Page 35 - January 2019 | Cleveland Metropolitan Bar Journal

CRIMINAL LAW

In United States v. Knights, 534 U.S. inquiry. For example, the Ninth Circuit search did not contain any facts that would
112 (2001), the Supreme Court rejected upheld a suspicionless search of a violent felon have given rise to reasonable grounds.
the idea that a warrantless probation probationer, relying on Samson, but suggested Although the prosecution originally argued
search can only be authorized under the that a suspicionless search of a non-violent that no reasonable grounds were necessary for
“special needs” framework. It instead probationer may not be reasonable, even if the a parole search, citing Samson, the prosecution
upheld a search under “our general Fourth probationer accepted a suspicionless-search did not pursue that argument with the
Amendment approach of examining the condition. See United States v. King, 736 F.3d Court. The Court, citing the “totality of the
totality of the circumstances.” Using this 805, 810 (9th Cir. 2013). circumstances,” found that the search required
approach, the Court ratified a warrantless Finally, in addition to the Griffin “special reasonable suspicion and, after a suppression
search of a probationer that was supported needs” framework and the Knights “totality-of- hearing, found that the officers did not have
by reasonable suspicion and authorized by the-circumstances” framework, prosecutors reasonable suspicion to conduct the search.
a California condition of probation that have sometimes made the argument that United States v. Donald Neff, 2018 WL 4656105
was clearly expressed to the probationer. a parole condition agreed to by a parolee (N.D. Ohio Sept. 27, 2018).
Five years later, in Samson v. California, operates as a consent-to-search, or a waiver Due to the confusing and nuanced state
547 U.S. 843 (2006), the Court ratified a of Fourth Amendment rights entirely. This of the law, which differs from state to state
warrantless, suspicionless search of a parolee argument is often tied to Schneckloth v. and is heavily fact-dependent, there is a
under that California condition, which Bustamonte, 412 U.S. 218 (1973). The Supreme serious risk that parole officers, probation
required inmates who opt for parole to submit Court in Samson expressly declined to rest officers, and other law-enforcement
to warrantless searches “with or without a its holding on this consent rationale, but left officers may overstep their search authority
search warrant and with or without cause” open the question of whether acceptance of when it comes to warrantless searches of
and “at any time.” The Court reasoned that a suspicionless search condition constitutes supervisees—especially parolees. Counsel
parolees have even lesser Fourth Amendment consent or a complete waiver. must be vigilant and prepared to fully vet
interests than probationers and, under the Parolees and other individuals under these suppression issues.
totality of the circumstances of that specific supervision have diminished expectations of
search—including that the parole condition privacy, and states are permitted to impinge on
was unambiguous and clearly communicated their privacy to a degree. But, as Justice Scalia Kevin Vogel is an Associate Attorney
to the parolee—the parolee did not have any wrote in Griffin, “[t]hat permissible degree with Flannery | Georgalis, LLC. He
legitimate expectation of privacy. is not unlimited.” Griffin, 483 U.S. at 875. focuses his practice on sophisticated
The broad language of Samson may belie Counsel should carefully consider the statute criminal defense, corporate
its actual significance for Ohio supervisees. authorizing the search, the search condition in investigations, complex civil
As recognized by the Tenth Circuit in United the individual’s Conditions of Supervision, the litigation, and regulatory-compliance services.
States v. Freeman, 479 F.3d 743, 747–48 (10th type of supervision imposed, and the factual Kevin has represented individual and corporate
Cir. 2007), Samson does not represent a circumstances surrounding the search (and the clients in criminal matters involving complex
“blanket approval” for suspicionless searches law-enforcement record of those facts), as the fraud, import and export controls, obstruction of
of parolees. The Court approved such searches touchstone inquiry into whether a particular justice, and cybercrime, among other things. Along
only when authorized under state law. Ohio search was constitutional. with Flannery | Georgalis Partner Chris Georgalis,
has not yet provided for suspicionless searches Our firm recently won suppression in a Kevin represented the defendant in United States
of parolees by statute. federal criminal case of all evidence derived v. Donald Neff. Kevin has been a CMBA member
Even post-Samson, courts in the Sixth from an APA search of a parolee. The APA since 2018. He can be reached at (216) 367-2120
Circuit continue to require that warrantless records made contemporaneously with the x104 or kevin@flannerygeorgalis.com.
searches of parolees in Ohio (and states with
analogous parole-search statutes) be based
upon reasonable grounds. Nevertheless,
counsel should carefully analyze the specific
search condition applicable to the supervisee.
Language permitting searches “at any time”
or “with or without a warrant,” or similar Upon leaving the United States Attorney’s Office, Paul Flannery and Chris Georgalis
language, will be more closely analogous to the formed Flannery | Georgalis, LLC, a boutique litigation firm focusing on complex criminal
condition in Samson. defense, internal investigations, and other sensitive matters. As former federal prosecutors,
Counsel should also carefully consider the Paul and Chris, along with their talented team of associates and paralegals, have become
type of supervision imposed. It is not clear a trusted solution for companies and individuals involved in white collar criminal matters,
SEC enforcement proceedings, corporate internal investigations, and other high-profile
that a suspicionless search of a probationer, or disputes. Other lawyers routinely turn to Flannery | Georgalis to assist clients in sensitive
an individual on post-release control, would matters because of their specialized skills and well-deserved reputation for success.
be upheld. And the individual characteristics You can find the Flannery | Georgalis team on the 30th Floor of the One Cleveland Center
of the individual, and other circumstances, in downtown Cleveland, or online at www.flannerygeorgalis.com.
may affect the totality-of-the-circumstances
January 2019 Cleveland Metropolitan Bar Journal | 35