                 IN THE SUPREME COURT OF TENNESSEE
                             AT JACKSON
                                     April 8, 2009 Session

        STATE OF TENNESSEE V. CHARLOTTE YVONNE TURNER

                  Appeal by Permission from the Court of Criminal Appeals
                              Circuit Court for Obion County
                        No. C07-192     William B. Acree, Jr., Judge



                      No. W2007-01590-SC-R11 - Filed October 15, 2009



SHARON G. LEE , dissenting.

        I respectfully disagree with the majority. In my view, the police officers’ search of Ms.
Turner’s residence without reasonable or individualized suspicion violates article I, section 7 of the
Tennessee Constitution. While the United States Supreme Court has ruled in Samson v. California,
547 U.S. 843 (2006), that such a search, without reasonable or individualized suspicion, does not
violate the Fourth Amendment to the United States Constitution, I would hold the Tennessee
Constitution provides a greater degree of protection against suspicionless searches than does the
federal Constitution.

                                                  I.

       Article I, section 7 of the Tennessee Constitution provides:

       [T]he people shall be secure in their persons, houses, papers and possessions, from
       unreasonable searches and seizures; and that general warrants, whereby an officer
       may be commanded to search suspected places, without evidence of the fact
       committed, or to seize any person or persons not named, whose offences are not
       particularly described and supported by evidence, are dangerous to liberty and ought
       not to be granted.

Although this Court has stated that the Tennessee provision is “identical in intent and purpose with
the Fourth Amendment,” Sneed v. State, 423 S.W.2d 857, 860 (Tenn. 1968), we have also noted that
our search and seizure law has “developed independently from federal law.” State v. Richards, 286
S.W.3d 873, 877 (Tenn. 2009). Thus, where “there has been a settled development of state
constitutional law which does not contravene the federal, we are not inclined to overrule earlier

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decisions unless they are demonstrably erroneous.” State v. Lakin, 588 S.W.2d 544, 549, n.2 (Tenn.
1979) (noting that Tennessee decisions applying a particular phrase of search and seizure law are
“somewhat more restrictive than” federal case law). Furthermore, even where there is no “settled
development of state constitutional law,” we may decline to follow federal precedents when they are
“inadequate” to serve the purposes of article I, section 7. State v. Jacumin, 778 S.W.2d 430, 435-36
(Tenn. 1989) (rejecting the federal “totality of the circumstances” test for a criminal informant’s
reliability in favor of the two-pronged “basis of knowledge” and “veracity” test); see also Richards,
286 S.W.3d at 877-78; State v. Cox, 171 S.W.3d 174, 183 (Tenn. 2005) (stating “[w]e are free to
interpret the provisions of our state constitution to afford greater protection than the federal
constitution.”); State v. Randolph, 74 S.W.3d 330, 335 (Tenn. 2002) (noting that “this Court has not
hesitated to extend greater privacy protections to the citizens of this State when appropriate under
article I, § 7”); State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997) (stating “we recognize, as we
have in the past, that article I, section 7 may afford citizens of Tennessee even greater protection”).


                                                  II.

        This Court, following the U.S. Supreme Court’s lead in Samson, today holds that law
enforcement officials may detain a parolee subject to a warrantless search condition “without
reasonable or individualized suspicion,” and may search both the parolee’s person and his or her
residence, even if the search of the residence is remote in time and distance from the point of
detention.

        While I agree that a person who has been convicted of a felony should be and is subject to
a different analysis of what is a “reasonable” search, a rule that effectively gives police officers
complete and unfettered power to detain and search a citizen, with no cause, reason, or suspicion,
goes too far in my view. Further, as a practical matter, the Court’s blanket approval of suspicionless
searches of parolees results in a loss of meaningful judicial oversight and review of police power to
search and seize parolees. While the Court observes that a search “motivated by personal animosity”
or with an abusive or harassing purpose may be unreasonable, it will be a rare instance when a police
officer admits such a motivation. Far more often, the trial court will be presented with a variation
of what Officer Palmer said in this case: when asked what justification he had to send Ms. Turner
back to her house and search her home, he responded, “[t]he conditions of her parole and the rulings
of the United States Supreme Court.” When such a justification suffices to pass constitutional
muster, more will rarely, if ever, be offered.

