Kelley v. State
| Decision Date | 12 June 1978 |
| Docket Number | No. 55384,55384 |
| Citation | 245 S.E.2d 872,146 Ga.App. 179 |
| Parties | KELLEY et al. v. The STATE. |
| Court | Georgia Court of Appeals |
William O. Carter, Hartwell, James K. Jenkins, Atlanta, for appellants.
J. Cleve Miller, Dist. Atty., Lindsay A. Tise, Jr., Asst. Dist. Atty., for appellee.
The four appellants were arrested for violating the Georgia Controlled Substances Act following the discovery and seizure of a large marijuana crop in rural Hart County. This case is before us on interlocutory appeal from the denial of appellants' motion to suppress the seized evidence. We find that the warrantless search of the appellants' premises cannot be sustained under any valid exception to the warrant requirement, so the trial court is reversed.
The primary evidence at the hearing on the motion to suppress was the testimony of Sheriff Sanders, of Hart County. Sanders testified that he first saw two of the appellants, Carlan and Thurman, at an automobile parts store in Hartwell, about one week prior to the drug seizure. Carlan and Thurman aroused his suspicion, he said, because they were strangers in town and wore long beards and drove a dune buggy; the sheriff resolved to keep an eye on them. At a committal hearing held on July 27, 1977, the sheriff testified that he ran a check on Carlan and Thurman and found that they were not employed in the county. About ten weeks thereafter at the October 6, 1977, suppression hearing, he denied having performed any such investigation.
Although his testimony on this next point was somewhat equivocal and self-contradictory, the sheriff testified generally that sometime before the seizure, possibly the night before, he drove down a dirt road running through an area known as the Rice Mill area. At that time he noticed that a metal gate blocking a road into a fenced pasture was locked, though he had never before known the gate to be locked. Also, he noticed what appeared to be dune buggy tracks going up the road.
The date of the drug seizure was June 17, 1977, and it took place in a clearing amid dense woods at the end of the fenced-off road in the Rice Mill vicinity. At the preliminary hearing, defense attorneys intensely probed Sheriff Sanders' reasons for going out to the property on that day, and he added nothing to the above facts. For example, after the sheriff described his discovery of the locked gate and dune buggy tracks, the following exchange transpired:
The cross examination probe into the sheriff's reasoning continued a little later at the committal hearing:
In the ten weeks which then elapsed before the suppression hearing, the sheriff was able to collect his thoughts and recollect the events leading up to the seizure. On direct examination at the suppression hearing, the sheriff offered but one reason for his field trip to the Rice Mill area: Sheriff Sanders went on to describe the anonymously placed call which related no specific activity but advised him to check the area. He never mentioned this precipitating phone call at the committal hearing. Nor did he mention the bearded men in a dune buggy, the locked gate, or the dune buggy tracks at the suppression hearing until they were coaxed out of him on cross examination.
After receiving the anonymous tip, Sheriff Sanders summoned Deputy Sheriff Vaughn, and together they drove to the Rice Mill area in an unmarked police car. They parked on a different road than the road where the sheriff had previously noticed the locked gate, and from the parked car they walked about three quarters of a mile "around and around in circles" in the densely wooded land. Finally, the sheriff was able to see through the woods into a clearing. Both the woods and the clearing were on flat land. In the clearing, some 100 yards away from the sheriff, the sheriff was able to spot a garden, and in the garden he was able to discern corn plants, bean plants, and among those vegetables, patches of marijuana plants. He spotted two men walking among the marijuana plants, looking at them, and appearing to talk about them, though they were not harvesting them. And they wouldn't be harvesting the plants, because from 100 yards through the underbrush the sheriff was also able to discern that the plants were too young to be harvested.
He pointed out his find to his deputy, and together they gazed upon the two men, their crop, two large tents, a motorcycle, and a dune buggy, all in the clearing. The two officers neared the clearing and were able to maneuver through the dense woods undetected. As the two men neared the end of one row of the crop, the officers emerged from the undergrowth and inquired as to what they were doing. The officers walked across the field toward the tents and the vehicles, and when they reached the other side of the clearing they advised the men that they were under arrest.
The two men turned out to be brothers named Kelley. A search of the tents in the clearing showed that they were apparently being used as dwellings. Certain items in the tents were identifiable as belonging to Carlan and Thurman, and they, too, were located and arrested. The clearing and large expanses of the surrounding woodlands are owned by a Mrs. Rice, who is a grandmother of the two Kelleys. Carlan, Thurman, and both Kelleys are appellants here.
A. Was there an expectation of privacy ? In its brief, the state asserts "that a tent is not characterized at common law as coming within the purview of the type of domesticized structure as to be considered under the Fourth Amendment." We know of no such constraints on the Fourth Amendment's applicability, and the state has cited no authority for the above proposition. Though a tent may not provide the sturdy protection against the winds, the rains, the heat, and the cold, which a customary house provides, the tent-dweller is no less protected from unreasonable government intrusions merely because his dwelling has walls of canvas rather than walls of stone. A dwelling place, whether flimsy or firm, permanent or transient, is its inhabitant's unquestionable zone of privacy under the Fourth Amendment, for in his dwelling a citizen unquestionably is entitled to a reasonable expectation of privacy. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, ...
To continue reading
Request your trial
-
Com. v. Peterson
...amendment, for in his dwelling a citizen unquestionably is entitled to a reasonable expectation of privacy.Kelley v. State, 146 Ga.App. 179, 245 S.E.2d 872, 874-875 (1978).Just as the canvas walls in Kelley did not rob the tent of constitutional protection, so the barricades and fortificati......
-
Whiting v. State, 4
...States v. Sandoval, 200 F.3d 659, 661 (9th Cir.2000), United States v. Gooch, 6 F.3d 673, 677 (9th Cir.1993), and Kelley v. State, 146 Ga.App. 179, 245 S.E.2d 872, 874 (1978). In Sandoval, 200 F.3d at 661, the court found that the defendant possessed an objectively reasonable expectation of......
-
People v. Slavin
...a tent is sufficiently similar to a private dwelling to render warrantless government intrusion unreasonable. In Kelley v. State, 146 Ga.App. 179, 245 S.E.2d 872, 874–75 (1978), the court held that “[t]hough a tent may not provide the sturdy protection against the winds, the rains, the heat......
-
Giddens v. State
...or surrounding curtilage. Various cases cited by the parties dealing with such issues are inapposite. Particularly, Kelley v. State, 146 Ga.App. 179, 245 S.E.2d 872 is inapposite as in that case the defendant's expectation of privacy arose from the fact that the area in question was within ......