State v. Espinoza

Beasley, Presiding Judge.

Lorenzo Espinoza was indicted for possession with intent to distribute marijuana, OCGA § 16-13-30 (j) (1). The State appeals the grant of his motion to suppress, OCGA § 5-7-1 (4). It contends that the seizure was within the “common area” curtilage. The case begins at Atlanta Hartsfield International Airport and involves two brothers.

Officer Webster, assigned to the Drug Enforcement Administration (DEA) at the airport, received information from an informant that on November 5, 1991, Alejandro Espinoza would be flying on a certain flight on a one-way cash ticket from Atlanta to Houston. The informant provided a physical description. Webster checked the airline’s passenger name record and confirmed that Alejandro had checked in and had purchased his ticket with cash at the counter just 45 minutes prior to the flight’s scheduled departure. About ten minutes before departure, Webster and DEA Agent Harvey observed him exit a lounge directly across from the gate. Webster approached, identified himself as a police officer, and asked to speak with him. Alejandro agreed to do so and permitted Webster to inspect his airline ticket, which bore the name “Alex Espinoza.” He also provided a *815Georgia driver’s license with his name on it.

Webster then advised that he was a narcotics agent whose duty it was to deter narcotics traffic through the airport. He asked to search Alejandro’s travel bag, to which he consented. Inside, Webster found a package, gift-wrapped with “diamond” paper, on top of what appeared to Webster to be two to three days’ worth of clothing.

Webster inquired if the trip to Houston was for business or pleasure and Alejandro replied that he was going to visit his father in the hospital. He told Webster that his father was “going in for a kidney transplant and if that didn’t work, he was going to have by-pass surgery.” That struck Webster as peculiar. So did the fact that Alejandro stated he would be in Houston for a week, as it appeared there were not enough clothes in the bag for a week. Alejandro told Webster he did not have any checked luggage.

When Webster looked at the gift-wrapped package he noticed a card which read, “To: Jennifer, From: Kathy.” Webster asked Alejandro if the package belonged to him. He replied that it did not, that he had gotten it from a friend and intended to deliver it to a person in Houston. He stated he “got it from Jennifer to Kathy” and said it contained steak knives. He refused to let the officers open it. Webster lifted the package and was convinced it did not contain steak knives. Alejandro gave permission for the package to be X-rayed, which disclosed “four rectangular type objects.” He then agreed to placement of the package in a line-up for a dog to test and was told the package would be detained but he was free to go.

He elected to stay and watch the line-up. The dog “alerted to the package” and tore its corner, exposing United States currency. Alejandro continued to deny any knowledge of the contents of the package and initially denied wrapping it. After being confronted with two store receipts dated that day for gift wrapping and tape, he admitted wrapping it. Webster obtained a search warrant authorizing a search of the package, and $38,300 was found inside.

During Alejandro’s interview, he gave his address as 251-B Dickson Road, Marietta, Georgia, but a boat registration he had on his person listed his address as 251-A. He related that he had a brother, Lorenzo Espinoza, who lived in Brownsville, Texas. The National Drug Information Computer showed that such a named individual had previously negotiated 2,000 pounds of marijuana.

Agent Harvey, who was present during the interview, called the Marietta/Cobb/Smyrna Narcotics Unit (MCS) and related to them a “summary of the entire events of that evening, including the interview of Alejandro Espinoza.” Harvey advised those at MCS to drive by and verify the address, which they did.

Based on the information provided to MCS, a search warrant was issued for “251-B Dickson Rd., Marietta, Cobb Co., Ga., and any *816outside buildings or vehicles present,” for tangible evidence comprised of “unused alternating light blue diamonds and pink diamonds wrapping paper, U. S. currency, notes or drug records and any controlled substance as fruits of the crime.”

The property manager of the duplex admitted the officers into both 251-B, leased to Alejandro, and 251-A, leased to appellant, his brother Lorenzo. The search of 251-B disclosed wrapping paper, notes, and store receipts for the wrapping paper. The officers also found some marijuana seeds (location unknown or not remembered). After the search of both residences, an agent discovered approximately five pounds of marijuana in a garbage bag outside near the driveway. The State concedes that whatever evidence was found inside 251-A, Lorenzo’s unit, is properly suppressed as the fruit of an illegal search. The question is the legality of the search which produced the marijuana found beside the driveway.

