The Court held that although the defendant believed initially that he could not refuse consent, the probation officer clarified with him that the officers were "asking" whether they could "come in and search."
In Cruz v. State, the Georgia Court of Appeals affirmed the denial of a defendant’s motion to suppress finding that the defendant’s consent to search his computers and devices was valid despite his erroneous belief that his probation conditions contained a Fourth Amendment waiver.
The defendant was a convicted sex offender who lived at a motel in Cherokee County with a few other people who were on the sex offender registry. The police had received information that someone at the hotel had downloaded suspected child pornography. The defendant was also currently on active probation.
Two sheriff’s deputies, along with two probation officers, knocked on the defendant’s door. When the defendant answered the door, they asked whether they could “come in and search.” The defendant replied, “sure…I don’t have that right anymore.”
The defendant was referring to his belief that the conditions of his probation contained a Fourth Amendment waiver which would eliminate the need to obtain a search warrant to search his residence or devices. This is a common probation condition – especially in sex offense cases.
However, the probation officers were aware that the conditions of the defendant’s probation actually did not contain such a waiver. Therefore, absent the defendant’s consent, the police would have been required to obtain a warrant in order to search. It is not clear from the opinion whether the police would have had enough probable cause to obtain a warrant. It is likely that they did not.
One of the probation officers then attempted to clarify the defendant’s consent by stating, “[W]ell, I’m asking you now, can the deputies come and search with us?” The defendant responded, “sure, come in” and gestured with his hand.
During the ensuing search, the police discovered an iPad, a laptop, and several DVD’s. The officers then viewed one of the DVD’s which contained images of child pornography.
The defendant was then arrested and later convicted on 20 counts of sexual exploitation of children based on the discovery of files found on his iPad.
In order for the trial court to find that the defendant’s consent was valid, the State has the burden to prove that his consent was freely and voluntarily given. Consent to search must be something more than the “mere acquiescence to authority.” The evidence must show that the defendant felt free to either refuse or consent to the search.
The Court of Appeals pointed out the fact that after the defendant expressed his erroneous belief that his probation conditions precluded him from refusing the search, one of the probation officers expressly said to him that they were “asking [him] now” whether or not they could come in and search.
The Court noted that the law does not require the police to directly tell the defendant that he has a right to refuse consent. But it can be implied from the probation officer’s re-asking for permission that the message being conveyed to him was that he could feel free to refuse.
Lastly, the defendant argued for the first time on appeal that even if he gave the officers consent to enter his motel room and “search,” the officers would have then needed separate consent to search his devices. The Court would not consider this argument on appeal since it was never made at the suppression hearing.
This does sound like a reasonable argument given that the evidence does not clearly show that the defendant understood their request to “come in and search” as extending to viewing the DVD’s and examining the iPad. However, because it was never raised in the trial court prior to the hearing, the State did not elicit any testimony from the officers on this issue. It is also possible that the trial court could have concluded that the defendant’s silence while the police viewed his DVD’s was evidence that this was within the scope of his consent.
Regardless, the Court of Appeals affirmed the trial court’s ruling on the motion to suppress and, as a result, affirmed the defendant’s conviction.
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