Because the time and manner of the placement of the trash here presented no factual confidence that the trash came solely from defendant’s house, the trial court was permitted here to conclude that the trash came from more than one residence. Thus, the trial court’s conclusion there was no nexus to defendant’s house was not clearly erroneous. State v. Cartee, 2020 Ga. App. LEXIS 307 (June 3, 2020):
However, in this case, Murphy testified that he conducted no surveillance before the trash pull, and was not sure how long the trash can had been out on the street, who put the trash can out onto the street, or who had actually put the Walmart bags full of marijuana clippings into the trash can. Additionally, the unique layout of Cartee’s and Diamond’s street further undermined confidence that the trash came specifically from Cartee, Diamond, or their residence, as (1) some of the driveways on Camp Wasega Road serve more than one residence, (2) at least one neighbor of Cartee’s and Diamond’s used their driveway to park a vehicle, (3) there are at least four other houses that were located closer to where the trash can was found than Cartee’s and Diamond’s house, and (4) the trash can examined by Murphy was the only one out on the street on the day of the trash pull, and it was unclear if neighbors might share the trash can. Finally, there was no identifying information found among the marijuana trash that would identify specifically from what person or address it originated. Under these facts as found by the trial court, it was reasonably possible that the marijuana trash came from another nearby person or address. Cf. State v. Davis, 288 Ga. App. 164, 165-166 (653 SE2d 311) (2007) (trash pull containing small amounts of marijuana was sufficient to show probable cause to search suspect’s residence, where documents containing suspect’s name and address “linked the contents of the trash bag” to suspect, and recent dates on trash, combined with surveillance by police, served as evidence that the contents of the trash were recently in suspect’s possession); Conrad v. State, 316 Ga. App. 146, 149-150 (1) (730 SE2d 7) (2012) (probable cause for search warrant was satisfied after police received two reports that defendant was recently selling drugs and police conducted at least three trash pulls at the residence, which all yielded narcotics and related paraphernalia); Martinez-Vargas v. State, 317 Ga. App. 232, 237 (730 SE2d 633) (2012) (probable cause for search warrant was satisfied by trash pull at residence yielding marijuana bud, combined with smell of raw marijuana coming from residence’s garage), disapproved of on other grounds by State v. Kazmierczak, 331 Ga. App. 817, 822 (771 SE2d 473) (2015).
Thus, based on the combination of unique facts presented in this case, the trial court was authorized to conclude that the results of the trash pull conducted here did not create a sufficient nexus between the evidence discovered and Cartee’s and Diamond’s specific residence. See State v. Brantley, 264 Ga. App. 152, 154 (589 SE2d 716) (2003) (the State must establish a link between the evidence sought and the specific address to be searched). And, given the deficiencies of the anonymous tip described above, the magistrate did not have a substantial basis for concluding that marijuana and items used for growing and distributing marijuana would be found at the residence. Thus, we affirm the trial court’s order granting Cartee’s and Diamond’s motions to suppress.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)