TN fights to keep power to search probationer’s home without warrant

State government is fighting to be able to enter the residences of probationers without a warrant.

Pushing back against government efforts to chip away at the privacy and security guaranteed by the Fourth Amendment, The Rutherford Institute has asked the U.S. Supreme Court to reverse a state court decision allowing police to search the homes of probationers without any suspicion or justification

In an amicus brief filed in Hamm v. State of Tennessee, Institute attorneys have asked the Court to overturn a Tennessee court’s ruling that police have carte blanche to search the residence of probationers, arguing that it violates the Fourth Amendment’s overriding purpose to protect the sanctity and security of a person’s home.

“The most fundamental guarantee of the Fourth Amendment is that the government may not rifle through a home without cause. This protection applies to every citizen and every home, no matter what the government might suggest to the contrary,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. 

“In this age of overregulation and overcriminalization, where the average citizen unknowingly commits more than three felonies a day, it’s becoming all too easy for the government to label otherwise law-abiding Americans as criminals and strip them of their constitutional rights. The government must not be allowed to further breach the Fourth Amendment’s protections against warrantless home invasions by police.”

In November 2015, Olbion County (Tenn.) County law enforcement officers received an unsubstantiated tip from a questionable source that persons in Olbion County were trafficking in methamphetamine. Although the informant did not identify the persons involved, police used the tip to justify a search of David Hamm’s residence.

Hamm lived with his wife, Angela, who was on probation for a conviction of manufacturing controlled substances that occurred before the couple were married, and their son.

Although the officers had no warrant, they wrongly assumed the uncorroborated tip gave them reasonable suspicion to search the Hamms’ residence since, as condition of her probation, Angela had agreed to allow a warrantless search of her person or property by law enforcement officers. After being told by the Hamms’ son that his parents were not home, police entered the home through an unlocked door and conducted a warrantless search of the home where they found methamphetamine inside an eyeglass case. The police seized the drugs and charged the Hamms with violating state drug laws.

The trial court granted the Hamms’ motion to suppress the evidence seized during the warrantless search, ruling that even with Angela’s probation condition, the officers needed to have reasonable suspicion that there were drugs on the property, and the unreliable informant’s tip did not provide such suspicion.

On appeal, the Supreme Court of Tennessee reversed the lower court ruling, finding that Angela’s probation condition allowed a search of the residence without any suspicion and for any reason. In its amicus brief with the U.S. Supreme Court, The Rutherford Institute argues that the Fourth Amendment’s fundamental purpose is to protect the privacy of a person’s home, and probationers and their families retain the right to be free from arbitrary and unreasonable searches of their residences.

The amicus brief in Hamm v. State of Tennessee is available at  Affiliate attorneys Michael Kimberly, Ethan Townsend, and Garrett R. Atherton of McDermott, Will & Emery LLP in Washington, D.C. assisted The Rutherford Institute in advancing the arguments in Hamm.


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