People v. Wilson

Docket No. 102562.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
JOHNNIE WILSON, Appellee.
Opinion filed February 7, 2008.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,
Garman, and Karmeier concurred in the judgment and opinion.
OPINION
At issue in this case is whether a warrantless, suspicionless search
of a parolee is prohibited by the fourth amendment.
In the instant case, a parole officer, acting on an anonymous tip
that defendant Johnnie Wilson was violating the conditions of his
parole agreement, ordered two police officers to search defendant’s
bedroom, despite not having a search warrant or receiving defendant’s
consent. After the search yielded cocaine and heroin, defendant was
charged with possession of a controlled substance with intent to
deliver. Before trial, defendant moved to suppress the drug evidence,
arguing that the fourth amendment of the United States Constitution
prohibited the search of his bedroom.
The circuit court of Cook County denied the motion, finding that
defendant consented to the search when he signed his mandatory
supervised release (MSR) agreement. The appellate court reversed
defendant’s conviction and remanded the matter for a suppression
hearing. 364 Ill. App. 3d 762. For the reasons that follow, we reverse
the judgment of the appellate court and affirm the judgment of the
circuit court.
BACKGROUND
On February 27, 2002, defendant was placed on mandatory
supervised release (MSR)1 from a 15-year sentence for armed
violence. When defendant was released, he signed a “Parole or
Mandatory Supervised Release Agreement” (MSR agreement), which
set forth the conditions of his release in accordance with section
3–3–7 of the Unified Code of Corrections (730 ILCS 5/3–3–7 (West
2002)). Two of the conditions were as follows:
“You shall consent to a search of your person, property, or
residence under your control”;
and
“You shall refrain from the use or possession of narcotics or
other controlled substances in any form, or both.”
The MSR agreement also stated:
“If such rules are violated, parole or mandatory supervised
release may be revoked under the rules and regulations
promulgated by the Prisoner Review Board or other releasing
authority. *** Until final discharge, you shall at all times be
under the legal custody of the Department of Corrections,
subject to being retaken at any time, with the establishment of
probable cause, and the lodging of a warrant, within the
enclosure of an Illinois State correctional center.”
1
What was referred to as “parole” in Illinois prior to February 1, 1978,
is now termed “mandatory supervised release” (MSR). 730 ILCS 5/5–8–1(d)
(West 2006). For clarity, Illinois defendants on MSR shall be referred to as
“parolees” in this opinion.
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On February 3, 2003, defendant, who was on parole, was arrested
and charged with possession of a controlled substance with intent to
deliver. Prior to his bench trial, defendant filed a motion to quash his
arrest and suppress evidence. A hearing on defendant’s motion was
held on March 18, 2003.
At the hearing, parole officer Raymond Hayes testified that, on
February 3, 2003, his office received an anonymous tip that defendant
had narcotics and weapons in his apartment. Hayes stated that, based
on this tip, he visited defendant’s apartment with two Chicago police
officers to investigate this possible parole violation. At the apartment,
he was given permission to enter by a relative who was “either
[defendant’s] mother or grandmother.”
Upon entering the apartment, Hayes saw defendant emerge from
a bedroom just a few feet from the front door. Defendant told Hayes
that the bedroom was his. Hayes then instructed the police officers to
search defendant’s bedroom. The police officers found several
containers of substances that the Illinois Crime Lab later determined
to be cocaine and heroin.
Hayes admitted that he did not have a warrant to search defendant
or his room and did not ask defendant for his consent to search the
room. Hayes testified that he felt neither a warrant nor defendant’s
consent was needed because defendant’s MSR agreement constituted
defendant’s consent to any searches of his person, property, or
residence.
At the conclusion of the hearing, the trial court denied the motion
to suppress evidence, finding that defendant consented to the search
when he signed his MSR agreement. Following a bench trial on
September 23, 2003, defendant was found guilty of possession of a
controlled substance and sentenced to eight years’ imprisonment.
On appeal, the appellate court held, based on a totality of the
circumstances, that the search of defendant’s bedroom was improper.
