Alax Clingmon v. State of Arkansas

Cite as 2021 Ark. App. 107
Elizabeth Perry ARKANSAS COURT OF APPEALS
I attest to the accuracy and
integrity of this document DIVISION IV
2023.06.22 15:11:11 -05'00' No. CR-20-383
2023.001.20174
Opinion Delivered March 10, 2021

ALAX CLINGMON APPEAL FROM THE ARKANSAS
APPELLANT COUNTY CIRCUIT COURT,
NORTHERN DISTRICT
V. [NO. 01SCR-18-157]

STATE OF ARKANSAS HONORABLE DAVID G. HENRY,
APPELLEE JUDGE

AFFIRMED

BRANDON J. HARRISON, Chief Judge

Alax Clingmon appeals the circuit court’s denial of his motion to suppress evidence

found in his home after officers conducted a warrantless search based on Clingmon’s status

as a parolee. He argues that the circuit court erred in finding that Ark. Code Ann. § 16-

93-106 (Repl. 2016), which authorizes any certified law enforcement officer or Department

of Community Correction officer to conduct a warrantless search of a parolee’s person,

place of residence, or motor vehicle at any time, is constitutional and in denying his motion

to suppress. We affirm the circuit court.

On 18 August 2018, officers from the Arkansas County Sheriff’s Office searched

Clingmon’s home, and as a result of that search, he was charged with trafficking a controlled

substance, possession of marijuana with purpose to deliver, possession of drug paraphernalia

with intent to manufacture (cocaine/methamphetamine), possession of drug paraphernalia

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with intent to ingest controlled substances (not cocaine/methamphetamine), and possession

of controlled substances–Schedule I/II (not cocaine/methamphetamine).

Clingmon moved to suppress the items found in his home explaining that he was

not home during the search; that the officers asked his father, who also lived in the home,

to let them in; that the officers searched an area purportedly occupied by Clingmon and

found certain drugs and/or paraphernalia; and that the officers coerced his father into signing

a consent to search other parts of the home where they found drugs and/or contraband.

Clingmon conceded that he was on parole and had executed a waiver that authorizes a

search of his home by the Arkansas Community Correction Department (ACC) or a

certified law enforcement officer anytime, day or night. Nevertheless, he asserted that the

officers who conducted the search were “not parole officers and have no supervisory

responsibility of parolees pursuant [to] ACC regulations or state law.” Clingmon argued

that the search was conducted without “reasonable or probable cause” and violated his

Fourth Amendment rights under the United States and Arkansas Constitutions as well as

subsections 12.5(a) and (b) of the Arkansas Rules of Criminal Procedure. He asked that

evidence found both before and after his father’s consent be suppressed.

Clingmon also moved to declare unconstitutional Ark. Code Ann. § 16-93-106,

which provides as follows:

(a)(1) A person who is placed on supervised probation or is released on
parole under this chapter is required to agree to a waiver as a condition of his
or her supervised probation or parole that allows any certified law
enforcement officer or Department of Community Correction officer to
conduct a warrantless search of his or her person, place of residence, or motor
vehicle at any time, day or night, whenever requested by the certified law
enforcement officer or Department of Community Correction officer.

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(2) A warrantless search that is based on a waiver required by this
section shall be conducted in a reasonable manner but does not need to be
based on an articulable suspicion that the person is committing or has
committed a criminal offense.

(b)(1) A person who will be placed on supervised probation or parole
and is required to agree to the waiver required by this section shall
acknowledge and sign the waiver.

(2) If the person fails to acknowledge and sign the waiver required by
this section, he or she is ineligible to be placed on supervised probation or
parole.1

Clingmon’s argument in this motion was substantially similar to his argument in the motion

to suppress; he asserted that the statute violated his Fourth Amendment rights under the

United States and Arkansas constitutions as well as subsections 12.5(a) and (b) of the Arkansas

Rules of Criminal Procedure. He also stated that the statute “mandates that a parolee

execute a waiver of his constitutional rights against unlawful search and seizure as a condition

of being paroled.” Finally, he contended that the search had been conducted “without

probable cause, reasonable cause, or reasonable suspicion” in violation of his constitutional

rights.

