*1 Employment which dinance Practices Act is orientation Practices more classes than does the Fair However, Act. even if
inconsistent the sexual Employment were ordinances consistent with Fair provisions general above, the other law enumerated City private employers which as well as the preempt the sexual orientation ordinances. registry parallel marriage, ordinance creates institution to expand sexual orientation ordinances the classes
protected from discrimination state and federal law. in en- acting Georgia City authority ordinances, these exceeded its Georgia’s under Home Rule Act. Harris, Jr.,
Joe Smith, M. Turner, Kendric E. D. Renata Robin appellants. Shahar, IV, J. E. Hardwick for Clifford Myers, Stephen Associates, Bird, Bird & Wendell R. David J. G. Kenyon, appellees. Parker, Joshua R. for
Harry McCrary, Harkins, Jr., H. J. Patrick amici curiae.
S94G1143. ESPINOZA v. THE STATE. Fletcher, granted We the writ of certiorari consider whether the Court Appeals applied concept curtilage. disapprove of of the We curtilage,” term “common area on which Court ground police relied, and reverse on the officers discovered the evidence within the of the defendant’s for which they did not have a search warrant. joint city-county A narcotics unit obtained a search warrant Alejandro Espinoza Road, residence of at 251-B Dickson Mari- drug etta, based on information received from a federal en- agent following airport Alejandro forcement search of in which agents $38,300 was Ten seized. 251-B narcotics of the du-
plex, specified warrant, which was and then searching agents residences, not listed. After grounds searched the garbage bag containing pounds marijuana and found a five eight driveway leading in bushes seven to feet from the to unit A. The grand jury indicted Lorenzo the resident of 251-A and Alejandro, possession brother with intent to distribute mari- juana. Alejandro. It did not indict suppress, finding The trial court 251-A 251- “on the was found and/or law, po- trial court determined that B.” In its conclusions apartment, right to enter lice did not have a officers 251-A, and the state was found within any his residence at his trial evidence found could not introduce court declined to decide whether curtilage. The trial *2 re- of 251-B. The Court curtilage were also within curtilage was located within It found versed. curtilage 251-B, as as the “common as well dwelling.” ap- reasonably each The an extension of brother’s which is lawfully seized under the pellate held that 814, v. 212 Ga. State valid search warrant 251-B. (442 911) (1994). 818 SE2d residence
1. Whether evidence is found McBride, 60, See State v. 261 Ga. question is a of fact and law. mixed 484) (401 (1991) (Hunt, J., concurring specially). ap- On 65-66 SE2d findings of peal, accept the trial court’s fact unless errone- we ous, In- no deference to the trial court’s conclusions law. but owe stead, principles free to anew the facts. See we are (443 474) (1994). State, 319, Vansant v. 264 320 SE2d Ga. protects persons Georgia The unreasonable searches and seizures. persons, to be secure their
houses,
against
papers, and effects
unreasonable
searches
violated;
shall
seizures shall
be
and no warrant
issue
not
upon probable
supported by
or
cause
oath
affirmation
or
describing the
to be
persons
to be seized.
things
Const.,
Const.,
I,
I,
XIII;
Ga.
Art.
Sec.
see
S.
amend.
IV.1
Par.
U.
States,
Supreme
opinion
Since
Katz v. United
Court’s
(88
507,
(1967),
U. S. 347
SC
19 LE2d
the Fourth Amendment’s
protection depends
person
on
a reasonable
whether
has
(104
1735,
States,
170,
Oliver v.
466 U.
S.
SC
State,
214) (1984);
272-273
LE2d
see
(265
88) (1980).
“may
pri-
A person
legitimately
SE2d
demand
vacy
fields, except for activities
out of doors in
the area
conducted
immediately
the home.”
home, whether the area is included within an enclosure sur- home, rounding the the nature of the uses to which the area put, is steps taken protect the resident area from observation people passing by.
