State v. New

331 Ga.App. 139

770 S.E.2d 239

The STATE

v.NEW.

No. A14A1876.

Court of Appeals of Georgia.

March 12, 2015.

Certiorari Denied June 1, 2015.

Lee Darragh, Dist. Atty., Zachary Holman Smith, Asst. Dist. Atty., for Appellant.

Summer & Summer, Daniel A. Summer, for Appellee.

Opinion

RAY, Judge.

The State appeals from the grant of a motion to suppress filed by Kevin Charles New after he was indicted for his alleged possession of methamphetamine with intent to distribute, possession of methamphetamine, and possession of marijuana, all pursuant to OCGA § 16–13–30 ; theft by receiving, in violation of OCGA § 16–8–7 ; and possession of a drug-related object under OCGA § 16–13–32.2. The State contends that the trial court erred in granting the motion because law enforcement acted reasonably under the totality of the circumstances and OCGA § 17–5–30 only requires suppression of evidence seized during an unlawful search; law enforcement acted in good faith; and the purposes of the exclusionary rule are not served in this case by suppressing the evidence. For the reasons that follow, we are constrained to affirm.

[T]hree fundamental principles ... must be followed when conducting appellate review of a trial court's ruling on a motion to suppress. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and [her] findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment. These principles apply equally whether the trial court ruled in favor of the State or the defendant.

(Citations and punctuation omitted.) Brown v. State, 293 Ga. 787, 802–803(3)(b)(2), 750 S.E.2d 148 (2013). To the extent that “the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court's application of the law to the undisputed facts.” (Citation omitted.) Jones v. State, 291 Ga. 35, 36–37(1), 727 S.E.2d 456 (2012).

The undisputed evidence adduced at the motion to suppress hearing shows that on or about November 15, 2012, law enforcement officers with Hall County's Multi–Agency Narcotics Squad (“MANS Unit”) learned from a Gwinnett County police officer that New possessed or was selling drugs. An officer with the MANS Unit at the time of the search testified that he did not know the source of the Gwinnett officer's information, and that he could not have gotten a search warrant because “[w]e didn't have any probable cause” and because “[t]here was no ... evidence to back up that [New] was actually selling” drugs.

Prior to initiating the search, Agent Casey Ivey, who was working with the MANS Unit, contacted the Gainesville Probation Office to verify New's probation status. He was given a copy of New's sentence, which included a waiver of New's Fourth Amendment rights against search and seizure. Officers then went to New's address. He walked out from the area near his detached garage to meet them, but when the officers told him they were there to search him pursuant to his Fourth Amendment waiver, New told them his probation had been terminated early. Agent Ivey showed New the copy of his sentence, which said he had waived his Fourth Amendment rights through the remainder of his probation. According to those documents, his probation was not scheduled to end for another three years. New told officers at least three times that he was no longer on probation, so prior to initiating any search, two other officers each separately verified New's probation status. One officer called Hall County Dispatch, which checked both the National Crime Information Center (“NCIC”) and the Georgia Crime Information Center (“GCIC”) databases and confirmed that New was on probation; the other officer contacted a representative from the probation office, who also confirmed that New was on probation and had a valid Fourth Amendment waiver.

The agents, without seeking or obtaining New's consent, then searched his person, the curtilage of his home, and a detached garage and the apartment above it. They found a glass smoking device containing methamphetamine residue in New's left front pocket. When agents retraced the path New walked from his garage to meet them, they discovered a butane lighter and a “hide-away can,” labeled as an energy drink, that contained methamphetamine and marijuana. Agents also found in an apartment above the garage a large sum of money and a GPs device that checked out as stolen.

However, New's probation for the drug offenses to which he had pled guilty had indeed been terminated early and his Fourth Amendment waiver was no longer valid. Nicole Johnson, a Hall County probation officer, had completed and submitted New's early termination papers, and on March 14, 2012—eight months prior to the search in question—a judge issued an order approving the early termination of New's probation without a court adjudication of guilt pursuant to the Probation for First Offenders Act, OCGA § 42–8–60, et seq.

