Griffith v. The State., 172 Ga. App. 255, 322 S.E.2d 921 (1984)
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Kenneth Kalivoda, for appellant.
The appellant, Robert Griffith, was convicted of driving under the influence of alcohol, leaving the scene of an accident, and violation of the Georgia Motor Vehicle Accident Reparations Act by driving without liability insurance. All were misdemeanor offenses.
On December 23, 1982, at approximately 8:45 p.m., a hit-and-run accident occurred at a public intersection in Athens, Georgia. Grant Humphries' car was struck by a burgundy, 1977 Oldsmobile Cutlass which immediately fled the scene; a witness followed the vehicle, obtained the tag number, and reported the information to the investigating police officer. Through the department's computer records, the police obtained the appellant's name and address as the registered owner of the described vehicle with the tag number provided by the witness.
Approximately 30 minutes after the accident, four police officers converged upon the appellant's residence (which was only a few blocks from the scene of the accident). Officer Ray Chinn knocked on the front door, but no one answered. Another officer espied someone inside the house peeking out a window as Chinn knocked, and so informed the latter. Chinn then went to the back of the house, and looking through the window he could see keys still in the interior door lock and a man ostensibly asleep on the sofa in the front section of the house.
Desiring to question the man sleeping on the sofa, Chinn climbed through a window into the house, and unlocked the rear door so that 2 other officers could enter. The officers awakened the appellant, who, responding to the officers' question, indicated that he had been driving the car in question that evening, returning from a Christmas party, and that no one else had had access to the vehicle that evening. Because the officers noticed a strong odor of alcohol about the appellant and that the appellant appeared to be intoxicated, they advised him of the implied consent warning; the appellant refused to submit to any blood alcohol content test. The officers formally placed the appellant under arrest after this interrogation, and transported him to the police station, where they subsequently advised him of the Miranda warnings. Further interrogation resulted in the appellant's admission that he did not have the required liability insurance on his automobile.
The following day, Humphries visited the appellant at the latter's residence to discuss arranging for the repair of his car. Humphries testified that during that encounter the appellant had asked if Humphries was the person he had collided with the night before and had stated that he had no liability insurance.
On appeal, Griffith contends that the trial court erred in overruling his motion in limine to exclude all testimony of the police officers concerning any incriminating statements he made and their examination of his car; that the trial court erred in admitting testimony about the appellant's refusal to submit to a blood alcohol content test; that the trial court erred in not directing a verdict of acquittal on the charge of driving without automobile liability insurance; and that the trial court erred in its charge to the jury. Held:
1. As the investigative officers initially approached the appellant's house, they observed that the appellant's automobile's engine was warm and that the front left fender obviously had been in a collision; pieces of some trim parts found by the officers at the scene of the accident also matched the appellant's vehicle. Although he cites no authority for the proposition, the appellant contends that this examination of his vehicle constituted an illegal search because of the warrantless entry onto his premises. However, the officers certainly needed no warrant merely to approach the appellant's house to make investigative inquiries, and their observation and limited examination of the vehicle situated in the driveway was not unreasonable.
We, however, agree with the appellant that the officers' warrantless entry into his house was unjustified, unreasonable, and illegal. In this case, the officers were not in "hot pursuit" of someone who had committed a crime in their presence or whom they had probable cause to believe had committed a felony; in fact, the officers admitted that they had not had enough information to identify the appellant as a suspect and had not intended to arrest the appellant at the time of the entry. Rather, the police officers entered the appellant's residence with the purpose of merely questioning the appellant as to his knowledge, if any, of who had driven the vehicle.
Absent consent or exigent circumstances, a warrantless entry into a home to conduct a search or make a routine felony arrest is unreasonable under the Fourth Amendment. Payton v. New York, 445 U. S. 573 (100 SC 1371, 63 LE2d 639) (1980); Mincey v. State,
Moreover, absent consent or exigent circumstances, even though police officers have probable cause to search, they may not enter a home without a warrant merely because they plan to obtain one subsequently. United States v. Griffin, 502 F2d 959 (6th Cir. 1974). Evidence discovered after the issuance of a valid search warrant may be admissible, notwithstanding a prior illegal entry, United States v. Agapito, 620 F2d 324 (2d Cir. 1980); see also Segura v. United States, ---- U. S. ---- (Case No. 82-5298, decided July 5, 1984). The court in Agapito rejected the prosecution's novel suggestion of a "continuing the investigation" exception to the warrant requirement, and we concur in that rejection.
The trial court and the State relied upon OCGA
In this case, as indicated above, the appellant's inculpatory statements actually were initially the product of the illegal entry, and those initial statements obviously should have been excluded because of the illegal entry and questioning (which, in effect, was a search). The arrest thus was illegal because it was the product of the illegal entry. Subsequent to the formal arrest and advisement of the Miranda rights, however, the appellant reiterated the inculpatory statements. Applying the guidelines delineated in Dunaway v. New York, supra, it is clear that the custodial statements made at the police station likewise were tainted and should have been excluded. There were no intervening circumstances; very little time passed between the arrest and the statement; and the flagrant act of climbing through the rear window of a house was not justified by the purpose of questioning a resident.
As the appellant's inculpatory statements (as well as the refusal to take the blood alcohol test) constituted the only evidence adduced in support of the charge of driving under the influence of alcohol, the conviction for that offense must be reversed. Additionally, because we cannot conclude that there was no reasonable possibility of the improperly admitted evidence having contributed to the guilty verdict on the charge of driving without insurance, that conviction must be reversed for retrial. See Schneble v. Florida, 405 U. S. 427 (92 SC 1056, 31 LE2d 340) (1972).
2. We reject the appellant's contention that the trial court erred in refusing to give his requested jury charge that to warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of guilt of the accused. OCGA
Similarly, the appellant contends that, with regard to the charge of driving a vehicle without liability insurance, the trial court erred in also instructing the jury that a driver has the duty to present proof of insurance upon the request of a law enforcement officer, a duty evidently gleaned from OCGA
4. Because of the holdings in the above divisions, we need not address the appellant's remaining enumerations of error, which concern the convictions for driving under the influence of alcohol and driving without insurance. We do note, however, that because in the original sentencing of the appellant by the trial court it is unclear as to which convictions certain conditions of probation correspond, resentencing is necessary.
Ken Stula, Solicitor, Kent Lawrence, Assistant Solicitor, for appellee.
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This document cites
- U.S. Supreme Court - Steagald v. United States, 451 U.S. 204 (1981)
- U.S. Supreme Court - Payton v. New York, 445 U.S. 573 (1980)
- U.S. Supreme Court - Schneble v. Florida, 405 U.S. 427 (1972)
- U.S. Supreme Court - Wong Sun v. United States, 371 U.S. 471 (1963)
- Supreme Court of Georgia - MINCEY v. THE STATE., 251 Ga. 255, 304 S.E.2.d 882
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