Phillips v. State

• Decision Date: 01 July 1983
• Docket Number: No. 65309,65309
• Citation: Phillips v. State, 305 S.E.2d 918, 167 Ga.App. 260 (Ga. App. 1983)
• Parties: PHILLIPS v. The STATE.
• Court: Georgia Court of Appeals

Page 918

305 S.E.2d 918

167 Ga.App. 260

PHILLIPS v. The STATE.

No. 65309.

Court of Appeals of Georgia.

July 1, 1983.

Kenneth Gordon, Atlanta, for appellant.

Arthur E. Mallory III, Dist. Atty., Robert S. Ogletree, Asst. Dist. Atty., for appellee.

SOGNIER, Judge.

This appeal involves two separate trials of appellant, after a severance was granted pursuant to motion. In his first trial appellant was convicted of burglary and violation of the Georgia Controlled Substances Act by possessing Ethchlorvynol (Placidyl). At his second trial the following day appellant was convicted of possession of a firearm by a convicted felon. The appeal from both trials was combined. Appellant contends the trial court erred (1) by denying motions to suppress in both trials; (2) by denying a plea in abatement in each trial; (3) by denying motions for a directed verdict of acquittal in each trial; (4) by failing to declare a mistrial in appellant's first trial after the prosecuting attorney commented improperly on appellant's character when appellant had not testified; (5) by admitting two state exhibits into evidence when a proper chain of custody was not shown; and (6) by denying appellant's motion to sever certain counts in the indictment.

Sometime during the day of November 13, 1981 the home of Peter and Betty Geer was burglarized while they were at work. Police were alerted to be on the lookout for a white Dodge van, and when appellant was seen driving such a van he was stopped. The police advised appellant they were investigating a burglary and obtained his consent to search the van. Although nothing from the burglary was found, a bottle of Placidyl tablets was found in the glove compartment. Appellant and Vicki Carlisle, a passenger, were arrested and the van was moved at appellant's request to the residence of a friend about 75 yards away. The van was locked and the keys were returned to appellant. After a blood alcohol test, which was negative, appellant was taken to jail and confined. The sheriff and two deputies then went to appellant's house and drove into the driveway to the rear of the house. They got out of the car and on approaching the back porch observed a riding lawn mower and a bicycle similar to ones stolen from the Geers. A washing machine on the back porch was opened and a bag of suspected marijuana was found; the officers then looked in the windows of the house and observed several items similar to those taken from the Geers. A search warrant was obtained and several items stolen from the Geers were found in the house. After completing the search of the house a wrecker was called and the van was removed, without a warrant, to a parking lot at the sheriff's office. The lot was unfenced and unsecured, and two days later Vicki Carlisle was found in the van. She was removed from the van and later the same day, two deputies forced open a window in the van, unlocked it, and searched the van. Two ceramic ducks stolen from the Geers were found, as well as another bottle of Placidyl tablets, two valium tablets and two revolvers.

1.a. Appellant contends the initial warrantless search of his house and premises was unlawful and, therefore, it was error to deny his motion to suppress items found in that search and the subsequent search of his house with a warrant.

It is the general rule that a warrant is required to search the curtilage, and the yard immediately surrounding one's dwelling is well within the curtilage. Black v. State, 119 Ga.App. 855, 857(2), 168 S.E.2d 916 (1969); Kelley v. State, 146 Ga.App. 179, 183 (IIA), 245 S.E.2d 872 (1978). The state acknowledges that the sheriff and his deputies had insufficient evidence (no probable cause) to obtain a search warrant when they first went to appellant's house, but argues that a police officer is not required to have probable cause to investigate a complaint of illegal activity in progress. This argument is without merit because there was no criminal activity "in progress," since the burglary under investigation had occurred several hours earlier. Further, appellant's van had been searched and there was nothing to connect him with the burglary when the sheriff and his deputies drove onto appellant's premises. Even assuming they had probable cause to search appellant's premises it is elementary that probable cause, however well founded, can provide no justification for a warrantless intrusion of a person's home absent a showing "that the exigencies of the situation made that course imperative." Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564; Clare v. State, 135 Ga.App. 281, 284(2), 217 S.E.2d 638 (1975). Since appellant was in jail, lived alone, and would have no opportunity to remove any fruits of the crime, there were no exigent circumstances which would justify a warrantless search of his premises. Neither can discovery of the items in the back yard be justified under the plain view doctrine, because the discovery of evidence in plain view must occur while the police are in a place in which they are authorized to be, and the discovery must be inadvertent. Coolidge, supra, 403 U.S. at 468-469, 91 S.Ct. at 2039-2040. Not only were the sheriff and his deputies not authorized to be on appellant's premises, Black, supra, but the items were not in plain view and their discovery was not inadvertent, as none of the items could be seen from the street.

Under a warrantless search and seizure the burden of proving that the search and seizure was lawful is upon the state. OCGA § 17-5-30(b) (Code Ann. § 27-313); Merritt v. State, 133 Ga.App. 956, 957(1), 213 S.E.2d 84 (1975). The state has not met its burden of demonstrating the presence of exigent circumstances and has presented no other evidence to justify or authorize the intrusion onto appellant's premises. Accordingly, it was error to deny appellant's motion to suppress all evidence found at appellant's premises, as the initial illegal intrusion tainted all evidence obtained as a result thereof. Wong Sun v. United States, 371 U.S. 471, 484-485, 83 S.Ct. 407, 415-416, 9 L.Ed.2d 441; Clare, supra.

b. Appellant also contends it was error to deny his motion to suppress evidence found in his van when it was searched two days after being unlawfully impounded at the sheriff's office. He argues that the sheriff had no authority to remove the van without a warrant from the private residence where it was parked and, thus, evidence obtained in the subsequent search of his van was tainted.

Cases supporting a state's right to impound a vehicle are founded on a doctrine of necessity, and when a driver is arrested and a friend is present, authorized and capable of safely removing the vehicle, the rationale for an inventory search does not exist. State v. Ludvicek, 147 Ga.App. 784, 786, 250 S.E.2d 503 (1978). Since appellant's friend was present, authorized and capable of moving the van and it was, in fact, moved to private property with the consent of the deputy sheriffs, the rationale for impounding and inventorying the contents of the van did not exist. Unless the rationale for an inventory search inheres in the decision to seize and inventory, the impoundment itself may be unreasonable and the resulting inventory search invalid. State v. Thomason, 153 Ga.App. 345, 349(3), 265 S.E.2d 312 (1980). Under the circumstances of the instant case there was no necessity for impounding the van appellant was driving to protect it and its contents, and no inventory was necessary since the van had been searched with appellant's consent, and the deputies were aware of its contents.

The state argues that the van was impounded to compare tire track impressions, and also argues that because a controlled substance was found in the van it was subject to forfeiture under the provisions of OCGA § 16-13-49 (Code Ann. § 79A-828). We do not question the authority of law enforcement officials to take tire track impressions for comparison purposes when they have probable cause to believe a vehicle was used in the commission of a crime. However, any probable cause to seize the van arose as a direct result of the illegal intrusion onto appellant's premises, since the van had been searched and no fruits of the burglary were found therein. Under the holding in Wong...