BURKES v. the STATE.

FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, J.

NOTICE: Motions for reconsideration m us t be
physically re ceived in our clerk’s office within ten days
of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

October 25, 2018

In the Court of Appeals of Georgia
A18A0821. BURKES v. THE STATE.

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 SE2d 476) (2007) (footnotes

omitted); see State v. Colvard, 296 Ga. 381, 382 (1) (768 SE2d 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 SE2d 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 SE2d 842) (2006).

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 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

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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:

1
On appeal, Burkes does not challenge the lawfulness of the stop or the
detention. In any event, see Walker v. State, 322 Ga. App. 821, 824 (1) (744 SE2d
385) (2013) (holding that when an officer witnesses a traffic offense, even a minor one
such as a window tint violation, the resulting traffic stop does not violate the Fourth
Amendment even if the officer has ulterior motives in initiating the stop) (physical
precedent only); see also Ciak v. State, 278 Ga. 27, 30 (3) (597 SE2d 392) (2004) (the
fact that the officer determined from a field test of the window tint that a citation for
violating OCGA § 40-8-73.1 was not warranted did not render the stop – which was
based on a suspected window tint violation – improper).

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“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 SE2d 351)

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(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 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), 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.

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(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) (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)

(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 SE2d 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). We emphasize that as a condition of his parole,

Burkes agreed to waive his Fourth Amendment rights and consented to searches of

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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 (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 (albeit

erroneously) believed the consent given was valid.” Ford v. State, 214 Ga. App. 284,

286-287 (3) (447 SE2d 334) (1994) (citations, punctuation and emphasis omitted). The

facts available to Officer C. H. at the time of the search led him to reasonably believe

that Burkes, a parolee, had signed a Fourth Amendment waiver validly consenting to

a search of the vehicle under his control. See generally id. This enumeration is without

merit.

2. In a related but separately enumerated claim of error, Burkes contends that

the trial court erred by finding that the search was lawful when (a) the only evidence

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of the Fourth Amendment waiver introduced at the suppression hearing was hearsay;

(b) a Fourth Amendment waiver does not permit searches without reasonable grounds;

and (c) good faith does not validate an otherwise invalid search. There was no error.

(a) A trial court is permitted to consider hearsay evidence at a hearing on a

motion to suppress.2 See OCGA §§ 24-1-2 (c); 24-1-104 (a); 24-4-402. Moreover, the

waiver document was admitted at the bench trial, the admissibility of which was

stipulated to by Burkes. Because this Court considers all evidence of record, including

evidence introduced at the suppression hearing and at trial, hearsay was not the only

evidence that Burkes waived his Fourth Amendment rights. See Clark v. State, 279

Ga. 243, 245 (4) (611 SE2d 38) (2005); Bailey v. State, 338 Ga. App. 428, 431 (1) (n.

16) (790 SE2d 98) (2016), overruled in part on other grounds by Wellborn v. State,

301 Ga. 106, 107 (1) (n. 2) (799 SE2d 793) (2016).

(b) A search made pursuant to a special condition of parole that is based on a

reasonable or good-faith suspicion of criminal activity is permissible. Cauley, supra

at 195 (1). Here, Officer C. H. had a good-faith suspicion of criminal activity – starting

2
Georgia’s new Evidence Code applies because the hearing on the motion to
suppress and the subsequent bench trial were held after January 1, 2013. See State v.
Jones, 297 Ga. 156, 158 (1) (773 SE2d 170) (2015).

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with the tip, and followed by his own observations of Burkes’s behavior, objects in

plain view in the vehicle, odors emanating from the vehicle, and Burkes’s history of

drug offenses. Under the totality of circumstances, there existed a sufficiently

reasonable or good-faith suspicion for the search so that officers were not acting in

an arbitrary, capricious or harassing manner. See generally Hess v. State, 296 Ga. App.

