On March 6, 2019, the Court of Appeals of Georgia decided the State v. Lee[i], in which the court examined whether law enforcement officers are required to give a detained co-occupant/defendant an opportunity to object to the officers’ entry into his residence to conduct a search pursuant to the consent of a co-occupant. The relevant facts of Lee, taken directly from the case, are as follows:
So viewed, the undisputed evidence shows that Jason McCoy, Chief of Police for the City of Soperton, received a call from a concerned citizen regarding a social media post allegedly made by Dustin Lee. After Chief McCoy looked at Lee’s social media posts and saw photographs of Lee holding firearms, Chief McCoy deemed the posts to be threatening to himself and law enforcement officers. Aware of Lee’s status as a convicted felon, Chief McCoy requested a warrant from the magistrate court for Lee’s arrest for terroristic threats. After giving a sworn statement, a warrant for Lee’s arrest on the charge of terroristic threats was issued. That same day, Chief McCoy and other law enforcement officers traveled to a home where Lee had been living with a woman and her two children.
Upon their arrival at the residence, Lee and his co-occupant, Vanessa Richardson, stepped out onto the porch. Lee was immediately arrested without incident for making terroristic threats and placed in a patrol car. Richardson was asked by law enforcement if there were any guns in the home. She informed law enforcement that there was .22 rifle inside the home. Richardson then gave law enforcement permission to enter the residence while she retrieved the firearm. Once inside the home, Chief McCoy saw a rifle in plain view that was propped against a wall next to a window in the main living quarters of the residence. Richardson confirmed that it was the rifle she described and handed it over to law enforcement to be collected as evidence.
Lee was later charged with possession of a firearm by a convicted felon.[ii]
Lee filed a motion to suppress and argued that the officers did not seek his consent to enter the residence, even though he was on-scene, albeit in the back of a police car, under arrest. The trial court granted his motion to suppress. The State appealed the trial court’s grant of the motion to suppress to the Court of Appeals of Georgia.
The issue on appeal was whether law enforcement officers are required to give a co-occupant/defendant, who is under arrest in the back of a police car, an opportunity to object to the officers’ entry into the residence to conduct a search pursuant to the consent of a co-occupant.
In granting the motion to suppress, the trial court relied on Preston v. State[iii], decided by the Court of Appeals of Georgia in 2009. In Preston, officers obtained consent to search Preston’s residence from a person who was a co-resident with Preston. The police went to residence while the person who gave consent was not present. They arrested Preston and began to search his residence, without telling him that the search was being conducted pursuant to his roommate’s consent. The trial court denied Preston’s motion to suppress and he appealed. The court of appeals stated
[W]e held that one co-tenant’s desire to consent to a search cannot prevail over a present co-tenant’s stated objection to a search. See id. at 656-657. Although the defendant did not object to the search, the officers failed to engage in a threshold colloquy with the defendant regarding the basis for the search, which the defendant could have erroneously believed was incident to his arrest, and the officers failed to inform the defendant of his absent co-occupant’s permission to conduct the search. Id. at 657. We found that the search was unreasonable under the Fourth Amendment because when an occupant is at the door, law enforcement must inform that occupant they are conducting a search pursuant to a co-occupant’s consent. Id. at 657-658.[iv] [emphasis added]
After examining their prior decision in Preston, the court of appeals stated that the trial court in Lee’s case misapplied that decision when it granted Lee’s motion to suppress. In Preston, the defendant was present in the residence when police searched the residence without telling him that the search was based upon his roommate’s (who was not present) consent.
However, in Lee, the defendant was arrested outside of his residence and secured in a police vehicle according to normal procedure. The officers then questioned Lee’s co-occupant, Ms. Richardson, about weapons and sought consent to enter the residence. She granted consent and they entered and saw the rifle that was seized as evidence. The court of appeals then stated
Although Lee was in police custody near the residence when officers asked his co-occupant for permission to enter the residence, nothing in the record suggests that law enforcement placed Lee in a patrol car prior to entry in order to avoid a possible objection from Lee. See Payton, 326 Ga. App. at 852 (3) (homeowner’s consent gave police officers legal authority for search where there was no evidence that the defendant had been arrested and placed inside a patrol car for the purpose of avoiding a possible objection to the search); Brown v. State, 288 Ga. 404, 406 (2) n. 3 (703 SE2d 624) (2010) (warrantless search authorized where homeowner gave consent to search and no evidence the defendant expressly objected to search or that defendant was removed from the residence by law enforcement for the purpose of avoiding a possible objection); Burke v. State, 302 Ga. App. 469, 470-471 (691 SE2d 314) (2010) (warrantless search of home was authorized based on wife’s consent where defendant was arrested and removed from home and no evidence removal was to avoid an objection of consent). [v] [emphasis added]
Therefore, since there was no evidence that the police specifically secured Lee in the back of the police car to avoid his objection, the search was reasonable based on Richardson’s consent.
As such, the court of appeals reversed the trial court and remanded the case back to the trial court.
[i] A18A1869 (Ga. App. Decided March 6, 2019)
[iii] 296 Ga. App. 655, 658 (675 SE2d 553) (2009)
[iv] Lee, A18A1869