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Media Alerts - Sixth Circuit: Probation order may allow search without reasonable suspicion
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March 21, 2016
  Sixth Circuit: Probation order may allow search without reasonable suspicion
Case: U.S. v. Tessier

Area of law: Fourth Amendment; Probation

Issue: May a probationer whose probation order contains a search condition be subjected to a search in the absence of reasonable suspicion?

Brief summary: A probationer who'd pleaded guilty to a federal child-pornography charge appealed the district court's denial of his motion to suppress evidence of child pornography. The evidence was found during a warrantless search of his residence, which police conducted without reasonable suspicion. Addressing a question "left open" by the Supreme Court's Knights decision, the Sixth Circuit affirmed, noting that the probationer had signed off on broad consensual language in his probation order: "I agree to a search, without a warrant, of my person, vehicle, property, or place of residence by any Probation/Parole officer or law enforcement officer, at any time."

Extended summary: The probationer pleaded guilty to a federal child-pornography charge but reserved the right to challenge the denial of his motion to suppress evidence of child pornography, which was found during a search of his residence without reasonable suspicion. At the time of the search, the probationer was on probation for a felony conviction for sexual exploitation of a minor. The probationer's probation order contained the state's "standard" search condition: "I agree to a search, without a warrant, of my person, vehicle, property, or place of residence by any Probation/Parole officer or law enforcement officer, at any time." The probationer appealed the district court's denial of his motion to suppress the evidence, arguing that the search violated his Fourth Amendment rights due to the lack of reasonable suspicion under the totality of the circumstances. He relied on the Supreme Court's decision in United States v. Knights.

As the Sixth Circuit observed, Knights held that reasonable suspicion is sufficient to uphold a search of a probationer who is subject to a search condition. But Knights left open the issue of "the constitutionality of a suspicionless search" because, in that case, the search "was supported by reasonable suspicion." In this case, however, there was no reasonable suspicion. The officers, as part of a general sweep, searched all residences of known sex offenders in the county. When they entered the probationer's residence, they found a laptop computer containing pornographic material and seized it.

Despite the lack of reasonable suspicion, the Sixth Circuit upheld the search. The court reasoned that under the standard search condition that applies to all probationers in Tennessee, the probationer agreed to a warrantless search of his property and residence "by any . . . law enforcement officer, at any time." The probationer signed the search permit as a condition of his probation. Just above his signature, the language provided: "I have read or have had read to me, the conditions of my Probation. I fully understand them and agree to comply with them." He also signed a specialized-conditions form below other language that stated, "I understand that if I do not agree with any condition, I have a right to petition the Sentencing Court for a modification. Any release from these instructions will be provided to me in writing." The probationer did not petition for modification, and thus his consent to be searched was valid when the search was made.

Panel: Circuit Judges Eugene Siler, Julia Gibbons, and John Rogers.

Date of issued opinion: February 18, 2016

Docket number: 15-5284

Decided: Affirmed.

Counsel: ARGUED: R. David Baker, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Gwendolyn Stamper, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: R. David Baker, Andrew Brandon, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Gwendolyn Stamper, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Author of opinion: Circuit Judge John Rogers.

Case alert author
: Luciana Viramontes, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.ca6.uscourts.gov/op...ns.pdf/16a0042p-06.pdf

Edited: 03/21/2016 at 11:20 AM by Mark Cooney

    Posted By: Mark Cooney @ 03/21/2016 11:13 AM     6th Circuit  

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