                               SECOND DIVISION
                                ANDREWS, P. J.,
                            MILLER and BRANCH, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    October 15, 2015




In the Court of Appeals of Georgia
 A15A0831. CAUSEY v. THE STATE.

      BRANCH, Judge.

      Following a stipulated bench trial, Michael Van Causey was convicted on one

count of possession of methamphetamine. On appeal, he contends the trial court erred

by denying his motion to suppress. For the reasons that follow, we reverse and

remand with direction.

      On review of a ruling on a motion to suppress, the trial judge’s findings of fact

should not be disturbed if there is any evidence to support them; determinations of

fact and credibility must be accepted unless clearly erroneous; and the evidence must

be construed in favor of the trial court’s findings and judgment. Tate v. State, 264 Ga.

53, 54 (1) (440 SE2d 646) (1994); Jackson v. State, 258 Ga. App. 806, 807-808 (2)

(575 SE2d 713) (2002). “In all cases, [appellate courts] independently apply the law
to the facts.” Drake v. State, 296 Ga. 286, 288 (2) (766 SE2d 447) (2014) (citation

omitted).

      The evidence presented at the hearing on the motion to suppress shows that

Deputy William Schwartz and at least three other officers of the Floyd County

Sheriff’s office, who were seeking to execute an arrest warrant for one Jesse Powell,

went to Causey’s home based on a tip that Powell could be found there; Powell did

not reside at that address and the officers did not have a warrant to search Causey’s

home. Officers Schwartz and Salter went to a position where they could observe the

side door of the house; Corporal Whitfield and Deputy Burt approached the front

door of the home and were able to observe Powell sitting on a couch. When the

officers knocked and announced that it was the police, the officers at the front door

saw Powell get up and run through the house. Schwartz then saw Powell run past the

side door and saw “a couple other flashes go by”; he clarified that he recognized one

of the “flashes” as a fellow officer, apparently Corporal Whitfield. Schwartz kicked

in the side door, entered the premises with Deputy Salter, and, along with Whitfield

and yet another officer (Watkins), chased Powell into a bathroom where a struggle

ensued. Powell was eventually subdued and placed in hand restraints. Whitfield and

Powell were injured in the struggle, an ambulance was called, and ultimately,

                                         2
Whitfield was taken to the hospital to get stitches. Causey and a guest were

handcuffed and sitting on a sofa during this time.

      While waiting for the ambulance to arrive, Schwartz walked through the house

to “clear[ ] the house,” or “to make sure there’s nobody else hiding in a closet or

anything else, to make sure it’s safe.” He did so “as a safety precaution to ourselves

while we’re there,” and “to make sure the scene is safe especially before bringing in

other public safety personnel,” meaning in this case, medical personnel. He testified

that such a search was especially necessary in a “fast moving” situation. Schwartz

further testified that given that Causey was a known drug user, that Causey’s guest

also had a pending warrant for a violent offense, and that Powell was fleeing law

enforcement, “[i]t wouldn’t be a far stretch of the imagination for someone to be there

in a closet.” Schwartz later added that the officers “had to be there”; read in context

and construed in favor of the trial court’s ruling, this statement refers to the officers

remaining at the house until the ambulance arrived to care for Whitfield. Finally,

Schwartz testified, “You’ve got everybody known to be drug users. You know,

people that have tried to cause harm to police before. . . [and therefore] I would have

reason to believe, in a place like that, there would be more people that may possibly

be wanted for warrants.”

                                           3
      While clearing the house, Schwartz looked into a bedroom and observed what

he suspected was methamphetamine in plain sight on a dresser. Schwartz did not

collect the suspected contraband; rather he went to the living room, found Causey

handcuffed and sitting on a sofa, and read Causey his Miranda rights. Causey then

consented to a search, signed a consent form, and answered questions in which he

admitted that the drugs were found in his bedroom and that the drugs did not belong

to the guest. Schwartz then collected the suspected contraband and searched the

remainder of the house for other illegal substances, but none were found.

      Although the trial court’s order denying the motion to suppress does not

include findings of fact, at the hearing the trial court reasoned as follows:

      You’ve got to look at this in all the totality of the circumstances. The
      officer saw Mr. Powell running from the living room towards the
      bathroom. He’s fleeing towards the back of the house and shutting the
      door to close – to get into the bathroom. The officers have every reason
      to believe that if he was running to secure himself in the back of the
      house[, w]ho else might have secured themselves in the back of the
      house? It doesn’t have anything to do with these fellow[s’] reputations
      or criminal records. It has to do with the circumstances at the time. A
      wanted fugitive was running and trying to hide from the police when
      they entered the house. . . . The fact that there was an injury, and a
      severe injury – it wasn’t just a scratch. It required stitches to the officer.
      Required them to stay and be there and wait on EMTs and have Mr.

                                            4
      Powell treated as well as the deputy treated. He would be derelict in his
      duty if he did not check to see if anybody else had gone to hide in that
      house somewhere given the circumstances at the time.


