Perry v. State

• Decision Date: 23 June 1992
• Docket Number: No. A92A0998,A92A0998
• Parties: PERRY v. The STATE.
• Court: Georgia Court of Appeals

Page 922

419 S.E.2d 922

204 Ga.App. 643

PERRY v. The STATE.

No. A92A0998.

Court of Appeals of Georgia.

June 23, 1992.

Harrison & Harrison, Stephen P. Harrison, Brunswick, for appellant.

Tommy K. Floyd, Dist. Atty., Charles E. Rooks, Asst. Dist. Atty., for appellee.

BIRDSONG, Presiding Judge.

James William Perry appeals from his judgment of conviction of DUI and habitual violator, the denial of his motion for new trial, and the sentence. He claims that the trial court erred in denying his motion for new trial on three separate grounds. Held:

1. We note that certain assertions of fact are contained in appellate briefs which are not supported by evidence of record. Such assertions will not be considered on appeal. Behar v. Aero Med Intl., 185 Ga.App. 845(1), 366 S.E.2d 223; accord Robinson v. State, 200 Ga.App. 515(1), 408 S.E.2d 820. Additionally, an appellate court in determining the legal propriety of a trial court's ruling on a motion to suppress can consider all the relevant evidence of record whether found in the trial transcript and record or in the transcript of the suppression motion hearing. See Gregg v. State, 201 Ga.App. 238, 240(3b), 411 S.E.2d 65; Jones v. State, 187 Ga.App. 421, 422-423, 370 S.E.2d 784.

2. Appellant asserts the trial court erred in admitting the testimony of a law enforcement officer that he observed appellant driving a motor vehicle and in admitting the results of a State-administered breath test, because appellant's arrest was illegal.

A detective of the county sheriff's department received and responded to several complaints of loud noises in the vicinity of a field off a local public road. When the detective arrived in the area, he turned off his engine on the public road and heard screaming, hollering and music. The hollering sounded like people fighting and appeared to be coming from the direction of a power line easement area. Trying to locate the spot from whence the noise was emanating, the detective entered private property on a dirt road entering the easement area. Although there is a gate located on the dirt road a short distance from the public roadway, it cannot be closed. The detective drove the police vehicle along the dirt road within the power line easement and continued to turn off his engine to listen for the sounds. Thereafter, while still within the easement area, he heard the sound of an engine being "cranked-up," of wheels spinning, and the sound of a vehicle coming out of the woods towards the police car--hitting bushes and trees as it moved. The detective then observed the vehicle coming quickly out of the woods and he turned the blue light on in the police vehicle. Appellant who was driving the vehicle "pulled on into the power line and ... stopped prior to [reaching the police] car." A passenger jumped from the front passenger seat and ran away. Appellant smelled of a strong odor of alcohol, swayed badly, and leaned against the car for support when talking. He made a voluntary, spontaneous admission that he was "too drunk to drive." Appellant was arrested for DUI, and a subsequent Intoximeter 3000 printout showed a reading of .24. Appellant apparently was an invitee on the private property and was neither owner nor lessee thereof. The detective did not have either the owner's or lessee's permission to enter the private property when he did so.

Appellant's attorney conceded at the suppression hearing that the motion to suppress goes merely to whether the detective had a legal right to be where he was when the stop was made. The trial court held that the case at bar does not fall within those cases pertaining to "curtilage case law," and tacitly found as fact that the incident occurred in an open field. After considering the open field issue, the trial court denied the suppression motion.

County police, including the county sheriff, have general police power to investigate and make arrests (OCGA § 36-8-5; see OCGA § 15-16-10(a)(8); § 17-4-27) as other law enforcement officials (OCGA § 17-4-20(a)). Hudgins v. State, 188 Ga.App. 798, 799(1), 374 S.E.2d 566 (physical precedent only). Thus, a detective employed by the county sheriff's office may make an arrest, inter alia, without a warrant if a criminal offense is committed in his presence or within his knowledge. OCGA § 17-4-20(a).

In this instance, the detective had received complaints regarding loud noise from a certain vicinity; proceeding to that vicinity, he observed through his sense of hearing, while on a public road, screaming, hollering (which sounded like people fighting) and music. In determining whether a suspicious situation should be further investigated or an arrest based on probable cause made, an officer may rely upon information acquired through any of his senses. See State v. Greene, 178 Ga.App. 875(1), 344 S.E.2d 771; Martin v. United States, 155 F.2d 503(5) (5th Cir.) And since investigation and questioning are necessary elements of crime prevention and detection, the exigencies of the situation as they reasonably appear at the time must dictate the extent of intrusion into any constitutionally protected areas. State v. Roberson, 165 Ga.App. 727, 729, 302 S.E.2d 591. Here the detective had an articulable suspicion, based on information gained through his sense of hearing while on the public road, that a disorderly disturbance and fighting was occurring in the area into which he entered; thus, he reasonably could conclude at that time that an exigent situation was at hand. Accordingly, whether the area entered in fact was constitutionally protected under the Fourth Amendment, the conduct of the detective in entering onto private land through a gate and driving thereon on a dirt road located along a power line easement to investigate the self-confirmed complaint of loud noise and the suspected fighting was a legitimate intrusion and not unreasonable conduct within the meaning of the Fourth Amendment. See also Galloway v. State, 178 Ga.App. 31, 34, 342 S.E.2d 473 (entering property by same route as would any guest or caller held to be a valid intrusion for legitimate investigative purposes).

Additionally, in Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898, the United States Supreme Court held that even if the law enforcement agents had trespassed onto privately owned land an illegal search and seizure did not occur, because the special protection accorded by the Fourth Amendment to the people in their " 'persons, houses, papers, and effects' " is not extended to the open fields. In Reece v. State, 152 Ga.App. 760, 264 S.E.2d 258, this court, citing Hester, concluded that evidence obtained from an aerial search of an open field owned by the brother of the defendant was not inadmissible as the product of an illegal search. In Thompson v. State, 154 Ga.App. 704(1), 269 S.E.2d 474, citing Hester, we held "[a]ppellant[ ] had no Fourth Amendment protection against the seizure of contraband in the open fields of another." It has been asserted, however, that the open field doctrine in Hester in effect has been negated by the United States Supreme Court's subsequent holding in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. This court declined to accede to this view (see generally Williams v. State, 157 Ga.App. 476, 477, 277 S.E.2d 923; Giddens v. State, 156 Ga.App. 258, 259, 274 S.E.2d 595; Patterson v. State, 133 Ga.App. 742, 745(2), 212 S.E.2d 858). Moreover, in Oliver v. United States, 466 U.S. 170, 179, 104 S.Ct. 1735, 1742, 80 L.Ed.2d...