State v. Espinoza , 212 Ga. App. 814 ( 1994 )

Cooper, Judge,

concurring in part and dissenting in part.

I concur with the majority’s conclusion that probable cause existed for the search warrant for unit 251-B. However, I dissent as to its conclusion that the marijuana was found within the curtilage of unit 251-B and was thus lawfully seized pursuant to the search of that unit. I would hold that the trial court properly concluded that the drugs were found within the curtilage of unit 251-A for which law enforcement authorities had no search warrant. The undisputed evidence established that the duplex, which consists of two completely separate residences, was served by one driveway which split to partially encircle the duplex; that unit 251-A is on the left side of the duplex; and that the marijuana was found on the left side of the driveway, i.e., on unit 251-A’s side of the duplex. “ ‘The yard immediately surrounding one’s dwelling is well within the curtilage.’ ” Bunn v. State, 153 Ga. App. 270, 274 (2) (265 SE2d 88) (1980). I believe residents of a duplex do have an expectation of privacy in the curtilage surrounding their individual units; certainly, it stands to reason that if A lives on one side of a duplex, he would not anticipate that a neighbor on the other side of the duplex would store his possessions on A’s side of the duplex. Moreover, while the State argues that the marijuana was found within the common area of both units and that it was thus within the curtilage of unit 251-B and included in the search warrant for unit 251-B, oddly enough, the State did not charge Alex, the lessee of unit 251-B and the person to whom the search warrant was targeted, but instead charged Lorenzo, the lessee of unit 251-A with possession of the marijuana. I can think of no other reason for why the State would have charged Lorenzo with possession of the drugs and not Alex (the only person named in the search warrant) unless it considered the marijuana to be solely within the curtilage of Lorenzo’s unit. As noted above, I believe the evidence was properly suppressed because it was found within the curtilage of unit 251-A for which law enforcement authorities did not have a search warrant.

The majority, however, concludes that the marijuana was found “within a common area curtilage which is reasonably an extension of each brother’s dwelling” and relying on our decision in Bayshore v. State, 208 Ga. App. 828 (432 SE2d 251) (1993), holds that the marijuana was lawfully seized from the curtilage of unit 251-B. The majority further notes that it is irrelevant that the marijuana was also within the curtilage of unit 251-A. First, it hardly seems irrelevant that the marijuana was also found within unit 251-A’s curtilage since the lessee of that unit was the only one charged with possession of the marijuana. Second, contrary to the majority’s holding here, we held in Bayshore that “the common parking area was not part of the curtilage of the apartment and was not included in the search warrant issued in [that] case.” 208 Ga. App. at 829. The rationale behind our decision in Bayshore appears to be that residents of a multi-family dwelling have no reasonable expectation of privacy in a common area nor do they “reasonably consider the area to be an extension of the dwelling.” Id. The majority, however, while citing no authority other than Bayshore, holds that the common area where the drugs were found was “reasonably an extension of each brother’s dwelling.” I cannot adopt such reasoning since Bayshore appears to stand for the opposite proposition. Thus, even assuming the marijuana was not solely within unit 251-A’s curtilage but was within a common area shared by both units, under the authority of Bayshore, I would hold that the “common [yard] area was not part of the curtilage of [unit 251-B] and was not included in the search warrant issued in this case.” Id. For the foregoing reasons, I respectfully dissent.

I am authorized to state that Judge Blackburn and Judge Smith join in this dissent.