King v. State , 217 Ga. App. 889 ( 1995 )

McMurray, Presiding Judge.

Defendant was charged with possession of less than one ounce of marijuana in violation of Georgia’s Controlled Substances Act. Defendant filed a motion to suppress the suspected marijuana, contending law enforcement officers unlawfully entered his home in the early morning hours of April 30, 1994, without consent and without a search warrant. The trial court denied the motion to suppress, finding that exigent circumstances arose while a deputy sheriff was attempting to execute an arrest warrant (for defendant’s former house-mate) which authorized the deputy’s “de minimis entry into the house to ensure his safety.” We granted this interlocutory appeal because the circumstances do not support the trial court’s finding that exigent circumstances arose authorizing the deputy’s warrantless intrusion into defendant’s home.

The evidence adduced at a hearing on defendant’s motion to suppress reveals the following: At about 2:30 in the morning on April 29, 1994, Deputy Martin Carlisle Tischner of the Clayton County Sheriff’s Department went to defendant’s home to execute a warrant for the arrest of Dwayne Lee Smith, a former tenant at defendant’s house. Deputy Tischner knocked on the front door, watched defendant (through a window) approach this entrance and then observed defendant retreat “momentarily out-of-sight . . . and [return] to the door to answer it. The deputy identified himself and showed [defendant] the warrant for Smith. [Defendant informed the deputy] that Smith was no longer a resident of [his house;] that he . . . had ‘kicked him out’ and [that] some of Smith’s personal items [were] located on the porch of the house, near to where they were standing.” Defendant then allowed Deputy Tischner into the house, but the deputy’s search only revealed items of personal property in the room where Smith formerly resided. Before leaving, however, defendant advised Deputy Tischner of Smith’s last known place of employment and a business establishment where Smith “sometimes ‘hangs out.’ ”

Suspecting that defendant was secreting Smith’s whereabouts, Deputy Tischner returned to defendant’s home at 6:30 the next morning (April 30, 1994) with Clayton County Deputy Sheriff Mark Anthony Jordan. This time, Deputy Tischner covered the side and back of the house while Deputy Jordan went to the front door and summoned defendant. When defendant opened the door, Deputy Jordan “asked [whether Dwayne Lee Smith] was at that residence and [defendant] started to back up in the doorway.” Deputy Jordan then “told [defendant that he] needed to come in and discuss this [with] him.” Defendant did not respond. He simply “started backing up into the living room. At that point, [Deputy Jordan] entered . . . into the door frame or into the threshold of the residence . . .” and, after stepping about “two-and-a-half, three feet[,]” he “happened to look on the coffee table in the middle of the living room and noticed a Wendy’s cup . . . with a clear plastic baggy with a green leafy material inside of it.” When Deputy Jordan questioned defendant about the contents of this vessel, defendant “grabbed the cup [and] shoved it up underneath the couch.” Deputy Jordan instructed defendant to retrieve the object. Defendant complied, but the cup came up empty. The deputy then reached under the sofa and seized a plastic bag containing a substance which appeared to be marijuana. Held:

In Steagald v. United States, 451 U. S. 204 (101 SC 1642, 68 LE2d 38), the United States Supreme Court “held that an arrest warrant as opposed to a search warrant is inadequate to protect the Fourth Amendment interests of persons not named in the warrant, when their homes are searched without their consent and in the absence of exigent circumstances. The Supreme Court noted that ‘Whatever practical problems (in requiring a search warrant in such cases) cannot out-weigh the constitutional interests at stake . . . (T)he right protected — that of presumptively innocent people to be secure in their homes from unjustified, forcible intrusions by the Government — is weighty.’ Steagald, supra, 451 U. S. at 222.” Otwell v. State, 201 Ga. App. 71, 72 (410 SE2d 178).

In the case sub judice, it is undisputed that Deputy Jordan did not have consent or a search warrant when he entered defendant’s home at 6:30 in the morning on April 30, 1994. Further, we find Deputy Jordan’s testimony insufficient to support the trial court’s finding that exigent circumstances arose which required the deputy’s “de minimis entry into the house to ensure his safety.”

“[A]n exigent circumstance which does justify the warrantless entry of a private home is the officer’s reasonable belief that such action is a necessary response on his part to an emergency situation.” Coker v. State, 164 Ga. App. 493, 495 (5), 496 (297 SE2d 68). In the case sub judice, there is no evidence that defendant made threatening moves or gestures during his early morning encounter with Deputy Jordan, and Deputy Jordan failed to explain why it was necessary for him to advance into defendant’s house “for [his] safety.” Deputy Jordan merely testified that defendant appeared to be “[a]gitated” and that he stepped into the house when defendant “started backing up into the living room.” While these circumstances may provide some remote support for Deputy Jordan’s subjective belief that defendant posed an immediate threat to his safety, it cannot be reasonably said that the deputy’s advance into defendant’s home was a necessary (or wise) response to any perceived threat posed by defendant. Defendant’s “agitation” at 6:30 in the morning, after having twice informed the police that Smith no longer resided with him (even proving this fact to Deputy Tischner the day before), and defendant’s backing into his home, certainly did not put the deputy in jeopardy so as to require him to step inside the defendant’s home for his “safety.” Under these circumstances, the best that can be said is that Deputy Jordan walked into defendant’s house without permission. It is therefore obvious that the deputy entered defendant’s home in the absence of consent or exigent circumstances. “Except in such special situations, [the United States Supreme Court has] consistently held that the entry into a home to conduct a search or make an arrest is unreasonable under the Fourth Amendment unless done pursuant to a warrant. See Payton v. New York, 445 U. S. 573, 63 LE2d 639, 100 SC 1371 (1980); Johnson v. United States, 333 U. S. 10, 13-15, 92 LE 436, 68 SC 367 (1948).” Steagald v. United States, 451 U. S. 204, 212, supra. “Such unconsented-to entry without a search warrant violated the Fourth Amendment, as the Supreme Court concluded in Steagald.” Otwell v. State, 201 Ga. App. 71, 73, supra. Accordingly, the trial court erred in denying defendant’s motion to suppress.

Judgment reversed.

Beasley, C. J., Pope, P. J., Johnson, Smith and Ruffin, JJ., concur. Birdsong, P. J., Andrews and Blackburn, JJ., dissent.