      Based on the above facts and on Causey’s stipulation to venue and to the facts

that the contraband was methamphetamine, that the methamphetamine was found in

Causey’s room, and that Causey denied it belonged to his guest, Causey was

convicted of possession of methamphetamine.

      1. We first comment on an issue not argued on appeal. “[A]bsent exigent

circumstances, the Fourth Amendment prohibits police from searching an individual’s

home or business without a search warrant even to execute an arrest warrant for a

third person.” Pembaur v. City of Cincinnati, 475 U. S. 469, 474 (I) (106 SCt 1292,

89 LE2d 452) (1986), citing Steagald v. United States, 451 U. S. 204 (101 SCt 1642,

68 LE2d 38) (1981). Here, in the trial court, the State asserted that the officers at the

front door had exigent circumstances to enter Causey’s home, the trial court agreed

that the officers had a right to enter the home, and Causey has not contested that issue

on appeal. That question, therefore, is not before us.

      2. “A ‘protective sweep’ is a quick and limited search of premises, incident to

an arrest and conducted to protect the safety of police officers or others.” Maryland


                                           5
v. Buie, 494 U. S. 325, 327 (110 SCt 1093, 108 LE2d 276) (1990). Protective sweeps

force courts to balance the Fourth Amendment’s protection from unreasonable search

and seizure against an officer’s interest “in taking steps to assure [herself] that the

house in which a suspect is being, or has just been, arrested is not harboring other

persons who are dangerous and who could unexpectedly launch an attack.” Id. at 333

(III). In striking a balance between these interests, the United States Supreme Court

has held that incident to an arrest in a home, officers may “as a precautionary matter

and without probable cause or reasonable suspicion, look in closets and other spaces

immediately adjoining the place of arrest from which an attack could be immediately

launched.” Id. at 334 (III) (emphasis supplied).1 But to search beyond the immediately

adjoining spaces,

      there must be articulable facts which, taken together with the rational
      inferences from those facts, would warrant a reasonably prudent officer
      in believing that the area to be swept harbors an individual posing a
      danger to those on the arrest scene.




      1
       Here, the State does not contend that the bedroom immediately adjoined the
place where Powell was arrested.

                                          6
Id. A “mere inchoate and unparticularized suspicion or hunch” that the home may

harbor an individual posing a danger to the officers is insufficient to support a

warrantless sweep. Id. at 332 (III) (citation and punctuation omitted).2

       At first blush, this appears to be a close case and that some evidence supports

the trial court’s findings, which is all that is required by the standard of review. But,

as shown below, the State presented no evidence to support the conclusion that a

reasonable officer could have reasonably believed that additional dangerous

individuals were in the home. The trial court found that because the officers were

pursuing a felon fleeing toward the back of the house, they could reasonably believe

that there might be another person in the back of the house thereby warranting a

protective sweep while they waited for medical personnel to arrive. The “fast

moving” nature of the situation is also relevant. And “[a]lthough we review police

actions from the standpoint of a hypothetical ‘reasonable’ officer, we must measure

those actions from the foresight of an officer acting in a quickly developing situation

and not from the hindsight of which judges have benefit.” State v. Brannan, 222 Ga.

App. 372, 373 (1) (474 SE2d 267) (1996) (citation and punctuation omitted).


      2
       A proper protective sweep “may extend only to a cursory inspection of those
spaces where a person may be found.” Id. at 335 (III) (footnote omitted).

                                           7
      Nevertheless, Schwartz never testified to any facts to support a belief that there

were more than three people in the house before the officers arrived. Nor did he

testify to any facts that developed after the officers arrived that support an inference

that there were more than three people, other than officers, in the house when the

officers actually entered the house. Although he testified that he saw two “flashes”

after Powell ran by (one of whom he recognized as a fellow officer), Schwartz never

testified that he thought the other flash was someone other than an officer, and the

facts show that at least one more officer who entered through the front door ended up

in the bathroom subduing Powell. Also, even though Schwartz testified that the

occupants’ outstanding warrants and reputations gave him concern about who else

could be in the house, the trial court specifically found that fact to be irrelevant.

      In Buie, the Supreme Court rejected a “bright-line rule” that police should be

permitted to conduct a protective sweep whenever they make an in-home arrest for

a violent crime. Buie, 494 U. S. at 334 (III), n. 2. Instead, following the reasoning of

Terry v. Ohio, 392 U. S. 1 (88 SCt 1868, 20 LEd2d 889) (1968), the Supreme Court

held even though some danger might exist, a protective sweep requires a “reasonable,

individualized suspicion” of that danger:



                                            8
      [D]espite the danger that inheres in on-the-street encounters and the
      need for police to act quickly for their own safety, the Court in Terry did
      not adopt a bright-line rule authorizing frisks for weapons in all
      confrontational encounters. Even in high crime areas, where the
      possibility that any given individual is armed is significant, Terry
      requires reasonable, individualized suspicion before a frisk for weapons
      can be conducted. That approach is applied to the protective sweep of
      a house.


