Fоllowing a hearing, the trial court granted James D. O’Bryant’s motion to suppress, finding the agents lacked authority to look into O’Bryant’s vehicle which was parked on private premises. The State appeals. For the reasons that follow, we affirm.
“A trial court’s decision of questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous.
Santone v. State,
The evidence presented at the suppression hearing showed the following. Four drug agents of the Marietta-Cobb-Smyrna Narcotics Unit (“MCS”) proceeded without а warrant to O’Bryant’s home to speak with O’Bryant because they had received an anonymous tip of possible drug dealing. Two MCS agents testified they walked around to the side of the residence because they believed there was a living area in the basement. The State never proved there was a living area in that location and that this activity was not a pretext to further explore O’Bryant’s property. Again, there was no response at this door. The agents noticed a black Toyota truck parked in the driveway on the side of the house. Agent Hathaway testified the same truck had been there during an earlier unsuccessful attempt to contact O’Bryant. Agent Cebula testified he had never before seen this truck. Although Agent Cebula testified no vehicles had been present when he visited O’Bryant’s home on July 8, 1993, and in the fall of 1993, Agent Hathaway testified that Cebula had looked into the same Toyota truck on thеir fall 1993 visit and on that occasion discovered “marijuana roaches” in the ashtray.
Agent Cebula claimed he went over to the truck to determine whether the engine was still warm or if the keys were in the ignition. He admitted there was nothing the agents would have done differently if the engine were warm or the keys present, thus conceding he had no valid reason for walking ovеr to the truck. While looking inside the closed and tinted windows, he claimed he was able to discern what appeared to be a plastic bag of marijuana, partially hidden under thе driver’s seat.
Agent Hathaway then left the residence and procured a search warrant for the house and the truck. 1 The search warrant was based *863 on their observation of marijuana on the floorboard, anonymous tips of purported drug activity involving O’Bryant, and the officers’ observation of marijuana in the truck’s ashtray in the fall of 1993. The warrant apparently was founded in part on Cebula’s рrior discovery of marijuana in the ashtray, a discovery which Cebula seemed to repudiate. Although Hathaway testified Cebula discovered marijuana in the truck on two different occasions, Cebula denied even seeing a vehicle on the premises before April 1994.
During the search of the house, drug agents discovered approximately 20 pounds of marijuana in the master bedroom, anabolic steroids, and a pound of marijuana on the floorboard of the truck. O’Bryant was indicted for possession with intent to distribute marijuana.
“[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 process of establishing his vantage point. [Cits.]”
Galloway v. State,
Nor is this a case wherе the drug agents merely approached O’Bryant’s truck on the “same route as would any guest, deliveryman, postal employee, or other caller” and observed contraband. See
State v. Nichols,
The State contends the trial court improperly granted O’Bryant’s motion to suppress because the agent’s аct of peering through the truck’s window was not a search.
Catchings v. State,
Catchings, however, is factually distinguishable. At the time the police officer peered thrоugh the windshield of the automobile in Catchings, the vehicle was located in an area of an apartment complex parking lot cordoned off as part of a crime scene. The owner of a vehicle located in a public lot and behind crime scene tape would not have a reasonable expectation of privacy. But in this case, the vehicle was parked in a private driveway at a private residence.
Similarly, the State’s reliance on Galloway, supra, is misplaced. In Galloway, we affirmed the denial of a suppression motion on dissimilar facts. In Galloway, police were investigating a reported aggravated assault during which a firearm had allegedly been discharged at the victim by the driver of a white van. Id. at 31. Pursuant to their investigation, police arrived at the hоme of the alleged perpetrator about 20 minutes after the shooting occurred. Id. at 32. Although the suspect’s van was clearly positioned on private property, an officer with the aid of a flashlight looked inside the vehicle and readily observed a handgun. The officer testified he was looking inside the van for the safety of the police, in case the perpetrator was located inside it. Id. at 32.
In the case at bar, the officer was not looking inside the truck for his own safety, it was broad daylight, and the marijuana was not easily visiblе through the tinted windows. Moreover, the officer who discovered the marijuana testified the agents would not have done anything differently if the keys had been in the ignition or the engine had been warm. Thus, the officer implicitly admitted he had no valid reason for determining whether the engine was warm or the keys were in the ignition. At the point where he elected to peer inside the truck, his actions became investigative in nature. Furthermore, the vehicle was within the curtilage of the home, and O’Bryant had a reasonable expectation of privacy in his drivеway.
Espinoza v. State,
The State argues that the trial court erred by analyzing the facts under the plain view exception because no evidence was seized under that theory. The State clаims the officers obtained the warrant before they seized any evidence. However, if the warrant was defective, the
*865
evidence obtained therefrom is excludable. OCGA § 17-5-30. Seе
Daniels v. State,
The plain view exception to the warrant requirement is based on the discovery of incriminаting evidence that is not the product of a search.
Mitchell v. State,
We find that at the suppression hearing the State did not carry its burden of proving the search and seizure were lawful.
Liskey v. State,
Judgment affirmed.
Notes
Because the trial court made no ruling on the facial validity of the search warrant, we need not reach that issue. However, in light of the staleness of one of the anonymous tips, the failure to verify any other anonymous tip, the conflicting testimony as to whether the officers had earlier observеd the vehicle or noticed marijuana present in the vehicle on another occa *863 sion, the lack of a lawful basis for peering into the truck on April 21, 1994, and the failure to verify that O’Bryant owned the vehicle, there may not have been a sufficient basis for the issuance of the search warrant.