Feaster v. State

CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), J. In 1945 in Animal Farm> George Orwell told us, “All animals are equal, but some animals are more equal than others.” A similar relativism prevails with respect to the protections of the Fourth Amendment. The people are protected from unreasonable searches and seizures, but probationers and parolees are less protected than other people. More precisely, searches that would be unreasonable with respect to other people would not be unreasonable with respect to them.

The key to the puzzle now before us is that the appellant, when searched, was a parolee. In United States v. Knights, 534 U.S. 112, 119 , 122 S.Ct. 587 , 151 L.Ed.2d 497 (2001), Chief Justice Rehnquist ²⁰⁸ wrote for a unanimous Supreme Court in describing the austerely reduced constitutional status under which one labors while on probation: Knights’s status as a probationer subject to a search condition informs both sides of that balance. “Probation, like incarceration, is ‘a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.’ ”... Probation is “one point ... on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service.”... Inherent in the very nature of probation is that probationers “do not enjoy ‘the absolute liberty to which every citizen is entitled.’ ” (Emphasis supplied).

Five years later, Samson v. California, 547 U.S. 843, 850 , 126 S.Ct. 2193 , 165 L.Ed.2d 250 (2006), confirmed that a convict placed on parole is situated even lower on the constitutional totem pole 1 than is a convict placed on probation: As we noted in Knights, parolees are on the “continuum” of state-imposed punishments .... On this continuum, parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.... “[P]aróle is an established variation on imprisonment of convicted criminals .... The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abides by certain rules during the balance of the sentence.” ... “In most cases, the State is willing to extend parole only because it is able to condition it upon compliance with certain requirements.” ... (“[OJn the Court’s continuum of possible punishments, parole is the stronger medicine; ergo, parolees enjoy even less of the average citizen’s absolute liberty than do probationers.)” ²⁰⁹ (Emphasis supplied).

As we analyze the search of a parolee in this case, we must not lose sight of the very different starting point for such analysis. The Case Now Before Us The appellant, Princeton “Ditty” Feaster, was convicted in the Circuit Court for Wicomico Count by a jury, presided over by Judge D. William Simpson, of a variety of narcotics-related offenses. On this appeal, he raises the single contention that Judge W. Newton Jackson, III erroneously denied his pretrial motion to suppress physical evidence seized in alleged violation of the Fourth Amendment. The testimony from the suppression hearing tells the whole story.

The Surveillance On November 19, 2008, the Wicomico County Narcotics Task Force, a force comprised of members of the Maryland State Police and the Sheriffs Office of Wicomico County, was conducting a surveillance of the Days Inn, located at 2525 North Salisbury Boulevard in Salisbury. The task force had received numerous tips that drugs were being sold on the premises. In the course of that surveillance, Corporal Carlisle Widdowson spotted a suspected drug purchaser sitting in a vehicle on the Days Inn parking lot and attempting to inject heroin into his veins. Corporal Widdowson accosted the subject and questioned him about his source.

The suspect stated that he had just purchased the drugs at the Days Inn from an individual he knew as “Ditty.” Corporal Widdowson was familiar with “Ditty” from previous encounters with him. A quick records check confirmed that “Ditty” was the nickname of the appellant, Princeton Gene Feaster. The records check also revealed that there was an outstanding arrest warrant for the appellant on a “parole retake.” Corporal Widdowson obtained a photograph of the appellant from the police file and showed it to the management officials on duty at the Days Inn. Those officials confirmed that the appellant had been regularly around the Days Inn and was in and out of Room 133 specifically. ²¹⁰ Room 133 The motel officials produced for the police the actual rental agreement for Room 133, which showed that the room was rented to a white male by the name of Gary Dopowsky and was, moreover, rented by him through November 20, 2008.

Surveillance was then maintained on Room 133 for approximately another hour. At that time, the surveillance team called in the assistance of the State Apprehension Team, informally known as “the warrant squad.” Sergeant John Maiello, along with other members of the Apprehension Team, approached Room 133. Through a window, they could see that the appellant was inside the room as its sole occupant. Sergeant Maiello announced his identity and stated that he was there to serve an arrest warrant on the appellant.

