary status, including any possible probation search condition, was a
“salient” circumstance taken into consideration by the trial court, we are precluded from
addressing whether the search could be supported upon such a basis pursuant to Knights
and must address the constitutional issue presented by the special needs exception.



                                           -11-
         “When such ‘special needs’—concerns other than crime detection—are alleged in
justification of a Fourth Amendment intrusion, courts must undertake a context-specific
inquiry, examining closely the competing private and public interests advanced by the
parties.” Chandler, 520 U.S. at 314 (citing Von Raab, 489 U.S. at 665-66, 668). As
Skinner stated, “In limited circumstances, where the privacy interests implicated by the
search are minimal, and where an important governmental interest furthered by the
intrusion would be placed in jeopardy by a requirement of individualized suspicion, a
search may be reasonable despite the absence of such suspicion.” 489 U.S. at 624. No
Tennessee court has previously addressed the specific issue presented by this case; in
fact, we are unable to find a substantially similar factual scenario from any of the fifty
states or the various federal courts.

        The Defendant relies on Ferguson v. Charleston, 532 U.S. 67, in support of his
argument that the search in this case was constitutionally impermissible. He notes that
Officer Hardee, a law enforcement officer, filed the dependent and neglect petition
against him in juvenile court and received the results of the Defendant’s drug tests. We
do not dispute that Officer Hardee was working in a law enforcement capacity or that the
test results were received by Officer Hardee and the juvenile court, but this does not end
the inquiry.

       In Ferguson, the United States Supreme Court analyzed the constitutionality of a
state hospital’s policy of performing nonconsensual drug testing on pregnant women
suspected of cocaine abuse. 532 U.S. at 69-70. The policy provided for a referral to
substance-abuse treatment for women who tested positive and added the threat of law
enforcement intervention. Id. at 72. The Supreme Court found the policy violative of the
Fourth Amendment because “the central and indispensable feature of the policy from its
inception was the use of law enforcement to coerce the patients into substance abuse
treatment.” Id. at 80. The Supreme Court observed that the “ultimate goal” of the
program, i.e., substance-abuse treatment, may have been salutary, but “the immediate
objective of the searches was to generate evidence for law enforcement purposes in order
to reach that goal.” Id. at 82-83. Although the hospital intended that the threat of
prosecution would curtail drug use, the “direct and primary purpose” of the scheme was
to assist the police. Id. at 84. The Supreme Court found the distinction critical,
explaining as follows: “Because law enforcement involvement always serves some
broader social purpose or objective, under respondents’ view, virtually any
nonconsensual suspicionless search could be immunized under the special needs doctrine
by defining the search solely in terms of its ultimate, rather than immediate, purpose.”
Id.

       The Supreme Court of Idaho took guidance from Ferguson in Doe, 233 P.3d 1275,
in deciding that the magistrate court’s order for random drug screens of the parents

                                           -12-
constituted an illegal search and seizure. In Doe, the defendants’ minor daughter
appeared in magistrate court and was placed on informal probation under Idaho’s
Juvenile Corrections Act (“JCA”) after she signed a written admission to two counts of
petit theft. 233 P.3d at 1277. A social investigation revealed that the defendants had a
history of drug abuse and that the mother had been on probation for possession of
marijuana drug paraphernalia, so the magistrate judge ordered the defendants “to undergo
random drug urinalyses as a term of their daughter’s probation.” Id. The father
subsequently signed two written admissions to smoking marijuana on separate occasions
shortly after the probation terms were imposed. Id. The mother signed a similar written
admission to using marijuana. Id. Moreover, both of the defendants submitted urine
samples that tested positive for tetrahydrocannabinol, the active compound in marijuana.
Id.

       Thereafter, the defendants’ daughter was found to have violated the terms of her
probation for various reasons, and she was placed on formal probation. 233 P.3d at 1277.
The magistrate again required the defendants to submit to random urine testing as a term
of their daughter’s probation and ordered them not to violate controlled-substance laws.
Id. The magistrate’s order further admonished the defendants that they could be subject
to criminal contempt proceedings if they disobeyed the order. Id.

       On appeal, the Supreme Court of Idaho balanced the intrusion on the defendants’
privacy interest against the state’s legitimate interests and concluded that the magistrate’s
order violated the Fourth Amendment by requiring urinalysis testing as a condition of the
defendants’ daughter’s probation. Doe, 233 P.3d at 1282. The Doe court reasoned that
although “[t]he intrusion [was] not extraordinarily invasive,” the defendants did “not
have a diminished expectation of privacy in their bodies simply because their daughter
[was] on juvenile probation.” The court acknowledged the state’s legitimate interest in
protecting and rehabilitating children but stated that “[j]ust like the testing program in
Ferguson,” ordering the defendants to be drug tested under the facts presented was
“characterized by a general interest in law enforcement.” Id. at 1281. The court noted
that the magistrate imposed the urinalysis requirement during juvenile delinquency
proceedings pursuant to the JCA, which was quasi-criminal in nature; that the defendants
were required to report to their daughter’s probation officer; that nothing prevented the
probation officer from conveying the results of the test to law enforcement, which did in
fact occur; and that such evidence could be used against the defendants to obtain search
warrants. Id. The court surmised that it would not uphold the search because its purpose
was intended to ensure the defendants’ “daughter’s rehabilitation by detecting drug use at
home,” and because “[t]he immediate method for attaining” that goal was “to report the
drug use for criminal sanctions.” Id. at 1282.



