Pickens v. State

Decision Date14 March 1997
Docket NumberNo. A96A2030,A96A2030
Citation484 S.E.2d 731,225 Ga.App. 792
Parties, 97 FCDR 1591 PICKENS v. The STATE.
CourtGeorgia Court of Appeals

Ralph J. Hunstein, Monroe, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Gregory J. Lohmeier, Robert M. Coker, Assistant District Attorneys, for appellee.

BEASLEY, Judge.

Pickens appeals from his conviction and sentence for trafficking in cocaine, OCGA § 16-13-31, and from the denial of his motion for new trial.

1. The first two enumerations of error relate to the denial of the motion to suppress evidence that Pickens maintains was obtained through an illegal search and seizure in violation of the Fourth Amendment to the United States Constitution. "On reviewing a trial court's ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment." Burse v. State, 209 Ga.App. 276, 433 S.E.2d 386 (1993). The court's findings of fact " 'will not be disturbed if there is any evidence to support them.' " (Citation omitted.) State v. Williams, 220 Ga.App. 100, 102(2), 469 S.E.2d 261 (1996).

Kitty Smith, assistant manager of a motel in an area where such establishments were "notorious" for drug and prostitution activities, received an anonymous phone call from a male informing her that Pickens was selling marijuana and cocaine out of his motel room, and that the reason for the call was that the caller did not want Pickens selling to the people who were buying. She confirmed from motel records that Pickens rented that room, and she then contacted the police. Officer Krueger responded and met with her, verified which room was rented to Pickens, went there and knocked on the door to investigate whether there was any truth to the call. The officer had been sent to that motel and others in the area many times on complaints of drugs and prostitution.

Pickens answered and did not open the door all the way but merely stuck his head out. Only his head and one shoulder were visible. The officer explained why he was there and asked Pickens to confirm his identity, which he did. To protect his own safety, and that of his backup, the officer asked Pickens to step out from behind the door. Pickens consented, and as he opened the door, the officer saw a table holding an open black gun case containing plastic bags filled with white powder, which appeared to be cocaine. Krueger attempted to step through the threshold and Pickens slammed the door against the officer twice, for which Pickens was arrested for simple battery. The officer entered and seized the gun case, drugs, paraphernalia, telephone pagers, and a significant amount of cash from the room.

(a) Pickens contends the call from the anonymous tipster was insufficient to establish articulable suspicion to justify an approach to Pickens' motel room under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny. He argues that the tip lacked sufficient "indicia of reliability" to justify the approach, citing Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

The first question is whether the initial contact between Pickens and Officer Krueger constituted a "seizure." The Fourth Amendment governs even those seizures amounting to only a brief detention, as in the typical Terry stop, which must be supported by articulable suspicion. Moran v. State, 170 Ga.App. 837, 840(1), 318 S.E.2d 716 (1984). Contact between police and citizens implicates no Fourth Amendment interest, unless " 'in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " Id. and cites therein; O'Donnell v. State, 200 Ga.App. 829, 830(1), 409 S.E.2d 579 (1991).

The State responds that the encounter did not even require articulable suspicion because it was only "the mere accosting by an officer usually requesting name and identification." Exposito v. State, 191 Ga.App. 761, 762(1), 382 S.E.2d 412 (1989). "There is no threshold requirement and indeed the individual may refuse to answer or ignore the request and go on his way if he chooses, for this does not amount to any type of restraint and is not encompassed by the Fourth Amendment." Id.

Krueger's approach to Pickens' motel room does not implicate the Fourth Amendment, since there was no "stop" for Terry purposes. Accordingly, it is unnecessary to apply the "articulable suspicion" analysis of Alabama v. White. Having received the tip, Krueger was authorized to respond to the call and had sufficient reason, by way of prior experience and the nature of the call, to investigate it. Starr v. State, 159 Ga.App. 386, 387, 283 S.E.2d 630 (1981).

Next, Krueger was permitted to knock on Pickens' door without an articulable suspicion, in order to investigate the report of a crime. Gilreath v. State, 247 Ga. 814, 819(1), 279 S.E.2d 650 (1981). "Where a police officer enters upon private property only to the extent of knocking on outer doors, the Fourth Amendment is not violated." State v. Zackery, 193 Ga.App. 319, 320, 387 S.E.2d 606 (1989). He was not even on defendant's property when he knocked; the passageway or corridor where he was standing when he knocked was public. He went to the motel room door "on the same route as would any guest, deliveryman, postal employee, or other caller." State v. Nichols, 160 Ga.App. 386, 287 S.E.2d 53 (1981).

