                              FIRST DIVISION
                              BARNES, P. J.,
                          MERCIER and BROWN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                      June 4, 2019




In the Court of Appeals of Georgia
 A19A0079. DAY v. THE STATE.

      BROWN, Judge.

      Brea Day appeals her conviction for possession of marijuana less than one

ounce. In her sole enumeration of error, Day argues that the trial court erred in

denying her motion to suppress evidence seized during a warrantless search of her

wallet. For the reasons set forth below, we affirm.

      When “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.” (Citation, footnote, and punctuation

omitted.) Whitfield v. State, 337 Ga. App. 167, 169 (786 SE2d 547) (2016). So

viewed, the evidence presented at the suppression hearing shows that Day was on
felony probation at the time of the search1 and had reported to a Georgia Department

of Community Supervision (GDCS) facility for intake and a probation appointment.

Upon entering the facility, Day was instructed to walk through a metal detector and

to place her personal belongings onto a table before undergoing a pat-down search.

The probation officer testified that probationers are required to go through this

process before meeting with probation personnel for safety reasons. Notices posted

on the walls inform those entering the facility that anything on the person is subject

to search. During the probation officer’s initial search of Day’s personal items, the

officer found “a leafy substance” inside her purse. At this point Day stated, “you

don’t want to go in there,” referring to her wallet. A subsequent search of Day’s

wallet revealed a “clear baggy” containing a green leafy substance later confirmed to

be marijuana.

      After a hearing, the trial court denied Day’s motion to suppress. In its order, the

trial court found that while Day, as a probationer, has the right to be free from

unreasonable searches and seizures, at the time of the search, Day “should not have

reasonably expected the level of privacy that she would have at home.” Instead,


      1
       It is unclear from the record whether Day agreed to a Fourth Amendment
waiver as a special condition of her probation.

                                           2
according to the trial court, Day was at a state probation office, “a place where a

person and society would reasonably expect to be subjected to a search.” And “[t]he

Fourth Amendment protects against unreasonable searches and seizures.” (Emphasis

in original.)

       “The Fourth Amendment [to the United States Constitution] proscribes all

unreasonable searches and seizures, and searches conducted without prior judicial

approval are per se unreasonable under the Fourth Amendment, subject to specifically

established and well-delineated exceptions.” (Citation omitted.) Teal v. State, 282 Ga.

319, 322-323 (2) (647 SE2d 15) (2007). “[C]ases . . . sustain[ing] limited searches of

persons seeking to enter sensitive facilities recognize an exception to the general

requirement of the [F]ourth [A]mendment that searches are proper only if conducted

pursuant to a lawful warrant.[Cits.]” McMorris v. Alioto, 567 F2d 897, 899 (9th Cir.

1978). Such “limited searches at sensitive facilities” fall under the category of

“administrative searches,” or the “special needs” exception to the Fourth

Amendment’s warrant and probable cause requirements. See id. See also Skinner v.

R. Labor Execs. Assn., 489 U. S. 602, 620 (III) (A) (109 SCt 1402, 103 LE2d 639)

(1989) (recognizing exception to warrant and probable cause requirements “when

special needs, beyond the normal need for law enforcement, make the warrant and

                                          3
probable-cause requirement impracticable”) (citations and punctuation omitted).

Airports, governmental buildings, and detention facilities have all been considered

“sensitive facilities” in this context. See United States v. Prevo, 435 F3d 1343, 1345-

1349 (11th Cir. 2006) (work release center/detention facility); McMorris, 567 F2d at

899 (city hall and courthouse); McSweeney v. State, 183 Ga. App. 1, 2-3 (1) (358

SE2d 465) (1987) (airport). “When faced with such special needs, we have not

hesitated to balance the governmental and privacy interests to assess the practicality

of the warrant and probable-cause requirements in the particular context.” Skinner,

489 U. S. at 619 (III) (A). This “reasonableness inquiry is a balancing test that weighs

the need for the search, including its likely effectiveness in averting potential harm

to the public, against the degree and nature of the intrusion into a citizen’s privacy

interests.” (Citations omitted.) Prevo, 435 F3d at 1345.

