*1 to be made as representation must deceitful by deception, a theft — performance promise a event past fact or existing of future false deception Croy prosecution. theft of a grounds cannot per- promise of future list was a false letter/price supra. Appellant’s prices maintain the listed. way no bound formance. He was a situation this case to by analogizing I the facts conclude charges for item and then pays If a likely $1 occur. vendor more a has committed item, say we not the vendor for the do $5 customer customer, “Tomorrow, I if told the the vendor by taking. Even theft $10, $5,” charges the consumer for and then you sell this item will say do no the vendor is thief. willingly pays, we consumer which the the vendor questioning for not Instead, the customer we admonish advantage of. same being for taken price his increased about system A lax here, larger scale. though on much occurred situation appellant profited. advantage of and employees were taken and naive not system, he did commit from the have benefited While by taking. theft for a was sufficient rational I believe the evidence
Because do not beyond a reasonable doubt appellant guilty trier of fact to have found con- appellant’s affirmance of by taking, I must dissent of theft by taking. of theft victions in this dissent. Judge Sognier joins am authorized state December Decided
Rehearing December denied III, Reed, appellant. Pearson for Albert M.
Robert J. Bowers, Wilson, Attorney, Michael J. Attor- District Robert E. Kohler, Attorney Gen- General, Senior Assistant ney Harrison W. General, eral, George Shingler, Attorney appellee. P. Assistant THE STATE. 72684. GRAVLEY v. THE BOTTS v. STATE.
72952.
Birdsong, Presiding Judge. separate violating the Geor- Appellants were convicted trials of mari- by manufacturing possessing Act gia Controlled Substances They opinion. in this each appeals We have consolidated their juana. upon an suppress error in motion to based urge the denial their Held: illegal asserted search and seizure. motion, deputy evidence disclosed that two hearing
At the on the message from the chief County received a radio sheriffs Cherokee Gravley’s appellant residence deputy directing go sheriff them to Gravley growing marijuana tip in a and check out a appear physical that the officersknew the at his residence. It does initially property, they garden Gravley’s thus went location of the seeking Gravley on tip. deputies ar- to him about the When the to talk yard Gravley’s appellant residence, rived at Botts was in the front working officers that on car. Botts told one *2 asleep They Gravley go get to him. but she would inside observed looking through said at them a window. Then Botts returned and Gravley Gravley out in a few minutes. did not come would be out whereupon the some even after ten or minutes officers asked fifteen Gravley yard they go playing to children step if would and ask the girl young A but She outside. went in the house did return. Gravley coming again was seen the back and if out door asked girl thought Gravley gone house. was the barn to feed the horses. The officer then walked toward the barn to find and The indicated she had to Gravley. approached barn, talk to As he see did not through open passageway through but could see barn ultimately proved vegetable garden, to what someone abe where he saw
moving rapidly place place from behind barn. The through garden Gravley pulling officerwalked the barn to the and saw up plants throwing plants Gravley Gravley and over the fence. was then arrested. was lived fense as a It later determined that Botts and
together charged and she was and arrested with same of- possessor.
joint physical layout composed The of this residence was of the resi- (a trailer), approached by driveway running dence double-wide a off a leading paved road; trailer, dirt road a from a car shed behind the a garden Appellants barn behind the car shed and a behind the barn. urge, purposes opinion agree, and for of this we that these surround- ings lying classically part were within what has been a of the “curti- lage” might and under other circumstances have been a warrantless search and seizure. analysis protection against
An of Fourth Amendment unlawful begin right searches and seizures must “[t]he Amendment: people persons, papers houses, be secure their ef- and Obviously, by . . .” fects. the Amendment does not include definition curtilage.” recognized However, “the as in numerous decisions of the brought state, courts of this has been within the ambit against protecting Amendment or warrantless unreasonable space searches. At common law the included all that ground usually buildings and thereon which enclosed within the general surrounding principal dwelling fence a house and outbuild- ings, yard closely adjoining dwelling and house. Black’s Law Dictionary, by p. ed., Rev. Fourth Our 46. courts have included a being curtilage.
definition as within Landers 808,
First,
a
within the
including generically
it is observed
held view that
a
of an earlier
curtilage appears
recognition
against unreasonable
searches
protection
Fourth Amendment
constituting
protection
property
in a
seizures was rooted
Thus,
domicile,
own
castle.
