State v. Dills ( 1999 )

Judge Harold R. Banke.

Charles Jeffrey Dills was charged with possession of methamphetamine with intent to distribute and possession of marijuana. In its sole enumeration, the State seeks reversal of the trial court’s order suppressing evidence seized during a search of his person.

This case arose after members of the Appalachian Drug Task Force obtained a warrant to search the person and premises of Jeff and Angela Dills for “methamphetamine, scales, drug packaging, recorders of transaction, and U. S. currency.” In the requisite description of the persons and premises to be searched, the warrant referred to “Attachment A” which stated,

[t]he persons, premises, and vehicles of Jeff and Angela Dills in Fannin County, Georgia. From the intersection of Highway 5 and Highway 515 travel north on Highway 5 for a distance of 3.9 miles to County Road 115 (also known as Old Highway 5), which is a paved road to the right. Travel County Road 115 for a distance of .6 mile [sic] to a dirt road known as Dills Road ... [to a] driveway on the left, which leads to and ends at a single family wood frame dwelling with cedar siding and an attached front porch. The residence is located on a hill which is visible from Dills Road at the end of the driveway which is approximately .1 mile in distance.

See Conrad v. State, 217 Ga. App. 388, 389-390 (2) (457 SE2d 592) (1995) (search warrants which fail to satisfy the particularity requirement are invalid). The warrant did not describe Dills beyond giving his name.

In executing this warrant six days later, the Task Force members did not go to the house described in the warrant. Instead, they went to a location where Dills, a carpenter, was working construction. After asking Dills to identify himself, the members explained that they had a search warrant to execute on his residence and wanted him to accompany them. When Dills asked if he could secure the building site, one of the officers joined him inside and asked if he was armed. Dills answered in the negative. The officer then requested that he empty his pockets. Dills complied, but the officer noticed a small bulge remaining in Dills’ right front pants pocket. The officer then patted Dills down and determined that the bulge felt like a pill bottle. Upon retrieving it, at this point the officer asked Dills, “[w]hat is this?” Dills replied, “speed.” Although the officer “knew that drugs are kept in bottles,” however, he did not know what was in this bottle. Dills then accompanied the officer to his home where the search warrant was executed and police seized scales, a rifle, a cigarette pack containing marijuana residue, and a rolled up dollar bill sitting on a marble square.

Dills moved to suppress, arguing that the warrant was insufficient to authorize the search of his person while not on the premises described in the warrant. At the suppression hearing, the trial court demanded that the State justify its search of Dills when he was not under arrest and was not at the address specified in the warrant. This the State failed to do. Officer Calvin Wilson who searched Dills believed that he could search Dills under the authority of the warrant. In the AFFIDAVIT FOR ARREST, Officer Wilson testified, “the accused [Dills] did possess methamphetamine on his person by having two clear plastic bags in pants pocket at the time of a search warrant execution on the accused.” (Emphasis supplied.) Similarly, the REPORT OF SEIZURE TO DISTRICT ATTORNEY summarizes the circumstances of the seizure as follows: “[u]pon execution of search warrant, Dills was found to be in possession of methamphetamine and U. S. Currency. These items were located in his pants pocket.” Wilson testified that when he searched Dills at a place not provided for in the warrant that “[I] knowed [sic] that the bulge felt like a — some type of bottle. From my experience, I know that drugs are kept in bottles. I retrieved the bottle myself.” Finding the State failed to sustain its burden of showing that the search of Dills’ person was legal, the court suppressed the evidence relating to that search. Held:

The State argues that the warrant satisfied the particularity requirement because it named Dills and described his home. In the circumstances of this case, we disagree.

Our constitution guarantees that no warrant shall issue without a particularized description of the place to be searched and the persons or things to be seized. Conrad, 217 Ga. App. at 390 (2). Searches unsupported by independent probable cause that extend beyond the descriptions contained in the warrant are illegal.¹ See Landers v. State, 250 Ga. 808, 809-810 (301 SE2d 633) (1983).

