Inmates released on parole by state parole authorities must sign “conditions of release” forms. One of the specified conditions is that the parolee consents to having his residence and any property under his control searched without a warrant. The consent form signed by Texas parolees authorizes searches by a parole officer, with the assistance of law enforcement, of the parolee’s person, motor vehicle, place of residence, or any property under the parolee’s control.


In 2001, the U.S. Supreme Court in United States v. Knights held that a warrantless search of a probationer’s home was reasonable under the Fourth Amendment when supported by reasonable suspicion of wrongdoing and authorized by his probation. A state probation system, reasoned the Court, creates a “special need” exception to the warrant requirement to ensure that the probationer is fulfilling all the conditions mandated by his probation. The Knights decision was followed in 2006 by Samson V. California in which the Court held that a “suspicionless search” of a parolee by law enforcement does not offend the Fourth Amendment and its probable cause prerequisites.


Law enforcement authorities, and parole officers, routinely consider these two decisions a free license to conduct warrantless searches of a parolee’s residence or any property under his control. But they may be reading too much in these decisions, especially Samson, as evidenced by a decision last September by the Ninth Circuit Court of Appeals in United States v. Grandberry.


In 2010, a Los Angeles police officer received a tip from a confidential informant about drug sales. The informant had provided reliable information to the officer in the past. On this occasion, the informant told the officer crack cocaine was being sold out of a garage called “Looney’s Spot.” The officer knew the name “Looney” as a moniker for a parolee named Lambert Grandberry. California law required Grandberry, as a condition of his parole, to authorize the warrantless search of his residence or any property under his control by any law enforcement officer or agent of the Department of Corrections.


Following customary law enforcement strategy, LAPD officers learned Grandberry had provided his parole officer with the address of the residence where he lived. The LAPD, with their informant in tow, set up a surveillance at Looney’s Spot where they observed Grandberry hand a woman a bag of a “substance that appeared to be crack cocaine” in exchange for cash. Rather than make an immediate arrest, the officers decided to conduct “additional surveillance” to determine the scope of the suspected drug dealing. As part of their extended surveillance, the officers followed Grandberry to an apartment building located about two blocks from Looney’s Spot. In the ensuing days, the officers observed Grandberry on several occasions drive between the two locations in a suspicious manner.


The officers confined their surveillance of Grandberry primarily to the apartment building—not at his legal residence. This surveillance revealed Grandberry visited the apartment at various times (generally between noon and 10:00 p.m.) over a two-week period. They observed him enter the building at least six times using “keys he held”—always alone, except for one time when he entered with a female companion. The officers’ surveillance also observed the woman arrive at the building alone on one occasion. While looking through a second floor window, officers noticed that there was “movement or activity” just after Grandberry entered the apartment, and on one occasion saw him “looking out the window of that apartment unit.” Once the officers observed Grandberry approach a parked vehicle near the apartment building and hand a man a paper bag. Officers detained the man who was carrying a bag with $9,000 in cash. He was released without being charged.


The officers conducting the surveillance never checked the apartment building’s mailboxes to see if Grandberry received mail there; never asked any neighbors if he lived in the building; never investigated to determine who leased or lived in the apartment; and never examined the building’s trash to see if it contained anything belonging to him. They never saw the parolee carrying any mail, newspapers, laundry, or groceries into the apartment.


Moreover, the officers conducted only a very brief” surveillance of Grandberry’s registered address, and did not see him enter or leave that residence. Once again they did not ask any neighbors if he lived there, and, in fact, did not even ask his parole officer if lived there.


The Grandberry surveillance was conducted in January 2010. The Ninth Circuit had clearly established in 2006 that before a parolee’s residence can be subjected to a warrantless search by either the police or his parole officer, the authorities must have “probable cause to believe that the parolee is a resident in the house to be searched.”


Here the officers had not established Grandberry was a resident at the apartment building before they arrested him there on January 25, 2010 for the January 14 crack cocaine sale. The officers arrested the parolee just as he was about to enter the apartment building. They also did not ask him if he lived in the building before they searched the apartment.


Grandberry was indicted by a federal grand jury for one count of distributing cocaine, one count of possessing crack cocaine, and one count of possessing a firearm in furtherance of a drug trafficking crime. Prior to trial, his attorney moved to suppress the search because the officers’ lacked probable cause to believe the apartment was the parolee’s residence. In support of the motion, defense counsel submitted a “declaration stating that the Arlington apartment was his girlfriend’s and that he had stayed there overnight as an invited guest a few times in December 2009 and January 2010, including the night before the search.”


The Government opposed the suppression motion for two reasons: First, prosecutors said the officers had probable cause to believe Grandberry resided at the apartment, or, alternatively, the conditions of his parole authorized a warrantless search of “any property under his control.” In support of its position, the Government directed the Ninth Circuit’s attention to the Samson ruling in which the Supreme Court held that a parolee lacks any “expectation of privacy that society would recognize as legitimate.” The Government argued that Samson overruled the Ninth Circuit’s pre-Samson precedents that the police must have “probable cause to believe that the parolee is a resident in the house to be searched.”


The appeals court was not persuaded. The court pointed out that Samson involved the search of a person, not a residence. This is no minor distinction. The Supreme Court has always recognized, as it has in several major decisions during its past two terms, that the right to privacy in a personal residence is much greater than that enjoyed in a vehicle or in one’s person in a public place (“stop and frisk”, for example).


Further, the appeals court pointed out that the Samson court did not address the issue of whether law enforcement must have “probable cause to believe that the parolee is a resident in the house to be searched.”


The Ninth Circuit also pointed out that the Supreme Court in the Knights decision held that law enforcement needed “only a reasonable suspicion of wrongdoing to conduct a warrantless search of a probationer’s residence.” But in a post-Knights decision, the appeals court decided to follow the “stricter probable cause standard” concerning suspected wrongdoing at a residence over the reasonable suspicion standard. The appeals court specifically held the “condition of parole that permits warrantless searches provides officers with the limited authority to enter and search a house where the parolee resides, even if others reside there. But they have to be reasonably sure that they are at the right house.”


In reversing Grandberry’s conviction, the Ninth Circuit refused “to set aside the probable-cause-as-to-residence requirement simply because Samson allows parole searches without suspicion of wrongdoing.”


Our research did not disclose any case in which either the Texas Court of Criminal Appeals or the Fifth Circuit Court of Appeals has applied the “probable cause” requirement in parolee resident searches. Based on the conservative leanings of both courts, it is highly unlikely that either would follow the lead of the more liberal-leaning Ninth Circuit on this issue. But this should not discourage motions to suppress warrantless searches of a parolee’s residence when the search is made with only “reasonable suspicion” of wrongdoing and when the police do not have probable cause that the parolee actually lives at the residence searched. The Supreme Court had not specifically addressed these issues with respect to parolee resident searches, and until it does, defense attorneys should pursue suppression motions when parolee resident searches are conduct only with a reasonable suspicion of wrongdoing.