outbuild-
personal
his
man’s defendable
sheds, barns,
like
were built
ings
garages and the
which
including tool
part of a
integral
considered to be such an
adjacent
to a house were
lying
as
figuratively
considered
man’s home
traditionally
man
home and
or
area that
called
“fenced”
“walled”
by
denied access
the fence
from which all could be excluded and
personal
within that same
legitimately
wall. Likewise
(i.e.,
protection.
same
Several de-
was afforded the
curtilage)
area
secure in the
protection relating
right
ago,
cades
this
“exclusionary
Su-
packaged
adopted
rule”
“house” was
law the
preme
of the United States and made the
land.
Court
expressed
has been
During
past,
the recent
much dissatisfaction
exclusionary
laity
to the strictness of this
judicially as well
very
originally
same
laid down the definition
rule.
court
concept
process of re-
application
began
set forth
as a
its
in Hester v. United
Supreme
403 thickly example ... a wooded area speech. are used in common For is used in open construing an field as that term may nonetheless matter, Thus, practical such are the Fourth Amendment.” as areas (even to a open public trespasser) accessible to the view and office, home, an ways that a or a commercial structure Oliver, supra p. would not be. at 179.
Thus as afforded to the protection originally it is concluded concept of As grounded protection property. was a indicated, law, previously curtilage was at common that fenced immediately area which projects adjacent an area outside but home, intimate sanctity of a associated with Boyd United privacies life. See 116 man’s home and the of 616, 524, U. S. SC LE part As an extended of itself, protection. home thus Fourth afforded Amendment However, stated, hereinbefore as we believe that within the Amendment, protection Fourth of of has concept (through repeated evolved looks refer- interpretation) and now of ence factors that indicate reasonably whether individual expect immediately adjacent area will remain private, home i.e., a United States v. expectation See, privacy. e.g., reasonable of Knotts, 276, United 1081, 55); 460 U. S. 280-281 SC 75 LE2d States v. Dyke, Van result, 643 F2d 993-994. As a we conclude no person rational have expectation privacy can a reasonable of in an open yard area such as or a even in where the yard garden casually contents are public view. See Pruitt, United States v. Maryland, Smith v. 494. U. 464 F2d S. Katz, held: “Consistently LE2d uniformly this Court has application held that the Fourth depends person Amendment on invoking protection whether its ‘reasonable,’ claim ‘justifiable,’ can ‘legitimate expectation or a privacy’ that . . . inquiry has been invaded. . This . . em- normally braces two discreet questions. [1] . . . whether individual. . has . exhibited an (subjective) expectation ‘actual S. privacy.’ 289 U. at . . . (some- preserve individual has shown ‘he seeks thing) private.’ Id. at question 351. The second is whether indi- vidual’s subjective expectation pre- that society is ‘one *4 pared to recognize as ... reasonable’. Id. at 361.”
As an example, it is suggested plants that one marijuana who (and among petunias his yard the front has clearly curtilage) no reasonable expectation privacy of when in is in fact plain view passersby Likewise, to on the street and sidewalk. one who (or deposits grows marijuana) backyard adja- contraband in his even to his position cent home such a passerby that a who can see through or fence readily over a and thus can view contraband See State v. likewise has no Lyons, expectation privacy. reasonable of 285). Today protection afforded to SE2d Ga. expectation “curtilage” is no or no less that reasonable more than reasonably expects privacy be af- to of to which the home resident supra p. Oliver, at home. forded his secluded activities may expectation privacy of fn. be, a landowner’s 12. However reasonable view) (open expectations grounds to casual cannot convert those p. supra Oliver, at 184. While into “house” or “effect.” a appellants subjectively may true have intended that private, growing remain the circum- behind the barn to open subject planting in to render stances expectation view that supra p. privacy non-justifiable. Smith, 740. at open exposes one then, where to In substance we conclude that right contraband, is his to reasonable view that which forfeits pub expectation person knowingly exposes privacy. “What a lic, office, own of Fourth Amend even his home or is not p. question protection.” supra Katz, at In such a ment of forded the home dweller and the 351. protection curtilage” “lying limited to the af within the should be (i.e., making up property the home outbuildings, structures, barns, normally of which and enclosed contents reasonably expected exposed can to re