The appellant adamantly refused to open the door. One of the officers went to obtain a room key from management as the other officers continued to knock on the door and the appellant continued to refuse to open it. When the room key arrived, there ensued what Corporal Widdowson characterized as a “standoff.” It was a routine worthy of a Marx Brothers comedy. With the key, one of the officers would unlock the door by turning the bolt.

From the inside, the appellant would immediately relock the door. This back-and-forth thrust and counterthrust continued, according to the suppression hearing testimony, for no less than ten minutes. At last, the appellant submitted to the inevitable and the officers entered Room 133. The appellant, who had retreated to the back of the room, was immediately arrested and placed in handcuffs.

The Entry We can conveniently interrupt the factual narrative at this point for an interim legal analysis. In terms of Fourth Amendment reasonableness, there are in this case two distinct intrusions calling for assessment. There was first the entry into Room 133. There was subsequently the warrantless search of Room 133.

We now know all we need to know to assess the entry. With respect to the entry itself, moreover, it ²¹¹ is easy and convenient to proceed immediately to the Fourth Amendment merits without pausing at the threshold to consider any questions about Fourth Amendment applicability. The permissibility of entering even a presumptively protected place to serve an arrest warrant is clear, provided only that the police have reason to believe the person to be arrested is, indeed, within that place. Payton v. New York, 445 U.S. 573, 602-03 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980) has been for 32 years the unchallenged touchstone: It is true that an arrest warrant requirement may afford less protection than a search warrant requirement, but it will suffice to interpose the magistrate’s determination of probable cause between the zealous officer and the citizen.

If there is sufficient evidence of a citizen’s participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law. Thus, for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. (Emphasis supplied). In this case, the police were executing a warrant for the appellant’s arrest for a parole violation. 2 We have not, to be sure, been treated to much informative detail about the warrant, but neither have we been presented with any challenge to the warrant, with respect either to its existence or to its contents.

All parties have been content simply to take this Fourth Amendment factor for granted. With respect to the other Payton v. New York requirement, moreover, there is no ²¹² question but that the police had reason to believe that the appellant was in Room 133. Both the entry into Room 133 and the arrest of the appellant were reasonable within the contemplation of the Fourth Amendment. The Factual Narrative Resumes Once the drawbridge was down, three officers rushed immediately into the breach.

As Sergeant Maiello placed the appellant under arrest, the other two officers scanned the immediate area surrounding the appellant, to ensure that he could not grab a weapon that may have been accessible to him. In the course of “securing” the room, the officers looked into the two black bags on which the suppression hearing focused. The first bag was sitting on top of the desk that was located right next to the entrance door to Room 133. That bag was approximately 16 feet away from where the appellant stood as he was being placed under arrest.

It was a duffle-type bag. The second bag was on top of a bed and was approximately 7 feet away from where the appellant was being arrested. It was described as a laptop-type bag with a fold-over top. The testimony was that in that immediate scan for weapons, the police observed drugs within both bags.

The more thorough evidentiary search of the bags took place only after the appellant had been removed from the room. The bag on the bed contained a smaller blue Crown Royal bag containing 58.3 grams of heroin; two smaller bags containing 6.9 grams of heroin and 8.9 grams of heroin, respectively; zip-type baggies; stamp pads; wax baggies; wooden stamps; and pocket scales. In the bag that was next to the door were several bundles of baggies of heroin containing a total of 29.5 grams of heroin and several wax baggies containing heroin. Also recovered from the room were two separate stacks of money located on a table, along with another stack of money and two cell phones that were hidden between the bed and the box spring.

