Tuesday 10th
February, 1998.
Lemar Jamie Anderson, s/k/a Lamar Jamie Anderson, Appellant,
against Record No. 2145-96-1 Circuit Court Nos. CR95-3728 and CR95-3886
Commonwealth of Virginia, Appellee.
Upon a Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Baker, Benton, Coleman, Willis, Elder, Bray, Annunziata, Overton and Bumgardner
James Amery Thurman (Thurman & Thurman, on brief), for appellant.
Michael T. Judge, Assistant Attorney General (Richard Cullen, Attorney General; Margaret Ann B. Walker, Assistant Attorney General, on brief), for appellee.
A divided panel of this Court affirmed Lemar Jamie
Anderson's convictions of possession of cocaine, possession of a
firearm after having been convicted of a felony, and possession of
marijuana. Anderson v. Commonwealth, 25 Va. App. 565, 490 S.E.2d 274
(1997). On Anderson's motion, we stayed the mandate of that decision
and granted a rehearing en banc. Upon rehearing en banc, the stay of
this Court's September 16, 1997 mandate is lifted, and we affirm the
judgment of the trial court for the reasons set forth in the majority
panel opinion.
Chief Judge Fitzpatrick and Judges Benton, Coleman and Elder
dissent for the reasons set forth in the panel dissent. Although Judge Benton concurs in substantial part with the dissent, he would
further hold that the portion of the conviction order, which requires
Anderson to "waive his Fourth Amendment right against unreasonable
searches and seizures for a period of one year," is void as being
violative of the Constitution of the United States. See U.S. Const.
amend. IV (protecting "[t]he right of the people to be secure against
. . . unreasonable searches and seizures"); amend. XIV.
It is ordered that the trial court allow counsel for the
appellant an additional fee of $200 for services rendered the
appellant on the rehearing portion of this appeal, in addition to
counsel's costs and necessary direct out-of-pocket expenses. This
amount shall be added to the costs due the Commonwealth in the
September 16, 1997 mandate. This order shall be published and certified to the trial
court.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
-2- Tuesday 14th
October, 1997.
Lemar Jamie Anderson, s/k/a Lamar Jamie Anderson, Appellant, against Record No. 2145-96-1 Circuit Court Nos. CR95-3728 and CR95-3886
Upon a Petition for Rehearing En Banc
Before the Full Court
On September 24, 1997 came the appellant, by court-appointed
counsel, and filed a petition praying that the Court set aside the
judgment rendered herein on September 16, 1997, and grant a rehearing
en banc thereof.
On consideration whereof, the petition for rehearing en banc
is granted, the mandate entered herein on September 16, 1997 is stayed
pending the decision of the Court en banc, and the appeal is
reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35.
It is further ordered that the appellant shall file with the clerk of
this Court ten additional copies of the appendix previously filed in
this case.
-3- A Copy,
-4- COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Senior Judge Hodges Argued at Norfolk, Virginia
LEMAR JAMIE ANDERSON, S/K/A LAMAR JAMIE ANDERSON OPINION BY v. Record No. 2145-96-1 JUDGE JERE M. H. WILLIS, JR. SEPTEMBER 16, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH A. Bonwill Shockley, Judge James Amery Thurman (Thurman & Thurman, on brief), for appellant.
Margaret Ann B. Walker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
On appeal, Lemar Jamie Anderson contends that the trial
court erred in denying his motion to suppress evidence seized
from his person. He argues that his prior waiver of his Fourth
Amendment right against unreasonable searches and seizures could
not validate an otherwise invalid search. We disagree and affirm
the judgment of the trial court.
I. FACTS
On January 9, 1995, pursuant to a written plea agreement,
Anderson pled guilty to feloniously possessing a firearm on
school property. Under the terms of the plea agreement, Anderson
agreed to waive "his Fourth Amendment right against unreasonable
searches and seizures" for one year. Following a colloquy in
-5- which Anderson acknowledged that he understood the agreement, the
sentencing judge found that Anderson's plea was entered freely
and voluntarily. Prior to the trial court's acceptance of the
plea agreement, the prosecutor stated: [W]e've given him every incentive in the world to remain of good behavior. He will know as he's out and about that he can be stopped at any time and be checked to make sure he is not carrying drugs or weapons or anything else.
