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State v. Toliver

Supreme Court of Kansas

May 18, 2018

State of Kansas, Appellee,
v.
Tony Toliver, Appellant.

          Review of the judgment of the Court of Appeals in 52 Kan.App.2d 344, 368 P.3d 1117 (2016). Appeal from Riley District Court; John F. Bosch, judge.

          Brenda Mari Jordan, of Manhattan, argued the cause and was on the briefs for appellant.

          Natalie A. Chalmers, assistant solicitor general, argued the cause, and Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.

          SYLLABUS BY THE COURT

          Nuss, C.J.

         1.

         The Fourth Amendment to the United States Constitution and Section 15 of the Kansas Constitution Bill of Rights prohibit unreasonable searches.

         2.

         Parolees-along with probationers and prisoners-exist on a continuum of possible punishments, all of which curtail their freedoms and diminish their reasonable expectation of privacy.

         3.

         A totality of the circumstances analysis is used to determine whether a search of a parolee is reasonable. Under this test, the reasonableness is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.

          4.

         A parolee who signs a parole agreement allowing suspicionless residential searches by his or her parole officer does not have a legitimate expectation of privacy in his or her home, and the State's interest in supervising parolees to prevent recidivism and promote reintegration is substantial.

         5.

         Under the facts of this case, the warrantless and suspicionless search of a parolee's home did not violate the Fourth Amendment of the United States Constitution or Section 15 of the Kansas Constitution Bill of Rights.

         The opinion of the court was delivered by

         The State appeals a Court of Appeals panel's suppression of the evidence obtained through a suspicionless search of parolee Tony Toliver's residence. The panel held that because the condition in Toliver's signed parole agreement allowing such searches was not authorized by Kansas law as required by State v. Bennett, 288 Kan. 86, 200 P.3d 455 (2009), the search violated his Fourth Amendment rights. We clarify Bennett, reverse the panel's decision, and affirm the judgment of the district court denying Toliver's suppression motion.

         Facts and Procedural Background

         After Toliver's conviction for battery of a law enforcement officer, he was ultimately placed on post-incarceration supervision, i.e., parole, with the Kansas Department of Corrections (KDOC). Toliver signed an agreement that set out the specific conditions of his parole. One of these "Conditions of Release for Post-incarceration Supervision" required his subjection to suspicionless residential searches by his parole officers. It stated in relevant part:

         "I agree to

. . . .
"• [b]e subjected to a search of my person, residence, and any other property under my control by parole officers, any authorized parole staff, and department of corrections enforcement, apprehension and investigation officers with or without a search warrant and with or without cause." (Emphases added.)

         Toliver's parole officer later conducted a "home visit" at Toliver's residence to verify his address. That officer, another KDOC officer, and three Riley County Police Department detectives searched the apartment and found marijuana in Toliver's bedroom. Toliver was arrested and charged with misdemeanor possession of marijuana under K.S.A. 2011 Supp. 21-5706(b)(3).

         Toliver filed a motion to suppress the marijuana. He argued that parolees have an expectation of privacy in their home but conceded the privacy interest is diminished. And he further argued that suspicionless searches of parolees violate the Fourth Amendment unless such searches are authorized under state law.

         After an evidentiary hearing on the motion, the trial court held that the parole officer lacked reasonable suspicion or probable cause to search Toliver's home. It agreed with Toliver that parolees have an expectation of privacy in their homes but that the expectation could be diminished through state law authorizing suspicionless searches. The court disagreed, however, with Toliver's claim that Kansas law did not approve the parole agreement condition authorizing the suspicionless search of his home. The court found the Internal Management Policies and ...


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