Accordingly, the appellate court reversed defendant’s conviction and
remanded the matter for a new trial. People v. Wilson, 361 Ill. App.
3d 93 (2005). The State then appealed to this court. We denied the
appeal, but ordered the appellate court to vacate its decision and
reconsider its judgment in light of People v. Moss, 217 Ill. 2d 511
(2005). Upon reconsideration, the appellate court again reversed
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defendant’s conviction and remanded the matter for a new trial. 364
Ill. App. 3d 762. This appeal followed.
ANALYSIS
Initially, we note that the search in question was nonconsensual.
Officer Hayes did not ask for consent before ordering the search of
defendant’s bedroom. Moreover, defendant’s search condition, which
mandated that he “shall consent to a search,” did not constitute
prospective consent. See People v. Lampitok, 207 Ill. 2d 231, 260-61
(2003) (“shall submit” in a search condition charges a probationer
with the duty to submit to a search when directed to do so; it does not
constitute prospective consent). The State concedes that the search
was nonconsensual, but argues that it was reasonable nonetheless and
that the appellate court erred in reversing the circuit court’s denial of
defendant’s motion to suppress evidence.
Generally, our review of a circuit court’s ruling on a motion to
suppress evidence involves both questions of fact and law. Moss, 217
Ill. 2d at 517. We will uphold findings of historical fact made by the
circuit court unless such findings are against the manifest weight of
the evidence. People v. Pitman, 211 Ill. 2d 502, 512 (2004). If we
uphold the factual findings, we review de novo whether suppression
is appropriate under those facts. Moss, 217 Ill. 2d at 518. In the
instant case, there are no questions of fact disputed by the parties.
Accordingly, we review the application of law to the facts de novo.
Applicable Law
The fourth amendment to the United States Constitution, which
guarantees the right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures, applies to the states through the due process clause of the
fourteenth amendment. People v. James, 163 Ill. 2d 302, 311 (1994).
Generally, the fourth amendment requires the government to possess
a warrant supported by probable cause for a search to be considered
reasonable. Illinois v. McArthur, 531 U.S. 326, 330, 148 L. Ed. 2d
838, 847, 121 S. Ct. 946, 949 (2001). However, the requirement for
a warrant has been held unnecessary in cases involving probationers
and parolees when the search is deemed reasonable. See United States
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v. Knights, 534 U.S. 112, 122, 151 L. Ed. 2d 497, 507, 122 S. Ct.
587, 593 (2001); Samson v. California, 547 U.S. ___, ___, 165 L.
Ed. 2d 250, 262, 126 S. Ct. 2193, 2202 (2006); Moss, 217 Ill. 2d at
534. In determining the reasonableness of a warrantless search, a
court must examine the totality of the circumstances and assess, on
the one hand, the degree to which the search intrudes upon an
individual’s privacy and, on the other, the degree to which it is needed
for the promotion of legitimate governmental interests. Knights, 534
U.S. at 118-19, 151 L. Ed. 2d at 505, 122 S. Ct. at 591.
In a series of cases, the United States Supreme Court and this
court have held that probationers and parolees enjoy a greatly
diminished expectation of privacy due to their status as probationers
and parolees, and the salient government interest in preventing
recidivism and protecting society from future crimes. See Griffin v.
Wisconsin, 483 U.S. 868, 880, 97 L. Ed. 2d 709, 722, 107 S. Ct.
