Burkes v. State

• Decision Date: 25 October 2018
• Docket Number: A18A0821
• Citation: 821 S.E.2d 33,347 Ga.App. 790
• Parties: BURKES v. The STATE.
• Court: Georgia Court of Appeals

347 Ga.App. 790

821 S.E.2d 33

BURKES

v.The STATE.

A18A0821

Court of Appeals of Georgia.

October 25, 2018

Thomas Edwin Griner, Marietta, for Appellant.

Amelia Greeson Pray, D. Victor Reynolds, Marietta, for Appellee.

Mercier, Judge.

Samuel Lee Burkes, Jr. was charged with trafficking in methamphetamine. Before trial, Burkes moved to suppress evidence police recovered while searching his vehicle during a traffic stop. Burkes, who was on parole at the time of the stop, had signed as a condition of his parole a Fourth Amendment waiver authorizing warrantless searches of his person and any property under his control. The court denied the motion to suppress based, in part, on Burkes’s Fourth Amendment parole waiver. After a bench trial on stipulated facts, Burkes was found guilty of trafficking in methamphetamine. On appeal, he challenges the denial of his motion to suppress, the sufficiency of the evidence to support the conviction, and the court’s consideration of hearsay testimony. Finding no error, we affirm.

1. Burkes contends that the trial court erred by denying his motion to suppress based on the Fourth Amendment parole waiver. On appeal, he asserts that the waiver at issue only allowed searches by parole officers, and that his parole officer could not consent to a search by or transfer that authority to a police officer.

When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the trial court’s findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

Stroud v. State , 286 Ga. App. 124, 125 (1), 648 S.E.2d 476 (2007) (footnotes omitted); see State v. Colvard , 296 Ga. 381, 382 (1), 768 S.E.2d 473 (2015). "An appellate court determining whether a search was lawful may consider all relevant evidence of record, including that adduced at a pretrial suppression hearing and at trial." Stroud , supra. The trial court’s application of the law to undisputed facts is subject to de novo review. Thompson v. State , 289 Ga. App. 661, 658 S.E.2d 122 (2007). A trial court’s ruling on a motion to suppress will be upheld if it is right for any reason. Reynolds v. State , 280 Ga. App. 712, 716 (1), 634 S.E.2d 842 (2006).

Viewed in the light most favorable to the trial court’s findings and judgment, the evidence adduced at the suppression hearing and at the bench trial on stipulated facts showed the following. 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.¹ 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." Such Fourth Amendment waivers by parolees have been held to be valid. See State v. Cauley , 282 Ga. App. 191, 195 (1), 638 S.E.2d 351 (2006) ; Dean v. State , 151 Ga. App. 847, 849, 261 S.E.2d 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 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (upholding validity of suspicionless 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.") (citations and punctuation omitted).

On appeal, Burkes argues that the Fourth Amendment parole waiver did not justify the search because the waiver only allowed searches by a parole officer, and a parole officer cannot consent to a search by or transfer his authority to a police officer.

In Samson , supra at 848 (II), 126 S.Ct. 2193, the Supreme Court of the United States stated:

Under our general Fourth Amendment approach we examine the totality of the circumstances to determine whether a search is reasonable within the meaning of the Fourth Amendment. Whether a search is reasonable is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.

(citations and punctuation omitted). The Samson Court concluded that "the Fourth Amendment does not prohibit a police officer from conducting [even] a suspicionless search of a parolee." Id. at 853 (III), 857 (IV), 126 S.Ct. 2193 (citations and punctuation omitted). The Court "examin[ed] the totality of the circumstances pertaining to petitioner’s status as a parolee, ‘an established variation on imprisonment,’ including the plain terms of the parole search condition," and concluded that the "petitioner did not have an expectation of privacy that society would recognize as legitimate." Id. at 852 (III), 126 S.Ct. 2193 (citation and footnote omitted).

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 , supra. 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 S.E.2d 116 (2007) (footnote and punctuation omitted). In this case, police officers had reasonable grounds to believe that the vehicle driven by Burkes contained illegal drugs. There is no evidence that the police or parole officers acted in bad faith, in an arbitrary and capricious manner, or solely to harass Burkes. See Cauley , supra at 195-196 (1), 638 S.E.2d 351. We emphasize that as a condition of his parole, Burkes agreed to waive his Fourth Amendment rights and consented to searches of property under his control by parole officers, and that his parole officer told the police officer that Burkes had waived his Fourth Amendment rights. 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, 261 S.E.2d 759 (upholding search of probationer by police officers in halfway house where probationer had agreed to periodic searches by house staff as a condition of probation, but house staff requested that police officers conduct the search).

Notably, even "a warrantless search based on unauthorized consent [can] ... be upheld if the law enforcement officer conducting the search reasonably ...