KS Dept. of Corrections Policy Allows Parolee Searches only on Reasonable Suspicion; Gun Found Suppressed

U.S. v. Freeman, 2007 WL 689521 (3/8/07) - Privatization at its best. An employee of a Kansas private parolee monitoring firm, along with some regular police officers, knock on a parolee's door at 1:00 a.m. to check the parolee's ankle bracelet and, by the way, search the house. When informed by the officers of their intention and right to search the house, the parolee becomes agitated. The parolee hurries to the bedroom to tell his girlfriend about the unwelcome visitors. He tells the officers he's concerned she might be undressed. An officer tells him he can only talk to her from outside the bedroom. The officer peeks into the bedroom and sees the girlfriend reaching for something in the dresser. The officers search the house and find a gun, among other things.

Fortunately for the parolee, internal management policies of the corrections department authorized searches only by "Special Enforcement Officers" ("SEO") and only on reasonable suspicion. Because the police officers searched without any participation by an SEO and without reasonable suspicion, the search was illegal. The 10th held the parolee's agitation and resistance to the search cannot be grounds for reasonable suspicion, especially where many innocent men would be upset when officers barge in early in the morning while their girlfriends are possibly undressed. The girlfriend's reach for the dresser was consistent with being rousted at 1:00 a.m. and innocently reaching for a watch, glasses, robe, etc. Reliance on the parolee's criminal history and past association with gangs would mean there were no limits on searches of parolees. The search could not be justified as a protective sweep because the search was not incident to an arrest. Even if 10th Circuit law requiring such a sweep to be incident to an arrest was overturned, the 10th doubted any grounds existed for a belief another person in the residence threatened officer safety.