Mcconville v. The State., 228 Ga. App. 463, 491 S.E.2d 900 (1997)
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Judgment affirmed. Beasley and Smith, JJ., concur.
Summary
Judgment affirmed. Beasley and Smith, JJ., concur.
Text
Jimmy D. Berry, Thomas N. Brunt, for appellant.
Defendant was charged in an indictment with a single count of possessing marijuana with the intent to distribute. After the denial of his motion to suppress, the case was tried before the Superior Court of Bartow County, Georgia, with the parties stipulating to the evidence as adduced at the suppression hearing.
Only the investigating officers testified at the suppression hearing, and their evidence would authorize the following facts: Deputy Brenton Garmon of the Bartow County Sheriff's Office responded to "a burglar alarm from [defendant's] residence." When Deputy Garmon arrived, he saw "a truck parked in the drive with the [passenger] door open. . . . There was a large U-Haul type van backed right up against the garage." He "assumed someone was burglarizing the house with the door open, and there were some motorcycle parts sitting in the door."
He also observed defendant "inside of the garage. [Defendant] raised the garage door, and he appeared to be holding his breath. He then exhaled, and [Deputy Garmon] could smell the odor of marijuana when he exhaled. [Deputy Garmon] identified [him]self. [Defendant] showed [the deputy] his driver's license which had that address on it, confirmed that [defendant] did live at the residence. And then [Deputy Garmon] told [defendant] that [he] smelled marijuana. [Defendant] then told [the deputy], yes, that [the deputy] did smell it, that he had just a little left. And then [defendant] took [Deputy Garmon] to the back room of [defendant's] garage, [where defendant] had a couple of small leaves of what was suspected to be marijuana in a blue bong [or hookah]. It was still smoking with the odor of marijuana. [Deputy Garmon] then called Sergeant Whitworth."
Sergeant Carlton Whitworth, with the Narcotics Division of the Bartow County Sheriff's Department, arrived and was shown the smoking device and the suspected marijuana. Sergeant Whitworth "read [defendant] his Miranda warning [and] asked [defendant] for a consent to search his residence, premise and all, and [defendant] said that he would rather for [Sergeant Whitworth] to have a search warrant. So [Sergeant Whitworth] stopped there and [formally] arrested [defendant] for the marijuana he already had. "Approximately two hours later, Sergeant Whitworth returned to execute a search warrant signed by a magistrate. "[I]nside the master bedroom closet was . . . 11 pounds and 7 ounces of marijuana."
The trial court found defendant guilty of possessing marijuana with intent to distribute. Defendant appeals from the judgment of conviction and sentence. He enumerates the denial of his motion to suppress for failure to give timely Miranda warnings, and also enumerates the denial of his motion to suppress the evidence seized pursuant to the search authorized by the warrant. Held:
1. Defendant contends the trial court erred in failing to suppress the marijuana seized from his garage. He argues he was improperly questioned because "Deputy Garmon knew immediately, upon smelling marijuana, that an arrest of [defendant] was going to be made and, consequently, any questions after that point should have been asked only after Miranda warnings were given."
In the case sub judice, defendant was at the scene of a residence where a silent burglar alarm had been triggered. Deputy Garmon was authorized to conduct limited interrogation to determine defendant's identity and whether there was danger to the officer or others on the scene. State v. Overby,
For the proscriptions of Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) to apply, "a person must be taken into custody or otherwise deprived of his freedom of action in some significant way." Lobdell v. State,
We hold that defendant's spontaneous act of leading Deputy Garmon from the top of his driveway to the still-smouldering pipe of marijuana in the back of the garage was not made under coercion or restraint to the degree associated with formal arrest, such that the initial statement of Deputy Garmon that he smelled marijuana did not amount to custodial interrogation. Lolley v. State,
"In effect, [defendant] would have us rule that once a police officer has probable cause to arrest, he must arrest and Mirandize. But that is not the law. Whether a police officer [subjectively] focused his unarticulated suspicions upon the individual being questioned is of no consequence for Miranda purposes. Stansbury v. California, 511 U. S. 318[, supra]." Hodges v. State,
2. Defendant next urges the trial court erred in refusing to suppress the nearly 12 pounds of marijuana discovered in defendant's master bedroom closet during the search conducted pursuant to a warrant. He argues the affidavit and search warrant were fatally defective and failed to establish probable cause sufficient to justify a search of his residence because the marijuana and still-smoking bong were located in the detached garage.
Despite the delay in appellate consideration of the case sub judice, we have ordered that the record on appeal be supplemented with the affidavit of Sergeant Whitworth as submitted to the magistrate. Sergeant Whitworth recited the following facts in support of the expressed belief that defendant's residence contained marijuana:
"On October 20, 1995 at approximately 1842 hours Deputy Brenton Garmon answered a house alarm call at 6850 Rock Ridge Road. Upon arrival at 6850 Rock Ridge Road, Deputy Garmon went to tile right side of the garage. A white male was attempting to raise the garage door, he noticed Deputy Garmon. As Deputy Garmon approached, the white male blew smoke out of his mouth. Deputy Garmon advised that he was there in reference to an alarm call. The white male stated that he lived there and produced a current Georgia Drivers License. The license was in the name of Michael James McConville, with the address of 6850 Rock Ridge Road. Deputy Garmon was satisfied that Mr. McConville was the owner of the residence, Deputy Garmon stated to Mr. McConville that he had smelled Marijuana when Mr. McConville discharged the smoke from his mouth. Mr. McConville stated that he was smoking marijuana and showed Deputy Garmon where the smoking device was located and a small amount of marijuana. Deputy Garmon notified Affiant [Sergeant Whitworth] by phone and advised what had occurred. Affiant traveled to Deputy Garmon's location. Affiant identified the substance as marijuana and asked Mr. McConville for a consent o search. Mr. McConville refused to give consent."
The issuing magistrate need only conclude there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Stephens,
Under the totality of the circumstances in the case sub judice the personal knowledge of Sergeant Whitworth, a trained investigator, was sufficient to authorize the issuing magistrate's determination that a fair probability existed that contraband would be found at a particular address or location, namely defendant's residence. Moreover, resolution of doubtful or marginal cases in this area should largely be determined by the preference accorded to searches conducted under the auspices of a warrant. Davis v. State,
T. Joseph Campbell, District Attorney, Rebecca B. Paris, Assistant District Attorney, for appellee.
1997
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This document cites
- Supreme Court of Georgia - DAVIS et al. v. THE STATE., 266 Ga. 212, 465 S.E.2.d 438
- Supreme Court of Georgia - HODGES v. THE STATE., 265 Ga. 870, 463 S.E.2.d 16 (1995)
- Supreme Court of Georgia - REINHARDT v. THE STATE., 263 Ga. 113, 428 S.E.2.d 333 (1993)
- Supreme Court of Georgia - NORTON v. THE STATE., 263 Ga. 448, 435 S.E.2.d 30 (1993)
- Supreme Court of Georgia - LOLLEY v. THE STATE., 259 Ga. 605, 385 S.E.2.d 285
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