A warrantless search is presumed unreasonable. It may be reasonable and lawful though if one or more recognized exceptions apply. The prosecution has the burden of proving a recognized exception if the warrantless search is contested. One important exception is consent. People on probation often, as a condition of being on probation, sign a form consenting to the "any time" search of their residence. However, federal and Tennessee law still requires at least reasonable suspicion of criminal activity for one of these "any time" residential searches to occur.
In the recent Tennessee case of State v. Carman-Thacker, M2014-01859-CCA-R3-CD (Tenn.Crim.App. 9-8-2015), the Court of Criminal Appeals reversed a trial court ruling admitting evidence obtained from a search of a probationer's residence. In the Carman-Thacker case, the defendant had been convicted of multiple counts of unlawful possession of a firearm while subject to an order of protection, and violating an order of protection by possessing a firearm.
Law enforcement authorities investigating a complaint of an order of protection violation arrived at the defendant's home and spoke with a co-defendant who was outside the home. The co-defendant, who was on probation, claimed to reside at the home. Based on nothing more than the co-defendant's probation agreement, authorities searched the home and found multiple firearms belonging to the defendant. The defendant contested the search on multiple grounds and the trial court found the search to be justified by the consent given in the co-defendant's probation agreement.
The appellate court noted that while the consent given in probation agreements may allow a residential search without a warrant or probable cause, legal precedent still requires that the search be justified by reasonable suspicion. No basis for reasonable suspicion had been offered at the suppression hearing or found by the trial court. Therefore, the 'consent' of the probation agreement did not justify the warrantless search in this case.
Furthermore, specific firearm offenses charged in this case did not apply to all orders of protection, but only those which were for the protection of an "intimate partner" or child of an "intimate partner" of the defendant. The order of protection in this case did not fall within the class of orders to which the charged offenses applied. So for that reason as well as the unlawful search, the charges against the defendant were all dismissed.
For more information on search and seizure questions, contact Hindman & Associates.