State v. Newsome

• Decision Date: 24 October 2019
• Docket Number: A19A1623
• Citation: 352 Ga.App. 546,835 S.E.2d 329
• Parties: The STATE. v. NEWSOME.
• Court: Georgia Court of Appeals

352 Ga.App. 546

835 S.E.2d 329

The STATE.

v.NEWSOME.

A19A1623

Court of Appeals of Georgia.

October 24, 2019

William B.Britt, Assistant District Attorneys, for appellant.

Benjamin A. Pearlman, for appellee.

Gobeil, Judge.

Cameron Steele Newsome was charged with theft by receiving stolen property and numerous drug-related offenses after law enforcement found stolen property and evidence of a methamphetamine laboratory during a search of Newsome’s apartment. The trial court granted Newsome’s motion to suppress the evidence from the search, concluding that the information upon which the search warrants were based was obtained by an unlawful intrusion into the home’s curtilage. On appeal, the State contends that the trial court misapplied the law governing the circumstances under which law enforcement may approach a home’s rear door in the conduct of a warrantless knock and talk procedure. For the reasons that follow, we affirm.

When reviewing a trial court’s ruling on a motion to suppress, we must follow three fundamental principles:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. These principles apply equally whether the trial court ruled in favor of the State or the defendant.

Phillips v. State , 338 Ga. App. 231, 231, 789 S.E.2d 421 (2016) (citation, punctuation and emphasis omitted). We conduct a de novo review of the trial court’s application of the law to the undisputed facts. State v. Mohammed , 304 Ga. App. 230, 230, 695 S.E.2d 721 (2010).

Construed most favorably to the trial court’s findings and judgment, the evidence shows that in June 2016, authorities in Oglethorpe County were investigating a report of stolen property. The stolen items consisted of various tools, including a bench grinder, a welder, a tire mounting machine, a belt sander, and a drill. The victim’s daughter reported the incident to law enforcement initially, but she later admitted that she and her boyfriend gave the tools to Newsome in exchange for drugs. Michael Mathews, an investigator with the Oglethorpe County Sheriff’s Office, tracked Newsome’s location to a residence in Clarke County. Mathews conceded that the information he obtained from the victim’s daughter was insufficient to support the issuance of a search warrant, but he traveled to Newsome’s apartment to question Newsome about the tools and further the investigation through the use of a knock and talk procedure.

When Mathews arrived at the apartment on June 22, 2016, he knocked on the front door several times, but received no answer.¹ Mathews testified that, when conducting a knock and talk procedure, his usual practice is to knock on the back door if no one answers the front door "because some people have rooms where they’re just in the back of the house and they can’t hear the front of the house." He then walked to the back of the residence.

Newsome’s apartment is located on the second floor of a quadplex, a building which includes three other apartments. The front door of the apartment is accessible by walking through a common area. The back yard of the apartment is not connected to the front of the apartment by a sidewalk or driveway, and is accessible only by walking through the grass. Newsome’s rear door is located on a second-floor deck, which is surrounded by railing, and separated from the adjacent apartment by a wooden privacy partition. The deck can be reached by climbing a flight of stairs which leads to Newsome’s apartment only.

Mathews ascended the flight of stairs and, upon reaching the back deck, observed a pair of pliers, which "spark[ed] [Mathews’s] interest" because the crime involved the theft of tools. The rear doors of Newsome’s apartment are made of glass. As he knocked on the back door, Mathews looked through the glass and observed grinders and other tools on the floor in the apartment. Mathews took pictures of the tools and sent them to the victim, who confirmed that some of the tools belonged to him.

Investigator Mathews immediately contacted Sergeant David Wortham, a member of the Athens-Clarke County Sheriff’s Department, and asked him to prepare a search warrant for the stolen property. Law enforcement then arrived at Newsome’s residence to execute the search warrant. Once inside, they discovered additional tools and observed indications that Newsome was manufacturing methamphetamine. Wortham then obtained a second search warrant for the methamphetamine-related contraband, and officers discovered additional evidence indicative of a methamphetamine lab in Newsome’s apartment.

