Arp v. State

327 Ga.App. 340

759 S.E.2d 57

ARP

v.The STATE.

No. A14A0390.

Court of Appeals of Georgia.

May 21, 2014.

Jeffrey Wynn Cofer, Jonesboro, Jared Scott Westbroek, for Appellant.

David Eugene Slemons, James Luther Wright III, for Appellee.

BRANCH, Judge.

In an attempt to arrest Christopher Watson pursuant to an arrest warrant, law enforcement officers entered the curtilage of Kenneth Ray Arp's home by approaching Arp's back door where, based on the officers' observations of events inside the house, they entered without consent and discovered marijuana. Watson had no relation to Arp, was not in Arp's home, and did not live there. After a stipulated bench trial, Arp was convicted of marijuana possession and making terroristic threats. On appeal, Arp contends the trial court erred by denying his motion to suppress the evidence used against him. He contends that neither the arrest warrant nor the surrounding circumstances authorized the officers to enter the curtilage of his home and that, therefore, the ensuing search was illegal. We agree and reverse.

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. Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646 (1994); Jackson v. State, 258 Ga.App. 806, 807–808(2), 575 S.E.2d 713 (2002). Where the trial court denies the motion to suppress without explanation or findings of fact, we construe the facts in favor of the trial court's decision. Corey v. State, 320 Ga.App. 350, 351, 739 S.E.2d 790 (2013).

The record of the hearing on the motion to suppress shows that on February 5, 2013, Sergeant Dan Blythe of the Henry County Police Department and other officers from Flint and Clayton County were attempting to arrest Watson pursuant to an arrest warrant dated January 10, 2013 for misdemeanor obstruction of an officer, which listed Watson's address as 137 Chestnut Lane in McDonough. Blythe was familiar with Watson and his family, and Blythe and other officers were aware that Watson had a reputation of running from and fighting with police, stealing, and breaking into houses. In fact, Watson had fled some of the same officers earlier that day.

Blythe and the other officers went to the Watson home at the address shown on the warrant and spoke with Watson's mother, but Watson was not there. Watson's mother told the officers that Watson had been picked up that day by a woman named Wendy Wilson in a small red car. Blythe then used a police computer to determine that Wilson had a “previous address” or “last known location” of 487 Lakeshore Drive. Both Blythe and other officers knew that the house located at 487 Lakeshore Drive was not Watson's residence. The officers did not have a search warrant for the Lakeshore Drive address, and they did not perform a computer search to determine if Wilson still lived there or who was listed as a resident.

Blythe and the other officers drove to 487 Lakeshore Drive, arriving in the dark, and they saw a red Chrysler Sebring parked either in the driveway or on the side of the property, facing out, such that the license tag could only be seen from the back. While other officers approached the front door, Blythe, Sergeant Romano, and Sergeant Fowler ran past the Chrysler to the back of the property without stopping to check the license tag of the red car as they passed it. Blythe testified that he saw there was no fence in the back, “so we found the back door and kind of got in the area of the back door while the other agents knocked on the front door”; Romano was positioned “just shy of the back door.” The blinds were partially up on the window located beside the back door. Blythe also testified that before he got to the door, he saw movement inside of the house from a point near the property line and that he and Fowler then moved up to the back door and window to see what was happening and for officer safety, to make sure that the person was not grabbing a weapon. From his position at the back door, Blythe looked through the window and saw a woman speak with another person in a hallway at the door to the bedroom. Blythe then saw the woman run into the bedroom where she grabbed something, then run to the bathroom, run back to the bedroom to grab a closed, clear plastic container, and come back to the bathroom, passing so close to Blythe that he could see what appeared to be marijuana in the container.

Blythe told Fowler and Romano what he had seen, and the officers therefore decided to enter the back door of the house “for the sole purpose of preventing [the woman] from destroying what we believed to be ... marijuana.” The officers yelled “police,” opened the unlocked back door, and seized the marijuana in the bathroom. Based on the seizure and Arp's statements to Sergeant Romano after Romano entered the home, Arp was charged with possession of more than an ounce of marijuana and with making terroristic threats. Neither Watson, the subject of the arrest warrant, nor Wilson were found in the Arps' home.

