Opinion
A02A1749.
Decided October 8, 2002
The State appeals from the Superior Court of Fulton County's order granting Clarence Tye's motion to suppress the results of DNA analysis done on blood samples retrieved from Tye's shoes; the trial court determined that, when an investigating detective asked Tye for the bloody shoes she saw in plain view on Tye's feet, Tye did not knowingly and voluntarily consent to give them to the detective. This case comes to us in an unusual factual and procedural posture which requires thorough examination in order to resolve what would appear at first blush to be a straightforward (if such term of expediency can be used in matters legal) "substantial basis" analysis. Upon the execution of such examination and for the reasons that follow, we reverse the judgment of the court below.
See State v. Dills, 237 Ga. App. 165, 168 ( 514 S.E.2d 917) (1999) ("In reviewing a trial court's decision on a motion to suppress, this court's responsibility is to ensure that there was a substantial basis for the court's decision.").
The record shows that, on January 30, 1996, Stephanie Black was found dead in her residence located at 1201 Milton Terrace in Atlanta; she was killed between approximately 6:00 a.m. and 10:00 a.m. and was discovered at 10:15 a.m. by her boyfriend, who had just come from work. Ms. Black had been stabbed with a knife over 120 times. The lead officer on the scene, Investigator M. B. Griffith, testified that "there was an extremely large amount of blood. . . . A tremendous amount of blood. . . . Blood was on the wall, it was on the mirror, it was on the door." At the bind-over hearing, upon viewing photographs of the crime scene, the magistrate court noted, "It wasn't just a stabbing; it was a multiple slash wound attack, and it spilled a tremendous amount of . . . There are stabs on the hand, there are stabs on the leg, there are stabs on the back. And as a result of these stabs, there's multiple blood splatterings all over the room." Because of such, Investigator Griffith had concluded that "it was obvious that whoever was responsible for this could not have gotten out of there without some blood being on them."
Several homicide detectives were called to the scene and fanned out to various locations in the Milton Terrace neighborhood to "canvass" for information. Detective Geraldine Carawan went, alone, to 1213 Milton Terrace, the house immediately to the right of the victim's residence, in order to interview the two people who lived there; one was the victim's mother, Nellie Bell Mitchell, and the other was appellant Tye. Detective Carawan testified that she questioned Ms. Mitchell about "any other relationships that her daughter Stephanie Black may have. And at that time she pointed to Clarence Tye, who was also standing on the porch next to her, and advised me that he also was a friend of her daughter, Stephanie Black." Upon questioning, Tye told Detective Carawan that
he had been seeing Stephanie Black on the sly, but that — and that they had had a sexual relationship, but that he had not seen her in approximately three or four months, or been at the residence of 1201 Milton Terrace in about three or four months.
During this conversation, Detective Carawan noticed a cut on Tye's thumb. When asked about it, Tye explained that he had been holding back a dog when the police arrived to canvass the neighborhood and had cut his thumb on the dog's chain.
Lead Detective Griffith testified that "the cut didn't look that serious to me. He said he cut it on a chain. I went back there and looked at the chain. It didn't look — I couldn't see anything on the chain. Anything like what might appear to be blood."
Detective Carawan then noticed "[t]here appeared to be what looked like blood on [Tye's] clothing and the shoes." She immediately radioed Investigator Griffith who testified that "it was brought to my attention by Detective Carawan that there was some blood next door and at that time, we were still in the process of processing the scene, the bedroom, and I advised Detective Carawan as soon as [Crime Scene Identification Technician ("ID Tech")] Ra'oof finished, I was finished with him, I would send him over with her and she was to look into the blood next door."
Detective Carawan then asked Tye about the blood on his shoes and pants. He stated that when he cut his thumb, "what appeared to be blood or stains on his clothing and shoes came from that injury." As ID Tech Ra'oof approached, Detective Carawan asked Tye for his shoes:
At that point in time we asked him if we could have possession of his shoes. He agreed. He said, yes, you can. He sat down on the couch, and took his shoes off and gave them to the ID technician, Ra'oof.