        I believe that a requirement of reasonable suspicion to search a parolee, a lower bar than the
traditional probable cause and search warrant requirement, 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. I agree with the Samson dissent rejecting “the conclusion, reached by
the Court here for the first time, that a search supported by neither individualized suspicion nor
‘special needs’ is nonetheless ‘reasonable.’” Samson, 547 U.S. at 858 (Stevens, J., dissenting). This
conclusion, that a “suspicionless” search of a parolee is not unreasonable, means that an officer need


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demonstrate no cause, reason, nor scintilla of justifying suspicion to search a person he or she knows
to be on parole under the “standard” parole condition imposing a warrantless search term. Further,
even if a personal search of a parolee yields neither evidence nor suspicion of wrongdoing, the police
officer may then insist on being taken to the parolee’s residence, even if distant from the stop, in
order to search the parolee’s home. As the Samson dissent aptly noted, “[t]he suspicionless search
is the very evil the Fourth Amendment was intended to stamp out.” Id.

        In the present case, the majority recognizes, correctly in my opinion, that “a suspicionless
search could be characterized as ‘arbitrary.’” Indeed, it is hard for me to see how a search that is truly
“suspicionless” could not fairly be characterized as “arbitrary” and “capricious” in nearly every
circumstance. Nevertheless, the Court, utilizing the “totality of the circumstances” test, concludes
that an arbitrary search of a parolee may pass constitutional muster, notwithstanding our established
and repeated observation that “[t]he essence of the prohibition against unreasonable searches and
seizures under the Fourth Amendment is to ‘safeguard the privacy and security of individuals against
arbitrary invasions by government officials.’” Randolph, 74 S.W.3d at 334 (quoting Camara v.
Municipal Court, 387 U.S. 523, 528 (1967)) (emphasis added); see also State v. Ross, 49 S.W.3d
833, 839 (Tenn. 2001); Downey, 945 S.W.2d at 106.

                                                   III.

       The various rationales relied upon by the Samson Court to support this conclusion, and
adopted by this Court today, have been thoroughly critically analyzed by Professor Wayne R.
LaFave, who states in part as follows:

                In balancing the interests in Samson, the majority relied principally upon
        these considerations: (i) “that parolees have fewer expectations of privacy than
        probationers, because parole is more akin to imprisonment than probation is”; (ii)
        that “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” Samson; (iii) that the state “has an
        ‘overwhelming interest’ in supervising parolees because ‘parolees … are more likely
        to commit future criminal offenses,’ as manifested by the fact “California’s parolee
        population has a 68–to–70 percent recidivism rate”; and (iv) that the “concern that
        California’s suspicionless search system gives officers unbridled discretion to
        conduct searches * * * is belied by California’s prohibition on ‘arbitrary, capricious
        or harassing’ searches.”

                But each of these points is open to serious dispute. As to (i), it comes
        dangerously close to acceptance of the discredited “constructive custody” and “act
        of grace” theories; it hardly follows that parolees are subject to suspicionless searches
        because inmates are, even though (as even the dissenters acknowledge), there is
        “some” difference in the state’s interest vis-a-vis parolees generally as compared to
        probationers generally. As for (ii), just as in [United States v.]Knights[, 534 U.S. 112


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         (2001)] this is nothing more than circular reasoning; while the majority contends that
         because of the notice to Samson of the state law mandating that parolees submit to
         suspicionless searches he “did not have an expectation of privacy that society would
         recognize as legitimate,” the dissenters correctly assert that the “mere fact that a
         particular State refuses to acknowledge a parolee’s privacy interest cannot mean that
         a parolee in that State has no expectation of privacy that society is willing to
         recognize as legitimate.” As for (iii), it is essentially the same one-size-fits-all
         conclusion as was reached in Knights, except that it is worse because the “size”
         deemed appropriate for all parolees is suspicionless searches, while in Knights the
         “size” for probationers was reasonable suspicion instead of probable cause (at least
         for residence searches). The problem, as the Samson dissenters aptly put it, is that
         “the search condition here is imposed on all parolees – whatever the nature of their
         crimes, whatever their likelihood of recidivism, and whatever their supervisory
         needs, – without any programmatic procedural protections.”

         ...