are not and thus exposed by private) grounds view a de main liberate course of action the and not extended whereby offers the contraband the dweller opportunity fact, of those have the to view. The mere view who every instance, to se that homeowner makes conscious effort by signs, protect placing, Trespass” “No en clude and closing secluding fence, area, in wooded will not shelter activity protect criminal ment. withstanding nor under the Fourth Amend supra p. manifestly Oliver, fn. for not at 13. This is true protect long area,
such so it is not effort to hid police may expectation sight public survey enclosure, den pri reasons, lands from the air. such asserted For vacy expecta exposed view of contraband an area is not an society supra p. recognizes Oliver, tion at that our as reasonable. 170. fields) (i.e., it is true some areas are While trespass, protect necessarily rights laws included within the which those laws are
rights protected by Amendment, the Fourth right trespass laws extend to instances where the exercise of p. supra legitimate Oliver, at interest. exclude vindicates no 183, fn. 15. supra; 808, 809, Landers Earlier cases such as v. 53) Nichols, v. Norman v. State (1) (216 App. 767,
State, prior Ga. cases are decided supra, clearly distinguishable or are to Oliver United (indeed general giving definition of Landers State other than position adopted, “curtilage” i.e., herein consistent with *5 view, in open though curtilage, from even the is hidden protection). point We seek to out to a Fourth Amendment changed pro- that the state of the law has from a bare statement part tection is “garden curtilage” afforded because a is of the question exposes of whether one who contraband to view even curtilage may expectation privacy. still claim a reasonable In cases, necessity scope the three of determining curtilage of the (including garden) proximity was made because of the of the stash Norman, supra, In contraband the home itself. contraband view) (i.e., sight was out of in a truck but the truck was within 250 feet of the house and 100 feet of the barn. That made case, parking supra, In Landers curtilage.” site “within the van, sight appellants’ though parked the contraband was out of but protec- close to a residence was not within the curtilage but afforded case, tion In notwithstanding. supra, though apparently the Nichols court perhaps this concluded that while a roto-tiller lying ap- on the pellant’s (a yard adjacent his might point trailer State) conceded in the trial court application that rule had no roto-tiller, for the trailer, even if close to “in plain view” and occurred, thus even if a “seizure” there was no search. (or open ground this “garden” appellants chose to it)
label lay behind Pretermitting the barn. its location within the curtilage, for all the facts show the could have approached the “garden” house, without passing (i.e., ever or garage the barn the curtilage) simply by coming opposite from the direction. Never- theless, location, regardless of its appellants it is clear that deliber- ately chose to grow (i.e., a non-enclosed area outside any structure) kind of and thus open plain view to having those opportunity approach (or pass by garden). field The facts reasonably support trial court’s conclusion deputies that the were present premises on the looking Gravley and not conducting a search for marijuana. Upon seeing suspicious activity plain sight, the officers only had not the right duty but the to investigate the un- usual in progress within Williams, their view. See Adams v. 407 U. S. 612); Stiggers 32 LE2d (1) Ga. circumstances, ap- Under such pellants any waived expectation reasonable privacy and forsook any protection otherwise afforded the Fourth Amendment. For the reason, appellants same cannot protection simply by invoke such claiming “garden” part expression was a as that is interpreted by the current state of law protection against un- reasonable herein, searches and seizures. As earlier observed a con- curring opinion in Oliver v. United Justice White observed: “However expectations be, reasonable a landowner’s ” expectations those cannot convert a field into a ‘house’ or an ‘effect.’ of the trial court affirmed. Accordingly, judgment J., J., concur. McMurray, Pope, P. Judgments affirmed. Banke, J.,C. JJ., Deen, J., Carley Beasley, specially. concur P. Benham, JJ., Sognier and dissent. Judge, concurring specially.
