Luke v. State

344 S.E.2d 452, 178 Ga. App. 614, 1986 Ga. App. LEXIS 2555

Opinions

Banke, Chief Judge.

Following a bench trial, the appellant was found guilty of trafficking in cocaine (OCGA § 16-13-31 (a)); possession of less than one ounce of marijuana (OCGA § 16-13-2 (b)); and possession of a firearm by a convicted felon (OCGA § 16-11-129 (b)). All the contraband was discovered during the course of a warrantless search of the appellant’s residence, conducted by appellant’s wife’s probation officer with the assistance of several other law enforcement officers, pursuant to a condition of the wife’s probation requiring her to “submit her person, vehicle, and residence to search for drugs (drugs only) at all times by any proper officer without a warrant.” On appeal, the appellant contends that the evidence does not establish that he was in possession of the contraband and also contends that the contraband should have been suppressed as the fruit of an unlawful search.

The search resulted in the seizure of the following items from the “master bedroom” of the appellant’s home: an automatic pistol, ownership of which was acknowledged by the appellant, discovered in the top drawer of a dresser; a .22-caliber pistol, discovered on top of the same dresser; a plastic bag containing marijuana, discovered in the top drawer of a nightstand; and a brown leather bag, discovered in the closet, containing triple beam scales, plastic sandwich bags, and two glass bottles filled with 43.9 grams of white powder determined to be .001 percent cocaine. Also seized, from inside a chifforobe located in the garage, were two bags containing 4.4 grams of white powder determined to be .016 percent cocaine.

At her probation revocation hearing, Mrs. Luke testified that the chifforobe had belonged to her recently deceased brother-in-law and had been stored in the garage at the request of her husband’s mother. Until his death two weeks earlier, the appellant’s deceased brother had lived in the house with the appellant and his wife. However, at the time of the search, the home was occupied only by the appellant, his wife, and their two children. Held:

1. “Under the ‘equal access’ rule, . . . the inference of constructive possession which attaches to an owner or lessee of certain premises is rebuttable by an affirmative showing that persons other than the defendant owner or lessee had equal access to the premises where the contraband was found. [Cits.] Where it is affirmatively shown that others had equal access or opportunity to commit the crime, the mere discovery of the contraband on the defendant’s premises is insufficient to support a conviction. [Cits.]” Shreve v. State, 172 Ga. App. 190, 191 (322 SE2d 362) (1984). It having been established without dispute that the chifforobe in the garage had belonged to the appellant’s deceased brother, it follows that the evidence was insufficient to warrant the inference that the appellant was in possession of the 4.4 grams of cocaine therein. However, the appellant’s conviction of trafficking in cocaine was obviously not based on this relatively small amount of contraband but on the 43.9 grams of white powder found in the closet in the “master bedroom.”

Because the appellant, his wife, and their two children were the only persons living in the house when the search took place, and because the appellant admitted ownership of one of the two pistols found in the dresser drawer of the bedroom in question, we hold that, in the absence of evidence to the contrary, a rational trier of fact could reasonably have inferred that the appellant “occupied” the master bedroom, either by himself or with his wife. The evidence was therefore sufficient to warrant the conclusion that he was in constructive possession, either by himself or jointly with his wife, of all the items seized therein. Accord Prescott v. State, 164 Ga. App. 671 (1) (297 SE2d 362) (1982); Sheppard v. State, 138 Ga. App. 597 (4) (226 SE2d 744) (1976).

2. For the following reasons, we hold that the officers’ reliance on the search authorization appearing in the appellant’s wife’s probation order was justified and that the trial court accordingly did not err in denying the motion to suppress.

The condition was specifically acknowledged by the appellant’s wife at the time the probation order was entered and was thus at least impliedly consented to by her as an acceptable alternative to prison. Furthermore, the record reveals that the wife had just completed a prior period of probation for possessing illicit drugs at the time the condition was imposed and that she had expressed to the sentencing judge a solemn commitment to cease using such drugs. This commitment was obviously a major factor in the judge’s decision to place her on probation again rather than sending her to prison, and the condition was thus clearly tied to a legitimate rehabilitative purpose. Furthermore, the resulting curtailment of her Fourth Amendment rights was certainly no more severe than would have been the case had she been sentenced to imprisonment or sent to a halfway house or diversion center rather than being released on probation. Accord Smith v. State, 250 Ga. 438, 439 (3) (298 SE2d 482) (1983) (upholding a requirement that a probationer produce body fluid, upon request, for analysis as an aid in determining his compliance with a prohibition against the use of controlled substances).