Detective Carawan was the only police officer present during her interview with Tye; ID Tech Ra'oof joined her as the request for Tye's shoes was being made. Detective Carawan did not threatened Tye or coerced him into giving up his shoes. Ra'oof photographed Tye's shoes and packaged them for crime lab analysis. In addition, Detective Carawan pointed out to Ra'oof and had him photograph "reddish brown stains leading up to the doorway" of Tye's residence. On February 21, 1996, the GBI crime lab informed Investigator Griffith that DNA analysis showed the blood on Tye's shoes was a combination of Tye's blood and the victim's blood.
On June 4, 1996, based on the above and other investigative information, Tye was indicted for murder. Three years later, Tye filed a motion to suppress the crime lab DNA results. The trial court heard the motion, and the State presented evidence as outlined above. Tye claimed that while he agreed the police could take his shoes, such agreement was not a knowing and voluntary consent; that he simply agreed because of police authority and did not know he could refuse. To that end, Tye, who is in the Mildly Mentally Retarded range of functioning, took the stand and testified that the detective told him they were going to "take" his shoes. Asked about his response when Carawan stated she wanted to take his shoes, Tye replied "Well, I said yeah. I didn't know. I didn't know." Tye testified that he took off his shoes and gave them to ID Tech Ra'oof. Tye testified that no one threatened him or coerced him into giving up his shoes. When asked by his defense attorney whether he gave the shoes to Ra'oof "because he was a police officer," Tye replied, "Yes."
The trial court denied the motion to suppress the DNA analysis based on an illegal seizure of Tye's shoes. Applying the "plain view" doctrine and addressing the issue of consent, the trial court held:
See Horton v. California, 496 U.S. 128 ( 110 S.Ct. 2301, 110 L.Ed.2d 112) (1990); State v. Echols, 204 Ga. App. 630 ( 420 S.E.2d 64) (1992).
I'm going to deny the defendant's motion to exclude the evidence due to an illegal search and seizure. Based on the fact that the shoes were in plain view, they were immediately apparent, the blood on the shoes from the photograph was immediately apparent and the officer was in a location where he was authorized to be. He was, according to the motion itself, he was on the defendant's porch and not in his house. Also on the basis of the consent given by the defendant.
The remainder of the motions were heard, including a State's motion in limine to exclude testimony from Tye's expert witness, Dr. Robert Shaffer, because the State had not been served with information regarding the actual substance of the doctor's testimony. In addressing the content of Dr. Shaffer's testimony, Tye's defense counsel stated on the record that,
We have not raised competence as an issue. I will not bring that up in this case. We're not going to be blind sided by Dr. Shaffer sitting up there talking about whether or not Mr. Tye is competent to stand trial. He will be specifically instructed not to discuss competency in any manner. . . . I don't want this to get into competence. I don't think that's appropriate. If we were going to do that, we would have told the court and we would have told the district attorney.
The trial court reserved ruling on the State's motion in limine.
Two days later, the jury had been selected and the State had begun its case. Apparently, however, Tye displayed some type of symptom of mental illness, and the following occurred:
Only an "excerpt" of the trial proceedings was sent to this Court. Such excerpt did not include information regarding the characteristics Tye displayed which caused concern.
[Defense Counsel:] We had Dr. Shaffer upon the court's request and our request, I guess on everybody's part, had Dr. Shaffer sit down and speak with Mr. Tye. Based on his conversations with Mr. Tye, it is his feeling that he is not currently competent to stand trial.
Defense counsel asserted that the issue of competency had just come up and that, prior to this time, "I did not feel competency would be an issue. That was based on Dr. Shaffer's last examination with Mr. Tye." It was only "through a brief encounter this morning that, I think, Dr. Shaffer started to have some real doubt." Thereafter, the State agreed that the case should be continued in order to have Tye evaluated by another expert to determine the issue of competency to stand trial. The jury was dismissed, and Tye was returned to the Fulton County jail. On September 13, 1999, the trial court ordered a psychiatric evaluation.
