Hatcher v. State, 52645

• Decision Date: 18 March 1977
• Docket Number: 3,2,No. 52645,Nos. 1,52645,s. 1
• Citation: 141 Ga.App. 756,234 S.E.2d 388
• Court: Georgia Court of Appeals
• Parties: Richard HATCHER v. The STATE

Page 388

234 S.E.2d 388

141 Ga.App. 756

Richard HATCHER v. The STATE.

No. 52645.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

March 18, 1977.

Rehearing Denied March 31, 1977.

J. Robert Daniel, Macon, for appellant.

Fred M. Hasty, Dist. Atty., W. Donald Thompson, Walker P. Johnson, Jr., Asst. Dist. Attys., Macon, for appellee.

McMURRAY, Judge.

Defendant was indicted for burglary of a hotel room. He was sentenced to serve 20 years. The sole complaint involves the motion to suppress the evidence and the allowance of this evidence to be used against him on the trial.

A burglary had occurred at the hotel, and in investigating same, the officers' information centered on the occupant in a hotel room. The articles reported as stolen were observed in plain view in the room when the defendant opened the door in response to the officer's knock. The defendant then made an admission that he had just purchased the goods from another person in the hotel for $10. The defendant invited the officers into the room and the goods were in plain view when the officers entered the room. The guest from whom the articles (portable television set, suitcase and coat) had been stolen was called and identified those items. The defendant was then arrested.

The evidence sought to be suppressed consists of the stolen goods which were found in the defendant's own room.

While the officers were not absolutely certain the defendant was the culprit, and their attempt to locate him had centered on this hotel room, nevertheless, it could have amounted to hot pursuit or a legitimate inquiry of the hotel guest. See in this connection Brooks v. State, 129 Ga.App. 393, 199 S.E.2d 578, which is somewhat similar both as to the facts and law. When the door was opened, the alleged stolen articles were observed in the room. There was no search here as was the case in Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; Frazier v. Cupp, 394 U.S. 731, 732(4), 89 S.Ct. 1420, 22 L.Ed.2d 684; Ker v. California, 374 U.S. 23, 43, 83 S.Ct. 1623, 10 L.Ed.2d 726; in which the plain view doctrine is discussed.

There was no illegal search and seizure as the officers were authorized to be where they were when they observed the stolen goods. The trial judge as a finder of fact on the motion to suppress was authorized to resolve any conflicts and find that the stolen goods were properly observed when the defendant voluntarily opened the door. Brand v. State, 129 Ga.App. 747, 749, 201 S.E.2d 180; Brooks v. State, 129 Ga.App. 393(2), 199 S.E.2d 578, supra.

Judgment affirmed.

BELL, C. J., DEEN, P. J., and MARSHALL and SHULMAN, JJ., concur.

QUILLIAN, P. J., and WEBB and SMITH, JJ., dissent.

SMITH, Judge, dissenting.

In 1913 Chief Judge Benjamin Hill of this court observed, "It is not true that in the effort to detect crime and to punish the criminal, 'the end justifies the means.' This is especially not true when the means adopted are violative of the very essence of constitutional free government." Underwood v. State, 13 Ga.App. 206, 213, 78 S.E. 1103, 1106. ¹ Similarly, in the words of Mr. Justice Frankfurter speaking for the Supreme Court of the United States in Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782: "The security of one's privacy against arbitrary intrusion by the police which is at the core of the Fourth Amendment is basic to a free society . . . The knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned . . ." And let us not forget the classic Fourth Amendment synopsis provided by Mr. Justice Stewart in Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564: "Thus the most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions.' The exceptions are 'jealously and carefully drawn' and there must be 'a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.' '(T)he burden is on those seeking the exemption to show the need for it.' In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values it represents may appear unrealistic or 'extravagant' to some. But the values were those of the authors of our fundamental constitutional concepts. In times not altogether unlike our own they won by legal and constitutional means in England, and by revolution on this continent a right of personal security against arbitrary intrusions by official power. If times have changed, reducing everyman's scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important." (cits. omitted)

