*1 THE S99G0561. FOX v. STATE. 847)
(527 SE2d Justice. Sears, granted Appeals case, This which we to certiorari to the Court of questions: special review,1 raises two One concerns the of a probation, pursuant appellant pur- which condition to David Fox ported rights. to waive his The second issue whether, if that it invalid, was nevertheless reasonable police under the Fourth Amendment to for a officer conduct a war- rantless home.2 We conclude that of Fox’s properly Fourth Amendment was invalid because was not it plea bargaining process, obtained as of the and we also conclude officer’s search of warrantless Fox’shome violated the Appeals’s Fourth Amendment. reverse we the Court of judgment permissible. that the search of Fox’shome was present charges stems case from filed Fox in Chero- County possession marijuana kee possession to intent distribute and During trial,
of a firearm a convicted felon. his Fox suppress drugs weapon during moved to evidence of the and found search of his residence. At the of the search, time Fox was on pleading guilty burglary charge County. after tion legality probationer to a Bartow part, upon turns, of the at least Fox’s status aas waiver of his Fourth Amendment special probation was a record hearing case. The Bartow copy transcript plea which includes a of the County,
in Bartow shows that trial court years probation, any Fox sentenced to ten but that it not mention did special plea process. during condition or condition of pronounced Instead, the record shows that court its ten- year colloquy, plea pro- sentence at end of Fox taken to a bation officewhere a informed conditions Although attorney probation. representing him, Fox had an was not when officer informed Fox probation. special A conditions of condition of was that [probationer person, shall submit a search of to his/her papers houses, and/or effects as those terms of the Fourth Amendment of United States are defined Constitution day night, Court, time or with or without a requested search warrant whenever supervisor do so or law enforcement officer. (1998). Fox v. Wisconsin, See 483 U. S. LE2d provision Fox, Fox and told read this
The this was hearing probation. Fox testified at a condition of right suppress he had a he did not know whether his motion to containing signed object the list of con- the sheet waiver. signed The form conditions of ditions signed court. to the written sentence was attached *2 suppress, hearing a to Cherokee At the on Fox’smotion August tipster Deputy 1996, a informed him that in Sheriff testified selling marijuana. deputy The added Fox that why give that Fox was information as to he believed not him did selling Georgia through marijuana. deputy The later ran Fox’s name Center, Fox on and it showed that was contact Crime Information attempt County. deputy to The did not copy any probation officer, a of Fox’s Fourth but instead obtained County, Fox’s from Bartow and went to residence Amendment waiver deputy identified himself to with other law enforcement officers. The agent, copy condition as a narcotics showed Fox property. explained there search form, and that he was to do a hearing object search, not and he on his Fox did to testified [he] suppress he do he think to did not so because “didn’t motion that deputy purpose of the search had choice.”The testified that the marijuana investigate located and a to narcotics. firearm Fox’sresidence. suppress to trial court denied Fox’smotion Cherokee during foregoing search, in his and con-
the evidence found home following appealed the trial victed Fox a bench trial. Fox court’s suppress Appeals, to to the Court of which denial motion granted certiorari, follow, We that affirmed. then and for reasons we now reverse.