Those two bags have produced a plethora of Fourth Amendment theories, some of which were argued and two of which were strangely ignored. ²¹³ A Doctrinal Cul-De-Sac: Abandonment At the suppression hearing, the State flirted briefly with the theme of abandonment, but the flirtation went nowhere. Corporal Widdowson testified that he had been told by the management of the Days Inn that because the appellant had been arrested, Room 133 would be cleared and its contents would be discarded. He testified that in view of that announced intention, he considered those items of property to be legally abandoned. Had that discarding by the Days Inn actually been carried out, the proprietary rights of Gary Dopowsky, who had rented Room 133 through the following day, would seem thereby have been cavalierly disdained. 3 Had the Days Inn, without a hint of involvement by way of State action, actually carried out such a plan and had the task force then simply rummaged through the abandoned trash, the Fourth Amendment implications of such a scenario will have to be explored in some other opinion in some other case.

In this case, the abandonment rationale never got off the ground. There is, of course, no Fourth Amendment theory that permits the police to treat as abandoned property items that have not yet been abandoned but which might at some future time become abandoned. As Judge Jackson quickly concluded: I don’t even believe the State’s claiming it’s abandoned property. I agree with the defense that this is probably not inevitable discovery.

An Opportunity Foregone: Challenging the Appellant’s Standing There was another rationale that would have gotten off the ground. Inexplicably, the State never challenged the ap ²¹⁴ pellant’s Fourth Amendment standing to object to the police entry into or the search of Room 133. Why the appellant was in the room remains to this day a mystery. The room was rented to Gary Dopowsky, with no indication that that was an alias of the appellant.

The appellant actually testified that it was Gary Dopowsky who had rented the room. Even with no demonstrated propriety interest in Room 133, however, the appellant might still have enjoyed derivative standing, had he shown that he was a legitimate guest in the room at the invitation of Gary Dopowsky. Minnesota v. Olson, 495 U.S. 91 , 110 S.Ct. 1684 , 109 L.Ed.2d 85 (1990). In such a case, the Fourth Amendment protection enjoyed by the host would extend derivatively to a guest who is legitimately on the premises at the invitation of the host.

Even being the legitimate guest of Gary Dopowsky, however, would have yielded the appellant no Fourth Amendment protection in terms of derivative standing if it had also been shown, as it clearly was in this case, that the appellant was in someone else’s home, apartment, or motel room for the criminal purpose of packaging and selling narcotic drugs. See Minnesota v. Carter, 525 U.S. 83, 90 , 119 S.Ct. 469 , 142 L.Ed.2d 373 (1998): Respondents here were obviously not overnight guests, but were essentially present for a business transaction ... There is no suggestion that they had a previous relationship with [their host], or that there was any other purpose to their visit. Nor was there anything similar to the overnight guest relationship in [Minnesota v.] Olson to suggest a degree of acceptance into the household.

While the apartment was a dwelling place for [the host], it was for these respondents simply a place to do business. Property used for commercial purposes is treated differently for Fourth Amendment purposes from residential property. (Emphasis supplied). This case would have presented no Fourth Amendment problem if the appellant, who, if challenged, would have borne ²¹⁵ the burden of proof on standing, Rakas v. Illinois, 439 U.S. 128 , 130-31 n. 1, 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978), Fitzgerald v. State, 153 Md.App. 601, 662 , 837 A.2d 989 (2003), aff'd. 384 Md. 484 , 864 A.2d 1006 (2004); Burks v. State, 96 Md.App. 173, 195 , 624 A.2d 1257 , cert. denied, 332 Md. 381 , 631 A.2d 451 (1993), had not been able to show a Fourth Amendment interest in Room 133.

Such a threshold challenge, it would seem, ought to be an automatic prosecutorial instinct when dealing with hotels and motels. There is no point in locking the barn door, however, once the horse is out. A failure of the State to raise a challenge to a defendant’s standing at the suppression hearing operates as a waiver of the challenge. As Judge Salmon wrote for this Court in McGurk v. State, 201 Md.App. 23, 33 , 28 A.3d 720 (2011): We hold that by failing to raise the standing issue in the circuit court, the State waived that issue for appellate purposes.

In McCain v. State, 194 Md.App. 252, 279 , 4 A.3d 53 (2010), Judge Kehoe held to a similar effect: Because the State did not raise the issue at the suppression hearing, there was no reason for appellant to present such evidence and he did not. Under these circumstances, consideration of the standing issue for the first time on appeal would be unfair to appellant. The easy disposition of the case is thus not available to us. We will have to take the long way around.

