Defendant appeals his conviction of trafficking in marijuana, OCGA § 16-13-31 (c). He enumerates as error the denial of his motion to suppress evidence which he contends was illegally obtained, OCGA § 17-5-30, and the failure to fully grant his motion for independent examination and analysis of alleged contraband substances.
1. “ ‘On appeal of the denial of a motion to suppress!,) the evidence is to be construed most favorably to the upholding of the findings and judgment made.’ . . . The trial court’s findings must be adopted unless determinеd to be clearly erroneous.”
Dennis v. State,
Based upon an anonymous telephone tip that marijuana was growing in defendаnt’s backyard, two deputy sheriffs and a GBI agent proceeded to his residence. There they found the yard enclosed partly by a high brick wall and partly by a wooden fence about eight feet high. Unable to view anything from the portion protected by thе *818 brick wall, the three officers moved through a heavily wooded area in the back to the wood fence. There they looked through cracks in the fence into the backyard and saw marijuana plants growing. The officers began to return to their automobile through the woods when one of them saw a light-haired person above the fence, who ducked down as he glanced. They then ran.
The officers conferred among themselves and with their superior by phone. They determined that, becausе they had been seen by a person at the house, evidence inside the house such as more marijuana, money, records, and ledgers, might be destroyed before they could obtain a search warrant. After calling for and obtaining backup, they proceeded to the house. Defendant’s wife, who looked like the person the officers had seen earlier, answered the door knock and, in response to a question, said she lived there. When she indicated she needed to quiet her dogs, they followed her into the living room and arrested her on a charge of manufacturing marijuana. Upon entry, one of the officers smelled what he perceived to be burning marijuana. Once inside they observed a burning marijuana cigarette and green leafy material in a plastic bag. After the arrest, which was occasioned by the backyard marijuana, the officers conducted a search of the house, during which time defendant’s wife signed a consent form. They later obtained a search warrant.
Whеn defendant arrived home, he was arrested for manufacturing marijuana, and subsequently charged with trafficking in it. He contends that all the marijuana found in his house as well as the growing plants in his yard was illegally seized in violation of the Fourth Amendment of the United States Constitutiоn and the Georgia Constitution and laws.
We consider only whether the arrest and search were legal under federal constitutional law because defendant has not otherwise separately articulated state law on appeal. An independent issue has not been adequately presented.
Bonds v. State,
“[A] police officer who observes contraband in plain view is entitled to seize it, so long as he is at a place where he is entitled to be, i.e., so long as he has not violated the defendant’s Fourth Amendment rights in the proсess of establishing his vantage point.”
State v. Aultman,
The evidence is unclear exactly where the boundary of defend
*819
ant’s land was, in relation to where the officers were when they peered through the wooden fence. Defendant and his wife testified that the fenсe was approximately one-and-one-half to two feet inside the boundary line but there was no documentary or disinterested evidence to confirm their self-serving statements that their property extended beyond the fence. The trial court found that the point of the officers’ observation “was not precisely established by the evidence.” The court found that they were either on or within one foot of the line separating defendant’s property from that of adjoining land. There was no finding that the officers had transgressed onto defendant’s property. Credibility and weight are matters for the factfinder, who could reject the occupants’ testimony as to property line.
Woodruff v. State,
“Plain view” as used by the Georgia courts should not be confused with the “рlain view doctrine” as described in
Coolidge v. New Hampshire,
One issue was whether the observation occurred from a constitutionally protected area. The trial court’s finding of fact that the officers did not trespass upon defendant’s property was nоt clearly erroneous. Moreover, even if they were on or within the defendant’s property line by the short distance claimed, it would constitute a “valid intrusion” under the circumstances. These included the fact that it appeared that the property beyond the fence belonged to the neighboring lot and the fact that defendant had not protected it from view in any manner whatsoever. As to “valid intrusion,” see
State v. Zackery,
supra, and cases cited therein. Compare
Bunn v. State,
*820
The other issue with regard to the observation of the marijuana is whether deliberately looking for it, and seeing it, through narrow gaps between the fence boards was constitutionally permissible. “The touchstone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.’
Katz v. United States,
As to the first part of the inquiry, placing an eight-foot high slat fence around one’s backyard would normally manifest a subjective expectation of privacy and did in this case. But, this did not cover all observations from any vantage point such as from the air or from someone perched in a tree looking over the fence. Defendant’s expectation of privacy from observation through openings in the fence would not be a reasonable expectation. As restated in Ciraolo, supra at 212: “ ‘(t)he test of legitimacy is not whether the individual chooses to conceal assertedly “private” activity,’ but instead ‘whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.’ [Cit.]” Applying the reasoning followed in Ciraolo, the observation into Merriman’s curtilage, which did not constitute any physical tampering with the fence or intrusion into or beyond it but merely a visual exercise, did not violate defendant’s right to a reasonable expectation of privacy.
We take counsel in this analysis from the following cases. In
State v. Pontier,
The observations by the officers gave them probable cause to believe a felony had been committed by the occupants of the property. The procedure then would be to obtain search and arrest warrants. This is especially true as to the marijuana field because two of the officers could have remained bеhind and determined if any effort was made to destroy or dispose of it, while the third officer obtained a warrant. However, because one of the deputies had seen someone watching them from the house, they determined that, evidence contained in the house might be destroyed or concealed. The evidence was in dispute as to whether the person was or physically could have been seen. The trial court’s finding in this regard is not clearly erroneous. Dennis, supra; Johnson, supra; Medders, supra. On this basis, they arrested defеndant’s wife when she said she lived there and they conducted a warrantless search of the house incident thereto.
An arrest or search which takes place in defendant’s home without a warrant and without either exigent circumstances or his consent violates the Fourth Amendment.
Thompson V. State,
In exigent circumstances police officers are authorized, pursuant to a lawful arrest, to enter premises and conduct a search.
State v. Camp,
The trial court also concluded that the officers reasonably believed that they were confronted with an emergency, in which the delay necessary to obtain search warrants threatened the destruction of the evidence. See
Schmerber v. California,
After the lawful arrest, the search of the house for the purpose of securing it and preventing the destruction of evidence was permissible.
Strickland v. State,
The evidence authorized the factual findings of the trial court,
Hanvey v. State,
2. The second inquiry focuses on the marijuana itself. Defendant sought to have an independent examination of the alleged contraband under
Sabel v. State,
Defendant contends that the order was error because the State failed to show the total weight of the marijuana was at least 50 pounds. See OCGA § 16-13-31 (c) (1). There was evidence that the marijuana weighed 400 pounds. Fifty pounds is the minimum weight for this offense. OCGA § 16-13-31 (c).
Judgment affirmed.