dissenting.
I respectfully dissent. The “plain view” doctrine cannot be used to justify the search and seizure in this case because the officers invaded the curtilage of Williams’ home for no legitimate reason and searched it without a warrant. “Prima facie a search made within the curtilage of the owner without a warrant is unconstitutional and void. Curtilage includes the yards and grounds of a particular address, its gardens, barns, buildings, etc.” (Citations and punctuation omitted.) Bunn v. State, 153 Ga. App. 270, 272 (2) (265 SE2d 88) (1980). A person’s driveway and a car parked on the driveway fall within the curtilage of his home and are entitled to the protections of the Fourth Amendment. State v. O’Bryant, 219 Ga. App. 862, 864 (467 SE2d 342) (1996).12
The officers in this case entered Williams’ yard for no legitimate reason. Although I agree that the first officer on the scene, Officer Smith, had a right to stand on the public sidewalk and talk to Williams, the other officers had no justifiable reason to enter Williams’ property and begin a search.13 Neither of these officers came to the property to talk with Williams; instead, they stopped of their own accord to provide backup to the first officer and then immediately conducted a search of his front yard and the area underneath a car in his yard. They initiated this search as a matter of “habit” or “routine” because Williams was nervous. While it was perfectly appropriate for them to stop to provide officer backup, there was no legitimate rea*126son for them to enter and search Williams’ property.14
Decided March 30, 2001 Reconsideration denied April 12,2001 Karen S. Wilkes, for appellant. Clyde T. Williams, pro se. Tambra P. Colston, District Attorney, John F. McClellan, Jr., Assistant District Attorney, for appellee.Since the contraband was found after they illegally entered Williams’ property, the plain view doctrine does not apply. Bunn, supra, 153 Ga. App. at 275 (plain view doctrine did not apply because “the officers had intruded within the curtilage before they saw the articles hidden behind the air conditioner”). Speculation that the police “might” have seen it from a public place does not alter the fact that the police illegally searched Williams’ property and actually found the contraband as a result of that illegal search. As the United States Supreme Court recognizes, “[i] t is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.” Horton v. California, 496 U. S. 128, 136 (110 SC 2301, 110 LE2d 112) (1990).
Adoption of the majority’s analysis in this case gives the police the right to roam over a person’s property at will and search for any contraband or evidence that is not completely hidden from view. It will also allow the police to enter our yards and peer into our bedroom windows. This is precisely what our Constitution was designed to prevent, and I would accordingly reverse the trial court’s denial of Williams’ motion to suppress.
I am authorized to state that Chief Judge Blackburn and Judge Phipps join in this dissent.
The majority uses the four factors outlined in United States v. Dunn, 480 U. S. 294 (107 SC 1134, 94 LE2d 326) (1987), and Espinoza v. State, 265 Ga. 171 (454 SE2d 765) (1995), to conclude that Williams had no constitutionally protected right to privacy. However, those factors were created to assist a court in determining the extent of a home’s curtilage, not to find that a person has no expectation of privacy in an area that is without question part of the home’s curtilage.
The majority’s description of the scope of the search warrants further explanation. Officer Smith testified that he believed he was standing on the sidewalk when he talked with Williams and that they (he and Williams) “were always in the same general area as the whole incident started out at, in a few feet one way or another.” Officer Bartley testified that he believed Officer Glaze “was around the yard looking” when he arrived on the scene. He then joined “Officer Glaze in searching around the yard.” He and Glaze also searched the area of the yard on the opposite side of the car from where Williams was standing. Officer Glaze testified that he searched “around the vehicle, around the grass, [and] around the trees” for about five minutes. This area “was anywhere in between a length of car, something like that.” Finally, the trial court found that the police found the contraband while they were standing on the defendant’s front yard.
The majority concludes that “the officers had a right to be in the yard to investigate,” but fails to state what the officers were investigating in the yard. Officer Glaze, one of the officers who searched the yard testified, “We weren’t in there investigating him or anything like that.” The other officer who searched the yard, Officer Bartley, testified that he had no previous information as to what the other officers were investigating when he arrived and that he assisted “by joining Officer Glaze in searching through the yard.”