In going forward with our Fourth Amendment analysis, we will treat the appellant, therefore, as if he had rented Room 133 in his own name and for his own use. Verily, we will treat him as if he were the fee-simple owner of the Days Inn itself. The Diminished Fourth Amendment Protection Of a Parolee Even with enhanced Fourth Amendment credentials, however, the appellant’s case for the suppression of the evidence founders. His Fourth Amendment credentials that may have ²¹⁶ been enhanced by his presumptive standing were drastically devalued in another respect.

The ultimately dispositive factor is that there was an outstanding parole retake warrant for the arrest of the appellant. The appellant had been convicted on July 15, 2004, in the Circuit Court for Somerset County for the possession with intent to distribute controlled dangerous substances. He was sentenced to a term of seven years, with all but three years suspended to be followed by two years of probation upon release. On August 1, 2006, the appellant was placed on parole.

The record seems to indicate that as of August 1, 2006, the appellant was on both probation and parole. In any event, on March 16, 2008, the appellant was charged with a subsequent offense and on March 20, 2008, a parole retake warrant was issued for his arrest. That parole retake warrant was still outstanding, when the current offense took place eight months later. As we have already discussed, and held, the arrest of the appellant on the outstanding parole retake warrant passed Fourth Amendment muster and is beyond challenge.

By the same token, the police entry into Room 133 for the purpose of making that arrest also passed Fourth Amendment muster and is also beyond challenge. The challenge is to the search of (by initially looking into) and to the seizure of narcotics from two bags that were in Room 133. Even granting the appellant presumptive derivative standing in Room 133 itself, attention then devolves upon the extent of any Fourth Amendment protection that the appellant, because of his special status as a parolee, may have enjoyed with respect to a search of his person (including his extended person in the search incident context) or of the motel room. 5 Wayne R. LaFave, Search and Seizure (4th ed.2004), § 10.10, “Searches Directed at Parolees and Probationers,” p. 432, makes very clear the severely diminished expectation of privacy suffered by those convicted of a crime even when conditionally released on probation or parole: Although there is some authority to the effect that the Fourth Amendment rights of probationers and parolees are of precisely the same scope and dimension as those of the ²¹⁷ public at large, the weight of authority is to the contrary. As to parolees, it has been held with some frequency that their residence may be searched without a warrant or even without probable cause, that their vehicles may be searched without either probable cause or a warrant, and also that they may be subjected to arrest without probable cause.

And while there is some disagreement as to whether a probationer’s Fourth Amendment rights are diminished to the same extent and degree as those of a parolee, there is considerable authority supporting the proposition that probationers may lawfully be subjected to searches which, absent their probation status, would be deemed unlawful because of the absence of probable cause or a search warrant or both. (Emphasis supplied). This body of law recognizing the austerely diminished Fourth Amendment protection enjoyed by a probationer or a parolee is of relatively recent origin. It effectively began with the unanimous Supreme Court opinion in United States v. Knights, supra, in 2001.

The defendant in Knights had been placed on probation for a drug offense. Subsequently developing reasonable suspicion that he was involved in a series of arsons, the police conducted a warrantless search of Knight’s apartment and recovered evidence of arson. The Supreme Court rejected the defense argument that the only warrantless searches sanctioned by Griffin v. Wisconsin, 483 U.S. 868 , 107 S.Ct. 3164 , 97 L.Ed.2d 709 (1987), were those directed at discovering a violation of probation and not those that were investigating crime more generally. The Supreme Court in Knights opted for a general reasonableness balancing test under the totality of the circumstances.

The Supreme Court did not base its decision on the fact that Knights, in agreeing to probation, had accepted the condition that he be searched. That was simply one factor in the larger totality. We need not decide whether Knights’s acceptance of the search condition constituted consent in the Schneckloth sense of a complete waiver of his Fourth Amendment rights, however, because we conclude that the search of Knights ²¹⁸ was reasonable under our general Fourth Amendment approach of “examining the totality of the circumstances,” with the probation search condition being a salient circumstance. 534 U.S. at 118 , 122 S.Ct. 587 (emphasis supplied). The balancing was between the governmental interest being served by the search and the privacy interest in avoiding the search.