3164, 3172 (1987) (warrantless search of probationer’s home by state
probation officers pursuant to Wisconsin regulation requiring
“reasonable grounds” held not to violate fourth amendment); Knights,
534 U.S. at 121, 151 L. Ed. 2d at 506-07, 122 S. Ct. at 593 (“When
an officer has reasonable suspicion that a probationer subject to a
search condition is engaged in criminal activity, there is enough
likelihood that criminal conduct is occurring that an intrusion on the
probationer’s significantly diminished privacy interests is reasonable”);
Lampitok, 207 Ill. 2d at 251 (search of a probationer’s residence is
reasonable as long as it is performed by a probation officer who has
reasonable suspicion to investigate violations of probation); Moss, 217
Ill. 2d at 532 (warrantless, suspicionless pat-down search of parolee
for weapons is reasonable, and any evidence found during such a
search is admissible, when the safety of an investigating officer is at
issue). In contrast to the diminished expectations of privacy of
probationers and parolees, the state’s interest in supervising parolees
has been held to be substantial. See Knights, 534 U.S. at 120-21, 151
L. Ed. 2d at 506, 122 S. Ct. at 592 (state’s interest in protecting
potential victims of crimes by reoffenders allows it to focus on
probationers in a way that it does not on the ordinary citizen); Moss,
217 Ill. 2d at 531 (“The state is justified in focusing greater attention
on probationers because of their higher likelihood of recidivism.
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[Citation.] Persons on MSR, even more than probationers, present a
risk to the public”).
The appellate court recognized that defendant, as a parolee, had
a diminished expectation of privacy, and that the state had a legitimate
interest in preventing recidivism and protecting society from future
crimes. 364 Ill. App. 3d at 770. However, the appellate court held that
because the search at issue was not a pat-down search, as in Moss, but
rather a full-fledged search of a residence for evidence, it offended the
“significantly protected status” of his home. 364 Ill. App. 3d at 771.
Consequently, the court held that defendant maintained an expectation
of privacy in his home that would outweigh the interests of the state
unless the State was able to prove that it had reasonable suspicion to
conduct the search. 364 Ill. App. 3d at 771. The appellate court then
reversed the circuit court and remanded the cause with instructions to
the circuit court to evaluate whether the officers had reasonable
suspicion to believe that defendant violated the terms of his MSR so
that the search was justified. 364 Ill. App. 3d at 772.
Defendant contends that the appellate court acted properly in
reversing the circuit court, and requests cross-relief on the grounds
that a new hearing on remand would erroneously give the State a
second opportunity to establish probable cause and reasonable
suspicion, which it failed to do previously. The State argues that the
appellate court’s decision should be reversed, and that no reasonable
suspicion should be required for a warrantless search of defendant’s
residence, because this issue is now controlled by Samson v.
California, 547 U.S. ___, 165 L. Ed. 2d 250, 126 S. Ct. 2193 (2006),
a United States Supreme Court case announced after the decision of
the appellate court in the instant case.
In Samson, the petitioner was walking down a street when he was
spotted by a police officer who was aware that the petitioner was on
parole following a conviction for possession of a firearm by a felon.
Samson, 547 U.S. at ___, 165 L. Ed. 2d at 255, 126 S. Ct. at 2196.
The police officer stopped the petitioner and, based solely on the
petitioner’s status as a parolee, searched the petitioner. Samson, 547
U.S. at ___, 165 L. Ed. 2d at 256, 126 S. Ct. at 2196. During the
search, the officer found methamphetamine in one of the petitioner’s
shirt pockets. Samson, 547 U.S. at ___, 165 L. Ed. 2d at 256, 126 S.
Ct. at 2196. The State then charged the petitioner with possession of
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a controlled substance. Samson, 547 U.S. at ___, 165 L. Ed. 2d at
256, 126 S. Ct. at 2196.
The petitioner filed a motion to suppress the methamphetamine
evidence, which was denied. Samson, 547 U.S. at ___, 165 L. Ed. 2d
at 256, 126 S. Ct. at 2196. A jury then convicted the petitioner of the
possession charge and sentenced him to seven years’ imprisonment.
Samson, 54 U.S. at ___, 165 L. Ed. 2d at 256, 126 S. Ct. at 2196.
The California Court of Appeal affirmed the trial court, holding that
suspicionless searches of parolees are lawful under California law.
Samson, 54 U.S. at ___, 165 L. Ed. 2d at 256, 126 S. Ct. at 2196.
