Anderson v. State , 133 Ga. App. 45 ( 1974 )

Eberhardt, Presiding Judge.

The defendant, his wife and another couple were fishing at Lake Jackson, a property of Georgia Power Company, and on a beach adjacent thereto which may have been the property of Turtle Cove, a land development company. In any event, the beach was open to the public for fishing or other uses of the lake.

Two rangers of the Game and Fish Department were in a boat, on the lake, checking fishing licenses, equipment, etc., saw the two couples on shore, stopped their boat nearby, got out and made a check of licenses. Defendant was found to be without a license and Officer Peppin made a case against him for that. Officer Harris had seen him take something down the beach and place it under a rock about 75 feet from where the group was located, and he went to determine what it might be. He found it to be a margarine carton containing a pipe and about an ounce of marijuana, and asked defendant whether it belonged to him and defendant answered that it did, whereupon a case was made against the defendant for possession of the marijuana.

Defendant moved to suppress the marijuana, and after a hearing the motion was overruled. The court granted a certificate for appeal and this appeal followed.

It is conceded by appellant that (a) the marijuana was placed under a rock on land which he neither owned, rented nor possessed, (b) that he had placed the marijuana under the rock, (c) that the rock was on an open beach to which the public had free access. Held:

1. An open beach, like an open field, has no protection against a search or seizure under the Fourth Amendment. This principle was established by Mr. Justice Holmes in Hester v. United States, 265 U. S. 57 (44 SC 445, 68 LE 898). "It seems to be generally held that the constitutional guaranties of freedom from unreasonable search and seizure, applicable to one’s home, refer to his dwelling and other buildings within the curtilage but do not apply to open fields, orchards or other lands not an immediate part of the dwelling site. Machen, The Law of Search and Seizure, p. 95 (citing Hester v. United States, 265 U. S. 57 (44 SC 445, 68 LE 898)), Cornelius, Search and Seizure, 2d Ed. p. 49; 48 CJS, Intoxicating Liquors, § 394, p. 630 et seq.; 30 AmJur, Intoxicating Liquors § 528, p. 529; Anno. 74 ALR 1454, where numerous cases on this point are collected.” (Emphasis supplied.) State v. Harrison, 239 N. C. 659 (80 SE2d 481).

The Fourth Amendment is primarily directed to the protection of the citizen in his home, his person, and his papers or effects which may be in the home or on his person. "At the very core stands the right of a man to retreat to his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U. S. 505, 511 (81 SC 679, 5 LE2d 734, 97 ALR2d 1277). The protection simply does not extend to places which the amendment does not specify or include. See and compare Novak v. State, 130 Ga. App. 780 (204 SE2d 491), where the defendant had hidden drugs in a concrete block wall on adjoining property and we held that lack of a bench warrant did not render the seized drugs subject to a motion to suppress.

2. The question here is whether the package under the rock was within the protection because in the defendant’s constructive possession. Conceding this to be the issue, it is a factual issue to be resolved by the trior of fact — the judge hearing the motion. Harris v. State, 120 Ga. App. 359 (1) (170 SE2d 743). He must determine issues of credibility, the weight and sufficiency of the evidence, resolve conflicts and construe the evidence. Brooks v. State, 129 Ga. App. 393 (2) (199 SE2d 578).

"On motion to suppress evidence, the trial judge sits as the trior of the facts, hears the evidence, and his 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 it.” State v. Swift, 232 Ga. 535 (207 SE2d 459). This rule has also been applied in Jackson v. Denno hearings by the judge on the matter of the voluntariness of confessions. Pierce v. State, 231 Ga. 731, 732 (204 SE2d 159).

On appeal of the denial of a motion to suppress the evidence is to be construed most favorably to the upholding of the findings and judgment made. Cotton v. United States, 371 F2d 385, 388; United States v. Sherman, 430 F2d 1402 (1), cert. den. 401 U. S. 908; Johnson v. State, 231 Ga. 138 (1) (200 SE2d 734); Ryder v. State, 121 Ga. App. 796 (3) (175 SE2d 882); Lester Colodny Const. Co. v. Allen, 129 Ga. App. 545 (199 SE2d 917).

Consequently, we must construe the evidence, on appeal, to indicate that the defendant, anticipating that in checking for fishing licenses the officers would discover the contraband that he possessed, sought to place the marijuana out of his possession, and that he placed it under the rock some 75 feet away so that it would not be found on him or among his fishing equipment. Perhaps he may have intended to retrieve it later, but for the purposes of this occasion the judge was authorized to conclude that he was relieving himself of its possession. In that status the marijuana was neither on his property nor in his possession. It was afforded no protection against a search or seizure by the Fourth Amendment. The action of the officer in going to the rock and getting it was not a search or seizure because it was directed neither against the defendant’s person nor against any of his protected property. The officer had seen the defendant go to the rock and place something under it and, since he was found to have been fishing without a license, it was within the purview of his duty to ascertain what may have been secreted. Was it some unlawful lure or device for snaring fish? Had he caught more than the lawful limit (any number when without a license) and hidden the catch?

Argued May 29, 1974 Decided September 20, 1974 Rehearing denied October 17, 1974. Neil L. Heimanson, for appellant. Joseph H. Briley, District Attorney, W. B. Bradley, Assistant District Attorney, for appellee.

It cannot be said that the judgment denying the motion is wholly unsupported. "We are neither authorized nor inclined to substitute our judgment on the evidence for the judgment of the trial court.” Fowler v. Fowler, 231 Ga. 572, 573 (203 SE2d 235). "[H]is findings based upon conflicting evidence is analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.” West v. West, 228 Ga. 397, 398 (185 SE2d 763). See also Lyon v. Lyon, 226 Ga. 879 (178 SE2d 195); Givens v. Gray, 126 Ga. App. 309, 310 (190 SE2d 607); Guardian of Ga. v. Granite Equipment Leasing Corp., 130 Ga. App. 514, 515 (203 SE2d 733).

Judgment affirmed .

Bell, C. J., Quillian and Webb, JJ., concur. Evans, J., concurs in the judgment. Pannell, P. J., Deen, Clark and Stolz, JJ., dissent.