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Parolees Have a Diminished Expectation of Privacy, 10th Reminds

By Betty Wang, JD | Last updated on

All parolees have a diminished expectation of privacy, the Tenth Circuit reminds us, in a case that denied the defendant's motion to suppress a search.

Several months after his release, defendant Bruce Mabry violated the terms of his parole by leaving the state of Kansas. Mabry was pulled over by police in Utah. The car was driven by another parolee and there were 22 pounds of marijuana found, as well. The other parolee was arrested, but Mabry was not. Shortly after, however, an "Order to Arrest and Detain" was issued, on the basis that Mabry had violated his parole by traveling out of state.

Two Kansas police showed up at Mabry's house, where his girlfriend answered the door, appearing visibly nervous. She claimed that Mabry himself was not available, but then Mabry himself came into view. The police then entered the residence, saw a tray underneath the coffee table that contained marijuana, and then found a firearm from their search of the home, as well.

Mabry is now moving to suppress this evidence on the grounds that the search had violated his rights under the Fourth Amendment. The court, however, found that despite the fact that a parolee's home, like anyone else's, is protected under the Fourth's requirement that searches be reasonable, per U.S. v. Warren, there are still exceptions for the searches of probationers and parolees.

One of these exceptions, the court found, authorizes warrantless searches without even reasonable suspicion if the totality of the circumstances allows for the search. However, whether a search is reasonable depends in part on the particular jurisdiction. Under Kansas law, a warrantless search of a parolee's property is acceptable only if supported by reasonable suspicion under State v. Bennett.

In this case, the courts found that the search was reasonable, because of the following factors:

  • As a parolee, Mabry already should have a diminished expectation of privacy.
  • There was fairly reliable information that Mr. Mabry had violated his parole and was involved with distributing drugs, as evidenced by the 22 pounds of marijuana.
  • The State had a strong interest in monitoring Mabry's behavior and
    preventing his recidivism, especially in light of his recent parole violation (leaving Kansas).

Add to this the fact that Mabry's girlfriend appeared nervous and allegedly attempted to lie for him. Result: the search was entirely reasonable under the totality of the circumstances.

The Tenth affirmed the district court's denial of Mabry's motion to suppress the evidence, finding no violation of the Fourth Amendment.

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