Danny Mitchell Bowman v. State

• Court: Court of Appeals of Georgia
• Decided: May 27, 2015
• Docket: A15A0257
• Status: Published

Opinion

FIRST DIVISION PHIPPS, C. J., DOYLE, P. J., and BOGGS, J.

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 27, 2015

In the Court of Appeals of Georgia A15A0257. BOWMAN v. THE STATE. BO-011C

BOGGS, Judge.

Danny Bowman appeals from the trial court’s order denying his motion to

suppress evidence seized during a search of his home. Because the record reveals no

probable cause for the search, we reverse.

When reviewing a suppression ruling, we construe the evidence favorably to

the trial court’s findings and judgment. See Galindo-Eriza v. State, 306 Ga. App. 19

(701 SE2d 516) (2010). So viewed, the evidence shows that on June 21, 2013, a

Gordon County sheriff’s detective received information that a stolen Ford F-250 truck

could be found on Bowman’s property. Around midnight, the detective and other

officers approached the front door of Bowman’s home, knocked, and identified

themselves. An individual opened the door and, upon seeing uniformed officers, immediately slammed it shut. While the door was open, Burns saw a battery charger

inside the house that was the same color as a charger reportedly located within the

truck when it was stolen.

Concerned that someone might try to escape through the back door, the

detective sent a deputy to the rear of the residence. The deputy went behind the house

and saw a Ford F-250 tailgate that appeared to have been spray-painted leaning

against the back porch. He reported this discovery to the detective, who began the

process for obtaining a search warrant. While waiting on the warrant, the deputy

drove further back into the property and found the stolen truck under a tarp. The

search warrant eventually arrived, and officers located a methamphetamine lab, as

well as items belonging to the truck’s owner, inside Bowman’s home.

Bowman was indicted for attempt to manufacture methamphetamine,

possession of ephedrine, possession of pseudoephedrine, and theft by receiving stolen

property. He subsequently moved to suppress all evidence seized by police, arguing

that officers located the tailgate and stolen truck when they illegally entered his

backyard and that nothing visible from the home’s front door supported a search

warrant. The trial court agreed with Bowman as to the stolen truck. Finding that the

2 deputy improperly searched the rear of the property without a warrant, the trial court

suppressed all evidence of the truck discovered under the tarp.1

As to items seized from the house, however, the trial court found that probable

cause supported the search. It denied Bowman’s motion to suppress and motion for

reconsideration, but issued a certificate of immediate review. We granted Bowman’s

interlocutory application, and this appeal followed.

1. Citing OCGA § 17-5-30,2 Bowman argued below that the search was illegal

and lacked probable cause, requiring suppression of all seized evidence. Without

dispute, the officers’ initial approach to Bowman’s house constituted a permissible,

first-tier “knock and talk” encounter. See Galindo-Eriza, supra, 302 Ga. App. at 22

(1); State v. Ealum, 283 Ga. App. 799, 801 n.2 (643 SE2d 262) (2007). The detective

was entitled to be at the front door when it opened. His view of the battery charger,

therefore, was permissible. See Myers v. State, 321 Ga. App. 676, 679 (742 SE2d

494) (2013) (officers’ observation of stolen merchandise inside car could be used as

1 The State has not challenged this ruling. 2 Under this provision, a defendant may move to suppress evidence on grounds that “[t]he search and seizure with a warrant was illegal because . . . there was not probable cause for the issuance of the warrant.” OCGA § 17-5-30 (a) (2).

3 basis for warrant because “officers were in a place they were lawfully entitled to be”

when they saw merchandise).

The deputy’s discovery of the tailgate, however, is problematic. The Fourth

Amendment prohibits an officer “from entering [a] home or its curtilage without a

warrant absent consent or a showing of exigent circumstances.” Kirsche v. State, 271

Ga. App. 729, 731 (611 SE2d 64) (2005). The yard immediately surrounding a

dwelling falls within the curtilage of a home. See id. at 733. The deputy did not have

a warrant or consent when he went behind the house, and the State offered no

evidence of an emergency situation. In fact, the State concedes the deputy was not

authorized to be in the backyard. Consequently, his observation of the tailgate was

illegal, provided no basis for a probable cause finding, and required suppression of

the tailgate evidence. See Arp v. State, 327 Ga. App. 340, 346 (2) (759 SE2d 57)

(2014) (because officers were not authorized to enter defendant’s backyard,

observations made from backyard could not support search); State v. O’Bryant, 219

Ga. App. 862, 863-865 (467 SE2d 342) (1996) (contraband observed inside truck

located within curtilage of defendant’s home could not form basis for search warrant

where officer lacked authority to look inside vehicle); see also State v. Schwartz, 261

4 Ga. App. 742, 745 (1) (583 SE2d 573) (2003) (trial court properly suppressed

evidence illegally seen by police).

2. The question thus becomes whether the detective’s observation of the battery

charger, standing alone, supports the search warrant. The State argues that it does. “A

search warrant will only issue upon facts sufficient to show probable cause that a

crime is being committed or has been committed.” Willoughby v. State, 315 Ga. App.

401, 403 (727 SE2d 194) (2012), citing OCGA § 17-5-21 (a). In determining whether

probable cause exists, a magistrate must “make a practical, common-sense decision

whether . . . there is a fair probability that contraband or evidence of a crime will be

found in a particular place.” (Citations and punctuation omitted.) Id. Speculation,

conjecture, opinion, or rumor cannot support a warrant. See id. Instead, “the facts

must be such as to lead a man of prudence and caution to believe that the specified

offense has been committed.” (Punctuation omitted.) Id.

Moreover, we have held that “the burden of showing that the search and seizure

were lawful shall be on the [S]tate. This burden upon the [S]tate is satisfied by

production of the warrant and its supporting affidavit, and by showing either by those

documents or by other evidence that the warrant is not subject to the statutory

challenge alleged.” (Citations, punctuation, and emphasis omitted.) Smith v. State,

5 324 Ga. App. 542, 544-545 (1) (751 SE2d 164) (2013). In this case, however, the

State did not tender the warrant or supporting affidavit into evidence at the

suppression hearing, and neither document otherwise appears in the record. Because

the search warrant affidavit is absent from the record, we are not privy to the

information given to the magistrate judge. We do not know whether the affidavit

provided details about the stolen truck, the battery charger, or any connection

between the charger and the truck. And we cannot determine whether it demonstrated

a fair probability that contraband or evidence of a crime would be found in Bowman’s

home. Under these circumstances, the State has not shown that the magistrate had

probable cause to issue the search warrant. The trial court, therefore, should have

suppressed all evidence seized pursuant to the warrant. See id. at 404 (magistrate

must be provided with underlying details to determine whether officer’s conclusion

regarding crime “were based on specific facts . . . rising to the level of probable cause

or whether they were instead based on mere speculation or presumptions”).

Judgment reversed. Phipps, C. J. and Doyle, P. J., concur.