                 As for point (iv) in Samson, here is a matter that clearly goes beyond Knights,
         which only approved of searches made upon reasonable suspicion. . . . The majority
         says the “dissent’s claim that parolees * * * are subject to capricious searches
         conducted at the unchecked ‘whim’ of law enforcement officers” ignores the
         provision in California law (which, by virtue of Samson appears to now be the Fourth
         Amendment floor on parolee searches) by which a parolee search is reasonable only
         so long “as it is not arbitrary, capricious or harassing.” Of course, as the dissent
         notes, the traditional means under the Fourth Amendment of dealing with that
         problem has been the “requirement of individualized suspicion,” and one can only
         wonder whether any lesser standard can provide a meaningful check upon police
         activity directed toward parolees. Considering that the facts of Samson were readily
         found to meet the “not arbitrary, capricious or harassing” test by the California court,
         there is some reason for pessimism.

5 LaFave, Search and Seizure, § 10.10 (4th ed. 2004) Supp. 2008-09 at 31-33 (footnotes omitted)
(final emphasis added).1

         As did the Samson Court, the majority relies on the assertion that “parole is more akin to


         1
           For further scholarly criticism of the Samson reasoning and holding, see Harvard Law Review, The Supreme
Court, 2005 Term - Leading Cases, 120 Harv. L. Rev. 183, 188 (Nov. 2006) (Noting, among other things, that “[i]f the
Samson Court meant to give California unbridled discretion in parolee searches, then the flimsiness of the California
standard is not a problem, but if the Court did not intend to grant this level of discretion, it should have provided more
explicit guidance in the opinion.”); Rachael A. Lynch, Two Wrongs Don’t Make a Fourth Amendment Right: Samson
Court Errs in Choosing Proper Analytical Framework, Errs in Result, Parolees Lose Fourth Amendment Protection,
41 Akron Law Review 651 (2008); John Lassetter, Samson v. California: “Evil” Suspicionless Searches Become a Part
of Everyday Life for Parolees, 25 Law & Inequality 539 (Summer 2007).

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imprisonment than probation is to imprisonment” in support of its conclusion that all parolees,
irrespective of individual circumstance, are subject to suspicionless searches. This observation is
certainly true as far as it goes; but in my view, the far more pertinent fact is that the situations and
circumstances of both parolees and probationers are much more similar to free citizens than to
incarcerated prisoners. As LaFave aptly notes:

        [I]n most cases the life of a parolee more nearly resembles that of an ordinary citizen
        than that of a prisoner. The parolee is not incarcerated; he is not subjected to a prison
        regimen, to the rigors of prison life and the unavoidable company of sociopaths. He
        does not live in a society whose violent, though usually repressed, mores necessitate
        iron bars and the close watch of armed guards. Routine searches are necessary in
        prison to prevent dangerous riots and internal violence. Such searches are impersonal
        and, because a prisoner’s possessions are limited, unintrusive. A parolee, however,
        lives in a different environment, one where such problems are absent and searches
        and seizures are intrusive. The parolee lives among people who are free to come and
        go when and as they wish. Except for the conditions of parole, he is one of them.
        His parole represents supervision, rather than repression; and his parole officer is,
        ideally, an advisor, rather than an armed watchman. If the parole officer is to be the
        parolee’s personal prison guard, it is only because the court decides that he is, and
        such a decision stands on extraordinarily shaky ground.

5 LaFave, Search and Seizure, § 10.10(a) at 436 (4th ed. 2004) (quoting William R. Rapson,
Extending Search-and-Seizure Protection to Parolees in California, 22 Stan. L. Rev. 129, 133
(1969)).

        The Court also relies on the assertion that the “award of parole to an incarcerated prisoner
is a privilege and not a right,” describing parole as a “privilege” in four separate instances. This
description is unquestionably true, but does nothing to further the analysis. Surely there are
constitutional limits on what rights may be reduced or taken away from a parolee. The question is
not whether the State may award or refuse to award parole, but whether, after parole is granted, the
State may search the person and home of the parolee without any reasonable, articulable, or
individualized suspicion of wrongdoing. As the Supreme Court observed in Morrissey v. Brewer,
408 U.S. 471, 482 (1972), “[i]t is hardly useful any longer to try to deal with this problem in terms
of whether the parolee’s liberty is a ‘right’ or a ‘privilege.’ By whatever name, the liberty is valuable
and must be seen as within the protection of the Fourteenth Amendment.” See also Graham v.
Richardson, 403 U.S. 365, 374 (1971) (stating that “this Court now has rejected the concept that
constitutional rights turn upon whether a governmental benefit is characterized as a ‘right’ or as a
‘privilege’”).

                                                  IV.

