NOT RECOMMENDED FOR PUBLICATION

                                   File Name: 20a0596n.06

                                          No. 20-5003

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                     FILED
 UNITED STATES OF AMERICA,                              )                       Oct 20, 2020
                                                        )                  DEBORAH S. HUNT, Clerk
        Plaintiff-Appellee,
                                                        )
                                                        )
 v.                                                             ON APPEAL FROM THE
                                                        )
                                                                UNITED STATES DISTRICT
                                                        )
 JOHN BROWN,                                                    COURT FOR THE WESTERN
                                                        )
        Defendant-Appellant.                                    DISTRICT OF TENNESSEE
                                                        )
                                                        )


BEFORE:        BOGGS, STRANCH, and THAPAR, Circuit Judges.

       BOGGS, Circuit Judge. John Brown had been on parole in Tennessee since December

2016 for voluntary manslaughter. As a condition of his parole, Brown signed a Parole Certificate

that provided in pertinent part, “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 without reasonable suspicion.” Brown was scheduled to report to the parole office every

three months, but he only reported once in January 2017. Brown’s parole was set to expire May

20, 2018, and Brown missed his last compliance meeting with his parole officer, Terry Smith,

scheduled for May 9, 2018.

       On May 15, 2018, Sergeant Mark Lesure of the Memphis Police Department’s Homicide

Investigation Unit (“MPD”) contacted Officer Smith, informing him that Brown was a person of

interest in a May 6, 2018 shooting homicide. Officer Smith rescheduled Brown’s compliance




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No. 20-5003, United States v. Brown


check for the next day, May 16, 2018, and informed the MPD of the same. Brown again did not

appear.

          The next day, Brown did appear at the parole office without an appointment. Officer Smith

reported this to his superior, Officer Myron Massey, a lead officer at the State of Tennessee

Department of Corrections Parole and Probation. Officer Massey was part of the Memphis City

Task Force that coordinated with other Memphis law enforcement agencies in an effort to identify

violent offenders and those likely to be involved in gang activity. Officer Massey alerted the MPD

of Brown’s unexpected presence at the parole office.

          MPD officers deployed to the parole office and, when they arrived, immediately detained

Brown. They conducted a pat-down search and recovered Brown’s wallet and his vehicle-key fob.

MPD officers gave the fob to Officer Massey, who asked Brown the location of his vehicle. Brown

replied that the police needed a search warrant, at which time Officer Massey told Brown that due

to his status as a parolee, his vehicle and person were subject to searches without a warrant.

          Officer Massey proceeded to locate Brown’s car and began to search it. Upon opening the

driver-side front door, Officer Massey saw an extended magazine of a gun protruding from

underneath the driver’s seat. Officer Massey immediately stopped his search, closed the vehicle

door, and alerted MPD, which took over the investigation.

          Sgt. Lesure arrived on scene shortly thereafter and decided to obtain a search warrant for

the vehicle before proceeding any further with the search. MPD transported Brown to the police

station, where Sgt. Lesure read him his Miranda rights. Brown signed an advice of rights form,

waived his Miranda rights, and signed a typed statement where he admitted being in possession

of the gun found in his vehicle. The next day, MPD received the search warrant and searched

Brown’s vehicle, finding a Smith & Wesson .40-caliber pistol under the driver’s seat.


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         Brown was indicted for being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g). He pled not guilty and filed a pretrial motion to suppress the firearm and his statement

affirming that he possessed the firearm. The district court denied the motion to suppress on

grounds that, because Brown was a parolee, the standard Fourth Amendment rights regarding

search and seizure did not apply. Brown entered a conditional guilty plea, reserving his right to

appeal the district court’s denial of his motion to suppress. The district court entered judgment on

December 12, 2019. Brown then timely filed this appeal

                                      I. Standard of Review

         In reviewing a district court’s suppression determination, we review factual findings for

clear error and conclusions of law de novo. United States v. Jackson, 

, 452 (6th Cir.

2012). We “must afford due weight to the factual inferences and credibility determinations” made

by the district court. United States v. Moon, 513, F.3d 527, 536 (6th Cir. 2008). To overturn a

district court’s denial of a motion to suppress, the defendant must show a violation of a

constitutional or statutory right sufficient to justify suppression. United States v. Rodriguez-Suazo,

, 643 (6th Cir. 2003) (citation omitted). We may affirm a denial of a motion to

suppress on any basis supported by the record. United States v. Gill, 

, 609 (6th Cir.

2012).

                               II. Warrantless Search of Parolees

         The Fourth Amendment protects “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.

This fundamental right is preserved by the requirement that searches be conducted pursuant to a

warrant based on probable cause. Payton v. New York, 445, U.S. 573, 586 (1980). But there are

“exceptions to the general rule that a warrant must be secured before a search is undertaken.”


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California v. Carney, 

, 390 (1985). Whether a search by law enforcement is

constitutional is evaluated on its reasonableness, which “is judged by balancing its intrusion on

the individual’s Fourth Amendment interests against its promotion of legitimate governmental

interests.” Delaware v. Prouse, 

, 667-68 (1979).

       In 1987, the Supreme Court held that a State’s operation of a probation system creates

“special needs” “beyond normal law enforcement that may justify departures from the usual

warrant and probable-cause requirements.” Griffin v. Wisconsin, 

, 874 (1987). The

Court reasoned that, “probation serves as a period of genuine rehabilitation” and reduces the

chances of recidivism, creating a “special need” that allows warrantless searches by the State in

administering its probation 

; see United States v. Sweeney, 

,

236 (6th Cir. 2018).

