dissenting.
I must respectfully dissent from the majority. Because it is not disputed that the marijuana was in plain view, I believe the issue to be decided is whether the officer properly entered King’s home, not whether the officer’s search of King’s home was proper.
On appeal of a suppression hearing we must accept the trial court’s findings on questions of fact and credibility unless clearly erroneous. See State v. Fowler, 215 Ga. App. 524, 525 (451 SE2d 124) (1994). The trial court found that “[a]t the time of the entry into the Defendant’s residence pursuant to the arrest warrant on April 30, 1994, the deputies were possessed of a warrant which listed the address of Smith at 1344 Hatchcover Circle. Furthermore, at the previous attempt to execute the warrant, Deputy Tischner observed what he perceived to be potential furtive conduct on the part of the Defendant, which possibly could have been a ‘tip-off’ to Smith that the Sheriffs were there with a warrant for his arrest. Moreover, on the consent to search of the premises on April 29, 1994, Deputy Tischner observed items of personal property apparently belonging to Smith contained in the room which King indicated was Smith’s bedroom. Based on the foregoing objective bits of information available to the officers on April 30, 1994, the Court finds that the deputy sheriffs had probable cause to believe that 1344 Hatchcover Circle was the address of Dwayne Lee Smith. Furthermore, they were possessed with a valid arrest warrant for him. The Court specifically holds that the officers were not required to rely on potentially self-serving statements of the Defendant King when he told Deputy Tischner at the scene on April 29, 1994, and later phoned the Sheriff’s Department, that Smith no longer resided there.”
The trial court held that Deputy Jordan’s entry into King’s house was authorized under the exigent circumstances exception to the search warrant requirement. The trial court determined that Deputy Jordan was authorized to make a de minimis entry into the house to ensure his safety as King was backing into the house. These findings are supported by the record. Deputy Jordan testified that King was agitated and backed into the house. He further testified that for his own safety, he entered into the threshold of the residence.
The present case is distinguishable from Otwell v. State, 201 Ga. *893App. 71, 73 (410 SE2d 178) (1991), relied upon by the majority, where we noted that “[t]he best that can be said is that the officers merely walked in without seeking permission.” In the present case evidence of exigent circumstances did exist to justify the officer’s de minimis entry into King’s residence for his own protection. Thereafter, the marijuana was properly seized under the plain view doctrine. As the trial court’s findings were not clearly erroneous, I would affirm its denial of King’s motion to suppress.
Decided July 14, 1995. A. Larry King, for appellant. Keith C. Martin, Solicitor, Michael P. Baird, Assistant Solicitor, for appellee.I am authorized to state that Presiding Judge Birdsong and Judge Andrews join in this dissent.