This appeal is from the trial court's grant of a motion to suppress evidence in a murder prosecution. See OCGA § 5-7-1(a)(4). Testimony at the hearing on the motion to suppress outlined the following events. On January 15, 1998, shortly after 10:00 p.m., Terri Lynn Peterson made an emergency call to 911 because her five-year-old nephew, Terrell Peterson, was not breathing. The child was taken by emergency personnel to a local hospital where he was pronounced dead. Detective Griffie of the Atlanta Police Department, who was assigned to the case, arrived at the hospital shortly after midnight. There he observed the dead child's body with numerous bruises, abrasions and cuts covering his head, face, torso and extremities. After consulting with medical personnel, Detective Griffie formed the opinion that the child had been the victim of severe abuse, neglect, strangulation, and starvation. Detective Griffie spoke with Terri Lynn Peterson and learned that two small children, ages six and eleven, were still present at the Peterson home with Terri Lynn Peterson's boyfriend, Calvin Pittman. When he arrived at the Peterson home, the detective was admitted into the home by two uniformed police officers who told him that Pittman had been taken from the home to police headquarters for questioning and that they were caring for the two minor children who were without adult supervision. Being concerned for the safety of the two minor children who were in a bedroom on the second floor of the Peterson home, Detective Griffie immediately initiated efforts to contact relatives to take care of the children. He did so by climbing the stairs to the second floor of the home to ask the children the identity of their nearest relatives. At the top of the stairs, he noticed a pair of pantyhose on the banister in front of the bedroom and several notes attached to the door of the bedroom in which the children were sleeping.
After meeting with no success in locating relatives of the two minor children, Detective Griffie arranged for court-ordered placement
The grand jury indicted Terri Lynn Peterson, Calvin Pittman, and Pharina Peterson, the victim's grandmother, for malice murder, three counts of felony murder, aggravated assault, aggravated battery, and three counts of cruelty to a child. The defendants moved for suppression of the items seized by Detective Griffie and the photographs made at his direction. The trial court granted the motion, finding that Detective Griffie was not authorized to seize the items without a warrant under the "plain view doctrine" because no exigent circumstances required his presence in the apartment.
The "plain view doctrine," which must be considered on a case-by-case basis (United States v. Anderson, 154 F.3d 1225, 1233 (10th Cir.1998)), permits the warrantless seizure of evidence visible to a police officer who sees it from a vantage point the officer is legally entitled to occupy. State v. McTaggart, 241 Ga.App. 852, 528 S.E.2d 309 (2000). See also State v. David, 269 Ga. 533(2), 501 S.E.2d 494 (1998). There is no question that the evidence at issue was in Detective Griffie's plain view. Whether Detective Griffie was authorized to be where he was when he saw the evidence is the key to this appeal. Applying a common sense approach to the matter, we conclude that there are two reasons why Detective Griffie was authorized to enter the home without a warrant, and that the trial court erred in concluding otherwise.
1. In its order granting the motion to suppress, the trial court relied on the presence of uniformed officers to hold that no exigent circumstances existed to authorize Detective Griffie's entry. Necessarily implicit in that ruling, and crucial to its rationale, is the legality of the uniformed officers' presence in the home to secure it and to protect the children. That being so, Detective Griffie's entry for the purpose of seeing that the children who had been left without responsible adult supervision were cared for properly was not a violation of the residents' Fourth Amendment rights.
United States v. Brand, 556 F.2d 1312, 1317 (5th Cir.1977).
Id. at fn. 9.
The only evidence regarding Detective Griffie's entry into the house was that he did it for the purpose of caring for the children. Since that is the role the trial court implicitly found the uniformed officers to be serving, Detective Griffie's intrusion was limited to the scope of the original intrusion and was, therefore, legal notwithstanding the exigency no longer existed.
The dissent's suggestion that reliance on the necessary implication in the trial court's order is illogical depends on the dissent's unfounded speculation regarding the trial court's reasoning. Without reliance on such speculation, a clear-eyed reading on the trial court's order reveals that without such an implied finding, the order makes no sense. We are unwilling to dismiss so lightly the reasoning of the trial court.
2. Nonetheless, if the trial court's order were to be construed as not to include a holding that the uniformed officers were legitimately present to care for the children, the fact that the children were without responsible adult supervision because of the action of police officers would constitute an exigent circumstance that would authorize Detective Griffie to enter the home to assist the children. A law enforcement officer may
The foreign authority cited by the dissent for the proposition that the police may not unnecessarily or unreasonably create an exigency and then take advantage of that exigency are imminently sensible. Indeed, the appellate courts of this State have made similar holdings, such as that in Collins v. State, 161 Ga.App. 546(1), 287 S.E.2d 708 (1982): "This court would be remiss in its duty if it permitted artificially created exigent circumstances." Permitting the police to take all the adults from a home for the purpose of leaving the children without responsible adult supervision and thereby justify a warrantless entrance would certainly violate the Fourth Amendment rights of the adult residents. However, suggesting the cited cases have any application to the present case is specious: there is no evidence and no suggestion that appellee Pittman or any other responsible adult was removed from the home for the purpose of creating such an exigency.