Chief Justice Rehnquist’s opinion for the Court was that the defendant’s status as a probationer “informs both sides of that balance.” 534 U.S. at 119 , 122 S.Ct. 587 . The opinion made clear why there is a greater governmental interest in regulating convicted criminals, even if they are on probation, than there is in regulating ordinary citizens. In assessing the governmental interest side of the balance, it must be remembered that “the very assumption of the institution of probation” is that the probationer “is more likely than the ordinary citizen to violate the law.” The recidivism rate of probationers is significantly higher than the general crime rate ... [Probationers have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may be subject to supervision and face revocation of probation, and possible incarceration, in proceedings in which the trial rights of a jury and proof beyond a reasonable doubt, among other things, do not apply. 534 U.S. at 120 , 122 S.Ct. 587 (emphasis supplied). The Court’s ultimate balancing made it clear that law enforcement may focus on probationers “in a way that it does not on the ordinary citizen”: The State has a dual concern with a probationer.

On the one hand is the hope that he will successfully complete probation and be integrated back into the community. On the other is the concern, quite justified, that he will be more likely to engage in criminal conduct than an ordinary member of the community. The view of the Court of Appeals in this case would require the State to shut its eyes ²¹⁹ to the latter concern and concentrate only on the former. But we hold that the Fourth Amendment does not put the State to such a choice ...

Its interest in apprehending violators of the criminal law, thereby protecting potential victims of criminal enterprise, may therefore justifiably focus on probationers in a way that it does not on the ordinary citizen. 534 U.S. at 120-21 , 122 S.Ct. 587 (emphasis supplied). The watered-down requirement for justifying a reasonable Fourth Amendment search of the home of a probationer is not a search warrant nor even probable cause. It is simply a reasonable suspicion that evidence of a crime will be found. Although the Fourth Amendment ordinarily requires the degree of probability embodied in the term “probable cause,” a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable ...

Those interests warrant a lesser than probable-cause standard here. When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable. The same circumstances that lead us to conclude that reasonable suspicion is constitutionally sufficient also render a warrant requirement unnecessary. 534 U.S. at 121 , 122 S.Ct. 587 (emphasis supplied). Contrary to the argument that has been advanced by the appellant, the police would not have needed a warrant to search Room 133 for weapons or for drugs, even if no search incident to lawful arrest had been involved.

Nor would the police have needed so much as probable cause. What they had was reasonable suspicion galore that the parolee was “engaged in criminal activity” and nothing more than that was required. The task force had received numerous tips that drugs were being sold and that the Days Inn was the epicen ²²⁰ ter of the enterprise. As one recent customer was apprehended while trying to “shoot up” heroin, he pointed the accusing finger at “Ditty” and, ultimately, at Room 133.

That, ipso facto, was reasonable suspicion. Indeed, we would not hesitate to quantify the suspicion as rising to the probable cause level, if such were needed. It is not. United States v. Knights, however, was but the first shoe to drop on those who are only conditionally released.

Samson v. California, supra, dropped five years later with even more resounding a thud. Samson was on state parole in California. A local police officer, recognizing him and suspecting that there might be an outstanding warrant on him, detained Samson and made a radio cheek of his status. The officer learned that there was no outstanding warrant but searched Samson nonetheless, with no special justification for the search.

The search produced a plastic baggie of methamphetamine. The Samson opinion made clear at the outset that in the Knights-Samson jurisprudence, both probationers and parolees share the status of persons who have been convicted of a crime but who are on conditional release from prison. To the extent to which there is an internal pecking order, the parolee stands even below the probationer. [PJarolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment ... On the Court’s continuum of possible punishments, parole is the stronger medicine; ergo, parolees enjoy even less of the average citizen’s absolute liberty than do probationers. 547 U.S. at 850 , 126 S.Ct. 2193 (emphasis supplied).