Pursuant to such order and in a letter to the court dated November 19, 1999, Dr. Sheldon B. Cohen, M.D., opined that "Mr. Tye's psychiatric illness is so severe and unlikely to remit sufficiently for him to ever stand trial that I would anticipate indefinite hospitalization in a secure psychiatric facility." Dr. Cohen based his opinion on an interview with Tye at the Fulton County jail, as well as a review of the criminal records in this case, a review of Tye's medical records at the jail, and separate telephone conversations with Tye's attorney and with the district attorney. Notably, Dr. Cohen concluded that Tye "readily made his shoes available for forensic evaluation," and the doctor made such voluntary action a part of his rationale for finding that Tye demonstrated "a detachment from reality." Tye was sent to Georgia Regional Hospital in Millegeville on December 12, 1999.
Eight months later, Tye was referred to Dr. Pamela Eilender, a forensic psychologist at Georgia Regional, for additional testing "to assess for malingering of psychotic symptoms" i.e., to determine whether he was feigning mental illness. It appears that, over the ensuing months, Tye was observed by hospital personnel "playing cards, laughing and interacting appropriately with his peers." Based on such referral, Dr. Eilender administered several psychological tests to Tye and interviewed him twice over two days. The psychologist determined that Tye's reported experience of psychotic symptoms (hearing voices, visual hallucinations) was "not consistent" with his observed behavior; that, while Tye had low intelligence so as to be diagnosed as Mildly Mentally Retarded, there was no evidence of dementia or psychosis; that "his thoughts were consistently organized and coherent. His attention and concentration were adequate"; and that, in fact, "Mr. Tye's ability to understand the consequences and planning in social relations was better developed than his other performance areas." Dr. Eilender diagnosed malingering and, in an evaluation dated August 25, 2000, recommended "continue with legal proceedings[.]"
See, e.g., McMichen v. State, 265 Ga. 598 (15) ( 458 S.E.2d 833) (1995) (psychologist concludes that defendant was "malingering" when faking mental illness for many months after murder).
Apparently, Mr. Tye was then returned to the Fulton County jail, and his case was placed back on the trial calendar. The record shows that two motions dated April 16, 2001 were filed by the defense, seeking to obtain out-of-state witnesses in preparation for trial. Then, inexplicably on the record before us, the trial court issued an order dated April 20, 2001, and captioned "Order On Motion To Suppress Shoes." In such order, the trial court granted Tye's earlier motion to suppress on the basis of a lack of consent. The trial court held,
In the instant case, the State has not carried its burden of proving that the defendant's consent to give up his shoes was voluntary. Considering the intelligence of the defendant, the fact that he was not advised of his right to decline to give up his shoes, his apparent perception that he was required to do what the police told him to do, the number of police on the scene at the time he was questioned and the totality of the circumstances, the Court finds the State has not met its burden.
With regard to its consideration of Tye's intelligence, the trial court stated in a footnote that "[t]he trial of this case was aborted due to the Court's and the parties' perception that the defendant was too mentally incapacitated to continue." No mention was made of the trial court's prior application of the "plain view" doctrine. The State appeals from this order. Held:
1. The State contends that the trial court correctly concluded in its original denial of the motion to suppress that the seizure of Tye's shoes was authorized under the "plain view" doctrine. We agree.
The `plain view' exception to the warrant requirement is based on the theory that the discovery of the particular incriminating evidence is not the result of a search. `Plain view' is perhaps better understood not as an independent `exception' to the Warrant Clause, but simply as an extension of whatever the prior justification for an officer's access to an object may be. The principle is grounded on the recognition that when a police officer has observed an object in `plain view,' the owner's remaining interests in the object are merely those of possession and ownership. Likewise, it reflects the fact that requiring police to obtain a warrant once they have obtained a first-hand perception of contraband, stolen property, or incriminating evidence generally would be a needless inconvenience.
(Citations and punctuation omitted.) State v. Echols, supra at 631.
In that regard, "[a]n officer who is lawfully in a place and sees in plain view evidence relating to a crime, or instrumentalities of a crime, may seize that evidence." This is because "a criminal defendant has no privacy right in contraband or instrumentalities of a crime which are in open view and exposed to the public or which police officer views from a place he is legally entitled to be." Therefore, "the seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity."
