State v. Davis, S91A0242
| Decision Date | 10 May 1991 |
| Docket Number | No. S91A0242,S91A0242 |
| Citation | 261 Ga. 225,404 S.E.2d 100 |
| Parties | The STATE v. DAVIS. |
| Court | Georgia Supreme Court |
Spencer Lawton, Jr., Dist. Atty., David T. Lock, Asst. Dist. Atty., Savannah, for the State.
Robert E. Barker, Barker & Edenfield, Robert E. Falligant, Jr., Falligant & Toporek, Nancy A. Askew, Savannah, for Davis.
The trial court granted Troy Anthony Davis's motion to suppress evidence seized in a search of his residence, and the state appeals.
The record shows that police officers obtained an arrest warrant for Davis for the alleged murder of a police officer. More than twenty officers proceeded to Davis's residence, cordoning off the surrounding streets. Officers found no one at home and waited there between 30 and 45 minutes until Davis's mother returned home around midnight. One officer testified that plans were being made to force entry into the residence when Mrs. Davis came home.
Davis's mother and sister testified that they were not permitted to approach the house, and that they were frightened because a number of police officers had rifles pointed at their home. Officers informed Davis's mother that they were looking for him and the alleged murder weapon. Mrs. Davis testified that she gave officers a key to her house when they informed her they would break down the door if she refused to do so. Mrs. Davis further testified that she never gave officers permission to search her home and that the police never showed her a consent to search form. Police officers testified that Mrs. Davis did give verbal consent to the search although she refused to sign the consent to search form.
In seeking to justify a warrantless search, the state carries the burden of showing "that the consent was ... freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968); Dean v. State, 250 Ga. 77, 80, 295 S.E.2d 306 (1982). In this case the state had the burden of showing that Mrs. Davis made a "free and unconstrained choice," Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973), to give officers the key, thereby consenting to a search of her home.
The trial court found that, due to "coercive conditions," Mrs. Davis We interpret the trial court's order as a finding that, by giving officers a key to her house, Mrs. Davis consented to their entry but that this consent was not freely and voluntarily given.
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