On June 27, 2024, the Court of Appeals of Georgia decided the State v. Hanks[i], in which the court examined whether the independent source doctrine would prevent the suppression of drug evidence where officers included some unlawfully obtained evidence in a search warrant affidavit.  The relevant facts of Hanks are as follows:

On February 27, 2019, the Sandy Springs Police Department received an anonymous tip regarding drugs in a hotel room at the Extended Stay America located at 1050 Hammond Drive NE, Sandy Springs, Fulton County. The tip was prompted by a report from housekeeping staff for the hotel, who claimed that they were cleaning Defendant’s room when they either saw or smelled marijuana. The next day, [the investigator] and a K9 unit went to the Extended Stay and knocked on the door of Defendant’s room. [The investigator] stated that she could smell marijuana coming from inside Defendant’s room. After receiving no answer from inside the room, [a K9 officer] deployed his police service dog … to conduct an open air sniff. [The dog] then gave a positive alert at the bottom of Defendant’s door. Based upon [the investigator‘s] affidavit as to the foregoing facts, a search warrant was obtained and executed that same day at approximately 2:30 p.m. The search returned the following results from Defendant’s room: marijuana, crack cocaine, cocaine, methamphetamine, MDMA, promethazine, and $1,067[.].[ii]

Hanks filed a motion to suppress the evidence.  The trial court held that Hanks had a reasonable expectation of privacy in the “curtilage immediately outside his hotel room door.”  The court further held since the officer smelled marijuana from the constitutionally protected curtilage and then deployed his K9 for a sniff within the protected curtilage, the evidence obtained from the search warrant was “the product of an unreasonable search” and must be suppressed.

The State appealed the grant of the motion to suppress to the Court of Appeals of Georgia.

On appeal, the State first argued that the trial court erred in ruling that the officer was improperly outside the hotel room door when she smelled marijuana.  The State explained that the officer was responding to an anonymous tip that drugs were in the hotel room, and that authorized the officer to conduct a knock and talk at the room.  The court stated

[I]n responding to the tip, the investigator was authorized to approach and knock on the outer door of the room. See State v. Edwards, 332 Ga. App. 342, 344-345 (772 SE2d 430) (2015) (Fourth Amendment does not prohibit officers from approaching a residence and conducting a “knock and talk” investigation at the door); State v. Able, 321 Ga. App. 632, 635 (742 SE2d 149) (2013) (“knocking on the outer door of a residence for the purpose of investigating a reported crime is not violative [**6]  of the Fourth Amendment … even when the information is provided by an anonymous tipster”) (citations omitted). Indeed, Hanks concedes in his appellate brief that the investigator “was authorized to stand in that curtilage and knock on the door.” See Pickens v. State, 225 Ga. App. 792, 793 (1) (a) (484 SE2d 731) (1997) (officer responding to anonymous tip about illegal drugs in a motel room “was permitted to knock on [defendant’s] door … in order to investigate the report of a crime”).[iii]

Thus, the court of appeals held that the trial court’s ruling that the officer was impermissibly outside the hotel door was erroneous.

The State’s next argument was that, since the officer was lawfully at the hotel door, her detection of the odor of marijuana emanating from the hotel room was sufficient to support the search warrant, even if one assumes the subsequent K9 sniff was unlawful.  This argument requires application of the “independent source doctrine.”

The court of appeals noted that earlier in June 2024, the Supreme Court of Georgia, in Tatum v. State, adopted a two-part test that must be satisfied for independent source doctrine to apply.[iv]  The court of appeals stated

Under the two-part test enunciated in Tatum, a trial court must first determine whether, “after excising information regarding unlawfully obtained evidence from the warrant affidavit, the remaining evidence is sufficient to support a finding of probable cause[.]”Tatum, 319 Ga. at 192-193 (2) (a) (citations and punctuation omitted). Second, a trial court “must determine whether the officer’s decision to obtain a search warrant was prompted by what he observed during the illegal entry.” Id. at 193 (2) (a)[v]

The court of appeals explained that the above two-part test is consistent with the United States Supreme Court’s 1988 holding in Murray v. United States, in which the Court held that

[T]he independent source doctrine does not apply if the decision to seek the warrant “was prompted” by information obtained during a prior unlawful search or if information obtained during that unlawful search “was presented to the [m]agistrate and affected his decision to issue the warrant.”[vi]

Next, the court of appeals set out to apply the two-part test from Tatum.  First, the court of appeals must excise or cut out the evidence that was unlawfully obtained.  Since the State did not argue in support of the dog sniff of the exterior of the door, the court of appeals excised that evidence and held that the officer’s testimony that she smelled the odor of marijuana coming from the room was sufficient to establish probable cause for the search warrant.  The court of appeals stated

The investigator’s detection of the odor of marijuana coming from inside Hanks’ room, even without the dog sniff information, provided sufficient probable cause to support the magistrate’s issuance of the search warrant. See Caffee v. State, 303 Ga. 557, 562 (2) (b) (814 SE2d 386) (2018) (a police officer has probable cause to search when that officer, through training or experience, detects the smell of marijuana”).[vii]

The court examined the information contained in the search warrant affidavit and noted that it stated that

[T]he investigator detected the odor from a place where she was legally entitled to be — standing directly outside the hotel room door to conduct a “knock and talk” in response to the tip about illegal drugs being present in the room. The affidavit also established that the investigator was able to determine the particular location of the odor, stating that she “could smell the distinct odor of raw marijuana emanating from the interior of [Hanks‘ hotel] room[.]” The affidavit further provided that the investigator was assigned to a special unit focusing primarily on narcotics investigations; that she had assisted in executing search warrants leading to the seizure of illegal drugs, including marijuana; that she had received specialized training that has aided her as the lead investigator in multiple drug investigations and seizures; and that she had assisted in numerous investigations of drug trafficking organizations involving the use of “knock and talks.” While the affidavit, unlike the investigator’s testimony at the suppression hearing, did not explicitly state that the investigator was trained to detect the odor of marijuana, compare Edwards, 332 Ga. App. at 343, the information provided in the affidavit was sufficient for the magistrate to conclude “that the officer was qualified to recognize the odor based on … her training and experience.” Kazmierczak, 331 Ga. App. at 822.[viii]

Therefore, court of appeals held that the magistrate had a “substantial basis for finding probable cause to issue the search warrant based solely on the investigator’s affidavit” which established she smelled marijuana emanating from Hanks’ hotel room door.[ix]  As such the first part of the test for the applicability of independent source doctrine was satisfied.

The court of appeals then set out to examine the second part of the test, particularly whether the investigator’s decision to obtain the search warrant “was prompted by the purportedly unlawful dog sniff.”

The court noted that the record was not sufficient for them to make this determination.  As such, the trial court’s decision in the case was vacated and the case was remanded back to the trial court to determine if the second part of the independent source doctrine test was satisfied.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

______________________________________________________________________________

Citations

[i] 372 Ga. App. 187 (2024)

[ii] Id. at 189

[iii] Id. at 190 (emphasis added)

[iv] Id. at 188 (citing Tatum v. State, 319 Ga. 187 (2024))

[v] Id. (emphasis added)

[vi] Id. at 191 (see Tatum, 319 Ga. at 191-192; see also Murray v. United States, 487 U.S. 533 (1988))

[vii] Id. at 193 (emphasis added)

[viii] Id. at 194

[ix] Id. at 195