State v. Field, 76819

• Decision Date: 22 September 1988
• Docket Number: No. 76819,76819
• Citation: 373 S.E.2d 815,188 Ga.App. 639
• Parties: The STATE v. FIELD.
• Court: Georgia Court of Appeals

Page 815

373 S.E.2d 815

188 Ga.App. 639

The STATE v. FIELD.

No. 76819.

Court of Appeals of Georgia.

Sept. 22, 1988.

Rehearing Denied Oct. 3, 1988.

Certiorari Denied Nov. 9, 1988.

Ken Stula, Solicitor, for appellant.

Edward D. Tolley, Athens, for appellee.

CARLEY, Judge.

An accusation was filed charging appellee with possession of less than one ounce of marijuana. Appellee filed a pre-trial motion to suppress, asserting that the marijuana had been seized in an unlawful search of her apartment.

After conducting a hearing on appellee's motion, the trial court indicated it was making the following factual determinations: At the time that the marijuana was discovered, police officers were lawfully present in appellee's apartment for the purpose of arresting her on unrelated charges. While present in the apartment for this lawful purpose, one officer observed that a water pipe, or "bong," was sitting on a mantle and that, next to the water pipe, there was "maybe some kind of wrapping." As these items were located some distance away from where he was standing, the officer walked over to the mantle. From his new position standing next to the mantle, he observed that the cellophane wrapping held a green, leafy substance. Because the substance appeared to be marijuana, the officer seized it. Having found these facts, the trial court held that the officer, by merely walking over to the mantle for a closer look at items he had previously seen in plain view, had conducted an unauthorized "search" of appellant's apartment and that suppression of the marijuana was mandated under the holding in Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). The State appeals from the trial court's grant of appellee's motion to suppress.

The evidence that was adduced at the hearing on appellee's motion would authorize the trial court to make the above-stated factual findings. We are, therefore, bound by those findings of fact. Accordingly, the only issue to be resolved is whether the trial court erred in its legal conclusion that, under the indicated circumstances, the suppression of the marijuana was required under the holding of Arizona v. Hicks, supra.

The facts of Hicks, supra, were as follows: An officer, who was lawfully in the apartment of the accused for the purpose of investigating a shooting, observed expensive stereo equipment. Although he had no probable cause to believe that the equipment had been stolen, the officer moved the equipment in order to record the serial numbers. When the officer subsequently determined that the serial numbers matched those of stereo equipment which had been reported as stolen, the equipment in the accused's apartment was seized. Under these circumstances, the Supreme Court held that the warrantless seizure was not authorized under the "plain view" doctrine, since the officer had no probable cause to believe that the stereo equipment was stolen prior to conducting the "search" to obtain the serial numbers. The officer's "moving of the equipment ... did constitute a 'search' separate and apart from the search for the shooter, victims, and weapons that was the lawful objective of his entry into the apartment." (Emphasis supplied.) Arizona v. Hicks, supra, 480 U.S. at 324-325, 107 S.Ct. at 1152, 94 L.Ed.2d at 353-354. However, the Supreme Court also held that "[m]erely inspecting those parts of the turntable that came into view during the [authorized] search [for the shooter, victims and weapons] would not have constituted an independent search, because it would have produced no additional invasion of [the accused's] privacy interest. [Cit.] But taking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of [the accused's] privacy unjustified by the exigent circumstances that validated the entry." (Emphasis supplied.) Arizona v. Hicks, supra, 480 U.S. at 325, 107 S.Ct. at 1152, 94 L.Ed.2d at 354.

It is readily apparent that the facts of Hicks, supra, differ significantly from those which the trial court found to exist in the present case. Here, the officer conducted no "search" to determine the presence of the marijuana in appellee's apartment. While he was standing in a place in which he was legally authorized to be, the officer observed, in plain view, certain suspicious items. The officer did not move any of the items, nor did he take any action which exposed that which had previously been concealed. He merely took a closer look at the items which were otherwise in his...