The STATE v. EDWARDS Et Al.

SECOND DIVISION
ANDREWS, P. J.,
MILLER and BRANCH, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
May 7, 2015
In the Court of Appeals of Georgia
A15A0762. THE STATE v. EDWARDS et al.
ANDREWS, Presiding Judge.
Leonard Adrian Edwards and Ashley McMillain were jointly indicted on
charges of trafficking in marijuana by possession of more than ten pounds of
marijuana.1 Edwards filed a pre-trial motion to suppress evidence obtained from his
residence as a result of: (1) an initial entry by police officers into the residence
without a search warrant; and (2) a subsequent re-entry and search of the residence
by the officers pursuant to a search warrant. McMillain, who also resided at the
residence, adopted and joined in the motion to suppress. After a hearing on the
1
In the indictment, Edwards and McMillain were also jointly charged with
possession of a controlled substance (N-Benzylpiperazine) with intent to distribute,
and Edwards was charged with possession of a firearm during the commission of a
felony and theft by receiving stolen property.
motion, the trial court entered an order granting the motion to suppress.2 Pursuant to
OCGA § 5-7-1 (a) (4), the State brings this pre-trial appeal claiming that the trial
court erred by granting the motion to suppress evidence found by officers in the
residence pursuant to the search warrant. For the following reasons, we affirm the
suppression order in part and reverse in part.
On review of a trial court’s ruling on a motion to suppress, “the trial court’s
findings on disputed facts will be upheld unless clearly erroneous, and its application
of the law to undisputed facts is subject to de novo review.” Barrett v. State, 289 Ga.
197, 200 (709 SE2d 816) (2011).
At the hearing on the motion to suppress, police officers gave the following
testimony: On the basis of information provided in an anonymous phone call, Cobb
County narcotics officers approached the residence occupied by Edwards and
McMillain to conduct a so-called “knock and talk,” for the purpose of investigating
2
The indictment shows that Stephen Arbin Stewart was also jointly charged,
along with Edwards and McMillain, with trafficking in marijuana. Although Stewart
also adopted Edwards’s motion to suppress with respect to evidence obtained by
search of the residence, the State contends that Stewart did not own or reside at the
residence, and that he lacks standing to challenge a search of the residence. See
Wilder v. State, 290 Ga. 13, 15 (717 SE2d 457) (2011). In any event, the trial court’s
order on the motion to suppress shows that the court considered only the challenges
raised by Edwards and McMillain.
2
suspicions of illegal drug activity at the residence. The State does not dispute that,
when the officers initially knocked on the door of the residence, they had no probable
cause for issuance of a warrant to enter and search the residence, nor did they have
probable cause and exigent circumstances necessary to justify an immediate entry and
search of the residence. A man (later identified as Edwards) opened the door of the
residence in response to the officers’ knock, and the officers (who were uniformed
and identified themselves as police officers) immediately smelled the strong odor of
raw marijuana coming from inside the residence. One of the narcotics officers who
smelled the marijuana recognized the odor of marijuana because he was trained to
detect the odor, and because he had experienced the smell of marijuana in hundreds
of cases handled during his career. As the officers stood at the open door and
explained to Edwards why they were there, Edwards moved back and to the side,
going behind the open door. Acting for their own safety, the officers stepped into the
residence, just inside the door, and grabbed and secured Edwards. Officers found a
pistol and $7,000.00 in cash on Edwards’s person. Once inside the door, one of the
officers could see from that position what appeared to be a large amount of raw
marijuana a few feet away in clear plastic bags “pretty much everywhere in the
kitchen.” Within seconds after entering the residence to secure Edwards, the officers
3
heard heavy footsteps of someone running upstairs in the residence in the direction
of the stairs that led from the first to the second floor. The officers, who were near the
bottom of the stairs, went up the stairs to investigate the potential threat. When they
reached the top of the stairs, officers saw a man (later identified as Stewart) run
through a room and jump out the second floor window of the residence. At that point,
the officers left the residence, secured the door, and waited outside while one of the
officers applied for a warrant to search the residence.
As a basis for the search warrant, the officer provided an affidavit to a
magistrate court judge setting forth facts supporting the claim that there was probable
cause to believe that criminal activity – possession of a large quantity of marijuana
– was occurring inside the residence. Aside from the anonymous phone call, the only
facts set forth in the application for the warrant were that officers went to the door of
the residence to conduct a “knock and talk” investigation, and that, when the
occupant of the residence opened the door in response to the knock, one of the
officers, who was trained to recognize the odor of marijuana, “smelled the strong odor
of green marijuana coming from the residence.” On that basis, the judge granted the
search warrant, and about 45 minutes after the initial entry into the residence, the
officers re-entered the residence and conducted a search pursuant to the warrant.
4
During this search, police found about ten pounds of marijuana in the kitchen (the
same marijuana officers saw during the prior entry to secure Edwards), additional
marijuana in the living room and upstairs, and other narcotics in the kitchen area.
