Barlow v. State

• Decision Date: 24 June 2014
• Docket Number: No. A14A0340.,A14A0340.
• Citation: 761 S.E.2d 120,327 Ga.App. 719
• Court: Georgia Court of Appeals
• Parties: BARLOW v. The STATE.

327 Ga.App. 719
761 S.E.2d 120

BARLOW
v.
The STATE.

No. A14A0340.

Court of Appeals of Georgia.

June 24, 2014.

[761 S.E.2d 122]

Gerald P. Privin, for Appellant.

[761 S.E.2d 123]

Jeremy Mathew Hayes, Cumming, Scott L. Ballard, Robert Wright Smith Jr., for Appellee.

BARNES, Presiding Judge.

After police officers seized drugs from a residence in Spalding County, Frederick Lamar Barlow was indicted for several drug-related offenses, including trafficking in cocaine and possession of marijuana with intent to distribute. Barlow moved to suppress the drugs seized from the residence, to reveal the identity of the confidential informant who provided information for the search warrant of the residence, and to reveal any deal reached between the State and the informant. Following an evidentiary hearing, the trial court denied the motions upon finding that Barlow had no legitimate expectation of privacy in the residence and thus lacked standing to challenge the search. Barlow subsequently was tried and convicted before a jury of multiple drug-related offenses. Barlow then filed a motion for new trial, asserting, among other things, that an inculpatory statement he made to the police was improperly admitted at trial and that his trial counsel rendered ineffective assistance. Following a hearing that Barlow was not permitted to attend, the trial court denied the motion for new trial, leading to this appeal.

On appeal, Barlow contends that the trial court erred (1) by denying his motion to suppress the evidence seized from the residence on the ground that he lacked standing; (2) by denying his motions to reveal the identity of, and any deals reached with, the confidential informant; (3) by admitting his inculpatory statement to the police without first conducting a hearing outside the presence of the jury and determining the voluntariness and admissibility of the statement; (4) by denying his claims of ineffective assistance of counsel; and (5) by refusing to permit him to attend and testify in support of his ineffective assistance claims at the hearing on his motion for new trial. For the reasons discussed below, we affirm.

1. Barlow contends that the trial court erred in denying his motion to suppress the evidence seized from the residence. The trial court, however, was authorized to find that Barlow lacked standing to challenge the search and seizure at issue.

In considering an appeal from [the] denial of a motion to suppress, this Court construes the evidence in favor of the trial court's ruling, and we review de novo the trial court's application of the law to undisputed facts. Additionally, we must defer to the trial court's determination on the credibility of witnesses, and the trial court's ruling on disputed facts must be accepted unless it is clearly erroneous. Moreover, in reviewing the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial.

(Citation and punctuation omitted.) Reid v. State, 321 Ga.App. 653, 742 S.E.2d 166 (2013).

So viewed, the evidence showed that police officers received a tip from a confidential informant that a man named “Fred” was selling drugs in the Sherbrooke Way neighborhood in Spalding County. The informant provided a physical description of “Fred” and noted that he always wore latex gloves when handling cocaine. The informant also told the officers that “Fred” drove a green Ford Thunderbird and provided them with directions to the residence in the Sherbrooke Way neighborhood where the drugs were sold.

During a police interview, the confidential informant identified Barlow in a photograph as the man he knew as “Fred.” Based on the information provided by the informant, the officers also were able to identify the Sherbrooke Way residence where the drug activity was being conducted. Tax records reflected that the residence was owned by Barlow's mother and stepfather.

At the direction of the officers, the confidential informant conducted two controlled buys of cocaine from Barlow at the Sherbrooke Way residence. Following the controlled buys, the officers applied for and obtained a search warrant for the residence. During the execution of the search warrant, the officers found 375.8 grams of marijuana and 79.38 grams of powder cocaine. A large amount of the marijuana and a set of digital

[761 S.E.2d 124]

scales were found in a utility room inside the garage; two bags of marijuana were found in two women's purses in a hall closet near the front door; and the powder cocaine, a second set of digital scales, and latex gloves were found in a hallway bathroom.¹ Officers also found a pistol in one of the bedrooms.

