Little v. State

353 Ga.App. 549

839 S.E.2d 15

LITTLE

v. The STATE.

A19A1758

Court of Appeals of Georgia.

February 10, 2020

Herbert E. Franklin, Jr., District Attorney, Lynsay P. Chapman, Kevin J. Baugh, Assistant District Attorneys, for appellee.

Per Curiam .

Following a bench trial, the trial court convicted Travis Little of several controlled substance offenses. On appeal, Little contends that the trial court erred when it denied his motion to suppress evidence obtained during a warrantless search of his home. Because the law enforcement officers did not have a warrant to enter and search Little’s home, and their entry was not authorized by a valid exception to the warrant requirement, we reverse.

"When a defendant moves to suppress evidence based on an illegal search, the state must bear the burden of proving that the search was lawful."

Leon-Velazquez v. State , 269 Ga. App. 760, 761 (1), 605 S.E.2d 400 (2004) ; see also OCGA § 17-5-30 (b). On appeal from a ruling on a motion to suppress, 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). Nevertheless, where, as here, only a single witness testified at the suppression hearing, the "evidence is uncontroverted, and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review." (Citation and punctuation omitted.) Id. at 350, 739 S.E.2d 790 .

So viewed, the record shows that in 2008, Little pled guilty in Catoosa County to several controlled substance offenses and possession of a firearm by a convicted felon, and the trial court imposed a total sentence of five years in prison, to be followed by fifteen years on probation. In late February 2017, Chattooga County sheriff’s department narcotics agent Gary Campbell "received information" from an unidentified source that Little was "moving large amounts of methamphetamine" and lived in a camper behind his mother’s house in Chattooga County. Campbell knew at that time that Little was on probation following convictions for possession of methadone and methamphetamine.

Consequently, on March 7, 2017, Campbell and two other agents drove to Little’s camper and knocked on the door. Little opened the door, "turned about as white as [a] piece of paper[,] and started shaking." Campbell identified himself and the agents, told Little that Campbell had received information that Little was selling large amounts of methamphetamine, and asked if the agents could enter the camper to speak with Little.¹ Little backed up into the camper, and the agents followed him in. As the agents followed him in, Little turned around and began walking away while trying to empty his pockets.

Once inside the camper, Campbell saw hunting knives, a pair of brass knuckles, a small ziplock bag, a "meth pipe," and a set of electronic scales, all in plain view. Due to the presence of weapons, another agent placed Little in handcuffs but told him that he was not under arrest. Little told the agents that his sister also was in the camper, and, at Campbell’s request, the sister emerged from a back room. Campbell asked her to empty her pockets after learning that she also was on probation. She complied and removed from one of her pockets a clear plastic "baggie" that contained what appeared to be methamphetamine.

Campbell requested and received consent from Little to search the camper. Around the same time, another agent conducted a pat-down search of Little and found $3,129 in his wallet and pockets. Little told the agents that "he could help [them] if [they] could help him." Campbell responded that the agents "couldn’t do anything [until they] recovered the rest of the methamphetamine that he possibly had in the trailer" and asked Little "where it was at." Little directed the agents to a black bag on a bed, in which they found various controlled substances and drug paraphernalia. Little subsequently made several incriminating statements to the agents after being informed of, and waiving, his Miranda ² rights.

A grand jury indicted Little for trafficking in methamphetamine ( OCGA § 16-13-31 (e) ), possession with intent to distribute methamphetamine ( OCGA § 16-13-30 (b) ), and possession of methamphetamine, oxycodone, hydrocodone, alprazolam, and clonazepam ( OCGA § 16-13-30 (a) ). Little subsequently moved to suppress the evidence obtained during the search of his home. The trial court conducted a joint bench trial and suppression hearing, during which a single witness, Agent Campbell, testified to the events described above. The trial court denied the motion to suppress after concluding that the agents knew when they visited Little’s camper that he was on probation, he "in essence" allowed the agents to enter the camper, and he subsequently voluntarily consented to the search. The trial court found Little guilty of all seven counts, merged Counts 2 and 3 into Count 1, and imposed a total sentence of twenty years in prison, to be followed by ten years on probation. Little filed a motion for a new trial, which the trial court denied after a hearing, and this appeal followed.

