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Eighth Circuit Announces ‘Probable Cause’ Is Proper Standard for Determining Whether Parolee Resides at Third-Party’s Residence for Purposes of Warrantless Searches

by Anthony W. Accurso

The U.S. Court of Appeals for the Eighth Circuit upheld a suppression motion relating to the warrantless search of a home where an absconded parolee was suspected to be residing. In doing so, the Court announced that law enforcement must have probable cause that a parolee is residing at the home of a third party in order to conduct a warrantless search of the home.

Justin Thabit was released from the Arkansas Department of Corrections in January 2019. One of his parole conditions stated that he agreed to allow a warrantless search of his “person, place of residence, or motor vehicle at any time….”

Thabit failed to meet with his parole officer in January and March, so officers were dispatched to his mother’s home on March 14, 2019, to look for him. Though he listed his mother’s house as his residence in his parole paperwork, she said that he had a room in the home but had not spent the night there for several weeks.

During a subsequent “warrant roundup” at the Pulaski County Sheriff’s Office, Investigator Cody Martin stated that a confidential informant (“CI”) had offered a tip “maybe a week prior” regarding “a potential address [Thabit] could be staying at.” The CI also indicated Thabit was staying with a woman and selling narcotics out of the house. Martin later testified that he had worked with the CI before and considered him reliable.

On June 18, 2019, officers went to the residence provided by the CI, which belonged to Stacia Frase, and observed Thabit leaving the residence in a vehicle. They stopped the vehicle and arrested him. Because his probation condition allowed for searches of his “place of residence,” officers also conducted a warrantless search of Frase’s home that Thabit had just left. The search uncovered narcotics and drugs.

Thabit was charged with possession of methamphetamine with intent to distribute, being a felon in possession of a firearm, and possessing a firearm in furtherance of a drug trafficking crime.

He moved to suppress the evidence on the ground that officers lacked reasonable suspicion to believe he was residing at Frase’s home. The U.S. District Court for the Eastern District of Arkansas, noting that the Eighth Circuit had yet to decide what standard of proof is required to conduct a warrantless search of the home of a third party when a parolee is involved, granted the suppression motion. It applied the reasonable suspicion standard to whether Thabit resided at Frase’s home, ruling the CI’s tip failed to meet even this low standard. The Government appealed, arguing that law enforcement had probable cause, or at least reasonable suspicion, to believe that Thabit resided at the residence in question.

The Court began its analysis by observing that the “central issue is the correct standard for determining that a certain place is a parolee’s residence.” The reason is because if the place searched is the parolee’s residence, then the warrantless search waiver applies. The Court noted that it hasn’t addressed the specific question of the level of suspicion required to conclude that a parolee resides at a specific location. Nevertheless, the Court explained that it’s dealt with similar issues, and “binding precedent from the Supreme Court has tangentially considered the principles that inform our decision here.”

After reviewing relevant case law from within the Eighth Circuit, sister Circuits, and the Supreme Court (see Court’s opinion for citations and discussion of cases), the Court announced that “probable cause is the appropriate standard in a case involving a dwelling of a third party.” That is, police must have probable cause “to believe a dwelling is the residence of a parolee in order to initiate a warrantless search of a residence not known to be the home of a parolee,” the Court instructed.

The Court explained that its holding is based on three reasons: (1) the possibility for violating the constitutional rights of third parties requires a more demanding standard than mere reasonable suspicion, see Motley v. Parks, 432 F.3d 1072 (9th Cir. 2005) (en banc); (2) the probable cause standard shouldn’t be burdensome for law enforcement because parolees remain under supervision and thus substantial information to locate them should already be in the possession of law enforcement; and (3) because the warrantless search waiver eliminates the need for law enforcement to have a reason to search, they must have “probable cause that the parolee actually resides at the search location.”

For purposes of the Fourth Amendment, probable cause exists “when a police officer has reasonably trustworthy information that is sufficient to lead a person of reasonable caution to believe that the suspect has committed or is committing a crime.” Klein v. Steinkamp, 44 F.4th 1111 (8th Cir. 2022). In the current context, the Court explained that probable cause means a person of reasonable caution would believe that the parolee resides at a particular location. In making a probable cause determination, courts base their determination on the totality of circumstances. Illinois v. Gates, 462 U.S. 213 (1983).

Turning to the present case, the Court concluded that law enforcement lacked probable cause to believe that Thabit was residing at Frase’s home at the time of the search.

The Court stated that mere proximity to a residence isn’t sufficient to establish residence. It noted that evidence that can establish residence can be derived from anonymous tips, information from confidential informants, discussions with individuals who know the parolee, or police records. See United States v. Clayton, 210 F.3d 841 (8th Cir. 2000); United States v. Risse, 83 F.3d 212 (8th Cir. 1996). Information obtained from confidential informants or anonymous sources can serve to establish probable cause if there’s corroboration. See United States v. Koons, 300 F.3d 985 (8th Cir. 2002); United States v. Lepperty, 408 F.3d 1039 (8th Cir. 2005).

In this case, the CI’s tip regarding Thabit’s possible residence wasn’t corroborated, the Court stated. Thus, the Court concluded that the tip lacked the necessary indicia of reliability to support a probable cause determination that Thabit resided at the home searched. See United States v. Gabrio, 295 F.3d 880 (8th Cir. 2002).

Accordingly, the Court affirmed the District Court’s granting of the motion to suppress. See: United States v. Thabit, 56 F.4th 1145 (8th Cir. 2023).

 

Editor’s note: The Ninth Circuit is the only other Circuit to have directly ruled on the requisite level of suspicion needed to determine whether a parolee resides at particular location and thus subject it to a warrantless search. Motley v. Parks, 432 F.3d 1072 (9th Cir. 2005). Like the Eighth Circuit in Thabit, the Motley Court concluded that probable cause is the proper standard.  

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