After the trial court granted Jerry McTaggart’s motion to suppress, the State filed this appeal. The trial court determined that McTaggart did not authоrize police to conduct a search of the interior of his home. Since the court’s ruling was not clearly erroneous, we affirm.
“A trial court’s decision [on] questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous.
*853
[Cit.]”
Garcia v. State,
On December 26, 1997, emergency assistance was summoned to McTaggart’s home after two Rottweilers savagely mauled the three-year-old son of McTaggart’s girlfriend. Responding to a 911 call that a child in the yard had been attacked by dogs, poliсe arrived at McTaggart’s home shortly after other emergency personnel. McTag-gart lived with his girlfriend and her two children in a mobile home that hаd a large fenced yard with a gate. 1 After the boy, Dakota Randolph, had been evacuated by a Life Force helicopter, McTaggart hurriedly left home hoping to intercept the helicopter at Erlanger Hospital. As McTaggart ran to his vehicle, having been informed that authorities would be remaining for a while, he told police something to the effect, “[d]o what you have to do and lock the gate when you’re dоne.” McTaggart did not ask police to check his household appliances or to ensure that any doors or windows were locked. He mentioned only the gate.
Police remained on the premises for a couple of hours, taking photographs and investigating the accident/crime scene of the incident. The Rottweiler attack had occurred outside in the yard, and the child’s injuries were so serious he died before reaching the hospital.
Detective Dan Bilbrey, an investigator from the Catoosa County Sheriff’s Department, and Captain Loren Schmidt, heаd of the detective division, entered McTaggart’s residence. When asked if he had ever obtained anyone’s consent to enter the homе, Bilbrey replied in the negative. According to Bilbrey, they did so “to make sure that no utilities, stoves, et cetera had been left on and make sure nobody else was inside the trailer that shouldn’t be and to secure the trailer.” Bil-brey admitted that when he went into the house, “everyone was gone” and thаt although he could have just reached in and pulled the front door shut, he had walked through the entire trailer. While on the premises, Bilbrey purportedly discovered several marijuana “roaches” in an ashtray located inside the master bedroom. Bilbrey denied that he was looking for additiоnal blood at the time when he noticed the “roaches.” He claimed that he had wanted to make certain that no appliances had been left on. But a bedroom is not a kitchen, *854 and police had neither permission nor a warrant to search for blood. A sketch of thе trailer’s floor plan indicates that neither the front door nor the rear door is situated near this bedroom. Bilbrey admitted that when the investigators lеft, they did not lock the front door or the gate but just closed them. He also conceded that he had made no effort to obtain a search warrant.
McTaggart, indicted for two counts of involuntary manslaughter, sought to exclude any evidence obtained as a result of an illegal seаrch. He moved to suppress such evidence on the basis that he did not consent to the warrantless and unauthorized entry and search of his home. McTaggart contended that the search of his residence and private living area was illegal, unreasonable, and unconstitutional. The triаl court agreed and granted the motion to suppress. The court noted that although the prosecuting officer testified “that the entry was for thе purpose of securing it and making sure no appliances had been left on,” other “[u]nobjected testimony also established that anothеr detective’s report indicated that the entry was for an investigative purpose.” The court also observed that “[t]here was also ample opportunity for the police to obtain a search warrant, which was not done.”
In its sole assertion of error, the State offers sеveral reasons in support of its contention that the trial court erred, including: that “there was no search at all,” that the officers lackеd any “investigative intent,” that exigent circumstances existed, and that the plain view doctrine applied. We find no merit in any of these arguments.
No evidence showed that police requested and obtained McTag-gart’s permission to conduct a search of his home. Absent exigent cirсumstances or the application of an exception to the warrant requirement, police have no right to conduct a seаrch of a home without a warrant.
State v. David,
Nor was the plain view doctrine applicable. Under that doctrine:
[A] policе 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 process of establishing his vantage point. [Cits.]
Galloway v. State,
Here, the State, which bore the burden of shоwing that the search was lawful, failed to prove that the investigator was at a place he was entitled to be.
State v. O’Bryant,
Judgment affirmed.
Notes
The State and McTaggart stipulated that the two Rottweilers had been at this property for only four days before the day of the attack.