State v. Charles, A03A1816.
| Decision Date | 19 December 2003 |
| Docket Number | No. A03A1816.,A03A1816. |
| Parties | The STATE v. CHARLES et al. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Daniel J. Porter, District Attorney, Julie L. Johnson, Assistant District Attorney, for appellant.
Giddens, Davidson & Mitchell, Earl A. Davidson, College Park, Anna Blitz, Atlanta, for appellees.
Aaron Raymond Charles and Curran Jared Jackson were indicted for possession of cocaine with intent to distribute and possession of less than one ounce of marijuana in violation of the Georgia Controlled Substances Act. The trial court granted their motions to suppress, and the State appeals.
The evidence at the suppression hearing established the following: Officers Stidd, Haney, and Kellogg from the City of Norcross Police Department responded to a complaint of heavy foot traffic going in and out of Room 316 of a Norcross Suburban Lodge. The officers knocked on the door, and defendant Jackson stepped out of the room. Both Officers Stidd and Haney testified that they detected the odor of marijuana smoke when the door was opened. Jackson informed the officers the room was his uncle's, his uncle was not there, but someone else was in the room. Defendant Charles exited the room shortly thereafter and, upon questioning, told officers he had smoked marijuana earlier in the day. Both Charles and Jackson refused the officers' request for permission to look into the room stating that the room was not theirs, and they could not give the officers permission. Officer Stidd said he made a decision to do a protective sweep of the room and during that sweep noticed what appeared to be a bag of marijuana sitting on the back of the toilet tank. Although Officer Stidd testified that he decided before the protective sweep to apply for a search warrant, Officer Haney testified that nothing was said about a warrant until after they observed the marijuana during the protective sweep. Officer Haney left and procured a search warrant, and the subsequent search of the room revealed additional contraband, including approximately 25 rocks of crack cocaine which had been placed in the trap compartment of the sink, as well as more marijuana and some scales.
1. The primary issue at the motion to suppress hearing was whether a protective sweep of the premises, in this case a motel room, was authorized. State v. Mixon, 251 Ga.App. 168, 554 S.E.2d 196 (2001). If the protective sweep was not authorized, then the marijuana observed during the sweep could not be used as a basis for establishing probable cause for the issuance of the warrant.
[O]fficers may conduct a protective sweep in connection with an in-home arrest when they possess articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.
(Citations and punctuation omitted.) Id. at 170, 554 S.E.2d 196. As was the case in Mixon, defendants in this case were not under arrest at the time of the protective sweep. The question then is whether the trial court was authorized to conclude that the officers did not have a reasonable belief, based on articulable facts, that the room harbored a dangerous individual.
As to this issue, the transcript shows that the officers initially spoke with defendant Jackson who stated to the officers that the person who had rented the room was not there, but fully disclosed to officers that there was another individual in the room. That individual, defendant Charles, almost immediately exited the room and was also cooperative with officers. The officers did not indicate that either defendant appeared threatening in any way, and there was nothing else to indicate that the officers sweep of the room was authorized by concern for their safety. Under these circumstances, we cannot say that the trial court's rejection of the officer's claim that the protective sweep was authorized out of concern for his safety was clearly erroneous. State v. Merit, 262 Ga. App. 687, 586 S.E.2d 393 (2003); State v. Mixon, 251 Ga.App. at 170-171, 554 S.E.2d 196. See also State v. Schwartz, 261 Ga.App. 742, 744-745(1), 583 S.E.2d 573 (2003).
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