Rocco v. State , 267 Ga. App. 900 ( 2004 )

PHIPPS, Judge,

dissenting.

Although I agree with much of what is said in the majority opinion, I disagree with the majority’s ultimate conclusion that a warrantless search in this case was reasonable.

I agree with the majority that conditioning grant of bail on a waiver of Fourth Amendment rights is not unreasonable where, as here, the person admitted to bail has been charged with unlawful possession of controlled substances. I also agree that a search conducted pursuant to a waiver of Fourth Amendment rights in a bail order should be governed by the same requirements as those applicable to a search conducted pursuant to a Fourth Amendment waiver in a probationary sentence. And I agree that a search conducted pursuant to a condition of probation must be triggered by some conduct reasonably suggestive of criminal activity.

In this case, however, the police conducted a warrantless search based on nothing more than a tip from an informant of unknown reliability. Such a tip does not create a reasonable suspicion of criminal activity unless the police are provided with details that they corroborate by observation.¹⁰ Here, the police failed to corroborate the tip. To find the search reasonable under these circumstances opens the door to the type of arbitrary and harassing searches we purport to condemn.

I therefore respectfully dissent.

I am authorized to state that Judge Barnes joins in this dissent.

10 See Fox v. State, 272 Ga. 163, 166 (2) (527 SE2d 847) (2000).