State v. David , 225 Ga. App. 541 ( 1997 )

484 S.E.2d 278 (1997) 225 Ga. App. 541

The STATE
v.
DAVID et al.

No. A96A2343.

Court of Appeals of Georgia.

March 6, 1997. Reconsideration Denied March 18, 1997.

R. J. Martin, III, District Attorney, Michael T. Muldrew, Assistant District Attorney, for appellant.

Turner & Pool, John R. Turner, Jack B. Williamson, Jr., F. Gates Peed, Gary L. Mikell, Statesboro, for appellees.

JOHNSON, Judge.

Pursuant to OCGA § 5-7-1(4), the state appeals the trial court's grant of motions to suppress evidence filed by Daniel William David, James Dee Mullins, Barney R. Phillips, and Kerri Nichole Vaschon. These defendants were charged with trafficking in cocaine, possession of cocaine with intent to distribute, possession of marijuana, and possession of LSD after police found the drugs in an apartment the defendants occupied.

The evidence at the hearing on the motions to suppress showed that Statesboro police officer J.C. Smith answered a call requesting assistance from Dr. James Hood, who managed an apartment complex. Hood believed unauthorized persons were occupying one of the apartments and asked Officer Smith to accompany him to that apartment. Smith testified that they went to the apartment and Hood knocked on the door. At that point, Smith stated, "Dr. Hood knocked on the door. A white female opened the door. When she opened the door I could see what I know as a marijuana pipe sitting on the table. She then stepped back, picked up the marijuana pipe and went to conceal it. At that point Dr. Hood started into the apartment and the door opened further and I could see what appeared to be a bag of marijuana sitting on the table. At that point I told everybody [in the apartment] to sit down and I called for [another officer] to come over and assist." Officer Smith further testified that he received no verbal permission to enter the apartment, although someone said, "Come in" when Hood knocked.

Hood's testimony contradicted Smith's. According to Hood, he knocked, and a young man came to the door. Hood explained his concerns about unauthorized visitors in the apartment, and the young man said, "Come right in."

On appeal, the state contends the trial court improperly relied on Carranza v. State, 266 Ga. 263, 467 S.E.2d 315 (1996), in which the Supreme Court clarified that, absent consent or exigent circumstances, police need to obtain a warrant before searching a private residence even where an offense occurs in an officer's presence. Id. at 268, 467 S.E.2d 315. We agree that Carranza is distinguishable on its facts, as the case involved electronic surveillance and the use of an informant unknown to the residents of the house. Any alleged misapplication of Carranza, however, does not affect the outcome in this case.

The state correctly asserts that a criminal defendant has no privacy right in contraband or instrumentalities of a crime which are in "open view" and exposed to the public or which a police officer views from a place he is legally entitled to be. See State v. Echols, 204 Ga.App. 630, 420 S.E.2d 64 (1992); State v. Zackery, 193 Ga.App. 319, 387 S.E.2d 606 (1989). In this case, Officer Smith had the right to stand in the public area outside the apartment door and was legally entitled to see the marijuana and marijuana pipe when the door was opened. See Jenkins v. State, 223 Ga.App. 486, 487(1), 477 S.E.2d 910 (1996) (police may enter on private property to knock at a door). However, "while the characterization of an observation as a nonsearch plain view situation settles the lawfulness of the observation itself, it does not determine whether a seizure of the observed object would likewise be lawful." 1 LaFave, Search & Seizure, 399, § 2.2(a) (3rd ed. 1996). "[N]ot only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself." Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990), see id. at 137, n. 7, 110 S.Ct. at 2308, n. 7. See Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971) ("[E]ven where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure" absent exigent circumstances); accord Carranza, supra at 267(1), 467 S.E.2d 315. See also Merriman v. State, 201 Ga.App. 817, 821(1), 412 S.E.2d 598 (1991), cited with approval in Carranza, supra (where officers saw marijuana growing in open view on defendant's property, proper procedure would be to obtain search and arrest warrants before seizing contraband).

As Carranza makes clear, a warrant is required to enter a private residence and seize evidence or make an arrest unless the entry is with consent or exigent circumstances excuse the officer from taking the time to obtain a warrant. Id. at 268, 467 S.E.2d 315. Thus, the issues before the trial court were whether Smith had consent to enter^[1] or whether exigent circumstances excused him from taking the time to obtain a warrant. See id.

Each of these issues is one of fact. State v. Williams, 212 Ga.App. 164, 165(1), 441 S.E.2d 501 (1994); State v. Pidcock, 160 Ga.App. 643, 287 S.E.2d 647 (1981) (exigent circumstances). It is the trial court's duty to determine issues of fact and credibility on a motion to suppress, and we will not disturb those findings unless they are clearly erroneous. Allenbrand v. State, 217 Ga.App. 609(1), 458 S.E.2d 382 (1995). Smith and Hood, the state's only two witnesses on these key issues, contradicted each other concerning who opened the apartment door, the actions taken by the person who opened the door, and whether consent to enter was given. Furthermore, the trial court's determination that Hood had no authority to enter the apartment or consent to a search of the apartment is not clearly erroneous. Under these circumstances, the trial court did not err by determining that the state did not carry its burden of showing that the warrantless entry was consensual or justified by exigent circumstances. See Hall v. State, 216 Ga.App. 807, 808(1), 456 S.E.2d 56 (1995); see generally Roberts v. State, 175 Ga.App. 326, 329(1), 333 S.E.2d 189 (1985) (opening a door in response to a knock does not establish genuine consent to enter an apartment).

Judgment affirmed.

McMURRAY, P.J., and RUFFIN, J., concur.

NOTES

[1] We note the trial court appears to have mistakenly analyzed whether the officer had the consent of the apartment's lessee, who was not present at the time of the incident. The correct analysis is whether the defendants themselves, or one of them having joint control of the apartment, consented to the officer's entry. See Smith v. State, 264 Ga. 87, 88(2), 441 S.E.2d 241 (1994).