On March 13, 2013, the Court of Appeals of Georgia decided Corey v. State [i] in which they decided the issue of whether an officer may enter a DUI suspect’s garage at their residence without consent in order to conduct a DUI investigation. The facts of Corey, taken directly from the case are as follows:
[O]n the evening of October 10, 2011, he was on duty and in uniform when he received a radio dispatch that an off-duty officer saw someone driving erratically and thought the driver could be intoxicated. [The officer] drove in a marked patrol car to a residential location and made brief contact with the off-duty officer. The officer advised that the vehicle had just pulled into the garage at the address; [The officer] parked at the base of Corey’s driveway. From there, [the officer] saw Corey inside the open garage, half way between her vehicle and the interior entrance to the home, which was on the driver’s side of her vehicle. As [the officer] walked up the driveway and into the garage, he identified himself, asked if he could talk to her, and began having a conversation with her about how she had been driving erratically. [The officer] did not have a warrant, and he admitted that he neither asked for nor received consent from Corey to enter the garage. [The officer] clarified that when he got to the top of the driveway, where the garage door is located, Corey was getting ready to enter her home; in [the officer]’s words, “she was hand on door handle, foot on step,” and she was getting ready to lower the garage door as well. Beginning at about this point an audio recording is available that captures some of the conversation between [the officer] and Corey, but not the very beginning; other parts are unintelligible.
Inside the garage, [the officer] did not smell any alcohol, but Corey was holding a closed pharmacy medication bag in her hand with her name on it and she appeared to be unsteady on her feet. [The officer] asked about the medications and asked other questions in an attempt to determine whether the medications could have made Corey drowsy. Corey stated that she was taking four medications; [the officer] knew that at least one was a sleep-aid, and he saw icons on the bag that indicated some of the drugs could cause drowsiness and dizziness. [The officer] noticed that Corey was unable to stand without swaying toward and away from him, a symptom that he knew to be associated with alcohol consumption. [The officer] also noticed that, despite it being a rainy day and somewhat dark in the garage, Corey had very small pupils, which could indicate the influence of medications. [The officer] also saw that Corey had driven her car “into the end of the garage,” or, into the wall, rupturing a container of liquid and damaging the wall.
Corey asked if she had done something wrong while driving. [The officer] replied that based on what he had learned from an off-duty officer, he was concerned that she had been driving erratically. A different voice on the audio recording then asked “Is there anybody else inside the house?” And Corey can be heard to say “my children.” Corey also said, “I have to urinate.” [The officer] replied, “Well, step right here with me for right now so we can …”; the end of the sentence is not audible on the recording. But in his testimony, [the officer] explained that he “asked her to wait for him” or “to stand by.” Other officers had arrived, and they stood with Corey while [the officer] walked down the driveway.
For the next two minutes [the officer] thoroughly questioned the off-duty officer about Corey’s erratic driving. As a result, [the officer] decided to pursue the investigation further; he also decided that Corey, who was still in the garage, was not free to leave. [The officer] re-entered the garage and asked Corey if she had been drinking. She replied that she had only had a glass of wine and that she was under an extreme amount of stress because her husband was incarcerated. [The officer] and Corey spent the next several minutes discussing the possibility of Corey taking tests to determine if she was unsafe to drive. During this time, she refused to take an alco-sensor test, and [the officer] explained the option of performing field sobriety tests. Also during this time, Corey said “All I want to do is go in the house and fall asleep”; “I just want to go home”; and “my children are in the house.” [The officer] did not allow Corey to go inside.
[The officer] then had a two-minute conversation with his supervisor, during which [the officer] stated that he did not smell alcohol. Based on that conversation and the information he had gathered so far, he decided to continue to investigate whether Corey had been driving under the influence of drugs. He returned to the garage and conducted standard field sobriety examinations. Another officer repositioned [the officer]’s patrol car so that the camera pointed up the driveway and into the garage where the tests were performed. At this point, [the officer] and Corey were in the back left corner of the garage near the interior door to the house; Corey’s vehicle was parked in the middle of a two-car space.
Based on three field sobriety tests, [the officer] determined that Corey was less safe to drive as a result of the influence of drugs or alcohol, and he decided to take her into custody. She was arrested in her garage. [The officer] read Corey the Georgia implied consent information. [The officer] also performed a computer check on Corey’s vehicle registration and insurance and determined that the registration was suspended and that she was without valid insurance. At some point, Corey agreed to state-administered chemical tests of her blood and urine. On the way to the hospital, however, Corey indicated that she would not take the test and that she wanted to go to jail instead. [ii]
Corey later filed a motion to suppress all evidence of DUI obtained in her garage, including her observed manifestations, results of her field sobriety evaluations, and any statements made. The trial court denied the motion to suppress and Corey appealed to the Court of Appeals of Georgia.
Issue One: Was Corey’s garage a constitutionally protected area such that she had a Fourth Amendment reasonable expectation of privacy while there?