The Samson opinion then took a giant step beyond anything that Knights had done. In dealing with the diminished Fourth Amendment status of convicted persons placed on conditional release, Knights had lowered the bar for the reasonableness of searching such persons, or their homes or their automobiles, etc., for evidence of criminality. A search warrant was not required. Even probable cause in the absence of a search warrant was not required.

Knights , did, ²²¹ however, insist upon some level of Fourth Amendment justification. Knights demanded reasonable (Terry 4 -level) suspicion that the probationer was involved in some criminal activity. Knights did not deal with the question of whether probationers or parolees could reasonably be subjected to a suspicion-less search. Samson addressed the theretofore unanswered question and held that they could: We granted certiorari to answer a variation of the question this Court left open in United States v. Knights— whether a, condition of release can so diminish or eliminate a released prisoner’s reasonable expectation of privacy that a suspicionless search by a law enforcement officer would not offend the Fourth Amendment.

Answering that question in the affirmative today, we affirm the judgment of the California Court of Appeal. 547 U.S. at 847 , 126 S.Ct. 2193 (emphasis supplied). In focusing on what we will call the Samson increment—the suspicionless search—the Supreme Court relied heavily on the fact that parolees in California expressly agree to the condition that they and their property may be searched at any time without any particularized justification. Whereas the search of a probationer authorized by Knights was based upon the probationary statute plus reasonable suspicion, the Samson increment of a suspicionless search would have to be justified exclusively by the condition that the parolee had agreed to such a search: Balancing these interests, we held that “[w]hen an officer has reasonable suspicion that a probationer subject to a search condition is engaged, in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable.” Because the search at issue in Knights was predicated on both the probation search condition and reasonable suspicion, we did not reach the question whether the search would have been reasonable ²²² under the Fourth Amendment had it been solely predicated upon the condition of probation. Our attention is directed to that question today, albeit in the context of a parolee search. 547 U.S. at 849-50 , 126 S.Ct. 2193 (emphasis supplied).

In holding that the suspicionless search is not, ipso facto, unconstitutional, the Supreme Court relied on the balancing test of Knights : Parolees may also be subject to special conditions, including psychiatric treatment programs, mandatory abstinence from alcohol, residence approval, and “[a]ny other condition deemed necessary by the Board [of Parole Hearings] or the Department [of Corrections and Rehabilitation] due to unusual circumstances.” The extent and reach of these conditions clearly demonstrate that parolees like petitioner have severely diminished expectations of privacy by virtue of their status alone. 547 U.S. at 852 , 126 S.Ct. 2193 (emphasis supplied). Although in the Samson case itself, agreeing to accept a suspicionless search was made a condition of parole by California statute, the trimmed down constitutional holding is that a suspicionless search of a parolee does not in and of itself offend the Fourth Amendment: As the recidivism rate demonstrates, most parolees are ill prepared to handle the pressures of reintegration. Thus, most parolees require intense supervision. The California Legislature has concluded that, given the number of inmates the State paroles and its high recidivism rate, a requirement that searches be based on individualized suspicion would undermine the State’s ability to effectively supervise parolees and protect the public from criminal acts by reoffenders.

This conclusion makes eminent sense. Imposing a reasonable suspicion requirement, as urged by petitioner, would give parolees greater opportunity to anticipate searches and conceal criminality. 547 U.S. at 854 , 126 S.Ct. 2193 (emphasis supplied). In King v. State, 425 Md. 550 , 42 A.3d 549 (2012), the Court of Appeals relied upon the Knights-Samson line of cases in ²²³ distinguishing between the normal Fourth Amendment rights enjoyed by those who have not been convicted of a crime and the significantly diminished Fourth Amendment rights of those who have been convicted, even if they are out of prison on conditioned release. With respect to the normal expectation of privacy enjoyed by one who has not been convicted, Judge Harrell’s majority opinion observed: [W]e evaluate here rights given to, and withdrawn from, citizens who have been arrested, including the right to be free from unreasonable searches and seizures.

