King v. State
Decision Date | 14 July 1995 |
Docket Number | No. A95A0166,A95A0166 |
Parties | KING v. The STATE. |
Court | Georgia Court of Appeals |
A. Larry King, Jonesboro, for appellant.
Keith C. Martin, Sol., Michael P. Baird, Asst. Sol., Jonesboro, for appellee.
Defendant was charged with possession of less than one ounce of marijuana in violation of Georgia's Controlled Substances Act. Defendant filed a motion to suppress the suspected marijuana, contending law enforcement officers unlawfully entered his home in the early morning hours of April 30, 1994, without consent and without a search warrant. The trial court denied the motion to suppress, finding that exigent circumstances arose while a deputy sheriff was attempting to execute an arrest warrant (for defendant's former house-mate) which authorized the deputy's "de minimis entry into the house to ensure his safety." We granted this interlocutory appeal because the circumstances do not support the trial court's finding that exigent circumstances arose authorizing the deputy's warrantless intrusion into defendant's home.
The evidence adduced at a hearing on defendant's motion to suppress reveals the following: At about 2:30 in the morning on April 29, 1994, Deputy Martin Carlisle Tischner of the Clayton County Sheriff's Department went to defendant's home to execute a warrant for the arrest of Dwayne Lee Smith, a former tenant at defendant's house. Deputy Tischner knocked on the front door, watched defendant (through a window) approach this entrance and then observed defendant retreat Defendant then allowed Deputy Tischner into the house, but the deputy's search only revealed items of personal property in the room where Smith formerly resided. Before leaving, however, defendant advised Deputy Tischner of Smith's last known place of employment and a business establishment where Smith "sometimes 'hangs out.' "
Suspecting that defendant was secreting Smith's whereabouts, Deputy Tischner returned to defendant's home at 6:30 the next morning (April 30, 1994) with Clayton County Deputy Sheriff Mark Anthony Jordan. This time, Deputy Tischner covered the side and back of the house while Deputy Jordan went to the front door and summoned defendant. When defendant opened the door, Deputy Jordan "asked [whether Dwayne Lee Smith] was at that residence and [defendant] started to back up in the doorway." Deputy Jordan then "told [defendant that he] needed to come in and discuss this [with] him." Defendant did not respond. He simply and, after stepping about "two-and-a-half, three feet[,]" he "happened to look on the coffee table in the middle of the living room and noticed a Wendy's cup ... with a clear plastic baggy with a green leafy material inside of it." When Deputy Jordan questioned defendant about the contents of this vessel, defendant "grabbed the cup [and] shoved it up underneath the couch." Deputy Jordan instructed defendant to retrieve the object. Defendant complied, but the cup came up empty. The deputy then reached under the sofa and seized a plastic bag containing a substance which appeared to be marijuana. Held:
In Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38, the United States Supreme Court Otwell v. State, 201 Ga.App. 71, 72, 410 S.E.2d 178.
In the case sub judice, it is undisputed that Deputy Jordan did not have consent or a search warrant when he entered defendant's home at 6:30 in the morning on April 30, 1994. Further, we find Deputy Jordan's testimony insufficient to support the trial court's finding that exigent circumstances arose which required the deputy's "de minimis entry into the house to ensure his safety."
"[A]n exigent circumstance which does justify the warrantless entry of a private home is the officer's reasonable belief that such action is a necessary response on his part to an emergency situation." Coker v. State, 164 Ga.App. 493, 495(5), 496, 297 S.E.2d 68. In the case sub judice, there is no evidence that defendant made threatening moves or gestures during his early morning encounter with Deputy Jordan, and Deputy Jordan failed to explain why it was necessary for him to advance into defendant's house "for [his] safety." Deputy Jordan merely testified that defendant appeared to be "[a]gitated" and that he stepped into the house when defendant "started backing up into the living room." While these circumstances may provide some remote support for Deputy Jordan's subjective belief that defendant posed an immediate threat to his safety, it cannot be reasonably said that the deputy's advance into defendant's home was a necessary (or wise) response to any perceived threat posed by defendant. Defendant's "agitation" at 6:30 in the morning, after having twice informed the police that Smith no longer resided with him (even proving this fact to Deputy Tischner the day before), and defendant's backing into his home, certainly did not put the deputy in jeopardy so as to require...
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