On October 25, 2018, the Court of Appeals of Georgia decided Burkes v. State[i], in which the court examined whether officers violated the Fourth Amendment when they searched the vehicle of a parolee without a warrant pursuant to a Fourth Amendment waiver which was executed as a condition of parole. The relevant facts of Burkes are as follows:
In March 2015, a police lieutenant with the City of Acworth was on patrol near a motel when a man flagged him down. The man told the lieutenant that a man and woman had been involved in a verbal altercation at the motel, and that the woman had been outside a room, threatening to call the police and report what the man had in the room. From his parked police car, the lieutenant began surveillance of the motel room. He saw a man leave the room, enter a vehicle, park it near the room, enter the room, and move items from the room to the vehicle. As the man was driving out of the parking lot, the lieutenant contacted another police officer who was in the area, Officer C. H., briefed him on the situation, and directed him to watch for the vehicle and see if he could establish probable cause to initiate a traffic stop.
Officer C. H. followed the vehicle and initiated a traffic stop for a suspected window tint violation; the window tint level registered “thirty percent.” Officer C. H. testified that because the tint level was less than 32 percent, the tint was illegal, see OCGA § 40-8-73.1 (b) (2); the officer learned during the stop that the vehicle was a rental vehicle, and he concluded that the vehicle was thus exempt from the statute’s tint limits. The vehicle’s driver, Burkes, appeared to be nervous. Officer C. H. conducted a GCIC check of Burkes’s driver’s license and discovered that Burkes was on parole. Officer C. H. walked back to the vehicle and stood at the back door (while a second officer stood at the front door). Officer C. H. asked Burkes “what he was on parole for.” At first, Burkes said he did not know, but he eventually stated that he was on parole for “[d]rugs, possession, I think, distribution.” Officer C. H. saw “baggies” protruding from an open bag on the back seat. The window was down, and Officer C. H. smelled numerous different odors, such as air fresheners and cologne, which he stated are often used to mask odors inside a vehicle.
Officer C. H. testified that he contacted Burkes’s parole officer and “asked if Mr. Burkes had signed a Fourth Amendment waiver to search the vehicle.” The trial court asked if “there was a Fourth Amendment waiver,” and Officer C. H. replied: “There was a Fourth Amendment waiver.” Based on Burkes’s status as a parolee, his parole officer’s confirmation that there was a Fourth Amendment waiver, and other information the officers had that the vehicle “probably” contained narcotics, the officers searched the vehicle. The search revealed five bags of a solid material believed to be methamphetamine, a small bag containing leafy material, packaging materials, a digital scale, and $1,452 in cash. The suspected methamphetamine weighed 195.75 grams. Analysis by the Georgia Bureau of Investigation crime laboratory confirmed the presence of methamphetamine in the sample tested, which sample weighed 67.34 grams.
As part of the bench trial, the parties stipulated that the vehicle search was conducted “pursuant to [Burkes’s] parole Fourth Amendment Waiver,” and they attached to the “Stipulations” pleading a copy of the parole conditions certificate containing the consent to search provision. The parole conditions certificate (which showed effective parole dates beginning in August 2013 and ending in July 2015) provided: “My parole officer or any other parole officer may, at any time, conduct a warrantless search of my person, papers, and place of residence, automobile, or any other property under my control.”[ii]
Burkes subsequently filed a motion to suppress the evidence found in is vehicle. He argued that the Fourth Amendment waiver did not authorize a police officer to search him because it specifically stated his or another “parole officer” may conduct a warrantless search. On appeal, Burkes offered the same argument.
The court first noted that Fourth Amendment waiver’s executed by parolees have been upheld as valid by both Georgia appellate courts and the United States Supreme Court.[iii]
The court also noted some additional legal principles or rules that are relevant to Burkes’ case. First, the court cited the U.S. Supreme Court case, Samson v. California[iv], in which the Court held that
[T]he Fourth Amendment does not prohibit a police officer from conducting [even] a suspicion less search of a parolee.” Id. at 853.[v] [emphasis added]
One of the conditions of Samson’s parole was his compliance with a warrantless search provision. The Supreme Court reasoned that based on the arrestee’s status as a parolee, which is a variation of imprisonment, and the plain terms of the search condition, Samson did not have a legitimate expectation of privacy.
The court also examined Georgia precedent related to warrantless searches of parolees. The court stated
In Georgia, we have held that requiring a parolee’s consent to a search of his property as a condition of parole is not unreasonable. Dean. And “a search made pursuant to a special condition of parole that is based upon a reasonable or good-faith suspicion of criminal activity is permissible.” Thomas v. State, 287 Ga. App. 163, 167 (1) (651 SE2d 116) (2007)[vi] [emphasis added]
Thus, Georgia precedent seems to require that a search based on a special condition of parole be supported by a reasonable or good-faith suspicion of criminal activity.
The court of appeals then compared the facts of Burkes’ case to the rules above. The court observed Burkes’ conditions of parole included a provision whereby Burkes agreed that his or another “parole officer” could, “at any time,” search any area where he possessed a reasonable expectation of privacy. The court also noted that the officers had a “reasonable, good-faith suspicion” that Burkes was involved in criminal activity, based on the tip they received, the baggies observed in the car, Burkes was on parole, and he admitted to the officer it was for drugs and distribution of drugs. Lastly, the court noted that the officers contacted the parole officer and learned that the Fourth Amendment waiver was one of the conditions of Burkes parole. The court then held
Under the circumstances of this case, the fact that police officers conducted the search does not remove it from the “consent-waiver” exception to the probable cause and warrant requirement of the Fourth Amendment. See Dean, supra at 849-850.[vii]
Thus, the fact that officers conducted the search, rather than parole officers, did not render the search unreasonable under the Fourth Amendment.
[i] A18A0821 (Ga. App. 2018)
[iii] Id. (See State v. Cauley, 282 Ga. App. 191, 195 (1) (638 SE2d 351) (2006); Dean v. State, 151 Ga. App. 847, 849 (261 SE2d 759) (1979) (requiring consent to a search as a condition of parole is not unreasonable). See also Samson v. California, 547 U. S. 843, 853 (III) (126 SCt 2193, 165 LE2d 250) (2006) (upholding validity of suspicion less search of a parolee conducted by a police officer as a condition of parole; explaining that “a State has an overwhelming interest in supervising parolees,” and that recidivism “is the very premise behind the system of close parole supervision.”)
[iv] 547 U.S. 843 (2006)
[v] Burkes, A18A0821