Buie, 494 U. S. at 334 (III), n. 2.

      Georgia and Eleventh Circuit Cases applying Buie are consistent in requiring

that some facts be presented that show or raise a reasonable inference that other

persons who might present a danger are present in the home, not simply uncertainty

as to whether such persons are present. For example, in United States v. Hollis, 780

F3d 1064, 1069 (III) (A) (11th Cir. 2015), the government presented evidence that the

officers had been told that the apartment was a “‘drug house,’ with a ‘high level of

activity,’ where ‘people were in and out of the house all hours of the day or night,’

and that they ‘could expect to encounter a number of people inside.’” Id. (punctuation

omitted). Accordingly, the officers were authorized to make a rational inference that

there might be armed individuals present. Id. In United States v. Chaves, 169 F3d 687

(11th Cir. 1999), the Eleventh Circuit held that where officers had no information

                                          9
regarding the inside of a warehouse, they had no specific and articulable facts to show

the presence of another individual in the warehouse who posed a danger to the

officers even though two armed men suspected of being involved in drug activity

exited the warehouse in the officers’ presence. Id. at 689, 692. See also United States

v. Sunkett, 95 FSupp2d 1367, 1372 (II) (A) (N.D. Ga. 2000) (fact that someone else

“might be” present is not enough to support a protective sweep).

      In both Lawson v. State, 299 Ga. App. 865, 870 (2) (684 SE2d 1) (2009) and

Moorer v. State, 286 Ga. App. 395, 397 (1) (649 SE2d 537) (2007), one fact that the

court used to justify upholding a protective sweep was that although officers were

initially aware of only one armed robber in the house that was searched, two armed

men had been involved in the crime and had fled together, thereby rasing a reasonable

inference that the second armed robber could be in the house. And in Inglett v. State,

239 Ga. App. 524, 525 (1) (521 SE2d 241) (1999), a protective sweep was upheld

where the resident who received a package containing a large quantity of drugs

referred to those in the house in the plural, officers observed at least one other

individual in the residence, and an officer testified that guns were bound to be present

with such a large amount of narcotics. Compare Nelson v. State, 271 Ga. App. 658,

661 (1) (c) (610 SE2d 627) (2005) (where police testified that “with drugs safety is

                                          10
our number one concern. We don’t want anybody to get shot,” and that they were

confronted with fleeing suspects in a quickly developing situation, a cursory sweep

was sustainable; this finding is dicta, however, because the Court also held that the

motion to dismiss was properly denied because the relevant evidence was not

discovered during the sweep, i.e., it was not the fruit of the poisonous tree)

(punctuation omitted).

      Here, Schwartz did not testify to any information to support the presence of

additional dangerous individuals in the home. He could only imagine that such people

might be present based on the facts that Powell was fleeing, that one or two of the

occupants had outstanding warrants, and that the occupants of the residence were

drug users. None of these facts support an rational inference that anyone other than

the three men near the front door were present, let alone dangerous. We therefore

conclude that the State failed to present articulable facts and rational inferences from

those facts to warrant a reasonably prudent officer in believing that the remainder of

Causey’s home harbored any individuals who posed a danger to the officers or others.

See Buie, 494 U. S. at 334 (III).

      3. Nevertheless, suppression of the evidence of methamphetamine is not

necessarily required:

                                          11
       Even assuming the illegality of the initial entry and search, a party’s
       subsequent consent to the search, which is freely and voluntarily given,
       may serve as an independent act of free will that purges the primary taint
       and authorizes admission of the evidence. Several factors for courts to
       consider in addressing this issue include the time elapsed between the
       illegality and the acquisition of the evidence; the presence of intervening
       circumstances; and the purpose and flagrancy of the official misconduct.


Park v. State, 308 Ga. App. 648, 651 (1) (708 SE2d 614) (2011) (citations, footnote

and punctuation omitted). See also State v. Driggers, 306 Ga. App. 849, 852 (3) (702

SE2d 925) (2010) (“The fruits of an illegal search or arrest should be suppressed

when they bear a significantly close relationship to the underlying illegality.”)

(citation and punctuation omitted). Although we would consider this issue if the trial

court had ruled on it, the trial court appears to have relied solely on the validity of the

protective sweep. We therefore remand the case to the trial court to address the

question whether Causey’s consent to search was voluntary and sufficiently

attenuated from the illegal protective sweep to justify the introduction of the seized

methamphetamine in Causey’s trial. See State v. Sapp, 214 Ga. App. 428, 432 (3)

(448 SE2d 3) (1994) (whether urinalysis testing was sufficiently attenuated from

illegal investigative stop depended on facts not addressed by the trial court, and

therefore a remand was necessary).

                                            12
      We therefore vacate the judgment and remand with direction for the court to

reconsider Causey’s motion to suppress and for other proceedings consistent with this

opinion.

      Judgment reversed and case remanded with direction. Andrews, P. J., and

Miller, J., concur.




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