Motion to suppress. Gordon Superior Court. Before Judge Nelson.
Evans & Rhodes, Donald C. Evans, Jr., for appellant.
Rosemary M. Greene, District Attorney, Erle J. Newton III, Assistant District Attorney, for appellee.
BOGGS, Judge. Phipps, C. J., and Doyle, P. J., concur.
Danny Bowman appeals from the trial court's order denying his motion to suppress evidence seized during a search of his home. Because the record reveals no probable cause for the search, we reverse.
When reviewing a suppression ruling, we construe the evidence favorably to the trial court's findings and judgment. See Galindo-Eriza v. State, 306 Ga.App. 19 (701 S.E.2d 516) (2010). So viewed, the evidence shows that on June 21, 2013, a Gordon County sheriff's detective, Eric Burns, received information that a stolen Ford F-250 truck could be found on Bowman's property. Around midnight, the detective and other officers approached the front door of Bowman's home, knocked, and identified themselves. An individual opened the door and, upon seeing uniformed officers, immediately slammed it shut. While the door was open, Burns saw a battery charger inside the house that was the same color as a charger reportedly located within the truck when it was stolen.
Concerned that someone might try to escape through the back door, the detective sent a deputy to the rear of the residence. The deputy went behind the house and saw a Ford F-250 tailgate that appeared to have been spray-painted leaning against the back porch. He reported this discovery to the detective, who began the process for obtaining a search warrant. While waiting on the warrant, the deputy drove further back into the property and found the stolen truck under a tarp. The search warrant eventually arrived, and officers located a methamphetamine lab, as well as items belonging to the truck's owner, inside Bowman's home.
Bowman was indicted for attempt to manufacture methamphetamine, possession of ephedrine, possession of pseudoephedrine, and theft by receiving stolen property. He subsequently moved to suppress all evidence seized by police, arguing that officers located the tailgate and stolen truck when they illegally entered his back yard [332 Ga.App. 408] and that nothing visible from the home's front door supported a search warrant. The trial court agreed with Bowman as to the stolen truck. Finding that the deputy improperly searched the rear of the property without a warrant, the trial court suppressed all evidence of the truck discovered under the tarp.
As to items seized from the house, however, the trial court found that probable cause supported the search. It denied Bowman's motion to suppress and motion for reconsideration, but issued a certificate of immediate review. We granted Bowman's interlocutory application, and this appeal followed.
1. Citing OCGA § 17-5-30, Bowman argued below that the search was illegal and lacked probable cause, requiring suppression of all seized evidence. Without dispute, the officers' initial approach to Bowman's house constituted a permissible, first-tier " knock and talk" encounter. See Galindo-Eriza, supra, 306 Ga.App. at 22 (1); State v. Ealum, 283 Ga.App. 799, 801, n. 2 (643 S.E.2d 262) (2007). The detective was entitled to be at the front door when it opened. His view of the battery charger, therefore, was permissible. See Myers v. State, 321 Ga.App. 676, 679 (742 S.E.2d 494) (2013) (officers' observation of stolen merchandise inside car could be used as basis for warrant because " officers were in a place they were lawfully entitled to be" when they saw merchandise).
The deputy's discovery of the tailgate, however, is problematic. The Fourth Amendment prohibits an officer " from entering [a] home or its curtilage without a warrant absent consent or a showing of exigent circumstances." Kirsche v. State, 271 Ga.App. 729, 731 (611 S.E.2d 64) (2005). The yard immediately surrounding a dwelling falls within the curtilage of a home. See id. at 733. The deputy did not have a warrant or consent when he went behind the house, and the State offered no evidence of an emergency situation. In fact, the State concedes the deputy was not authorized to be in the back yard. Consequently, his observation of the tailgate was illegal, provided no basis for a probable cause finding, and required suppression of the tailgate ...