Author: Jim Chapman
In United States v. Harden, ___ F.4th ___, 2024 WL 3034128 (11th Cir. June 18, 2024), the United States Court of Appeals for the Eleventh Circuit considered a matter of first impression in that circuit: whether a warrantless search of a probationer’s home, that is otherwise reasonable as to the probationer, is rendered unreasonable merely because a non-probationer is occupying the home as well. Upon consideration, the Eleventh Circuit joined the opinion of the United States Court of Appeals for the Ninth Circuit in holding that such a warrantless search is not rendered unreasonable if the occupant knows about the probation. The relevant facts are as follows.
On March 21, 2016, a Georgia superior court sentenced Tremayne Linder to twenty (20) years of probation after he pled guilty to burglary and attempted armed robbery in violation of Georgia law. Mr. Linder’s probation came with the condition that he “not violate the criminal laws of any governmental unit.” Nevertheless, Mr. Linder violated that condition by using marijuana.
Accordingly, on January 12, 2018, the state court imposed additional probation conditions on Mr. Linder. Among other conditions, Mr. Linder had to “enroll in, attend, and complete all phases” of a drug treatment program, and he had to submit to a search of his person, residence, papers, vehicle, and effects at any time of the day or night with or without a search warrant whenever requested to do so by a probation supervisor or any law enforcement officer. That condition also allowed for the use of anything seized as evidence in a judicial or disciplinary proceeding. When he signed the orders imposing the new conditions of probation, Mr. Linder acknowledged that his probation may be revoked if he violated the new conditions. But Mr. Linder violated his conditions again by missing mandatory meetings of his drug treatment program. As a result, on April 5, 2018, the state court issued a warrant for his arrest.
During the relevant time, Mr. Linder shared his home with Defendant/Appellant Lakesia Harden, who was his girlfriend. The couple shared the same bedroom, and Harden knew that Mr. Linder was on probation. When Probation Officer Timothy Ray visited Mr. Linder’s home before April 2018, Harden answered the door “a few times” and would bring Mr. Linder to the door so that Officer Ray could speak with him about his probation.
On April 9, 2018, Officer Ray and Dublin (Georgia) Police Department Sergeant Eric Roland went to execute an arrest warrant for Mr. Linder at Mr. Linder’s home. As soon as they walked up to the front door, Sergeant Roland smelled a “very strong odor” of marijuana. Officer Ray also smelled it. Harden met the officers at the door and informed the officers that Mr. Linder was not at the home. Harden told the officers that Mr. Linder was at a drug treatment meeting, but Officer Ray placed a telephone call and confirmed that Mr. Linder was not at the meeting. Harden then invited the officers inside the home, saying, “you can come look if you want to.” Sergeant Roland entered the home while Officer Ray stayed by the door.
Once inside, Sergeant Roland noticed that the marijuana smell intensified to a very pungent odor. In fact, Sergeant Roland later testified that it was “probably the strongest smell [he’s] smelled inside of a residence since [he has] been working in policing.” Sergeant Roldan told Harden that the officers were “probably about to conduct [a] search” of the home, but before conducting the search, Sergeant Roland confirmed with Officer Ray that Mr. Linder’s probation conditions included a warrantless search condition. Out of an abundance of caution, Sergeant Roland then confirmed—this time with Officer Ray’s supervisor—that Mr. Linder had search conditions on his residence as part of his conditions of his probation. Thereafter, Sergeant Roland announced into his radio, while in the living room in Harden’s presence, that he planned to search the home based on Mr. Linder’s probation search condition. Harden did not respond to or object in any way to Sergeant Roland’s announcement.
Sergeant Roland’s search did not last long. Because the marijuana smell was powerful, Sergeant Roland found the marijuana in (approximately) thirty (30) seconds inside Mr. Linder’s and Harden’s shared bedroom inside a closet. Specifically, Sergeant Roland found a camouflage tote bag that contained a black backpack, and inside the backpack, he found twelve (12) small bags of marijuana and methamphetamine wrapped in electrical tape. After he found the drugs, Sergeant Roland arrested Harden and provided her with her Miranda rights. Harden initially said that the drugs were not hers and that she did not know to whom the drugs belonged. But Harden later admitted that she was holding the drugs in the closet for a close friend.
Thereafter, Harden was indicted for possessing marijuana and methamphetamine with the intent to distribute them in violation of federal law. Before trial, Harden moved to suppress the marijuana and methamphetamine found by Sergeant Roland during his search. Harden also moved to suppress her post-arrest statements as fruits of the allegedly unlawful search. After conducting an evidentiary hearing on Harden’s motion to suppress, the United States District Court for the Southern District of Georgia denied Harden’s suppression motions. At trial, the government admitted the drugs and Harden’s statements into evidence, and the jury found her guilty as charged in the indictment.
Harden appealed the District Court’s denial of her suppression motions to the Eleventh Circuit. On appeal, Harden argued that the warrantless probation search of the bedroom that she occupied with Mr. Linder violated her Fourth Amendment rights.