Beasley, I do route charted separately because not take same concur who, do, Ias find no Fourth Amendment viola- by my other brethren tion.1
First, which I “expectation” questions, the and “curtilage” as to I, too, by logic not led law or controlling, do consider to am not seized place marijuana the from which the was was conclude I resi- curtilage persuaded the house. am not the outside the of in expectation privacy gar- claim of justifiable dents could not den, expectation privacy part of in that or that their of subjective society recognize prepared their is not premises one which reasonable. was and thus say garden curtilage
To outside the not “open in the first because classified as place simply field” mean that officers could have come doctrine would upon tip which their indi- garden and searched in of Considering cated had it. the nature this growing it, property, composition upon of the and de- improvements it, “open I do not field” doctrine relationship fendants’ believe “ applies. is to place curtilage ‘Whether the searched is within State, 104, facts, Payton App. . . .’” Ga. determined from 177 (1) (338 462) State, (2) (1985); 178 10 105 SE2d Meeks v. Ga. 880) (1986). residence, trailer, approached by
Defendants’
a double-wide
was
driveway
running
off a dirt
from a state road. A small car shed
road
it,
it,
directly
garden
was
a barn
and a
was
behind
behind
behind
corn, tomatoes, okra, beans,
garden,
The
had
barn.
which
and
marijuana plants,
other
in it as
vegetables growing
well as the
about 100 feet from
to back
could not be seen from the
front
and
roadway
yard.
pine
garden
or the front
Tall
trees obscured the
view,
yards away.
aerial
and
next residence was several hundred
testimony
photos
in
displayed
described
in
diagram
“open
category
does not fit into the
fields”
envisioned
898) (1924)
States,
U. S.
SC
LE
Hester v. United
68
1735, 80
v. United
recognition of the Founders that certain enclaves should arbitrary government supra Oliver, be free from interference.” at 178. plot, public Here we have a small not accessible to the either physically path view, house, close with a to it from the barn front of it. distinguished ‘open “[T]he common law from the ‘curti- fields’
lage,’ immediately surrounding the land and associated with the home law, ... At common is the area to which extends the ‘sanctity intimate associated with the of a man’s home and privacies part life,’ . . . and therefore has been considered purposes the home itself for Fourth Amendment [C]ourts . . . have defined the ... reference to the factors that determine reasonably may expect whether an individual that an area immedi- ately adjacent private.” supra Oliver, to the home will remain at 180.
Applying “expectation” criteria to the this legitimate expectation would conclude that the residents had a that it constitutionally by govern- would be free from warrantless intrusion ment officers. The fact that contraband was does not legitimacy aspect expectation privacy; alter the did, if it then necessary no warrant would be for even a home in which there was personal gardening, plot A contraband. resident’s in a small close to *7 public his home view, and shielded from comes within the described above. Otherwise warrantless searches could be made of backyards they just and other areas close to the house because were supra Oliver, uncovered areas. 180, But as said at fn. 11: “It is clear ‘open may any unoccupied . . . that the term fields’ include or unde- veloped curtilage.” supra, area Meeks, outside of the In we held that particular gardens encompassed involved were within the warrant authorizing curtilage. a search of the inquiry
That, however, does not end the as to whether the seizure my opinion, in this case was lawful. it was. gone The officers had to the residence to talk to about tip. They through saw him look at them the window and were They
told that he would come out of the house to see them. waited gone and then learned that he had to the barn. One went to the barn speak through open hallway and, to male with him barn, the to saw a moving rapidly place place behind the barn. Still seek- ing Gravley, the officerwent around to the back of the barn and there Gravley pulling marijuana plants vegetable garden saw out of the throwing them over the barbed wire fence. position legitimate occurred,
When this the officer was in a prior premises observation. He had made a valid intrusion on 408 Brooks, State v. resident. to the to talk tip by seeking
investigate the (1981). that cir- 95) He had not violated (287 SE2d 381 App. Ga. 160 any- going or uninvited the house by entering intrusion cumscribed he was di- house to which outside the place other than where may approach the If officer task. an fulfill a lawful in order to rected with the contact legitimate make in order to dwelling outer door of (279 State, 814, v. 819 in Gilreath recognized citizenry, as carport adjacent in a storage room 650) (1981), may enter a Reed arrest, sought to person for a dwelling to look 469) per- follow a (1982), surely he Ga. him, place on the speak is aware he wants son he knows Similarly person goes. which the home itself to premises outside the (307 SE2d Lyons, in State v. of affairs to the state present were “plain view” seizure (1983), for a prerequisites it. and authorized in this joins Been Presiding Judge
I to state am authorized special concurrence. dissenting. Judge,
Sognier,
First, Oliver United
466 U. S.
dissent.
respectfully
no
214),
majority,
has
upon
LE2d
relied
SC
majority recog-
and the
curtilage,
within the
application
property
Oliver does noth-
curtilage.