Under the totality of the circumstances balancing test, see Knights [United States ] v. United States [Knights ], 534 U.S. 112 , 122 S.Ct. 587 , 151 L.Ed.2d [497] (2001), we conclude, on the facts of this case, that King, who was arrested, but not convicted, at the time of his first compelled DNA collection, generally has a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches that is not outweighed by the State’s purported interest in assuring proper identification of him as to the crimes for which he was charged at the time. Id., at 555-56, 42 A.3d 549 (emphasis supplied). Conversely, with respect to the lesser expectation of privacy possessed by probationers and parolees, the Court of Appeals also observed: The Supreme Court deployed later the Knights “totality of the circumstances” test to determine whether a suspicionless search of a parolee, conducted by a police officer on a public sidewalk, was reasonable under the Fourth Amendment. Samson v. California, 547 U.S. 843 , 126 S.Ct. 2193 , 165 L.Ed.2d 250 (2006).

The Court concluded that, on the continuum of punishments imposed for criminal violations, a parolee has “fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation.... ” Samson, 547 U.S. at 850 , 126 S.Ct. at 2198 , 165 L.Ed.2d at 258 . Parolees are subject to a wide range of conditions for their release, including mandatory drug tests, restrictions on personal associations and activities, psychiatric treatment, residence approval, and mandatory meetings ²²⁴ with parole agents. Samson, 547 U.S. at 851 , 126 S.Ct. at 2199 , 165 L.Ed.2d at 259 . As in Knights, Samson focused heavily on the high recidivism rate of the parolee population, which, in California during the relevant time, approached 70 percent.

Samson, 547 U.S. at 853 , 126 S.Ct. at 2199 , 165 L.Ed.2d at 259 . The Court concluded that the government interest in re-integrating parolees, protecting society from future criminal actions, along with a statutory prohibition against “arbitrary, capricious, or harassing” searches, outweighed the parolee’s diminished expectation of privacy under the “totality of the circumstances.” Samson, 547 U.S. at 856 , 126 S.Ct. at 2202 , 165 L.Ed.2d at 262 . Id., at 564-65, 42 A.3d 549 (emphasis supplied). In the case before us, of course, we have no occasion to deal with the Samson increment.

There was no suspicionless search in the case. 5 When the police entered Room 133 of the Days Inn, they were possessed, at the very least, of abundant reasonable suspicion that the appellant was engaged in criminal activity. Even granting him presumptive Fourth Amendment standing in Room 133, reasonable suspicion abounded that he was engaging in criminal activity. The search of Room 133 needed no further justification. But for the fact that the defendant was on probation rather than parole, the case of United States v. Graham, 553 F.3d 6 (1st Cir.2009), is virtually a clone of the case now before us.

Following his convictions for various drug-related offenses, Graham was released on probation. A warrant was subsequently issued for his arrest for violating his probation. In executing that warrant, the police entered Graham’s apartment. After arresting him, the police searched his bedroom and recovered a sawed-off shotgun and ammunition.

Gra ²²⁵ ham’s claim in that case closely paralleled the appellant’s claim in this case: Graham argues that both the officers’ entry into the apartment and the subsequent search of the bedroom where he was arrested violated the Fourth Amendment. He claims that because he was a social guest in the apartment, the police needed to first obtain a search warrant to enter the apartment, in addition to the arrest warrant they had procured. Additionally, he argues that even if the arrest warrant justified the entry into the apartment, the police still needed a search warrant to conduct the search of the bedroom. 553 F.3d at 9 (emphasis supplied). Graham had actually been arrested, handcuffed, and removed to another room before the critical search of his bedroom took place: The officers arrested Graham, handcuffed him, and brought him to the living room, which was in the front of the apartment ...

The probation officer asked the officers to search the bedroom where Graham was found. In the course of this search, the police found a sawed off shotgun and ammunition in the drawer of a dresser. The officers also discovered a small safe underneath the bed. Using a knife, an officer opened the safe and discovered various types of ammunition. 553 F.3d at 11 (emphasis supplied).

The First Circuit held that the search of the apartment of the probationer was constitutional based upon reasonable suspicion: Typically, to be considered reasonable a search of a home must be supported by probable cause and be executed pursuant to a particularized warrant authorizing the