State v. Jackson, No. A91A0847

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: McMURRAY; CARLEY, P.J., POPE, BEASLEY and COOPER, JJ., and ARNOLD SHULMAN; SOGNIER, C.J., BIRDSONG, P.J., and ANDREWS; ANDREWS
• Citation: 412 S.E.2d 593,201 Ga.App. 810
• Parties: The STATE v. JACKSON et al.
• Decision Date: 15 November 1991
• Docket Number: No. A91A0847

Page 593

412 S.E.2d 593 201 Ga.App. 810 The STATE
v.
JACKSON et al. No. A91A0847. Court of Appeals of Georgia. Nov. 15, 1991.

[201 Ga.App. 817] Robert E. Keller, Dist. Atty., Albert B. Collier, Asst. Dist. Atty., for appellant.

Warren A. Sellers, Jonesboro, Horace W. Roberts, College Park, for appellees.

[201 Ga.App. 810] McMURRAY, Presiding Judge.

Defendants Clint Jackson and Tanya Faye Kendrick were jointly indicted for violating Georgia's Controlled Substances Act, possessing more than one ounce of marijuana. Defendants pleaded not guilty and filed separate motions to suppress.

At the beginning of a hearing on the motions to suppress, the State argued that defendant Kendrick's motion to suppress should be dismissed for lack of standing because the search was conducted in defendant Jackson's automobile. The trial court reserved ruling on the motion to dismiss and heard from the State's sole witness, Deputy Brian Crisp of the Clayton County Sheriff's Department.

Deputy Crisp testified that he and another plainclothes law enforcement officer were on stake-out at a suspected drug source house at about 9:00 in the evening on January 31, 1990, when he observed two persons drive from the targeted house in a 1976 Oldsmobile Cutlass. ¹ Deputy Crisp

Page 594

testified that it was dark and that he could not [201 Ga.App. 811] identify the suspects because of the distance of surveillance, but that he discovered from a check of the license plate that the Cutlass was registered to defendant Jackson. Deputy Crisp testified that he followed the Oldsmobile in an unmarked patrol car and that his partner alerted a marked patrol car for assistance in the event the Cutlass was observed violating traffic laws.

Deputy Crisp testified that the suspects did not violate traffic laws, but that they drove to a house where Deputy Crisp had arrested Kendrick within the past year for selling marijuana. (Deputy Crisp remembered that Jackson was with Kendrick when he arrested her for selling marijuana.) The deputy testified that his partner radioed for a marked patrol car before the suspects arrived at Kendrick's house, explaining that "[w]hen it became time to interview Mr. Jackson, [he] wanted some other presence there so that [Jackson] would be aware of the fact that there was police officers."

Deputy Crisp testified that the Oldsmobile parked in the grass to the right of defendant Kendrick's "single wide driveway ..." and that he "pulled [the unmarked patrol car] up into the first part of the driveway behind [Jackson's] vehicle just to the side, the left side, with the headlights on." Deputy Crisp explained that "Mr. Jackson and Ms. Kendrick both had already exited their vehicle and [Ms.] Kendrick was walking back to [Deputy Crisp] as [he] was approaching [her]." Deputy Crisp testified that he identified himself as "a police officer[; that he] told him that [he] had been conducting a narcotics investigation and had been conducting surveillance on [a suspected drug source] residence, that [he] had observed him leave the residence and followed him to [defendant Kendrick's house]." Deputy Crisp testified that he then "asked [Jackson] if he would allow him to search his person and his vehicle, and ... advised [Jackson] that he did not have to let [Deputy Crisp], if he would, that would be fine." Deputy Crisp testified that defendant Jackson consented to a search of his vehicle and that "under the passenger side of the bench seat [he] found a large plastic bag containing ... six smaller clear plastic bags of marijuana."

Deputy Crisp testified that the marked patrol car arrived at the scene sometime after his encounter with defendants; that he and his partner were clothed in blue jeans on the night of the search; that no weapons were in view during the encounter with defendants and that neither officer "pull[ed]" their weapons during the encounter.

[201 Ga.App. 812] The trial court subsequently entered an order and concluded that defendant Kendrick had standing to challenge the search of Jackson's vehicle because the search was conducted on Kendrick's property. The trial court also granted the motions to suppress, holding that defendants were unlawfully detained under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, and that the unlawful detention tainted Jackson's consent to search, i.e., the consent to search was not freely and voluntarily given. This appeal followed. Held:

1. The State first contends the trial court erred in holding that defendant Kendrick had standing to challenge the search of Jackson's vehicle because Jackson drove his car onto Kendrick's property.

"[P]roperty rights are neither the beginning nor the end of the fourth amendment inquiry. United States v. Salvucci, 448 U.S. 83, 92, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619, 628 (1980). Other factors enter into the calculus, no single integrant being determinative. The additional circumstances to be considered include whether the appellants enjoyed the right to exclude others from the property, or whether they had a possessory interest in the articles seized, and what precautions were taken to assure their privacy. See United States v. Haydel, 649 F.2d 1152, 1154-55 (5th Cir.1981), modified, 664 F.2d 84, cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 140 (1982)." United States v. Torres, 705 F.2d

Page 595

1287, 1294 (11th Cir.1983). ²

In the case sub judice, there is no evidence that Kendrick exercised precautions to insure the privacy or safety of Jackson's automobile, i.e., Kendrick did not request the law enforcement officers to leave her front yard; that Kendrick had a possessory interest in the searched vehicle or that she expected privacy in the passenger compartment of Jackson's automobile. Autry v. State, 150 Ga.App. 584, 585(1), 258 S.E.2d 268. On the contrary, any expectation of privacy Kendrick may have had in the passenger compartment of Jackson's vehicle vanished when she voluntarily exited the vehicle and approached the law enforcement officers. These circumstances show that Kendrick, "who asserted neither a property nor a possessory interest in the automobile searched nor an interest in the property seized and who failed to show that [she] had any legitimate expectation of privacy in the ... area under the seat of the car in which [she was] [201 Ga.App. 813] merely [a passenger, is] not entitled to challenge a search of [that area]. [Cits.]" Rakas v. Illinois, 439 U.S. 128, 129(4), 99 S.Ct. 421, 58 L.Ed.2d 387. See Graham v. State, 171 Ga.App. 242, 245(3), 246, 319 S.E.2d 484. Further, any holding which implies that Kendrick is a "defendant aggrieved by an unlawful search and seizure" under OCGA § 17-5-30 because Jackson drove his automobile into Kendrick's front yard is erroneous.

"[I]t is the recognized relationship of the person with the property searched that gives rise to the protective device of suppression [under OCGA § 17-5-30]. See State v. Scott, 176 Ga.App. 887, 888(1) (339 SE2d 276) (1985)." Sanders v. State, 181 Ga.App. 117(1), 119, 351 S.E.2d 666. In the case sub judice, there is no evidence that Kendrick had a possessory interest or an expectation of privacy in Jackson's vehicle and there is no evidence that the searching law enforcement officers were unlawfully in Kendrick's yard. Consequently, there remains no basis under OCGA § 17-5-30 to support a claim that Kendrick had standing to challenge the search of Jackson's vehicle. See Britt v. State, 186 Ga.App. 418, 419(3), 420, 367 S.E.2d 298. The trial court erred in failing to dismiss defendant Kendrick's motion to suppress for lack of standing.

2. Next, the State contends the trial court erred in...