300, 302-303 (2) (674 SE2d 362) (2009) (regarding Fourth Amendment waiver for

probationer); Thomas, supra at 166 (1) (noting that a parolee has even fewer

expectations of privacy than a probationer, because parole is more akin to

imprisonment than is probation).

(c) Burkes contends that “[e]ven if the search was conducted based upon an

officer’s good faith belief that a Fourth Amendment waiver is valid, such a good faith

belief does not validate an otherwise invalid search.” His contention is unpersuasive.

The case upon which he relies, State v. New, 331 Ga. App. 139 (770 SE2d 239)

(2015), does not require reversal in this case. First, the holding in that case is physical

precedent only. Second, New is distinguishable because law enforcement officers

searched New believing that he was on probation and subject to a Fourth Amendment

waiver of rights, when actually he was not on probation and there was no valid waiver

in place at the time of the search. Id. at 141-144 (2), (3). The trial court in this case

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was authorized to conclude that Burkes waived his Fourth Amendment rights as a

condition of parole and that the search was lawful. See Thomas, supra at 166-167 (1)

(the search of a parolee’s residence was permissible because it was made pursuant to

a Fourth Amendment waiver and the officers had a reasonable or good-faith suspicion

of criminal activity); Ford, supra at 287 (3) (a consent to search by a person who, in

the officer’s good faith reasonable belief, has the authority to consent to the search,

is valid).

3. Burkes contends that the trial court erred by considering hearsay evidence

(Officer C. H.’s testimony about his phone call with the parole officer) for its

probative value at the hearing on his motion for new trial. It is unclear why Burkes

raises the hearsay issue in connection with the hearing on the motion for new trial. In

any event, Burkes concedes that he failed to object to the consideration of the

evidence at the time it was offered.

Thus, “under Georgia’s new Evidence Code, the rulings related to this evidence

are subject to review on appeal for ‘plain error affecting substantial rights.’” Gates v.

State, 298 Ga. 324, 326 (3) (781 SE2d 772) (2016) (citation omitted). For plain error

review of rulings on evidence, we apply the following standard:

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 First, there must be an error or defect – some sort of deviation from a
legal rule – that has not been intentionally relinquished or abandoned, i.e.,
affirmatively waived, by the appellant. Second, the legal error must be
clear or obvious, rather than subject to reasonable dispute. Third, the
error must have affected the appellant’s substantial rights, which in the
ordinary case means he must demonstrate that it affected the outcome of
the trial court proceedings. Fourth and finally, if the above three prongs
are satisfied, the appellate court has the discretion to remedy the error –
discretion which ought to be exercised only if the error seriously affects
the fairness, integrity or public reputation of judicial proceedings.

Id. at 327 (3) (citations and punctuation omitted). In this case, Burkes affirmatively

waived the alleged defect by stipulating that the vehicle was searched “pursuant to his

parole Fourth Amendment waiver” and that the parole waiver attached as an exhibit to

the Stipulations pleading was admissible in evidence. Burkes has not demonstrated

plain error. See generally Crankshaw v. State, 336 Ga. App. 700, 701 (2) (786 SE2d

245) (2016).

4. Burkes contends that the evidence was insufficient to support the conviction.

The contention is without merit.

“Upon a finding of guilt following a bench trial, the presumption of innocence

no longer applies, and on appeal, the appellate court construes the evidence in favor

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of the judge’s findings of fact.” Stroud, supra at 129 (3) (footnote and punctuation

omitted). A person commits the offense of trafficking in methamphetamine when he

“sells, delivers, or brings into this state or has possession of 28 grams or more of

methamphetamine . . . or any mixture containing . . . methamphetamine[.]” OCGA §

16-13-31 (e) (2015). The evidence was sufficient to support Burkes’s conviction for

trafficking in methamphetamine. See Culajay v. State, 309 Ga. App. 631, 634 (1) (710

SE2d 846) (2011).

Judgment affirmed. Dillard, C. J., and Doyle, P. J., concur.

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