Following a bench trial, a Floyd County Superior Court judge found Patches Pledger guilty of two counts of possession of marijuana with the intent to distribute, OCGA § 16-13-30, and possession of a firearm during the commission of a crime, OCGA § 16-11-106. Pledger appeals from the order denying her motion for new trial, contending the judge should have suppressed evidence seizеd from her *795 home pursuant to a consent search. Because the search was tainted by an illegal entry into Pledger’s home and an illegal seizure of her person, we reverse.
On appeal from a motion to suppress, the evidence is viewed in a light most favorable to upholding the trial court’s judgment. The credibility of witnesses and the weight accorded their testimony rest with the trier of fact. Thus, the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. Where the evidence is uncontroverted and there is no issue as to witness credibility, however, we review de novo the trial court’s application of the law tо the undisputed facts.
(Punctuation and footnotes omitted.)
Sanders v. State,
Pledger’s home is a small row house. The back door, which opens into the kitchen, is about 15 feet from the main living area. The home, which had no electricity, was illuminated by a single lamp connected by an extension cord to a neighbor’s electrical outlet. When the officers arrived after midnight, Pledger was not home. The officers were in plain clothes, but their badges were visible. A young man answered the door. The officers testified the man appeared to be between 17 and 21 years old. However, the record shows that no officer checked the man’s identification or made any effort to determine if he, or the other young man with him, was an adult. Furthеr, the officers did not determine whether the two men lived in the home or were related to Pledger. Although the officers believed the man *796 who answered the door was “sort of in charge” of the residence, they did not ask him for permission to search because they knew Pledger “was the occupant of the residence.” The officers asked to enter and await Pledger’s return. The man complied. Three officers went inside; a fourth remained outside in the patrol car.
Two of the officers testified that when they entered the home, they detected the odor of burnt marijuana; however, the officers saw no smoke, could not detect the origin of thе odor, and were not even sure that the odor was from marijuana smoked that night. Nevertheless, based on the odor of marijuana, the officers decided to get a warrant to search the home and, in the meantime, “secured the residence.” The officers waited about 45 minutes for Pledger to return. While they waited, the officеrs handcuffed the men and detained them both in the living room. An officer testified that the two men were not free to leave.
When Pledger returned home through her back door, she was met by a police officer standing in her kitchen. Pledger’s guests were in handcuffs in the living room, accompanied by a second officer. A third officer was in а back room, just off the kitchen. A fourth officer entered the home shortly thereafter, so that all four officers were present in the home when Pledger consented to the search of her home.
The officers testified that they decided to get a search warrant before Pledger returned home. But, according to one officer, “Pledger arrived and gave consent before we got the search warrant,” obviating the need to secure the warrant. The officer who allegedly went to get the warrant, however, is the same officer who had Pledger fill out the consent to search form when she arrived. This officer is also the one who received the informant’s tip. Yet, the State did not call this officer to testify. Although the State introduced what appears to be a consent to search form, it was not signed 2 by Pledger. The resulting search of the home revealed an ounce and a half of marijuana, $60, a handgun, and some drug paraphernalia.
In four related enumerаtions of error, Pledger contends the trial court erred in denying her motion to suppress the evidence seized. Pledger argues the police lacked authority to enter her home, that her consent to search was the product of that illegal entry and the subsequent seizure of her person, and that the evidence seizеd was tainted by the preceding illegalities. We agree.
The State bears the burden of proving that both the search and seizure of evidence were lawful. OCGA § 17-5-30 (b). To justify a war-
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rantless search on the grounds of consent, the State must prove the consent was voluntary under the totality of the circumstances.
Raulerson v. State,
The Fourth Amendment states that people “[shall] be secure in their persons, houses, papers, and effects, against unreasonаble searches and seizures.” As this Court has stated:
“A man’s home is his castle. The storm and wind may enter, but the King cannot enter, and all the forces of the Crown cannot cross the threshold of his ruined tenement.” These words by Lord Eldon served as the basis for that portion of the Fourth Amendment in the Bill of Rights declaring that the people shall be secure in their houses against unreasonable searches and seizures.
(Footnote omitted.)
Hogan v. State,
A warrantless entry into and search of a residence may be authorized by the consent of any person “who possesses common authority over or other sufficient relationship to the premises to be searched.” (Citations omitted.)
Smith v. State,
mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.