garden
here was within
nizes that
enunciated
less,
fields” doctrine
more,
“open
iterate the
ing
or
than
States,
Secondly, majority statement by any of record. unsupported casual view is evidence *8 residence, only and could yards appellants’ 70 to 80 behind shed, residence, past and by going reached to the rear or from barn; passerby be observed through the it could not fact, that he could not see only air. In State witness testified is itself. Nor edge until he was at the marijuana growing police majority statement support there evidence to
409 direction where approached from a different passersby could have speculation, but the only view. Not is this mere to Thus, majority’s a conclusion. exhibits the case controvert such who situation here with someone attempt analogize the factual exposed to the yard, in their front plants marijuana a flower in this case. by the facts passerby, view of a casual is unwarranted (see Coolidge Hampshire, v. New “plain doctrine view” 564)), search is 2022, occur until a U. S. 443 SC 29 LE2d does not 467, that he only witness testified progress, id. at and the State’s Further, fall the case does not within conducting was not a search. within the cur- because the officer had intruded “plain view” doctrine State, 270, Bunn v. tilage marijuana. before saw the 88) (1980). (2) (265 house is yards A barn 70 or 80 from the (1) (216 767, Norman v. curtilage, within the 644) (1975), fact there is no fence is immaterial. “Prima and the of the owner without a war- facie, curtilage a search made Bunn, supra (Emphasis supplied.) rant is unconstitutional and void.” probable had no warrant and no cause at 272. Here the officer search, appellants’ tip on a second hand but went to residence garden. in his “The appellant Gravley “may growing marijuana be” probable cause by police curtilage, intrusion officers into the without warrant, arrest, exigent without circum- search or without a stances, Bunn, subsequent supra at 275. rendered the seizure invalid.” deputy activity” saw some “unusual regard fact that the suspicion deputy’s no garden, this raised more than a mind, Wong Sun v. “suspicion” is not for a search. ground a valid 441). States, 407, United SC 9 LE2d Nor can 371 U. S. activity” equated police “unusual to a situation where a officer sees being presence, a crime committed in his since does unusual equate not to a crime.
Lastly, adopt rule elimi- majority enunciated would police nate the need officers to obtain a search warrant before in- truding upon person’s give police right to roam curtilage, will, over the or evidence that is seizing any at contraband I the rule completely hidden from view. do not believe this is law. The existing hopefully, under law and it shall never become the Supreme Court of United States has stated that some “[a]bsent grave interposed magistrate emergency, the Fourth Amendment has right . . The between the citizen and the . precious job discretion of those whose
deemed too to entrust McDonald v. the detection of and the arrest of criminals.” crime LE No U. 455-456 United S. here, appel- only since the officer went “grave emergency” existed Gravley. lants’ residence to talk to reasons, intrusion into the foregoing
For the find the *9 arrest, war- without a to search probable cause here was without hence, was ille- circumstances; the seizure rant, exigent without and that ground reverse on the Bunn, supra. Accordingly, I would gal. theory of law. any existing under unjustified and seizure was unlawful Judge Ben- Banke and Judge Chief to state that authorized am in this dissent. join ham Rehearing. Motion
On and the evidence we have reexamined rehearing, On motion for and seizure illegal search pertaining to the asserted arguments related and Grav- of both Botts renewed on behalf again advanced and once issue was disposition of this original that our ley. are satisfied We thereto. correct and will adhere State, Botts appellant Botts Case No. relation to misconduct in prosecutorial opinion ignored we
contends that our attorney of one of the arrest- by the district during examination that of Ms. Botts at the officer’s observations ing concerning officers after she had arrest, to her silence the officer testified scene of her questioning that such Miranda warnings. Botts contends been given State, Phillips by this court has been condemned Lowe v. and Botts case reflect that shortly police after the The facts Gravley, Botts left the residence to talk with officers arrived later, and sat on the 10-15 minutes she returned automobile. About escorting officers police She observed the porch front of the residence. police car. Gravley cuffed his back toward with his hands behind out in a loud voice to disputed, appears that called Though they had say nothing she should until Botts words to the effect that attorney. Gravley had been removed from the scene seen an After vehicle, police continued to look for other the officers com- premises. inspection on After the was might growing Ms. Botts was seated and pleted, one of the officers walked to where her of her Miranda her that he would not rights. He then told advised that he would take out a warrant for arrest her at that moment but she had growing possessing marijuana. her arrest Because and children, during and later on small he told her when it was convenient day appear she should at the sheriff’s office with a bondsman marijuana charge surrender herself on the and she would be allowed to make bond. information, attorney had elicited the above he