One forked driveway served the duplex; after entry from Dickson Road it split to partially encircle the duplex. The location of the marijuana was described variously as “along side the driveway in some bushes”; “midway down the driveway, off to the — as you’re facing the driveway, it was off to the left hand side in some bushes”; “just around this curve area right here . . . right in the woods. I’d say seven to eight feet off of the driveway”; 25-30 yards from the house. Facing the front of the structure, it was found on the left side of the driveway; unit 251-A is on the left side of the building.

The trial court found that Alejandro lived in unit 251-B, for which a search warrant was issued based on the seizure of $38,300 in U. S. currency (among other things) from him at the Atlanta Airport; that there was no search warrant or permission to enter 251-A; and that approximately five pounds of marijuana was “found on the grounds of 251-A and/or 251-B.”

The court concluded that law enforcement officers had no legal right to enter the premises of 251-A and that the alleged illegal drugs were found within the curtilage of 251-A. It noted that “[t]he alleged illegal drugs may also be found to be in the curtilage of 251-B but this issue is not before the court.” The court suppressed all evidence found in 251-A or its curtilage, including the five pounds of marijuana.

The first inquiry is whether or not the search warrant issued for 251-B was based on probable cause.

An MCS officer who had received the information related by Agent Harvey applied for the warrant. His affidavit by itself apprised the issuing magistrate that the resident of the premises sought to be searched, Alejandro Espinoza, had been found at the airport in possession of a package, which he had wrapped himself a short time before with paper freshly purchased, containing a large amount of *817currency, that Alejandro was headed to a drug source city, and that those activities were typical of a drug courier. The magistrate also knew that an independent search warrant for the package itself (the validity of which has not been challenged) had already been executed.

In addition, “[n]ot only what is stated in the affidavit for the warrant but also the totality of the sworn circumstances before the magistrate may be considered in establishing probable cause. [Cits.]” Brown v. State, 151 Ga. App. 830, 831 (261 SE2d 717) (1979). The MCS officer also verbally informed the magistrate that the seized package had contained approximately $40,000 and that he had known marijuana traffickers do exactly what was done here, i.e., transport money by packaging it as a gift.

The search warrant for unit 251-B was based on ample probable cause. Compare State v. Porter, 167 Ga. App. 293 (306 SE2d 377) (1983), in which there was no knowledge of who lived on the premises or any information whatsoever that there were any controlled substances on the premises.

The more critical question is the scope of the warrant.

“A warrant which authorizes the search of a particular dwelling extends by implication to areas within the curtilage of the dwelling. ‘Curtilage’ has been defined as ‘the yards and grounds of a particular address, its gardens, barns, [and] buildings.’ [Cit.] ... [A] driveway is properly considered within the curtilage of the dwelling it services, at least where the driveway is located on the dwelling owner’s property.” Landers v. State, 250 Ga. 808, 809 (301 SE2d 633) (1983).

Certainly “the concept of curtilage is more easily applied to land surrounding a single-family dwelling than to common areas surrounding a multi-family dwelling. When the area in question is a common area serving multiple dwellings, it is less likely that the residents of any one unit have an expectation of privacy or reasonably consider the area to be an extension of the dwelling.” Bayshore v. State, 208 Ga. App. 828, 829 (432 SE2d 251) (1993). The undisputed facts here show that the driveway to the duplex inhabited by brothers, and its adjacent land, was within a common area curtilage which is reasonably an extension of each brother’s dwelling. The area was not excluded from unit 251-B’s curtilage merely because it was shared with unit 251-A.

As stated in Bayshore, supra at 829 (1), “ ‘ “[w]hether the place searched is within the curtilage is to be determined from the facts, including the proximity or annexation to the dwelling, its inclusion within the general enclosure surrounding the dwelling, and its use and enjoyment as an adjunct to the domestic economy of the family.” [Cit.]’ ” See also Payton v. State, 177 Ga. App. 104,105 (1) (338 SE2d 462) (1985). The trial court even acknowledged that, if it were ruling on the curtilage of unit 251-B, it would conclude that the drugs were *818within its curtilage.

The court erred in its resulting legal conclusion, that the illegality related to unit 251-A precluded the independent legality of the seizure as related to unit 251-B. The marijuana having been within the curtilage also of unit 251-B, it was lawfully seized pursuant to the search warrant authorizing the search of that unit.

The grant of Lorenzo Espinoza’s motion to suppress is affirmed in part and reversed in part.

Judgment affirmed in part and reversed in part.

McMurray, P. J., Birdsong, P. J., Andrews and Johnson, JJ., concur. Pope, C. J., Cooper, Blackburn and Smith, JJ., concur in part and dissent in part.