It is appropriate to recollect the timelessness and continued vitality of these Fourth Amendment protections in cases like that before us now where the state is seeking justification of a warrantless seizure by shoehorning the circumstances of the seizure into one of the narrow warrant requirement exceptions. Specifically, this case involves an application of the "plain view doctrine" to determine whether the inculpatory evidence underlying the appellant's burglary conviction was properly seized. The material facts adduced at a hearing on the appellant's motion to suppress the evidence are as follows:

In the predawn hours of December 4, 1975, Macon police officers Hall and West responded to a call to investigate a reported hotel room burglary. At the hotel they were met by a bellhop who took them to the second floor room of tenant Arthur Peyton who told the officers that he had observed a black male enter a room on the second floor and leave with a portable television, a suitcase, and a coat. He followed the man and saw him enter room 419 with the items. Armed with this information, but not with a search warrant, the officers, accompanied by the bellhop, went to room 419, knocked on the door, identified themselves as police officers, and received no response. There is conflict in the testimony as to what happened at this point, and we are bound by the trial court's resolution of any factual disputes on a motion to suppress. Brisendine v. State, 130 Ga.App. 249(1), 203 S.E.2d 308. The inescapable conclusion to be reached from an examination of the witnesses' testimony and the trial court's statements at the hearing is that the court concluded that the bellhop used his master key to unlock the door and the door then was opened from the inside. Both of the police officers and the bellhop testified at the hearing. Mr. Turner, the bellhop, and Officer Hall each testified that the bellhop unlocked the door. Officer West testified that the bellhop took out his key but did not open the door; he never denied that the bellhop unlocked the door, except when he agreed with the conjunctive statement that the bellhop did not "unlock the door and open it." Thus, there seems to be no conflict in the evidence on this point which is central to the legal analysis of this case. The trial court, indeed, viewed the conflict to be whether the door was unlocked at police direction, not whether the bellhop had in fact unlocked the door. The court stated in the record, ". . . it seems to me they unlocked the door into somebody's home . . ." As will be demonstrated below, the fact that the bellhop unlocked the door, more than any other one fact, but especially in conjunction with the other circumstances, renders the seizures which took place illegal. Unhappily, the majority opinion fails even to mention this crucial fact.

It is not explicitly stated in the record, but the court obviously concluded that the door had been unlocked on the bellhop's own volition without request from the police officers. There also was conflict in the testimony as to who opened the door after it was unlocked the bellhop, one of the officers, or the appellant. The court concluded that the appellant opened the door. There is no explicit statement of the court's findings of fact, so it is important to view the transcript of the evidence and the court's comments as a whole to determine what conclusions were reached. Therefore, all parts of the testimony and all of the court's comments relevant to who unlocked the door at whose direction and who opened it are set forth below:

Officer West, witness for the State, direct examination : "A. We then went to Room 419, knocked on the door several times and Mr. Hatcher asked who it was. We advised him that it was the police come open the door. Q. All right, what happened then? A. He wouldn't come to the door at first, seemed maybe 30, 35, 40 seconds, then the bellhop boy took out his key and was going to open the door and, to my recollection, Mr. Hatcher opened the door and we were standing at the door at this time." * * * Cross examination : "Q. O.K. And so (the bellhop) got out his key and he opened the door then? A. He got out his key but it is to my recollection that he didn't open the door. * * * Q. And you say again that the man on the inside, who was subsequently identified as Richard Hatcher, had opened the door? A. To my recollection. * * * Q. . . . Then you said that (the bellhop) did not admit you to the room. You say he just got the key out but he didn't unlock the door and open it? A. To my recollection. Yes, sir." * * *

Doug Turner, bellhop, witness for the appellant, direct examination : "Q. Did the police say anything? A. Sure. They knocked on the door, called him. Q. O.K. And there was no answer to the door? A. No answer. Q. So what happened then? A. I opened the door. Q. You unlocked the door and opened it up? A. That's right. An...