296 Ga. 381
FINAL COPY


                    S14A1347. THE STATE v. COLVARD.


      HINES, Presiding Justice.

      This is an appeal by the State from an order of the superior court granting

defendant Antonio Colvard’s written motion to suppress certain physical

evidence and his oral motion to suppress his resulting confession, to be used in

his prosecution for murder and other crimes. For the reasons that follow, we

affirm.

      On April 27, 2012, a Fulton County grand jury returned a 13-count

indictment against Colvard, charging him with murder and the related crimes of

aggravated assault, theft, concealment of a death, and drug and firearms

possession in connection with the January 24, 2012 fatal shooting of Robert

Davis. On March 7, 2013, Colvard filed a motion to suppress certain physical

evidence resulting from what initially was a warrantless search of the bedroom

he used in his uncle’s (“Uncle”) apartment. There was a suppression hearing on

July 30, 2013, at which Uncle and two police officers involved in the search

testified.   At the hearing, Colvard made an oral motion to suppress his
confession resulting from the alleged illegal search.1 Following the hearing, on

August 7, 2013, the superior court entered its order suppressing the obtained

physical evidence as seized pursuant to an unlawful search and Colvard’s

confession as “fruit of the poisonous tree.”2

       1. The State contends that the superior court erred in granting the

suppression of the obtained physical evidence, alleging that the error resulted

from the court improperly applying the law to the uncontroverted facts.

       The superior court suppressed the obtained physical evidence after

finding: Uncle testified that Colvard lived with him in an apartment in Atlanta;

Uncle consented to a search of the common areas of the unit; within the

apartment was a locked bedroom used exclusively by Colvard; the door had

been locked by Colvard and Uncle did not have a key; Uncle could not go into

the bedroom when the door was locked; testimony was conflicting as to whether

       1
         The superior court found that the written motion to suppress physical evidence was heard
just prior to beginning voir dire; that after the court announced its ruling on this motion, Colvard
made the oral motion to suppress his confession; that the State announced it would appeal the court’s
ruling on the motion to suppress physical evidence and the parties requested that the court rule on
the oral motion as well; that the parties then submitted briefs on this issue for the court’s
consideration; that the State did not challenge the oral motion as procedurally defective, and any
issue regarding the procedural propriety of the motion was waived; and that the State acquiesced to
the court ruling on the oral motion without entertaining further testimony.
       2
        After finding the evidence at issue, the police stopped the warrantless search and applied for
and obtained a search warrant.

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Uncle told the police officer that the officer could enter the bedroom; it did not

appear that the bedroom door was securely fastened; a police officer gained

entry to the bedroom by placing a knife between the door lock and its frame

causing the door to pop open; and police officers entered the bedroom and

discovered firearms in a bag in a closet, one of which apparently was the murder

weapon. The superior court then determined that the issue to be resolved was

third party consent to a warrantless search; it cited as instructive State v.

Parrish, 302 Ga. App. 838 (691 SE2d 888) (2010),3 and concluded that Uncle

did not have the authority to consent to the search.

       In reviewing the superior court’s ruling on the motions to suppress, this

Court must be guided by three fundamental precepts: first, when a motion to

suppress is heard by the trial judge sitting as the trier of fact, the judge hears the

evidence and the judge’s findings on conflicting evidence are analogous to a

jury verdict, and consequently, should not be disturbed by the appellate court if

       3
         Defendant Parrish was charged with possession of a firearm by a convicted felon, and the
Court of Appeals affirmed the trial court’s grant of Parrish’s motion to suppress firearm evidence,
after concluding that the police could not have reasonably believed that the third party, Parrish’s
wife, had common authority to grant police consent to a warrantless search of Parrish’s gun cabinet.




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there is any evidence to support them; second, the trial court's decisions on

questions of fact and credibility are to be accepted unless they are clearly

erroneous; and third, the appellate court must construe the evidence most

favorably to the upholding of the trial court's findings and judgment. Brown v.

State, 293 Ga. 787, 802-803 (3) (b) (2) (750 SE2d 148) (2013); Miller v. State,

288 Ga. 286 (702 SE2d 888) (2010). Such precepts are equally applicable

whether the trial court rules in favor of the State or the defendant. Brown v.

State, supra at 803 (3) (b) (2); Miller v. State, supra at 286-287.

      Certainly, the State may show that a warrantless search was justified based

upon a third party giving permission to search; however, the third party must

have “common authority over or other sufficient relationship to the premises or

effects sought to be inspected” or it must be shown that the police could have

reasonably believed that the third party did have such authority. Tidwell v.

