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State v. Burgess

Court of Appeals of Georgia, Fourth Division

March 14, 2019

THE STATE
v.
BURGESS, and BURGESS
v.
THE STATE

          DILLARD, C. J., DOYLE, P. J., and COOMER, J.

          Doyle, Presiding Judge.

         Steve Burgess was indicted on possession of methamphetamine with intent to distribute, [1] possession of a Schedule II controlled substance, [2] and two counts of unlawful possession of explosive devices.[3] After a hearing on Burgess's motion to suppress, the trial court entered an order granting in part and denying in part the motion. In Case No. A18A1495, the State appeals from the order, arguing that the trial court erred by suppressing certain evidence and statements, while in Case No. A18A1496, Burgess argues that the trial court erred by denying in part his motion, finding that the search of his house was authorized under a family violence ex parte temporary protective order ("TPO"), and admitting certain evidence and his post-arrest statements. For the reasons that follow, we reverse the trial court's order to the extent that it denied in part Burgess's motion to suppress and affirm to the extent it granted in part the motion. Officers were not authorized by the TPO to enter Burgess's house without a warrant authorizing entry, and neither consent nor the good faith exception existed in this case to obviate the need for a warrant.

         The record shows that on May 31, 2013, A. S. appeared in superior court in Gilmer County, Georgia, and filed a verified petition for a TPO pursuant to OCGA § 19-13-3 against Burgess, with whom A. S. had a long-term relationship and shared a child. There is no transcript of the ex parte TPO hearing, but A. S. testified at the suppression hearing. According to her testimony, she and Burgess became romantically involved in 2009, and she moved into his home at 2094 Talking Rock Road at that time. The two later had a child together, but Burgess and A. S. increasingly fought, resulting in an incident in March 2013 when Burgess was physically violent, hitting her and brandishing a weapon when she retreated to her vehicle with their child; although she left their home with the child for a short time, she returned to live at the house with Burgess. On May 15, 2013, after another altercation, A. S. left the home and drove herself and the child to a hospital to receive treatment for A. S.'s purported illness; on the way, she received a phone call from Burgess making threats to her, including threatening to blow up or kill her family. At the hospital, medical providers observed injuries on A. S. consistent with abuse, and she was referred to a case worker, who sent A. S. to a domestic violence shelter. At the shelter, A. S. received information about obtaining a protective order, and after staying with her grandmother briefly, she moved to a safe house.

         At the end of May, while at the safe house, A. S. filed a TPO petition in which she alleged that Burgess had threatened to kill her. The same day, A. S. appeared before a superior court judge and testified under oath about the incidents with Burgess; the judge later contacted an investigator from the district attorney's office to interview A. S. after the hearing. A. S. testified that she told the judge about the threat and other incidents, and that Burgess had multiple guns and explosives in their home.

         In the order granting A. S.'s TPO petition, the judge (1) directed that A. S.'s address be kept confidential, (2) restrained Burgess from going to A. S.'s or their child's residence, school, or workplace; (3) restrained Burgess from coming within 100 yards of A. S. or their child; (4) prohibited Burgess from having any contact with A. S. through various means of communication; (5) awarded A. S. temporary custody of their minor child; (6) allowed A. S. to go into 2094 Talking Rock Road and take personal property she listed on her petition on a date determined by the sheriff; and (7) further ordered "that Pickens Co. Sheriff remove all firearms and explosives from the resid. and secure the same."

         That same day, an agent from the Georgia Bureau of Investigation ("GBI") interviewed A. S. about any knowledge she may have about homicides allegedly committed by Burgess and his possession and sale of methamphetamine. A. S. described various events that led her to believe Burgess committed a homicide, alleged that Burgess was selling methamphetamine, which she stated could be found at 2094 Talking Rock Road, and described the location of the explosives and firearms. She also offered to give the agent keys to 2094 Talking Rock Road and consented to a search of that property and any other property related to her. The interview ended around 7:00 p.m. that night, and the agent thereafter

got resources together. I was understanding there was a possibility or what had already been signed a protective order for [A. S.] to conduct further investigation into what was going on at the 2094 residence, whether there was a homicide or not and follow-up on information that she provided. There were also drugs and guns on the property there.

         An agent testified that the following Monday, June 3, he met with members of the Pickens County Sheriff's Office and a bomb technician in order to serve the TPO. The agent and other officers served the order on Burgess that morning, and the agent testified that Burgess waited outside the residence in the driveway and in and around a patrol car while the officers searched; the agent did not recall that Burgess was in handcuffs at any point. Explosives were found in the bathroom closet, where A. S. described them as being stored. Agents testified that they believed the TPO gave them authority to enter the property and seize the items without a separate warrant.