The circuit court convened a suppression hearing on 17 June 2019. Defense counsel

argued that the requirement that a search pursuant to the statute be conducted in a

“reasonable manner” fell below the standards of either reasonable suspicion or probable

cause and thus violated Clingmon’s constitutional right against unreasonable searches. The

State responded that a person who accepts the requirements of parole gives up certain rights,

including this Fourth Amendment right.

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The statute was amended in 2019 to clarify that a “residence” includes a garage or
outbuilding on the property of a residence, but the amendment is irrelevant to this appeal.
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Deputy Steven Bobo’s testimony revealed that he and two other officers visited the

home that Clingmon shared with his father because he (Bobo) had received a call from the

prosecutor’s office and been advised of possible criminal activity by Clingmon. No one was

home, so Bobo contacted Edward Clingmon, Alax’s father, who agreed to come to the

house. Bobo explained to Edward that Alax had signed a search waiver pursuant to his

parole agreement, and Edward let the officers into the house and showed them where Alax’s

room was located. The officers began searching the bedroom and attached bathroom, and

Deputy Ronnie Carr found suspected methamphetamine and ecstasy pills in the pocket of

a jacket hanging on the wall. In the bathroom, Deputy Jimmy Carr found digital scales,

baggies, gloves, and plastic bag full of a “crystal-like substance” that the officers believed to

be methamphetamine. Deputy Bobo asked Edward for permission to search the rest of the

house, and Edward signed a consent to search. The officers found a “little bit of marijuana”

and some marijuana cigarette butts in the kitchen. On cross-examination, Bobo agreed that

he had never been employed by the Arkansas Department of Correction or the Department

of Community Punishment, nor did he exercise any supervisory responsibility over

Clingmon as a parolee. Bobo did not recall if he contacted Clingmon’s parole officer prior

to the search, but he agreed that there was no parole officer present at the time of the search.

After hearing further arguments from counsel, the circuit court found that the statute

is “reasonable and constitutional,” that it extends the right to conduct a warrantless search

of parolees to community-correction officers and law enforcement officers, and that it

requires the search be done in a reasonable manner but does not require reasonable

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suspicion. The circuit court denied both the motion to declare the statute unconstitutional

and the motion to suppress.

Clingmon entered a conditional plea of guilty to trafficking a controlled substance,

preserving his right to appeal the denial of the motions, and was sentenced to twenty years’

imprisonment. The remaining charges were nolle prossed. Clingmon has timely appealed

the sentencing order.

I. Constitutionality of the Statute

The appellate courts will review both the circuit court’s interpretation of the

constitution as well as issues of statutory interpretation de novo because it is for these courts

to determine the meaning of a statute. See Arnold v. State, 2011 Ark. 395, 384 S.W.3d 488.

In considering the constitutionality of a statute, the appellate courts recognize the existence

of a strong presumption that every statute is constitutional. Brown v. State, 2015 Ark. 16,

454 S.W.3d 226. An act should be struck down only when there is a clear incompatibility

between the act and the constitution. Id.

Our supreme court has recognized that 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. Cherry v. State, 302 Ark. 462, 467, 791

S.W.2d 354, 356–57 (1990) (citing Griffin v. Wisconsin, 483 U.S. 868 (1987)). The special

needs of the parole process call for intensive supervision of the parolee making the warrant

requirement impractical. Id. A parolee has a diminished expectation of privacy, as legally

he is still in the custody of the penal institution from which he was released. Ark. Code

Ann. § 16-93-701(b)(3) (Supp. 2015).

