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State v. Kazmierczak

Court of Appeals of Georgia

March 30, 2015

THE STATE
v.
KAZMIERCZAK

Cert. applied for.

Motion to suppress. Cobb Superior Court. Before Judge Cox, pro hac vice.

D. Victor Reynolds, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellant.

Dupree & Kimbrough, Hylton B. Dupree, Jr., Blake R. Carl, for appellee.

OPINION

Page 474

Ray, Judge.

Peter Joseph Kazmierczak was charged by accusation with possession of marijuana with intent to distribute and manufacturing marijuana

Page 475

(OCGA § 16-13-30 (j) (1)). Kazmierczak filed a motion to suppress the evidence, contending that the search of his residence was illegal because it was conducted under a search warrant that was issued solely based upon the strong odor of marijuana that police detected when they visited the home. The trial court granted the motion to suppress in reliance on precedent from this Court which supported the defendant's position. The State appeals, contending that our previous rulings were incorrect to hold that the detection of odor of drugs alone could not provide a legal basis for the issuance of a search warrant. Because we agree, we reverse and remand this case to the trial court.

Viewing the evidence in the light most favorable to uphold the trial court's findings and judgment, Henson v. State, 314 Ga.App. 152, 153 (723 S.E.2d 456) (2012), the record shows that on February 6, 2013, law enforcement officers assigned to the Marietta-Cobb-Smyrna Narcotics Unit went to Kazmierczak's residence to conduct a " knock and talk" after receiving a complaint that the residence was being used to manufacture marijuana. While three of the officers remained out of sight, two of the officers approached the house and knocked on the front door. An adult female came to the door and told the two officers to go to the garage, and they complied.

When the officers entered the garage, they detected the odor of raw marijuana. The female, later identified as Kazmierczak's mother, greeted the officers in the garage and asked them to wait there for a second while she secured a large dog. Upon her return, the officers explained to her that they had received a complaint about marijuana manufacturing taking place at the residence, and they asked about the whereabouts of Kazmierczak. She told the officers that her son was not there and asked them if she could help them with anything, stating that she was the owner of the residence. The officers then asked her if they could come inside, and she consented. Immediately upon entering the residence, the officers detected a stronger, " overwhelming" odor of raw marijuana.

Based on this odor and without venturing further into the residence, the officers decided to seek a search warrant. Two officers remained in the entryway of the residence while they waited for the [331 Ga.App. 818] search warrant, and no search of the residence was conducted prior to the issuance of the search warrant.[1]

The affidavit for the search warrant indicated that the probable cause for the warrant was based solely on the narcotics officers' detection of the strong odor of raw marijuana inside the residence. The affidavit further indicated that the officers detected the odor during the " knock and talk" investigation concerning possible drug activity at the residence. The affidavit also set forth the training and experience of the narcotics officers who were involved in the warrant application. Finding these facts to be sufficient to establish probable cause to believe that marijuana could be found on the premises, a magistrate judge issued a search warrant for Kazmierczak's residence.[2]

Following a hearing on Kazmierczak's motion to suppress, the trial court concluded that the odor of marijuana alone could not serve as the basis for the search warrant of the residence. As a result, the trial court found that the search warrant was issued without the requisite showing of probable cause, and it suppressed the evidence seized from the subsequent search. The State appeals from the trial court's ruling.

In State v. Palmer, 285 Ga. 75 (673 S.E.2d 237) (2009), our Supreme Court described the standards applicable to the various levels of judicial scrutiny involved in the warrant process. A magistrate determines if

Page 476

probable cause exists to issue a warrant by making

a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The trial court may then examine the issue as a first level of review, guided by the Fourth Amendment's strong preference for searches conducted pursuant to a warrant, and the principle that substantial deference must be accorded a magistrate's decision to issue a search warrant based on a [331 Ga.App. 819] finding of probable cause. ... Our appellate courts will review the search warrant to determine the existence of probable cause using the totality of the circumstances analysis ... to determine if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant. ... In reviewing the trial court's grant or denial of a motion to suppress, we apply the well-established principles that the trial court's findings as to disputed facts will be upheld unless ...

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