The United States Supreme Court then granted certiorari to
determine “whether a condition of release can so diminish or eliminate
a released prisoner’s reasonable expectation of privacy that a
suspicionless search by a law enforcement officer would not offend
the Fourth Amendment.” Samson, 547 U.S. at ___, 165 L. Ed. 2d at
256, 126 S. Ct. at 2196.
The examination of the petitioner’s expectation of privacy began
with an assessment of his status as a parolee, as compared to the
petitioner in Knights, who was a probationer. Samson, 547 U.S. at
___, 165 L. Ed. 2d at 258, 126 S. Ct. at 2198. The Court held that,
like probationers, parolees are on the “continuum” of state-imposed
punishments and, in fact, have even fewer expectations of privacy than
probationers “because parole is more akin to imprisonment than
probation is to imprisonment.” Samson, 547 U.S. at ___, 165 L. Ed.
2d at 258, 126 S. Ct. at 2198. The Court explained that parole is not
a simple release from imprisonment, but rather an alternative to
continued confinement that is eligible only to those who agree to abide
by certain rules for the balance of their sentence. Samson, 547 U.S. at
___, 165 L. Ed. 2d at 258, 126 S. Ct. at 2198. However, the Court
made clear that it was not equating parolees with prisoners for the
purpose of concluding that parolees, like prisoners, have no fourth
amendment rights. Samson, 54 U.S. at ___ n.2, 165 L. Ed. 2d at 258
n.2, 126 S. Ct. at 2198 n.2.
The Court found that the general conditions of California’s
parole, which included, among other things, mandatory drug testing
and meetings with parole officers, restrictions on association with
felons or gang members, a ban on ownership of firearms and specified
weapons, and a requirement to request permission from a parole
officer to travel more than 50 miles from home, clearly demonstrated
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that parolees have “severely diminished expectations of privacy by
virtue of their status alone.” Samson, 547 U.S. at ___, 165 L. Ed. 2d
at 259, 126 S. Ct. at 2199. Additionally, the Court found that the
parole search condition under California law–which requires inmates
who opt for parole to submit to suspicionless searches by either parole
officers or police officers at any time–was clearly expressed to the
petitioner before he signed his parole agreement. Samson, 547 U.S. at
___, 165 L. Ed. 2d at 259, 126 S. Ct. at 2199. The Court held that
because the petitioner accepted his “clear and unambiguous” search
condition, his expectations of privacy were “significantly diminished.”
Samson, 165 L. Ed. 2d at 259, 126 S. Ct. at 2199. The Court then
held, “Examining the totality of the circumstances pertaining to
petitioner’s status as a parolee, ‘an established variation on
imprisonment,’ [citation] including the plain terms of the parole search
condition, we conclude that petitioner did not have an expectation of
privacy that society would recognize as legitimate.” Samson, 547 U.S.
at ___, 165 L. Ed. 2d at 259, 126 S. Ct. at 2199.
Turning to the “governmental purpose” side of the balance, the
Court found that California had an “ ‘overwhelming interest’ in
supervising parolees because ‘parolees ... are more likely to commit
future criminal offenses.’ ” Samson, 547 U.S. at 165 L. Ed. 2d at 260,
126 S. Ct. at 2200, quoting Pennsylvania Board of Probation &
Parole v. Scott, 524 U.S. 357, 365, 141 L. Ed. 2d 344, 353, 118 S.
Ct. 2014, 2020 (1998). The Court noted that “this court has
repeatedly acknowledged that a State’s interests in reducing
recidivism and thereby promoting reintegration and positive
citizenship among probationers and parolees warrant privacy
intrusions that would not otherwise be tolerated under the Fourth
Amendment.” Samson, 547 U.S. at ___, 165 L. Ed. 2d at 260, 126 S.
Ct. at 2200. After citing empirical evidence2 illustrating the
significance of the state’s interest in preventing recidivism, the Court
2
The court cited figures provided by the California Attorney General
showing that 68% of adult parolees are returned to prison. Fifty-five percent
are returned for a parole violation, and 13% for the commission of a new
felony offense. California Attorney General, Crime in California 37 (April
2001). Further, a separate study revealed that 70% of California’s paroled
felons reoffended within 18 months of being released from physical custody.