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Clingmon asserts that in order to be eligible for parole, he was required to sign a

waiver of his Fourth Amendment rights against unlawful search and seizure, and that if he

refused to sign the waiver, he would be ineligible for parole. Thus, he argues that signing

the waiver is “coerced.” He also contends that under Arkansas Supreme Court case law,

“parole officers may carry out searches only if reasonable grounds exist to investigate

whether the parolee had violated the terms of his parole.” Lane v. State, 2017 Ark. 34, at

3, 513 S.W.3d 230, 233 (citing Cherry v. State, 302 Ark. 462, 791 S.W.2d 354 (1990)). He

contends that interpreting the statute as the state and the circuit court have done “effectively

nullifies the Fourth Amendment rights of a parolee” and authorizes police to conduct a

search “without any legal criteria, limitation, or restraints.” Clingmon contends that because

the statute does not require reasonable cause for the search, it is “rife with potential for

abuse” and should be declared unconstitutional.

The State counters that Clingmon’s argument ignores United States Supreme Court

case law interpreting similar statutes as constitutional. In Samson v. California, 547 U.S. 843

(2006), the Court applied a totality-of-the-circumstances test to a suspicionless search of a

parolee conducted pursuant to a California law that provided that as a condition for release,

every prisoner eligible for state parole must agree to be subject to a search or seizure by a

parole officer or other peace officer with or without a search warrant and with or without

cause. Samson, a parolee, was stopped while walking down the street and subjected to a

search, revealing a plastic bag filled with methamphetamine. He argued that the warrantless

search violated the Fourth Amendment even though it was authorized by statute.

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The Court in Samson considered all the facts of the case in context, including (1) the

specific provisions of the authorizing statute; (2) the great state interest in reducing

recidivism; (3) the fact that the petitioner was serving an active prison sentence, that he was

given the choice to either remain incarcerated until the end of his sentence or agree to

certain terms of parole and serve the remainder of his sentence outside of prison; and (4) by

choosing parole, he knowingly and purposefully accepted its conditions. The Court held

that the petitioner’s reasonable expectation of privacy, for the purpose of his Fourth

Amendment challenge, was severely diminished based on the facts and context of his case

and that the Fourth Amendment does not per se “prohibit a police officer from conducting

a suspicionless search of a parolee” if the parolee has accepted a specific condition of parole,

authorized by statute, that requires the parolee to submit to warrantless searches. Id. at 857.

In other words, the Court upheld suspicionless searches of parolees pursuant to a state statute

allowing for such searches.

The State argues that Clingmon’s argument relies on an outdated analysis; Cherry was

decided before Ark. Code Ann. § 16-93-106 was enacted, and Lane, while decided after the

enactment of the statute, relied on language from Cherry. The State asserts that following

Samson’s reasoning, “Clingmon’s significantly diminished expectation of privacy as a

parolee, particularly when balanced against the State’s substantial interest in its parole-release

system, renders the warrantless, suspicionless search by police officers reasonable and,

consequently, the parole scheme mandated by section 16-93-106 meets constitutional

muster.”

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Clingmon replies that Samson is distinguishable because (1) the statute and waiver at

issue in Samson provided for a warrantless and suspicionless search of a parolee, while Ark.

Code Ann. § 16-93-106 requires some level of suspicion that the parolee is committing or

has committed a crime; and (2) Samson involved a search of a parolee’s person in a public

setting, while the present case involves a search of a parolee’s home. Clingmon suggests we

find guidance in United States v. Knights, 534 U.S. 112 (2001), which held that the

warrantless search of a probationer’s apartment—based on both a probation-search

condition and reasonable suspicion of criminal activity—was reasonable within the meaning

of the Fourth Amendment.

In Knights, California law required Knights, as a probationer, to “[s]ubmit his . . .

person, property, place of residence, vehicle, personal effects, to search at anytime, with or

without a search warrant, warrant of arrest or reasonable cause by any probation officer or

law enforcement officer.” Id. at 114 (brackets in original). Several days after Knights had

been placed on probation, police suspected that he had been involved in several incidents

of arson and vandalism. Based upon that suspicion and pursuant to the search condition of

his probation, a police officer conducted a warrantless search of Knights’s apartment and

found arson and drug paraphernalia. The Ninth Circuit Court of Appeals found the search

was invalid because it was conducted for investigatory rather than probationary purposes.

