Lewis v. State

• Decision Date: 22 February 2021
• Docket Number: A20A1704
• Parties: LEWIS v. The STATE.
• Court: Georgia Court of Appeals

358 Ga.App. 482

855 S.E.2d 708

LEWIS

v.The STATE.

A20A1704

Court of Appeals of Georgia.

February 22, 2021

Steven Lee Sparger, Savannah, for Appellant.

Margaret Heap, Shalena Cook Jones Jones, Kurtis Charles Bronston, for Appellee.

Dillard, Presiding Judge.

Following a trial by jury,¹ Timothy Omar Lewis was convicted of possessing marijuana with intent to distribute, possessing a controlled substance with intent to distribute, and possessing tools for the commission of a crime.² Lewis now appeals, arguing that (1) the trial court erred in denying his motion to suppress evidence, (2) there was insufficient evidence as to possession of a controlled substance, and (3) the trial court erred in sentencing him. Because we agree that the trial court erred in denying the motion to suppress evidence, we reverse Lewis's convictions.

Viewed in the light most favorable to the jury's verdict,³ the record shows that on the evening of March 23, 2016, David Gratton—an officer with the Savannah Police Department—was responding to a non-emergency call when he passed through his assigned precinct. While doing so, he observed Lewis (with whom he was familiar) sitting on the side porch of his home with money in hand and making motions as if weighing something on a scale. And based on those observations, Gratton believed Lewis was weighing and portioning drugs; so, he stopped his vehicle and got out to watch Lewis from the street before calling for backup.

When the backup officer arrived, Gratton called out to Lewis, who responded "oh shit" and stuffed what he had been weighing under the stairwell. Lewis then told the officers—who were standing on the other side of the chain-length fence surrounding his house—not to come onto the property.

Lewis walked toward the officers, demanded to speak to a supervisor, and engaged with backup while Gratton walked onto an abandoned property beside Lewis's house. Standing on the other side of the chain-length fence separating Lewis's property from the one next door, Gratton was mere feet away from where Lewis had been sitting on the side of his house. And on the side steps of Lewis's house, Gratton could see a scale with marijuana residue and residue of a white powdery substance, which he believed to be cocaine. At this point, the supervisor that Lewis requested arrived on the scene. Then, with the approval of the supervisor, officers entered Lewis's yard and retrieved the scales from the steps and multiple bags of drugs that had been pushed under the house when Lewis noticed the officers at the fence.

Lewis was subsequently convicted of possessing marijuana with intent to distribute, possessing a controlled substance with intent to distribute, and possessing tools for the commission of a crime. This appeal follows the denial of his motion for a new trial.

1. Lewis argues that the trial court erred by denying his motion to suppress evidence. Specifically, he challenges the trial court's finding that the property from which officers observed the relevant contraband was "apparently abandoned." He further takes issue with the trial court's finding that the officers lawfully seized the contraband from his property without a warrant under exigent circumstances.

When we consider the denial of a motion to suppress, we construe "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."⁴ Furthermore, 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."⁵ With this in mind, we turn to Lewis's contentions on appeal.

(a) Abandoned Property. Lewis challenges the officers’ entrance onto the neighboring property to get a better view of what he was doing, arguing that the evidence did not establish the property was "apparently abandoned." But Lewis never argued to the trial court that the officers lacked permission to enter the neighboring property and, thus, did not view the contraband from a location in which they were legally entitled to be.⁶ Nor did he argue to the trial court, as he forcefully does now on appeal, that the body-cam video does not support a finding that the property next door was abandoned—leading to the conclusion that officers lacked permission to be on the neighboring property. To the contrary, in the trial court, he only asserted that the officers improperly intruded onto his property without a search warrant. Nevertheless, in denying Lewis's motion to suppress, the trial court made a finding of fact that the neighboring home was "apparently abandoned."

