Harris v. State, 59506
| Decision Date | 11 September 1980 |
| Docket Number | No. 59506,59506 |
| Citation | 155 Ga.App. 278,270 S.E.2d 854 |
| Parties | HARRIS v. The STATE. |
| Court | Georgia Court of Appeals |
Guy E. Davis, Jr., Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Asst. Dist. Atty., for appellee.
Appellant appeals her conviction for possession of cocaine, valium, and marijuana, asserting, inter alia, that the evidence upon which her conviction is based was obtained in violation of her Fourth Amendment rights. We reverse.
On March 30, 1979, an arrest warrant was issued for "Charles Davis a/k/a Fat Charles," who was wanted in connection with an alleged theft by taking. The warrant listed both an "Address" and a "Business Address." The "Address" on the warrant was listed as "Centra Villa Apts., Apt. B-65, 1717 Centra Villa S.W." 1
The police arrived at the "Address" at approximately 9:30 a. m. on Tuesday, April 3, 1979. They knocked on the door, and approximately five minutes later, appellant answered the door in a housecoat, appearing as if she had been sleeping. The police informed appellant that they had a warrant for Davis and asked her if she knew him and if he was there. Appellant stated that she knew Davis and that he was not there. The police then told appellant that they would search the apartment in order to find him. Appellant asked whether the police had a search warrant. She was told "that we didn't have to have a search warrant, that all that was necessary under the state law was a warrant at that address for the person." The police then searched the apartment. Under a bed, police discovered certain drug paraphernalia: scales, and a sifter and a spoon containing residue of a white substance. Appellant was then advised that "she might as well give us the rest of her stuff," whereupon she produced a peanut butter jar or mayonnaise jar "four or five inches tall" which had a blue crystal-like substance in it and "a cellophane containing white powdery substance." Narcotic agents were then called who began a systematic search of the apartment contending that appellant gave them permission to do so. When appellant later withdrew "permission" to search the apartment, a search warrant was obtained and the search continued. A quantity of lactose, used as "a cutting agent in cocaine," and quantities of several controlled substances such as cocaine, diazepam and marijuana were discovered. Charles Davis was not found in the apartment.
1. Appellant asserts that the motion to suppress should have been granted. We agree.
The legality of the search in the instant case depends upon whether the police had a right to enter the apartment in order to locate Charles Davis. The state has not demonstrated that the search was conducted with appellant's voluntary consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); see also Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).
Our constitution mandates that, in order for law enforcement officers to enter a residence for the purpose of effecting an arrest, they must have reasonable grounds to believe that the suspect is within. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); United States v. Cravero, 545 F.2d 406 (5th Cir. 1977).
To hold that the police had "reasonable grounds" to believe that Davis was inside appellant's apartment would, in our view, render the term virtually meaningless. The evidence adduced on the motion to suppress established, at most, that the police had reasonable grounds to believe that Davis might reside at the stated address.
Certainly, it cannot be argued that the mere presence of the address on the information sheet which accompanied Davis' arrest warrant furnished probable cause to believe that Davis was at the address at the time of entry. 2 As stated in Payton v. New York, supra, 445 U.S. 574, 100 S.Ct. 1373, 63 L.Ed.2d 661: "(F)or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." (Emphasis supplied.)
In addition, we fail to see how any conduct of appellant in answering the door gave rise to reasonable grounds to believe that Davis was inside. Under the circumstances the slight delay in answering the door was entirely understandable. When appellant answered the door, she was dressed in a housecoat and appeared to have been asleep. There is nothing in the record to give rise to a reasonable suspicion that appellant was not telling the truth when she stated that Davis was not there. On the basis of this record, any suspicion as to appellant's veracity was wholly unfounded. Indeed, appellant was telling the truth-Davis was not found at appellant's residence.
It is apparent that the state has failed to satisfy its burden of proof on the motion to suppress. State v. Thomas, 150 Ga.App. 170, 257 S.E.2d 28 (1979). Under the evidence, the police entry into the residence was in violation of appellant's constitutional rights. The motion to suppress should have been granted.
2. In view of our holding in Division 1 of this opinion, the remaining enumeration of error need not be considered.
Judgment reversed.
This case involves the possession of certain controlled substances. Contraband was found in defendant's possession when two Fulton County deputy sheriffs attempted to serve an arrest warrant on one Charles Davis, a/k/a "Fat Charles," at one of two listed addresses shown on the arrest warrant for Davis.
The majority here assumes, without evidence to support the assumption, that this was not also the residence of Davis but only that of the defendant and that the officers, believing Davis was present in defendant's apartment, proceeded to search it based upon the arrest warrant for Davis. From the evidence here it is my opinion that the court, as the trier of fact, was authorized to believe that the officers had probable cause to believe Davis was present at this address. I now set forth the evidence upon which this search was based.
Deputy sheriffs arrived at approximately 9:30 a. m. and "banged" (knocked) on the door. It was five or six minutes before defendant answered the door. The officers told defendant they had a warrant for Charles Davis and asked if he was there. Defendant stated that he was not. The deputy sheriffs again told defendant that they had a warrant for Charles Davis' arrest and told her they would search the apartment to see if he was there. The defendant inquired of the deputy sheriffs whether they had a search warrant, and they replied that they did not need to have a search warrant to search the apartment for Charles Davis.
The deputies showed the defendant the arrest warrant and proceeded to search the apartment, looking in the kitchen, behind the doors, and in the closets. Under the bed the deputies discovered certain drug paraphernalia, scales, and a sifter and a spoon containing residue of a white substance. Defendant was then advised that "she might as well give us the rest of her stuff," whereupon she produced a peanut butter jar or mayonnaise jar "four or five inches tall" which had a blue crystal like substance in it and "a cellophane containing white powdery substance." Narcotic agents were then called who began a systematic search of the apartment contending that the defendant gave them permission to do so, but when she later withdrew permission to search the apartment they did obtain a search warrant and continued their search. A quantity of lactose, used as "a cutting agent in cocaine," and quantities of several controlled substances such as cocaine, diazepam and marijuana were discovered by officers (narcotic agents) of the Atlanta Police Department who had been called to the scene by the deputy sheriffs. Charles Davis, for whom the arrest warrant was issued, was not found in the apartment, but numerous articles of clothing, both male and female, were found in the apartment which was occupied at that particular time by the defendant, a female.
Defendant was indicted in Count 1 for the unlawful possession of cocaine;...
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