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State v. Kaulbach

Court of Appeals of Georgia

March 27, 2015

THE STATE
v.
KAULBACH et al

Page 246

Motion to suppress. Clayton Superior Court. Before Judge Carter.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Marcus A. Thorpe, Assistant District Attorneys, for appellant.

Ricky W. Morris, Jr., Stacey F. Morris, for appellees.

OPINION

Page 247

Barnes, Presiding Judge.

Suzanne Kaulbach and Misty Caudle were charged in a multi-count indictment with making false statements in a matter within the jurisdiction of the Clayton County Police Department, obstruction of an officer, criminal use of an article with an altered identification mark, and seven counts of theft by receiving. They each moved to suppress evidence recovered during the execution of two search warrants, arguing that police officers entered their property without a warrant or exigent circumstances, and that the subsequently-issued warrants were not supported by sufficient probable cause and were impermissibly overbroad. They also filed special demurrers and [331 Ga.App. 611] moved to dismiss the indictment on several grounds. Following a hearing at which the detective who applied for and obtained the warrants testified, the trial court granted the motions to suppress and denied the motions to dismiss. The State appeals, and for the reasons that follow, we reverse the trial court's order granting the defendants' motions to suppress evidence.

A detective applied for a warrant to search the premises where the defendants lived for particular items, as well as evidence and fruit of the crimes of burglary and theft. In support of his application, the detective provided the issuing magistrate with an affidavit swearing that another officer had responded to a call from a victim who reported that a trolling motor had been stolen from his boat dock and he thought that two of the residents who lived next door, where the defendants also lived, were responsible. The affidavit stated that the victim also told the first responding officer that he had received an e-mail message from his neighborhood association that contained a photograph of a jonboat that had been stolen from another neighbor, and the victim showed the officer the photograph. The first officer then called the detective, who went to the scene.

The officer and the detective looked at the photograph of the stolen jonboat, which was green with white seats, and the victim told them that a few days previously, while standing on the rear deck of his residence and looking next door, he had seen two young men, whom he identified by name, using camouflage-colored spray paint " to conceal a green in color[ ] [j]onboat in their back yard." The victim said he notified the neighbor whose boat had been stolen. The victim called the police when he saw " the same jonboat" on the property next door, but in a different location next to his driveway. The victim compared the boat to the photograph

Page 248

of the missing boat and told the detective that, " from his property, he could observe ... that the boat was missing its hull identification number" and any identifying stickers.

The detective said in his affidavit that he walked to the edge of the victim's property and observed that the jonboat on the property next door " appeared to have its Hull Identification Number (HIN) removed from the rear portion of the boat," and that it " closely resemble[d]" the stolen jonboat depicted in the photograph the victim had received via e-mail. The detective further stated that while he was investigating, another neighbor approached him to report that a wood splitter and several hand tools had been stolen from his residence on the same street and that he observed what appeared to be his wood splitter in the driveway of the subject property.

After that warrant was issued and executed, the detective applied for and obtained a second warrant to search the same premises for the [331 Ga.App. 612] stolen jonboat's " square hull identification plate" with its specific number as well as a roll of multicolored low-voltage wire. The affidavit for the second warrant included all of the information from the first affidavit, plus additional information about two stolen all-terrain vehicles and a jonboat " believed to be stolen," which the detective obtained when he executed the first warrant. The detective averred in his affidavit that he had spoken to one of the two young men whom the victim had identified as spray-painting the jonboat, and the man admitted that he and the other young man had pried the metal HIN plate off the boat and thrown it off the dock into the lake. According to the detective, the young man also said that the other young man had gutted three stolen trolling motors, rolled up the multicolored wiring, and stuck the roll in a storage shed on the subject property.

During the motion to suppress hearing, the detective who applied for and obtained both warrants testified that before the detective arrived at the scene, the victim told one of the officers that a tackle box inside the boat next door belonged to him. The officer went onto the property next door without the defendants' presence or permission, " looked all around the boat," retrieved the tackle box from the boat, searched it, and found a fishing license inside that had been issued to the victim. An officer then gave the tackle box to the victim rather than holding it for evidence, and the State subsequently indicted the defendants for theft by receiving a ...


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