In light of the applicable authority cited above, it is clear that the absence of responsible adult supervision of children is an exigent circumstance justifying a warrantless entry. However, the trial court ruled in the present case that no exigent circumstances existed because the young victim was dead and police officers were on the scene to care for the surviving children. The second part of that conclusion requires that the trial court take on the role of determining which law enforcement officer should make arrangements for the care of the children, holding in effect that Detective Griffie was not the appropriate officer. It is not the role of the courts to assign duties to police officers, and the trial court's determination that Detective Griffie was not authorized to enter the home because police officers were already there was an unwarranted usurpation of authority rightfully in the hands of police authorities. Thus, there is no legal basis for the trial court's conclusion that the uniformed officers could care for the children, but Detective Griffie could not.
3. While we must accept findings by a trial court which are supported by the evidence, and must construe the evidence to support the trial court's findings and judgments (Tate v. State, 264 Ga. 53(1), 440 S.E.2d 646 (1994)), we are not bound by findings which are clearly erroneous. State v. David, supra, at 535(1), 501 S.E.2d 494. Here, the trial court's ruling is clearly erroneous. If the uniformed officers were legally present to take care of the children, Detective Griffie's entry was legal and his actions in the home were consistent with the scope of that original legal police presence. If the uniformed officers were not there to care for the children, the absence of responsible adult supervision constituted exigent circumstances authorizing Detective Griffie's entry, and the trial court's mistaken assumption of authority to determine which police officer may perform which police function rendered its finding regarding exigent circumstances clearly erroneous. Using either analysis, the trial court's grant of the motion to suppress must be reversed.
CARLEY, Justice, dissenting.
In order to justify its reversal of the trial court's grant of a motion to suppress in this distressing prosecution involving the alleged abuse and murder of a young child, the majority makes wholly unwarranted assumptions regarding the trial court's ruling and the evidence and, additionally, fashions an unsupported holding that an exigency created by the law enforcement officers themselves can authorize a subsequent warrantless search and seizure.
The Supreme Court of the United States has mandated that state courts exclude evidence obtained in an unconstitutional search and seizure. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The Fourth Amendment has no exception for troubling cases and "we should not let hard cases make bad law." Scarborough v. Long, 186 Ga. 412, 417(2), 197 S.E. 796 (1938). Impartial judges cannot abandon the applicable rule of law because of a case's "immediate overwhelming interest which appeals to the feelings and distorts the judgment" and seems to "exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend." Northern Securities Co. v. United States, 193 U.S. 197, 400, 24 S.Ct. 436, 48 L.Ed. 679 (1904) (Holmes, J., dissenting).
In Division 1, the majority opines that the legality of the uniformed officers' presence was "[n]ecessarily implicit" in, and "crucial" to the rationale of, the trial court's holding that no exigent circumstances existed to authorize Detective Griffie's entry. However, any such inference is entirely illogical. Indeed, it is far more likely that the trial court did not determine, but rather pretermitted, the issue of whether the presence of the uniformed officers was lawful. The majority's supposedly necessary inference is no more valid than the obviously invalid inference that, in the multitude of decisions where this Court makes an assumption for the purposes of appellate consideration only, the truth of that assumption is a necessary part of the decision's rationale.
Regardless of whether the trial court actually concluded that the uniformed officers were lawfully on the premises, its grant of the motion to suppress must be upheld if the State failed to present any evidence to support this conclusion. The State has the burden to prove that a warrantless search and seizure was lawful under the plain view doctrine. OCGA § 17-5-30(b); Phillips v. State, 167 Ga.App. 260, 261(1)(a), 305 S.E.2d 918 (1983). As the reviewing court, we must construe the evidence presented at the hearing on the motion to suppress most strongly in favor of upholding the trial court's judgment. Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646 (1994). See also State v. David, 269 Ga. 533, 535(1), 501 S.E.2d 494 (1998) (Benham, C.J.). "`[I]n the absence of evidence of record demanding a finding contrary to the judge's determination, this court will not reverse the ruling sustaining a motion to suppress. (Cit.)' [Cit.]" (Emphasis supplied.) State v. Williams, 193 Ga.App. 462, 388 S.E.2d 55 (1989) (Benham, J.). See also State v. Combs, 191 Ga.App. 625, 627(2), 382 S.E.2d 691 (1989) (Benham, J.). Furthermore, the issue is not simply whether Detective Griffie's conduct could have been shown to be reasonable under all of the circumstances, but whether the State did show that his entry into Appellees' residence falls within the emergency exception to the warrant requirement. People v. Sutton, 65 Cal.App.3d 341, 134 Cal.Rptr. 921, 925 (1976). At the hearing, Detective Griffie testified
