State v. Venzen , 286 Ga. App. 597 ( 2007 )

SMITH, Presiding Judge.

The State charged Melvin V Venzen by accusation with possessing less than one ounce of marijuana in violation of the Georgia Controlled Substances Act. Venzen filed a motion to suppress the marijuana seized by police, asserting that he “was approached, questioned, and unlawfully detained and arrested.” The trial court granted his motion, and the State appeals. Because the evidence was properly seized both as a result of exigent circumstances and as fruits of a search incident to Venzen’s arrest, we reverse.

The police officers who arrested Venzen were the only witnesses at the hearing on the motion to suppress, and the trial court did not question their credibility or resolve any disputed issues of fact, but instead made its ruling on the basis of the application of law to undisputed facts. This controls our standard of review.

While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citations omitted.) Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). We therefore consider the evidence de novo.

On May 3, 2006, two officers from the Lowndes County Sheriff’s Department went to “4203 Hermes Place, apartment D-4,” to execute an arrest warrant for an individual named Delyno Theodore Brown. As the officers approached the unit’s door, they looked through a window six inches away from the door and saw a man, later identified as Venzen, seated on a couch rolling a marijuana cigarette. They also saw a bag of marijuana beside Venzen on the coffee table at the end of the couch.

The officers knocked to execute the warrant, and Venzen opened the door with a burning marijuana cigarette in his hand. In fact, one officer testified that Venzen had to put down the cigarette so the officer could handcuff him. The officers also smelled burning marijuana and saw the bag of marijuana in the same room, “still sitting in plain [view].” The officers arrested Venzen and seized the marijuana. Brown, the man listed in the arrest warrant, was not present.

Ruling on Venzen’s motion to suppress, the trial court first found that the officers were lawfully on the apartment complex property, that no invasion of privacy resulted when they saw Venzen through the apartment window, and that the marijuana was in plain view inside the apartment. Nevertheless, the trial court granted the motion, concluding that the officers were not authorized to enter the residence and seize the contraband.

We agree with the trial court’s initial determination that the officers properly approached the apartment and knocked on the door. See Pickens v. State, 225 Ga. App. 792, 793 (1) (a) (484 SE2d 731) (1997). And the trial court also correctly concluded that the officers’ observation of the contraband through the window did not constitute an unreasonable invasion of privacy, since they saw it while approaching the apartment “on the same route as would any guest, deliveryman, postal employee, or other caller.” (Citation and punctuation omitted.) Id. But the trial court then ruled, without explaining its interpretation of the evidence or ruling on the credibility of the witnesses, that the officers had no right to enter the apartment to seize the contraband in the absence of a search warrant, consent to search, or exigent circumstances. This portion of the trial court’s ruling was error. The officers were authorized to enter the residence once Venzen opened the door to them on either of two grounds: the exigent circumstances which arose when they found themselves confronting Venzen with contraband in hand; or, alternatively, a search incident to their arrest of Venzen for the possession of marijuana.

1. It is true, as the dissent notes, that “the plain view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer only if the officer’s access to the object itself has some prior Fourth Amendment justification.” (Citation, punctuation and footnote omitted; emphasis in original.) State v. Schwartz, 261 Ga. App. 742, 745 (2) (583 SE2d 573) (2003). And “the presence of contraband without more does not give rise to exigent circumstances.” (Citation and punctuation omitted.) Welchel v. State, 255 Ga. App. 556, 559 (565 SE2d 870) (2002). But access to contraband in plain view may be had “by obtaining a warrant, obtaining consent, or by the existence of exigent circumstances.” (Citation, punctuation and footnote omitted.) Schwartz, supra at 746 (2). The trial court did not expressly address the evidence on any of these issues.

