State v. Schwartz, A03A0163.

• Court: United States Court of Appeals (Georgia)
• Citation: 261 Ga. App. 742,583 S.E.2d 573
• Docket Number: No. A03A0163.,A03A0163.
• Parties: The STATE v. SCHWARTZ et al.
• Decision Date: 18 June 2003

583 S.E.2d 573
261 Ga. App. 742

The STATE
v.
SCHWARTZ et al

No. A03A0163.

Court of Appeals of Georgia.

June 18, 2003.

583 S.E.2d 575

James R. Osborne, Dist. Atty., Thomas J. Melanson, Asst. Dist. Atty., for appellant

McKinney & Froelich, William J. McKinney, for appellees.

583 S.E.2d 574

RUFFIN, Presiding Judge

The State charged Bradley and Elizabeth Schwartz with possession of marijuana with intent to distribute and possession of more than one ounce of marijuana. Before trial, the Schwartzes moved to suppress all evidence seized from their home, including the marijuana. The trial court granted the motion, and the State appeals. For reasons that follow, we affirm.

In reviewing the trial court's ruling on a motion to suppress, we follow three general 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.¹

So viewed, the evidence shows that on May 22, 2001, Deputies Brown and Tanner of the Paulding County Sheriff's Department prepared to execute an arrest warrant for Charles Walker, who had been charged with aggravated stalking. At approximately 9:20 p.m., the deputies arrived at the residence listed for Walker on the warrant. Tanner walked to the front door of the house, while Brown went to a window seven or eight feet

583 S.E.2d 576

away. The window was covered with blinds, but the slats were open. Brown looked through the blinds and saw a male and a female sitting on a couch. According to Brown, the male appeared to have a marijuana cigarette in his hand. In addition, Brown noticed a large plastic bag containing a green leafy substance that also appeared to be marijuana on a table in front of the female.

After Brown informed Tanner of his observations, Tanner knocked on the door, but did not identify himself. At that point, Brown saw the male walk toward the door, while the female placed the plastic bag in an infant's diaper bag under the table. Brown joined Tanner at the front door, and the two waited for the door to open.

The male opened the door, saw the uniformed officers, stepped [261 Ga. App. 743] outside, and closed the door. He then identified himself as Bradley Schwartz. Brown asked Mr. Schwartz whether Walker was at the residence. Mr. Schwartz responded that Walker, his brother-in-law, was not there. According to Mr. Schwartz, the deputies requested permission to enter the home three times, but he refused and instead provided another address where Walker could be found. At that point, Brown showed Mr. Schwartz the warrant and stated that the deputies needed to enter the house to look for Walker. After some hesitation, Mr. Schwartz led them into the house, where the deputies saw Elizabeth Schwartz on the couch. Mrs. Schwartz confirmed that Walker was her brother and that he was not at the home.

The deputies asked permission to search the house for Walker, and the Schwartzes consented. Tanner looked through the home with Mrs. Schwartz, but did not find Walker. At that point, Brown told the Schwartzes: "`we've got another issue that we need to discuss.'" When Brown advised them of what he had seen through the window, Mr. Schwartz placed his face in his hands and Mrs. Schwartz began to cry. Mr. Schwartz then reached into the diaper bag, pulled out the bag of suspected marijuana, and stated, "it's a quarter pound."

Brown asked whether any other marijuana could be found in the house. Mr. Schwartz responded, "yes," and gave Brown a marijuana cigarette, rolling papers, and another small bag of marijuana. The Schwartzes subsequently consented to a further search of the house, which produced no additional contraband.

The Schwartzes filed a motion to suppress, arguing that the police illegally searched their home and seized the marijuana without a warrant. The trial court agreed and suppressed "all evidence obtained from the premises."

1. In a detailed order, the trial court first concluded that, although lawfully on the Schwartz property to execute the arrest warrant, Brown had no right to look through the Schwartzes' window. We find no error.

The Fourth Amendment to the United States Constitution protects "[t]he right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures." The record shows that the Schwartz home is set back 100 feet from the street and surrounded by a fence. This is not a situation where the contraband was visible from a place outside of the Schwartz property, such as the street or public sidewalk.² Indeed, the State does not contend that Mr. and Mrs. Schwartz or the marijuana could be seen through the window from anywhere other than their property. [261 Ga. App. 744] Under these circumstances, Brown invaded their privacy by standing at the window and peering inside the house.³ The question is whether the violation was reasonable.

583 S.E.2d 577

Undoubtedly, an officer may knock on the outside door of a home without implicating the Fourth Amendment.⁴ The State argues that, given the arrest warrant, the deputies were further authorized to enter the Schwartz residence and search for Walker. In granting the motion to suppress, however, the trial court found insufficient evidence that Walker lived with the Schwartzes. And "[i]t is now well established that even when armed with an arrest warrant, police must have either a search warrant, exigent circumstances or consent to lawfully enter a third person's home to arrest someone who does not reside there."⁵

Moreover, even if the deputies were authorized to enter the home to arrest Walker, Brown's decision to peer through a window was not necessarily reasonable. Nothing in the record indicates that Brown gained this vantage point by traveling along the route any visitor would travel to the Schwartzes' front door.⁶ Instead of walking to that door, Brown "went to the side of the house where the carport and the front of the house meet." Brown's authority to approach the house, therefore, did not justify his observation through the window.⁷

On appeal, the State claims that safety concerns supported the visual intrusion. Brown, however, never clearly described his conduct as a safety precaution. Furthermore, officers may only search a house for safety reasons "in conjunction with an in-home arrest when they possess `articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual [261 Ga. App. 745] posing a danger to those on the arrest scene.'"⁸ Officers armed with a search warrant also may not enter a home without knocking absent some exigent circumstance, such as a reasonable belief that forewarning would jeopardize their safety.⁹ We hold that a similar reasonable belief must support an officer's decision, based on safety grounds, to peer through a window before executing an arrest warrant.

In this case, the trial court found no evidence that Walker posed any threat of death or injury to...