See J. Petersilia, Challenges of Prisoner Reentry and Parole in California,
12 Cal. Pol’y Res. Center Brief 2 (June 2000).
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held, “California’s ability to conduct suspicionless searches of parolees
serves its interest in reducing recidivism, in a manner that aids, rather
than hinders, the reintegration of parolees into productive society.”
Samson, 547 U.S. at ___, 165 L. Ed. 2d at 260, 126 S. Ct. at 2200.
Moreover, the Court found that a requirement that searches be based
on individualized suspicion would “give parolees greater opportunity
to anticipate searches and conceal criminality” and “undermine the
State’s ability to effectively supervise parolees and protect the public
from criminal acts by reoffenders.” Samson, 54 U.S. at ___, 165 L.
Ed. 2d at 261, 126 S. Ct. at 2200-01.
The Court held that, while some states may impose additional
requirements for individualized suspicion, the fourth amendment does
not require reasonable suspicion for all searches. Samson, 547 U.S. at
___ n.4, 165 L. Ed. 2d at 261 n.4, 126 S. Ct. at 2201 n.4. The Court
then noted that reasonableness, not individualized suspicion, is “[t]he
touchstone of the Fourth Amendment.” Samson, 54 U.S. at ___ n.4,
165 L. Ed. 2d at 261 n.4, 126 S. Ct. at 2201 n.4. The Court
concluded, “the Fourth Amendment does not prohibit a police officer
from conducting a suspicionless search of a parolee.” Samson, 54 U.S.
at ___, 165 L. Ed. 2d at 262, 126 S. Ct. at 2202.
The State argues that Samson not only reinforces the legitimacy
of this state’s interest in preventing recidivism, but also establishes
that defendant’s status as a parolee, along with the terms of his search
condition, diminishes his expectation of privacy to a point that society
would not recognize as legitimate. Defendant does not contest the
legitimacy of the state’s interest in preventing recidivism, but contends
that Samson is not controlling on the issue of his expectations of
privacy. Defendant argues that because the MSR system in Illinois
differs significantly from the California system, and because his search
condition is unlike the search condition used in California, Samson
does not apply here. Defendant also contends that Samson made no
findings regarding the search of a parolee’s residence and, as such, is
inapplicable to the instant case. We shall address these arguments in
turn.
Parole Systems
Defendant argues that our mandatory MSR system affords an
Illinois parolee a greater expectation of privacy than a California
parolee, who may “elect” to stay in the physical custody of the
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department of corrections or choose to accept a set of conditions and
complete his sentence on parole. According to defendant, because
MSR is mandatory for an Illinois prisoner, he is not presented with the
choice between staying in prison or being released on parole, and
therefore does not have the same level of “unambiguous awareness”
of the acceptance of a search condition that California prisoners have.
We find defendant’s argument to be without merit. There is
nothing in the statutes that govern the Illinois parole system that
supports defendant’s contention that Illinois parolees are somehow
less aware than their California counterparts that they are accepting a
collection of conditions in order to secure their release from physical
custody. Further, we can find no appreciable differences between each
state’s operational process for entering a period of parole or for
remaining on parole.
In California, prisoners sentenced to any term, other than natural
life in prison without parole, may become eligible for parole based on
a decision of the Board of Parole Hearings. Cal. Penal Code §3041
(West 2007). California prisoners who are declared eligible for parole
must sign and retain a copy of a parole agreement that places
conditions on their liberty during their parole, including a condition
that requires them to be subject to search or seizure at any time for
any reason. Cal. Penal Code §3067 (West 2007). If a California
prisoner refuses to sign such an agreement, he remains imprisoned.
Cal. Penal Code §3060.5 (West 2007). In California, parolees enjoy
freedom from the physical custody of the California Department of
Corrections, but remain under the legal custody of the Department,
and are subject to reimprisonment for any violations of their parole
agreement. Cal. Penal Code §3056 (West 2007).
