Jackson v. State, No. A06A1599.

• Decision Date: 26 July 2006
• Docket Number: No. A06A1599.
• Citation: 280 Ga. App. 716,634 S.E.2d 846
• Parties: JACKSON v. The STATE.
• Court: Georgia Court of Appeals

280 Ga. App. 716

634 S.E.2d 846

JACKSON v. The STATE.

No. A06A1599.

Court of Appeals of Georgia.

July 26, 2006.

Charles E. Rooks, Carl P. Greenberg, Fulton County Conflict Defender, Inc., Atlanta, for appellant.

Paul L. Howard, Jr., District Attorney, Stephany J. Luttrell, Assistant District Attorney, for appellee.

BLACKBURN, Presiding Judge.

Following a jury trial on a charge of trafficking in cocaine, Andre Jackson appeals the denial of his motion for a new trial, contending (1) that the trial court erred in denying his motion to suppress evidence police found after failing to properly announce themselves while executing a search warrant, and (2) that the trial court erred in denying his motion to suppress his confession, which Jackson argues was not voluntary. For the reasons that follow, we affirm.

In considering an appeal from denial of a motion to suppress, this Court construes the evidence in favor of the trial court's ruling, and we review de novo the trial court's application of the law to undisputed facts. Additionally, we must defer to the trial court's determination on the credibility of witnesses, and the trial court's ruling on disputed facts must be accepted unless it is clearly erroneous. Moreover, in reviewing the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial.

(Citations and punctuation omitted.) Wesson v. State.¹

So viewed, the record shows that after conducting two controlled drug purchases at a residence in College Park, police obtained a "no-knock" warrant to search the residence and arrest the person selling drugs. A SWAT team was assembled to execute the warrant along with narcotics police. As the SWAT team drove into the driveway of the target residence, members of the team saw two or three male occupants standing in an open sliding glass door to the residence. Upon seeing the occupants, the SWAT team turned on its blue lights as officers in marked police cars used the intercom to announce themselves as police with a warrant. The occupants immediately ran back inside the residence, leaving the sliding glass door open. The SWAT team then quickly entered through the open sliding glass door.

Upon entering the residence, the SWAT members secured the occupants of the house, separating two women, one of whom was elderly, and an infant from the five male occupants (including Jackson), who were held in handcuffs. During their search of the residence, police found 28.8 grams of powder cocaine, digital scales, a cocaine cutting agent, and several pieces of crack cocaine. On Jackson's person, police found $1,659 in cash. A pistol and ammunition were found in the garage. After being read a Miranda warning and acknowledging that he understood it, Jackson admitted to owning the drugs for the purpose of selling them.

Jackson was charged with trafficking in cocaine.² Following his conviction by a jury and the denial of his motion for a new trial, Jackson now appeals.

1. Jackson contends that the trial court erred in not suppressing evidence seized following the police's entry into the residence, because the "no-knock" provision of the warrant was improperly granted. This enumeration is without merit.

Generally, police must make a good faith attempt to verbally announce their authority and purpose before entering a building to execute a search warrant. See OCGA § 17-5-27; Barclay v. State.³ However, a warrant can authorize a "no-knock" entry where police seeking the warrant demonstrate "a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." (Punctuation omitted.) State v. Williams.⁴

Here, the warrant's "no-knock" provision was authorized by a magistrate in reliance on a general statement in the affidavit that the State at trial conceded was insufficient to authorize a "no-knock" provision in the warrant. See generally Poole v. State;⁵ Richards v. Wisconsin⁶ (rejecting blanket no-knock provisions in felony drug investigations absent an evaluation of the particularized circumstances of each case). Instead, the State argued, and the trial court agreed, that exigent circumstances existing at the time the police approached the residence justified their immediate entry.

Exigent "circumstances arise when an officer reasonably believes that a warrantless entry is a necessary response on his part to an emergency situation. Whether these circumstances exist is a question of fact to be determined by the trial court, and the judge's decision, if supported by any evidence, is to be accepted." (Citation and punctuation omitted.) State v. Merit.⁷

The trial court based its ruling largely on the fact that when the police drove up to the target residence, several people who were standing in the doorway of the residence saw the police and immediately ran back inside. Three SWAT team members who entered the residence had testified that upon seeing the occupants run back into the house, they immediately announced themselves and pursued the occupants into the house through the open door out of concern that the occupants may become dangerous or destroy evidence.

At the outset, we note that the occupants of the residence observed the SWAT entry team as the team announced its presence and turned on its blue lights in the driveway of the residence. Therefore, additional announcement or delay prior to entry was likely futile.

Furthermore, "[c]ompliance with OCGA § 17-5-27 in the execution of a search warrant is not required where the police have a reasonable, good faith belief that forewarning would increase their peril or lead to the immediate destruction of evidence." Hunter v. State.⁸ Here, there was testimony from members of the SWAT team that concern for officer safety and the preservation of evidence prompted the team's immediate entry into the residence. In light of the occupants' immediate flight upon seeing police, into a residence where police had recently conducted controlled drug purchases, there was evidence to support the trial court's ruling that the officers had a reasonable belief that the fleeing occupants may retrieve weapons or may destroy evidence. Therefore, the entry was authorized and, once legally inside the residence, the police were authorized to execute the search warrant that led to the discovery of Jackson's involvement in the drug sales at the residence. See Adams v. State.⁹

In so ruling, we view this case as distinct from Poole v. State, supra, 266 Ga.App. at 116(1), 596 S.E.2d 420 in which this Court ruled that in a case where an occupant of a house briefly appeared at a window and saw the officers outside the house prior to the search, the officers could not demonstrate exigency on that basis alone. In that case, this Court explained, "[t]o find exigent circumstances in this case would amount to the adoption of a per se rule that once law enforcement officers realize that an occupant of the premises to be searched for drugs has discovered the officers' presence outside the premises, the notice requirement is excused." Id. at 119(1), 596 S.E.2d 420. Here, however, it is the immediate flight of the occupants from an open exterior doorway back into the residence that concerned officers and distinguishes this case. As explained by members of the SWAT team, "by them running from us, anything could happen, they could be getting guns. . . . I wouldn't be so concerned if they leave the house or something. But if they go in the house, I don't know if there's guns. . . . We were mainly concerned with the people running back in for possible weapons." (Emphasis supplied.) Accordingly, we view the facts of this case as distinct from those in Poole. Cf. Richards v. Wisconsin, supra, 520 U.S. at 395(III), 117 S.Ct. 1416 (approving a forced unannounced entry where occupant, upon seeing uniformed officer behind a maintenance man at the partially opened door, slammed door closed).

Finally, notwithstanding our ruling that the officers' manner of entry was authorized here, we note that with respect to the Fourth Amendment of the United States Constitution, the United States Supreme Court, in Hudson v. Michigan,¹⁰ recently held that the suppression of evidence is not a constitutionally required remedy to police's improper manner of entry pursuant to an otherwise valid search warrant. See State v. Martin¹¹ ("an appellate court applies the law as it exists at the time its opinion is rendered").

2. Jackson contends that the trial court erred in not...