                                            -13-
       A similar conclusion was reached by the Utah Supreme Court in Moreno, 203
P.3d 1000, as was discussed by the trial court in this case because it was cited below by
both parties; the trial court’s ruling is detailed above.7 In Moreno, the defendant’s
juvenile daughter was adjudicated “delinquent for possession of marijuana and attempted
possession of methamphetamine.” Id. at 1004. As part of his daughter’s delinquency
adjudication, the juvenile court ordered the defendant to undergo drug testing. Id. When
the defendant failed to appear for testing, he was charged with criminal contempt. Id. at
1005. The defendant appealed. Ultimately, the Utah Supreme Court weighed the privacy
interest of the parent with the government’s interest and concluded that the juvenile
court’s order violated the Fourth Amendment. Id. at 1008.

       Like the Doe court, the Moreno court determined that the defendant enjoyed an
undiminished expectation of privacy: “A parent does not surrender his expectation of
privacy merely because he acquires the status of a parent of a minor who has been
adjudicated delinquent.” Id. at 1010. The Moreno court recognized the government’s
interest in ensuring “that the parent is drug free and therefore is not providing an
inappropriate example to the minor or directly contributing to the minor’s drug use.” Id.
at 1011. However, the court reasoned that “the behavior of parents of juveniles involved
in the system [was] of secondary importance” because, in that instance, “[t]he focus of
the juvenile court system . . . [was] on modifying the behavior of the juvenile.” Id. The
Moreno court then clarified,

                Attempting to ensure that parents of delinquent juveniles are drug
        free also should not be confused with the goal of protecting children where
        there is a concern for their welfare. In the presence of a welfare concern
        related to the parent’s drug use, the government’s interest is decidedly
        increased, as are the possible consequences of waiting until there is
        probable cause for a search. By contrast, where the concern of the
        proceeding is the child’s delinquent behavior, there is less necessity to
        obtain information about the parent’s behavior. There is time to obtain
        information that will provide probable cause for a search of the parent.

Id.

       We believe the situation cited in Moreno, i.e., the presence of a welfare concern
related to the parent’s drug use, is the precise situation presented in this case. This is not

7
  The trial court also determined that the search was supported by the juvenile court judge’s probable
cause determination. The juvenile court judge found that probable cause existed to support a conclusion
that the children were dependent and neglected within the meaning of the law, not that there was probable
cause to believe that the Defendant’s drug screen would reveal evidence of crime. Most importantly,
probable cause must still be accompanied by a warrant absent an exception to the warrant requirement.
                                                  -14-
a juvenile delinquency proceeding but instead a dependent and neglect petition involving
a two-year-old child and her nine-year-old sister. We do not ascertain that the immediate
objective of the search was to generate evidence for law enforcement purposes, although
it was a likely result. Here, the juvenile court judge determined that there was probable
cause to believe that the two-year old and her older sister were dependent and neglected
within the meaning of the law; that the children were subjected to an immediate threat to
their health and safety to the extent that delay for a hearing would likely result in severe
or irreparable harm; that there was no less drastic alternative to removal available that
would reasonably and adequately protect the children’s health and safety pending a
preliminary hearing; and that it was contrary to the children’s welfare at that time to
remain in the care, custody, or control of the Defendant and their mother.

       The mother reported to Officer Hardee that the children were being exposed to
methamphetamine usage by both parents. The list of dangers from methamphetamine
exposure and the dangerous environment surrounding its users abounds. See In re D.T.,
No. E2017-02098-COA-R3-PT, 2018 WL 3020327, at *5 (Tenn. Ct. App. June 18, 2018)
(upholding the termination of the father’s parental rights because he could not or would
not ensure no-contact between the methamphetamine-addicted mother and the child,
thereby, creating a persisting danger to the child). The facts surrounding the mother’s
reporting led to the parents having a diminished expectation of privacy in their bodies.

       Regarding the level of intrusion on the Defendant’s privacy interest, the Defendant
reported to RapidCare, a drug-screening center that was described as twenty-four-hour
“occupational healthcare service” or “primary/urgent care clinic.” The testing was not
performed by a government agency. Furthermore, a hair-follicle sample or nail clipping
is not extraordinarily invasive when compared with urine or blood specimens. Hair and
nail samples can be obtained without piercing the skin and may be conducted safely
outside a hospital environment and with a minimum of inconvenience or embarrassment.
See Skinner, 489 U.S. at 625.

       Accordingly, under the circumstances, we cannot say that significant privacy
concerns are implicated. See Skinner, 489 U.S. at 626. Moreover, the welfare concern to
the children in this case—that they were being exposed to methamphetamine—was
paramount, and therefore, the government’s interest was decidedly increased as were the
possible consequences of waiting until there was probable cause for a search and a
warrant could be obtained. See Moreno 203 P.3.d at 1011. Balancing the various
interests at stake, we hold that the drug screening ordered by the juvenile court in this
case, after a finding of probable cause to believe that the children were dependent and
neglected specifically referring to the parents’ methamphetamine usage, qualified for the



                                            -15-
special needs exception to the Fourth Amendment warrant requirement, and therefore, the
search was reasonable.8

                                          CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed.



                                                        _________________________________
                                                        D. KELLY THOMAS, JR., JUDGE




8
  Given that we have found the special needs exception to govern here, we decline to address the State’s
alternative arguments. Such would merely be dicta.
                                                 -16-