Similarly, in Illinois, prisoners not serving a term of natural life
imprisonment have the opportunity to become eligible for parole (730
ILCS 5/3–3–3(c) (West 2006)), and when eligible for parole are
presented with an agreement that sets forth the conditions of their
release from the physical custody of the Department of Corrections
(730 ILCS 5/3–3–7 (West 2006)). They must sign this agreement and
retain a copy in order to secure their release from the physical custody
of the Department of Corrections. 730 ILCS 5/3–3–7(c) (West 2006);
People v. Powell, 217 Ill. 2d 123, 128 (2005) (prisoner who refused
to sign his MSR agreement was kept in physical custody). Illinois
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parolees remain in the legal custody of the Department of Corrections
for the duration of their parole. 730 ILCS 5/3–14–2(a) (West 2006).
We find that the parole systems of Illinois and California are very
much alike in operation. The parallels illustrated above belie
defendant’s assertion that the systems of the two states differ to the
degree that precludes Samson from controlling our analysis of a
search of an Illinois parolee.
Search Conditions
In Samson, the Court found that the reduced expectation of
privacy a parolee has is further diminished by his acceptance of the
clear and unambiguous terms of the search condition contained in his
parole agreement. Samson, 547 U.S. at ___, 165 L. Ed. 2d at 259,
126 S. Ct. at 2199. Defendant argues that, because his search
condition differs from the search condition considered in Samson, his
expectation of privacy should not be similarly diminished.
Defendant’s MSR agreement provides, “[y]ou shall consent to a
search of your person, property, or residence under your control”3 and
“If [the rules of the agreement] are violated, parole or mandatory
supervised release may be revoked.”4
In comparison, the search condition of the petitioner in Samson
mandated that he “ ‘shall agree in writing to be subject to search or
seizure by a parole officer or other peace officer at any time of the day
3
This condition has since been codified in section 3–3–7(a) of the Unified
Code of Corrections, which provides, “The conditions of every parole and
[MSR] are that the subject: *** (10) consent to a search of his or her person,
property, or residence under his or her control.” 730 ILCS 5/3–3–7(a)(10)
(West 2006).
4
This condition has since been codified in section 3–3–9(a) of the Unified
Code of Corrections, which provides, “[i]f prior to expiration or termination
of the term of parole or [MSR], a person violates a ***condition of parole
***, the Board may: (1) continue the existing term, with or without
modifying or enlarging the conditions; or (2) parole or release the person to
a half-way house; or (3) revoke the parole or [MSR] and reconfine the
person ***.” 730 ILCS 5/3–3–9(a) (West 2006).
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or night, with or without a search warrant and with or without
cause.’ ” Samson, 547 U.S. at ___, 165 L. Ed. 2d at 255, 126 S. Ct.
at 2196, quoting Cal. Penal Code §3067(a) (West 2000). If the
petitioner in Samson were to refuse to be subject to a search he would
violate his parole and be subject to a return to physical custody of the
department of corrections. Cal. Penal Code §3060 (West 2007).
We recognize the distinct wording in each search condition, but
hold that the differences are of form, and not substance. In each state,
the parolee is obligated to comply with the search demands of law
enforcement officers or face potential revocation of parole. Despite
defendant’s protestations to the contrary, the legal and practical effect
of his search condition is no different from that of the search condition
at issue in Samson.
Defendant also maintains that, while California’s search condition
explicitly allowed for a search without cause by a police officer, his
search condition does not and is, therefore, indicative of a greater
expectation of privacy. In addressing this contention, we turn to Moss,
where we considered a search condition identical to defendant’s. In
Moss, we held that the search condition puts the parolee “on notice
that law enforcement officials may ask his consent to search his
‘person, property, or residence ***’ *** with or without reasonable
suspicion.” Moss, 217 Ill. 2d at 528. We further explained that this
search condition has no “limitation on what government agent may
perform that search or what purpose they may have.” Moss, 217 Ill.
2d at 532. As such, we find no merit in defendant’s argument that his
search condition was in any way less “explicit” than that considered
in Samson.
