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Warrantless Searches of Parolees Are Reasonable

In criminal cases in the United States, warrantless searches generally require some established exception to the warrant requirement in order to be considered reasonable. Consent is one exception. In Tennessee, a person granted parole is required to consent to being subject to warrantless searches as one of the conditions of being on parole. Both the United States Supreme Court and the Tennessee Supreme Court have determined this requirement to be reasonable and constitutional. In the recent Tennessee case of State v. Cotham, M2012-01150-CCA-R3-CD (Tenn.Crim.App. 7-31-2014), the Court of Criminal Appeals affirmed a trial court ruling that a defendant subject to parole supervision in Tennessee had no legal basis to contest a warrantless acquisition of cell phone tracking data which led to the discovery of further evidence.

In the Cotham case, the defendant was charged with and convicted of first degree murder. During the initial stages of the investigation, police obtained information regarding cell phone calls between the defendant and the victim's estranged husband (who was also convicted in a separate trial). Police further obtained cell phone tracking data to track the location of the defendant's cell phone during relevant times. The cell phone data was initially obtained by an "exigent circumstances" request to third parties in possession of the tracking and location data. The information obtained assisted in leading to the discovery of further incriminating information.

The defendant asked the trial court to suppress the evidence, arguing that the exigent circumstances exception did not apply under the circumstances of this case. The trial court denied the motion on multiple grounds, including a finding that there was no expectation of privacy in the location data transmissions and that the defendant was on parole and therefore subject to warrantless searches by law enforcement authorities without the need for a determination of probable cause or reasonable suspicion.

On direct appeal, the Court of Criminal Appeals agreed that because the defendant was a parolee and subject to warrantless searches, it was not necessary to obtain a warrant or find any other exception to the warrant requirement. The Court also seemed to agree that obtaining the location data transmissions was not a 'search' as there is not a reasonable expectation of privacy in the transmission of location data from a cell phone to a cell phone tower. But there was no need to address that issue extensively, or to address the claim of exigent circumstances, as a warrantless search was expressly permissible due to the defendant's parolee status.

For information on when a search may or may not be reasonable in a criminal investigation, contact Hindman & Associates.

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