Only Parole Officers Can Search Parolees Without Warrants, If State Law Says So

UNITED STATES v. FREEMAN, USCA-10 No. 05-3437, 2007 U.S.App. LEXIS 5453, on appeal from USDC-KSD, before USCJs Henry, Hollway, and McConnell, opinion by McConnell, filed 08 Mar 2007.

LONG STORY SHORT: Warrantless searches of parolees, unlike most searches, depend in part on state law for reasonableness, and when state law or policy requires parole officers to conduct such searches, regular police officers violate the Fourth Amendment if they do so themselves. Binding in CO, KS, NM, OK, UT, WY.

FACTS: Defendant, a known gang member, signed an agreement governing the conditions of his supervised release from a Kansas prison, allowing "a search by parole officer(s) of my person, residence, and any other person under my control." Defendant had been on parole for two years with only one curfew violation when he answered a 1:00am knock on his door to discover four Wichita PD officers and a representative of his day reporting center (a private contractor with Kansas DOC). An officer explained that they wanted to check his curfew compliance and the function of the monitoring bracelet on his ankle. Defendant invited them in, whereupon an officer said they would now search the house.

Defendant said they had no right to search, grew agitated, and said he had to tell his girlfriend, who was in bed. An officer followed him to ensure officer safety, and observed Defendant's girlfriend reach into the dresser. The officer entered the bedroom and Defendant's girlfriend left, so the officer began to search the room. A second officer came in and saw a handgun in plain view on the closet shelf, and more searching revealed body armor in the same closet and marijuana seeds and stems in the basement.

Defendant's day reporting center had chosen him and other parolees at random for a compliance check, but the same officers had gotten written consent from all other parolees they had searched that evening. No KDOC Special Enforcement Officer (SEO, parole officer) participated in the search of Defendant's home, contrary to KDOC's published internal policies for parolee searches.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Kansas for possession of a firearm while a convicted felon. Defendant moved to suppress all evidence from the search of his home, arguing that the search was warrantless and nonconsensual, and done by regular police instead of an SEO, contrary to state law and the Fourth Amendment. The trial court found that Defendant's agitation, his girlfriend's behavior, and Defendant's status as a felon and gang member added up to reasonable suspicion, which was the quantum of proof for police to search a parolee without a warrant or SEO, given a parolee's reduced expectation of privacy. MOTION TO SUPPRESS DENIED. Defendant appealed to the U.S. Court of Appeals for the Tenth Circuit.

DECISION: States need both to protect the public and rehabilitate parolees, justifying reduction in parolees' reasonable expectations of privacy compared to the general public. However, parolee searches must be related to parole issues, not a guise for general law enforcement. Furthermore, state parole laws create parolees' expectations when they agree to go on parole, marking one of the rare occasions when federal constitutional rights depend on state law. Consequently, states will be held to their laws of parole search, whether the parole agreement allows warrantless search by any peace officer (as in California) or whether a parole officer must conduct or at least direct the search (as in Kansas per KDOC's policy). What the police did to Defendant was general law enforcement, not anything pertaining to a special need of parole supervision, and they did not meet Defendant's reduced expectation of privacy.

Neither did Defendant's behavior (a reasonable person can be agitated when refusing to consent to an illegal search) or his girlfriend's behavior (a reasonable person upon waking will often reach into a nearby drawer for eyeglasses, clothing, etc., not necessarily a weapon) amount to reasonable suspicion that criminal activity was afoot. Defendant's criminal record was not enough either, since he had been on probation for two years with one minor violation. Defendant's girlfriend's behavior did not justify a protective sweep of her bedroom, and anyway, a protective sweep in the Tenth Circuit is only allowed as an incident to arrest. DENIAL OF SUPPRESSION REVERSED.

EDITORIAL: It's easy to criticize from a thousand miles away, but may I suggest (1) reading the dang search policy or state law--don't assume you can do what they can do in California--and (2) asking for permission, since it's a free country and people can and do consent to all kinds of crazy stuff, such as searches that will send them to prison for decades. Here in North Carolina, we learned from the Fourth Circuit just two weeks ago that our policy, very similar to Kansas', is entirely constitutional, so long as a probation or parole officer directs the warrantless search. Make friends with them!

Now we all know that this guy hadn't had his parole revoked yet only because he was such a competent criminal that he hadn't been caught. Maybe, maybe, this will scare him straight, or maybe his NEXT parole officer will watch him much more closely.