Recently, the Court of Appeals of Georgia decided a case that serves as excellent refresher training in criminal procedure regarding execution of arrest warrants in third party premises, third party consent and the plain view exception to the search warrant requirement of the Fourth Amendment. In Looney v. Statei, deputies received information that a woman, Ms. Croy, had an outstanding arrest warrant. Additionally, they received information from Ms. Croy’s probation officer that she lived in a travel trailer at 2344 Noble Road.
Three deputies, who included a lieutenant, went to the property and spoke to the person that they believed owned the property, Ms. Presley. They told Ms. Presley they were there to serve an arrest warrant on Ms. Croy, and they obtained her consent to go about the property and look for her. There were a total of four travel trailers on the property, and each deputy went to a different trailer. The lieutenant knocked on a trailer door, and, when nobody answered, opened the door and looked inside. He observed several marijuana plants growing in trays. He then “backed out of” the trailer and learned that another deputy had located and arrested Ms. Croy in another trailer.
The lieutenant told Ms. Presley that he found marijuana growing in one of the trailers, and she contacted her son-in-law, Looney, who came to their location. Looney admitted that the marijuana plants seen growing in the trailer were his. The deputies entered the trailer without a search warrant and seized the plants. Looney was arrested.
In court, Ms. Presley testified that she owned the property at 2340 Noble Road and her son owned the property at 2344 Noble Road. She also testified that she was renting Looney the travel trailer where the marijuana was found, and that trailer was located on the property line of 2340 and 2344 Noble Road. She further testified that she was Looney’s landlord, and he paid her $200 per month for rent. Additionally, it was learned in court, that Ms. Croy was found and arrested on the date of the incident in a trailer at 2344 Noble Road where she lived with her husband (Presley’s son). Ms. Croy and Looney did not live together.
Looney filed a motion to suppress which was denied by the trial court. He appealed, raising three issues. First, Looney argues that an arrest warrant for Croy did not authorize the deputies to enter his residence since Croy did not live with him. Second, Looney argues that Ms. Presley, as his landlord, did not have the authority to consent to entry by the deputies into his residence. Third, Looney argues that the plain view exception to the search warrant requirement should not apply in this case because the deputies entered his residence in violation of the Fourth Amendment.
Did the arrest warrant for Croy allow the deputies to enter Looney’s residence in search of Croy?
To answer this issue, the court looked to the case of Steagald v. United Statesii, decided in 1981, by the United States Supreme Court. In this case, DEA agents received a tip that a federal fugitive was located in Steagald’s house, although the fugitive did not live with Steagald. The agents went to Steagald’s home and searched for the fugitive, whom they did not locate. However, they did observe cocaine and Steagald was charged. Ultimately, the Supreme Court heard the case in order to decide whether officers could enter a third party’s residence to search for a wanted person. The Supreme Court held that, unless officers have the consent of the resident or exigent circumstances are present, they must obtain a search warrant to enter a third party’s residence to search for a wanted person. Thus, the entry in Steagald, which was not based on consent or exigent circumstances, violated the Fourth Amendment.
The court also noted that, in Payton v. New Yorkiii, the Supreme Court held that officers, absent consent or exigent circumstances, need an arrest warrant to enter a suspect’s residence to arrest the suspect. Thus, an arrest warrant is sufficient to enter a suspect’s residence to make an arrest, but if an officer seeks to enter a third party’s residence to arrest a wanted person, the officer must also have a search warrant for the location where the officer believes the suspect to be.
When the Court of Appeals of Georgia applied the above rule to the facts of Looney, they noted that, since Croy did not live with Looney, the deputies needed either consent, exigent circumstance or a search warrant to enter Looney’s residence to search for Croy. Clearly they did not have a search warrant. Next, the court looked to whether an exigent circumstance, or in other words, an emergency situation, was present. For example, if Croy would have been likely to escape if officers went to obtain a search warrant, or if Croy was known to be armed and dangerous and would likely injure an officer or another person if officers went to obtain a search warrant, then it is likely a court would agree that exigent circumstances were present. However, here no exigent circumstances, such as the examples given, were present, nor did the deputies claim to have an exigent circumstance.
In light of Steagald, the deputies needed a search warrant or exigent circumstance to enter Looney’s residence to search for the wanted person (Croy). They had neither. Therefore, the only other possible, legal method of entry for the deputies, under Steagald, is by consent, which leads us to the second issue.
Did Ms. Presley, as the defendant’s landlord, have the authority to consent to a search of the defendant’s residence?