(Punctuation omitted.) Lindsey v. State, 247 Ga. App. 166, 169 ( 543 S.E.2d 117) (2000).
(Citation omitted.) Gates v. State, 229 Ga. App. 766, 767 ( 495 S.E.2d 113) (1997).
(Citations and punctuation omitted.) Texas v. Brown, 460 U.S. 730, 741-742 ( 103 S.Ct. 1535, 75 L.Ed.2d 502) (1983).
[P]robable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A practical, nontechnical probability that incriminating evidence is involved is all that is required.
Id. at 742.
In this case, it is undisputed that Detective Carawan was properly on the porch of 1213 Maynard Terrace investigating the murder of Stephanie Black when she observed the blood on Tye's shoes and pants. The trial court specifically determined that Carawan "was in a location where he [sic] was authorized to be," and there is no evidence to the contrary. Also, the trial court specifically found that "the blood on the shoes from the photograph was immediately apparent." Further, it was known by law enforcement that the victim died from multiple stab wounds and that the scene was saturated with blood. When Detective Carawan saw the blood on Tye's shoes and pants, she immediately contacted Lieutenant Griffith, who had already concluded that the perpetrator would have blood on his clothing based on the amount at the crime scene, and he ordered Carawan to "look into the blood next door." In addition, Tye lived immediately next door to the crime scene and had already admitted to an illicit relationship with the victim. Moreover, Carawan had observed what appeared to be blood drops leading in a trail to Tye's residence. Accordingly, there was probable cause to believe that Tye's bloody shoes, in plain view, were "what may be evidence relating to, and instrumentalities of, a crime in the immediate vicinity," and thus, the shoes were subject to seizure.
(Punctuation omitted.) State v. Gallup, 236 Ga. App. 321, 323 ( 512 S.E.2d 66) (1999). See OCGA § 17-5-21(a)(5).
We reject the notion that, with a bloody crime scene immediately next door, the police were required to accept Tye's "dog chain" explanation for the blood on his shoes and pants. We will not force the police to accept at face value an excuse — even a reasonable one — for the existence of what appears in plain view to just as reasonably be incriminating evidence.
[I]f, while lawfully engaged in an activity in a particular place, police officers perceive a suspicious object, they may seize it immediately. This rule merely reflects an application of the Fourth Amendment's central requirement of reasonableness to the law governing seizures of property.
(Citations and punctuation omitted.) Texas v. Brown, supra at 739; Fox v. State, 272 Ga. 163, 165(2) ( 527 S.E.2d 847) (2000).
Tye's explanation for the blood on his shoes did not negate that, under the circumstances, probable cause existed to seize them.
In that same vein, we find meritless any contention that, under the "plain view" doctrine, the police were required to know that the blood on Tye's shoes was evidence of a crime before such could be taken. The United States Supreme Court rejected that argument in Texas v. Brown. Thus, while the "plain view" doctrine does not give an officer carte blanche to pick up any article his eyes might light upon, it does encompass the seizure of " possible fruits of the crime" when, as in this case, probable cause exists for such seizure.
Texas v. Brown, supra (rejecting that officer must "know" items are contraband or evidence of crime when probable cause exists for seizure).
(Emphasis supplied.) Batton v. State, 260 Ga. 127, 130 ( 391 S.E.2d 914) (1990).
Because Detective Carawan had probable cause to seize Tye's bloody shoes in plain view on a porch next door to a bloody crime scene, the issue of Tye's consent to such seizure is irrelevant. Accordingly, the trial court erred as a matter of law in granting Tye's motion to suppress based upon a failure of consent.
2. Resolution of this case on the above-stated legal grounds makes unnecessary any further discussion regarding Tye's mental competency in relation to consent. However, we are constrained to recognize that, in the trial court's current order under appeal which granted Tye's motion to suppress because of a failure of consent, the court did not address and factually reconcile its original ruling denying Tye's motion to suppress based on the same issue.
