Evans v. State

318 Ga.App. 706

734 S.E.2d 527

EVANS

v.The STATE.

No. A12A1305.

Court of Appeals of Georgia.

Nov. 20, 2012.

William Allen Adams Jr., for Appellant.

Scott L. Ballard, Robert Wright Smith Jr., David J. Younker, for Appellee.

DOYLE, Presiding Judge.

Following a jury trial, Dewayne Lamar Evans was convicted of possession of marijuana with the intent to distribute,¹ possession of more than one ounce of marijuana,² possession of marijuana with the intent to distribute within 1,000 feet of public housing,³ possession of marijuana with the intent to distribute within 1,000 feet of a state park, ⁴ and possession of marijuana with the intent to distribute within 1,000 feet of a school.⁵ Evans appeals the denial of his motion for new trial, arguing that the trial court erred by denying his motion to suppress evidence following an unreasonable search and seizure. He also challenges the sufficiency of the evidence. We affirm, for the following reasons.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and the defendant no longer enjoys a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.⁶

Viewed in this light, the evidence shows that in the early evening on December 2, 2010, an individual called the police and advised that Evans was leaving his girlfriend's house and was walking down Kentucky Avenue carrying a large, gallon-sized bag of marijuana.⁷ Sergeant Gene Mathews, who was familiar with Evans and knew that he was on probation, contacted Chris Smith of the probation department and advised that Evans “was known to have a large amount of marijuana in his possession”; Smith, who was also familiar with Evans, confirmed that Evans was on “active probation.” ⁸ While four officers and Smith were en route to Kentucky Avenue, the confidential informant called again ⁹ and advised that Evans was “ getting ready to get into the passenger side of a maroon-in-color Chevrolet Caprice with no hubcaps heading to his mom's house.” ¹⁰ Smith directed the officers to Evans's mother's house—which was also Evans's address of record on file at the probation office—on Haskell Ward Road, where they observed a maroon Chevrolet with no hubcaps in the driveway.

Mathews, who was wearing his police uniform, and Smith, who was wearing his uniform and a vest marked, “probation,” approached Evans's mother's house in Smith's marked probation vehicle. As the two officers exited the vehicle, Evans exited the house and walked toward the street. Smith asked Evans if they could speak with him, and Evans turned around and ran back towards the house. Smith and Mathews gave chase, and both men instructed Evans to stop, with Smith identifying himself as a probation officer; Evans failed to comply, however, and ran into the house and locked the door.

Smith banged on the door, but no one answered, so he went around to the side of the residence in an attempt to gain entry and was unsuccessful.¹¹ Mathews then removed a window air conditioning unit, and Lieutenant Keys crawled in through the window, unlocked the door, and allowed Smith and the police officers to enter.¹² Once inside, one of the officers went into one of the home's two bedrooms “to clear that bedroom for officer safety issues,” and police found Evans, two men, and two small children in one of bedrooms. Mathews entered the adjoiningbathroom, and a young girl in the shower noticed him and started screaming. Officer Kaylen Krueger, a female, went into the bathroom while the girl finished showering and dressing, and Krueger noticed a small amount of marijuana on the toilet seat. Lieutenant Keys then glanced into the bathroom and saw marijuana residue on the toilet and floor.

Police detained the individuals in the house, and shortly thereafter, Evans's sister attempted to enter the residence and explained that she lived there with her mother. The sister then instructed her aunt, who lived nearby, to call her mother; the mother arrived at the house approximately 15 minutes later and signed a written consent to search the house after the police told her they saw marijuana residue in the bathroom. Mathews then went into the bathroom to collect the marijuana from the floor and noticed some floating in the toilet. Mathews attempted to collect the marijuana from the toilet, but then flushed it, at which point he saw a large chunk of marijuana come up the toilet, and the toilet began to back up. Mathews then turned off the water supply, drained the water, removed the toilet, and, using a clothes hanger, retrieved a plastic bag containing marijuana from the toilet.

