Galloway v. State
Citation | 342 S.E.2d 473,178 Ga.App. 31 |
Decision Date | 04 February 1986 |
Docket Number | No. 71372,71372 |
Parties | GALLOWAY v. The STATE. |
Court | United States Court of Appeals (Georgia) |
James P. Brown, Jr., McDonough, and Albert B. Wallace, Jonesboro, for appellant.
E. Byron Smith, Dist. Atty., and Thomas R. McBerry, Asst. Dist. Atty., for appellee.
Search and seizure. Via indictment, defendant was charged with the offense of aggravated assault. It was alleged that on June 9, 1984, defendant made "an assault on the person of Jessie Cleveland with a certain gun, a deadly weapon, by shooting at the said Jessie Cleveland with said gun ..." Following the entry of a plea of not guilty, defendant was tried by a jury. A verdict of guilty was returned and defendant was sentenced to confinement for a period of ten years. He appeals, enumerating error solely upon the denial of his motion to suppress evidence.
The following facts were adduced at the motion to suppress hearing: On June 9, 1984, Officer A.L. Bartlett of the Henry County Police Department, responded to a radio report about a shooting incident. Arriving at the home of the complainant, Jessie Cleveland, the officer was told that a shot had been fired at Cleveland's vehicle (which was occupied at the time by Cleveland and his family) by a passing motorist with a handgun.
The officer examined Cleveland's vehicle and observed a bullet hole in the vicinity of the left rear window. The complainant told the officer that he knew where the assailant lived. The complainant described the assailant's vehicle, a white van with a blue stripe, and he gave the officer the tag number of the vehicle. Cleveland also gave the officer directions to the assailant's house. Armed with this information, Officer Bartlett, accompanied by another policeman, Sergeant Gardner, who joined the investigation, went to the home of the alleged perpetrator.
Defendant's house sat about 100 or 125 feet from the road and was surrounded by a fence which stood approximately 25 feet away. The driveway was located on the outside of the fence. In other words, the fence was between the driveway and defendant's house. There was a gate at the entrance to the driveway. (Apparently, another fence bordered defendant's entire property.)
About 20 minutes after the shooting occurred, the police neared defendant's house. Officer Bartlett observed a van parked in the driveway. The van matched the description of the van which had been given to the police by the complainant.
The driveway gate was open. The police entered the driveway and approached the van. Officer Bartlett knew the van, which was situated approximately 75 feet from the road, was on private property. Nevertheless, the officer continued his investigation.
With the aid of a flashlight, Officer Bartlett observed a handgun in the van. The officer grabbed the gun and examined it. In the officer's words:
In the meantime, the defendant came out of his house and stood by the fence. He shouted at the police officers, informing them they had no right to search his van without a warrant. Upon being urged by the sergeant accompanying him, Officer Bartlett placed the gun back in the van.
The police left defendant's property. A warrant subsequently was obtained for defendant's arrest and defendant was taken into custody. The gun was not seized.
At trial, Officer Bartlett testified upon direct examination as follows:
Defendant contends his Fourth Amendment rights were violated by Officer Bartlett and that, therefore, the trial court erred in failing to suppress the officer's testimony. Held:
Relying upon Bunn v. State, 153 Ga.App. 270, 272, 265 S.E.2d 88 (1980), defendant argues his Fourth Amendment rights were abridged because the van was found within the curtilage of his house. In Bunn, this court observed: " ' The flaw in defendant's argument is that, unlike Bunn, no search was made by the police in the case sub judice. On the contrary, defendant's gun simply was observed by the police in plain view. Thus, the legal principles that are applicable to a search are inapposite. State v. Brown, 158 Ga.App. 312, 315, 279 S.E.2d 755 (1981); State v. Brooks, 160 Ga.App. 381, 287 S.E.2d 95 (1981); State v. Nichols, 160 Ga.App. 386, 287 S.E.2d 53 (1981).
State v. Aultman, 160 Ga.App. 550, 551, 287 S.E.2d 580 (1981). This doctrine is applicable equally to homes and automobiles. Thus, in State v. Key, 164 Ga.App. 411, 412, 296 S.E.2d 60, this court ruled: ...
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