Merriman v. State
| Decision Date | 15 November 1991 |
| Docket Number | No. A91A1207,A91A1207 |
| Citation | 412 S.E.2d 598,201 Ga.App. 817 |
| Parties | MERRIMAN v. The STATE. |
| Court | Georgia Court of Appeals |
P. Samuel Huff, Marietta, for appellant.
Garry T. Moss, Dist. Atty., for appellee.
Defendant appeals his conviction of trafficking in marijuana, OCGA § 16-13-31(c). He enumerates as error the denial of his motion to suppress evidence which he contends was illegally obtained, OCGA § 17-5-30, and the failure to fully grant his motion for independent examination and analysis of alleged contraband substances.
1. Dennis v. State, 166 Ga.App. 715, 716, 305 S.E.2d 443 (1983). See also Johnson v. State, 233 Ga. 58, 209 S.E.2d 629 (1974); State v. Medders, 153 Ga.App. 680, 681, 266 S.E.2d 331 (1980). The evidence presented to the trial court at the hearing, supportive of the facts as found by the court, showed the following.
Based upon an anonymous telephone tip that marijuana was growing in defendant's backyard, two deputy sheriffs and a GBI agent proceeded to his residence. There they found the yard enclosed partly by a high brick wall and partly by a wooden fence about eight feet high. Unable to view anything from the portion protected by the brick wall, the three officers moved through a heavily wooded area in the back to the wood fence. There they looked through cracks in the fence into the backyard and saw marijuana plants growing. The officers began to return to their automobile through the woods when one of them saw a light-haired person above the fence, who ducked down as he glanced. They then ran.
The officers conferred among themselves and with their superior by phone. They determined that, because they had been seen by a person at the house, evidence inside the house such as more marijuana, money, records, and ledgers, might be destroyed before they could obtain a search warrant. After calling for and obtaining back-up, they proceeded to the house. Defendant's wife, who looked like the person the officers had seen earlier, answered the door knock and, in response to a question, said she lived there. When she indicated she needed to quiet her dogs, they followed her into the living room and arrested her on a charge of manufacturing marijuana. Upon entry, one of the officers smelled what he perceived to be burning marijuana. Once inside they observed a burning marijuana cigarette and green leafy material in a plastic bag. After the arrest, which was occasioned by the backyard marijuana, the officers conducted a search of the house, during which time defendant's wife signed a consent form. They later obtained a search warrant.
When defendant arrived home, he was arrested for manufacturing marijuana, and subsequently charged with trafficking in it. He contends that all the marijuana found in his house as well as the growing plants in his yard was illegally seized in violation of the Fourth Amendment of the United States Constitution and the Georgia Constitution and laws.
We consider only whether the arrest and search were legal under federal constitutional law because defendant has not otherwise separately articulated state law on appeal. An independent issue has not been adequately presented. Bonds v. State, 188 Ga.App. 135, 372 S.E.2d 448 (1988). Going back a bit, defendant in his motion only referred to the state constitution in general, and the trial court did not rule on its application. In order to obtain review, appellant must raise the ground below and obtain a ruling on it. Hoover v. State, 198 Ga.App. 481, 482(3), 402 S.E.2d 92 (1991); Bailey v. State, 198 Ga.App. 632(1), 402 S.E.2d 363 (1991).
"[A] police officer who observes contraband in plain view is entitled to seize it, so long as he is at a place where he is entitled to be, i.e., so long as he has not violated the defendant's Fourth Amendment rights in the process of establishing his vantage point." State v. Aultman, 160 Ga.App. 550, 551, 287 S.E.2d 580 (1981). Accord State v. Zackery, 193 Ga.App. 319, 387 S.E.2d 606 (1989).
The evidence is unclear exactly where the boundary of defendant's land was, in relation to where the officers were when they peered through the wooden fence. Defendant and his wife testified that the fence was approximately one-and-one-half to two feet inside the boundary line but there was no documentary or disinterested evidence to confirm their self-serving statements that their property extended beyond the fence. The trial court found that the point of the officers' observation "was not precisely established by the evidence." The court found that they were either on or within one foot of the line separating defendant's property from that of adjoining land. There was no finding that the officers had transgressed onto defendant's property. Credibility and weight are matters for the factfinder, who could reject the occupants' testimony as to property line. Woodruff v. State, 233 Ga. 840, 844(3), 213 S.E.2d 689 (1975); Ward v. State, 193 Ga.App. 137, 138(1), 387 S.E.2d 150 (1989).
"Plain view" as used by the Georgia courts should not be confused with the "plain view doctrine" as described in Coolidge v. New Hampshire, 403 U.S. 443, 464, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564 (1971). "Open view" is a better term to describe the nonintrusional visual observation from a vantage point outside a constitutionally protected area. The "plain view doctrine" of Coolidge "refers exclusively to the legal justification--the reasonableness--for the seizure of evidence which has not been particularly described in a warrant and which is inadvertently spotted in the course of a constitutional search already in progress or in the course of an otherwise justifiable intrusion into a constitutionally protected area." Brown v. State, 15 Md.App. 584, 292 A.2d 762, 775 (1972). It involves first whether there was a valid intrusion into a constitutionally protected area; then whether the discovery was inadvertent. Because an "open view" encompasses that which is readily observable or clearly visible from an observation point which is not within a constitutionally protected confine, this sighting of evidence needs no further justification for a seizure. Brown, supra 292 A.2d at 774. Contrary to appellant's assertion, "plain view" does not require inadvertence. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).
One issue was whether the observation occurred from a constitutionally protected area. The trial court's finding of fact that the officers did not trespass upon defendant's property was not clearly erroneous. Moreover, even if they were on or within the defendant's property line by the short distance claimed, it would constitute a "valid intrusion" under the circumstances. These included the fact that it appeared that the property beyond the fence belonged to the neighboring lot and the fact that defendant had not protected it from view in any manner whatsoever. As to "valid intrusion," see State v. Zackery, supra, and cases cited therein. Compare Bunn v. State, 153 Ga.App. 270, 265 S.E.2d 88 (1980).
The other issue with regard to the observation of the marijuana is whether deliberately looking for it, and seeing it, through narrow gaps between the fence boards was constitutionally permissible. California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811-12, 90 L.Ed.2d 210 (1986).
As to the first part of the inquiry, placing an eight-foot high slat fence around one's backyard would normally manifest a subjective expectation of privacy and did in this case. But, this did not cover all observations from any vantage point such as from the air or from someone perched in a tree looking over the fence. Defendant's expectation of privacy from observation through openings in the fence would not be a reasonable expectation. As restated in Ciraolo, supra at 212, 106 S.Ct. at 1812: Applying the reasoning followed in Ciraolo, the observation into Merriman's curtilage, which did not constitute any physical tampering with the fence or intrusion into or beyond it but merely a visual exercise, did not violate defendant's right to a reasonable expectation of privacy.
We take counsel in this analysis from the following cases. In State v. Pontier, 95 Idaho 707, 518 P.2d 969, 974(9-11) (1974), deliberate police observation of marijuana plants over a waist-high picket fence was deemed constitutionally permissible. The court held "that objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence." In United States v. McMillon, 350 F.Supp. 593 (D.D.C.1972), officers standing on their tiptoes or a box looked from a neighboring porch over a six-foot high stake fence overgrown with vines and bushes. As found in Merriman's case, the officers at no time during the course of the observation physically intruded onto the defendant's yard or premises. The court...
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