State v. Jackson

Andrews, Judge,

dissenting.

Because I agree with the trial court that there was no articulable suspicion sufficient to trigger an inquiry under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), much less probable cause, the initial entry onto the property of Kendrick was unconstitutional and the evidence seized should be suppressed.

On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

1. The State first contends that, since the automobile was searched pursuant to owner Jackson’s consent, Kendrick had no standing to object to it. This argument, however, overlooks the fact that the car was located on and the officers entered Kendrick’s property to make the initial contact.

Kendrick has standing to challenge the initial entry onto her property and the ensuing search of the automobile parked on her *816premises. See Britt v. State, 186 Ga. App. 418, 420 (3) (367 SE2d 298) (1988); Todd v. State, 184 Ga. App. 750, 751 (2) (362 SE2d 400) (1987); Sanders v. State, 181 Ga. App. 117, 119 (1) (351 SE2d 666) (1986). As acknowledged by the majority, ownership is not the key to determining standing, but whether the person who claims the protection of the Fourth Amendment has a legitimate expectation of privacy in the invaded place. Minnesota v. Olson, 495 U. S. 91 (110 SC 1684, 109 LE2d 85) (1990). Certainly a homeowner has the right to expect that the curtilage of her property will not be breached by the police save with a warrant or upon probable cause.

Therefore, I conclude that there was no error in the trial court’s denial of the oral motion to dismiss Kendrick’s motion to suppress.

2. The majority further concludes that no “seizure” of either defendant occurred which triggered the protection of the federal Fourth Amendment.4

The trial court found that at the time Officer Crisp began questioning Kendrick and Jackson, they were no longer free to go and the resulting consent was therefore tainted.

A Terry stop must be premised upon a reasonable and founded suspicion. “ ‘(W)hat is a “reasonable articulable ground” for the detention may be less than probable cause to make an arrest or conduct a search, but must be more than mere caprice or arbitrary harassment. (Cit.)’ Allen v. State, 140 Ga. App. 828 (1) (232 SE2d 250) (1976)” West v. State, 194 Ga. App. 620, 621 (391 SE2d 673) (1990).

Here, the officers saw a car belonging to someone with whom they had no previous contact carrying two otherwise unidentified people leaving the home of one suspected of but never charged with selling drugs. The suspected person was not seen at the house while the unidentified persons were present, only a truck owned by him. No contact between the truck and car occupants was observed.

The officers then followed these unidentified persons to the address of Kendrick, although they did not know Kendrick was in the car when they pulled up the driveway and blocked in the car. When the occupants got out of the car, they were placed in the police car’s headlights and questioned. A marked police car was also present.

There was no anonymous tip, details of which were corroborated by the officers’ observation, as in Alabama v. White, _ U. S. _ (110 SC 2412, 110 LE2d 301) (1990). There was no identity of the car’s occupants at the time the initial approach to them was made, by encroaching on the property of Kendrick to block Jackson’s car. *817When they got out of the car, they were told what to do and they complied, submitting to the assertion of authority by the officers, including the presence of the marked car, and they were “seized” at that point. California v. Hodari D.,_U. S._ (111 SC 1547, 113 LE2d 690, 697) (1991); Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990); Jackson v. State, 191 Ga. App. 439, 441 (2) (382 SE2d 177) (1989). Therefore, I would affirm the trial court’s conclusion that Jackson’s consent to search was not voluntary. Radowick v. State, 145 Ga. App. 231, 238 (3) (244 SE2d 346) (1978) (physical precedent); see generally Florida v. Bostick, _ U. S. _ (111 SC 2382, 115 LE2d 389) (1991).

Decided November 15, 1991. Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellant. Warren A. Sellers, Horace W. Roberts, for appellees.

I am authorized to state that Chief Judge Sognier joins in this dissent.

No argument is made regarding the additional state constitutional argument made by Kendrick, nor did the trial court’s order rely upon any authority except that dealing with the federal Fourth Amendment. Therefore, we reach no conclusions as to any additional protection afforded by the state provision. Sanders, supra at 119, fn. 1.