Curry v. the State.

• Decision Date: 14 April 2011
• Docket Number: No. A10A2212.,A10A2212.
• Citation: 309 Ga.App. 338,711 S.E.2d 314
• Parties: CURRYv.The STATE.
• Court: Georgia Court of Appeals

309 Ga.App. 338

711 S.E.2d 314

11 FCDR 1237

CURRY

v.The STATE.

No. A10A2212.

Court of Appeals of Georgia.

March 30, 2011.Reconsideration Denied April 14, 2011.

Timothy Lee Eidson, Adel, and Steven Douglas Knittle, for appellant.Denise D. Fachini, District Attorney, Matthew Peterson Brown, Assistant District Attorney, for appellee.SMITH, Presiding Judge.

A jury found Patricia Curry guilty of possession of cocaine with intent to distribute, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. Curry appeals, contending that the warrantless search of her residence was unconstitutional because the State failed to show that she agreed to a special bond condition. Because the evidence supports a finding that Curry freely and voluntarily consented to the special condition of her bond, we affirm the trial court's denial of Curry's motion to suppress.

“On appeal of the denial of a motion to suppress, the evidence is to be construed to uphold the findings of the trial court unless they are determined to be clearly erroneous.” (Citation omitted.) Herrera v. State, 288 Ga. 231, 233(2), 702 S.E.2d 854 (2010).

The evidence presented at the suppression hearing revealed that prior to the search of Curry's home, Curry had been arrested for possession of marijuana with intent to distribute, sale of marijuana, and maintaining a disorderly house. She was released from custody when she posted a bond of $30,000.

While Curry was free on bond, a confidential informant advised the Wilcox County Sheriff's Office that Curry was selling crack cocaine out of her home. The informant provided the same information to an agent with the South Central Drug Task Force. After receiving the informant's tip, the sheriff's deputy, the drug task force agent, and several other law enforcement officers conducted a warrantless search of Curry's residence. Upon entering the residence, the officers announced that the search was being conducted pursuant to the conditions of Curry's bond. Curry, however, was uncooperative with the officers and attempted to block their entry into the residence. After physically removing Curry from the residence, the officers searched the back master bedroom, where they discovered a large quantity of crack cocaine and a handgun.

Curry was arrested and indicted on charges of possession of cocaine with intent to distribute, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. She moved to suppress the cocaine and handgun, contending that the warrantless search of her residence violated the Fourth Amendment.

At the suppression hearing, the State argued that the warrantless search was justified because Curry consented to warrantless searches of her residence and person upon the request of law enforcement in a special bond condition. To support its argument that Curry had waived her Fourth Amendment rights, the State relied upon certified copies of a bond form in a prior drug case (the “bond form”) and another form titled “Special Drug Conditions of Bond” (the “special conditions form”). The special conditions form provided in relevant part: “The Defendant shall, at the request of law enforcement, consent to a search, without necessity or benefit of a search warrant, of his/her ... residence ... by a law enforcement officer for the detection of alcohol, drugs or controlled substances.” Although the bond form and special conditions form were executed on the same day, the State introduced them as separate exhibits in the motion to suppress hearing. The forms do not cross-reference one another or contain consecutive numbering. Curry signed the bond form, but not the special conditions form. The special conditions form contains the signature of Curry's then counsel, the assistant district attorney, and most importantly, the trial judge granting the bond.¹ The State asserted that the two documents “are part and parcel the same document.”

Curry did not testify in the motion to suppress hearing or present any evidence demonstrating that she did not consent to the special conditions of her bond. Instead, her counsel argued that the bond form and the special conditions form were inadequate to fulfill the State's burden of demonstrating her consent to future warrantless searches upon request of law enforcement. ²

The trial court denied Curry's motion to suppress based, in part, upon its conclusion that Curry waived her Fourth Amendment rights as a special condition of bond. After the denial of her motion to suppress, Curry was tried before a jury and found guilty of the drug and firearm-related offenses as charged. She filed a motion for a new trial and raised again the issues related to her motion to suppress. The trial court denied her motion for new trial without explanation. This appeal followed.

