This case, which we granted certiorari to the Court of Appeals to review,1 raises two questions: One concerns the validity of a special condition of probation, pursuant to which appellant David Fox purported to waive his Fourth Amendment rights. The second issue is whether, if that waiver is invalid, it was nevertheless reasonable under the Fourth Amendment for a police officer to conduct a warrantless search of Fox’s home.2 We conclude that the waiver of Fox’s Fourth Amendment rights was invalid because it was not properly obtained as part of the plea bargaining process, and we also conclude that the police officer’s warrantless search of Fox’s home violated the Fourth Amendment. Accordingly, we reverse the Court of Appeals’s judgment that the search of Fox’s home was permissible.
The present case stems from charges filed against Fox in Cherokee County for possession of marijuana with intent to distribute and possession of a firearm by a convicted felon. During his trial, Fox moved to suppress evidence of the drugs and weapon found during a search of his residence. At the time of the search, Fox was on probation after pleading guilty to a burglary charge in Bartow County. The legality of the search turns, at least in part, upon Fox’s status as a probationer and upon a waiver of his Fourth Amendment rights that was a special condition of probation in the Bartow County case. The record in this case, which includes a copy of the transcript of the plea hearing in Bartow County, shows that the Bartow County trial court sentenced Fox to ten years probation, but that it did not mention any condition or special condition of probation during the plea process. Instead, the record shows that after the court pronounced its ten year sentence at the end of the plea colloquy, Fox was taken to a probation office where a probation officer informed him of the conditions of probation. Although Fox had an attorney representing him, the attorney was not present when the probation officer informed Fox of the conditions of probation. A special condition of probation was that the “probationer shall submit to a search of his/her person, houses, papers and/or effects as those terms of the Fourth Amendment of the United States Constitution are defined by the Court, any time of the day or night, with or without a search warrant whenever requested to do so by a probation supervisor or any law enforcement officer.” The probation officer read this provision to Fox, and told Fox that this was a condition of his probation. Fox testified at the hearing on his motion to suppress that he did not know whether he had a right to object to the waiver. Fox signed the sheet containing the list of conditions and special conditions of probation. The form signed by Fox was attached to the written sentence signed by the trial court.