The officer's inquiry as to Pickens' identity and his asking Pickens to step outside for safety reasons were permissible actions that did not rise to the level of a seizure. See State v. Westmoreland, 204 Ga.App. 312(1), 418 S.E.2d 822 (1992), citing Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).

(b) Pickens' first enumeration also alleges Room 220 of the motel was his home, and that Officer Krueger's stepping over the threshold and looking into the room constituted an unlawful warrantless search. Pickens did have a "constitutionally protected reasonable expectation of privacy" in his motel room. Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967); Oliver v. United States, 466 U.S. 170, 177(III), 104 S.Ct. 1735, 1740-41, 80 L.Ed.2d 214 (1984). It thus is accorded the same Fourth Amendment considerations as a private home. Katz, supra at 359, 88 S.Ct. at 515; United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951).

In Carranza v. State, 266 Ga. 263, 467 S.E.2d 315 (1996), the Supreme Court observed that a motel room is akin to a private home for Fourth Amendment purposes: " 'It is axiomatic that the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." (Cit.) And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest. (Cit.)' Welsh v. Wisconsin, 466 U.S. 740, 748(II), 104 S.Ct. 2091 [2096-97], 80 L.Ed.2d 732, 52 U.S.L.W. 4581 (1984).... [E]ven where probable cause exists, warrantless intrusion of a person's home is prohibited ..., absent consent or a showing of exigent circumstances. Steagald v. United States, 451 U.S. 204, 211(III), 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981)." Id. at 264-265(1), 467 S.E.2d 315. Pickens contends there were no exigent circumstances or consent for the warrantless intrusion of his room.

The "plain view" doctrine, as explicated in Coolidge v. New Hampshire, 403 U.S. 443, 468(II)(C), 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564 (1971), applies. It requires the existence of three criteria: (1) there must be a prior valid intrusion onto a person's property before the evidence is observed and seized; (2) discovery of the evidence must be inadvertent; and (3) it must be apparent that the item seized is evidence or contraband. All three factors are present. Krueger validly went to Pickens' motel room to investigate a complaint of illegal activity in progress and knocked on the door, as discussed in Division 1(a).

When Pickens opened the door, it became reasonable for Krueger to believe Pickens might be armed because of his knowledge of the high crime area, the nature of the crime he was investigating, and the fact that Pickens concealed his entire body behind the door, except for his head and shoulder. A request for Pickens to step out from behind the door, to secure the officers' safety, was sensibly cautious. It is " 'not unreasonable for officers to anticipate that those who are suspected of involvement in the drug trade might be armed. (Cit.)' [Cit.]" State v. Jarrells, 207 Ga.App. 192, 193(4), 427 S.E.2d 568 (1993).

Krueger's sighting of the cocaine occurred only when Pickens consented to open the door, and the discovery was inadvertent. From Krueger's position at the doorway, a place where he was lawfully entitled to be, he saw what he reasonably believed was in all likelihood cocaine. Krueger was "rightfully standing before the open doorway of the [m]otel room for purposes of investigation" when he saw the contraband. Brooks v. State, 129 Ga.App. 393, 394(3), 199 S.E.2d 578 (1973). "A police officer may seize what is in plain sight if, as here, he is in a place where he is constitutionally entitled to be. [Cits.]" State v. Brown, 158 Ga.App. 312, 314, 279 S.E.2d 755 (1981). See also State v. Brooks, 160 Ga.App. 381, 287 S.E.2d 95 (1981).

The plain view exception to the warrant requirement is one of exigent circumstances and covers the discovery of incriminating evidence (the cocaine in the gun case) that is not a result of a search. State v. O'Bryant, 219 Ga.App. 862, 467 S.E.2d 342 (1996). Where a plain view seizure takes place, there is no search. Nichols, supra. The legal principles applicable to a search are inapposite, Galloway v. State, 178 Ga.App. 31, 342 S.E.2d 473 (1986), and this is "true whether or not the officer expected or...

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