1. We address the of Fox’s Fourth Amendment first State,3 v. this Court that Fourth Amendment waiver. Allen rights held apply probationers, we that had but also held Allen waived rights. part, valid, that those We concluded waiver was negotiated through plea bargaining process.4 it had been theory It also been held such waivers are valid on the voluntarily the defendant has consented to such condition of acceptable prison.”5 “an tion as alternative to (369 909) (1988). 424, 258 Ga. SE2d (1) (512 32) (1999). State, Phillips App. 744, Id. Accord SE2d 236 Ga. See also (4) 146) (1997). Darby App. LaFave, Luke v. See also Search (b) Seizure, Amendment, (1996), A 10.10 where it is § Treatise Fourth Vol. LaFave, however, widely adopted theory. courts noted that theory have is critical of the voluntarily prison rights defendant waives his Fourth Amendment when is the only accepting probation. alternative to Id. at 764. condition of however, the record demonstrates that part to the condi- plea bargain agreement, tion of and was not given prison option acceptable consider whether anwas alter- light probation. plea Rather, native in of this condition of after the agreement sentence, was reached and the court announced the presence officer, was told outside the of his court, and of the trial the waiver of was a condition of his The record demonstrates that this was the first time that this was discussed. that, circumstances, We conclude under these the waiver Fox’s Fourth Amendment valid. the waiver support cannot be relied the search of Fox’s residence that County. was conducted sheriff Cherokee question remains, however, 2. The whether begin, residence was reasonable under the Fourth To Amendment. applies probationers.6 we note that Fourth Amendment “How ever, the Fourth Amendment does not ban all searches seizures — only those deemed to be unreasonable. What is reasonable ‘depends surrounding all of the circumstances the search or seizure and the nature of the although supported or Moreover, seizure itself.’”7 usually accompanied by
searches must warrant and *3 probable exceptions reasonable,8 cause be have been “ beyond permitted “special ‘when needs,” the normal need law probable-cause requirement enforcement, make the warrant and ”9 impracticable.’ ‘special gov cases, the “In needs’ we must balance the to search ernment’s need search. And the search will be invasion occasioned government’s if
deemed reasonable outweigh interest can said to the interest In be individual.”10 Supreme supervi Wisconsin, v. Court that the concluded Griffin necessary probationers probation system operate is a sion that presented special “may justify departures that needs from usual 11 probable-cause requirements.” warrant and The search in Griffin pursuant regulation permitted to a was conducted Wisconsin that a probationer’s a officer to search home without a warrant so long grounds” as the had believe that contra “reasonable present. analyzing In search in in band was the reasonableness significant regulation Griffin, the Court it that considered grounds” question required upon the search to “reasonable be based 6 Allen, 424; Wisconsin, U. S. at 258 Ga. 483 873. Griffin 7 (1998), quoting Railway Adams v. Skinner Assn., Labor Executives’ U. S. 103 LE2d 8 Adams, Ga. at 407. 9 Griffin, 10Adams, 11 Griffin, U. S. at 873. at 407-408. U. S. at 874. by probation The Court concluded that a officer.12 to be conducted home “satisfied the demands of search Griffin’s
the warrantless the Fourth Amendment reg- pursuant to it was out a carried Fourth Amendment’s reasonableness that satisfies the ulation itself requirement.”13 it that made unnec- The Court stated this conclusion “any question essary of a whether for it address the is are ‘reason- lawful when there home a tioner’s present.”14 grounds’ contraband to believe able question presents left unanswered The case Grif- by a law that the search was conducted fin, with variation Using gui- a officer. official not enforcement Griffin question reasonableness, we conclude that the search dance of upon it was not “rea- home was not reasonable because based Fox’s grounds” found at to believe that contraband be sonable regard, that, In this we conclude that establishes at home. probationer search, a minimum, has not to a war- when a consented probationer’s search of a home must based reason- rantless grounds probationer has in the to believe that the contraband able activity engaged in We thus or is some criminal' there. first home grounds for the search in examine whether there were reasonable “tip- who the search testified that a this case. conducted selling marijuana. told him added that ster” tipster’s tipster pris- name; the the he remember tip time; he the first oner at received about time tipster; tipster he had received information from this and that give why information as to believed that did marijuana. tip selling It has Fox was been held that a from an reliability generally informant of unknown reasonable insufficient to create may activity, tip suspicion pro- of criminal but suspicion provides tip if vide basis for a reasonable details present case, can corroborate observation.15 12 Griffin, regard, Supreme pro U. S. 876-880. Court reasoned that a unique, ongoing supervisory relationship probationer, bation officer with a and that officer, determining grounds therefore search, whether reasonable existed for a *4 proceed experience probationer, [could] could based his “entire with the and life, probabilities light knowledge character, probationer’s] [his] [the in the of assess of and considering probationer, gave In circumstances.” Id. at 879. the interests of the the Court significance to the fact that [a]lthough impartial magistrate, police an is not neither is he the normally ordinary officer who conducts searches the citizen. He is an employee Department who, of the State of Health Social while and Services assur- edly charged protecting public interest, supposed with the is also to have mind probationer. the welfare of the Id. at 876. 13Id. at 873. 14 Griffin, 483 S. at 880. U. (1999); Stanley Ga. 618-619 Smith reliability, provided the of unknown and he details no deputy tip. which the could corroborate the We therefore must con- deputy suspicion clude that the did not have reasonable that Fox engaged activity in criminal when he conducted the search. we hold that the unrea- search instant case was meaning sonable within of the Fourth Amendment.16 foregoing judgment reasons, For the we reverse the the Court of Appeals. of
Judgment except concur, reversed. All the Justices Hunstein and Thompson, specially. JJ, who concur concurring. Justice,
Carley, judgment Appeals, I concur in the of reversal of Court of only procedure employed whereby but informed because of the Fox was not of his Fourth Amendment was a con- dition of his until the trial court had him. sentenced today’s opinion, however, Even under it been included tencing by the waiver would valid had be a condition of the time sen- my opinion, scope In court. such valid enough encompass be broad the warrantless search of his residence conducted issue of “rea- officer. sonableness” of only Fox’shome sheriff arises regard, In because the waiver was ineffective. I probable there was no cause to authorize the search Appeals affirming sup- Court of erred in the denial of Fox’smotion to press. joins opinion.