At the sentencing hearing, the Commonwealth introduced
certified copies of Anderson's two prior misdemeanor convictions
for possession of marijuana with intent to distribute. The
stated purpose for offering Anderson's prior record was to
demonstrate his history of recidivism and drug use and to explain
the inclusion of the waiver provision. In accordance with the plea agreement, the January, 1995
sentencing order provided, in pertinent part:
[4] That the defendant shall waive his Fourth Amendment right against unreasonable searches and seizures for a term of one year from the date of sentencing, to-wit: he shall submit his person, place of residence and property to searches and seizures at any time of the day or night by any law enforcement officer with or without a warrant.
On June 21, 1995, two City of Virginia Beach police officers
working as private security guards saw Anderson and two other
individuals alight from a van, "being very loud in public." The
officers approached the men and seized from Anderson: 0.07 grams
of cocaine, which he dropped on the ground; a .357 magnum firearm
-6- in his backpack; and 0.18 ounces of marijuana in a baggie in his
backpack. The circumstances did not support a warrantless search
of Anderson's person.
Anderson was indicted for possession of cocaine, possession
of a firearm after having been convicted of a felony, possession
of a controlled substance while in possession of a firearm, and
possession of marijuana. He moved pre-trial to suppress the
evidence seized from his person, arguing that his prior waiver of
his Fourth Amendment rights was invalid. The trial court ruled
that the waiver was valid and denied the motion to suppress. II. OTHER JURISDICTIONS
Anderson contends that his waiver of his Fourth Amendment
rights as a condition of the January, 1995 plea agreement did not
validate the search of his person. This issue is one of first
impression in Virginia. However, other jurisdictions have
addressed similar questions regarding waiver of Fourth Amendment
rights as a condition of probation or of sentence suspension.
See generally Phillip E. Hassman, Annotation, Validity of
Requirement That as Condition of Probation, Defendant Submit to
Warrantless Searches, 79 A.L.R.3d 1083 (1977).
A.
In Tamez v. State, 534 S.W.2d 686 (Tex. Ct. Crim. App.
1976), the Texas Court of Criminal Appeals struck down a
probationary condition requiring the defendant to submit his
person, residence or vehicle to search by any peace officer at
-7- any time. Acknowledging that probationary conditions may be
upheld if reasonably related to rehabilitation of the accused or
protection of the public, id. at 691, the Texas court invalidated
the Fourth Amendment waiver because it found: (1) the choice of
accepting the condition or of going to prison rendered the
defendant's decision coerced and involuntary; and (2) the waiver
was too broad and did not serve the ends of probation. Id. at
692. Similarly other jurisdictions have struck down so-called
"blanket" provisions because of their overbreadth. See United
States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975) (en
banc) (search provision too broad under federal statute); Grubbs
v. State, 373 So.2d 905 (Fla. 1979) (probation condition imposed
by trial judge allowing warrantless search at any time by law
enforcement official too broad); Kirkpatrick v. State, 412 So.2d
903, 905 (Fla. Dist. Ct. App. 1982) (drug offender's probation
search condition "improper and should be stricken"); State v.
Fields, 686 P.2d 1379 (Haw. 1984) (probation condition permitting
warrantless search for drugs at any time too broad absent
reasonable suspicion). Some courts have held that the waiver of
Fourth Amendment rights in return for probation or parole is
legally coercive, thereby negating voluntary consent. See United
States ex rel. Coleman v. Smith, 395 F.Supp. 1155, 1157 (W.D.N.Y.
1975); People v. Peterson, 233 N.W.2d 250, 255 (Mich. Ct. App.
1975). But see People v. Richards, 256 N.W.2d 793, 795 (Mich.
Ct. App. 1977).
-8- B.
Other jurisdictions have taken a different view. In People
v. Mason, 488 P.2d 630 (Cal. 1971), the California Supreme Court
upheld a probation condition that required a narcotics offender
to "'submit his person, place of residence, vehicle, to search
and seizure at any time of the day or night, with or without a
search warrant, whenever requested to do so by the Probation
Officer or any law enforcement officer.'" Id. at 631. The
California court ruled that this condition had been validly
imposed, was "reasonably related to the probationer's prior
criminal conduct[,] and [was] aimed at deterring or discovering
subsequent criminal offenses." Id. at 632. Moreover, "when [a]
defendant in order to obtain probation specifically agreed to
permit at any time a warrantless search of his person, car and
house, he voluntarily waived whatever claim of privacy he might
otherwise have had." Id. at 634. See Owens v. Kelley, 681 F.2d
1362 (11th Cir. 1982) (upholding condition providing for
warrantless searches by law enforcement or probation officers to
extent conducted for probationary purposes); State v. Montgomery, 566 P.2d 1329 (Ariz. 1977) (upholding condition that a convicted
burglar submit to warrantless searches at any time by law
enforcement or probation officers); In re Marcellus L., 279 Cal.