The Eleventh Circuit began its consideration of Harden’s argument on appeal by noting that the Fourth Amendment protects the right of the people to be secure against unreasonable searches and seizures. As the text makes clear, the ultimate touchstone of the Fourth Amendment is reasonableness.
Ordinarily, a warrantless search is unreasonable, and warrantless searches of homes are presumptively unreasonable. However, when faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or some similar circumstance, the United States Supreme Court has found that those certain circumstances may render a warrantless search reasonable.
One such circumstance that can render a warrantless search reasonable is where law enforcement has reasonable grounds to search a probationer’s home and where the warrantless search is authorized by state law. Under such circumstances, the Supreme Court has concluded that a warrantless search is reasonable within the meaning of the Fourth Amendment because the search was conducted pursuant to a valid state regulation governing probationers. According to the Supreme Court, a probationer’s home, like anyone else’s, is protected by the Fourth Amendment’s requirement that searches be reasonable, but the Supreme Court has found that permitted exceptions apply when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable. The special needs exception justifies the state’s regulation because supervision of probationers is a special need of the state permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large. Unlike the public at large, a probationer’s liberty is restricted by conditions imposed as part of an on-going criminal sentence, requiring supervision of his activities to assure that the restrictions are observed. Those restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large. In fact, the Supreme Court has held that, where a probationer has been convicted of a drug offense and where a condition of his probation includes submission of a search of his person, property and place of residence without or without a search warrant, a warrantless search is reasonable under the Fourth Amendment.
In the instant appeal, the Eleventh Circuit concluded that the search of Mr. Linder and Harden’s shared residence was reasonable, holding as a matter of first impression that an otherwise reasonable warrantless search of a probationer’s home is not rendered unreasonable merely because the home is occupied by another person who knows about the probation. According to the Eleventh Circuit, the reasonable expectation of privacy inside the probationer’s home is similar to what it would be if the home were not occupied by another person—it is diminished. That’s diminished expectation is inherent in the very nature of probation, in that, probationers do not enjoy the absolute liberty to which every citizen is entitled. Just as other punishments for criminal convictions curtail an offender’s freedoms, the sentencing court imposes conditions on a probationer that deprive him of some freedoms enjoyed by law-abiding citizens. These conditions require supervision of the probationer’s activities to assure that the restrictions are observed. In other words, the Eleventh Circuit explained that the need for supervision does not change just because another person happens to occupy the probationer’s home.
In addition, where the occupant knows about the probation (as Harden did), she understands that she has a diminished expectation of privacy inside the probationer’s home—just as she would in other places that are closely supervised and where one expects diminished privacy.
The fact that the probationer’s home is occupied by a non-probationer also does not change the government’s need for the search—it’s substantial. The government’s concern is both rehabilitation and protecting society from future criminal violations, and these goals justify the exercise of supervision, even inside a probationer’s home. Therefore, the Eleventh Circuit determined that the government’s interest in reducing recidivism and, thereby, promoting reintegration and positive citizenship of a probationer outweighed the reduced privacy expectations inside a probationer’s home, warranting privacy intrusions that would not otherwise be tolerated under the Fourth Amendment. Thus, the Eleventh Circuit held that a warrantless search of a probationer’s home, based on reasonable suspicion and a probation condition allowing warrantless searches, is not rendered unreasonable because the home was occupied by another person who knew about the probation.
As specifically applied to Harden’s case, the Eleventh Circuit explained that the warrantless search of Mr. Linder’s home, while it was occupied by Harden, was reasonable. Mr. Linder was on probation, and one of his conditions was that he had to submit to a search of his residence at any time of the day or night with or without a search warrant whenever requested to do so by a probation supervisor or any law enforcement officer. Sergeant Roland searched Mr. Linder’s home based on that warrantless search condition, and Harden knew that Mr. Linder was on probation. When Officer Ray visited Mr. Linder’s home before April 2018, Harden would answer the door and would bring Linder to the door so that Officer Ray could talk to him about his probation.
Finally, Sergeant Roland had reasonable suspicion to search Mr. Linder’s home. Both Officer Ray and Sergeant Roland smelled marijuana while at the front door, and once Sergeant Roland was invited inside by Harden, the odor intensified to what was probably the strongest marijuana odor that he had ever smelled inside a home. The smell of marijuana alone may provide a basis for reasonable suspicion. Because Sergeant Roland had reasonable suspicion for the search and because Mr. Linder’s probation conditions allowed for warrantless searches, the Eleventh Circuit held that the warrantless search of Mr. Linder’s home was reasonable, and the fact that Mr. Linder’s home was occupied by Harden, who knew about the probation, did not render the otherwise reasonable warrantless search unreasonable. Because the search was reasonable, the search did not violate the Fourth Amendment, and the District Court properly denied Harden’s motions to suppress.
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