Newsome moved to suppress the evidence seized in his home, including any fruit of the illegal search and seizure.² The trial court held a hearing on the motion, at which it heard testimony from the investigating officers and viewed photographs depicting the exterior of Newsome’s apartment complex. The court granted the motion, finding that Mathews’s presence at Newsome’s back door was not authorized because there was no evidence that the back door was treated as a public entrance. Moreover, the court concluded that Mathews’s approach to the rear door, after receiving no response at the front door, was unauthorized because the officer had no reason to believe that the apartment was occupied, and thus had no reason to believe that an attempt to knock on the back door would have been more successful or welcome. The State now appeals the ruling on the motion to suppress.

The Fourth Amendment to the United States Constitution protects against "unreasonable searches and seizures[.]" U.S. Const. Amend. IV. The protections afforded by the Fourth Amendment extend to the home and its curtilage. State v. Gallup , 236 Ga. App. 321, 323 (1) (b), 512 S.E.2d 66 (1999). Curtilage has been described as "the area immediately surrounding a dwelling house," and the extent of the curtilage "is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself." United States v. Dunn , 480 U. S. 294, 300 (II), 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). A warrantless search of the curtilage violates the Fourth Amendment unless an exception to the warrant requirement applies. See Leon-Velazquez v. State , 269 Ga. App. 760, 761 (1), 605 S.E.2d 400 (2004) ("Generally, a law enforcement officer’s entry into a home without a search warrant and without consent or exigent circumstances constitutes an unjustified, forcible intrusion that violates the Fourth Amendment."). However, "the plain view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer only if the officer[ ]" is lawfully present at the location where the seizure occurred. State v. Schwartz , 261 Ga. App. 742, 745 (2), 583 S.E.2d 573 (2003) (citation and punctuation omitted).

Here, the State does not contest that the back door and deck areas of Newsome’s apartment are part of the home’s curtilage. Further, it is undisputed that Mathews did not have a search warrant when he approached Newsome’s residence. Rather, the State contends that Mathews was lawfully on the back deck (as a prerequisite to his plain view observation of the stolen tools) as part of his knock and talk investigation after receiving no response at the front door. Therefore, the State argues, the trial court erred in granting Newsome’s motion to suppress. We disagree.

Warrantless searches of the curtilage "are per se unreasonable under the Fourth Amendment–subject only to a few specifically established and well-delineated exceptions." Katz v. United States , 389 U. S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One such exception is a "knock and talk" procedure, which involves law enforcement approaching a home or residence for the purpose of investigating a crime or making inquiries of the occupant. See Kentucky v. King , 563 U. S. 452, 466-467 (III) (B), 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) ("[T]he police may wish to speak with the occupants of a dwelling before deciding whether it is worthwhile to seek authorization for a search. They may think that a short and simple conversation may obviate the need to apply for and execute a warrant."). The use of a knock and talk technique as an investigatory tool does not violate the Fourth Amendment, so long as "police utilize normal means of access to and egress from the house[.]" Cupe v. State , 327 Ga. App. 642, 646, 760 S.E.2d 647 (2014) (citation and punctuation omitted). The rationale underlying the knock and talk exception is that there is no reasonable expectation of privacy subject to Fourth Amendment protection where the public is welcome. See State v. Zackery , 193 Ga. App. 319, 320, 387 S.E.2d 606 (1989) (a police officer makes a "valid intrusion" upon property when "such an officer is merely taking the same route as would any guest or other caller") (citation and punctuation omitted). Whether a person has a reasonable expectation of privacy in a particular area of the home’s curtilage, and thus the extent to which a law enforcement officer may approach the back door of a home without a warrant, depends upon the facts and circumstances of each case. See Ohio v. Robinette , 519 U. S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (in examining the totality of the circumstances to determine reasonableness, our analysis "eschew[s] bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry").

We previously have held that police may approach a side or rear door of a...