After the district inquired registered to whether Ms. Botts had officer as surprise or other manifestation of emotion. emotional or facial expression neutral and ac- The officer stated Ms. Botts remained tions. objected elicited,
When this was evidence the defense unsupported opinion. answer called for a conclusion Later in re- or an pursued by examination, direct same defense counsel. (the trial), day day
On the next for the first second counsel citing supra, Phillips ques- Lowe, time and contended that the expressions tioning concerning Ms. Botts’ and actions violated her right by attempting right Miranda to breach her to remain silent. We find no Miranda under violation these circumstances. Both Phillips, supra supra, Lowe, involved situations where de- having right fendant, silent, after been advised of the to remain specificallywhy verbally respond way explana- asked did not *10 incriminating tion when with confronted an Thus in situation. both Phillips dealing Lowe, the court was with reference a failure of response, suspect’s a testimonial thus direct reference inculpating verbal silence of face an situation. only thing presented party’s physical
In this awas third by response of observation Ms. Botts. No verbal mental Ms. Botts by way question. was elicited of She was not asked to make state- explain any expert ment nor to situation. This is tantamount an testifying properly to the alcoholic content of blood drawn or a sus- pect being incriminating garment able to an his wear or fit foot into a impression. examples foot Other are a officer’s of observations testimony intoxication at the time confrontation on that when con- suspect incriminating, situations, fronted the have never been deemed fled. These latter while rights
violative Miranda for none involve by suspect. State, nor testimonial coerced admissions Creamer v. 350); 229 Ga. Armstead, 516-517 SE2d see State v. 152 Ga. (1) App. 56 SE2d One critical in the issue case Botts involved whether she had a proprietary knowledgeable interest and was of the con- guilt possessing tents of the sufficient to sustain her growing marijuana. knowing growing gar- She denied what was though premises den she admitted she on lived and she was aware companion marijuana. that her live-in well have used voluntarily expression That she exhibited facial or action not amounting surprise growing to words no that was found very jury’s relevant relation to the determination of knowledge. her
Though previously addressed, this issue was not findwe no merit in the enumeration of error and adhere to our affirmance of convic- tion relation Ms. Botts.
Rehearing denied. specially. concurring Judge,
Carley, resolu- majority’s regard with reservations I have serious prosecu- Rehearing.” for “On Motion issue discussed tion ap- reactions would post-Miranda Botts’ inquiry appellant into tor’s intimates. majority than the more extensive be much pear the lack of a between majority drawn Likewise, the distinction emotional re- lack of an and the being arrested response to verbal However, at best. to be tenuous appear event would to that sponse merits, I do not believe as to the my reservations notwithstanding Supreme Our review. appellate preserved has been the issue in a criminal the defendant upon it is incumbent held that Court has testimony given as was such State’s elicitation object case to State, Alderman See instant case. was an at the objection 642) (1978). case, although there In this State, objection by the testimony was elicited time upon ap- infringement impermissible inquiry constituted ground was silent. That right to remain constitutional pellant Botts’ mistrial on the second moved for a counsel until defense not raised admitted. testimony already had been trial, long after the day of the ap- circumstances, preserved has not been the issue Under these that be- [testimony] objection to “[Tjhere was no pellate review. ground for mistrial on of the motion [was came the Amendment appellant’s impermissible comment [Fifth on] ‘(A) into evidence. [testimony] was time the at the rights] [allowed] objection, is admitted without evidence will not lie where mistrial contemporaneously not made for mistrial ([cit.]) and a motion timely. motion not makes the misconduct alleged [Cit.]’ [Cit.]” (1986). (6a) (339 Ac- 418-419 Flynn v. *11 finding of no majority’s I cannot concur cordingly, although Botts’ conviction appellant error, I that reversal do believe required. 4, 1986 Decided December
Rehearing denied December Bray, H. Michael appellants. Moss, Assistant Dis- III, Attorney, Garry T. Banks District Rafe Attorney,
trict appellee.