Fox v. State

In Fox v. State, 272 Ga. 163 (527 SE2d 847) (2000), a probation officer told Fox, after he had already been sentenced and outside the presence of his attorney and the court, that the waiver of his Fourth Amendment rights was a condition of his probation. Id. at 164-165 (1). The record demonstrated that it was the first time the condition of probation was discussed with Fox. Id. The court concluded that under the circumstances, the waiver of Fox's Fourth Amendment rights was not valid. Id. The Supreme Court of Georgia addressed a special condition of probation, in which the appellant had purportedly waived his Fourth Amendment rights. The waiver was used as the basis for a search of Fox's home after a tipster reported that Fox was selling marijuana. At that time, Fox was serving ten years on probation after pleading guilty to a burglary charge. Apparently, no mention of any condition or special condition of probation was made during the plea process. Instead, after the court pronounced its ten-year sentence at the end of the plea colloquy, Fox was taken to a probation office without his attorney, where a probation officer informed him of the conditions of probation. A special condition of probation was that he submit to a probation search whenever requested, with or without a warrant. In reviewing the probationary search, the Court was troubled that fox did not agree to the condition of probation as part of the plea bargain agreement, and was not given the option to consider whether prison was an acceptable alternative in light of this condition of probation. Rather, after the plea agreement was reached and the court announced the sentence, Fox was told by a probation officer, outside the presence of his attorney and of the trial court, that the waiver of his Fourth Amendment rights was a condition of his probation. The record demonstrates that this was the first time that this condition of probation was discussed. Fox v. State, supra, 272 Ga. at 165 (1). It concluded that "under these circumstances, the waiver of Fox's Fourth Amendment rights was not valid, and accordingly, the waiver cannot be relied upon to support the search of Fox's residence." Id. In Fox, the Court found the tip from a tipster of unknown reliability who provided no details by which the deputy could corroborate the tip insufficient to create a reasonable suspicion that Fox was engaged in criminal activity. In a footnote, the Court indicated that during a probationary search other factors might impact the question of the reasonableness of the search. Those factors are that the deputy did not attempt to contact a probation officer for input on Fox's probation, did not involve a probation officer in the actual search, and appears to have conducted the search solely for law enforcement purposes rather than probationary purposes. Fox, supra, 272 Ga. at 167, n. 16.