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WHITFIELD v. STATE

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Court of Appeals of Georgia.

WHITFIELD v. The STATE.

No. A16A0420.

Decided: May 19, 2016

Timika Woods Dennis, Zachary Taft, for Whitfield. John Andrew Pipkin III, Marygrace Kathleen Bell, for State.

Shane Whitfield appeals his conviction for possession of marijuana less than one ounce, arguing that the trial court erred in denying his pretrial motion to suppress evidence found during a search of his residence. Specifically, Whitfield—who was on probation and subject to a Fourth Amendment waiver at the time of the search—contends that the warrantless search of his residence was not supported by reasonable suspicion that he was violating the terms of his probation. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the trial court's ruling,1 the evidence shows that in 2013, Whitfield entered a negotiated guilty plea to selling methyenedioxy methamphetamine and was sentenced to five years of probation. As one of the terms of his probation, Whitfield agreed to a Fourth Amendment waiver. Specifically, Whitfield agreed to

submit to search of person, residence, papers, vehicle, and/or effects at any time of day or night without a search warrant, whenever requested to do so by a [p]robation [o]fficer or any other law[-]enforcement officer upon reasonable cause to believe that [he] is in violation of probation or otherwise acting in violation of the law, and ․ [to] consent to the use of anything seized as evidence in any judicial proceeding or trial.

Subsequently, in March 2015, Whitfield tested positive for marijuana during a monthly check-in with his supervising probation officer. But during his next monthly check-in on April 6, 2013, Whitfield tested negative for marijuana. Although Whitfield's April drug screen was negative, he told his probation officer that “he had been counting [the] days since his last use of marijuana and had been testing himself.” And according to the probation officer's training, these actions are “two red flags for somebody trying to subvert any kind of testing or detection of use.” As a result of these “red flags,” as well as Whitfield's positive drug screen the previous month, the probation officer asked another law-enforcement officer to “check-up” on Whitfield and “see what was at [his] house.” The probation officer also conveyed to the officer that Whitfield was subject to a Fourth Amendment waiver.

On April 9, 2015, three law-enforcement officers complied with the probation officer's request and went to Whitfield's residence. When they arrived, Whitfield was at work, but his mother answered the door. Upon greeting Whitfield's mother, the officers asked her for permission to search Whitfield's bedroom, and she then led them to his room.2 The officers then conducted a brief search of Whitfield's bedroom and found a tobacco grinder next to his bed. Although no marijuana was plainly visible, the officer who found the grinder opened it and discovered marijuana inside.

Thereafter, Whitfield was charged, via accusation, with one count of possession of marijuana less than one ounce.3 Prior to trial, Whitfield filed a motion to suppress the evidence found during the search of his residence. In support of this motion, he argued that the officers' entry into his home and the subsequent search of his bedroom were “without consent, probable cause, search warrant, lawful search incident-to-arrest or exigent circumstances,” and therefore, the search was unlawful.4 After a hearing on the matter, the trial court denied the motion. Later, on the same day of the suppression hearing, Whitfield proceeded to a stipulated bench trial after which the trial court found him guilty of the charged offense. This appeal follows.

At the outset, we note that in considering a trial court's denial of a motion to suppress, we construe the evidence “in favor of the court's ruling, and we review de novo the trial court's application of the law to undisputed facts.”5 With these guiding principles in mind, we turn now to Whitfield's claim of error.

Specifically, Whitfield argues that the trial court erred in denying his motion to suppress evidence because the warrantless search of his residence was not supported by reasonable suspicion that he was in violation of his probation. We disagree.

In accordance with the Fourth Amendment to the United States Constitution,6 a search warrant in Georgia may issue only upon “facts sufficient to show probable cause that a crime is being committed or has been committed․”7 And the Supreme Court of Georgia has acknowledged that “the Fourth Amendment applies to probationers.”8 Nevertheless, although searches must usually be accompanied by a warrant and supported by probable cause to be reasonable, “exceptions have been permitted when ‘special needs,’ beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”9 Indeed, the supervision of probationers that is necessary to operate a probation system presents “special needs that may justify departures from the usual warrant and probable-cause requirements.”10

In 2013, rather than face incarceration for the sale of methyenedioxy methamphetamine, Whitfield agreed to certain conditions of probation, including the Fourth Amendment waiver detailed supra. Further, by accepting this special condition of probation, “and to the extent a search and seizure was not otherwise tainted without subsequent attenuation so as to compel invocation of the exclusionary rule, [Whitfield] waived his Fourth Amendment right.”11 But even under such a waiver, there must still be “some conduct reasonably suggestive of criminal activity to ‘trigger’ the search.”12 This trigger can be prompted by “a good-faith suspicion, arising from routine police investigative work.”13 In sum, the general rule is that

the police can search a probationer, who is subject to such a special condition of probation, at any time, day or night, and with or without a warrant, provided there exists a reasonable or good-faith suspicion for [the] search, that is, the police must not merely be acting in bad faith or in an arbitrary and capricious manner (such as searching to harass probationer). 14

On appeal, Whitfield contends that the trial court erred by focusing on whether the officers who searched his home acted “in bad faith or in an arbitrary and capricious manner,” while glossing over the requirement that the search must be based on a reasonable suspicion that he was violating his probation.15 But to the contrary, the trial court's order merely included the relevant legal authority set forth supra, which defines “a reasonable or good-faith suspicion for search” as meaning that “the police must not merely be acting in bad faith or in an arbitrary and capricious manner (such as searching to harass probationer),”16 and then summarily found that Whitfield failed to show that the search was “arbitrary, capricious, or intended to harass.” After setting forth the applicable precedent, the trial court expressly found that “the State had reasonable suspicion to suspect criminal activity or violations of probation,” and it thoroughly detailed the evidence upon which it relied in making this finding.

Specifically, the trial court found that Whitfield's March 2015 drug exam was proof that he violated the terms of his probation by using an illicit substance. Although Whitfield proposed a categorical rule that a subsequent negative drug screen (such as the one he had in April 2015) “eviscerates” any reasonable suspicion of drug use based on an earlier positive drug screen, the trial court rejected that proposition, finding that “reasonable suspicion is more flexible and less exacting” than Whitfield contended.17 Regardless, the trial court did not rely solely on Whitfield's positive drug screen in finding that the search of his residence was authorized. Indeed, the trial court also credited the probation officer's testimony that, based on his training, Whitfield's reports just days before the search that he had been self testing and counting the days since he last used drugs were “red flags” indicating that he was trying to avoid detection of his drug use. While Whitfield disagrees with the foregoing testimony, we must defer to the trial court's credibility determinations.18 Finally, it is worth noting that “input of the probation officer before a probationary search is a factor to consider in determining whether the search was reasonable and in good faith.”19 And here, not only did the probation officer provide input to the other officers who conducted the search, he actually requested the search based on his concerns—which were, in turn, based on his training—that Whitfield was using drugs and attempting to avoid detection.20

In sum, keeping in mind that “the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous, and we must construe the evidence most favorably to the upholding of the trial court's findings and judgment,”21 we conclude that, under the totality of the circumstances, the trial court did not err in determining that the law-enforcement officers who searched Whitfield's home had reasonable suspicion to suspect criminal activity or violations of probation.22

For all of the foregoing reasons, we affirm the trial court's denial of Whitfield's motion to suppress evidence.

Judgment affirmed.

DILLARD, Judge.

PHIPPS, P.J., and PETERSON, J., concur.

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