State v. Sutton

369 S.E.2d 249, 258 Ga. 382, 1988 Ga. LEXIS 334

• Court: Supreme Court of Georgia
• Decided: June 23, 1988
• Docket: 45051
• Status: Published

Opinions

Weltner, Justice.

Investigating a complaint of shooting deer out of season, a Georgia conservation ranger went to the home of Wallace Sutton and knocked on his front door. There was no answer. When the ranger walked around the side of the house, he saw a deer head hanging in an open area beneath Sutton’s back porch. He saw also two headless deer carcasses on the porch. The ranger again knocked on the front door. Sutton came to the door, and the ranger told him that he had seen the deer. Prior to any questioning by the ranger, Sutton said: “Okay, I’m Wallace Sutton and I shot the deer.” The ranger arrested Sutton for the game law violations, advised him of his Miranda rights, and asked permission to look in Sutton’s smokehouse for the second deer head. Sutton replied: “Sure, go ahead and look in it,” and offered to help the ranger load the carcasses onto a truck.

The trial court sustained a motion to suppress the evidence relating to the deer carcasses, on the ground that it was the result of an illegal search and seizure, in that the ranger invaded the curtilage of Sutton’s dwelling.

1. The state contends that the ranger’s investigation into Sutton’s sideyard is permissible under OCGA § 27-1-20 (a) (6), authorizing conservation rangers “[t]o go upon property outside of buildings, posted or otherwise, in the performance of their duties.” Statutes of this state cannot diminish rights guaranteed by the United States or Georgia Constitutions. The inquiry, therefore, must be to the Fourth and Fifth Amendment principles.

2. The fruits of a search conducted with consent are admissible. Green v. State, 242 Ga. 261 (249 SE2d 1) (1978). McShan v. State, 150 Ga. App. 232, 233 (257 SE2d 202) (1979). The legality of such a search is not vitiated because, prior to obtaining Sutton’s consent (to search the premises for the missing deer head, and to seize the carcasses), the ranger had observed the evidence of the crime. In Atkins v. State, 173 Ga. App. 9, 12 (325 SE2d 388) (1984), the court held:

even the officer’s initially unauthorized presence [in the curtilage] does not require suppression of the items discovered, because ‘the consent given . . .is not only a consent to future searches and seizures, but it amounts to a waiver of the warrant requirement with respect to the search previously conducted’ .... [Cits.] A voluntary written consent to search having been executed . . . the prior warrantless entry into the curtilage, if any, was ratified.

See also Thompson v. State, 248 Ga. 343 (285 SE2d 685) (1981).¹ Accordingly, the motion to suppress should have been denied.

Judgment reversed.

All the Justices concur, except Smith, Gregory, and Bell, JJ., who dissent.

1 On June 27, 1988, four days after the initial issuance of our opinion in this case, the United States Supreme Court decided Murray v. United States. No. 86-995, and Carter v. United States, No. 86-1016, —U.S--(_SC_,_LE2d_) (1988). There, federal agents made an unlawful search of a warehouse. They then obtained a warrant to search the warehouse without revealing to the issuing magistrate that the unlawful search had been made. The trial court’s denial of motions to suppress was upheld by the court of appeals. The United States Supreme Court held: “Knowledge that the marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry. But it was also acquired at the time of entry pursuant to the warrant, and if that later acquisition was not the result of the earlier entry there is no reason why the independent source doctrine should not apply. Invoking the exclusionary rule would put the police (and society) not in the same position they would have occupied if no violation occurred, but in a worse one. See Nix v. Williams, 467 U. S., at 443.”