Because we find the search authorization provision contained in the probation order to have been reasonable and appropriate under the circumstances, the legality of the search, in our view, turns on whether the provision was invoked in good faith for the purpose of monitoring the extent of the wife’s compliance (or lack of compliance) with the terms of her probation or whether it was instead invoked arbitrarily, or for harassment, or as a ruse to permit a warrantless search of her husband’s belongings. If the provision was invoked in good faith, then it follows that the search must be considered a reasonable and lawful exercise of authority on the part of the law enforcement officers conducting it. Furthermore, if the officers were authorized to conduct the search, then we do not believe the admissibility of the items seized during the course of it should be affected by the identity of the person or persons incriminated by those items. Generally speaking, if a police officer has the right to be where he is and to observe what he is observing at the time he discovers and seizes an item of contraband, then no good purpose whatever will be served by excluding that item of contraband from evidence.

Footnotes

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The search was conducted on November 5, 1982. At the hearing on the motion to suppress, the appellant’s wife’s probation officer testified that she had made the decision to institute revocation proceedings in late August or early September of that year, based on information that the wife had recently been arrested in Clayton County for D.U.I. and possession of marijuana and had recently pled guilty in Fulton County to possession of cocaine. The officer stated that although she believed she already had enough evidence to proceed with a revocation petition at that time, she desired first to conduct a search of the wife’s home for the purpose of obtaining additional evidence as to the extent of her violations. She testified that she contacted Mr. Bobby Taylor, an investigator in the district attorney’s office, to seek his assistance in carrying out the search but was advised by him to “hold off” for a while, so as not to interfere with what was evidently an ongoing drug investigation involving both the appellant and his wife.

The probation officer stated that she again contacted Taylor both in mid-September and in mid-October to set up a search but was asked again on both occasions to hold off. Finally, around the end of October, she went to the office of the sentencing judge, told him of her intention to initiate revocation proceedings and of her desire first to conduct a search of the residence, informed him that she had been holding off conducting the search at the request of Mr. Taylor, and advised the judge that she was concerned that if she continued to delay in bringing the revocation petition, questions might be raised as to why she had not acted sooner. She testified that the judge responded by speaking briefly with Taylor on the telephone and then informing her that Taylor would be back in touch with her. A few days later, Taylor contacted her, and the search was set up for that same afternoon.

We hold that this evidence was sufficient to support a determination by the trial judge that the search was “actuated by the legitimate operation of the probation supervision process” rather than by some other, more nefarious motive. See generally Hunter v. State, 139 Ga. (2), 678 (229 SE2d 505) (1976); Lillard v. State, 156 Ga. App. 54, 55 (274 SE2d 96) (1980). We therefore hold that the search constituted a lawful and reasonable exercise of police power, standing on the same footing with respect to legality as a search conducted pursuant to consent.

“ ‘[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that the permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.’ United States v. Matlock, 415 U. S. 164, 171 (1974). See Barrow v. State, 235 Ga. 635, 636 (1) (221 SE2d 416) [1975].” State v. Floyd, 161 Ga. App. 48, 50 (289 SE2d 8) (1982). The appellant’s wife obviously possessed such authority with respect to the premises in question, and it follows that the trial court did not err in denying the appellant’s motion to suppress.

Judgment affirmed.

Deen, P. J., McMurray, P. J., Birdsong, P. J., Carley, Sognier, Pope, and Beasley, JJ., concur. Benham, J., dissents.

This is not to say that the admissibility of the evidence seized during a search may never be affected by the identity of the defendant against whom it is introduced. A search may, for example, be unlawful in the sense that it was not supported by probable cause or was conducted without a warrant when one was required, yet the defendant in question may have no standing to object to it due to the lack of any possessory interest in the item seized or reasonable expectation of privacy in the area searched. See, e.g., Robertson v. State, 161 Ga. App. 715, 716-717 (288 SE2d 362) (1982).