       In 2001, the Supreme Court moved away from the “special needs” doctrine and upheld the

search of a probationer’s residence based on only reasonable suspicion arising from the totality of

the circumstances of the search, which included the probationer’s acceptance of a search condition

under the terms of his probation. United States v. Knights, 

, 122 (2001); see also

United States v. Tessier, 

, 433 (6th Cir. 2016) (applying Knights balancing test under

the totality of the circumstances to uphold the search of a residence that was conducted without

reasonable suspicion).

       In 2003, the Court went further, upholding a warrantless and suspicionless search by a law-

enforcement officer who stopped a parolee whom he thought had an outstanding warrant. Samson

v. California, 

(2006). The parolee, Samson, informed the officer that he had no

outstanding warrants, which the officer then confirmed by radio dispatch. Nonetheless, the officer

conducted a suspicionless search, pursuant to Cal. Penal Code § 3067 (a), based solely on




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No. 20-5003, United States v. Brown


Samson’s status as a 

. The officer found methamphetamine and

Samson was convicted for possession and sentenced to seven years of imprisonment.

       The pertinent California parole statute in Samson provided that every prisoner eligible for

parole “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 or night, with or without a search warrant and with or without cause.”

Cal. Penal Code § 3067(a) (2000); 

. The Supreme Court held that under

“the totality of the circumstances . . . including the plain terms of the parole search condition,”

Samson, as a parolee, “did not have an expectation of privacy that society would recognize as

legitimate.” 

. In so holding, the Court noted, as a favorable factor,

California’s statutory prohibition on parolee searches that were “arbitrary, capricious or

harassing.”

Analysis

       The question here is whether Brown’s Fourth Amendment right against unreasonable

search and seizure was violated when law-enforcement officers, based on a tip from Brown’s

parole officers, searched Brown without a warrant because he was “a person of interest” in a

homicide. Brown argues that the “stalking horse” caveat to the general rule of the cases above

applies here. That caveat provides that the “special needs” exception to the warrant requirement

does “not permit a probation officer to act as a ‘stalking horse’ to help the police evade” that

requirement; while “probation officers [can] cooperate with police to achieve joint objectives,”

they cannot “use their authority to eliminate the warrant requirement for police investigations”

altogether. United States v. Ickes, 

, 711 (6th Cir. 2019); see also United States v.

Martin, 

, 296 (6th Cir. 1994) (“[I]t is impermissible for a probation search to serve as

subterfuge for a criminal investigation.”) After the Supreme Court’s decision in Knights, though,


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No. 20-5003, United States v. Brown


this court and several other circuits began to question the continued existence of the “stalking-

horse” caveat. 

–12 (collecting cases). And in 2018, we held that the

“stalking-horse” exception “does not apply when a parolee is subject to a search provision and the

search is reasonable under the totality of the circumstances.”

(citing 

). In fact, in discussing why the stalking-horse caveat did not apply in that case, the Ickes

court prefaced its analysis by noting that it was looking at the caveat even “if it survives Knights

at all.”

applying Samson, denied Brown’s motion to suppress based on the

totality of the circumstances and the terms and conditions of the Parole Certificate signed by

Brown. It held “that this parole certificate is an example where reasonable suspicion is not required

[for a search] because the State of Tennessee included that as part of its conditions for the

alternative to incarceration.”

        Samson and Sweeney control this case, not Griffin. The terms and conditions of the search

provision at issue in Samson were written pursuant to a specific California statute. See 

. While Tennessee does not have a similar statute, its statutory scheme provides

that the Tennessee Board of Probation and Parole “[i]n granting parole . . . may impose any

conditions and limitations that [it] deems necessary.” Tenn. Code § 40-28-116(b). Interpreting

that provision, the Tennessee Supreme Court upheld the warrantless search of a parolee’s residence

pursuant to the terms and conditions of her parole. “[P]arolees who are subject to a warrantless

search condition may be searched without reasonable or individualized suspicion” as long as the

search is not conducted in “an unreasonable manner.” State v. Turner, 

, 157 (Tenn.

2009). The court concluded: “[w]e therefore adopt the reasoning of Samson and hold that the

Tennessee Constitution permits a parolee to be searched without any reasonable or individualized



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No. 20-5003, United States v. Brown


suspicion where the parolee has agreed to warrantless searches by law enforcement officers.”

The holding in Turner applies to the terms and conditions of parole at issue here.

       Brown agreed to specific search conditions as set forth by the terms of his parole. Those

terms provide that law-enforcement officers can search Brown even without “reasonable

suspicion.” Brown signed and agreed to these terms to obtain parole. Officers searched Brown

because he was a parolee and “a person of interest” in a homicide. In Samson, the Supreme Court

upheld a search of a parolee solely based on his status as a 

. Here, law-

enforcement officers had not one, but two, reasons to search Brown: the terms and conditions of

his parole and his status as a person of interest in a homicide investigation. See 

. Further, Brown does not argue on appeal, nor is there any evidence, that the search was

arbitrary, capricious, or harassing. The district court did not err in denying the motion to suppress.

                                          IV. Conclusion

       For the reasons set forth above, we AFFIRM the district court.




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