GA: Trash search here didn’t provide nexus to def’s house

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.

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