      It is well-settled that government has a compelling interest in protecting the

public and its employees inside government buildings. See United States v. Lamson,

993 F2d 1540 (II) (B) (4th Cir. 1993) (federal courthouse); Klarfeld v. United States,

944 F2d 583, 586 (9th Cir. 1991) (courthouse); McMorris, 567 F2d at 900. The

Supreme Court of the Unites States has “reiterate[d] . . . that where the risk to public

safety is substantial and real, blanket suspicionless searches calibrated to the risk may

                                           4
rank as ‘reasonable’— for example, searches now routine at airports and at entrances

to courts and other official buildings.” (Citation omitted.) Chandler v. Miller, 520 U.

S. 305, 323 (III) (117 SCt 1295, 137 LE2d 513) (1997). As the probation officer

testified during the suppression hearing, each person arriving for a probation or

parole appointment is required to walk through a metal detector, empty his or her

pockets, place his or her personal belongings on a table, and undergo a pat-down

search. This is standard procedure. This protocol serves the purpose of keeping

contraband such as “weapons, box cutter[s], matches” out of the facility and

protecting everyone involved from a real danger of violence. We conclude that this

is a legitimate governmental interest justifying the use of the limited search procedure

in this case, especially given the nature of this facility.2

      While we recognize the government’s legitimate interest at stake, we must also

consider the privacy interest of the person who enters the governmental facility.

Courts have found that by presenting oneself at a sensitive facility’s security

checkpoint, one implicitly consents to the screening and search of one’s belongings.

See United States v. Herzbrun, 723 F2d 773, 776 (II) (A) (11th Cir. 1984) (“those

      2
        The Georgia Department of Community Supervision is a state agency tasked
with supervising convicted offenders on parole and felony probation. See OCGA §
42-3-3.

                                            5
presenting themselves at a security checkpoint thereby consent automatically to a

search, and may not revoke that consent if the authorities elect to conduct a search”);

McMorris, 567 F2d at 901 (person entering courthouse consents to limited regulatory

search, but free to leave); McSweeney, 183 Ga. App. at 3 (1) (passenger who presents

himself to an airport security checkpoint has consented to the screening of his

luggage and his person). This is especially true where multiple signs clearly warn the

person of this trade-off. See Prevo, 435 F3d at 1348. Thus, the amount of privacy Day

could reasonably expect upon entering the GDCS facility is diminished by the

presence of signs warning those reporting for a parole or probation appointment that

they and their personal belongings are subject to search. See id.

      Moreover, Day was not just an ordinary citizen entering the facility — she was

a convicted offender reporting to a probation appointment. While the “right to be free

from unreasonable searches and seizures extends to all persons, including

probationers[,] [a] defendant’s status as a probationer . . . is a factor to be considered

in determining whether a search and seizure by a probation officer is unreasonable.”

Hunter v. State, 139 Ga. App. 676, 678 (2) (229 SE2d 505) (1976). In that vein, the

Supreme Court of Georgia has previously found that “the supervision of probationers

that is necessary to operate a probation system presents special needs that may justify

                                            6
departures from the usual warrant and probable-cause requirements.” (Citations,

footnote, and punctuation omitted.) Whitfield, 337 Ga. App. at 170, citing Fox v.

State, 272 Ga. 163, 165 (2) (527 SE2d 847) (2000). See also Hunter, 139 Ga. App.

at 678 (2). While the State has failed to show that Day agreed to a limitation on her

Fourth Amendment rights as part of her probation, her probationary status alone is yet

another factor supporting the conclusion that Day had a diminished expectation of

privacy in the contents of her purse when she arrived at the GDCS facility for an

appointment with her probation officer. Under these circumstances, the search of

Day’s purse and wallet was not unreasonable and did not violate the Fourth




                                          7
Amendment.3 Accordingly, the trial court did not err in denying her motion to

suppress.

      Judgment affirmed. Mercier, J., concurs. Barnes, P.J., concurs specially.




