Dean v. State, A91A0723

• Decision Date: 16 July 1991
• Docket Number: No. A91A0723,A91A0723
• Citation: 409 S.E.2d 667,200 Ga.App. 752
• Parties: DEAN v. The STATE.
• Court: Georgia Court of Appeals

Page 667

409 S.E.2d 667

200 Ga.App. 752

DEAN v. The STATE.

No. A91A0723.

Court of Appeals of Georgia.

July 16, 1991.

Reconsideration Denied July 30, 1991.

Certiorari Denied Sept. 6, 1991.

Bobby J. Lindsey, Macon, for appellant.

Willis B. Sparks III, Dist. Atty., Sharon T. Ratley, Thomas J. Matthews, Asst. Dist. Attys., for appellee.

BANKE, Presiding Judge.

After having pled guilty to an indictment charging him with possession of cocaine with intent to distribute and having been sentenced to five years' probation as a first offender pursuant to OCGA § 42-8-60 et seq., the appellant was again arrested for possession of cocaine with intent to distribute some two months later. He waived his right to a trial by jury following his indictment for this second offense; and after denying his motion to suppress the cocaine and cash which had been seized from his person at the time of his arrest, the trial court found him guilty of that offense. In addition, the court found him to be in violation of the first-offender probation he had received for the prior offense. At the subsequent sentencing hearing, the court adjudicated him guilty of the prior offense, sentenced him to five years' imprisonment on that conviction, and then, considering itself bound to do so by the language of OCGA § 16-13-30(d), sentenced him to life imprisonment for the second offense. This appeal followed. Held:

1. The trial court did not err in denying the appellant's motion to suppress. The arresting officers had been instructed by their supervisor to investigate certain premises for illegal gambling and drug activity. After locating the house, a duplex with an unusually large number of cars parked in front of it, the officers walked to the front door, where, through a sheer curtain covering a window in the door, they were able to observe several men seated inside rolling dice, with piles of money situated beside them on the floor. One of the officers then walked over to another window a few feet away, which was also partially covered by a curtain, and by looking through a separation in the curtain was able to obtain an unobstructed view of the same activity. He then knocked on the front door. The man who opened the door recognized the officer and shouted his name, whereupon the appellant, who was among those present inside, ran to a bathroom. The officer pursued and apprehended him and discovered the evidence in question inside his jacket pocket during the ensuing search of his person.

"Where a police officer enters upon private property only to the extent of knocking on outer doors, the Fourth Amendment is not violated. Gilreath v. State, 247 Ga. 814, 819, 279 S.E.2d 650 (1981).... After all, such an officer is merely taking the same route as would any guest or other caller." State v. Zackery, 193 Ga.App. 319, 387 S.E.2d 606 (1989). Under the circumstances, we hold that the officers were entitled to look through the front door of the house and that, having done so, they acquired probable cause to believe the crime of gambling (OCGA § 16-12-21) was being committed therein. If this was not sufficient in and of itself to authorize the officers to arrest the appellant, his subsequent flight upon seeing them unquestionably established probable cause for his warrantless arrest and the ensuing warrantless search of his person. See State v. Billoups, 191 Ga.App. 834, 383 S.E.2d 198 (1989); Cook v. State, 136 Ga.App. 908, 909(1), 222 S.E.2d 656 (1975); Scott v. State, 193 Ga.App. 74, 387 S.E.2d 31 (1989).

2. The appellant contends that the trial court violated both his federal constitutional right to due process and his federal constitutional right to be free from cruel and unusual punishment by sentencing him under the mandatory provision of OCGA § 16-13-30(d), which provides as follows: "Except as otherwise provided, any person who violates subsection (b) of this Code section with respect to [specific controlled substances, including, but not limited to cocaine] shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than five years nor more than 30 years. Upon conviction of a second or subsequent offense, he shall be...