Rptr. 901 (Cal. Ct. App. 1991) (upholding warrantless search by
police officer who lacked prior knowledge of probation search
condition); State v. Josephson, 867 P.2d 993 (Idaho Ct. App.
-9- 1993) (holding that defendant voluntarily consented to search
condition); Allen v. State, 369 S.E.2d 909 (Ga. 1988) (plea
bargain agreement to waive Fourth Amendment protection valid);
Himmage v. State, 496 P.2d 763 (Nev. 1972); State v. Perbix, 331
N.W.2d 14 (N.D. 1983).
Some jurisdictions that permit a condition of probation or
parole to circumscribe a convicted criminal's Fourth Amendment
protection from governmental intrusion have limited the scope of
the warrantless search condition. Some courts have restricted 1 who may authorize the search and the grounds upon which warrantless searches may be made. 2 Some courts require a
reasonable nexus between the warrantless search provision and the
offense for which the offender was convicted. 3 1 See, e.g., Roman v. State, 570 P.2d 1235, 1242 n.20 (Alaska 1977) ("correctional authorities"); State v. Bollinger, 405 A.2d 432 (N.J. Super. Ct. Law Div. 1979) (probation officers); State v. Age, 590 P.2d 759, 763-64 (Or. Ct. App. 1979) (under direction and control of probation officer); State v. Cummings, 262 N.W.2d 56, 61 (S.D. 1978) (noting that search condition required prior consent from probation officer). 2 See, e.g., Consuelo-Gonzalez, 521 F.2d at 266 (reasonable cause); Roman, 570 P.2d at 1241, 1243 (reasonable cause); State v. Burke, 766 P.2d 254, 256 (Mont. 1988) ("reasonable grounds"); Himmage, 496 P.2d at 764-65 (reasonable cause); State v. Velasquez, 672 P.2d 1254, 1260 (Utah 1983) ("reasonable grounds"). 3 See, e.g., United States v. Schoenrock, 868 F.2d 289 (8th Cir. 1989) (probation search condition of drug offender for alcohol and controlled substances); United States v. Sharp, 931 F.2d 1310 (8th Cir. 1991) (search condition of supervised release of drug offender for controlled substances and alcohol); Roman, 570 P.2d at 1242-43 (reasonably related to rehabilitation and crime for which offender was convicted); People v. Hellenthal, 465 N.W.2d 329, 330 (Mich. Ct. App. 1990) (reasonably tailored to rehabilitation); State v. Fetterhoff, 739 S.W.2d 573 (Mo. Ct.
-10- In In re: Tyrell J., 876 P.2d 519 (Cal. 1994), a juvenile
was searched by a police officer who was unaware that the
juvenile had waived his Fourth Amendment rights as a condition of
probation. Despite the lack of probable cause, the California
Supreme Court held that "a juvenile probationer subject to a
valid search condition does not have a reasonable expectation of
privacy over his person or property." The court noted that: In this case, [the defendant] was subject to a valid search condition, directly imposed on him by the juvenile court in a prior matter. We presume that he was aware of that limitation on his freedom, and that any police officer, probation officer, or school official could at any time stop him on the street, at school, or even enter his home, and ask that he submit to a warrantless search. There is no indication the minor was led to believe that only police officers who were aware of the condition would validly execute it. The minor certainly could not reasonably have believed [the police officer] would not search him, for he did not know whether [the officer] was aware of the search condition. Thus, any expectation the minor may have had concerning the privacy of his bag of marijuana was manifestly unreasonable.
Id. at 529-30 (footnote omitted).
