State v. Hanks

904 S.E.2d 62

The STATE

v.HANKS.

A24A0256

Court of Appeals of Georgia.

June 27, 2024

Fani T. Willis, Kevin Christopher Armstrong, Atlanta, Jayna Marie Easton, Caitlin Cecelia Adcock, for Appellant.

Lauren Beth Shubow, Brittany Lashaun Saulsberry, for Appellee.

McFadden, Presiding Judge.

The state appeals from an order granting a motion to suppress. To decide this appeal, we must apply a controlling decision handed down earlier this month by our Supreme Court, Tatum v. State, — Ga. —, 903 S.E.2d 109 (2024).

[1, 2] Tatum expressly adopts a two-part, test for administration of the independent source doctrine. That doctrine "operates when evidence discovered as the result of an initial unlawful search is later discovered in a second search conducted by lawful means using information gained independently of the initial search." Wilder v. State, 290 Ga. 13, 16 (2), 717 S.E.2d 457 (2011). But the independent source doctrine does not apply if the second search was performed in reliance on a warrant and the decision to seek that warrant "was prompted by information obtained during a prior unlawful search or if information obtained during that unlawful search was presented to the [m]agistrate and affected his decision to issue the warrant." Tatum, supra at —(2) (a), 903 S.E.2d 109 (punctuation omitted), citing Murray v. United States, 487 U. S. 533, 542 (III), 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988).

[3] Under the two-part test enunciated in Tatum, a trial court must first determine whether, "after excising information regarding unlawfully obtained evidence from the warrant affidavit, the remaining evidence is sufficient to support a finding of probable cause[.]" Tatum, supra at — (2) (a), 903 S.E.2d 109 (citations and punctuation omitted). Second, a trial court "must determine whether the officer’s decision to obtain a search warrant was prompted by what he observed during the illegal entry." Id. (citation and punctuation omitted).

The evidence at issue in the case before us today was seized from a hotel room by law enforcement officers pursuant to a search warrant that was obtained after an investigator, responding to an anonymous tip about illegal drugs in the room, smelled marijuana and conducted a warrantless dog sniff immediately in front of the hotel room door, which the trial court found to be within the protected curtilage of the room. We agree with the state that the investigator was authorized to approach and knock on the door, so the trial court erred in finding that the officer was unlawfully standing outside the door when she smelled marijuana. The state does not defend the warrantless dog sniff. Instead, the state argues that even assuming it was unlawful, there was still sufficient evidence providing probable cause to support the search warrant. That is to say, the state relies on the independent source doctrine.

But this argument addresses only the first part of the two-part test for determining the applicability of the independent source doctrine as now expressly adopted by our Supreme Court in Tatum. And the trial court, lacking the guidance of Tatum, failed to make any findings or conclusions as to either of the two parts of the independent source doctrine test. Although we can resolve the first part of the test based on the record before us, we cannot resolve the second part of the test. So we must vacate the trial court’s order and remand the case with direction that the court make such a determination in the first instance.

1. Facts and procedural posture

Ellonzo Hanks was indicted on charges of trafficking in ecstasy, trafficking in methamphetamine, possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, and possession of promethazine/codeine. Hanks filed a motion to suppress evidence seized from his hotel room, claiming that the search of the room pursuant to a warrant was illegal. After an evidentiary hearing, the trial court granted the motion to suppress.

The trial court’s order set forth the following statement of facts as supported by the testimony of a police investigator at the suppression hearing.

On February 27, 2019, the Sandy Springs Police Department received an anonymous tip regarding drugs in a hotel room at the Extended Stay America located at 1050 Hammond Drive NE, Sandy Springs, Fulton County. The tip was prompted by a report from housekeeping staff for the hotel, who claimed that they were cleaning Defendant’s room when they either saw or smelled marijuana. The next day, [the investigator] and a K9 unit went to the Extended Stay and knocked on the door of Defendant’s room. [The investigator] stated that she could smell marijuana coming from inside Defendant’s room. After receiving no answer from inside the room, [a K9 officer] deployed his police service dog … to conduct an open air sniff. [The dog] then gave a positive alert at the bottom of Defendant’s door. Based upon [the investigator’s] affidavit as to the foregoing facts, a search warrant was obtained and executed that same day at approximately 2:30 p. m. The search returned the following results from Defendant’s room: marijuana, crack cocaine, cocaine, methamphetamine, MDMA, promethazine, and $1,067[.]