      3
         We agree with the special concurrence’s assertion that “a search justified
under the ‘administrative search’ exception to the Fourth Amendment is not limitless
and must nonetheless be constitutionally reasonable.” As explained, supra, we utilize
the balancing test in administrative search cases to determine the reasonableness of
the search. We, however, cannot agree with the special concurrence’s alternative
analysis. The special concurrence appears to state that Day’s implicit consent did not
extend to the contents of her wallet. However, the administrative search exception we
apply in this case is premised on Day’s implied consent to search upon entering the
building. Thus, to the extent the special concurrence concludes that Day’s implicit
consent did not extend to the contents of her wallet, the concurrence also necessarily
concludes that the administrative search exception does not apply to the search of the
wallet. If this is so, then the special concurrence essentially argues that “reasonable
suspicion of criminal wrongdoing” alone justifies a warrantless search of the wallet.
Such reasoning is inconsistent with well-established Fourth Amendment law,
specifically that “no amount of probable cause [— much less reasonable suspicion —]
can justify a warrantless search absent an exception to the warrant requirement.”
(Footnote omitted.) Caffee v. State, 303 Ga. 557, 562 (2) (a) (814 SE2d 386) (2018),
citing Coolidge v. New Hampshire, 403 U. S. 443, 468 (91 SCt 2022, 29 LE2d 564)
(1971).

                                          8
 A19A0079. DAY v. THE STATE.

      BARNES, Presiding Judge, concurring specially.

      Although I concur with the result reached by the majority in this opinion and

agree that the trial court did not err in denying appellant’s motion to suppress, I write

separately only to emphasize that a search justified under the “administrative search”

exception to the Fourth Amendment is not limitless and must nonetheless be

constitutionally reasonable. “The Fourth Amendment permits the warrantless search

of ‘closely regulated’ businesses; ‘special needs’ cases such as schools, employment,

and probation; and ‘checkpoint’ searches such as airport screenings under the

administrative search doctrine.” Corbett v. TSA, 767 F3d 1171, 1180 (11th Cir. 2014).
However, a limited warrantless search of a person under this exception is only lawful

if “conducted as part of a general regulatory scheme in furtherance of an

administrative purpose, rather than as part of a criminal investigation to secure

evidence of crime.” United States v. Davis, 482 F2d 893, 908 (9th Cir. 1973). And,

“to pass constitutional muster, an administrative search must meet the Fourth

Amendment’s standard of reasonableness.” Id. at 910. To that end, “[t]he search must

be limited and no more intrusive than necessary to protect against the danger to be

avoided, but nevertheless reasonably effective to discover the materials sought.”

McMorris v. Alioto, 567 F2d 897, 899 (9th Cir. 1978). In Griffin v. Wisconsin, 483

U.S. 868, 874 (97 LE2d 709, 107 SCt 3164) (1987), the Court found that “special

needs” associated with the probation and parole system may “justify departures from

the usual warrant and probable-cause requirements,” but also held that “the

permissible impingement on a [probationer’s] privacy is not unlimited.” Id. at 875.

      However, I agree that under the facts of this case the warrantless search of the

appellant’s wallet was justified because the probation officer saw “a leafy substance

in the personal items that [the appellant] had placed on the wooden countertop,” and,

the appellant, then, referencing her wallet that was located nearby, told the officer

“you don’t want to go in there.” Accordingly, in this case, I would find that the


                                          2
administrative exception in conjunction with reasonable suspicion of criminal

wrongdoing justified the more extensive search of the appellant’s wallet.1 See

Chandler v. Miller, 520 U.S. 305, 323 (117 SCt 1295, 137 LE2d 513) (1997) (“where

the risk to public safety is substantial and real, blanket suspicionless searches

calibrated to the risk may rank as “reasonable” for example, searches now routine at

airports and at entrances to courts and other official buildings. But where . . . public

safety is not genuinely in jeopardy, the Fourth Amendment precludes the

suspicionless search, no matter how conveniently arranged.”) (citation and

punctuation omitted).




      1
        As pointed out by the majority, there is no evidence in the record that Day
waived her Fourth Amendment protections as a condition of probation, however even
in those circumstances we have held that a search pursuant to a special condition of
probation must be prompted by reasonable suspicion of criminal activity. Rocco v.
State, 267 Ga. App. 900, 903 (2) (601 SE2d 189) (2004).

                                           3