Id. at 88 (2), citing
United States v. Matlock,
There is no evidence in the record establishing Pledger’s relationship to the man who let the officers into the residence or the extent of his authority over the residence. There is no evidence that he was a tenant or a resident guest or otherwise a “co-inhabitant” of the premises. We cannot even be sure from this record whether the man was an adult. Although the police speculated the man was a social guest who was left “sort of in charge,” there are no facts establishing the man’s status or the extent of his authority. Under these circumstances, the police could not reasonably assume the man had Pledger’s authority to allow them into her home in her absence. Seе
Illinois v. Rodriguez,
When Pledger returned to her home, she was met by four police officers who had no authority to be inside. Given the circumstances of this case, however, it is vеry unlikely that Pledger appreciated this *799 and understood that she could ask the officers to leave. That is because the officers’ illegal entry was further exacerbated by these factors: It was the middle of the night. 4 Pledger’s guests had been handcuffed and detained 5 in her living room by a police officer. Four police officers bearing badges and possibly intimating that a warrant was forthcoming 6 were standing in her small, dimly lit home. This *800 scene is one which strongly suggests an “undertaking which is not entirely dependent on the consent and cooperation of the suspect.” United States v. Edmondson, 791 F2d 1512, 1515 (1) (11th Cir. 1986).
The only remaining issue is whether Pledger’s consent was the product of these preceding illegalities — the “fruit of the poisonous tree.” See
Wong Sun v. United States,
in order to eliminate any taint from an involuntary seizure or arrest, there must be proof both that the consent was voluntary and that it was not the product of the illegal detention. Proof of a voluntary consent alone is not sufficient. The relevant factors include the temporal proximity of an illegal seizure and consent, intervening circumstances, aiid the purpose and flagrancy of the official misconduct.
(Citations omitted.)
Brown v. State,
Judgment reversed.
Notes
The lead investigator explained:
[W]e knock on the door, talk to the person, ask them for consent, you know, let them know that we’ve - we’ve got a complаint; would you mind if we come in and look, and we get them to sign off on that. We go in and just basically check. . . .You - you knock on the door. You smell marijuana. Well, there - there’s your probable cause. I mean they either allow you to go ahead and search the residence or you seize the house, secure everyone thеre, and obtain a search warrant, and come back in and search the residence with a court order.
It appears that Pledger put her name next to the space at the top of the form which provided “I, Patches Pledger, having been informed. . . .” However, contrary to the officer’s testimony, her signature does not appear at the bottom of the form beneath the text authorizing the police to search her home.
Once an officer physically enters a home, he is “searching” it in that he is observing it with his senses. This is why evidence discovered in “plain view” (or smell, hearing, or touch) during a warrantless search of a home is generally suppressed if the officer detects the evi
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dence from a place he is not legally entitled to be. See, e.g.,
State v. Peterson,
[T]he plain view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer only if the officer’s access to the object itself has some prior Fourth Amendment justification. Horton v. California,496 U. S. 128 , 137, n. 7 (110 SC 2301, 110 LE2d 112) (1990); Illinois v. Andreas,463 U. S. 765 , 771 (103 SC 3319, 77 LE2d 1003) (1983). See also 1 LaFave, Search & Seizure 399, § 2.2 (a) (3rd ed. 1996). The officer gains access justified by the Fourth Amendment by obtaining a warrant, obtaining consent, or by the existence of exigent circumstances which require the officer to act immediately without warrant or consent.
(Emphasis in original.)
State v. David,
We have some concern about the officers’ decision in this instance to approaсh Pledger’s home and to seek her consent to search near midnight. As the Eleventh Circuit Court of Appeals recently noted:
Nighttime searches are deemed to be more intrusive than daytime searches, and the assemblage of law enforcement officers at one’s door in the middle of the night has a tendency to be more coercive than during the day. See United States v. Jerez,108 F3d 684 , 690-92 (7th Cir. 1997) (Where the officers roused the defendants from their beds in a motel in the middle of the night by knocking on the door for three minutes, shined a flashlight through the window, and requested that they open the door, the defendants were “seized” as a reasonable person in their situation would not have felt free to ignorе the deputies and continue about their business.); Fonte not v. Cormier,56 F3d 669 , 675 (5th Cir. 1995) (The deputies’ conduct in abruptly awakening the defendant in the middle of the night to ask if they could enter the residence and refusal to leave the residence thereafter constituted a “show of authority” that was unreasonable.); Harless v. Turner, 456 F2d 1337, 1338-39 (10th Cir. 1972) (per curiam) (No legally effective consent was given after a number of sheriff’s deputies invaded the defendant’s home in the middle of the night and forced the defendant and his wife out of bed.).
United States v. Ramirez-Chilel,
We find no law authorizing the officers to handcuff and detain Pledger’s guests under these circumstances. Both were “seized” within the meaning of the Fourth Amendment because “by means of physical force or a show of authority ... in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (Footnote omitted.)
United States v. Mendenhall,
Although the record reveals nothing concrete on this point, it contains disturbing hints that the officers may have, by words or actions, conveyed to Pledger that she should
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consent to a search of her home because a warrant was forthcoming. In fact, the officer’s description of the “knock-and-talk” technique seems to imply that consent to searсh is routinely presented as the only alternative to an immediate seizure followed by a warrant. See footnote 1, supra. “When an officer represents to an accused that a warrant to search will be obtained if consent is refused, and does not have probable cause to secure the warrant, then the accused’s consent is invalid.” (Citation omitted.)
Darby v. State,