State v. Fulghum, A03A0234.
| Citation | 261 Ga. App. 594,583 S.E.2d 278 |
| Decision Date | 11 June 2003 |
| Docket Number | No. A03A0234.,A03A0234. |
| Parties | The STATE v. FULGHUM. |
| Court | United States Court of Appeals (Georgia) |
OPINION TEXT STARTS HERE
Patrick H. Head, Dist. Atty., Amy H. McChesney, Asst. Dist. Atty., for appellant.
Kenneth R. Croy, Marietta, for appellee.
The State charged John Timothy Fulghum with possession of methamphetamine and possession of dangerous drugs (buspirone) based on evidence police found in his residence during a search for Mr. Fulghum's children. Mr. Fulghum moved to suppress the evidence, arguing that police conducted the warrantless search without valid consent. The court agreed and suppressed the evidence. The State appeals, contending that Mrs. Fulghum gave voluntary consent. Based on our de novo review, we find that Mrs. Fulghum was coerced into giving her consent. Therefore, we affirm.
The undisputed evidence shows that after the Fulghums' attorney had obtained a continuance of a deprivation hearing concerning their children, a court mistakenly ordered that the children be taken into State custody on the ground that the Fulghums did not appear for the deprivation hearing. Police accompanied a State caseworker to the Fulghums' residence to execute the order. Mrs. Fulghum, who was home alone, answered the door and told the police that the children were not home. The lead officer told Mrs. Fulghum that he had an order to pick up the children and that he and the other officers needed to come in and make sure that the children were not there. Mrs. Fulghum allowed the police to enter the home.
During their search for the absent children, police discovered methamphetamine and buspirone in the back bedroom. The court by phone informed police at the residence that the temporary custody order was a mistake, and police left. Mr. Fulghum, who was later charged with possession of the drugs, moved the court to suppress the contraband on the ground that police had no warrant or valid consent to search his residence. During the evidentiary hearing, only the lead officer testified to the facts set forth above and further stated that whenever he had a temporary custody order and the parents stated the children were not home, "then I just explain that, well, I need to come in and just look for myself and make sure that they're not there." Based on this evidence, the court found no voluntary consent and suppressed the evidence.
1. As in State v. Jackson, 201 Ga. App. 810, 813, n. 3, 412 S.E.2d 593 (1991), the trial court did not question the credibility of the sole witness (here, the lead officer) at the motion to suppress hearing, but relied on his undisputed testimony to support its findings of fact and conclusion that Mrs. Fulghum's consent was not free and voluntary. "Consequently, we review the trial court's application of the law to the facts de novo, examining the entire record and making an independent determination of the ultimate issue of voluntariness." (Citations and punctuation omitted.) Id., citing Beckwith v. United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); see Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474 (1994) ( ).
2. Here the police had no search warrant or arrest warrant. All they had was an order awarding temporary custody of the Fulghum children to the State. This order did not purport to authorize a search of the Fulghum residence. Compare Martin v. Hendon, 224 Ga. 221, 160 S.E.2d 893 (1968) (). Since exigent circumstances are not alleged, the only basis on which police could constitutionally search the Fulghum residence was if Mrs. Fulghum gave them valid consent to do so. See Carranza v. State, 266 Ga. 263, 264-265(1), 467 S.E.2d 315 (1996); Welchel v. State, 255 Ga.App. 556, 558, 565 S.E.2d 870 (2002).
When seeking to justify a warrantless search, the State carries the burden of showing "that the consent was freely and voluntarily given." (Citations and punctuation omitted.) State v. Davis, 261 Ga. 225, 226, 404 S.E.2d 100 (1991), quoting Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). In this case, the State had the burden of showing that Mrs. Fulghum made a "`free and unconstrained choice'" in consenting to a search of her home. Davis, supra, 261 Ga. at 226, 404 S.E.2d 100, quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). "Thus, close judicial scrutiny of an alleged consent to search is necessary." Code v. State, 234 Ga. 90, 93(III), 214 S.E.2d 873 (1975); see Corley v. State, 236 Ga.App. 302, 306(1)(b), 512 S.E.2d 41 (1999).
The alleged consent by Mrs. Fulghum fails to withstand this scrutiny for two reasons. First, it was not an express consent. The officer testified that after he informed her that he had a temporary custody order and that he and his fellow officers accordingly needed to inspect the premises to ensure the children were not there, "she allowed us to come in the home." The officer did not state either that he asked for consent to search the residence or that she expressly consented to a search of the residence; rather, at most there was implied consent.
Under similar circumstances, Clare v. State, 135 Ga.App. 281, 285(3), 217 S.E.2d 638 (1975), suppressed evidence from a search where the officer told the occupant of an apartment that neighbors were complaining about a noise from the apartment, and the occupant agreed he had heard the noise and turned and went back inside, with the officer following and conducting a search. Clare explained:
Since the officer never sought defendant's permission to enter the apartment, we are unable to discern how defendant could possibly have consented to the intrusion. The notion of "implied consent" advanced in support of this search has no basis within the context of Fourth Amendment rights. We therefore conclude that the [S]tate has failed to meet its burden of showing that consent for the search was in fact given.
(Emphasis supplied.) Id. For the same reason, the State has failed to meet its burden here.
Second, even if express consent were shown, that consent was not voluntary. "A consent which is the product of coercion or deceit on the part of the police is invalid." Code, supra, 234 Ga. at 93(III), 214 S.E.2d 873, citing Bumper, supra; accord Palmer v. State, 257 Ga.App. 650, 653(2), 572 S.E.2d 27 (2002). Quoting a lower court decision, the United States Supreme Court in Bumper explained one form of coercion or deceit:
"Orderly submission to law-enforcement officers who, in effect, represented to the defendant that they had the authority to enter and search...
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