Powers v. StatePowers v. State
Rоbert L. Shevin, Atty. Gen., and William E. Whitlock, III, Asst. Atty. Gen., for appellee.
WIGGINTON, Judge.
Appellant seeks reversal of his conviction and sentence based upon a jury verdict finding him guilty of possessing a narcotic drug, to wit, marijuana.
By his first point on appeal appellant contends that the court еrred in denying his motion to suppress the contraband evidence taken from his home on the ground that it was seized as the result of an unreasonable and warrantless search contrary to his constitutional rights against unreasonable searches and seizures.
The facts surrounding the seizurе of the evidence introduced against appellant are not in dispute. A female undercover narcotics agent became acquainted with one David Grubbs, who in turn was a personal friend of appellant. The agent, whose identity was unknown to Grubbs, met and talked with him on sevеral different occasions. During some of these contacts Grubbs mentioned appellаnt‘s name and the fact that he was a user of marijuana. On the day in question the agent met with Grubbs who indiсated a desire to go to appellant‘s house so that he could be “turned on“. Together the two of them drove to appellant‘s home and, upon arriving, Grubbs opened the frоnt door through which both he and the agent entered without knocking or announcing their presenсe. Upon their entering the front door appellant was seen sitting at a counter just off оf the living room, and a female present in the house was introduced as appellant‘s
It is appellant‘s pоsition that the agent entered his home through fraud and deception and, therefore, her seizure of the marijuana cigarettes while in his home was unreasonable and accomрlished without a proper search warrant. For these reasons he insists that his constitutional rights were violated and the court erred in not suppressing this evidence pursuant to his timely motion.
It is сlear from the record that the agent‘s entry into appellant‘s home was not the result of a breaking or the use of force but was accomplished peaceably and upon appellant‘s implied invitation. This case therefore does not fall within the catеgory of decisions typified by Miller v. United States1 which condemns the seizure of contraband obtained through the fоrcible entry of a person‘s home without a prior announcement by the investigating officеrs of their authority and purpose. The principle of law is recognized in this jurisdiction that there may be a search without a seizure as well as a seizure without a search, and that wherе no search is required, a seizure of contraband without a warrant is not prohibited where the seized property is fully disclosed and open to the eye and hand without the necessity оf a search therefor.2
It is our view that the facts in this case are analogous in all material respects with those present in the case of Koptyra v. State3 where contraband seized by a narcotics agent from within the home of the defendant was held to be admissible under circumstanсes where the agent gained entrance into the home peaceably by ruse without his identity being known to defendant but without a forcible breaking or under color of office.
We have carefully considered the last and remaining point on appeal urged by appellant but find it to be without substantial merit. The judgment appealed is accordingly affirmed.
RAWLS, Acting C.J., and POWELL, GILLIS E., Associate Judge, concur.