State v. Gallup

• Decision Date: 09 February 1999
• Docket Number: No. A98A2005.,A98A2005.
• Citation: State v. Gallup, 512 S.E.2d 66, 236 Ga.App. 321 (Ga. App. 1999)
• Parties: The STATE v. GALLUP.
• Court: Georgia Court of Appeals

512 S.E.2d 66

236 Ga. App. 321

The STATE v. GALLUP.

No. A98A2005.

Court of Appeals of Georgia.

February 9, 1999.

Kenneth B. Hodges III, District Attorney, Robert E. Perrine, Jr., Assistant District Attorney, for appellant.

Donaldson, Bell & Pickett, George P. Donaldson III, Reginald J.R. Bell, Jr., Albany, for appellee.

McMURRAY, Presiding Judge.

Defendant was charged with possession of marijuana with intent to distribute, after police seized three large plastic bags containing approximately thirty pounds of marijuana from a refrigerator discovered in a self-storage bin rented by defendant. Defendant conceded that, in the course of investigating vandalism and possible burglary, Investigator James Vick of the Albany Police Department had a right to enter Unit 61 but argued the officer had no right to open the closed refrigerator found therein.

The facts are undisputed: This seizure was conducted pursuant to a warrant. But that warrant was issued based upon information obtained by an earlier warrantless opening of a closed and operating refrigerator in a storage unit rented by defendant, one of eighty-three other such units vandalized by unknown persons in a single night.

When Christy Brown, co-owner of Mann's Moving & Storage, arrived at the scene some time after 8:15 a.m. on August 4, 1997, everything was in disarray. Someone had taken "some type of crowbar device and a mallet... to get the lock mechanism off ..." each damaged unit. Almost all the units, including Unit 61, were left open, that is, with the roll-top doors ajar. It was Investigator Vick who called Brown's attention to Unit 61, containing the refrigerator. Brown confirmed her standard rental contract does not expressly forbid renters from plugging refrigerators into the electrical outlet for the overhead light, but the agreement does contain a clause whereby "`[t]he occupant agrees that the property will not be used for any unlawful purpose...." The agreement also gave the owner permission, " with or without notice to occupant, [to] enter the leased space for purposes of inspection, to make repairs or alterations, or in any case of fire or other emergency.'" Brown considered this event to be an emergency.

When Investigator Vick entered Unit 61, he was looking for "[a]nything that would identify the owner and any physical evidence such as latent prints...The first thing [he] saw was a four wheeler. [Investigator Vick] had just recently worked a case [involving stolen] four wheelers ... [so he] bent and got the VIT number which is on the Ford and ran it[, but it turned out not to be stolen property]. [He] also noticed a small, compact, 3 foot refrigerator.... [Investigator Vick] went into the refrigerator ... [l]ooking for anything that would identify the victim. Possibly prescription medications with the victim's name on it. Anything....[He] saw what appeared to be 3 pounds of marijuana... [i]n a plastic baggie....When [he] saw [this, Investigator Vick] closed the refrigerator. [He] saw Christy Brown down at the exact opposite end of the storage unit from where [he] was. She was talking to some of her co-workers. [Investigator Vick] called her down ... to the unit and advised her that she might want to look into the unit[, specifically] referring to ... [t]he refrigerator." Investigator Vick sealed Unit 61 and notified his superior. When narcotics investigators arrived, Investigator Vick turned the matter over to them.

Investigator Vick confirmed he had no reason to believe anything was missing from Unit 61 when he inspected it; there "were very few items in that unit and they were very large items. Four wheeler, a desk and a refrigerator.... [Investigator Vick understood that he] needed to get in touch with [the renter] to find out if he had lost anything." He also understood "[t]here would be no need to take an inventory of what was still in the unit." Officer Kenneth Dwayne Johnson, an investigator with the Albany Dougherty Drug Unit, was the affiant in support of the search warrant. He confirmed his personal knowledge was obtained when Investigator Vick "pointed out something to [him, namely] 3 large ziplock bags of marijuana ... located inside the refrigerator."

Pursuant to OCGA § 5-7-1(a)(4), the State appeals from the trial court's order granting defendant's motion to suppress. Held:

1. The trial court ruled that defendant had a reasonable expectation of privacy in the contents of the refrigerator and that opening the refrigerator by Inspector Vick was a search, i.e., a quest for information by a state agent, that "was not supported by a warrant[, nor] based on a plain view observation from a lawful vantage point [because that act exceeded] the scope of his legitimate presence within Unit 61." The trial court further ruled that the inevitable discovery rule was inapplicable, and that no other basis existed for authorizing this warrantless search not based upon probable cause to believe the refrigerator contained contraband. The State's first enumeration contends the trial court erred in granting the motion to suppress because "the evidence seized was in plain view."

( a) "While the trial court's findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where[, as here,] the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review." (Citations omitted.) Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474.

(b) "The Georgia constitutional provisions regarding search and seizure, Art. I, Sec. I, Par. XIII, are substantially the same as the Fourth Amendment provisions of the U.S. Constitution. [Cit.]" Galbreath v. State, 213 Ga.App. 80, 82(2), 443 S.E.2d 664. "Thus, the constitutional protection has been held to extend to people, houses, automobiles, boats, the area within the curtilage of a house, apartments, hotel rooms, public telephone booths, offices, desks, and a coin-operated locker in a bus station." (Footnotes omitted.) Daniel, Ga. Criminal Trial Practice (1997), § 4-2. Consequently, we disagree with the State's contention that defendant had a diminished expectation of privacy in the closed container (refrigerator) in the once-locked storage unit he rented. See, e.g., State v. Stewart, 191 Ga.App. 750, 382 S.E.2d 677, judgment adhered to after remand, 203 Ga.App. 829, 418 S.E.2d 110.

(c) We agree with the trial court that the marijuana contained in an operating, closed refrigerator was not in the plain view of Investigator Vick. "[I]t has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. The plain view exception to...