On October 27, 2020, the Court of Appeals of Georgia decided Edwards v. State[i], in which the court examined whether officers violated the Fourth Amendment when they entered without consent and without a warrant. The relevant facts of Edwards, taken directly from the case, are as follows:
The evidence shows that officers from the Rome Police Department (“RPD”) responded to a report that Devion Tremaine Neal had pulled a gun on his child’s mother. Neal was not at the scene when the officers arrived, but the victim told police that Neal likely would be at his apartment or at Edwards’ house. The officers also learned that Neal left the scene in a blue, four-door car.
The officers first attempted to locate Neal at his apartment, but the apartment was dark, and the described vehicle was not there. The officers proceeded to Edwards’ house, where an officer from the Floyd County Sheriff’s Department (“FCSD”) met them. The FCSD officer informed the other officers that Neal was a convicted felon and that the vehicle Neal was reportedly driving was registered to Edwards. The vehicle was not at Edwards’ house when the officers arrived.
Video footage from two of the officers’ body cameras was played for the trial court and shows the following. The officers approach Edwards’ home and knock on the door. Edwards answers the door, and one of the officers asks her to step outside of the house. Edwards refuses and asks what is going on and why the officers are there. One officer explains that they “have a situation with Devion Neal” and that he is supposedly driving Edwards’ vehicle. Edwards denies this, stating her mother has her vehicle. The officer then mentions the smell of marijuana and tells Edwards they have two choices: she can give them consent to search her house or they can obtain a search warrant. Edwards replies that they can get a warrant. The officer tells Edwards to step outside of the house and sit outside and that the officers have the authority to “clear the house.” Edwards steps outside as instructed. The officer asks if anyone else is in the home, Edwards responds that her friend is, and a second female steps outside. The officers then enter the house as Edwards asks why they are going inside. After entering, the officers find Neal. It is undisputed that the officers never attempted to obtain a search warrant of Edwards’ house or an arrest warrant for Neal.
During the combined suppression hearing and bench trial, the officers testified that they smelled marijuana as they approached Edwards’ house. One officer confirmed that the officers were concerned about people getting rid of drugs, but that the officers did not enter the home “just because [they] smelled marijuana.” The officers also testified that they entered the home to do “a safety sweep for other persons within the residence,” and that they were concerned Neal was armed. One of the officers acknowledged that they were not in “hot pursuit” of Neal.[ii]
Edwards was arrested and charged with misdemeanor obstruction (OCGA 16-10-24) and hindering the apprehension of a criminal (OCGA 16-10-50) under Georgia law. She filed a motion to suppress and argued that the discovery of Neal, the wanted person, in her home was the result of an unlawful entry into her home. The trial court denied the motion to suppress and held that the odor of marijuana provided probable cause for a search warrant and Neal would have been “inevitably discovered” during the execution of the warrant. Edwards appealed the denial of the motion to suppress to the Court of Appeals of Georgia.
On appeal, Edwards argued that the inevitable discovery exception to the warrant requirement did not apply in her case because the police were not “actively pursuing” a search warrant before entering her residence.
The court first noted that when evidence is obtained in violation of the Fourth Amendment, the exclusionary rule prevents that evidence from being used against the defendant in the prosecution of the case. Further, searches or entry into private premises is generally prohibited by the Fourth Amendment absent a warrant or the presence of one of the exceptions to the warrant requirement. One such exception to the warrant requirement is the “inevitable discovery” exception. The court stated
[T]he courts have identified a number of exceptions to the usual rule of exclusion,” including the inevitable discovery doctrine. Id. Pursuant to this exception, “if the State can prove by a preponderance of the evidence that evidence derived from police error or illegality would have been ultimately or inevitably discovered by lawful means, then the evidence is not suppressed as fruit of the poisonous tree.” Taylor v. State, 274 Ga. 269, 274 (3) (553 SE2d 598) (2001), disapproved on other grounds, State v. Chulpayev, 296 Ga. 764, 783 (3) (b) (770 SE2d 808) (2015). See also Teal v. State, 282 Ga. 319, 323 (2) (647 SE2d 15) (2007).[iii]
Thus, if the State can show that the evidence was inevitably going to be discovered by a lawful method, suppression of the evidence is not required. The court then discussed the requirements for the inevitable discovery doctrine to apply. The court stated
For the doctrine to apply, “there must be a reasonable probability that the evidence in question would have been discovered by lawful means, and the prosecution must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the illegal conduct.” (Citation and punctuation omitted; emphasis supplied.) Mobley, 307 Ga. at 76 (4) (b). This “‘active pursuit rule’ … is a judicial effort to prevent application of the inevitable discovery doctrine from emasculating the search warrant requirement of the Fourth Amendment.” Teal, 282 Ga. at 325 (2).[iv]
Thus, in order for the inevitable discovery doctrine to apply, the police must have applied for a warrant or be in the process of doing so. The court of appeals then noted that there was no evidence in the record that the police had applied for a warrant, were in the process of completing an affidavit or even contemplated a warrant prior to the search. As such, the court of appeals held the inevitable discovery exception to the exclusionary rule did not apply.
