State v. Scott, s. 70540
| Decision Date | 29 October 1985 |
| Docket Number | Nos. 70540,70541,s. 70540 |
| Citation | 339 S.E.2d 276,176 Ga.App. 887 |
| Parties | The STATE v. SCOTT et al. SCOTT v. The STATE. |
| Court | Georgia Court of Appeals |
David E. Perry, Dist. Atty., Robert C. Wilmot, Asst. Dist. Atty., for appellant.
C. Paul Bowden, Ocilla, for appellees.
This appeal and cross-appeal are the result of the trial court's partial grant of defendants' motion to suppress evidence.
Law enforcement officials in Tift County were apprised that defendant Scott, a fugitive from North Carolina, was suspected to be in the county. GBI Agent Rakestraw received information from an undercover agent that Scott could be apprehended at Angelia Johnson's residence known as the "cabin in the pines." He was also informed that a black male known only as "Ricky" was at the residence and that a loaded .44 caliber rifle was kept by the front door of the house. An arrest warrant for Scott was obtained and also a search warrant for the premises of Angelia Johnson in order to search for Scott. The warrant also included a "no knock provision" permitting officers to enter without knocking. Having obtained the necessary warrants, Agent Rakestraw, the Sheriff of Tift County and several members of his department went to Angelia Johnson's residence at approximately 1:00 a.m. on September 16, 1984.
The officers did knock and announce their presence. When at first no one opened the door a deputy attempted to kick the door open but failed. Scott then opened the door and after threatening and cursing the officers was taken into custody and removed from the house. At the same time Angelia Johnson appeared in the front room dressed in short pajamas. She was permitted to obtain a housecoat and then was seated at the dining room table and watched by a deputy. There was no rifle by the front door and the remainder of the house was dark. Although no one responded to loud inquiries by the officers and Angelia denied anyone else was at home, Agent Rakestraw was concerned about the rifle and the expected presence of a third individual living in the house. Consequently, he and others walked through the house to secure it. In the course of that search, several partially burned marijuana cigarettes were seen in ashtrays on the bedside table in Angelia Johnson's bedroom and on the dresser in the other bedroom. Also seen standing between a bookcase and the wall was the .44 rifle, cocked. When the officer picked it up to disengage it, he saw that the identification (serial number) had been ground off. Based on what had been seen openly, Agent Rakestraw decided to expand the search and after informing Angelia Johnson the officers proceeded to thoroughly search the entire house. Closets, closed boxes and containers produced additional drugs. As the officers were about to leave, defendant Ricky Wilson, the absent occupant, arrived at the house and was promptly arrested.
The defendants Scott, Wilson and Angelia Johnson (who withdrew as a party appellee) were charged with possession of the various drugs and the firearm. Their motion asked for the suppression of the seized items and asserted that defendants had automatic standing to challenge the validity of the searches because the seized items would be used against them at trial.
After a lengthy evidentiary hearing on the motion, the court entered an order which recited basically the above facts. In addition the court found that Angelia Johnson and defendant Wilson lived at the residence which was searched, but that defendant Scott, who while a fugitive had been staying at the residence off and on, had little or no control over the premises or who was invited to visit them.
The trial court concluded that defendants had automatic standing to contest the validity of the searches; that the seizure of the contraband which was in plain sight was proper; that no exigency existed which justified an expanded search of the house so that all items seized as a result of this second search should be suppressed.
In 70540 the state appeals and contends that because of the items found during the limited search for the purpose of securing the house the second general and extensive search was permissible. In 70541 the defendants appeal and argue that not only was the second search improper but the first search also violated their federal constitutional rights and it was error not to suppress the items seized as a result of that search.
1. In holding that the defendant had standing the trial judge relied on Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) and Georgia cases which applied that decision to the effect that where possession is an essential element of the offense charged, a defendant has automatic standing to challenge the search's validity. However, the Jones concept was undermined in Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978) and overruled in United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 2549, 65 L.Ed.2d 619 (1980). The correct standard as expressed in Salvucci is "not merely whether the defendant had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched." Id. at 93, 100 S.Ct. at 2553. The courts of this state have applied the applicable principles in post Salvucci decisions. See e.g., Graham v. State, 171 Ga.App. 242, 246, 319 S.E.2d 484 (1984); Smallwood v. State, 171 Ga.App. 784, 785, 321 S.E.2d 118 (1984); Sims v. State, 251 Ga. 877, 882, 311 S.E.2d 161 (1984).
Thus the inquiry focuses directly on whether the defendant had a reasonable expectation of privacy in the area searched. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). "Factors to be considered in evaluating whether a justifiable expectation of privacy exists include whether the accused has a right to exclude others from the place searched; whether he has a possessory interest in the items seized; and whether he took normal precautions to maintain the privacy and security of the items seized." Sims v. State, supra, 251 Ga. at 882(6), 311 S.E.2d 161, and cases cited therein. Applying these factors to the trial court's findings, as supported by the evidence, Scott showed no justifiable expectation of privacy and may not contest the search. He was merely a guest who came and went at irregular intervals and had neither...
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