Brewer v. State, 48070

• Decision Date: 18 May 1973
• Docket Number: No. 48070,No. 2,48070,2
• Citation: 199 S.E.2d 109,129 Ga.App. 118
• Parties: Patrick M. BREWER et al. v. The STATE
• Court: Georgia Court of Appeals

Page 109

199 S.E.2d 109

129 Ga.App. 118

Patrick M. BREWER et al. v. The STATE.

No. 48070.

Court of Appeals of Georgia, Division No. 2.

May 18, 1973.

Thomas H. Harper, Jr., Atlanta, for appellants.

John T. Perren, Dist. Atty., Dallas, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

Brewer and Pope, the appellants were two of six defendants arrested and convicted for possession of marijuana.

These two defendants made separate but identically worded motions to suppress, latter amended to include all of the defendants. The motion sought to prevent the state offering into evidence 17 plastic bags containing marijuana on the ground that this evidence was seized as the result of an illegal search and seizure which was not incident to a lawful arrest.

The sheriff and his deputy had received three complaints. The sheriff described these as 'lots of unnecessary noise, loud voices, loud music, so that gave me the reason to go' (T. 4) to the residence. After the third telephone call at approximately 3:45 p.m. they went to the location. They did not have a warrant. They testified the music was loud enough to radiate out over the neighborhood which noise could be heard a block away. Leaving the car in the driveway, they checked the downstairs front door, which was locked. Then determining that the music came from the second floor, they mounted the outside steps leading to the second story. The wooden door was open, but neither the sheriff nor his deputy could remember the position of the screen door. They did not remember if the screen door was open or if they had to open it. Defense exhibits 1, 2, and 3 are photographs of the house which show the presence of a wooden door and a screen door and the lack of a stoop or platform replacing the top step.

The sheriff testified he smelled the odor of marijuana at the top of the steps. His deputy testified he smelled this odor in the doorway. Both testified the room was filled with smoke. The deputy testified that when he reached the door, 'one of the subjects (identified as Chris Pope, a defendant) backed up and threw a package under the couch.' (T. 28). The deputy added that this was a small cellophane package. The deputy then pulled the couch out and 'found three packages on the floor, fourteen packages in the paper bag,' (motion to suppress, p. 15), which they determined was marijuana. At this point the officers arrested the defendants for illegal possession of marijuana.

One of the appellants, Patrick Brewer, was in the next room sitting on the bed, the other were in the room with the other appellant, Chris Pope. The officers then searched both rooms and some of the defendants, but found no ashes, butts or any other evidence of marijuana.

Defendants' motion to suppress the evidence, being the 17 bags of marijuana, was denied and defendants were convicted of violating the Georgia Drug Abuse Act, Code Ann. §§ 79A-903, 79A-907. Thereupon this appeal was taken by defendants Pope and Brewer enumerating as error: (1) the trial court's denial of defendants' motion to suppress evidence based on the contention that the search and seizure were illegal; (2) the trial court's denial of defendants' motion for directed verdict of acquittal which alleged that there was insufficient evidence to prove possession; and (3) the trial court's charge on constructive possession in that the evidence did not warrant such a charge.

1. The officers had not obtained a search warrant despite the legal requirement that 'a warrant is required to search the curtilage.' Black v. State, 119 Ga.App. 855, 857, 168 S.E.2d 916, 918. However, 'A police officer is free to use and seize what he sees in plain sight if he is at a place where he is entitled to be. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067.' Lewis v. State, 126 Ga.App. 123, 126, 190 S.E.2d 123, 126.

Were the sheriff and his deputy entitled to open the screen door and cross over the threshold into the room without knocking, without identifying themselves, and without asking permission to enter? Although the police have authority to arrest and to search without a warrant in exigent circumstances, no emergency existed here. At this point the officers were simply checking on the loud noise. The state contends the arrest was authorized because there was the maintenance of a disorderly house. Under Code Ann. § 26-2614, 'A person who keeps and maintains, either by himself or others, a common, ill-governed, and disorderly house . . . to the common disturbance of the neighborhood or orderly citizens, is guilty of a misdemeanor.' In order for defendants to be charged for this offense, they must be occupants of the house or keep and maintain the house in some manner. Being visitors only, as these defendants were with the possible exception of Tony Jones whose brother owned the house, is not sufficient. Additionally, the noise must qualify as 'loud noises, cursing, swearing, &c., (that) were ordinary and usual, or common occurrences; not casual and at long intervals, but were the general, customary, common habits . . . of the house.' Palfus v. State, 36 Ga. 280, 285. Not only must the noise be of that quality, but it must exist 'for a sufficient length of time to render applicable to it as a disorderly house the descriptive term 'common'; and that the noises made and improper acts committed therein disturbed the peace and comfort of quite a number of orderly citizens in the neighborhood.' Heard v. State, 113 Ga. 444, 448, 39 S.E. 118, 120.

No reason has been shown why any exigent circumstances existed which permitted the officers to enter the room unannounced. Certainly a private citizen's 'reasonable expectation of privacy' has been abrogated in this instance. The officers did not knock. Their intention to enter whatever the circumstances is indicated by the fact that the screen door would have to be opened by the person ascending the steps before he reached the top step, as there is not enough space on the top step for a person to stand there and open the door. Therefore, the officers opened the door before they saw the inside of the room or the occupants. The sheriff and his deputy were, in our opinion, not entitled to be where they were when they smelled the odor of marijuana and saw Chris Pope, one of the defendants, throw a paper bag under the couch. 'There was to probable cause to arrest the defendant as he was not observed in the commission of any crime.' Patterson v. State, 126 Ga.App. 753, 754, 191 S.E.2d 584, 585.

The odor of marijuana is not in itself sufficient circumstantial evidence to constitute probable cause, much less a conviction. According to testimony, the odor of marijuana lingers for some days and is difficult to eradicate. This case is similar to Patterson v. State, supra. p. 756, 191 S.E.2d 584, where the marijuana was in another's possession in another part of the house. '(T)he cigarette butts in the ashtray; and the odor (of marijuana) was not in any manner connected to the defendant so as to authorize an inference that he had agreed with any co-conspirator to engage in the overt act to possess marijuana. It was error for the trial court to deny the motion for directed verdict of acquittal as to this count.' Also see Dickson v. State, 124 Ga.App. 406, 184 S.E.2d 37, where a search without a warrant of an automobile was upheld because the officers not only smelled the odor of marijuana, but saw a cigarette on the floor before they searched. In Dickson there were exigent circumstances (in that a house can be staked out, a moving car cannot) which would authorize a search before the contraband could be disposed of and the officers not only smelled marijuana but saw a cigarette.

A valid search must be predicated on probable cause, not just because it was the police officer's usual practice to search stopped cars. Rowland v. State, 117 Ga.App. 577(2), 161 S.E.2d 422. The deputy testified that one defendant threw a cellophane bag under the couch. The sheriff did not see this act of defendant. This was the only act that followed the arrival of the police. The deputy then removed the couch and found a paper bag which he opened and determined that the 14 packages inside contained marijuana. Three other packages were found loose under the couch. At this point, defendants were arrested for possession of marijuana and a more extensive search of the room, another room and some of the defendants took place which revealed no evidence of marijuana. A cellophane bag is not incriminating in itself. The deputy did not testify that at the time he first saw the bag being thrown under the couch he knew the bag...