       Even though Samson has decisively settled the issue of suspicionless parolee searches under
the Fourth Amendment, Tennessee and our sister states clearly remain at liberty to establish a higher


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threshold than the “zero suspicion” floor established by California. The United States Court of
Appeals for the Tenth Circuit recognized this in United States v. Freeman, 479 F.3d 743, 747-48
(10th Cir. 2007), observing that

         The [Samson] Court noted “that some States and the Federal Government require a
         level of individualized suspicion,” and strongly implied that in such jurisdictions a
         suspicionless search would remain impermissible. [Samson, 126 S.Ct.] at 2201.
         Parolee searches are therefore an example of the rare instance in which the contours
         of a federal constitutional right are determined, in part, by the content of state law.

             ...

         Samson does not represent a blanket approval for warrantless parolee or probationer
         searches by general law enforcement officers without reasonable suspicion; rather,
         the Court approved the constitutionality of such searches only when authorized under
         state law. Kansas has not gone as far as California in authorizing such searches,2 and
         this search therefore was not permissible in the absence of reasonable suspicion.

Id.

         As Freeman notes, the Samson Court stated that

                  Petitioner observes that the majority of States and the Federal Government
         have been able to further similar interests in reducing recidivism and promoting
         re-integration, despite having systems that permit parolee searches based upon some
         level of suspicion. Thus, petitioner contends, California’s system is constitutionally
         defective by comparison. Petitioner’s reliance on the practices of jurisdictions other
         than California, however, is misplaced. That some States and the Federal
         Government require a level of individualized suspicion is of little relevance to our
         determination whether California’s supervisory system is drawn to meet its needs
         and is reasonable, taking into account a parolee’s substantially diminished
         expectation of privacy.



         2
           At the time of the search of Ms. Turner’s house and her arrest, Tennessee had not gone as far as California in
authorizing such searches either: her parole condition provided for “a search, without a warrant, of [her] person, vehicle,
property, or place of residence . . .,” whereas California’s parole condition provided for “‘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.’” Samson, 547 U.S. at 846 (emphasis added) (quoting Cal. Penal Code Ann. § 3067(a) (W est 2000)). Neither
parole condition mentions or precludes “reasonable suspicion,” a standard that is clearly legally distinct from probable
cause, the standard ordinarily required to support a search warrant. Of course, if the Tennessee Board of Probation and
Parole follows the Court’s suggestion at footnote 12 of the opinion to “consider revising its standard conditions to reflect
explicitly that parolees may be searched without either a warrant or any particularized suspicion,” Tennessee will then
have gone as far, if not farther, than California in authorizing suspicionless parolee searches.

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Samson, 547 U.S. at 855 (emphasis added). As Samson then recognized, “a majority of states and
the Federal Government” had established a threshold of reasonable, individualized suspicion to
justify a parolee search. Several state courts have revisited the issue subsequent to the Samson
decision and adhered to a reasonable suspicion requirement. See Sierra v. State, 958 A.2d 825, 829
(Del. 2008); State v. Bennett, 200 P.3d 455, 462-63 (Kan. 2009); Commonwealth v. Hunter, 963
A.2d 545, 551-52 (Pa. Super. Ct. 2008).

                                                  V.

        Pursuant to the above analysis, I would hold that the Tennessee Constitution requires a
showing of reasonable suspicion to search a parolee. Article I, section 7 of the Tennessee
Constitution, in addition to providing its citizens protection “from unreasonable searches and
seizures,” also expressly proscribes “general warrants, whereby an officer may be commanded to
search suspected places, without evidence of the fact committed.” I believe a reasonable
interpretation of this prohibition includes the issuance of a warrant to search a place in the complete
absence of reasonable or individualized suspicion. If this provision disallows a law enforcement
officer to search a place without evidence providing reasonable suspicion pursuant to a general
warrant, it is reasonable to construe it as disallowing an officer to search a residence without
reasonable suspicion and without a warrant. “Reasonable suspicion is not an overly-burdensome
standard of proof.” Bennett, 200 P.3d at 463. A requirement of reasonable suspicion does, however,
strike a more appropriate balance between the privacy interests of the individual and the State’s
interest in minimizing recidivism and preventing crime, by providing a meaningful check on
otherwise unfettered police power to conduct suspicionless and arbitrary searches, and preserving
some degree of meaningful judicial oversight and review in order to curb potential abuses of this
governmental power.

       For the aforementioned reasons, I respectfully dissent.



                                                       _____________________________
                                                       SHARON G. LEE, JUSTICE




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