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Owens v. State

Court of Appeals of Georgia

June 16, 2015

OWENS
v.
THE STATE

Custodial statement. Gwinnett Superior Court. Before Judge Hamil.

Wayne L. Burnaine, for appellant.

Daniel J. Porter, District Attorney, Nigel R. Lush, Assistant District Attorney, for appellee.

MCFADDEN, Judge. Ellington, P. J., and Dillard, J., concur.

OPINION

Page 784

McFadden, Judge.

Allen Porter Owens appeals from his conviction, after a bench trial, of possession of marijuana with intent to distribute. OCGA § 16-13-30 (j). At trial, Owens asserted that police officers obtained inculpatory statements from him in violation of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (86 S.Ct. 1602, 16 L.Ed.2d 694) (1966). Finding no violation, the trial court considered

Page 785

the statements in determining that Owens was guilty of the charged offense. Owens argues that this was error. Because Miranda did not apply to some of Owens's inculpatory statements, and because Owens had been given Miranda warnings when he made other inculpatory statements, we affirm.

[332 Ga.App. 526] 1. Facts.

By asking the trial court not to consider his statements at the bench trial, Owens essentially sought to have the statements suppressed. Owens did not file a written motion to suppress. See OCGA § 17-5-30 (b) (requiring motions to suppress to be filed in writing); Copeland v. State, 272 Ga. 816, 817 (2) (537 S.E.2d 78) (2000) (oral motions to suppress are procedurally defective). Nevertheless, the trial court decided the issue of whether the statements were inadmissible because of a Miranda violation, and the state neither objected at trial to the lack of a written motion to suppress nor has argued on appeal that the issue was waived by Owens's failure to file a written motion. Accordingly, we will review the trial court's ruling on the statements.

In considering that issue, " we owe no deference to the way in which the trial court resolved questions of law, but we generally accept [his] findings about questions of fact and credibility unless clearly erroneous." Edenfield v. State, 293 Ga. 370, 374 (2) (744 S.E.2d 738) (2013) (citation and footnote omitted). In this case, the trial court expressly found the testimony of law enforcement officers more credible than that of Owens.

Those officers testified that on August 20, 2010, a group of several probation and police officers initiated a search of the house of a probationer, James Marshall Brown, pursuant to a Fourth Amendment waiver in the terms of Brown's probation. The officers asked other persons in the house, including Owens, to remain in the living room while the officers spoke with Brown and performed the search. Owens was not handcuffed, and the officers did not consider him to be under arrest.

As Brown took two officers to his bedroom, another officer stood in the doorway between the living room and the kitchen. From that position, he smelled an overwhelming odor of raw marijuana and saw on the kitchen table a pile of green leafy material that appeared to be marijuana. The officer asked Brown, who had returned to the living room, if the material was marijuana. When Brown replied that he did not know, Owens spoke and stated that it was marijuana. Owens also volunteered that the marijuana on the table was his. The officer asked if there was more marijuana in the house, and Owens replied, " There might be some, I don't know." A search of ...


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