Bayshore v. State

• Decision Date: 03 June 1993
• Docket Number: No. A93A0320,A93A0320
• Citation: Bayshore v. State, 432 S.E.2d 251, 208 Ga.App. 828 (Ga. App. 1993)
• Parties: BAYSHORE v. The STATE.
• Court: Georgia Court of Appeals

Page 251

432 S.E.2d 251

208 Ga.App. 828

BAYSHORE v.The STATE.

No. A93A0320.

Court of Appeals of Georgia.

June 3, 1993.

Peevy & Lancaster, G. Wayne Lancaster, Lawrenceville, for appellant.

Thomas C. Lawler III, Dist. Atty., Scott A. Smeal, Asst. Dist. Atty., for appellee.

POPE, Chief Judge.

DefendantThomas Guy Bayshore was indicted for three counts of burglary and three counts of theft by receiving stolen property.The jury acquitted him of the burglary charges but convicted him on each count of theft by receiving stolen property.Defendant appeals.

1.Defendant argues the trial court erred in denying his motion to suppress evidence seized from a search of the defendant and in admitting the evidence at trial.We agree.

The evidence shows defendant was a suspect in the three burglaries and the police obtained a search warrant to search for stolen property at the apartment in which defendant was residing.Although the pre-printed portion of the search warrant permitted the naming of a person as well as a premises to be searched, the warrant was issued only for the search of the premises.When the police arrived at the apartment, defendant was standing outside, twelve to fifteen feet from the front door of the apartment, leaning against a car parked in the common parking lot serving the four apartment units in the building.Two officers detained defendant while the others conducted the search of the apartment but defendant was not placed under arrest.When the search was fruitless, the officers also searched a gym bag which was sitting within arm's reach of defendant on the trunk of the car on which defendant had been leaning.Items which had been reported stolen in the three burglaries were found in the bag.

The issue in this case is whether a search warrant for an apartment in a multi-unit building is broad enough to include the search of the individual suspect who is standing outside the premises in a common area, in this case the parking lot which served all four apartment units in the building.The State argues the search was proper pursuant to OCGA § 17-5-28, which permits an officer executing a search warrant to search "any person in the place at the time: (1) To protect himself from attack; or (2) To prevent the disposal or concealment of any instruments, articles, or things particularly described in the search warrant."By the officer's own account, however, defendant was not threatening any officer.That the defendant was not searched for protective purposes is illustrated by the fact the two officers who stayed outside to detain defendant did not search defendant or the bag until after the search of the apartment was complete and yielded no evidence.

Moreover, defendant was not "in the place" to be searched, as that phrase is used in the statute.A search warrant for a dwelling house is commonly held to apply not only to the dwelling but also to the curtilage of the dwelling.For example, in Bellamy v. State, 134 Ga.App. 340, 214 S.E.2d 383(1975), this court concluded a search warrant for a certain address permitted the search of a vehicle parked in the driveway of the property.But the concept of curtilage is more easily applied to land...