         Simultaneous to the search of the house, agents searched the exterior of the grounds around the house and an outbuilding/garage about 25 feet from the back porch; they discovered therein a small amount of methamphetamine in the lid of a spray paint can, which an agent testified could have held explosive blasting caps. After discovery of the methamphetamine, an agent read Burgess his Miranda[4] rights and told him they had found methamphetamine; Burgess agreed to continue to speak to the agent, explaining that he inherited the explosives from his father. The agent presented Burgess with a "Waiver of Constitutional Rights to a Search Warrant" form that allowed the agents to search the entire property, including any vehicles, residence, outbuildings, papers, materials, and any other property they so chose, which Burgess signed. Firearms were found throughout the property and in a vehicle, and an additional large amount of methamphetamine was found in the loft or ceiling area of the same outbuilding/garage. Burgess also opened a safe for the agents, which safe contained $2, 300 in currency. At that point, Burgess was taken to the police station, was re-read Miranda rights, and was interviewed. Burgess answered the agent's questions, going so far as to make a phone call to his alleged methamphetamine supplier to assist agents in their investigation.

         Burgess filed a motion to suppress, which he later amended, arguing that the search was not performed with a warrant, probable cause, or valid consent, among other things. After a hearing on the motion, the trial court granted it in part and denied it in part. The court found that although officers lacked a warrant, the TPO served as a "valid order" giving officers authority to enter Burgess's home and seize explosives and firearms. The court, however, found that the order's language limited the scope of the officers' authority to entry only of the main house and not the detached outbuilding/garage or the vehicle, and it suppressed evidence of the methamphetamine and any firearms discovered outside the main house. The court also suppressed statements made by Burgess during the pendency of the search prior to officers transporting him to the police station. The court found that Burgess's execution of the written waiver and any verbal consent to search the outbuilding/garage and vehicle were not freely and voluntarily given because the officers did not have the initial authority under the TPO to enter any building other than the main house. The trial court, however, found that Burgess freely and voluntarily waived his rights prior to giving his statement at the police station and did not suppress the interview. The State and Burgess appeal.

In Miller v. State, [5] [the Georgia Supreme Court] reiterated three fundamental principles which must be followed when conducting an appellate review of a trial court's ruling on a motion to suppress. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and h[er] findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment. These principles apply equally whether the trial court ruled in favor of the State or the defendant.[6]

         1. Burgess argues that the TPO did not constitute a valid search warrant and was not a substitute for a search warrant authorizing entry to the home. We agree.

         The Fourth Amendment of the United States Constitution provides that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[7]
As the text makes clear, the ultimate touchstone of the Fourth Amendment is reasonableness. Our cases have determined that where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, reasonableness generally requires the obtaining of a judicial warrant. Such a warrant ensures that the inferences to support a search are drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.[8]

         Additionally, the Georgia Constitution protects against unreasonable search and seizures, [9] adopting similar language to the Fourth Amendment and providing that no

warrant shall issue except upon probable cause supported by oath or affirmation particularly describing the place or places to be searched and the persons or things to be seized. In deciding the question of probable cause, the magistrate must make a practical, common-sense decision whether, given all the circumstances, there is a reasonable probability that the fruits, instrumentalities, or evidence of a crime will be found in a particular place.
Besides these constitutional provisions, the legislature has codified additional requirements for the issuance of search warrants. A search warrant may be issued only to a law enforcement officer charged with the duty of enforcing criminal laws, the officer must state sufficient facts in writing to show probable cause that a crime is being committed or has been committed, a judicial officer must evaluate and independently decide whether the officer has shown probable cause, and the search warrant must be executed within ten days and a copy left with a person or at the premises where the items were seized.[10]

         Moreover, this State's warrant statute states that "[a] search warrant shall not be issued upon the application of a private citizen or for his aid in the enforcement of personal, civil, or property rights."[11]

         In this case, A. S. applied for a TPO "[under Article 13 of Title 19] by filing a petition with the superior court alleging one or more acts of family violence."[12] "Upon the filing of a verified petition in which the petitioner alleges with specific facts that probable cause exists to establish that family violence has occurred in the past and may occur in the future, the court may order such temporary relief ex parte as it deems necessary to protect the petitioner or a minor of the household from violence."[13] Under this statutory scheme, "[t]he court may. . . grant any protective order . . . to bring about a cessation of acts of family violence."[14] An order under this code section may:

(1) Direct the respondent to refrain from such acts;
(2) Grant to a party possession of the residence or household of the parties and exclude the other party from the residence or household;
(3) Require a party to provide suitable alternate housing for a spouse, former spouse, or parent and the parties' child or children;
(4) Award temporary custody of minor children and establish temporary visitation rights;
(5) Order the eviction of a party from the residence or household and order assistance to the victim in returning to it, or order assistance in retrieving personal property of the victim if the respondent's eviction has not been ordered;
(6) Order either party to make payments for the support of a minor child ...

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