The trial court denied Edwin Kenneth Boatright’s motions to suppress, and he appeals. Boatright was stopped for a traffic violation and searched. When marijuana was discovered on his person, he was arrested. Boatright’s prоbation officer then issued a probation warrant for his arrest for violating the terms of probation. Boatright was arrested on the probation warrant, consented to a search of his house, and additional marijuana was discоvered during the search of the house.
1. Boatright contends the December 3, 1994, search of his person during the traffic stop was illegal. Although he concedes the stop itself was valid, Boatright’s clothing was patted down for weapons during the stop. In one of Boatright’s pockets, the investigating officer felt what he believed to be “some type of plastic,” although when asked, Boatright identified the object as keys. Skeptical of this explanation, the officer then stuck his hands into Boatright’s pocket and pulled out a plastic bag containing marijuana. Further search of Boatright’s pockets revealed more marijuana.
Despite the State’s admission at the suppression hearing that the marijuana should be suppressed, the trial court denied Boat-
right’s motion. On appeal of a trial court’s decision on a motion to suppress, “the evidence is construed most favorably to uphold the findings and judgment of the trial court; thе trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Punctuation omitted.)
Strickland v. State,
Assuming without deciding that the officer reasonably believed a
Terry
pat-down search was necessary to protect him from attack, the search conducted exceedеd the bounds of the “plain feel” corollary to the “plain view” doctrine established by
Minnesota v. Dickerson,
The facts of this case are identical to those of
Williams,
supra. In
Williams,
the officer patted down the defendant and felt an object through a pocket which he knew was not a
“Taking this testimony at face value, we find that the object’s contour did not make its identity immediately apparent to [the officer], even after he palpated [the defendant’s] pocket. Accordingly, his continued exploration of [the defendant’s] pocket was not authorized under the plain feel doctrine or Dickerson” Williams, supra at 101. In this case, the officer, by his own testimony, could not immediately identify the plastic as contraband upon touching it. The trial court therefore erred in not granting Boatright’s motion to suppress.
2. Boatright contests the trial court’s denial of his motion to suppress the December 9, 1994, search of his home. Boatright was arrested in his home on December 9 pursuant to a probation warrant issued after his probation officer learned of the marijuana traffic stop. Upon arrest, although the officers had not obtained a search warrant, Boatright consented to a search of his house, and marijuana was discovered. The evidence is uncontroverted that the probation arrest warrant issued was based exclusively upon the marijuana offense of December 3. Citing the fruit of the poisonous tree, Boat-right contends that the December 9 search must therefore be suppressed.
Georgia’s exclusionary rule is codified at OCGA § 17-5-30, and it provides for the suppression of evidence obtained by an unlawful search and seizure cоnducted either with or without a warrant. Unlike the federal law, there is no good-faith exception to this exclusionary rule in Georgia.
Gary v. State,
In this case, the probation arrest warrant reasonably relied upon by the arresting officers was invalid, because it resulted directly from the illegal search of December 3. See
Jones v. State,
In Harvey, the defendant was аrrested on a bench warrant which, unbeknownst to the arresting officer, had been recalled. Prior to arresting the defendant, the officer had a dispatcher do a computer check of the subject warrant, which check еrroneously reported the warrant as valid. Id. In a search incident to the execution of the arrest warrant, cocaine was discovered. Id. The defendant’s subsequent motion to suppress the cocaine was denied.
While recognizing that the defendant was not lawfully arrested pursuant to the bench warrant itself, the Supreme Court .upheld the arrest on grounds that “the validity of an arrest is not necessarily dependent upon the existence of a valid arrest wаrrant because if the person detained is outside of his home and probable cause to arrest exists at the time of detention, a warrant is not required.” Id. at 672. Examining the issue of probable cause, the court in
Harvey
stated that in that cаse, the recalled bench warrant, the erroneously
reported validity of which the officer had confirmed by radio transmission, was sufficient probable cause for arrest. “The existence of probable cause must be measured by current knowledge, i.e.,
In reaching this decision, the Supreme Court intentionally did not overrule Gary, supra, but instead factually distinguished it. Examining this case in light of both Gary and Harvey, Boatright’s situation is more closely aligned with the facts of Gary, and Harvey is clearly distinguishable.
Like Gary, this case involves a search of the home, not a search of the person in a public place, as was the case in Harvey. Additionally, unlike Harvey, it was the affirmative acts of the police themselves which invalidated the warrants in this case and in Gary, not an administrative computer glitch. The affiant for the warrant in Gary did not present sufficient facts to establish probable cause, and the officer who searched Boatright in the traffic stop did so illegally. The computer error relied upon in good faith by the arresting officer in Harvey is therefore distinguishable frоm these two situations, and applying the principles of Gary, the invalid warrant was not probable cause for Boatright’s arrest.
The invalid warrant notwithstanding, it is still possible, as stated in
Harvey,
for a warrantless arrest to be valid where the individual is arrested outside of his home and probable cause exists for the arrest.
Harvey,
supra at 672. Examining whether Boatright’s arrest was valid under this standard, the evidence regarding Boat-right’s arrest is uncontroverted. De novo appellate review of that arrest is therefore appropriate.
Vansant v. State,
With respect to the arrest, the undisputed fаcts show that Boat-right was arrested inside his home without a valid warrant. One officer testified that after knocking on the door, it took Boatright 15 to 20 minutes to come to the door, although the lights and the television were on. Once Boatright opened the door, the officers stepped inside the house and arrested him.
Accordingly, Boatright’s arrest fails even under the warrantless arrest standard of
Harvey,
supra. This is so because Boatright was
arrested inside his home without a warrant. “Absent exigent cirсumstances or consent, an entry into a private home to . . . effect an arrest is unreasonable without a warrant.” (Punctuation omitted.)
Kendrick v. State,
Applying this standard to the facts, the officers whо arrested Boatright in his home had no valid warrant. There is no evidence of exigent circumstances, and no evidence of Boatright’s consent to let the officers enter his home to arrest him. As Boatright’s permission to search his homе was given simultaneously with his illegal arrest, there is likewise no evidence of attenuation of the consent from the illegal arrest, as argued by the State. See generally
King v. State,
Finally, it is possible that a warrantless search of Boatright or his home may have been provided for by the terms of Boatright’s probation. See
State v. Sapp,
Judgment reversed.