I am authorized to state that Justice Hines Justice, Hunstein, concurring specially. concluding that Fox’swaiver of his Fourth Amendment properly
was invalid because this condition was not part plea bargaining process, opinion obtained as concludes only charged knowledge that Fox can conditions articulated existence those Attorney judge the District and the trial during sentencing. agree. my opinion supports I do not the record the conclusion that Fox and his counsel were aware of the numerous conditions included in the form standard made of the second page including probation requirement sentence, address- App. 95, grounds Because we conclude that there were not reasonable for the warrantless impact might search in this we do not certain need address how other factors question reasonableness of search. Those factors are that attempt probation, proba input contact officer for on Fox’s did not involve a search, solely appears tion actual have conducted the for law purposes probationary purposes. enforcement rather than *5 my opinion ing that it It also is not the Fourth Amendment waiver. every proba- upon sentencing judge to each and review to incumbent tion condition from cumstance guard very in order the cir- the bench presented here. signed his Fox and consists
The written sentence
probationary obligation
comply
separate
references to Fox’s
two
general
special
in this sentence” and
the
conditions “stated
with
Page
form
in
2 this sentence.” The sentence
contains blocks
“stated
references,
are
these
and both of the blocks
checked. Thus Fox
next to
acknowledged
explicitly
that he was aware of
issue.
County
transcript
suppression
shows
the Cherokee
trial
testimony
probation officer well as Fox and
heard
from Fox’s
as
court
sentencing transcript
presented
and the written sen-
was
with
specific,
court thereafter made
tence.
straightforward
Cherokee
finding
proba-
that Fox was aware of waiver
suppression transcript
trial
shows that the
court
tion condition. The
unpersuaded
flawed
Fox’sclaim
the waiver was
express
sentencing court did not select and articulate that
condi-
condi-
twenty-three general
special probation
tion; one out of the
obligation
sentencing
imposed. However, there was no
tions
list of
as
court to articulate the entire
conditions
that oral declaration
signed by
sentence; the
not constitute the
written sentence
(4)
Curry State,
controlled. See
Decided March 2000. Nuckolls,
John A. for appellant. Moss, Harris, T. *6 Garry Attorney, District Cecelia M. Assistant District Attorney, appellee.
S99G0592. PEEK v. THE STATE. (527 552) SE2d
Benham, Chief Justice. Arrested and charged driving under the influence of alco- hol, agreed Earl Peek to submit to a state-administered blood test. Bolia, His blood was drawn Ha a Southern Regional Medical trial, Center At employee. the State was introduce permitted to business record1 a “computer print-out” of an education “employee cumulative report” show that Bolia was a phlebotomist. DUI,
Peek was convicted of and the affirmed, Court of Appeals holding education “employee report” cumulative under the admissible business record exception hearsay to the rule to that Bolia was prove qualified State, to draw Peek’s blood. Peek (509 358) (1998). Ga. SE2d App. granted We certiorari and posed this question:
Whether the “employee education report” cumulative phlebotomist who drew Peek’s blood satisfied the State’s burden of proving that who drew Peek’s person blood (a) (2) (e). qualified do so. See OCGA 40-6-392 § When the State introduces evidence of a prove chemical test to that a defendant was driving influence, under the it has the burden of demonstrating compliance with the statutory, foundational (324 requirements. State, Munda v. SE2d App. (1984). The State also has the burden of proving qualifications any person who draws blood at the request of a law enforcement 75) (1996). officer. Carr v. “ requirements These are ‘consistent with statutory mandate of exception accepted introducing breath-testing The business record is the means of device certificates and radar device certificates. Brown v.