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Heitkamp v. State

Court of Appeals of Georgia, Fourth Division

August 31, 2017


          DILLARD, C. J., RAY, P. J., and SELF, J.


         Following an incident in Cobb County where police officers discovered contraband after entering an apartment without a warrant, Patrick Heitkamp was charged with one count each of possession of more than one ounce of marijuana, possession of marijuana with intent to distribute, possession of a controlled substance, theft by receiving, and two counts of possession of methamphetamine. The trial court denied Heitkamp's motion to suppress the contraband, and this Court granted Heitkamp's application for interlocutory review of that order. On appeal, Heitkamp argues that the officers lacked probable cause, exigent circumstances or any other legal justification for entering the apartment and that the warrantless entry was illegal. He further argues that consent to the search of his person was obtained pursuant to the warrantless entry and was, therefore, inadmissible. Because we find that there was not probable cause for the arrest of Heitkamp or the other residents of the apartment at the time of entry into the apartment, we reverse.

         In reviewing the grant or denial of a motion to suppress, we construe the evidence most favorably toward upholding the trial court's findings and judgment. Leming v. State, 235 Ga.App. 710, 711 (1) (510 S.E.2d 364) (1998). The trial court's findings as to disputed facts and credibility must be adopted unless clearly erroneous. State v. Bowen, 231 Ga.App. 95, 95 (498 S.E.2d 570) (1998).

         The evidence adduced at the motion to suppress hearing showed that at 10:30 p.m. on April 23, 2015, Officer (now Detective) McElwain of the Cobb County Police Department was dispatched to the Chattahoochee Apartment Complex after Richard Hall, the apartment's maintenance man, called 911. Hall reported a suspicious white vehicle backed into a parking spot. Because of the heavy foot-traffic between the vehicle and one of the apartment buildings, Hall suspected drug activity. He did not smell any illegal substances, nor did he observe any hand-to-hand transactions. However, he observed a lot of people leaning inside the vehicle.

         Officer McElwain and a second officer ran the vehicle tag number on their way to the apartment complex and discovered that the vehicle had been reported stolen. Once the officers arrived, Hall described the man who had been inside the vehicle as a white male wearing jeans, no shirt, and with tattoos. The location of the tattoos on the body was not specified.

         Hall believed that the tattooed male had entered the 3800 building of the apartment complex. Officer McElwain and the other officer proceeded to the building and began knocking on doors. One of the residents told the officers he had seen a tattooed white male wearing jeans and without shoes walking a large, tan dog in front of the same building earlier. The resident believed this man lived in one of the apartments downstairs. The officers knocked on approximately eight doors before reaching the apartment in which Heitkamp was found.

         When Heitkamp opened the door, a tan dog ran out of the apartment. At the same time, two white males who were standing behind Heitkamp ran further into the apartment. One of the men, later identified as Christopher Barfield, matched the description of the man believed to have been seen in the stolen vehicle; he was a white male with visible tattoos on the back of his arms, and he was wearing jeans. However, Barfield was not shirtless, as he wore a black tank top. Barfield ran around the corner, where the officers could no longer see him. The other white male ran into the living room, while Heitkamp turned and walked away from the door, though not at a fast pace.

         Officer McElwain testified at the motion to suppress hearing that the whole thing occurred so fast that there was not an opportunity to say anything before everyone took off. He explained that he entered the apartment at that moment because he believed that Barfield was their suspect since he ran to another part of the apartment as soon as he saw the officers and because he matched the description given by Hall and the other resident. Officer McElwain further testified that he believed that he had probable cause to arrest Barfield for theft of the vehicle and that he believed Barfield posed a threat when he retreated into a room in the apartment where the officers could no longer see him. He testified he had reason to fear for his and the other officer's safety at this point because his experience led him to conclude that weapons might be involved when there is a stolen vehicle involved and because the men ran away at the sight of the officers. However, he acknowledged there was no indication that weapons were present nor did he notice any threatening behavior from Heitkamp or anyone else.

         After entering the apartment, Officer McElwain observed methamphetamine in plain sight on multiple surfaces in the apartment. He and two other officers then removed the apartment's occupants, secured the apartment, applied for a search warrant, and interviewed the five individuals that were in the apartment after they had been given their Miranda warning. Officer McElwain also patted down the individuals, including Heitkamp, before the execution of the search warrant. He felt a large bulge in Heitkamp's front right pocket. He asked Heitkamp if he could search his person, and Heitkamp consented. Officer McElwain pulled a clear bag containing 16.5 grams of methamphetamine from the pocket. Upon the search of the apartment pursuant to a warrant, officers found a laptop bag filled with 36 grams of marijuana and a scale near where Heitkemp slept, as well as lines of methamphetamine, scales, and small baggies in essentially every room of the apartment.

         This Court has recognized that a private home is "an unquestionable zone of privacy under the Fourth Amendment, and when a residence is involved, no amount of probable cause can justify a warrantless search or seizure absent exigent circumstances." (Citation and punctuation omitted.) State v. Sims, 240 Ga.App. 391, 392 (523 S.E.2d 619) (1999). Therefore, the State bore the burden of establishing that the officers had both probable cause and exigent circumstances to justify their intrusion into the apartment. See Snider v. State, 292 Ga.App. 180, 182 (663 S.E.2d 805) (2008) ("It follows that the officers' entry into the hotel room without consent or a warrant violated [the defendant's] Fourth Amendment rights, unless the evidence showed that the officers had both probable cause for an arrest or search inside the room and exigent circumstances") (citation omitted).

         1. Heitkamp argues that the trial court erred by denying his motion to suppress because the officers did not have probable cause to arrest Barfield and, thus, that the warrantless entry of the apartment was not justified. Based upon these facts, we do not believe the police had enough information at the time they encountered Barfield to conclude that he was the person seen in the stolen car. Certainly, they possessed a reasonable suspicion to further investigate that possibility, but we cannot say they had probable cause to arrest him at that time or to enter the home without a warrant.

         This Court has explained that "[p]robable cause exists if the arresting officer has knowledge and reasonably trustworthy information about facts and circumstances sufficient for a prudent person to believe the accused has committed an offense." (Citation and punctuation omitted.) Brown v. State, 262 Ga. 728, 729 (2) (a) (425 S.E.2d 856) (1993). Accordingly, "when a court considers whether an officer had probable cause to arrest a suspect, the court must focus on the facts and circumstances then known to the officer, and it must inquire whether those facts and circumstances could lead a prudent person - that is, a reasonable officer - to conclude that the suspect probably has committed an offense." (Citation omitted; emphasis in original.) Hughes v. State, 296 Ga. 744, 748-749 (2) (770 S.E.2d 636) (2015).

The probable cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances. The substance of all of the definitions of probable cause is reasonable ground for belief of guilt, and the belief of guilt must be particularized with respect to the person to be searched or seized. To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively ...

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