(..continued) App. 1987) (requiring drunk driver to submit to blood alcohol test upon request of any law enforcement officer); State v. Morgan, 295 N.W.2d 285 (Neb. 1980) (requiring drug offender to submit to search at any time by any law enforcement officer, with or without cause, for controlled substances); State v. Bollinger, 405 A.2d 432 (N.J. Super. Ct. Law Div. 1979) (search of drug offender for controlled substances at a reasonable time and in a reasonable manner); State v. Age, 590 P.2d 759, 763-64 (Or. Ct. App. 1979) (probation condition must be reasonably related to offense for which convicted or needs of effective probation); State v. Moses, 618 A.2d 478, 484 (Vt. 1992) (condition must meet probation needs).
-11- Anderson argues that the California cases are inapposite
because they concern conditions of probation, whereas his waiver
was a condition of a suspended sentence. The law of Virginia
distinguishes the suspension of a sentence from the imposition of
probation. See Grant v. Commonwealth, 223 Va. 680, 292 S.E.2d
348 (1982). Code §§ 19.2-303, 19.2-304. However, the conditions
imposed in probation and those imposed in the suspension of
sentences need not be analyzed in different contexts. The common
objective of such conditions is to protect society and to promote
rehabilitation of the convict. Both probation and the suspension
of a sentence involve the trial court's discretionary, and
conditional, release of a convict from the service of a sentence
within the penal system. In State v. Mitchell, 207 S.E.2d 263 (N.C. App. 1974), the
Court of Appeals of North Carolina, approving a Fourth Amendment
waiver as a condition of a suspended sentence, stated:
Rights guaranteed by the Fourth Amendment may be waived, Zap v. United States, 328 U.S. 624 [] (1946), and the voluntary consent to warrantless search of one's premises will render competent evidence obtained by the search. [] We see no sound reason why such waiver and consent may not effectively be given by agreeing thereto as one of the conditions of a suspended sentence. This should especially be true, where, as here, such condition is clearly designed to facilitate the State's supervision of the probationer's rehabilitation.
Id. at 264-65 (citation omitted). 4 4 Subsequently, the North Carolina legislature enacted a
-12- III. VALIDITY OF THE WAIVER
Our view of the Fourth Amendment and of applicable public
policy leads us to conclude that Anderson's waiver was valid. In
(..continued) statute that "forbids requiring as a part of a probationary sentence the condition that a defendant consent to a warrantless search by anyone other than a probation officer." State v. Moore, 247 S.E.2d 250, 251 (N.C. App. 1978). See N.C. Gen. Stat. § 15A-1343(b1)(7).
-13- reaching that conclusion, we have considered the contrary
arguments invoked by other jurisdictions and argued by Anderson.
A. COERCIVENESS
Anderson argues that a waiver given under threat of criminal
punishment results from coercion. We find this argument
unpersuasive. The prospect of punishment confronted Anderson not
for the purpose of inducing him to give the waiver, but rather as
the consequence of the crime for which he was convicted.
Furthermore, the waiver was not imposed upon Anderson by the
sentencing court. It was an element of his voluntary plea
agreement, and as such, was proposed by him to the sentencing
court. Anderson was a moving party. He sought the imposition of
the waiver. To conclude that Anderson's decision to petition for
a suspended sentence conditioned upon the search provision was
coerced would necessarily invalidate all conditions of plea
agreements. See State v. Josephson, 867 P.2d 993, 996 (Idaho Ct.
App. 1993); State v. Morgan, 295 N.W.2d 285, 288-89 (Neb. 1980).
An offender's selection between two sanctions resulting from his
own wrongdoing constitutes choice, not coercion.
B. OVERBREADTH
Anderson argues that the waiver was overbroad, both in scope
and in duration. We disagree. The scope of the waiver was
necessary to its effectiveness. Its purpose was to ensure
Anderson's good conduct. His vulnerability to search was an
inducement to his abstention from possession of contraband and
-14- from illegal possession of weapons.
Most waivers are prospective. Usually, a waiver is given
seconds or minutes prior to the authorized search. However, on
occasion, a waiver may precede the search thereby authorized by
hours or days. See Zap v. United States, 328 U.S. 624, 628
(1946) (upholding prospective contractual waiver permitting
government inspection of business records). We perceive no
conceptual objection to yet further prolongation of a waiver. In
this case, Anderson, the moving party, set the duration of his
waiver. We see no reason to repudiate in retrospect the
agreement that he proposed and voluntarily undertook. See
Mitchell, 207 S.E.2d at 264-65.