The State argued that even the inevitable discovery exception did not apply, the non-consensual entry into Edwards’s home was permissible either as a “protective sweep” or to prevent the imminent destruction of evidence.
The court first noted the applicable legal principles regarding warrantless entry into private residences. The court stated
As a rule to justify a nonconsensual, warrantless intrusion into a person’s home, there must exist probable cause for the arrest or search inside the home and a showing of exigent circumstances Watson v. State, 302 Ga. App. 619, 622 (1) (691 SE2d 378) (2010). Thus, “even if officers have probable cause, absent exigent circumstances or proper consent, warrantless searches and seizures within a home by officers in pursuit of their traditional law enforcement duties are presumptively unreasonable.” Arp v. State, 327 Ga. App. 340, 342 (1) (759 SE2d 57) (2014). Such “[e]xigent circumstances include where an officer is in hot pursuit of a fleeing felon, where an officer reasonably fears the imminent destruction of evidence if entry into the residence is not immediately effected, and where an officer reasonably perceives that a suspect within the dwelling poses a risk of danger to the police or others.” (Citations and punctuation omitted.) Minor v. State, 298 Ga. App. 391, 396-397 (1) (b) (680 SE2d 459) (2009)[v]
The court then examined the applicability of the protective sweep exception to the warrant requirement. The court stated
A protective sweep is a limited search of the premises primarily to ensure officer safety by detecting the presence of other occupants. … [O]fficers are authorized to perform a protective sweep in connection with an in-home arrest when they possess articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. (Citations and punctuation omitted.) State v. Gray, 285 Ga. App. 124, 127-128 (2) (645 SE2d 598) (2007). See also Kirsche v. State, 271 Ga. App. 729, 732-733 (611 SE2d 64) (2005)[vi]
When the court applied the facts of Edwards’s case to the rule above, the court noted that the entry into Edwards’s residence came prior to the in-home arrest. Specifically, Neal was located and arrested as a result of the warrantless entry. The court also noted that there was no evidence that Neal, or anyone, was in the residence that posed a threat to the officer’s safety. The victim’s tip that Neal might be at that residence was not sufficient. As such, the court held the “protective sweep” exception to the warrant requirement did not apply.
Destruction of Evidence
The court first examined the legal principles for the “destruction of evidence” exception to the warrant requirement. The court stated
[E]xigent circumstances may be found where an officer reasonably fears the imminent destruction of evidence if entry into the residence is not immediately effected.” (Citation and punctuation omitted.) James v. State, 294 Ga. App. 656, 659 (670 SE2d 181) (2008). However, “the presence of contraband [inside a residence] without more does not give rise to exigent circumstances.” (Citation and punctuation omitted.) Curry v. State, 271 Ga. App. 672, 675 (2) (610 SE2d 635) (2005).[vii]
In this case, assuming the odor of marijuana provided probable cause, the record contained no evidence that someone was inside the residence and posed a threat for the imminent destruction of the marijuana.
Therefore, the court of appeals reversed the trial court and held that the trial court should have granted the motion to suppress.
[i] A20A0888 (Ga. App. October 27, 2020)
[ii] Id. at 2-4
[iii] Id. at 6 (emphasis added)
[iv] Id. at 6-7 (emphasis added)
[v] Id. at 8-9 (emphasis added)
[vi] Id. at 9 (emphasis added)
[vii] Id. at 11 (emphasis added)