Search of a Residence
Defendant contends that the appellate court was correct in finding
that, where the search of a parolee invades his home, “it weighs
heavily in the balance that determines whether the search is reasonable
and remains a significant, rather than minimal, intrusion on defendant’s
albeit diminished expectations of privacy.” 364 Ill. App. 3d at 771.
Defendant maintains that the special protection the United States
Supreme Court and this court have historically afforded to searches
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of residences should be factored in to any assessment of his diminished
expectation of privacy.
Since Samson, many courts have held that there is no difference
between the expectation of privacy a parolee has in his person and his
residence, provided that the parolee has signed an agreement
containing a search condition similar to defendant’s search condition.
These cases all implement the principle set forth in Samson that “a
State’s interests in reducing recidivism and thereby promoting
reintegration and positive citizenship among probationers and parolees
warrant privacy intrusions that would not otherwise be tolerated under
the Fourth Amendment.” Samson, 547 U.S. at ___, 165 L. Ed. 2d at
260, 126 S. Ct. at 2200.
In United States v. Stuckey, No. 06 CR 339 (S.D.N.Y. August 16,
2006), the defendant was a parolee with a search condition permitting
law enforcement to search his “person, residence, and property.” The
Stuckey court, relying on Samson, held that a suspicionless search of
the defendant’s residence was reasonable. The Stuckey court reasoned
that, “if it generally could be said that a free individual has a greater
expectations of privacy at home than in his person [citation], any
differential must be considered de minimis for a parolee who is
acutely aware of the search conditions attached to his liberty” and,
moreover, “the state has at least as much of an interest in searching a
parolee’s residence as it does in searching his person.” (Emphases in
original.)
In United States v. Lopez, 474 F.3d 1208 (9th Cir. 2007), the
defendant was a parolee with a search condition that put him on notice
that his person, property, and residence were subject to search at any
time. Lopez, 474 F.3d at 1209. Following Samson, the Lopez court
held that the defendant, as a parolee, did not have an expectation of
privacy in his residence that society would recognize as legitimate.
Lopez, 474 F.3d at 1213. The Lopez court held:
“[I]f *** a parolee has no expectation of privacy in his person,
we reason that a parolee has no legitimate expectation of
privacy in his residence either, at least when the parolee is
present. Any other rule would diminish the protection to
society given by the search condition of parole, permitting
search at any time.” Lopez, 474 F.3d at 1213.
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See also United States v. Perkins, No. 05–CR–30137 (S.D. Ill.
December 15, 2006) (holding that this court “would most likely hold
that a search of a parolee’s residence need not be supported by
reasonable suspicion”).
In the instant case, defendant signed and accepted a search
condition requiring him to “consent to a search of your person,
property, or residence under your control.” (Emphasis added.) Like
the defendants in Stuckey and Lopez, his status as a parolee, coupled
with the plain language of his search condition, reduced his
expectation of privacy in his residence to a level that society would
not recognize as legitimate. Accordingly, the special protection
normally afforded to an individual’s home does not apply to him.
We are unpersuaded by defendant’s arguments concerning the
differences between the parole systems and search conditions of
California and Illinois. Moreover, we find that any “special protection”
afforded to defendant’s residence was lost when he became a parolee
and agreed to consent to a search of his residence in his MSR
agreement. As such, we hold that the reasoning set forth in Samson
controls our analysis of the instant case. “[T]he Fourth Amendment
does not prohibit a police officer from conducting a suspicionless
search of a parolee.” Samson, 547 U.S. at ___, 165 L. Ed. 2d at 262,
126 S. Ct. at 2202.
In light of our decision today, we need not address the State’s
argument that the appellate court erred by disregarding the propriety
of the search under the “special needs” doctrine set forth in Griffin.
Also, because we reverse the judgment of the appellate court, we need
not consider defendant’s request for cross-relief.
CONCLUSION
For the foregoing reasons, we reverse the judgment of the
appellate court and affirm the judgment of the circuit court.
Appellate court judgment reversed;
circuit court judgment affirmed.
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