C. REASONABLENESS
Upon a defendant's criminal conviction, a trial judge "may
suspend imposition of sentence or suspend the sentence in whole
or part and in addition may place the accused on probation under
such conditions as the court shall determine . . . ." Code
§ 19.2-303. "The only limitation placed upon the discretion of
the trial court in its determination of what conditions are to be
imposed is that a condition be 'reasonable' . . . 'having due
regard to the nature of the offense, the background of the
offender and the surrounding circumstances.'" Nuckoles v.
Commonwealth, 12 Va. App. 1083, 1086, 407 S.E.2d 355, 356 (1991)
(quoting Loving v. Commonwealth, 206 Va. 924, 930, 147 S.E.2d 78,
83 (1966), rev'd on other grounds, 388 U.S. 1 (1967)).
-15- The Fourth Amendment forbids unreasonable searches and
seizures. Waiver is a long accepted circumstance that may render
a search reasonable. Anderson had a history of illegal firearm
and drug possession. The purpose of the waiver was to ensure
that he would cease such unlawful conduct. That purpose sought
to promote public order and safety, to effect Anderson's
rehabilitation, and to justify sparing him punishment and
permitting him to remain at liberty. We find all these
objectives to be reasonable. D. PUBLIC POLICY
The public policy of the Commonwealth seeks to avoid the
unnecessary imposition of punishment, to promote public order and
safety, and to effect the rehabilitation of malefactors. See
Singleton v. Commonwealth, 11 Va. App. 575, 578, 400 S.E.2d 205,
207 (1991); Deal v. Commonwealth, 15 Va. App. 157, 160, 421
S.E.2d 897, 899 (1992). The waiver proposed by Anderson and
incorporated into his January, 1995 sentence served those
purposes.
IV. THE NATURE OF THE WAIVER
Anderson argues that at his sentencing in January, 1995, he
did not waive his Fourth Amendment rights, but simply agreed to
give such a waiver in the future should a search of his person,
place of residence or property be sought. He argues that the
language in his sentencing order "[t]hat the defendant shall
waive his Fourth Amendment right" denotes a requirement of future
-16- action on his part, rather than a recital of a present waiver.
This is not the interpretation that the trial court adopted, and
we think it unreasonable and unlikely that the parties intended
such a meaning at the January, 1995 sentencing. We construe the
words "shall waive" to state an imperative, not to refer to a
future act. The construction adopted by the trial court is
supported by the record of the January, 1995 sentencing
proceedings. Anderson argues that because he did not, in January, 1995,
give an ongoing waiver, but rather merely agreed to give a future
waiver, his refusal to submit to a search on June 21, 1995, could
amount to no more than a violation of the conditions of his
suspended sentence, and could not validate an otherwise
unreasonable warrantless search of his person. Because of the
view that we take of the nature of the waiver, we reject this
argument.
V. POLICE OFFICERS' KNOWLEDGE
Finally, Anderson contends that the police officers' lack of
knowledge of his waiver prevents the officers' reliance upon the
waiver to justify an otherwise unconstitutional search. This
argument misses the point. The conduct of the officers is not at
issue. 5 Absent a legitimate expectation of privacy, there can be 5 In addition, the record does not reveal any harassing or intimidating conduct by the officers. See United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 1975) (en banc). To the contrary, the officers came upon three "very loud" individuals alighting from a van, and investigated the situation.
-17- no violation of the Fourth Amendment.
In determining whether a criminal defendant enjoys a
reasonable expectation of privacy in the object to be searched,
we consider whether he has exhibited an expectation of privacy in
the object and whether that expectation is one that "society is
prepared to recognize as reasonable." Katz v. United States, 389
U.S. 347, 361 (1967) (Harlan, J., concurring). See Wells v.
Commonwealth, 6 Va. App. 541, 549, 371 S.E.2d 19, 23 (1988).
Admittedly, Anderson exhibited a subjective expectation of
privacy over the controlled substances and the handgun in his
backpack. However, he had divested himself of the right to such
an expectation when he knowingly and voluntarily waived his
Fourth Amendment right to be free from unreasonable searches and
seizures. Because Anderson was subject to a valid search
condition, he could claim no legitimate expectation of privacy.