The court began its analysis of this issue by noting various United States Supreme Court precedents regarding the protection the Fourth Amendment provides a person’s home. The court stated:
The Fourth Amendment protects against “unreasonable searches and seizures[.]” U.S. Const. Amend. IV. Even with probable cause, absent exigent circumstances or proper consent, warrantless searches and seizures within a home by officers in the pursuit of their traditional law enforcement duties are presumptively unreasonable. See, e.g., Kentucky v. King, ___ U. S. ___ (II) (A) (131 SC 1849, 179 LE2d 865) (2011); Payton v. New York, 445 U. S. 573, 589 (II) (100 SC 1371, 63 LE2d 639) (1980). The protections afforded by the Fourth Amendment extend to the home and its curtilage. Oliver v. United States, 466 U. S. 170, 180 (III) (A) 176 (II) (104 SC 1735, 80 LE2d 214) (1984); see also United States v. Dunn, 480 U. S. 294, 300 (II) (107 SC 1134, 94 LE2d 326) (1987).Thus, even if officers have probable cause to investigate a crime, without a warrant, exigent circumstances, or proper consent, they may not enter a home or its curtilage. See Kirsche v. State, 271 Ga. App. 729, 731 (611 SE2d 64) (2005). [iii] [emphasis added]
Additionally, areas surrounding the home, also known as curtilage, are also provided with Fourth Amendmentprotection. The Supreme Court of Georgia defined curtilage as:
The yards and grounds of a particular address, its gardens, barns, and buildings. Landers v. State, 250 Ga. 808, 809 (301 SE2d 633) (1983). [iv]
The court also noted that the United States Supreme Court stated that four factors should be considered to determine the extent of curtilage surrounding a home. Particularly, the Supreme Court stated:
[C]urtilage questions should be resolved with particular reference to four factors”:
 the proximity of the area claimed to be curtilage to the home,  whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and  the steps taken by the resident to protect the area from observation by people passing by. U.S. v. Dunn. at 301. [v]
The court then noted, that in Corey’s case, her garage was connected to and part of the home itself, such that the house and the garage shared a wall and there was an internal door from the garage into the house. Also, the court noted that Corey was intending to close the garage as she entered the home. Further, there was no evidence that she routinely left her garage open and allowed deliverymen or other members of the public to approach the home through the garage. As such, the court held:
[T]he only evidence in the record shows that Corey treated her garage as part of the home itself and maintained an expectation of privacy therein. Accordingly, even if analyzed as a part of the curtilage, based on these undisputed facts we conclude that Corey’s garage should be placed under the home’s “umbrella” of Fourth Amendment protection. [vi]
Since the court decided that Corey was entitled to Fourth Amendment protection while in her garage the court next had to decide whether there was an exception to the warrant requirement that authorized the officer’s warrantless entry into the garage.
Issue Two: Were exigent circumstances present to justify warrantless entry into Corey’s garage in order to conduct the DUI investigation?
In order for exigent circumstances to validly provide an exception to the Fourth Amendment, in the context of a criminal investigation, there must also be probable cause of a crime or that evidence of a crime is located in the place sought to entered. In this case, the “exigent circumstance” may be the dissipation of alcohol if the officer took the time to obtain a warrant. However, the court noted that, here, the officer did not have “probable cause” to believe that Corey was DUI at the time he approached her and entered her garage. At best, the officer possessed “reasonable suspicion” that Corey may have been DUI, but there was not sufficient evidence to amount to probable cause of DUI. Therefore, since probable cause did not exist, the exigent circumstance exception to the warrant requirement did not apply in this case.
Further, the court noted that even if they considered the fact that the officer may have had “probable cause” that Corey committed the offense of reckless driving, the exigency associated with reckless driving ended when Corey got home and ceased driving. [vii]
As such, the court held the exigent circumstance exception did not apply in this case.
Issue Three: Did Corey consent to the officer’s entry into her garage?
Consent was the primary argument made by the state in this case. Particularly, the state argued that Corey impliedly consented to the officer’s entry into her garage because he began the conversation with her while walking up the driveway and into the garage, and Corey never told him that he could not enter and never told him to leave.
At the outset, the court noted that the State has the burden of proving that the consent was voluntary and the not the product of coercion. [viii] Regarding this issue, the court noted several relevant facts. First, the court noted that the officer testified that Corey never expressly consented to entry into her garage. Second, the officer testified that although he began talking to her as he was walking up her driveway, at the time he entered her garage, she had her hand on her doorknob to enter her home, was walking up the steps to enter the home, and was about to close the garage door. Third, while Corey did not tell the officer to leave, the officer did testify that she expressed concern about her children inside her home and stated that she had to urinate; the officer did not allow her to go inside for either reason. Lastly, the court noted that, even if Corey engaged in a consensual conversation with the officer while in the garage, consent obtained pursuant to an unlawful initial entry and any resulting evidence must be suppressed as “fruit of the poisonous tree.” [ix]
As such, the court held that Corey did not voluntarily consent to the officer’s entry into her garage.
Therefore, the judgment of trial court denying the motion to suppress was reversed.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] A12A2365, 2013 Ga. App. LEXIS 185
[ii] Id. at 2-6
[iii] Id. at 7
[iv] Id. at 10
[vi] Id. at 12
[vii] Id. at 14 (see Threatt v. State, 240 Ga. App. 592 (524 S.E.2d 276 (1999))
[viii] Id. at 15
[ix] Id. at 17