Lewis v. State, 46804
| Decision Date | 07 April 1972 |
| Docket Number | No. 46804,No. 1,46804,1 |
| Citation | 126 Ga.App. 123,190 S.E.2d 123 |
| Parties | Wayne LEWIS v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The motion to dismiss the appeal is denied.
2(a), 3, 4. None of the enumerations of error taken up in these divisions of the opinion have any merit.
2(b). The use of the words 'is now' in an affidavit to support a search warrant was sufficient to show that the facts recited were current and not stale.
5. Prior to the 1971 amendment to the Statute relative to pre-sentence hearings (Ga.L.1971, p. 902), it was reversible error to deny defendant's counsel the opening and concluding argument at the presentence hearing.
The defendant appeals his conviction of burglary.
On May 1, 1970, a house was burglarized in Coffee County. Wooden doors, locks, a water heater, a stepladder, cans of paint, power tools and a hose were stolen. The sheriff and a GBI agent on May 1, 1970, investigated and discovered the tracks of a vehicle in the concrete driveway which appeared to have been made by four mud grip tires. As the defendant had been known to own a truck with mud grip tires, these two officers on the same date proceeded to the defendant's house in Bacon County and observed the defendant's black Ford van-type truck which was equipped with four mud grip tires parked next to the house in a fenced yard. They observed from the public road fresh tracks in the yard made by the vehicle and these tracks appeared to be identical to those they had seen earlier at the site of the burglary. They then contacted the Sheriff of Bacon County. All three returned to the defendant's home. Upon arrival and while still in the public road, they saw another truck, a pickup, in the yard backed up to the rear of the van truck. The officers proceeded on past the house, turned right onto a side street running adjacent to the hosue, which afforded them a side view of the trucks. At this time they saw an unidentified individual standing between the vehicles. From this vantage point the GBI agent testified he saw wooden doors, cans of paint, and the bottom of a hot water heater on the pickup truck. The Coffee County Sheriff testified he saw a stepladder on the van truck. These items appeared to the officers to be the same as those stolen. They drove on around the block and stopped in front of the house. The GBI agent and the Bacon County Sheriff entered the fenced yard but the other officer did not. The individual seen earlier had disappeared. The serial number on the water heater was checked on the truck and it corresponded with the stolen one. The GBI agent testified that at this time he saw on the trucks, in addition to those items observed earlier from the road, power tools and a stepladder. They left the yard. The Coffee County Sheriff departed to obtain a search warrant and the other two remained behind and stationed themselves in the public roadway to prevent any removal. A search warrant was obtained from a justice of the peace, served, and the items on the trucks, the property stolen, were seized. The defendant was then arrested. Defendant was furnished an inventory of the items at the time of seizure. No written return of the articles seized was ever made to the officer issuing the warrant or any other court under Code Ann. § 27-310. Defendant's timely motion to suppress the evidence seized from the two trucks on the ground of an unlawful search and seizure was denied. This and other rulings are enumerated as error.
M. C. Pritchard, Waycross, for appellant.
Dewey Hayes, Dist. Atty., Douglas, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, Mathew Robins, Asst. Attys. Gen., Atlanta, for appellee.
1. The motion to dismiss the appeal is denied.
2a. There is no merit in either contention of the defendant that the search warrant is void because the affiant was not sworn or because of the failure to make a return on the articles seized. The testimony of the justice of the peace and the affiant given at the suppression hearing both affirmatively show that the latter gave his evidence under oath. The failure to make a return on the search warrant is a ministerial act and does not affect the validity of the search. Williams v. State, 125 Ga.App. 170, 186 S.E.2d 756.
b. There remain questions of whether the warrant was rendered unlawful because of the alleged unlawful trespass upon defendant's premises and the alleged failure to make a proper showing of probable cause for issuance of the warrant. The State contends there was no search at all as the property was seen from the public road, thus open to public view. This point is well taken. A police officer is free to use and seize what he sees in plain sight if he is at a place where he is entitled to be. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067. What is the effect of their subsequent entry without a warrant onto the defendant's premises? The trucks were right next to the defendant's house within an enclosed yard and within the curtilage. It is the general rule that a warrant is required to search the curtilage. Black v. State, 119 Ga.App. 855, 857, 168 S.E.2d 916. The intrusion under those circumstances was a trespass and unlawful. It cannot be said that no search was conducted because of the fact that at least the items on the pickup were open to plain view. The serial number on the water heater was not open to view nor was any of the contraband contained on the van truck, except the stepladder. A search is a quest for information and that is exactly what the officers were accomplishing when they entered. This search without a warrant cannot be justified on the basis that the trucks were movables. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. The trucks were unoccupied and not located on a public street; there was no threatened removal or destruction of the criminal goods. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436. That there was ample opportunity to obtain a warrant is conclusively shown by the fact that one was obtained. Thus any information acquired by these officers after entry onto defendant's premises was unlawfully obtained as there was no search warrant at that time authorizing the entry. Black v. State, 119 Ga.App. 855, 168 S.E.2d 916 supra. The inquiry posed is whether the unlawful entry of the officers so tainted the evidence as to preclude the State from using it. The 'fruit of the poisonous tree' doctrine is limited to evidence which the police cannot trace to an independent and lawful source. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. The observation by the police on the public street as to what was contained in the pickup truck as well as the tire tracks and mud grip tires was legitimately obtained and would constitute probable cause for an issuance of a warrant which would authorize seizure. If lawfully obtained information amounts to probable cause, separate and apart from the tainted information, the evidence seized pursuant to the warrant is admissible provided the lawful evidence showing the probable cause is furnished in the affidavit supporting the warrant. United States v. Sterling, 3rd Cir., 369 F.2d 799; James v. United States, 135 U.S.App.D.C. 314, 418 F.2d 1150. The affidavit in this case, made by the officer who did not enter the premises, recited that the affiant was positive that there 'is now' located on defendant's premises the described missing items of property 'which are stolen from Walter and Tom Wilson at Douglas, Georgia . . . and the facts tending to establish the...
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...identifying themselves, and without asking permission to enter?" Id., 129 Ga.App. at 119, 199 S.E.2d 109. In both Lewis v. State, 126 Ga.App. 123, 190 S.E.2d 123 (1972), and Black v. State, 119 Ga.App. 855, 168 S.E.2d 916 (1969), the officers entered the curtilage of homes without warrants ......
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