Based on those facts, the trial court concluded that Hanks had a reasonable expectation of privacy in the curtilage immediately outside his hotel room door; that the investigator had smelled marijuana and then deployed the K9 unit within this protected curtilage; and that all evidence recovered from the hotel room was therefore "the product of an unreasonable search of the protected curtilage and must be suppressed."

The state filed a motion for reconsideration, which the trial court denied. This appeal followed.

2. Knock and talk

The state first asserts that the trial court erred in ruling that the investigator was improperly standing outside the hotel room door when she smelled marijuana. We agree.

[4] It is undisputed that the investigator went to the hotel and knocked on Hanks’ door in response to an anonymous tip about illegal drugs being present in the room. Contrary to the trial court’s ruling, in responding to the tip, the investigator was authorized to approach and knock on the outer door of the room. See State v. Edwards, 332 Ga. App. 342, 344-345, 772 S.E.2d 430 (2015) (Fourth Amendment does not prohibit officers from approaching a residence and conducting a "knock and talk" investigation at the door); State v. Able, 321 Ga. App. 632, 635, 742 S.E.2d 149 (2013) ("knocking on the outer door of a residence for the purpose of investigating a reported crime is not violative of the Fourth Amendment … even when the information is provided by an anonymous tipster") Indeed, Hanks concedes in his appellate brief that the investigator "was authorized to stand in that curtilage and knock on the door." See Pickens v. State, 225 Ga. App. 792, 793 (1) (a), 484 S.E.2d 731 (1997) (officer responding to anonymous tip about illegal drugs in a motel room "was permitted to knock on [defendant’s] door … in order to investigate the report of a crime") (citation and punctuation omitted). Thus, the trial court’s conclusion that investigator was impermissibly outside the hotel room door when she smelled marijuana was erroneous.

3. Tatum v. State

The state does not contend that the trial court erred in finding that the warrantless dog sniff immediately outside of Hanks’ hotel room door was unlawful. Rather, the state argues that even assuming the dog sniff was improper, the investigator’s detection of the smell of marijuana coming from the room while lawfully standing outside the room provided sufficient probable cause to support the magistrate’s issuance of the search warrant. As discussed below, this argument addresses the first factor to be considered under the independent source doctrine. But as recently explained by our Supreme Court in Tatum, courts must also consider a second factor — whether the investigator’s decision to seek a search warrant was prompted by information gained from the purportedly unlawful dog sniff. Here, the trial court did not consider either factor.

Like the instant case, in which the investigator included the warrantless dog sniff information in her affidavit to obtain the search warrant, Tatum also involved the use of information obtained from a warrantless search in an officer’s affidavit for a search warrant. Tatum, supra at —, 903 S.E.2d 109. In that case, our Supreme Court explained that the independent source doctrine is an exception to the exclusionary rule, whereby evidence obtained in violation of the Fourth Amendment may nevertheless remain admissible. Tatum, supra at — (2) (a), 903 S.E.2d 109.

As the [United States] Supreme Court explained in Murray, the independent source doctrine applies to evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality. In Murray, the United States Supreme Court held that the independent source doctrine does not apply if the decision to seek the warrant "was prompted" by information obtained during a prior unlawful search or if information obtained during that unlawful search "was presented to the [m]agistrate and affected his decision to issue the warrant."

Tatum, supra at — (2) (a), 903 S.E.2d 109 (citations and punctuation omitted).

The Georgia Supreme Court then took note of recent Eleventh Circuit Court of Appeals opinions using a two-part test to determine the applicability of the independent source doctrine.

The first part of the test requires courts to excise from the search warrant affidavit any information gained during the alleged illegal entry and determine whether the remaining information supports a finding of probable cause. This part of the test addresses the Supreme Court’s direction in Murray regarding whether unlawfully obtained evidence was presented to the [m]agistrate and affected his decision to

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