The Supreme Court rejected this distinction, noting that nothing in the probationer’s search

condition suggested it was confined to searches bearing upon probationary status.

In analyzing the search, the Court applied a general Fourth Amendment analysis and

concluded that the probationer’s acceptance of a clear and unambiguous search condition

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“significantly diminished [the probationer’s] reasonable expectation of privacy.” Id. at 120.

The Court held that the warrantless search of the probationer’s apartment, based on both a

probation-search condition and reasonable suspicion of criminal activity, was reasonable

within the meaning of the Fourth Amendment. The court expressly declined to decide

whether a probation search without reasonable suspicion satisfies the reasonableness

requirement of the Fourth Amendment.

Clingmon interprets Knights to hold that a parole officer or certified law enforcement

officer must have a reasonable suspicion that the parolee is committing or has committed a

criminal offense in order to comport with the parolee’s Fourth Amendment rights. He

argues that his expectation of privacy is not “wholly defeated” by his parole status and notes

that “[a] probationer’s home, like anyone else’s, is protected by the Fourth Amendment’s

requirement that searches be ‘reasonable.’” Griffin v. Wisconsin, 483 U.S. 868, 873 (1987).

He contends that a call from the prosecutor’s office is insufficient to provide reasonable

suspicion and later insists that there is “no evidence in the record to explain the reason” for

the search of his home.

This is the first opportunity this court has had to address the constitutionality of Ark.

Code Ann. § 16-93-106.2 We begin with Clingmon’s assertion that his waiver of consent

was coerced. It was not. He freely and voluntarily signed the waiver with full knowledge

of its conditions. Second, we agree with the State that the Arkansas Supreme Court cases

cited by Clingmon are inapplicable; Cherry was decided long before enactment of the statute,

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The statute was enacted as part of the Criminal Justice Reform Act of 2015, and its
stated intent was to enhance public safety and reduce the prison population.
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and the language in Lane cited by Clingmon relied on Cherry as authority. Clingmon’s

reliance on Knights is also misplaced, as that opinion expressly left open the question of

whether a probation search without reasonable suspicion satisfies the reasonableness

requirement of the Fourth Amendment.

Contrary to Clingmon’s point that some level of suspicion is required by the statute,

the statutory language is clear that reasonable suspicion is not required. So we are faced with

the same question addressed by the Samson Court: “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.” Samson, 547 U.S. at 847. The Supreme Court answered that question in

the affirmative. Samson made clear that the Fourth Amendment does not per se “prohibit a

police officer from conducting a suspicionless search of a parolee” if the parolee has accepted

a specific condition of parole, authorized by statute, that requires the parolee to submit to

warrantless searches. Id. at 857. Finally, we disagree with Clingmon’s assertion that the

statute leaves law enforcement unrestrained in its actions; the statute requires that searches

be conducted in a “reasonable manner.” Ark. Code Ann. § 16-93-106(a)(2). Therefore,

we hold that Ark. Code Ann. § 16-93-106 is constitutional.

II. Motion to Suppress

Clingmon argues that there were no reasonable grounds for the officers to believe he

had violated the terms of his parole and that the search was not conducted in a reasonable

manner because no parole officer was present, the officers had no supervisory authority over

him, and his parole officer was not contacted before the search. Therefore, the warrantless

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search by the officers was invalid, and the circuit court’s denial of his motion to suppress

should be reversed. Because we have established that the statute is constitutional and does

not require a “reasonable-grounds” basis for a search, Clingmon’s only remaining argument

for suppression lies in his assertion that the search was not conducted in a reasonable manner.

This argument was not developed below or ruled on by the circuit court, so we will not

address it. Stover v. State, 2017 Ark. 66, 511 S.W.3d 333.

Affirmed.

WHITEAKER and MURPHY, JJ., agree.

McKissic & Associates, PLLC, by: Gene E. McKissic, Sr., for appellant.

Leslie Rutledge, Att’y Gen., by: David L. Eanes, Jr., Ass’t Att’y Gen., for appellee.

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