State v. Vickers

• Decision Date: 01 November 2016
• Docket Number: A16A0792
• Citation: 793 S.E.2d 167,339 Ga.App. 272
• Parties: The STATE v. VICKERS et al.
• Court: Georgia Court of Appeals

339 Ga.App. 272

793 S.E.2d 167

The STATE

v.VICKERS et al.

A16A0792

Court of Appeals of Georgia.

November 1, 2016

Drew Unger, Daniel J. Porter, Lawrenceville, for Appellant.

Kemay LaReine Jackson, Snellville, Elizabeth LeAnne Chancey, Deborah Rachelle Fluker, Lawrenceville, Gwinnett County, for Appellee.

Boggs, Judge.

Treland Jones, Ladairius Vickers, and Deonte Sims were charged by accusation with two counts of violation of the Georgia Controlled Substances Act.¹ The State appeals from the trial court's grant of the appellees' motions to suppress evidence obtained in a warrantless search of a vehicle parked in the driveway of Sims' home. Because the evidence supports the trial court's conclusion that officers failed to obtain a warrant and showed no consent or exigent circumstances to support a search or arrest in the curtilage of the residence, we affirm.

"A trial judge's findings of fact on a motion to suppress should not be disturbed if there is any evidence to support them; determinations of fact and credibility must be accepted unless clearly erroneous; and the evidence must be construed most favorably to the upholding of the trial court's findings and judgment. [Cits.]" Kirsche v. State , 271 Ga.App. 729, 611 S.E.2d 64 (2005). And "[w]hether evidence is found within the curtilage of a residence is a mixed question of fact and law. On appeal, we accept the trial court's findings of fact unless clearly erroneous, but owe no deference to the trial court's conclusions of law. Instead, we are free to apply anew the legal principles to the facts." (Citations, punctuation, and footnote omitted.) Rivers v. State , 287 Ga.App. 632, 633 (1) (b), 653 S.E.2d 78 (2007).

So viewed, the evidence shows that Gwinnett County police officers were executing an unrelated arrest warrant when they noticed a car parked in the driveway of the house next door. The car was wholly inside the boundaries of the private property, "fairly closely parked to the actual garage of the home" as shown in a photograph identified by a police witness.² A plainclothes officer testified that as he walked through the side yard of the neighboring house, about 10 or 15 feet from the car, he smelled a strong odor of marijuana and observed heavy smoke inside the vehicle. He also testified that he saw individuals in the car passing "something" back and forth, but that he did not know what it was. Asked, "You never saw them passing a marijuana cigarette or joint?" he responded, "No," and that "as far as what they were passing, I don't know." He testified that he "assumed that it was marijuana," (emphasis supplied), and the trial court so found. And the trial court also found that, other than the odor of marijuana, even after approaching the vehicle "the officers still could not see any contraband in plain view to seize within the car."

The plainclothes officer informed other officers via radio of the occupants of the car and that he "believe[d] they were smoking marijuana. They needed to come and make contact with them." A police sergeant testified that he observed the car for over an hour. As he walked up the driveway, he could smell the odor of marijuana, but did not see anyone in the vehicle smoking and did not see any marijuana in plain view. He further testified that he did not observe any traffic offense and did not "witness[ ] any criminal activity out of the car or the occupants of the car prior to approaching the driveway." He could not even see how many people were inside until he was "actually right at the vehicle" and "could actually touch it."

The sergeant determined that four individuals were in the car and "decided to just detain the individuals in the car until I could get my officers back. Because at that point we were outnumbered, and it became a safety issue for me." He testified, "I didn't do an investigation. I decided to detain and hold what I've got." Police removed the four occupants of the vehicle but saw no illegal substances or other evidence "in plain view." No search warrant was ever obtained, as the officers testified that they relied upon the "automobile exception." Once the occupants were removed, officers searched the vehicle and found 1.4 grams of suspected marijuana and alprazolam under the front passenger seat. No evidence of burnt marijuana was found. The State did not elicit and the officers did not testify to any exigent circumstances or consent to search, and the trial court found that neither existed.

[E]ven if the officers had probable cause to investigate a crime, the Fourth Amendment prohibited them from entering [the] home or its curtilage without a warrant absent consent or a showing of exigent circumstances. Carranza v. State , 266 Ga. 263, 264–265 (1), 467 S.E.2d 315 (1996) ; Bunn v. State , 153 Ga.App. 270, 274, 265 S.E.2d 88 (1980). See also State v. Gallup , 236 Ga.App. 321, 323 (1) (b), 512 S.E.2d 66 (1999) (constitutional protection extends to curtilage of home).