In its order granting the motion to suppress, the trial court first considered the
testimony from police officers that they initially entered the residence without a
warrant out of concern for their own safety in response to Edwards’s movements at
the open door. To protect against unnecessary intrusions into a private residence, the
Fourth Amendment imposes a warrant requirement on police who seek to enter the
residence for purposes of search or arrest. Welsh v. Wisconsin, 466 U. S. 740, 748
(104 SCt 2091, 80 LE2d 732) (1984). Although the Fourth Amendment did not
prohibit the officers from approaching the residence and conducting the “knock and
talk” investigation at the door (State v. Able, 321 Ga. App. 632, 635 (742 SE2d 149)
(2013)), to justify the nonconsensual, warrantless intrusion into the residence, there
must have existed probable cause for an arrest or search inside the residence, and a
showing of exigent circumstances. Threatt v. State, 240 Ga. App. 592, 595 (524 SE2d
276) (1999). In the present case, the trial court found a lack of exigent circumstances
by concluding that testimony from the officers that they entered the residence out of
concern for their own safety was not credible. Accordingly, the trial court ruled that
5
“law enforcement [officers] were not lawfully inside the house prior to issuance of
any search warrant,” and excluded testimony or other evidence obtained as a result
of the illegal entry. But the trial court also found that the Fourth Amendment did not
prohibit admission of evidence that, prior to the illegal entry, an officer lawfully
present at the door of the residence recognized the odor of marijuana coming from
inside the residence. The State does not contest the trial court’s ruling that the
officers’ initial warrantless entry violated the Fourth Amendment.
The trial court then considered the validity of the search warrant. In
considering this issue, the trial court found that the officers were lawfully at the front
door of the residence pursuant to the “knock and talk” investigation, that Edwards
opened the door in response to their knock, and that, when he opened the door, the
officers smelled the odor of marijuana coming from inside the residence.
Nevertheless, the trial court found that the anonymous phone call provided no basis
for probable cause to issue the search warrant, and that “the smell detection of
marijuana by law enforcement . . . is insufficient alone to sustain a finding of
probable cause for the issuance of a search warrant” of the residence. Based on these
findings, the trial court concluded the search warrant was invalid because the facts
set forth in the affidavit seeking the warrant were insufficient to establish probable
6
cause; ruled the search without a valid warrant violated the Fourth Amendment; and
granted the motion to suppress evidence obtained by officers pursuant to the search
warrant.
The State claims that the trial court erred by ruling, as a matter of law, that the
smell of marijuana alone cannot constitute probable cause to issue a warrant to search
the residence. In State v. Kazmierczak, Case No. A14A2046, ___ Ga. App. ___, 2015
WL 1432195 (March 30, 2015), we held that “[i]f the affidavit for the search warrant
contains sufficient information for a magistrate to determine that the officer who
detected the odor of marijuana emanating from a specified location is qualified to
recognize the odor, the presence of such an odor may be the sole basis for the
issuance of a search warrant.” Id. at *5. Kazmierczak overruled contrary authority and
recognized that the presence of an odor coming from a particular place may be
“‘evidence of the most persuasive character’” in support of probable cause to issue
a search warrant. Id. at *5 (quoting Johnson v. United States, 333 U. S. 10, 13 (68 SCt
367, 92 LE 436) (1948)). Accordingly, a police officer qualified by training or
experience to recognize the distinctive odor of raw marijuana may reasonably infer
from the officer’s detection of that odor coming from a particular place that marijuana
will be found in that place. Kazmierczak, supra at *5.
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Under this standard, the affidavit in support of the search warrant in the present
case was sufficient to support the magistrate’s determination that probable cause
existed for issuance of the warrant. It follows that the trial court erred by granting the
motion to suppress evidence obtained pursuant to the search warrant on the basis that
the warrant was invalid for lack of probable cause. The portion of the trial court’s
order suppressing evidence obtained pursuant to the search warrant is reversed. The
portion of the trial court’s order which the State did not contest – the suppression of
evidence obtained as a result of the officers’ initial entry into the residence without
a warrant – is affirmed.3
Judgment affirmed in part and reversed in part. Miller and Branch, JJ.,
concur.
3
The trial court did not directly address an issue arguably raised by the motion
to suppress – whether evidence obtained pursuant to the search warrant: (a) was
tainted by the initial illegal entry and should be suppressed as the “fruit of the
poisonous tree,” or (b) was obtained by means independent of the illegal entry and
was purged of the primary taint. See State v. Colvard, 296 Ga. 381, 384, n. 6 (768
SE2d 473) (2015); Teal v. State, 282 Ga. 319, 323-324 (647 SE2d 15) (2007).
Although the issue was not directly addressed, we note that the trial court expressly
ruled that the sole evidence which established probable cause for the search warrant
– the officer’s smell of raw marijuana – was obtained by means which did not violate
the Fourth Amendment.
8