On February 24, 2020, the Court of Appeals of Georgia decided Montgomery v. State[i], which serves as an excellent review regarding the law related to consent searches of residences. The relevant facts of Montgomery, taken directly from the case, are as follows:
[T]he evidence shows that Montgomery has multiple prior felony drug convictions, including sale of cocaine in 1992 and 1993, multiple counts of sale of cocaine and other offenses in 1999, and possession of cocaine with intent to distribute and sale of marijuana in 2010. In 2017, while Montgomery was on parole and probation, police received multiple complaints and a tip from a confidential informant that Montgomery was selling methamphetamine and marijuana from a house in Summerville, Georgia. Montgomery was living in the house with Cody Mobbs, who was also on felony parole and probation, and Mobbs’ sister.
On March 23, 2017, Mobbs’ parole and probation officer went to the house with two sheriff’s deputies to conduct a “knock and talk” investigation. The parole officer knocked on the front door, which was answered by Mobbs, and asked him if anyone else was in the house and if they could come in and search the house. Mobbs said that he did not know if anyone else was inside and consented to the officers searching the house. Upon entering the house, the officers smelled a strong odor of marijuana.
The sheriff’s deputies found Montgomery asleep in a bedroom and awakened him. A short time after the officers had secured the scene, another officer arrived at the house and asked Montgomery where the marijuana was and if they could search the house. Montgomery indicated that there was marijuana in the living room and consented to a search of the house. The officers then found marijuana in a bowl and a pipe with marijuana residue on it in the living room; large amounts of methamphetamine and marijuana in plastic bags inside a jacket in the bedroom where Montgomery had been sleeping; and digital scales with methamphetamine and marijuana residue on them in the bedroom. One of the officers also photographed a handgun found at the scene. During the search, Montgomery told the officers that any contraband found in the house belonged to him.[ii]“
Montgomery was charged with nine drug offenses under Georgia law. He filed a motion to suppress the drugs and the trial court denied the motion. He was convicted at a bench trial. He subsequently appealed the denial of the motion to suppress to the Court of Appeals of Georgia.
On appeal, Montgomery argued that the warrantless search of his residence was unlawful. Specifically, he argued that the Mobbs’ consent did not give the officers the authority to enter his bedroom, therefore his consent is tainted by the unlawful entry into his bedroom. The court of appeals first noted the legal principles that apply to this issue. The relevant legal principles are as follows:
- The Fourth Amendment protects against unreasonable searches and seizures. 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. Corey v. State, 320 Ga. App. 350, 353 (1) (739 SE2d 790) (2013) (citations and punctuation omitted.[iii]
- [I]t is well settled that a valid consent to a search eliminates the need for either probable cause or a search warrant.” Brooks v. State, 285 Ga. 424, 425 (677 SE2d 68) (2009).[iv]
- In order to justify a warrantless search on the grounds of consent, the [s]tate has the burden of proving that the consent was freely and voluntarily given under the totality of the circumstances.[v]
- One such exception [to the warrant requirement] is when consent to search is obtained from a third party who possessed common authority over or other sufficient relationship to the premises . . . sought to be inspected.” Davis v. State, 262 Ga. 578, 580 (1) (422 SE2d 546) (1992) (citations and punctuation omitted).[vi]
- Although lacking a warrant, [when officers obtain lawful consent to search a residence] the officer’s then [have] lawful authority to enter [the] residence to search for drugs. Such an undertaking is fraught with danger, particularly when other people are inside. It leaves the officers vulnerable to attack. For their safety’s sake in the conduct of a lawful search, they are authorized to detain occupants of the residence while the premises are being secured. Harrison v. State, 213 Ga. App. 174, 176 (444 SE2d 354) (1994).[vii]
The court then applied the facts of this case to the legal principles above. In this case, it was undisputed that Mobbs gave free and voluntary consent to enter and search the residence. Montgomery even conceded that the officers had a reasonable belief that Mobbs had the authority to let the officers into the residence and to consent to searches of the common areas. However, his argument that the search was unlawful pertained to the officers entering his bedroom as he slept, waking him, and then obtaining consent to search his bedroom. In other words, he argued that Mobbs consent did not allow them to enter his bedroom.
However, the evidence showed that the officers did not enter Montgomery’s bedroom until they discovered he was in the room and did not search the room until they had obtained his consent to do so. As one of the legal principles above stated, when conducting a search of a residence based on valid consent, the officer may detain the occupants of the residence because this activity is “fraught with danger” for law enforcement officers. The court then considered the totality of the circumstances and stated, in consideration of
Montgomery’s lengthy felony drug history, the reliable information that Montgomery was selling drugs from the house, Montgomery sharing the house with another parolee, and the strong odor of marijuana in the house – the officers had the authority to awaken Montgomery and secure the scene before conducting a search.[viii]
Therefore, the court held that entry into Montgomery’s bedroom and obtaining his consent to search his room was lawful; therefore, they affirmed the denial of the motion to suppress.
- While officers have the authority to detain residents during a valid consent search, they should be mindful to not treat this detention the same as a detention while executing a search warrant, unless other factors that support probable cause and exigent circumstance occur. Consent searches must be free and voluntary and the officer’s conduct with consenting residents could alter the “free and voluntary” nature of the officer/citizen encounter. Thus, while officers should exercise control to ensure their safety, they should also be mindful of the above.
- In this case, the fact that Montgomery was on probation and subject to less of an expectation of privacy based on that status and possibly terms of probation was not used or argued by the state as justification for the search. Consent to search was the basis of the state’s argument in this case. When probation and parole status is known, researching the terms of the parole or probation can provide an additional legal basis for a search. It is a better practice to involve the suspect’s probation or parole officer if conducting a search based on that status.
[i] A19A1761 (Ga. App. February 24, 2020)