State v. O'Bryant

• Court: Georgia Court of Appeals
• Writing for the Court: POPE; BEASLEY, C.J., and RUFFIN
• Citation: State v. O'Bryant, 467 S.E.2d 342, 219 Ga.App. 862 (Ga. App. 1996)
• Decision Date: 18 January 1996
• Docket Number: No. A95A2754,A95A2754
• Parties: The STATE v. O'BRYANT.

Page 342

467 S.E.2d 342

219 Ga.App. 862

The STATE v. O'BRYANT.

No. A95A2754.

Court of Appeals of Georgia.

Jan. 18, 1996.

Motion to suppress. Cobb Superior Court. Before Judge Reynolds, pro hac vice.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Irvan A. Pearlberg, Assistant District Attorneys, for appellant.

Jimmy D. Berry, Mitchell D. Durham, for appellee.

POPE, Presiding Judge.

Following a hearing, the trial court granted James D. O'Bryant's motion to suppress, finding the agents lacked authority to look into O'Bryant's vehicle which was parked on private premises. The State appeals. For the reasons that follow, we affirm.

"A trial court's decision of questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. Santone v. State, 187 Ga.App. 789, 790 (371 SE2d 428)." Garcia v. State, 195 Ga.App. 635, 637(1), 394 S.E.2d 542 (1990). With that in mind we consider the evidence.

The evidence presented at the suppression hearing showed the following. Four drug agents of the Marietta-Cobb-Smyrna Narcotics Unit ("MCS") proceeded without a warrant to O'Bryant's home to speak with O'Bryant because they had received an anonymous tip of possible drug dealing. Two MCS agents testified they walked around to the side of the residence because they believed there was a living area in the basement. The State never proved there was a living area in that location and that this activity was not a pretext to further explore O'Bryant's property. Again, there was no response at this door. The agents noticed a black Toyota truck parked in the driveway on the side of the house. Agent Hathaway testified the same truck had been there during an earlier unsuccessful attempt to contact O'Bryant. Agent Cebula testified he had never before seen this truck. Although Agent Cebula testified no vehicles had been present when he visited O'Bryant's home on July 8, 1993, and in the fall of 1993, Agent Hathaway testified that Cebula had looked into the same Toyota truck on their fall 1993 visit and on that occasion discovered "marijuana roaches" in the ashtray.

Agent Cebula claimed he went over to the truck to determine whether the engine was still warm or if the keys were in the ignition. He admitted there was nothing the agents would have done differently if the engine were warm or the keys present, thus conceding he had no valid reason for walking over to the truck. While looking inside the closed and tinted windows, he claimed he was able to discern what appeared to be a plastic bag of marijuana, partially hidden under the driver's seat.

Agent Hathaway then left the residence and procured a search warrant for the house and the truck. ¹ The search warrant was based on their observation of marijuana on the floorboard, anonymous tips of purported drug activity involving O'Bryant, and the officers' observation of marijuana in the truck's ashtray in the fall of 1993. The warrant apparently was founded in part on Cebula's prior discovery of marijuana in the ashtray, a discovery which Cebula seemed to repudiate. Although Hathaway testified Cebula discovered marijuana in the truck on two different occasions, Cebula denied even seeing a vehicle on the premises before April 1994.

During the search of the house, drug agents discovered approximately 20 pounds of marijuana in the master bedroom, anabolic steroids, and a pound of marijuana on the floorboard of the truck. O'Bryant was indicted for possession with intent to distribute marijuana.

"[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. [Cits.]" Galloway v. State, 178 Ga.App. 31, 33, 342 S.E.2d 473 (1986). "[L]aw enforcement officers simply have the right to look into automobiles, so long as they have a legitimate reason and are looking from a place in which they have a right to be (e.g., a street or roadside). Any incriminating evidence they have the fortune to see in plain view may be seized and later admitted as evidence. [Cit.]" Id. at 34, 342 S.E.2d 473. However, in this case, the vehicle was not on a street or a roadway and the incriminating evidence was not plainly visible but necessitated peering through a tinted and closed window and the State failed to offer a legitimate reason for looking in the vehicle. The State has failed to show the officers were at a place they were entitled to be. The officers had already knocked on both doors and had no valid reason to look into the truck.

Nor is this a case where the drug agents merely approached O'Bryant's truck on the "same route as would any guest, deliveryman, postal employee, or other caller" and observed contraband. See State v. Nichols, 160 Ga.App. 386, 287 S.E.2d 53 (1981) (holding no privacy right breached where officer walking toward door of mobile home observes roto-tiller that had been reported as stolen). Nichols is distinguishable because the contraband, the stolen roto-tiller, was out in the open and visible from the officer's lawful vantage point on the premises. See also State v. Zackery, 193 Ga.App. 319, 320, 387 S.E.2d 606 (1989) (holding where officer has his access blocked to front door of a residence, knocking on side door is a "valid intrusion"). Here, the evidence shows the officers had finished their official business and veered from the route any other callers would have taken to look into the truck.

The State contends the trial court improperly granted O'Bryant's motion to suppress because the agent's act of peering through the truck's window was not a search. Catchings v. State, 256 Ga. 241, 247, 347 S.E.2d 572 (1986). The State claims O'Bryant had no legitimate expectation of privacy in those portions of the truck's interior which were visible from the outside of the vehicle by either inquisitive passersby or diligent police officers. Id. at 247, 347 S.E.2d 572.

Catchings, however, is factually distinguishable. At the time the police officer peered through the windshield of the automobile in Catchings, the vehicle was...