State, 285 Ga. 103, 105-106 (1) (674 SE2d 272) (2009), quoting United States

v. Matlock, 415 U. S. 164, 171 (II) (94 SCt 988, 39 LE2d 242) (1974). See also

Illinois v. Rodriguez, 497 U. S. 177, 183-189 (III) (B) (110 SCt 2793, 111 LE2d

148) (1990). Such common authority is derived from

      mutual use of the property by persons generally having joint access

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       or control for most purposes, so that it is reasonable to recognize
       that any of the co-inhabitants has the right to permit the inspection
       in his own right and that the others have assumed the risk that one
       of their number might permit the common area to be searched.


Tidwell v. State, supra at 106 (1), quoting United States v. Matlock, supra at 171

(II), n. 7.

       The State cites excerpts of testimony at the suppression hearing by Uncle

and the police officers which it maintains show that Uncle had common

authority to grant the police access to make the warrantless search of the

bedroom at issue.4 However, the circumstances as found by the superior court,

sitting as the finder of fact, do not permit the conclusions that Uncle had such

authority or that the police could have reasonably believed that he did. Tidwell

v. State, supra at 106 (1). Even if the excerpts of testimony cited by the State are

deemed to conflict with other portions of testimony by Uncle and the police



       4
        The State cites, inter alia, police testimony that Uncle stated that Colvard lived in the
apartment only intermittently; that Uncle stated that if his nephew was involved, the cops “need to
do what they need to do”; that Colvard had a bedroom in Uncle’s apartment, but he was not on the
apartment lease agreement and did not pay rent; that Colvard wanted the bedroom door kept locked;
that even though Uncle did not have a key to the bedroom, he sometimes went into the bedroom; that
Uncle never attempted to limit the scope of the search; and that after the officers asked Uncle for
consent to look around the apartment, he agreed and signed a consent to search form.



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officers, it was for the superior court, as the factfinder, to assess the credibility

of the witnesses and the testimony; there is plainly evidence of record to support

the superior court’s factual findings, and they cannot be found to be clearly

erroneous. Brown v. State, supra at 803. Indeed, the superior court weighed all

the evidence and concluded that the police could not have objectively believed

that at the time of the search they had obtained valid authorization to enter the

locked bedroom.5 And, the superior court’s judgment in that regard must be

upheld. Brown v. State, supra at 802-803 (3) (b) (2).

        2. The State further contends that the superior court erred in granting

Colvard’s oral motion to suppress his confession because it maintains that the

confession was not acquired as a result of an unlawful search inasmuch as

“based on a totality of [Uncle’s] responses and actions during his interaction

with the police, the police reasonably and objectively believed that [Uncle] had

        5
          In its order, the superior court specifically questioned the reasonableness of the investigating
officer believing that Uncle had the authority to permit the police to enter the locked bedroom in
light of the fact that Uncle himself could not enter when it was locked. The superior court then cited
Uncle’s testimony that after one of the police officers asked him for permission to “look around the
house,”
         And I said – can he walk through the house, and I told him, yes. So when he came
         – when he came to the bedroom where – knock on the door, he said, can I go in that
         bedroom right there. I said don’t got no key to that bedroom. I said - then he asked
         me, he said, if I get in that bedroom, can I go in. I said, you ain’t going to be able to
         get in that door. So the cop picked the lock and went in the – he didn’t have no
         search warrant, period.

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the authority to consent to the search, making the search valid.” However, we

have concluded that the superior court’s judgment to the contrary was not error,

i.e., that the warrantless search was not lawful because there was no valid third

party consent. See Division 1, supra. The State fails to provide any basis upon

which to find error in the superior court’s resulting determination that Colvard’s

confession and other information contained in his statements constitute “fruit of

the poisonous tree,” and consequently, must be suppressed.6

       Judgment affirmed. All the Justices concur.




       6
         The question in examining the admissibility of evidence that is contended to be “fruit of the
poisonous tree,” is whether such evidence has been obtained by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged of the primary taint. Teal v. State, 282 Ga.
319, 323 (2) ( 647 SE2d 15) (2007), quoting Wong Sun v. United States, 371 U. S. 471, 488 (83 SCt
407, 9 LE2d 441) (1963).There are two functionally similar exceptions to the exclusionary rule: the
independent source doctrine and the ultimate or inevitable discovery doctrine; the independent
source doctrine permits evidence that was discovered by means wholly independent of any
constitutional violation, while the ultimate or inevitable discovery doctrine allows the admission of
evidence discovered as a result of police error or misconduct if the State can prove by a
preponderance of the evidence that such information would have ultimately or inevitably been
discovered by lawful means, without any connection to the police error or misconduct. Teal v. State,
supra at 323-324 (2). The superior court concluded that neither exception applied in this case, and
the State makes no argument with regard to applicability of such exceptions.



                                                  7
                           Decided January 20, 2015.

      Murder. Fulton Superior Court. Before Judge Markle.

      Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Assistant District

Attorney, for appellant.

      Andre M. Johnson, Jesse N. Bacon, Jimmonique R. S. Rodgers, for

appellee.




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