Exigent circumstances arise when an officer reasonably believes that immediate action “is a necessary response on his part to an emergency situation.” (Citation, punctuation and footnote omitted.) Schwartz, supra at 746. Schwartz, supra, State v. David, 269 Ga. 533 (501 SE2d 494) (1998), and Welchel, supra, cited by the dissent, all support the presence of exigent circumstances in this case. This is not a situation, as in Schwartz, supra at 747 (2), in which the occupant did not know police had seen the drugs. Instead, “upon seeing the officer at the open door,” David, supra at 536 (2), Venzen realized the officer was present at the home and “had seen the marijuana.” Schwartz, supra at 747 (2). Venzen obviously knew that the officers were present and that the officers were aware of the marijuana, since Venzen opened the door to them while holding a burning marijuana cigarette, plainly obvious to both sight and smell. Had the officers retreated to obtain a warrant, neither Venzen nor the contraband likely would have been present on their return. Exigent circumstances therefore existed. Id.; compare Welchel, supra at 559.

Although the dissent contends that exigent circumstances were not created until the officers knocked on the door, the officers here properly knocked in order to serve an arrest warrant at the address named in the warrant. Moreover, even if the officers had not seen Venzen through the window, they would have continued to the door to serve the warrant, and Venzen would have answered the door with a burning marijuana cigarette in his hand, thereby providing exigent circumstances. Neither the officers’ nor Venzen’s actions would have changed.

The dissent’s suggested reading of the law also creates a significant unintended consequence. It requires that an officer who legally and properly approaches a residence to serve a warrant, but fortuitously observes a second crime in progress, must immediately abandon his effort to serve the first warrant and retreat to find a magistrate to issue yet another warrant. The case law does not demand this result.

2. Alternatively, Venzen’s lawful arrest for possession of the ■marijuana in his hand authorized a search of the area within his immediate presence.¹ “[I]t is well settled that if a police officer has a right to be in the position from which an object is seen lying in plain view, the object is admissible as evidence.” (Citations omitted.) Dennis v. State, 166 Ga. App. 715, 717 (305 SE2d 443) (1983); see OCGA § 17-5-1 (a) (3) and (4) (officer may reasonably search the person arrested and the area within the person’s immediate presence for the purpose of seizing the fruits of the crime for which the person has been arrested or things used in the commission of the crime). Contrary to the dissent’s contention, in Dennis we stated plainly that the search was authorized “either under the theory of search incident to a lawful arrest or under that of an exigent situation.” (Citation omitted; emphasis supplied.) Id.

In State v. Camp, 175 Ga. App. 591, 594 (2) (333 SE2d 896) (1985), a search incident to arrest for the sale of drugs authorized a search of the immediate area to secure it, discover the presence of all occupants, and prevent harm to the officers and destruction of evidence. We found this to be authorized even though the arrested individual had been removed from the home before the search began. Id. at 592. Certainly this holding applies when officers are attempting to execute an arrest warrant for another individual believed to be in the home.

The dissent’s objection that the officers in Camp were given permission to enter is not well-founded; the supposed permission was given to an undercover officer to enter the living room of the home to purchase marijuana from another individual. Id. at 591-592. After that person was arrested and removed from the home, the officers returned, entered a bedroom and arrested Camp and a female companion, seizing contraband from their immediate presence in and around the bedroom. Id. at 592. We held that this was an authorized search incident to arrest, reversing the trial court’s determination that the officers had no right to be in the bedroom. Id. at 595-596 (2).

Therefore, the contraband discovered during a search ofVenzen’s immediate presence, including the marijuana cigarette in his hand and the marijuana in plain view on the coffee table visible from outside the front door, was admissible as the product of a search incident to arrest. See Dennis, supra (knife seen lying on the floor near appellant’s feet was admissible); Camp, supra (drugs in plain view as well as drugs in purse and headboard near occupants of bed were admissible).

For either of these reasons, the trial court erred as a matter of law in ruling that the officers had no authority to seize the marijuana from Venzen or from the nearby coffee table, and Venzen’s motion to suppress should have been denied.

Judgment reversed.

Andrews, P. J., Johnson, P. J., and Ellington, J., concur. Barnes, C. J., Miller and Adams, JJ., dissent.

1 While the State does not raise the issue of a search incident to arrest, the dissent acknowledges that Venzen’s arrest was lawful. The undisputed facts, reviewed de novo, establish that a lawful arrest took place at the front door, and a search incident to that lawful arrest would likewise be lawful.