1. Little contends that the trial court erred when it denied his motion to suppress because the agents’ warrantless entry into his camper was unauthorized by either the conditions of his probation or his purported consent.³ We agree.

The Fourth Amendment to the United States Constitution protects against "unreasonable searches and seizures." U. S. Const. Amend. IV.

[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest.

(Citation and punctuation omitted.) Liles v. State , 311 Ga. App. 355, 357 (1), 716 S.E.2d 228 (2011). "Even with probable cause, absent exigent circumstances or proper consent, warrantless searches and seizures within a home by officers in the pursuit of their traditional law enforcement duties are presumptively unreasonable." Corey , supra, 320 Ga. App. at 353 (1), 739 S.E.2d 790 ; see also Williams v. State , 296 Ga. 817, 819, 771 S.E.2d 373 (2015) (A warrantless search is per se unreasonable, "subject only to a few specifically established and well-delineated exceptions.").

"[T]he Fourth Amendment applies to probationers as well as other citizens." (Citations and punctuation omitted.) Jones v. State , 282 Ga. 784, 784-785 (1) (a), 653 S.E.2d 456 (2007). While probationers’ Fourth Amendment rights may be restricted, any such restriction requires a "valid law, legally authorized regulation, or sentencing order" giving notice to the probationer of the restriction. Id. at 785-788 (1) (a) , 653 S.E.2d 456 . "[A] waiver of Fourth Amendment rights as a condition of parole, probation, or pretrial release," however, "cannot be used to justify a search by law enforcement officers who were unaware of the waiver at the time of the search." Cantrell v. State , 295 Ga. App. 634, 638 (2) , 673 S.E.2d 32 (2009) .

"[A]lthough silence in the face of a request for permission to search may, when accompanied by other conduct, sometimes be interpreted as acquiescence, such acquiescence cannot substitute for free consent." (Citation and punctuation omitted.) State v. Williams , 212 Ga. App. 164, 165 (1), 441 S.E.2d 501 (1994). Thus, "[t]he State cannot meet its burden of demonstrating voluntary consent when the record shows only acquiescence to a claim of lawful authority." (Citation and punctuation omitted.) Johnson v. State , 297 Ga. App. 847, 849, 678 S.E.2d 539 (2009) ; see also State v. Austin , 310 Ga. App. 814, 817 (1) , 714 S.E.2d 671 (2011) ("[V]oluntariness must reflect an exercise of free will, not merely a submission to or acquiescence in the express or implied assertion of authority.") (citation and punctuation omitted); State v. Harris , 236 Ga. App. 525, 528-529 (2) (b) (ii), 513 S.E.2d 1 (1999) (the defendant’s act of emptying her purse–without saying anything–in response to an officer’s request to do so, "may well have signaled acquiescence, [but] did not show consent"); State v. Williams , 226 Ga. App. 346, 347-348, 486 S.E.2d 637 (1997) (the trial court did not err in finding that the defendant’s act of raising his hands when an officer asked, "Does anybody have any weapons on them?" was insufficient to establish voluntary consent to a pat-down search); Rogers v. State , 206 Ga. App. 654, 660-661 (4), 426 S.E.2d 209 (1992) (the defendant’s statement that he "understood," in response to an officer’s statement that the officer wanted to search the defendant’s person during an illegal detention, was insufficient to show consent under the totality of the circumstances) (punctuation omitted); Miranda v. State , 189 Ga. App. 218, 221 (3), 375 S.E.2d 295 (1988) (reversing the denial of a motion to suppress, because, "[w]hile [the defendant’s] conduct in opening her bag and removing two garments, an action which did not reveal any contraband, may well have signaled acquiescence" in response to an officer’s request for permission to search the bag during an illegal detention, it did not show consent under the totality of the circumstances).

Here, no evidence was presented that the officers identified themselves before Little opened the door, and the record does not indicate that Little was aware of the officers’ presence or identity before he opened the door. Consequently, the act of opening the door, by itself, was not indicative of consent for law enforcement to enter. Compare Liles , supra, 311 Ga. App. at 356, 358 (1), 716 S.E.2d 228 (the trial court was authorized to find that the defendant consented to an officer’s entry into his hotel room where, inter alia, before the defendant opened the door, the officer identified himself and told the...