Johnson v. State

700 S.E.2d 612 (2010)

JOHNSON
v.
The STATE.

No. A10A1944.

Court of Appeals of Georgia.

August 19, 2010.

Valerie T. Bryant, for appellant.

J. David Miller, Dist. Atty., Jessica W. Clark, Asst. Dist. Atty., for appellee.

BLACKBURN, Senior Appellate Judge.

Alphonso Johnson appeals the trial court's denial of his motion to suppress, arguing that the search of Johnson's vehicle was unreasonable under Arizona v. Gant.^[1] However, because Johnson abandoned his car, he failed to show he had standing to assert such a claim. Accordingly, we affirm.

We employ the standard of review set forth in Vansant v. State:^[2]

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.) Because the relevant facts here are undisputed, we review the trial court's ruling de novo. See McClary v. State.^[3]

Those facts show that on April 17, 2009, an officer pulled Johnson over for failing to wear a seat belt. Johnson pulled his car into another person's residential driveway and walked away from his car, leaving the driver's door open. The officer pulled up behind Johnson and directed him to return to his car and to sit down; Johnson did so, sitting on the driver's seat with the door open and with his legs resting outside the car. Determining from the landowner washing a car in the subject driveway that Johnson had no connection to the residence, the officer observed Johnson becoming tense and nervous with accelerated breathing, which indicated to the officer that Johnson was about to flee or fight the officer. The officer decided to handcuff Johnson, but when the officer attempted to do so, Johnson resisted, knocking the handcuffs away and fighting the officer. Johnson then fled with the officer in hot pursuit. While running, the officer notified other police units of his location and situation, including that he was chasing Johnson.

Pursuant to that notification, a second officer soon arrived, who had been informed by the dispatcher of the description and tag number of Johnson's vehicle. Finding Johnson's car in the driveway with the police vehicle behind it, the second officer observed that the driver's side door of Johnson's car was open and that a pair of handcuffs lay on the ground near that door. Neither the first officer nor Johnson was at the scene. After determining from the car-washing landowner in the driveway that he did not own Johnson's car nor did he know whose vehicle it was, the second officer searched Johnson's vehicle, finding a gun under a seat cover on the passenger side and a machete. At some point, Johnson was caught by the first officer.

Johnson was indicted on several counts, including failure to wear a safety belt,^[4] obstruction of an officer,^[5] possession of a firearm by a convicted felon,^[6] possession of a weapon whose serial number had been removed,^[7] and other crimes. Johnson immediately moved to suppress the evidence seized during the search of the car, arguing that the warrantless search violated his Fourth Amendment rights. Following a hearing, the trial court who was familiar with Arizona v. Gant, supra, denied the motion as inapplicable to the facts of this case, but granted a certificate of immediate review and suggested that Johnson appear in the matter. We granted Johnson's motion to appeal the ruling by interlocutory process.

As the trial court pointed out, the warrantless arrest in Arizona v. Gant supra, was suppressed because at the time of the search, Gant was under arrest and in the police car so there was no danger to the police officer or reason not to get a warrant. Here, Johnson illegally abandoned his vehicle on private property with the door open, fought with the police officer, and escaped from the scene. The search was then conducted by a second officer arriving at the deserted scene.

Johnson's contention that the search was invalid as a warrantless search incident to an arrest under Arizona v. Gant, supra, is misplaced as Johnson had no standing to assert such a claim.^[8] We have often relied on a lack of standing to uphold a trial court's decision to deny a motion to suppress. See English v. State^[9] ("[a]lthough the trial court gave other reasons for denying the motion to suppress, a judgment right for any reason will be affirmed"); Prather v. State^[10] ("[a] judgment that is right for any reason will be affirmed"; because defendant had abandoned his vehicle, he had no Fourth Amendment right to assert regarding a search of that vehicle) (punctuation omitted); Gresham v. State^[11] ("appellant lacks standing to contest the legality of the search and seizure of his automobile; we will not reverse the correct ruling of the trial court").

As stated in Rose v. State,^[12] "[f]or [Johnson] to successfully move for the suppression of evidence obtained in a warrantless search, he had to have standing." Indeed, "[t]he burden is on the defendant to show that he has standing to contest the alleged violation, i.e., that he has a legitimate expectation of privacy." (Punctuation omitted.) Dade v. State.^[13] Here, the undisputed evidence showed that Johnson abandoned his vehicle when he fled the vehicle to escape police, leaving the vehicle parked in a stranger's driveway with the door open. Before searching the open vehicle, the second officer even confirmed with the landowner that Johnson's vehicle was not parked there with the owner's permission.