After the search, New moved to suppress the evidence, and the trial court granted his motion. The State appeals.

1. The State first contends that the trial court erred in granting the motion to suppress because law enforcement acted reasonably under the “totality of the circumstances;” thus, it argues that the search was lawful and that OCGA § 17–5–30 requires suppression only during an unlawful search.

OCGA § 17–5–30(a) provides, in pertinent part, that: “A defendant aggrieved by an unlawful search and seizure may move the court ... to suppress as evidence anything so obtained on the grounds that: (1) ... The search and seizure without a warrant was illegal[.]”

It is undisputed that New was not on probation and that there was not a valid waiver of his Fourth Amendment rights at the time of the search. Thus, in the context of this enumeration, we must examine whether the warrantless searches of New's property and of New himself, in his capacity as a former probationer with full Fourth Amendment rights, were reasonable and lawful.

“Ordinarily, a search by a police officer must be supported by a search warrant, consent, or exigent circumstances.” (Citation omitted.) Prince v. State, 299 Ga.App. 164, 170(3)(b), n. 7, 682 S.E.2d 180 (2009).¹ “It is well established that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” (Citations and punctuation omitted.) Davis v. State, 262 Ga. 578, 580(1), 422 S.E.2d 546 (1992).

The State concedes that officers neither sought nor received New's consent to search, and that there was no probable cause to justify a search warrant. The State does not argue that any exigent circumstances existed to justify the searches. See Brown v. State, 330 Ga.App. 488, 491(1), 767 S.E.2d 299 (2014) (exigencies could include preventing imminent destruction of evidence, pursuing a fleeing suspect, or helping people who are injured or threatened with imminent injury). Also, New was not searched incident to a lawful arrest. See OCGA § 17–5–1. See generally Lindsey v. State, 282 Ga.App. 644, 649, 639 S.E.2d 584 (2006) (where no probable cause existed to believe defendant had committed a crime and where officer lacked any reason to believe a search was necessary for safety, a full search of defendant's person was an unreasonable intrusion).

Given that New was not a probationer and had not waived his Fourth Amendment rights, the searches and seizures were not valid.

2. The State next argues that the trial court erred in granting the motion to suppress because law enforcement officers acted in good faith when conducting the searches given their reasonable belief that New was on probation and subject to a Fourth Amendment waiver of rights; thus, it contends, the search was reasonable and legal.

However, our Supreme Court has found that Georgia recognizes no good faith exception to the exclusionary rule. In Gary v. State, 262 Ga. 573, 575, 422 S.E.2d 426 (1992), our Supreme Court held that the good faith exception to the exclusionary rule of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), does not apply in Georgia. Gary involved the seizure of tangible evidence pursuant to a search warrant that was later found to lack probable cause. Gary, supra at 573–574, 577, 422 S.E.2d 426. The Gary court reasoned that the Leon good-faith exception stemmed from the federal judiciary's modification of a judicially-created exclusionary rule, but because Georgia's legislature had codified a specific exclusionary rule in OCGA § 17–5–30, “infusion of the Leon good faith exception into the statute would be tantamount to judicial legislation.” (Footnote omitted.) Gary, supra at 575, 422 S.E.2d 426.

The State argues that the Supreme Court's later ruling in Harvey v. State, 266 Ga. 671, 469 S.E.2d 176 (1996), opens the door to a different result. Harvey involved a search incident to arrest where the officer reasonably believed he was exercising a valid arrest warrant when, in fact, the warrant had been recalled. Id. at 671–672, 469 S.E.2d 176. The Harvey court reasoned that because, at the moment the arrest was made, the officer “knew” there was a valid warrant, probable cause existed to support the arrest because “probable cause must be measured by current knowledge, i.e., at the moment the arrest was made and not hindsight.” (Citations and punctuation omitted.) Id. at 672–673, 469 S.E.2d 176.² Having found that the arrest was supported by probable cause, the Harvey court...