The State v. Nesbitt
| Decision Date | 08 July 2010 |
| Docket Number | No. A10A0610.,A10A0610. |
| Citation | 305 Ga.App. 28,699 S.E.2d 368 |
| Parties | The STATEv.NESBITT. |
| Court | Georgia Court of Appeals |
COPYRIGHT MATERIAL OMITTED
Kenneth W. Mauldin, Dist. Atty., James V. Chafin, Asst. Dist. Atty., for appellant.
James W. Smith, Athens, for appellee.
In connection with a traffic stop, Douglas Nesbitt was charged with numerous offenses. Nesbitt moved to suppress all evidence seized after the car was stopped. The trial court granted the motion, and the state appeals. For reasons that follow, we affirm.
An appellate court reviewing a trial court's order concerning a motion to suppress evidence should be guided by three principles with regard to the interpretation of the trial court's judgment of the facts:
OCGA § 17-5-30(b) pertinently provides that “the burden of proving that the search and seizure were lawful shall be on the state.” 3 At the hearing on Nesbitt's suppression motion, the state's attorney asserted that the evidence would show, inter alia, the following circumstances: a police officer initiated a traffic stop; when the driver stopped the car, he ran away, thereby abandoning the vehicle; while fleeing, the driver threw down contraband; although the officer was not able to apprehend the driver, the officer searched the car and found documents with Nesbitt's name; and with those documents, the officer was able to ascertain Nesbitt's identity. To meet its burden of proof, the state called the only witness at the suppression hearing: the police officer who conducted the traffic stop. The officer testified to the following.
At about 2:00 a.m. on April 13, 2007, the manner in which a Nissan Altima was being driven drew the officer's attention. Concerned that the driver was impaired, the officer initiated a traffic stop. The car turned into an apartment complex parking lot, “took an immediate right and the car pulled into a parking space there in the parking lot, not completely forward into the parking space and kind of sideways between a SUV and another car.” The officer testified that, as he was getting out of the patrol car, “[t]he driver got out and opened the door, obviously left it open, looked back toward me appearing to me that he was about to pull away, but he started running.” The man disregarded the officer's oral commands to stop and headed toward a line of trees, throwing items onto the sidewalk. The officer lost sight of the man and therefore collected the items that had been thrown onto the sidewalk-a digital scale and a plastic sandwich baggie that contained what appeared to be cocaine.
The officer turned his attention to the Altima. He testified, “I did a search of the vehicle and located several items of interest in that vehicle [,]” listing a box containing sandwich baggies similar to the baggie he retrieved from the sidewalk and additional wadded-up baggies that contained suspected marijuana residue. The officer testified further:
There were some items in there that I did go through, such as a leather or a leather-type coat, and in that coat I did find a receipt, or a bill.... The name on that receipt was Douglas Nesbitt and it did have an address here in Athens. I also found a handicap parking permit in the car that had the name Doug Nesbitt on it.
The officer recalled, The officer “ran the tag and had our dispatcher find a phone number of the registered owner.” The officer called the number provided and spoke with a man who stated that the car was registered to him and that the “actual owner” of the car was his college-student niece. The man gave the officer his niece's telephone number. The officer next spoke with the niece who said that her boyfriend might have the car, but after talking further with a dispatcher, the niece hung up and did not answer the officer's or the dispatcher's subsequent calls to her. The officer had also learned that the niece lived within that complex, in an apartment, just on the other side of the trees behind which he had lost sight of the driver.
Using the names on the documents found inside the Altima, the officer “pulled a picture from a previous incident” and determined that the picture was of the same man who had disappeared through the trees. At the hearing, the officer identified Nesbitt as that same man.
Nesbitt moved to suppress the evidence seized after the Altima was stopped on the ground that the evidence was obtained as a result of an illegal stop. Much of the argument at the suppression hearing concerned the validity of the stop; indeed, the videotape of Nesbitt's driving just before the officer initiated the traffic stop was played several times. At the end of the hearing, the trial court agreed with Nesbitt that the traffic stop had not been supported by reasonable, articulable suspicion and thus entered an order suppressing all evidence seized after the traffic stop was initiated. The state filed a motion for reconsideration, wherein it asserted that in fleeing Nesbitt had abandoned any privacy interests he may have had in the items thrown to the sidewalk and those left in the car. In an opposing brief, Nesbitt argued that the motion had no merit. The trial court denied the state's motion for reconsideration.
On appeal, the state no longer contends that Nesbitt's driving maneuvers authorized the stop. Instead, asserting only the theory of abandonment, the state argues that irrespective of the legality of the stop of the vehicle, the seized evidence was not tainted as fruit of an illegal, warrantless search.
Our analysis begins with the basic rule that “[t]he Fourth Amendment proscribes all unreasonable searches and seizures, and searches conducted without prior judicial approval are per se unreasonable under the Fourth Amendment, subject to specifically established and well-delineated exceptions.” 4 Among the exceptions to the warrant requirement is a search or seizure of abandoned property; one cannot manifest a reasonable expectation of privacy in an item once it has been abandoned.5
Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. All relevant circumstances existing at the time of the alleged abandonment should be considered. Police pursuit or the existence of a police investigation does not of itself render abandonment involuntary. The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.6
“The issue of abandonment is one of fact to be resolved by the trier of fact, and the finding of fact will not be disturbed on appeal if there is any evidence to support it.” 7
1. We consider first whether the trial court was authorized to reject the state's abandonment argument with respect to evidence seized from the Altima-that is, whether, prior to the officer's search of the car, Nesbitt had relinquished any privacy interest he had in the vehicle.
(a) As an initial matter, we note that the state does not attempt to justify the search of the car as an inventory search; 8 the state does not argue that the search was valid under the “automobile exception” to the search warrant requirement; 9 nor does the state claim that any of the evidence retrieved from the car was seized pursuant to the plain view doctrine. 10 More pertinently, our focus regarding the search of the Altima is on the state's only asserted basis: in fleeing the traffic stop on foot, Nesbitt abandoned the vehicle for Fourth Amendment purposes.
(b) Without question, where the evidence showed that the driver (and passengers, if any) fled a motor vehicle illegally parked or parked in a hazardous manner, courts have treated the vehicle as abandoned for Fourth Amendment purposes. For example, in Burgeson v. State,11 the appellant and her suspected cohorts led police on a high speed chase in a stolen car; after they “crashed the car into a utility pole,” they fled on foot.12 Those circumstances allowed for the determination that the appellant abandoned the stolen vehicle and her personal belongings inside. 13 Likewise, in Skaggs-Ferrell v. State,14 the appellant and his suspected cohorts led officers on a high speed chase, “crashed into a parked car,” then fled on foot.15 Those circumstances allowed for the determination that the vehicle was abandoned property, thus authorizing police officers to search it.16 In Cooper v. State,17 state troopers having probable cause to arrest the appellant pursued his fleeing vehicle; the appellant drove down a public road; exited the vehicle, leaving it “actually situated in the middle of [an] intersecting side road”; then ran away on foot.18 Those circumstances...
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...or instead by means sufficiently distinguishable to be purged of the primary taint.” (Punctuation omitted.) State v. Nesbitt, 305 Ga.App. 28, 36(2)(c), 699 S.E.2d 368 (2010). And, significantly, a defendant's commission of a new crime in the presence of law enforcement is an intervening act......
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