Espinoza v. State

• Decision Date: 15 March 1995
• Docket Number: No. S94G1143,S94G1143
• Citation: 454 S.E.2d 765,265 Ga. 171
• Parties: ESPINOZA v. The STATE.
• Court: Georgia Supreme Court

Page 765

454 S.E.2d 765

265 Ga. 171

ESPINOZA v. The STATE.

No. S94G1143.

Supreme Court of Georgia.

March 15, 1995.

Steve T. Woodman, Marietta, for Espinoza.

Thomas J. Charron, Dist. Atty., Debra Halpern Bernes, William M. Clark, Nancy I. Jordan, Asst. Dist. Attys., Marietta, for the State.

FLETCHER, Justice.

We granted the writ of certiorari to consider whether the Court of Appeals properly applied the concept of curtilage. We disapprove of the term "common area curtilage," on which the Court of Appeals relied, and reverse on the ground that police officers discovered the evidence within the curtilage of the defendant's apartment for which they did not have a search warrant.

A joint city-county narcotics unit obtained a search warrant for the residence of Alejandro Espinoza at 251-B Dickson Road, Marietta, Georgia based on information received from a federal drug enforcement agent following an airport search of Alejandro in which $38,300 was seized. Ten narcotics agents searched 251-B of the duplex, which was specified in the warrant, and then 251-A, which was not listed. After searching both residences, the agents searched the grounds and found a garbage bag containing five pounds of marijuana in bushes seven to eight feet from the driveway leading to unit A. The grand jury indicted Lorenzo Espinoza, the resident of 251-A and brother of Alejandro, for possession with intent to distribute marijuana. It did not indict Alejandro.

The trial court granted Lorenzo's motion to suppress, finding that the marijuana was found "on the grounds of 251-A and/or 251-B." In its conclusions of law, the trial court determined that the police officers did not have a legal right to enter Lorenzo's apartment, the marijuana was found within the curtilage of 251-A, and the state could not introduce at his trial any evidence found in his residence or curtilage. The trial court declined to decide whether the illegal drugs were also within the curtilage of 251-B. The Court of Appeals reversed. It found that the marijuana was located within the curtilage of 251-B, as well as 251-A, as part of the "common area curtilage which is reasonably an extension of each brother's dwelling." The appellate court held that the marijuana was lawfully seized under the valid search warrant of 251-B. State v. Espinoza, 212 Ga.App. 814, 818, 442 S.E.2d 911 (1994).

1. Whether evidence is found within the curtilage of a residence is a mixed question of fact and law. See State v. McBride, 261 Ga. 60, 65-66, 401 S.E.2d 484 (1991) (Hunt, J., concurring specially). On appeal, we accept the trial court's findings of fact unless clearly erroneous, but owe no deference to the trial court's conclusions of law. Instead, we are free to apply anew the legal principles to the facts. See Vansant v. State, 264 Ga. 319, 320, 443 S.E.2d 474 (1994).

2. The Georgia Constitution protects persons from unreasonable searches and seizures.

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause supported by oath or affirmation particularly describing the place or places to be searched and the persons or things to be seized.

Ga. Const. Art. I, Sec. I, Par. XIII; see U.S. Const. amend. IV. ¹ Since the Supreme Court's opinion in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Fourth Amendment's protection depends on whether a person has a reasonable expectation of privacy. Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 1740, 80 L.Ed.2d 214 (1984); see Bunn v. State, 153 Ga.App. 270, 272-73, 265 S.E.2d 88 (1980). A person "may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home." Oliver, 466 U.S. at 178, 104 S.Ct. at 1741.

The Fourth Amendment protects this area, known as the curtilage, as an exception to the open fields doctrine. See id. at 180 n. 11. This court has defined curtilage as " 'the yards and grounds of a particular address, its gardens, barns, [and] buildings.' " Landers v. State, 250 Ga. 808, 809, 301 S.E.2d 633 (1983). Like residents in single-family homes, apartment residents have a reasonable expectation of privacy in the curtilage surrounding their apartment. Bunn, 153 Ga.App. at 273, 265 S.E.2d 88. The United States Supreme Court has identified four factors to assist in defining the extent of a home's curtilage. They are "the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by." United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987); see also Bayshore v. State, 208 Ga.App. 828, 829, 432 S.E.2d 251 (1993) (listing similar factors). These factors are useful tools for analysis to the extent they illuminate "whether the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." Dunn, 480 U.S. at 301, 107 S.Ct. at 1139. Although the boundaries of the curtilage are clearly marked for most homes, Oliver, 466 U.S. at 182 n. 12, 104 S.Ct. at 1743, n. 12, the analysis becomes more complicated when the residence is an apartment in a multi-family dwelling in an urban area. See United States v. Acosta, 965 F.2d 1248, 1256 (3rd Cir.1992); Bayshore, 208 Ga.App. at 829, 432 S.E.2d 251.

In this case, the facts were not disputed and the credibility of the witnesses was not an issue. Applying the law to the undisputed facts, we hold that the trial court was correct in its legal conclusion that the marijuana was seized within the curtilage of Lorenzo's dwelling following the illegal search of his apartment. Lorenzo lived in apartment 251-A on the left side of a duplex which was approximately 60 yards from the road and hidden from view. His apartment was reached by the left half of a private driveway that was shaped like a stethoscope; unit B was reached by the right half. The garbage bag was found among bushes seven to eight feet to the left of Lorenzo's driveway outside the stethoscope, approximately thirty yards from the house. Thus, the bag was discovered in a place where visitors to the duplex would not be expected to go. See 1 W. LaFave, Search and Seizure § 2.3(f), at 412-13 (2d ed. 1987) (Fourth Amendment does not cover police observations from places where visitors are expected, such as walkways, driveways, and porches).

The absence of a fence enclosing Lorenzo's yard is not conclusive, particularly since he rented the property. See Dunn, 480 U.S. at 301 [265 Ga. 174] n. 4, 107 S.Ct. at 1139 n. 4; Acosta, 965 F.2d at 1256. Nor does his lack of exclusive control over the land eliminate his expectation of privacy. See 1 W. LaFave at 414; Fixel v. Wainwright, 492 F.2d 480, 484 (5th Cir.1974) (rejecting government's argument that the multi-unit character of the four-unit apartment building meant that defendant relinquished any right of privacy related to the fenced backyard). Given the distance from the road, the secluded nature of the grounds, and the bag's location on the side of 251-A's driveway away from the duplex, Lorenzo had a reasonable expectation of...