United States v. (107 480 U. S. SC 94 LE2d 326) (1987); Bayshore v. see also 251) (1993) factors). (listing similar These factors are useful
tools for they extent illuminate “whether the area question is intimately so tied to the home itself that it should be *3 placed under the home’s ‘umbrella’ of Fourth protec- Amendment Dunn, tion.” 480 U. S. at Although the boundaries of the curti- lage marked for most 466 U. S. at n. becomes more complicated when the residence is an apartment in multi-family a an urban area. See dwelling Acosta, States v. (3d 1992); 965 F2d Bayshore, Cir. at 829. In this the facts disputed were not credibility and the witnesses was not an issue. Applying facts, the law to the undisputed we hold that the trial court legal was correct in its conclusion that the marijuana was seized within dwelling Lorenzo’s fol- lowing illegal apartment. search of his apartment Lorenzo lived 251-A on the left side duplex approximately from the road and hidden apartment from view. His was reached private left half of driveway shaped that was stethoscope; like a unit B was right reached garbage half. The bag was found among bushes seven to eight feet to the left of Lorenzo’s outside the stethoscope, approximately thirty yards from the house. Thus, the bag was discovered where visitors to duplex would expected not be go. LaFave, See 1 Seizure, W. Search and (f), (2d 1987) (Fourth 2.3 at 412-413 ed. Amendment does not cover police observations expected, where visitors are such as walkways, driveways, porches).
The absence of a
enclosing
conclusive,
fence
is not
since he
property.
rented the
See
3. As of its the trial court the issue whether the were also within the curti- reserve lage of 251-B. The trial court should have determined whether was also within the of 251-B since the search war- apartment. rant was issued for that issue, deciding
In
the Court of
concluded that
was found within the
of both 251-A and 251-B as
area curtilage.”
of the “common
This term is a misnomer. It has
reported
been used
three
cases. See
at
817;
829;
Bayshore,
Stanley,
at
United States v.
(“The
(4th
1979).
F2d
Cir.
‘common area’
issue has
courts.”)
thorny
been a
one for the
If
in a multi-unit
lot,
building
space,
foyer
parking
space
such as a
the shared
generally
is a common area which the residents
have no reasonable
privacy, except
readily
when the area is
locked and
275;
public.
accessible
See
at
W.
cases).
contrast,
(listing
LaFave at 388-389
In
an
dwelling’s curtilage.
has a reasonable
in the
confusing
concepts
it is
to combine the
of “common area” and
“curtilage” in deciding
particular
adjoining
apart
whether a
building
protection
ment
is entitled to
Constitu
tion. The
expecta
test should be the reasonableness of the resident’s
being
yard.
tion of
and the officer’s reasons for
See
(9th Cir.),
denied,
Magana,
United States v.
512 F2d
cert.
(1975).
the record is sufficient to determine whether apartments within the of 251-B. While different in multi- may unit buildings curtilage, was not found by apartments. within the shared It was not found hallway leading yard to both the front stethoscope by driveways. formed The resident of 251-B portion would have no reasonable yard unit, directly driveway, that was not connected to or its that duplex. side of the Under the circumstances the trial court suppress because he was who had a tp outside the leading his unit. Judgment reversed. concur, Hunstein, All the Justices Carley, JJ., Thompson, who dissent as to Division judgment. Justice, dissenting.
Thompson, I While concur in Divisions I dissent I Division 4. would remand this case to the trial court to ascertain whether marijuana was found within the curtilage 251-B because inadequate record is for this Court to determine the boundaries of that curtilage.
I am authorized to state that Justice Hunstein Carley and Justice join in this dissent. Woodman,
Steve T. appellant. Charron, Thomas J. Attorney, Bernes, District Nancy Debra H. Jordan, I. Clark, William M. Assistant Attorneys, District appel- lee.
S94G1120. BLACK et al. v. FAYETTE COUNTY. Hunstein,
Fayette County chose to utilize Special Master OCGA seq., 22-2-100 et as its permanent § method of condemning and tem- porary property easements over owned Edgar William Black and Special others. The provides Master Act parties interested are to be served with an order setting forth the time hearing and date of the master, before special 22-2-107, OCGA 22-2-102 and and re- §§ quires that hearing special before the master “shall take less days than ten nor days more than 15 after the date of service” of the order. OCGA 22-2-102. The evidence is uncontroverted §
Black was served with the days order less than ten hearing special held master, special master. The denying after Black’s motions for a continuance and for petition dismissal of the of con- demnation which were made on the County’s non-compli- basis of the ance with 22-2-102, OCGA proceeded objection over § hear- ing and issued an exceptions award. Written specifically to the award included the violation of OCGA superior upheld 22-2-102. The