"In the instant case, the State has not demonstrated that a true emergency situation existed." Nelson v. State, 96 Nev. 363, 609 P.2d 717, 719 (1980). The uniformed officers' hearsay statements to Detective Griffie cannot support a finding that they were lawfully on the premises to care for the children or for any other purpose. The majority recounts these statements, and apparently assumes their admissibility, while ignoring the well-settled law of this state that inadmissible hearsay is not probative, even at a suppression hearing. State v. David, supra at 535(1), 501 S.E.2d 494 (Benham, C.J.). If the State did not show, by probative evidence, that the original entry of the home was lawful, then there is no proof that Detective Griffie was authorized to make a subsequent plain view seizure. See Jones v. State, 131 Ga.App. 699, 700(1), 206 S.E.2d 601 (1974). Application of the "collective knowledge" rule "has been limited in this State to factual situations where the collective knowledge of law enforcement officers has been relayed to and used by officers actually making or implementing a detention or seizure. [Cits.]" State v. Fischer, 230 Ga.App. 613, 615, 497 S.E.2d 79 (1998), overruled on other grounds, Workman v. State, 235 Ga.App. 800, 804, 510 S.E.2d 109 (1998) (a whole-court case rejecting only the incorrect Fourth Amendment analysis in Fischer, but not its "otherwise correct evidentiary analysis"). There is no evidence in this case of any collective knowledge or information being relayed to the uniformed officers prior to their entry, which is the intrusion at issue. State v. Fischer, supra at 615, 497 S.E.2d 79. Furthermore, Detective Griffie's conduct in leaving the downstairs in order to check on the children was not relevant to the initial determination of whether the other officers' presence was authorized, because their entry had occurred prior to Detective Griffie's involvement in the matter. Thus, the statements of the uniformed officers to Detective Griffie were not admissible probative evidence of the reason for their presence under the narrow "explanation of conduct" exception to the hearsay rule. State v. Fischer, supra at 614-615, 497 S.E.2d 79.
Detective Griffie's entry was authorized only if the prior entry of the uniformed officers was lawful or if his own warrantless entry had some independent justification. The majority correctly observes, and the trial court apparently overlooked, the principle that "additional investigators or officials may... enter a citizen's property after one official has already intruded legally. [Cits.]" (Emphasis supplied.) United States v. Brand, 556 F.2d 1312, 1317(III) (5th Cir. 1977). However, the majority is compelled to admit that "the later officials must confine their intrusion to the scope of the original invasion unless a warrant or one of the exceptions to the warrant requirement justifies a more thorough or wide ranging search." United States v. Brand, supra at 1317(III), fn. 9. The State does not claim that the exception which allegedly justified Detective Griffie's subsequent actions was any different from that which justified the uniformed officers' original presence. Additionally, the State has not shown that Detective Griffie confined his intrusion to the scope of the original entry, because it has not produced any probative evidence showing the nature of that initial entry.
In Division 2, the majority makes the extraordinary assertion that, even if the uniformed officers were not legitimately on the premises, their own action of removing responsible adult supervision while they were illegally in the residence unintentionally created
I am constrained to conclude that the State failed to meet its burden of establishing that the seizure accomplished by Detective Griffie was lawful. The record contains absolutely no evidence that the prior entry of the uniformed officers was lawful or that Detective Griffie's own warrantless entry had some independent justification. Accordingly, this Court is without any authority whatsoever to reverse the trial court's grant of the motion to suppress the evidence which Detective Griffie seized. See State v. Fischer, supra; Phillips v. State, supra.
I note, however, that the State's failure to prove the lawfulness of the seizure would result only in the suppression of that particular evidence at trial. United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966). The suppression of unlawfully seized evidence "does not bar a criminal prosecution. [Cits.]" State v. Brown, 198 Ga.App. 239, 241, 401 S.E.2d 295 (1990). See also United States v. Blue, supra at 255, 86 S.Ct. 1416. Such a drastic extension of the exclusionary rule, especially under the grievous circumstances which might be present in this case, would "increase to an intolerable degree interference with the public interest in having the guilty brought to book." United States v. Blue, supra at 255, 86 S.Ct. 1416. See also Van Nice v. State, 180 Ga.App. 112, 121(7), 348 S.E.2d 515 (1986).
A summary of the reasons for my dissent in this important case is in order: In an attempt to meet the State's burden of proving the lawfulness of a warrantless search and seizure in defendants' residence under the plain view doctrine, the prosecutor presented evidence only of the body of a child who was the alleged victim of a homicide, the presence of uniformed officers in the residence which is unexplained by any probative evidence whatever, and the later arrival of an additional officer who testified to his subsequent discovery and seizure of the items sought to be suppressed. However, the prosecutor introduced absolutely no probative evidence of the reason for the uniformed officers' initial entry or of any independent justification for the additional officer's entry. Therefore, the grant of defendants' motion to suppress was absolutely necessary, notwithstanding the possibility that the uniformed officers could have testified that exigent circumstances justified the initial entry and that there was a lawful necessity for their continuing presence. Because what might have been shown was not shown, I dissent to this Court's reversal of the trial court's grant of the motion to suppress.
I am authorized to state that Presiding Justice FLETCHER and Justice SEARS join in this dissent.
His hands are always tied.
[Emphasis in original]