The warrant at issue here did not authorize the search at the construction site, Dills’ place of employment. It covered only searches at Dills’ residence. See Scott v. State, 213 Ga. App. 84, 86 (1) (444 SE2d 96) (1994) (“ ‘ “Search warrants are not directed at persons; they authorize the search of‘places’ and the seizure of‘things,’ and as a constitutional matter they need not even name the person from whom the things will be seized.” ’ ”).

This case is controlled by State v. Crank, 212 Ga. App. 246 (441 SE2d 531) (1994), which illuminates the weakness of the State’s position. In Crank, officers executing a “no knock” search warrant of the defendant’s home and person set up surveillance near his home, but stopped and searched him several miles away on a public highway. Crank, 212 Ga. App. at 249. This court suppressed all evidence found on the defendant and in his car. Id. As in Crank, the officers here acted beyond the warrant’s scope. Because the search of Dills at his place of employment lacked independent probable cause, extended far beyond the warrant’s scope, and was solely a product of the Task Force members’ discretion, it was illegal. See Landers, 250 Ga. at 809.

The record belies the dissent’s contention that the validity of the search and seizure did not rise or fall on its authorization by the search warrant. On the contrary, the State’s sole justification for its conduct was this search warrant. The dissent’s argument that the search at the construction site was proper because the officer recognized Dills misses the point. Nothing prevented the Task Force members from seeking a search warrant of Dills at his place of business.

The dissent’s discussion of the purported factual basis underlying the search warrant seeks to inject a red herring. At issue here is whether the police improperly executed the search warrant, not whether the search warrant was improperly obtained. Instead of awaiting Dills’ return from work to the residence for which they had a warrant, the police opted to begin their search at Dills’ place of employment. This was plainly improper.

Although the dissent gratuitously inserts the “plain feel” doctrine and Terry pat-down law into this case, those concepts have no application here. The officer’s affidavit reveals that he deemed his search of Dills’ person at his place of employment as being executed under the authority of the search warrant, not under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). Absent a valid Terry search, the “plain feel” doctrine cannot come into play. See Boatright v. State, 225 Ga. App. 181, 182 (1) (483 SE2d 659) (1997). Even assuming solely for the sake of argument that the “plain feel” doctrine had been applicable, the officer never testified he knew what the object was before he invaded Dills’ pocket to retrieve it. While it may be true that illegal drugs may occasionally be kept in pill bottles, so, too, may perfectly legal ones. The object at issue did not immediately manifest itself as being contraband. See id.

This search was not a lawful execution of the warrant. No evidence showed otherwise. To embrace the dissent’s position that the police had sufficient information to conduct a search of Dills at his place of employment would eviscerate the Fourth Amendment’s safeguard against general warrants. This we refuse to do.

In reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the court’s decision. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990). Here, there was. Where a trial court sits as the trier of fact, as here, its findings are analogous to a jury verdict and will not be disturbed where there is any evidence to support them. Ward v. State, 193 Ga. App. 137, 138 (387 SE2d 150) (1989). The record supplies ample evidence to support the court’s findings. Morgan, 195 Ga. App. at 735 (3). In the absence of any authority permitting the search at Dills’ place of employment, we cannot find that the trial court abused its discretion in granting the motion to suppress the evidence unlawfully seized from Dills’ person. Wells v. State, 196 Ga. App. 133 (1) (395 SE2d 296) (1990) (standard of review).

Judgment affirmed.

McMurray, P. J., Blackburn, Ruffin and Eldridge, JJ, concur. Beasley, P. J., and Andrews, J., dissent.

1 To be valid, a search warrant must describe the person and premises with such particularity “that a reasonably prudent officer would be able to locate the person, premises, and property and know that he had authority to search those places without depending on his discretion.” Minter v. State, 206 Ga. App. 692, 693 (2) (426 SE2d 169) (1992); Cooper v. State, 212 Ga. App. 34-35 (1) (441 SE2d 448) (1994). The descriptions contained in the warrant, taken as a whole, must be sufficiently particularized to exclude all others. Minter,. 206 Ga. App. at 693 (1).