(Footnote omitted.) Kirsche , supra, 271 Ga.App. at 731, 611 S.E.2d 64 ; see also Bowman v. State , 332 Ga.App. 407, 408 (1), 773 S.E.2d 33 (2015) ( "yard immediately surrounding a dwelling falls within the curtilage of a home. [Cit.]")

Moreover, we have held specifically that a defendant has a reasonable expectation of privacy in a vehicle parked within the curtilage of his home. State v. O'Bryant , 219 Ga.App. 862, 864, 467 S.E.2d 342 (1996). There, drug agents went without a warrant to O'Bryant's residence for a "knock and talk" based on "an anonymous tip of possible drug dealing." Id. at 862, 467 S.E.2d 342. After they knocked on two doors without result, one agent walked over to a truck parked in the driveway beside the house. "While looking inside the closed and tinted windows, he claimed he was able to discern what appeared to be a plastic bag of marijuana, partially hidden under the driver's seat." Id. We held that the officers "had finished their official business" and "had no valid reason to look into the truck." Id. at 863–864, 467 S.E.2d 342. "At the point where [the agent] elected to peer inside the truck, his actions became investigative in nature. Furthermore, the vehicle was within the curtilage of the home, and O'Bryant had a reasonable expectation of privacy in his driveway. [Cit.]" Id. at 864, 467 S.E.2d 342.

In this case, as in O'Bryant ,"the vehicle was not on a street or a roadway and the incriminating evidence was not plainly visible," id. but required a search of the interior of the vehicle to discover. Id. at 863, 467 S.E.2d 342. No evidence was presented that the officers intended to engage in a "knock and talk" at the residence or its curtilage. They simply approached the car, opened the doors, and removed the occupants. See Gallup , supra, 236 Ga.App. at 324 (1) (c), 512 S.E.2d 66 (opening door of refrigerator exceeded scope of officer's investigation of burglary). When the officers here searched the interior of the vehicle without a warrant, consent, or exigent circumstances, their discovery of the drugs under the seat was illegal and was correctly suppressed. Id. ; see also Bowman , supra, 332 Ga.App. at 408–409 (1), 773 S.E.2d 33.

Both in the trial court and on appeal, the State relies upon the " ‘automobile exception’ to the warrant requirement imposed by the Fourth Amendment" to contend that the search was permissible, contending that it applies to searches "on private property" on the authority of State v. Sarden , 305 Ga.App. 587, 589, 699 S.E.2d 880 (2010). But the State, while citing our decision in Sarden , ignores the distinction made there between the curtilage of a private residence and private commercial property. The police arrested Sarden on four outstanding felony warrants after he parked in a convenience store parking lot, and they looked through the window of his car and saw drugs in plain view. Id. at 588, 699 S.E.2d 880. Sarden argued that the automobile exception did not apply because he was parked on private property, but we rejected that contention, relying on numerous Georgia decisions:

The automobile exception is justified on two grounds: the ready mobility of automobiles and the diminished expectation of privacy that citizens have in them. See California v. Carney , 471 U.S. 386, 391–392 (II), 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). And "[w]hen a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes—temporary or otherwise—the two justifications for the vehicle exception come into play." (Footnote omitted.) Id. at 392–393 (II), 105 S.Ct. 2066. Hence, the automobile exception applies even if the car is not stopped along a highway, but is stationary in a place not regularly used for residential purposes , as in the present case, where Sarden's car was in a parking space outside a commercial establishment.

(Citations and footnote omitted; emphasis supplied.) Id. at 590, 699 S.E.2d 880. Other United States Supreme Court decisions and the Eleventh Circuit decision cited by the State likewise do not involve the search of a vehicle within the curtilage of a defendant's residence.³ And to the extent the State attempts to rely upon Harris v. State , 948 So.2d 583 (Ala. Crim. App. 2006), holding that the automobile exception continues to apply within the curtilage, "we are not bound by decisions of other states or federal courts except the United States Supreme Court."

Gresham v. Harris , 329 Ga.App. 465, 467, 765 S.E.2d 400 (2014). We decline to alter the established Georgia rule that vehicles, like any other item or location within the curtilage of a residence, are not to be searched without a warrant, consent, or exigent circumstances. See O'Bryant , supra. Here, the trial court explicitly found that "there was insufficient evidence that the vehicle was even operational to support a finding of exigency." Given that finding of fact, to which we must show deference, the rationale for the automobile exception...