See, e.g., State v. Lamotte, 196 Ga. App. 713, 713-714 ( 396 S.E.2d 806) (1990) (case remanded in order for trial court to resolve disputed facts on motion to suppress).
For example, in the order now on appeal, the trial court "consider[ed] the intelligence of the defendant" and noted the failure of the 1999 trial "due to the Court's and the parties perception that the defendant was too mentally incapacitated to continue." However, the trial court's order made no mention of Dr. Eilender's year 2000 diagnosis of malingering and how such fact would relate to Tye's intelligence, especially in light of Dr. Eilender's psychological tests which demonstrated that Tye's "thoughts were consistently organized and coherent. His attention and concentration were adequate," and "Mr. Tye's ability to understand the consequences and planning in social relations was better developed than his other performance areas."
Nor did the trial court's order address how "the Court's and the parties' perception" of Tye's mental state during a 1999 trial would relate to consent obtained in 1996 — on the date of the offense. This is especially true since, according to Dr. Cohen's 1999 report finding incompetence, Tye attributed his mental condition to the three years he had just spent incarcerated waiting for trial: "I feel like killing myself because I have been in the system too long[.]" Certainly, then, as far as an evaluation of Tye's intelligence, a factual issue was raised and should have been addressed as to how Tye's allegedly deteriorated mental state in 1999 would impact on consent obtained in 1996, prior the to incarceration which allegedly caused the mental state.
Further, the trial court's order granted the motion to suppress in part because of Tye's "apparent perception that he was required to do what the police told him to do." However, this factual finding based on Tye's suppression testimony directly contradicts the court's prior credibility determination based on the same testimony which was made implicitly when the court originally found consent and denied Tye's motion to suppress. In 1999, the trial court explicitly denied the motion to suppress "on the basis of consent given by the defendant." In 2001, using the same evidence, the trial court granted the motion to suppress on the basis of a failure of consent. The order now under appeal does not address this factual dichotomy.
See, e.g., Savage v. State, 234 Ga. App. 855 (1) ( 508 S.E.2d 418) (1998) ("In denying the motion to suppress, the trial court implicitly found that defendant had consented[.]").
In addition, the concern expressed in the order about "the number of police on the scene at the time [Tye] was questioned" appears to have no factual basis since the record shows that Detective Carawan was the only officer present when she questioned Tye on the porch, a fact to which even Tye testified; ID Tech Ra'oof approached at the time Carawan was asking Tye for his shoes.
Finally, the trial court's order grants the motion to suppress because, inter alia, Tye "was not advised of his right to decline to give his shoes[.]" However, "officers were not required to inform [Tye] that he had a right to refuse the request" for his shoes; it is but one factor to consider. And, in light of the above-noted deficiencies in the other factors stated as a basis for granting the motion, Detective Carawan's failure to inform Tye of a right to refuse — information Carawan was not required to give — would not appear to be dispositive.
Buck v. State, 239 Ga. App. 828, 831 ( 522 S.E.2d 252) (1999).
See also United States v. Drayton, 536 U.S. ___ (Case No. 01-631) (decided 6/17/02) ("While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response. . . . The Court has rejected in specific terms the suggestion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent. Nor do this Court's decisions suggest that even though there are no per se rules, a presumption of invalidity attaches if a citizen consented without explicit notification that he or she was free to refuse to cooperate. Instead, the Court has repeated that the totality of the circumstances must control, without giving extra weight to the absence of this type of warning." (Citations omitted; emphasis supplied).
In sum, on appellate review of a motion to suppress, this Court will uphold a trial court's ruling on conflicting issues of fact if there is any evidence to support it. But, the application of this venerated legal principle is made impossible when the trial court's rulings, themselves, are the means by which the conflicting issues of fact are created. Remand is unnecessary, however, because of the error of law discussed in Division 1, supra. Judgment reversed. Smith, P.J., and Ellington, J., concur.
Tate v. State, 264 Ga. 53, 54(1) ( 440 S.E.2d 646) (1994).
State v. Lamotte, supra at 714.