State v. Brannan, A96A0974

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: HAROLD R. BANKE; POPE, P.J., and ANDREWS
• Citation: 222 Ga.App. 372,474 S.E.2d 267
• Parties: The STATE v. BRANNAN.
• Docket Number: No. A96A0974,A96A0974
• Decision Date: 30 July 1996

Page 267

474 S.E.2d 267 222 Ga.App. 372 The STATE
v.
BRANNAN. No. A96A0974. Court of Appeals of Georgia. July 30, 1996.

Page 269

[222 Ga.App. 376] Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Allison L. Thatcher, Assistant Solicitors, for appellant.

James C. Watkins, Doraville, for appellee.

[222 Ga.App. 372] HAROLD R. BANKE, Senior Appellate Judge.

The Gwinnett County Solicitor charged Robert G. Brannan with reckless conduct, a misdemeanor. Brannan's three-year-old child, who was visiting at his father's home, was accidentally shot in the foot by a rifle the child found under the bed. The accusation alleged that Brannan "consciously disregard[ed] a substantial and unjustifiable risk that his act of leaving an unattended and loaded rifle in the common play area of the child would cause harm to another...." Brannan moved to suppress the weapon seized by the officer during a search of the bedroom and to exclude evidence of several statements he made to a police officer during the follow-up investigation of the shooting. The trial court granted those motions, and the State appeals. Held:

1. Suppression of the Weapon. We may reverse the trial court's suppression of the rifle only if its decision was "clearly erroneous." In reviewing the record to make that determination, we must accept the trial court's ruling on disputed facts and defer to its judgment on the credibility of witnesses. State v. Davis, 261 Ga. 225, 226-227, 404 S.E.2d 100 (1991).

The evidence developed on the motion showed that a Snellville police officer came to Brannan's house in response to a 911 call. Officer Wellmaker found Brannan in the living room at the front door, applying a rag to his son's bleeding foot. After checking on the child, Wellmaker asked Brannan "where the weapon was"; he responded that it was "upstairs in the bedroom" under the bed. Brannan also told the officer the gun had discharged and shot the child in the foot. Concerned with making sure the weapon was safe and would not discharge again, Wellmaker went upstairs and found the stock of the rifle protruding from under the bed. He removed a jammed bullet and the clip, replaced the weapon where he found it, and returned downstairs to speak to Brannan and report to a superior officer who had just arrived on the scene. Officer Wellmaker asked for Brannan's house keys and told him he would "secure the residence" while Brannan went to the hospital with his son. After Brannan left, Wellmaker and two other officers returned to the bedroom [222 Ga.App. 373] and seized several items of evidence, including the weapon. ¹

The rifle represented evidence of the crime charged, and it appeared in plain view to the officer after he entered the bedroom. An officer who is lawfully in a place and sees in plain view evidence relating to a crime, or instrumentalities of a crime, may seize that evidence. Galbreath v. State, 213 Ga.App. 80, 82(2), 443 S.E.2d 664 (1994). The important question is whether the officer was lawfully in the bedroom when he seized the

Page 270

weapon. The trial court found Brannan did not consent to the officer's presence in the bedroom and ruled that no emergency situation justified his going there. We find this latter conclusion clearly erroneous.

"[A]n exigent circumstance which does justify the warrantless entry of a [bedroom in a] private home is the officer's reasonable belief that such action is a necessary response on his part to an emergency situation." Coker v. State, 164 Ga.App. 493, 496(5), 297 S.E.2d 68 (1982). See Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949-50, 56 L.Ed.2d 486 (1978) (officers may enter a burning building to put out a blaze and, while inside, seize evidence found in plain view). In Coker, supra, the Court found exigent circumstances allowed officers to enter a house when they reasonably feared for the safety of a child inside. Similarly, in State v. Scott, 176 Ga.App. 887, 889(2), 339 S.E.2d 276 (1985), exigent circumstances allowed police arresting a suspect inside a home to make a cursory search of the house based on a reasonable belief that another occupant of the house might present an armed threat. See also Maryland v. Buie, 494 U.S. 325, 336-337, 110 S.Ct. 1093, 1099-1100, 108 L.Ed.2d 276 (1990), upholding such a "protective sweep" to detect any immediate danger.

Although we review police actions from the standpoint of a hypothetical "reasonable" officer, we must measure those actions from the foresight of an officer acting in a quickly developing situation and not from the hindsight of which judges have benefit. State v. Crisanti, 220 Ga.App. 705, 710, 470 S.E.2d 314 (1996). See United States v. Rodgers, 924 F.2d 219, 222 (11th Cir.1991) (test whether exigent circumstances exist is an objective one).

In this case, the evidence showed without contradiction that after Officer Wellmaker entered Brannan's house in response to the emergency call and realized a weapon had discharged, he promptly inquired about the gun and immediately took steps to disarm the rifle. This police...