Kenneth Osborne, who was one of the men present in the house when the police entered, testified that he was at the house when the police began banging on the door. According to Osborne's written statement, Evans “was in the restroom” at the time and went to the door and locked it.¹³ At trial, Osborne clarified that he did not actually see Evans in the bathroom, but instead heard him banging on the bathroom door.

The State crime lab tested the material seized by the police in the bathroom and determined that it was marijuana.¹⁴

Prior to trial, Evans filed a motion to suppress on the basis that the police did not have probable cause to enter the residence. Following a hearing, the trial court verbally denied the motion, stating that notwithstanding the court's inability to judge the reliability of the confidential informant, Evans was nevertheless subject to arrest because he refused the probation officer's direct order, and the officers were justified in entering the house based on the exigent circumstances of Evans's flight. Evans was thereafter convicted on all counts, and this appeal followed.

1. Evans argues that the trial court erred by denying his motion to suppress. We disagree.

On review of the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial. Where the evidence at a hearing on a motion to suppress is uncontroverted and no question of credibility is presented, we review the trial court's application of the law to these undisputed facts de novo. As to questions of fact and credibility, however, we construe the evidence in favor of the trial court's findings and judgment, which must be accepted unless clearly erroneous.¹⁵

“[E]ven if the trial court's asserted ground for denying a motion to suppress is erroneous, we will affirm the ruling if it is ‘right for any reason.’ ” ¹⁶

“It is axiomatic that, under the Fourth Amendment, police officers are prohibited from entering a person's home or its curtilage without a warrant absent consent or a showing of exigent circumstances.” ¹⁷ Although “the Fourth Amendment applies to probationers as well as other citizens,” ¹⁸ probationers may waive such rights.¹⁹ Here, the State, which bears the burden of proving the legality of the search of [Evans's residence], failed to show the existence of any law, legally authorized regulation, or sentencing order imposing any limitation on [Evans's] Fourth Amendment right against warrantless searches of his residence at the time of the search.²⁰

Thus, given the absence of any order imposing a limitation on Evans's Fourth Amendment rights, his status as a probationer cannot serve as the sole substitute for a search warrant, and therefore, the salient issue is whether the entry into his residence was otherwise reasonable under the Fourth Amendment.²¹

OCGA § 42–8–38(a) provides in relevant part:

Whenever, within the period of probation, a probation supervisor believes that a probationer under his or her supervision has violated his or her probation in a material respect ... if the circumstances warrant, may arrest the probationer without warrant, wherever found, and return the probationer to the court granting the probation or, if under supervision in a county or judicial circuit other than that of conviction, to a court of equivalent original criminal jurisdiction within the county wherein the probationer resides for purposes of supervision.

Thus, although

there is nothing in Georgia law that creates a blanket authorization for warrantless searches of probationers' homes based on less than probable cause, this statute clearly attempts to severely limit probationers' rights against arrest, even at home without a warrant, based on less than probable cause. The statutory limitation of rights is subject only to constitutional limitations, and ... the constitutional limitations themselves are affected by the statute's existence. The statute places probationers on notice that their rights have been limited and, in turn, diminishes their expectation of privacy.²²

The Supreme Court of Georgia has held that “[w]ith such notice in place, a warrantless arrest is permissible at least where the arresting officer has ‘reasonable cause’ to believe the arrest is necessary to serve the legitimate ‘special needs' of probation revocation, including the prompt protection of the public.” ²³ And when “determining if the probation supervisor had ‘reasonable cause’ for the arrest, it is permissible to consider ‘the unauthenticated tip of a police officer’ regardless of whether there is any evidence in the record showing whether its basis was firsthand knowledge or, if not, whether the firsthand source was reliable.” ²⁴

In this case, pretermitting whether the anonymous caller exhibited sufficient indicia of reliability, it is permissible to consider the unauthenticated tip of the police to the probation officer. Considering that the police had advised the probation officer that Evans had been seen carrying drugs, combined with Evans's refusal to stop and subsequent flight when approached by the police and probation officers and the probation officer's familiarity...