Having reason to suspect the presence of contraband in a motel room occupied by defendant, police used a key from the motel office to enter the room, where they found defendant with illegal drugs. The question on appeal is whether exigent circumstances justified the warrantless, nonconsensual entry into the motel room. Since prior to entry police had no reason to suspect defendant was about to destroy or conceal the drugs, we hold that no evidence supported a finding of exigency and that therefore the trial court erred in denying defendant’s motion to suppress the seized evidence. We reverse the defendant’s convictions that are based on that evidence.
When reviewing a trial court’s order concerning a motion to suppress evidence, we are guided by three principles with regard to the facts.
First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.
(Citations, punctuation and emphasis omitted.)
Tate v. State,
So construed, the evidence showed that after a confidential informant told police he had just seen Robert Welchel with illegal drugs in a motel room, police used a dog to conduct a free-air search outside the room. The dog alerted to the presence of illegal drugs in the room. Police obtained a key to the room from the motel front desk, knocked, and upon receiving no response, used the key to enter the locked room. Police found Welchel holding a large bag of marijuana and obtained his consent to search the room and his truck outside. They found more marijuana, some methamphetamine, and a large quantity of cash in the searches.
Indicted on two counts of possessing illegal drugs with intent to distribute, Welchel moved to suppress the evidence obtained from the searches on the ground that the police had entered his motel room without a warrant. Following an evidentiary hearing, the trial court denied the motion. A bench trial ensued, resulting in Welchel’s conviction on both counts. He appeals, enumerating as error the denial of his motion to suppress.
The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons,' houses, papers, and effects, against unreasonable searches and seizures. . . .” See also Ga. Const, of 1983, Art. I, Sec. I, Par. XIII. In enforcing this sacred right, the U. S. Supreme Court has emphasized:
It is axiomatic that the “physical entry of the home is the chief evil against which the wording of the Fourth Amend ment is directed.” And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest.
(Citations omitted.)
Welsh v. Wisconsin,
Seeking to excuse its conduct in entering the motel room without a warrant, the State focuses on the evidence showing probable cause that illegal drugs were in the motel
[N]o amount of probable cause can justify a warrantless search or seizure absent “exigent circumstances.” Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.
(Citations omitted.) See also
Carranza,
supra,
Thus, the key to this case is whether any evidence supported a finding that exigent circumstances existed so as to justify the war-rantless entry into Welchel’s motel room. Decisions of the U. S. Supreme Court “have emphasized that exceptions to the warrant requirement are few in number and carefully delineated, and that the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.” (Citation and punctuation omitted.)
Welsh,
supra,
“ An exigent circumstance which does justify the warrantless entry of a private home is the officer’s reasonable belief that such action is a necessary response on his part to an emergency situation.’ ” (Citations omitted.)
Lindsey v. State,
The record lacks any evidence that the drugs were in danger of immediate destruction. As no officer apparently saw Welchel prior to the warrantless entry, the lead officer could only speculate that Welchel “could have seen any of us out there through the window . . .” and that therefore he was about to destroy the evidence. He did not testify to any evidence showing that Welchel was in fact aware of police presence (for example, the dog’s alerting to the drugs was manifest merely by sitting down, and there was no evidence showing that the curtains were open, that police had caught Welchel’s eye, and that police were in uniform), nor did the officer testify that Welchel was making any efforts to conceal or destroy the drugs. Compare
David,
supra,
Since no evidence showed that the drugs were in immediate danger of destruction, the police were not authorized to enter the motel room without a warrant. See
State v. Wright,
Judgment reversed.