Arp testified that his wife had purchased the home in foreclosure the previous June or July and that Arp owned the Chrysler. Arp testified that the Chrysler was parked in his front yard, not in the driveway. He testified that he did not know Watson or Wilson and that when officers arrived at his front door that night, he opened the door but did not consent to the officers entering the home.

Arp moved to suppress all the evidence and alleged contraband seized in his home including any fruit of the illegal search and seizure. The trial court denied Arp's motion without explanation or findings of fact. In accordance with a stipulation of the parties, the court adopted the testimony from the hearing on the motion to suppress as the trial evidence and, based on that and other stipulated evidence, the court found Arp guilty of possession of marijuana and making terroristic threats. Arp appeals the ruling on the motion to suppress.

1. The Fourth Amendment protects against “unreasonable searches and seizures[.]” U.S. Const. Amend. IV. This protection has been interpreted to mean that even if officers have probable cause, absent exigent circumstances or proper consent, warrantless searches and seizures within a home by officers in pursuit of their traditional law enforcement duties are presumptively unreasonable. See, e.g., Kentucky v. King, ––– U.S. ––––(II)(A), 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011); Payton v. New York, 445 U.S. 573, 589(II), 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The United States Supreme Court has further clarified that an arrest warrant is an insufficient basis, standing alone, to search a third party's home:

[E]ven 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. Steagald v. United States, 451 U.S. 204, 212–215(III), 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); King v. State, 217 Ga.App. 889, 891, 459 S.E.2d 605 (1995).

Brown v. State, 240 Ga.App. 321, 322(1), 523 S.E.2d 333 (1999). In Steagald, the Supreme Court held that even if officers have a reasonable belief that the subject of the arrest warrant is in the third party's home, the officers may not enter that home without a search warrant, exigent circumstances or consent. Steagald, 451 U.S. at 214(III), 101 S.Ct. 1642. The protections afforded by the Fourth Amendment extend to the home and its curtilage. Oliver v. United States, 466 U.S. 170, 180(III)(A), 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984); see also United States v. Dunn, 480 U.S. 294, 300(II), 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987); Kirsche v. State, 271 Ga.App. 729, 731, 611 S.E.2d 64 (2005) (even if officers have probable cause to investigate a crime, without a warrant, exigent circumstances, or proper consent, they may not enter a home or its curtilage). Finally, the State has the burden of proving that a search or seizure was lawful. OCGA § 17–5–30(b).

Arp does not contest that if the officers were properly located at the back door, they had authority to look in the window and, upon observing what appeared to be contraband and an attempt to dispose of it, authority to enter the home to prevent the destruction of evidence and to seize it. See King v. State, 289 Ga.App. 461, 463–464(2), 657 S.E.2d 570 (2008), and cases cited therein. Rather, he contends that the officers were not authorized to enter his back yard or the back door area in the first place. We agree.

First, the back yard and back door area of the Arps' home fall within the general definition of the curtilage of the home. 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.” Dunn, 480 U.S. at 300(II), 107 S.Ct. 1134 (citation omitted). The Supreme Court of Georgia has defined curtilage as “the yards and grounds of a particular address, its gardens, barns, and buildings.” Espinoza v. State, 265 Ga. 171, 173(2), 454 S.E.2d 765 (1995) (citation and punctuation omitted). “It is the general rule that a warrant is required to search the curtilage, and the yard immediately surrounding one's dwelling is well within the curtilage.” (Citations omitted.) Phillips v. State, 167 Ga.App. 260, 261(1)(a), 305 S.E.2d 918 (1983). See, e.g., Rivers v. State, 287 Ga.App. 632, 634(1)(b), 653 S.E.2d 78 (2007) (curtilage included hedge area adjacent to side of house even if the back yard was exposed to an alley and not enclosed by a fence); Brooks v. State, 237 Ga.App. 546, 548(2), 515 S.E.2d 851 (1999) (truck parked outside back door of mobile home was within curtilage...