So, because Lewis never argued to the trial court that the officers lacked permission to occupy the neighboring property,⁷ he arguably failed to preserve this issue for appeal.⁸ But even if we were inclined to reach the merits of this argument (as a result of the trial court's finding that the property was abandoned), Lewis's contention is a nonstarter. Officer Gratton unequivocally testified that the neighboring property was abandoned and that—as part of his patrol duties—he regularly checks on this house by walking around it to ensure no criminal activity is taking place. He further testified to personally dealing with criminal activity at the house because people would "hang out" and "squat" there, and he knew the interior of the home was destroyed, uninhabitable, and dirty. As a result, Gratton was intimately familiar with the abandoned house next to Lewis's dwelling because of his daily patrol duties to ensure that it is not inhabited by squatters or used to conduct illegal activity.

Suffice it to say, the trial court obviously credited this testimony when it made its finding of fact that the neighboring house was "apparently abandoned." Additionally, the trial court noted that officers moved freely about the property without any indication of a lawful occupant complaining. The trial court did not clearly err, then, in finding that the neighboring house was abandoned⁹ or, accordingly, that the officers permissibly entered the neighboring property from which they observed the contraband.¹⁰

(b) Exigent Circumstances. Lewis also challenges the trial court's conclusion that the officers were authorized to enter the "curtilage"¹¹ of his property to confiscate the contraband which they viewed from the abandoned property next door. He argues that exigent circumstances did not exist to support the officers’ entry onto his property without a warrant. On this point, we agree.

It is true that "[n]ot only must the officer be lawfully located in a place from which the object can be plainly seen,"¹² as we determined the officers were in Division 1 (a), but he or she must also have "a lawful right of access to the object itself."¹³ Indeed, under the Fourth Amendment to the United States Constitution,¹⁴ police officers are "prohibited from entering a person's home or its curtilage without a warrant absent consent or a showing of exigent circumstances."¹⁵ This is true even when items of contraband are visible within an officer's plain view.¹⁶

In this case, the trial court concluded that the officers had a lawful right to access the contraband they viewed from the neighboring property without first obtaining a warrant because they operated under exigent circumstances. An "exigent circumstances" analysis requires a determination of "whether police had an objectively reasonable basis for fearing the imminent destruction of the evidence at issue during the time it took police to obtain a search warrant."¹⁷ And the appropriate inquiry is whether "the facts, as they appeared at the moment of entry, would lead a reasonable, experienced officer to believe that evidence might be destroyed before a warrant could be secured."¹⁸

Here, the record shows that during Lewis's encounter with law enforcement, a crowd of onlookers gathered in the vicinity, and occupants from within Lewis's home began interacting with police. All the while, the scales with drug residue remained in open view on the side steps of Lewis's house. In light of this evidence, the trial court concluded that exigent circumstances supported the officers’ decision to retrieve the contraband from Lewis's property without a warrant because there was a "genuine risk of evidence destruction."

But at the motion-to-suppress hearing, Gratton testified that when the supervisor arrived, he was told to seize the contraband simply because it was in plain view from the neighboring abandoned property. And when Gratton was asked specifically why he did not get a warrant to retrieve the contraband, he responded simply, "Plain view." He further testified that Lewis was arrested after the contraband was seized.

In short, there was no testimony suggesting that the officers entered Lewis's property under exigent circumstances. Indeed, at trial, Gratton testified regarding discussions about calling an assistant district attorney to get a search warrant for inside Lewis's house, but one was never obtained because officers decided to leave that task up to another department. But because officers considered obtaining a warrant for the inside of the house, the home's occupants were at one point detained outside to safeguard any evidence that might be inside.

In light of the foregoing, the record does not support the trial court's finding that the officers were entitled to retrieve evidence from the curtilage of Lewis's property under exigent circumstances. To the contrary, the foregoing testimony by Gratton established that the officers walked onto the property and retrieved the contraband from the curtilage of the home simply because it was in "plain view," not because they believed it was in danger of imminent destruction. Indeed, the officers’ ability to successfully secure the house in anticipation of obtaining a warrant to search inside evinces the lack of exigent circumstances. And there is no evidence to suggest that the...