Barlow was not present at the residence when the officers entered to execute the search warrant. Neither were Barlow's mother and stepfather present at the residence. However, Barlow's brother was at the residence when the search occurred and was detained by the officers.

Several officers were strategically placed on roadways around the Sherbrooke Way residence to conduct surveillance as the search was being executed. They were told to be on the lookout for Barlow driving a green Ford Thunderbird. One of the officers observed Barlow driving a car matching that description on a road near the residence. The officer initiated a traffic stop after he observed Barlow fail to maintain his lane of travel. Another officer conducted a free air search around Barlow's car with a drug-sniffing dog while the initial traffic stop was in progress. After the dog alerted to the odor of narcotics, the officers searched Barlow's car and found baggies, digital scales, latex gloves, and cocaine residue.

Barlow was arrested and advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Barlow agreed to speak with the officers and told one of them that the drugs in the residence belonged only to him and that he did not want his other family members to be charged. The officer responded that he would “accept [Barlow's] statement, but ... would prefer to have him voluntarily write a handwritten statement claiming the items located inside of the house.” The officer explained to Barlow that without a written statement from him, everyone who lived at the residence would be jointly charged with the drug offenses because the drugs had been found in the common areas of the residence. Barlow then wrote out a statement in which he admitted that the drugs and pistol found in the residence belonged only to him.

Barlow was indicted for several drug-related offenses relating to the drugs seized from the Sherbrooke Way residence, including trafficking in cocaine and possession of marijuana with intent to distribute. Barlow then filed a motion to suppress the items seized from the residence, contending that the search of the residence violated his Fourth Amendment rights in several respects.

At the hearing on his motion to suppress, Barlow testified that only his mother, stepfather, and brother lived at the Sherbrooke Way residence. Barlow denied currently living at the residence or having a bedroom there. Barlow further testified that he told the officer that the drugs and pistol found at the residence belonged to him only because the officer had threatened to arrest his other family members.

Later at trial, Barlow's girlfriend testified that Barlow currently lived with her and had not lived at the Sherbrooke Way residence for several years. Barlow's mother testified that she, her husband, and Barlow's brother lived at the residence, but that Barlow had moved out several years ago and no longer had a bedroom there. Barlow's mother also testified that the two purses where marijuana was found in the hall closet belonged to her, although she denied having any knowledge of the drugs found in them. Additionally, Barlow testified at trial that he currently lived with his girlfriend, had not lived at the Sherbrooke Way residence for five years, and had a bedroom there when he was younger but “didn't have anything to do with that house anymore.” Barlow also denied any knowledge of the drugs at the residence and claimed that he provided his written statement to the officer only because he had threatened to arrest his mother and brother.

The trial court denied Barlow's motion to suppress the evidence seized from the Sherbrooke Way residence on the ground that Barlow lacked standing to challenge the search. On appeal, Barlow challenges that ruling and contends that the trial court

[761 S.E.2d 125]

should have reached the merits of his motion to suppress. We are unpersuaded.

A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. The burden is on the one claiming a violation of Fourth Amendment rights to demonstrate that he has standing to contest such violation, i.e., that he has a legitimate expectation of privacy in the premises searched.

(Punctuation and footnotes omitted.) State v. Carter, 305 Ga.App. 814, 816(1), 701 S.E.2d 209 (2010). See Jones v. State, 320 Ga.App. 681, 685(2), 740 S.E.2d 655 (2013). While “overnight guests in a private residence may have a legitimate expectation of privacy in that residence[,][a] person who is merely present with the consent of the householder[ ] has no such expectation.” (Citations and punctuation omitted.) Jones, 320 Ga.App. at 685(2), 740 S.E.2d 655. Where the evidence relevant to the issue of standing is in conflict, we will defer to the trial court's findings related to those disputed facts and “construe the evidence most favorably to support the trial court's ruling on the suppression motion.” (Citation and punctuation omitted.) Henderson v. State, 211...