FIFTH DIVISION
MCFADDEN, C. J.,
MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
February 24, 2020
In the Court of Appeals of Georgia
A19A1761. MONTGOMERY v. THE STATE.
MCFADDEN, Chief Judge.
After a bench trial, Perry Montgomery was convicted of multiple drug offenses.
He appeals, challenging the denial of his motion to suppress and the effectiveness of
his trial counsel. The trial court, however, did not abuse its discretion in denying the
motion to suppress and Montgomery has failed to show that trial counsel’s
performance was prejudicial. Accordingly, we affirm.
1. Facts and procedural posture.
Viewed in the light most favorable to the judgment, see Jackson v. Virginia,
443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the 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
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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.
Montgomery was charged in a nine-count indictment with possession of
methamphetamine with intent to distribute, possession of marijuana with intent to
distribute, and other related drug offenses. Montgomery filed a motion to suppress
evidence; waived his right to a jury trial; and joined with the state in requesting that
the trial court hold a consolidated motion to suppress hearing, bench trial, and
probation revocation hearing. After the consolidated hearing, the trial court denied
the motion to suppress, found Montgomery guilty of all offenses, and imposed a total
sentence of twenty years, with ten years to be served in confinement and ten years to
be served on probation. Montgomery moved for a new trial, which the trial court
denied after a hearing, and this appeal followed.
2. Motion to suppress.
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Montgomery contends that the trial court erred in denying his motion to
suppress because the officers conducted an unlawful warrantless search of the house.
We disagree.
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; emphasis supplied). But “[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). “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).
In this case, it is undisputed that Mobbs lived in the house with Montgomery
and the officers obtained Mobbs’ consent to search the house. As Montgomery
concedes on appeal, the officers reasonably believed that Mobbs had authority to
allow them to enter and search the common areas of the house. See State v.
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Holtzclaw, 341 Ga. App. 639, 642 (1) (802 SE2d 254) (2017) (consent valid where
it is reasonable to recognize that any of the co-inhabitants of a house has the right to
permit the inspection in his own right and that the others have assumed the risk that
one of their number might permit the common area to be searched). Despite Mobbs’
valid consent to the search, Montgomery argues that his own subsequent consent to
the search was tainted by the officers’ illegal entry into his bedroom. But contrary to
Montgomery’s argument, there is no evidence that the officers’ entry into the
bedroom was illegal.
Rather, the evidence shows that the officers only entered the bedroom upon
discovering that Montgomery was in it and that they did not conduct any search of
the bedroom until after Montgomery had consented to a search. Given the totality of
the circumstances – 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.
Although lacking a warrant, the officers [had obtained Mobbs’ consent
and] thus had lawful authority to enter [the] residence to search for
drugs. Such an undertaking is fraught with danger, particularly when
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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). See also Owens v.
State, 332 Ga. App. 525, 527 (2) (773 SE2d 783) (2015) (defendant was lawfully
detained in living room while officers conducted a search of the house pursuant to a
Fourth Amendment waiver in a probation order pertaining to defendant’s housemate);
Bonds v. State, 188 Ga. App. 135, 136 (372 SE2d 448) (1988) (noting that search was
not conducted until “the officers first secured the premises by accounting for all
occupants . . . so as to assure control of [the premises] and the occupants”).
“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.” Brooks, supra (citation and punctuation omitted). Here,
in addition to the circumstances described above, the state presented unrefuted
testimony that none of the officers threatened, intimidated, or coerced Mobbs or
Montgomery in any way before they each consented to the search. “The evidence
presented at the hearing/trial authorized the [trial] court to determine that [Mobbs and
Montgomery voluntarily] consented to the [officers’ search of] the residence, and
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consequently the court did not err by denying [the] motion to suppress.” Spoone v.
State, 335 Ga. App. 816, 818-819 (1) (783 SE2d 342) (2016). See Brooks, supra at
425-426 (consent to search was freely and voluntarily given where, among other
things, there was no evidence of coercive police tactics and no allegation that the
defendant’s age or level of intelligence rendered his consent involuntary).
3. Ineffective assistance of counsel.
Montgomery claims that his trial counsel was ineffective in failing to object to
hearsay testimony that informants had told the police that Montgomery was selling
marijuana and methamphetamine from the house. To prevail on this claim,
Montgomery “must show both that his counsel’s performance was deficient and that
the deficient performance so prejudiced him that, but for the deficiency, there is a
reasonable probability that the outcome of the trial would have been different.”
Stodghill v. State, 351 Ga. App. 744, 747 (3) (832 SE2d 891) (2019) (citation and
punctuation omitted). Montgomery has failed to show prejudice, so his
ineffectiveness claim fails and we need not consider the issue of deficient
performance. Smith v. State, 296 Ga. 731, 733 (2) (770 SE2d 610) (2015); Stodghill,
supra.
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In attempting to show prejudice, Montgomery contends that without the
purported hearsay testimony concerning the informant tips to police that he was
selling drugs, there was insufficient evidence that he had any intent to distribute the
drugs. However, even without the purported hearsay, the state presented other
sufficient circumstantial evidence showing Montgomery’s intent to distribute,
including the large amounts of methamphetamine and marijuana found in the house,
the packaging of the drugs for apparent sale, the presence of digital scales with
methamphetamine and marijuana residue on them, Montgomery’s prior convictions
for sale of drugs, and an officer’s testimony that in his experience the amounts and
packaging of the drugs indicated that they were not intended for personal use and
instead were meant for sale. See Helton v. State, 271 Ga. App. 272, 275-276 (b) (609
SE2d 200) (2005); McNair v. State, 226 Ga. App. 516, 517 (1) (487 SE2d 100)
(1997).
Because there was sufficient circumstantial evidence of Montgomery’s intent
to distribute, Montgomery has failed to show a reasonable probability that the
outcome of the trial would have been different if his counsel had objected to the
purported hearsay. Accordingly, he has failed to show that he was deprived of
effective assistance of counsel.
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Judgment affirmed. McMillian, P. J., and Senior Appellate Judge Herbert E.
Phipps, concur.
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