On appeal, Curry argues the special conditions form was insufficient to show that she waived her Fourth Amendment rights because her signature was not on the form. We disagree.

It is well settled that a valid consent to a search eliminates the need for either probable cause or a search warrant. In order to justify a warrantless search on the grounds of consent, the State has the burden of proving that the consent was freely and voluntarily given under the totality of the circumstances.

(Citations and punctuation omitted.) Brooks v. State, 285 Ga. 424, 425, 677 S.E.2d 68 (2009).

The State presented evidence of the special conditions of Curry's bond which Curry herself admits was signed by her counsel, and which was also signed by the trial court. The form states that “[Curry] herein specifically agrees to ... consent to a search, without the necessity or benefit of a search warrant....”

Based upon the signature of the trial judge issuing the bond on the special conditions form, the signature of Curry's counsel on the special conditions form, the statement in the special conditions form about the defendant's consent to search, the case caption on the special conditions form (“ The State v. Patricia Curry ”), Curry's signature on the bond form, the fact that both documents have the same handwritten date, and the presumption of regularity, we conclude that the State was not required to produce anything more to show that Curry consented to future searches upon the request of law enforcement. See Hanifa v. State, 269 Ga. 797, 804–805(3), 505 S.E.2d 731 (1998) (evidence supported trial court determination that incriminating statement was voluntarily given where defendant's mother accompanied her to police station, signed waiver of rights form and was present during defendant's interrogation, defendant was able to read and write and understood English, and defendant was informed she was a murder suspect); Davis v. State, 244 Ga.App. 715, 716(1), 536 S.E.2d 603 (2000) (record failed to support defendant's claim that he did not receive notice of special condition of bond where bond with his name written on it was introduced into evidence, judge who issued bond testified about custom to go over special conditions with the defendant, and bond was served on defendant).

Once the State presented the special conditions form, the burden then shifted to Curry to show any alleged irregularities, which she failed to do in the motion to suppress or at any time before trial. See Beck v. State, 283 Ga. 352, 354(2), 658 S.E.2d 577 (2008) (presumption of regularity attaches when State introduces plea hearing transcript, docket entry or another document affirmatively showing that right was waived; burden then shifts to defendant to show irregularities). Although Curry testified at trial ( after the trial court had denied her motion to suppress) that she was unaware that her bond had special conditions, we must assume that the trial court found this testimony not credible when it denied Curry's motion for new trial without explanation. See Herrera, supra, 288 Ga. at 233, 702 S.E.2d 854 (facts and credibility issues must be upheld unless clearly erroneous).

Although Curry contends that the special condition form was inadequate in the absence of her signature, OCGA § 24–6–3(a) provides that “[a]ll contemporaneous writings shall be admissible to explain each other.” And in the context of interpreting agreements, we hold that “where multiple documents are executed at the same time in the course of a single transaction, they should be construed together.” ³ (Citations omitted.) Martinez v. DaVita, Inc., 266 Ga.App. 723, 727, 598 S.E.2d 334 (2004). See also Duke v. KHD Deutz, etc., 221 Ga.App. 452, 452–453, 471 S.E.2d 537 (1996) ( “contemporaneous writings should be considered even if one of the writings purports to ‘contain the entire understanding of the parties hereto with respect to the transactions contemplated hereby’ and even if the writings are not cross-referenced”). The bond order and the special conditions form were executed on the same day. Indeed the special conditions form alone would have no meaning separate from the bond order. The order and form should therefore be construed together. Construing these documents together, the State presented sufficient evidence to show that Curry consented to future searches upon the request of law enforcement.

Because the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous, and we must construe the evidence most favorably to the upholding of the trial court's findings and judgment, Miller v. State, 288 Ga. 286(1), 702 S.E.2d 888 (2010), we must conclude that under the totality of the circumstances, Curry freely and voluntarily gave her consent for a warrantless search. The trial court therefore did not err in denying the motion to suppress.

Judgment affirmed.

ANDREWS, MIKELL, BLACKWELL and DILLARD, JJ., concur fully and specially.BARNES, P.J., and ADAMS, J., dissent.BLACKWELL, Judge, concurring fully and specially.

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