Opinion
No. A11A1502.
2012-01-12
BERRY v. The STATE.
Catherine Scott Bernard, for appellant. Craig Fraser, Dist. Atty., Bradford Neal Childers, Asst. Dist. Atty., for appellee.
Catherine Scott Bernard, for appellant. Craig Fraser, Dist. Atty., Bradford Neal Childers, Asst. Dist. Atty., for appellee.
PHIPPS, Presiding Judge.
Michael Berry appeals his conviction for possession of a firearm by a convicted felon, contending that the trial court should have suppressed the firearm evidence as the fruit of an illegal search of the car he had been driving. Because the record authorized the trial court's determination that the search was pursuant to Berry's consent, we affirm.
In Tate v. State, the Supreme Court of Georgia discussed three fundamental principles which must be followed when conducting an appellate review of an order ruling upon a motion to suppress.
264 Ga. 53, 440 S.E.2d 646 (1994).
See generally Miller v. State, 288 Ga. 286–289(1), 702 S.E.2d 888 (2010) (reaffirming Tate, supra).
3. Tate, supra at 54(1), 440 S.E.2d 646 (citations, punctuation and footnote omitted). See generally White v. State, 263 Ga. 94, 98(5), 428 S.E.2d 789 (1993) (suppression hearing transcript and trial transcript may be considered on review of suppression ruling); see Arnold v. State, 304 Ga.App. 90, n. 2, 695 S.E.2d 402 (2010) (same).
4. Dean v. State, 250 Ga. 77, 79(2)(a), 295 S.E.2d 306 (1982) (citation and punctuation omitted); see Brooks v. State, 285 Ga. 424, 425, 677 S.E.2d 68 (2009).
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.
So construed, the evidence showed that on the afternoon of March 1, 2007, shortly after Berry arrived at the residence of a longtime friend, five or six law enforcement officers arrived. When the friend answered the knock at the front door, one of the officers, Christopher Brewer, explained that they were looking for a certain person. The resident told Brewer that the person was not there. But because Brewer had heard someone running to the back of the house upon the officers' approach, he asked the resident whether they could enter the home and search for him. The resident gave his permission.
Having stepped into the living room of the home, Brewer saw a man sitting there. Brewer also saw on a coffee table a pile of sandwich bags with the corners clipped off, which observation caused the officer concern that narcotics were being packaged for distribution. About this time, Berry and another individual walked out of back rooms and into the living room, where they sat while the officers searched the house, but did not find the person for whom they were searching.
Brewer then called the resident to a back room of the house, where he explained that the clipped sandwich bags indicated to him that narcotics distribution was taking place. The resident then pointed Brewer to (suspected) cocaine that was tucked underneath some flooring.
The officers placed the four house occupants under arrest. Brewer placed handcuffs on Berry and, upon searching his person incident to the arrest, found firearm ammunition and a set of car keys. Brewer asked Berry for the location of his car and for his consent to search it. Berry told the officer that the car was parked at the curb and gave his permission to search it. During the search, Brewer found a firearm.
In his motion to suppress the firearm evidence, Berry argued that the warrantless search of the vehicle violated his Fourth Amendment rights. The state countered that no violation occurred because Berry consented to the search. “Where the state seeks to justify a warrantless search on grounds of consent, it has the burden of proving that the consent was, in fact, freely and voluntarily given.” Berry contends herein that the trial court erred in finding: (i) that he gave his consent, and alternatively, (ii) that his consent was voluntarily given.
1. As Berry concedes in his brief to this court, Brewer testified, “[Berry] gave me permission to search the vehicle.” Accordingly, there is no merit in Berry's contention that the state failed to show that he told the officer that he could search the vehicle.
See Tate, supra; State v. Encinas, 302 Ga.App. 334, 336, 691 S.E.2d 257 (2010) (a reviewing court must accept the factual and credibility determinations and inferences drawn by the trier of fact as long as there is evidence in the record to support the trial court's findings).