In answering this question, the Court of Appeals of Georgia looked to the United States Supreme Court case of the United States v. Matlock.iv In Matlock, officers arrested the defendant in his front yard for armed robbery. They then went to the door of his residence and asked a female, Matlock’s girlfriend, if they could search the house for evidence. She consented and evidence was found in Matlock’s bedroom. Matlock and his girlfriend shared the bedroom. One of the issues before the court was whether a person with common authority over the premises could consent to a search of the premises, such that the fruit of the search would be admissible as evidence against the defendant. The court held that consent to search can be obtained from a defendant or from a third party who possesses “common authority” over or other sufficient relationship to the premises or effects sought to be searched. The court further explained that “common authority” does not rest on the law of property ownership, but rather on mutual use of the property by persons that generally have joint access or control for most purposes, such “that it is reasonable to recognize that a co-inhabitant has the right to permit inspection in his own right and that ‘the others have assumed the risk that one of their number might permit the common area to be searched.’”v The court, in Matlock, then upheld the search based on his girlfriend’s consent.
In Looney, the court must decide whether a landlord, such as Ms. Presley, had sufficient common authority to consent to a search of Looney’s residence. In considering the various facts of the case, the court noted that Ms. Presley did not personally use the trailer after it was rented to Looney. In fact, Looney testified that he considered the trailer “his residence”, and Ms. Presley testified that “I didn’t bother him and he didn’t bother me.” Further, testimony from the lieutenant showed that he did not ask Ms. Presley which trailer Ms. Croy (the wanted person) lived in, and he did not ask if anyone else lived on the property. Thus, when the court considered the facts, they determined that Ms. Presley did not have common authority over the trailer that she rented to Looney.
Further, in Chapman v. United Statesvi, the United States Supreme Court addressed the issue of whether a landlord can consent to a search of his tenant’s residence. In this case, a landlord, who was also the property owner, smelled the odor of whiskey coming from the residence, and he called the police. The landlord gave the officers consent to enter the premises when Chapman was not home so that they could search for evidence of an unlawful distillery. Officer’s entered through an unlocked window and seized evidence. The United States Supreme Court held that, generally, a landlord cannot consent to a search of his tenant’s residence.
Therefore, applying the principals of Matlock and Chapman to Looney’s case, the court held that Ms. Presley did not have sufficient common authority over the trailer she rented to Looney to justify the consent search. Furthermore, the fact that she was the property owner and landlord did not give her the authority to give consent to a search of Looney’s residence.
Does the “plain view” exception to the search warrant requirement justify the seizure of the marijuana from Looney’s residence?
The “plain view” exception to the search warrant requirement was most recently clarified by the United States Supreme Court in Horton v. California.vii In this case, officers had probable cause to believe the proceeds of an armed robbery and weapons used during the armed robbery were located in Horton’s residence. The officers obtained a search warrant for Horton’s residence, but the warrant only authorized them to seize the proceeds of the robbery and did not mention the weapons. While executing the search warrant, the officers did not locate any proceeds of the robbery; however, they did locate the weapons, which were in plain view in the residence. The Supreme Court held that officer’s can seize evidence and/or contraband located in plain view, even if the discovery is not inadvertent.
There are two requirements for item to be seized under the plain view doctrine. First, the officer must be lawfully present in the location where he observes the contraband/evidence. Second, the officer must immediately have probable cause to believe the item is contraband/evidence without making a further intrusion. If the officer has to move the item, for example to gain access to a serial number for a check through NCIC, then the officer will be considered to have conducted a search, rather than a plain view seizure.
Additionally, sometimes an officer will be lawfully present at a location and see an item in “plain view,” but the officer still cannot seize the item without a search warrant. For example, an officer responding to a burglar alarm call at a residence sees, through a window, a marijuana plant growing in the house. The residence is secure (no sign of criminal entry by a suspect), and nobody is home at the residence (to possibly destroy the contraband). The officer was lawfully present when he observed the marijuana plant, but no exigent circumstance exists to allow entry into the premises. Therefore, an officer must obtain a search warrant to enter the residence to seize the marijuana plant.
Now, back to the Looney case, the Court of Appeals of Georgia noted that, normally, an officer gains plain view to an item in a person’s residence (1) by consent to enter the residence, (2) by entry into the residence due to exigent circumstance or (3) by entry into the residence when executing a search warrant.viii Because the deputies did not enter Looney’s trailer by any of these circumstances, the plain view exception to the search warrant requirement does not apply.
In conclusion, the Court of Appeals of Georgia, found that all three issues in this case must be resolved in favor of Looney; therefore, decision of the trial court was reversed and the Court of Appeals held that the marijuana must be suppressed.