The county's top gang prosecutor said Wednesday he will remove a little-known provision on a Sessions Court form that allows police to search the homes of people assigned court-ordered community service.
Boyd Patterson said the provision was never intended for minor offenses such as littering, simple drug possession or similar misdemeanors. Instead, the language is aimed at the "worst of the worst" gang members, he said.
But the provision, in effect since November, requires people who agree to perform public works days through the court to allow such searches regardless of their offense.
"The ones on public works days are not the hard-core, long-term gang members that this language was intended for," Patterson said. "This is to give police and prosecutors additional tools to go after gang members."
The change is one step in a deeper conversation begun by local criminal defense attorney Hank Hill, who challenged the provision when he learned of it through a client in recent weeks and notified the Chattanooga Times Free Press.
The provision is "just such a gross overkill," Hill said. "No competent lawyer would ever require a client to sign it."
Patterson decided to remove the provision from public works requirements after being contacted by the Chattanooga Times Free Press on Wednesday.
The provision states: "Defendant agrees to a search, without either a warrant or any particularized suspicion, of his/her person, vehicle, property, or place of residence by any Probation/Parole officer or law enforcement officer, at any time."
Patterson, who heads the Chattanooga's gang task force, said defendants who are assigned only public works days and are not on stricter forms of probation can cross out the wording when they sign the court document agreeing to the required community service.
Vanderbilt law professor Christopher Slobogin said Wednesday that a U.S. Supreme Court decision allows broad search powers when police deal with people on parole. But he said specifics of the legal question are debatable.
"Even though the Supreme Court has held this type of provision constitutional, one could argue that it should not apply to minor offenses," he said.
On Wednesday, Hamilton County Attorney Rheubin Taylor said the County Commission is not required to approve such changes; the district attorney has the constitutional authority to change court-related forms.
Patterson cited Tennessee Supreme Court rulings to support searches of criminal offenders and said language for the provision has existed in state probation documents for years.
"The basic rule against warrantless searches is relaxed if the person being searched has been convicted of a criminal offense and is serving a sentence," Patterson said, citing the court's opinion in a 2009 case.
Hill argued that many people on public works days have not been convicted and agree to community service in order to have charges dismissed or in place of serving jail time.
"The average murderer doesn't get misdemeanor probation," Hill said.
Hill explained a scenario allowed under the provision -- a person living with his parents is caught with a small amount of marijuana in his vehicle. If he signs the document for public works days, it would allow police or probation officers to search the parents' residence.
Patterson said Wednesday that probation terms are negotiable between prosecutors and defense attorneys and it's common for certain terms to be spelled out or deleted in an agreement before a judge signs it.
He said the provision was added after he and District Attorney Bill Cox met individually with all five Sessions Court judges.
Both Patterson and Hill said they would meet privately along with the local criminal defense bar next week to discuss further concerns attorneys have with the provison.