2. Berry contends that the state failed to show that his consent was voluntary.
Although Berry points to evidence that no officer advised him of his rights under Miranda v. Arizona before he was asked for and thereupon gave his consent,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
7. Arrington v. State, 286 Ga. 335, 344(15), 687 S.E.2d 438 (2009) (citations and punctuation omitted); see State v. Folsom, 285 Ga. 11, 14(2), 673 S.E.2d 210 (2009) (“A violation of Miranda does not warrant the suppression of the fruit of otherwise voluntary statements.”), citing United States v. Patane, 542 U.S. 630, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (plurality opinion with concurrence); Reaves v. State, 284 Ga. 181, 183(2)(b), 664 S.E.2d 211 (2008) (“physical evidence obtained as the fruit of a statement made without the required Miranda warnings should not be suppressed so long as the statement was voluntary”), citing Patane, supra.
8. Brooks, supra at 425–426, 677 S.E.2d 68, quoting Schneckloth v. Bustamonte, 412 U.S. 218, 233, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and citing Dean, supra at 80(2)(a), 295 S.E.2d 306 (setting forth factors to be considered in assessing the totality of the circumstances, which factors include the age of the accused, his education, his intelligence, the length of detention, whether the accused was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of all these factors on the accused).
[t]he Fourth Amendment test for a valid consent to search is that the consent be voluntary, and voluntariness is a question of fact to be determined from all the circumstances. Whether the accused was advised of his constitutional rights is a factor to be taken into account in determining voluntariness. However, it is not a prerequisite to establishing a voluntary consent, as no single factor is controlling. “It is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced.”
Here, the record shows that the incident occurred while Berry was visiting a longtime friend at his residence. The law enforcement officers entered and searched the house only after asking for and receiving the resident's permission to do so. There is no evidence that, prior to giving his consent to search the vehicle, Berry was subjected to isolation from the others, prolonged questioning, physical punishment, or mental coercion. Rather, Brewer testified that, when he asked for and obtained Berry's permission to search the vehicle, he did not threaten or coerce Berry in any way. Furthermore, “[t]here was no showing that the officers misrepresented their authority to enter and search [Berry's car] against [his] will, if necessary.” Berry was about 45 years of age on the date of the incident, and he has made no allegation that his education or intelligence rendered his consent involuntary. Finally, we do not accept Berry's general assertion that his consent was the product of “an atmosphere of coercive conduct.”
As Berry concedes, he does not have standing to contest the officers' entry or search of his friend's residence. See Ferron v. State, 216 Ga.App. 456, 454 S.E.2d 637 (1995) (“A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed.”) (punctuation omitted).
See Dean, supra at 80(2)(a), 295 S.E.2d 306 (fact that defendant is held in custody at time he gives consent does not, standing alone, establish that consent was coerced).
11. Brooks, supra at 426, 677 S.E.2d 68, contrasting Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) (coercion found where officers announced that they had a warrant and then attempted to justify the search solely on the basis of consent).
See generally Brooks, supra (noting the lack of an allegation that appellant's age or level of intelligence rendered his consent involuntary).
See generally Park v. State, 308 Ga.App. 648, 652(1), 708 S.E.2d 614 (2011) (rejecting argument that consent was coerced for reasons that six to eight officers were present, officers had guns drawn when they approached defendant, and defendant had been handcuffed and placed on ground during detention; at time consent was given, officers' guns had been returned to holsters, and an audiotape of incident revealed that the officers spoke in normal tones and did not use threats or coercion) and cits.
14. Brooks, supra; Tate, supra; Dean, supra; Park, supra.
In light of the totality of the circumstances, the trial court was authorized to conclude that the search of the vehicle was pursuant to Berry's consent and therefore did not violate Berry's Fourth Amendment rights. Berry has shown no error in the admission of the firearm evidence.
Judgment affirmed.