On February 10, 2020, the Court of Appeals of Georgia decided Little v. State [i], which serves as an excellent review of the law related to consent to enter private premises and non-consensual entry based upon conditions of probation.  The relevant facts of Little, taken directly from the case, are as follows:

[T]he record shows that in 2008, Little pled guilty in Catoosa County to several controlled substance offenses and possession of a firearm by a convicted felon, and the trial court imposed a total sentence of five years in prison, to be followed by fifteen years on probation. In late February 2017, Chattooga County sheriff’s department narcotics agent Gary Campbell “received information” from an unidentified source that Little was “moving large amounts of methamphetamine” and lived in a camper behind his mother’s house in Chattooga County. Campbell knew at that time that Little was on probation following convictions for possession of methadone and methamphetamine.

Consequently, on March 7, 2017, Campbell and two other agents drove to Little’s camper and knocked on the door. Little opened the door, “turned about as white as [a] piece of paper[,] and started shaking.” Campbell identified himself and the agents, told Little that Campbell had received information that Little was selling large amounts of methamphetamine, and asked if the agents could enter the camper to speak with Little.  Little backed up into the camper, and the agents followed him in. As the agents followed him in, Little turned around and began walking away while trying to empty his pockets.

Once inside the camper, Campbell saw hunting knives, a pair of brass knuckles, a small ziplock bag, a “meth pipe,” and a set of electronic scales, all in plain view. Due to the presence of weapons, another agent placed Little in handcuffs but told him that he was not under arrest. Little told the agents that his sister also was in the camper, and, at Campbell’s request, the sister emerged from a back room. Campbell asked her to empty her pockets after learning that she also was on probation. She complied and removed from one of her pockets a clear plastic “baggie” that contained what appeared to be methamphetamine.

Campbell requested and received consent from Little to search the camper. Around the same time, another agent conducted a pat-down search of Little and found $3,129 in his wallet and pockets. Little told the agents that “he could help [them] if [they] could help him.” Campbell responded that the agents “couldn’t do anything [until they] recovered the rest of the methamphetamine that he possibly had in the trailer” and asked Little “where it was at.” Little directed the agents to a black bag on a bed, in which they found various controlled substances and drug paraphernalia. Little subsequently made several incriminating statements to the agents after being informed of, and waiving, his Miranda rights.[ii]

Little was indicted on various drug charges related to trafficking and distribution of controlled substances under Georgia law.  He filed a motion to suppress evidence and the trial court denied the motion.  During a bench trial, Little was convicted of all counts.  He appealed the denial of his motion to suppress to the Court of Appeals of Georgia.

The first issue on appeal was whether Little consented to the agents entry into his trailer.  Consent is a valid exception to the Fourth Amendment’s warrant requirement.  However, consent must be free and voluntary.  The court examined various legal principles related to consent and stated

[A]lthough silence in the face of a request for permission to search may, when accompanied by other conduct, sometimes be interpreted as acquiescence, such acquiescence cannot substitute for free consent.” (Punctuation omitted.) State vWilliams, 212 Ga. App. 164, 165 (1) (441 SE2d 501) (1994). Thus, “[t]he State cannot meet its burden of demonstrating voluntary consent when the record shows only acquiescence to a claim of lawful authority.” (Citation omitted.) Johnson vState, 297 Ga. App. 847, 849 (678 SE2d 539) (2009); see also State vAustin, 310 Ga. App. 814, 817 (1) (714 SE2d 671) (2011) (“[V]oluntariness must reflect an exercise of free will, not merely a submission to or acquiescence in the express or implied assertion of authority“) (citation omitted); State vHarris, 236 Ga. App. 525, 528-529 (2) (b) (ii) (513 SE2d 1) (1999) (the defendant’s act of emptying her purse-without saying anything-in response to an officer’s request to do so, “may well have signaled acquiescence, [but] did not show consent“)[iii]

Thus, acquiescence or submission to officers is not sufficient to qualify as free and voluntary consent under the Fourth Amendment.

The court of appeals then examined the facts of Little’s case to determine if consent was present.  First, the court noted that there was no evidence the agents identified themselves as law enforcement before Little opened the door, therefore, there was no evidence that he knew he was opening his door for law enforcement officers.  Second, the court of appeals noted that when agents requested permission to enter the trailer, there is no evidence, based on Agent Campbell’s testimony, that Little engaged in any conversation or discussion with the agents, but rather he backed into the trailer and then turned his back on the agents.  Based on Agent Campbell’s testimony, there is no evidence that he verbally granted consent or affirmatively or voluntarily granted consent in any manner.  Rather, the evidence demonstrates, at best, Little’s “submission to or acquiescence in the express or implied assertion of authority” by the agent.