Under such circumstances, the cases are legion that Johnson had abandoned his vehicle, thereby forfeiting any right to challenge a search of the vehicle. As stated in Driggers v. State,^[14] "[a] defendant who abandons seized property lacks standing to challenge the validity of the search and seizure." See Skaggs-Ferrell v. State^[15] ("[t]he constitutional protection of the Fourth Amendment does not apply to property which has been abandoned") (punctuation omitted); Prather, supra, 279 Ga.App. at 876(1), 633 S.E.2d 46 ("[t]he constitutional protection of the Fourth Amendment does not apply to property which has been abandoned"). See generally Teal v. State.^[16] Accordingly, where the evidence shows that the vehicle in question was abandoned, we have held that any search of that vehicle is justified, as the defendant lacks standing to challenge same. See Skaggs-Ferrell, supra, 287 Ga.App. at 874(1), 652 S.E.2d 891; Elliott v. State;^[17]Gresham, supra, 204 Ga.App. at 540-541(1), 420 S.E.2d 71; Walker v. State.^[18]

That the vehicle was abandoned cannot be questioned under prevailing precedent. Leaving a vehicle door open and then fleeing police, while that vehicle is illegally parked, demonstrates an intent to abandon the vehicle. See Prather, supra, 279 Ga.App. at 876(1), 633 S.E.2d 46; Elliott, supra, 230 Ga.App. at 856-857(1), 497 S.E.2d 817; Walker, supra, 228 Ga.App. at 510(1), 493 S.E.2d 193; Whitlock v. State.^[19] Specifically, we have noted that parking one's vehicle in a stranger's driveway and fleeing police indicates an intent to abandon the vehicle. See Powell v. State.^[20] Compare State v. Nesbitt^[21] (vehicle parked in parking space of apartment complex where the lawful user of vehicle lived was not abandoned).

Accordingly, the trial court did not err in denying the motion to suppress, as the evidence undisputedly showed that Johnson had abandoned the vehicle.

Judgment affirmed.

BARNES, P.J., and Senior Appellate Judge MARION T. POPE, JR., concur.

NOTES

[1] Arizona v. Gant, ___ U.S. ___, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009).

[2] Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474 (1994).

[3] McClary v. State, 292 Ga.App. 184, 185, 663 S.E.2d 809 (2008).

[4] OCGA § 40-8-76.1(b).

[5] OCGA § 16-10-24(b).

[6] OCGA § 16-11-131(b).

[7] OCGA § 16-9-70(a).

[8] This case is factually distinguishable from Gant in any event.

[9] English v. State, 288 Ga.App. 436, 442(3), 654 S.E.2d 150 (2007).

[10] Prather v. State, 279 Ga.App. 873, 876(1), 633 S.E.2d 46 (2006).

[11] Gresham v. State, 204 Ga.App. 540, 541(1), 420 S.E.2d 71 (1992).

[12] Rose v. State, 263 Ga.App. 263, 264(1)(a), 587 S.E.2d 326 (2003).

[13] Dade v. State, 292 Ga.App. 897, 903, 666 S.E.2d 1 (2008).

[14] Driggers v. State, 295 Ga.App. 711, 714(2), 673 S.E.2d 95 (2009).

[15] Skaggs-Ferrell v. State, 287 Ga.App. 872, 874(1), 652 S.E.2d 891 (2007).

[16] Teal v. State, 282 Ga. 319, 328-329(6), 647 S.E.2d 15 (2007).

[17] Elliott v. State, 230 Ga.App. 855, 856-857(1), 497 S.E.2d 817 (1998).

[18] Walker v. State, 228 Ga.App. 509, 510(1), 493 S.E.2d 193 (1997).

[19] Whitlock v. State, 124 Ga.App. 599, 602(3)(b), 185 S.E.2d 90 (1971), rev'd in part on other grounds, 230 Ga. 700, 198 S.E.2d 865 (1973).

[20] Powell v. State, 270 Ga.App. 707, 708, 607 S.E.2d 909 (2004).

[21] State v. Nesbitt, 305 Ga.App. 28, 32(1), 699 S.E.2d 368 (2010).