The judgment of the trial court is affirmed. Affirmed.
-18- Coleman, J., concurring in part, and dissenting in part.
I concur and join in Part IV of the majority opinion
rejecting the defendant's claim that, under the terms of the plea
agreement, he did not grant a present waiver but "simply agreed
to give such a waiver in the future." As to the validity of that
waiver provision as construed by the majority, I find it
unnecessary to address that question because, in my view, the
scope of the defendant's waiver in this case was limited to
allowing police officers, including the defendant's probation
officer, to conduct reasonable searches without obtaining a
warrant to search the defendant's person, residence, vehicle, and
other places where he might have a protected privacy interest in
order to supervise his probation. The search undertaken in this
case was clearly unrelated to the supervision of defendant's
probation, as evidenced by the fact that the officer was unaware
of the defendant's status and the waiver he had executed. The purpose of the waiver of the reasonableness requirement
was to enable law enforcement officers or those persons
supervising the defendant's probation to search him or his
protected areas of privacy in order to assure compliance with the
terms and conditions of his probation, which required that he not
use or possess drugs and that he not violate the law. The waiver
did not constitute, in my opinion, a carte blanche forfeiture by
the defendant of his Fourth Amendment rights so as to legitimize
every search of his person or possessions. Thus, I would hold
-19- that the police officers' warrantless search of the defendant
conducted without probable cause or without his consent and
without knowledge of or pursuant to the waiver provision was
unreasonable and violated the defendant's protection of the
Fourth Amendment. Accordingly, the cocaine, marijuana, and
firearm were illegally seized and should have been suppressed
based upon the exclusionary rule set down in Mapp v. Ohio, 367
U.S. 643 (1961). 6 The majority, relying upon the California case of In re:
Tyrell J., 876 P.2d 519 (Cal. 1994), and the North Carolina case
of State v. Mitchell, 207 S.E.2d 263 (N.C. App. 1974), the latter
having been overruled by statute, necessarily holds that the
officers' otherwise illegal search of the defendant was
reasonable because, in the waiver, the defendant had forfeited
his reasonable expectation of privacy, regardless of whether the
officer knew of or was conducting the search pursuant to the
defendant's waiver. I disagree with that interpretation of the
waiver and disagree with the majority's assertion that "[t]he
conduct of the officers is not at issue." In order for police
officers to lawfully seize and search a suspect without a
warrant, the officers must have either probable cause to arrest, 6 My view of the case would not necessarily preclude the illegally seized evidence from being used to revoke the defendant's probation or suspended sentences even if the search was not conducted for the purpose of supervising the defendant's probation. See Anderson v. Commonwealth, 251 Va. 437, 470 S.E.2d 862 (1996); Johnson v. Commonwealth, 21 Va. App. 172, 462 S.E.2d 907 (1995).
-20- consent, or be acting in reliance upon or pursuant to a valid
waiver. The officers possessed none of these prerequisites.
The majority's holding, which is based upon the waiver,
would validate every otherwise illegal search or seizure of the
defendant, presumably in any jurisdiction, even though no
probable cause existed to suspect the accused of criminal
activity, except, perhaps, where the officers use excessive
force. The defendant's waiver in this case was not, in my
opinion, that broad or far-reaching. The purpose of the waiver
was to allow law enforcement officers, including the defendant's
probation officer, who knew of the defendant's probationary
status, to be able to monitor the defendant's conduct and
behavior by searching him, his home, his vehicle, or personal
belongings without notice and without probable cause. The
defendant did not forfeit "whatever claim of privacy he otherwise
might have," as the majority holds. 7 A waiver for the limited
purpose we have here is, in my judgment, a legitimate and
effective enforcement tool, similar to the requirement that
probationers submit to urine screens, which enable the
authorities to assure that a probationer or convict with a
suspended sentence is adhering to the conditions of probation or
suspension. The defendant's waiver was not, in my opinion, a
forfeiture of all Fourth Amendment protections. As with consent, 7 As previously noted, because of the manner in which I construe the waiver, I do not reach the question of the constitutionality of a waiver of all Fourth Amendment rights.
-21- unless officers conduct a search within the scope of the consent
or waiver, a warrantless search without probable cause is
unreasonable. Accordingly, because the trial court erred in not
suppressing the evidence, I respectfully dissent.
-22-