As such, the court of appeals held that the agents failed to meet the burden of showing voluntary consent to enter Little’s residence.

The second issue on appeals was whether the conditions of Little’s probation, which were imposed in another county, authorized the agent to make non-consensual entry into Little’s residence.

The court first noted the legal principles that control this issue and stated

[T]he Fourth Amendment applies to probationers as well as other citizens.” (Citations omitted.) Jones vState, 282 Ga. 784, 784-785 (1) (a) (653 SE2d 456) (2007). While probationers’ Fourth Amendment rights may be restricted, any such restriction requires a “valid law, legally authorized regulation, or sentencing order” giving notice to the probationer of the restriction. Id. at 785-788 (1) (a). “[A] waiver of Fourth Amendment rights as a condition of parole, probation, or pretrial release,” however, “cannot be used to justify a search by law enforcement officers who were unaware of the waiver at the time of the search.” Cantrell vState, 295 Ga. App. 634, 638 (2) (673 SE2d 32) (2009).[iv]

The State argued that the agents were authorized to enter Little’s residence without his consent because of terms of his active probation that authorized such non-consensual entry.  However, the court of appeals noted that the State offered no evidence at the motion to suppress that any of the agents were aware that Little was subject to such search conditions as a part of his probation.

As such, the court of appeals held that the State failed to meet its burden that the probation conditions were a valid exception to the warrant requirement of the Fourth Amendment and allowed the agents to enter, absent a warrant or consent.

The third issue on appeal was whether, after the agents were in Little’s residence pursuant to an unauthorized entry, his subsequent consent to search was valid despite the unauthorized entry.

The court noted the applicable legal principles for this issue and stated

[W]here, as here, the consent followed an illegal entry into the defendant’s home, we examine the totality of the circumstances to determine whether the consent was voluntary because it was obtained by means sufficiently attenuated or distinguishable from the illegality to be purged of any taint, or whether the consent was invalid because it was the product of and tainted by the illegality. . . . The relevant factors to be considered include the temporal proximity to the illegal entry, the intervening circumstances and the purpose and the flagrancy of the official misconduct.  (Citations omitted.) Id. at 623 (1). To eliminate any taint from an allegedly consensual search resulting from a prior illegality, “there must be proof both that the consent was voluntary and that it was not the product of the prior illegality. Proof of a voluntary consent alone is not sufficient.” (Citation omitted.) Rogers, supra, 206 Ga. App. at 660 (4). The inquiry “focuses on causation: Whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” (Citation and punctuation omitted.) Pledger vState, 257 Ga. App. 794, 797 (572 SE2d 348) (2002).

In other words, if after an illegal entry into a residence, the consent to search is sufficiently attenuated or separated from the illegal entry, such that the illegal entry is not entwined with the consent, then the consent may be held to be valid.  Factors the court considers to determine if the consent is attenuated from an illegal entry are (1) how close in time the illegal entry and the consent occurred, (2) any other intervening circumstances and (3) the flagrancy of the illegal entry.  Interestingly, the consent must not only be “free and voluntary,” it must also be shown that the consent was not the product of the illegal entry.  Thus, the agents cannot exploit the illegal entry in order to obtain free and voluntary consent.

In Little’s case, the court observed that, when the agents first entered the trailer and observed the meth pipe and scales, Little stated that he could help them if they would help him.  The agents then told Little that they could not do anything until they recovered the rest of the meth in the trailer and he directed the agents to a black bag that contained various controlled substances and other evidence.  The court observed no intervening circumstances that would separate the illegal entry from the consent to search the trailer.

As such, the court held that Little’s consent to search was “inextricably intertwined with the agent’s illegal entry” and therefore, his consent to search was not valid.

The court then reversed the trial court’s denial of the motion to suppress and stated

Consequently, the discovery of all evidence in plain view inside the camper, as well as evidence obtained from Little’s consent to search the camper and his ensuing incriminating statements, were “the product of and tainted by the illegality” of the initial entry.[v]



[i] A19A1758 (Ga. App.  Decided February 10, 2020)

[ii] Id.

[iii] Id. (emphasis added)

[iv] Id. (emphasis added)

[v] Id.

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