                              SECOND DIVISION
                                DOYLE, C. J.,
                          MILLER, P. J, and REESE, J.

                    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


                                                                       June 8, 2017




In the Court of Appeals of Georgia
 A17A0148. STATE v. HOLTZCLAW.                                                DO-005 C

      DOYLE, Chief Judge.

      The State appeals from the grant of Audrey Holtzclaw’s motion to suppress

evidence police found in her house, which evidence is the basis for charges that she

crossed the guard line of the county jail with a controlled substance1 and that she

possessed methamphetamine (two counts) and alprazolam in violation of the Georgia

Controlled Substances Act.2 The State contends that the trial court erred by ruling that

(1) an occupant of the home lacked authority to allow police into Holtzclaw’s home,

and (2) Holtzclaw did not thereafter voluntarily give police consent to search her

house. For the reasons that follow, we affirm.


      1
          OCGA § 42-4-13 (d) (1) (A).
      2
          OCGA § 16-13-30 (a).
      There are three principles that guide our review of a trial court’s ruling on a

motion to suppress.

      First, when a motion to suppress is heard by the trial judge, that judge
      sits as the trier of facts. The trial judge hears the evidence, and his
      findings based upon conflicting evidence are analogous to the verdict of
      a jury and should not be disturbed by a reviewing court if there is any
      evidence to support them. Second, the trial court’s decision with regard
      to questions of fact and credibility must be accepted unless clearly
      erroneous. Third, the reviewing court must construe the evidence most
      favorably to the upholding of the trial court’s findings and judgment.3


Further, “to the extent that the controlling facts are undisputed because they are

plainly discernable from [a] recording . . . , we review those facts de novo.”4

      So viewed, the record shows that police received a complaint of drug activity

at a particular address in Dawson County. Two officers arrived at the residence and

knocked on the front door. They could hear activity inside, but initially no one came

to the door; soon thereafter, a man named Shannon emerged from a garage door

where the officers met him. The officers had independent knowledge that they were


      3
       (Punctuation omitted.) Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 SE2d
148) (2013), quoting Miller v. State, 288 Ga. 286, 286-287 (702 SE2d 888) (2010).
      4
        (Punctuation omitted.) State v. Depol, 336 Ga. App. 191, 191 (784 SE2d 51)
(2016), quoting State v. Mosley, 321 Ga. App. 236 (739 SE2d 106) (2013).

                                          2
looking for Holtzclaw, who lived at the residence. Shannon explained that “this is not

my house. This is my cousin’s house . . . I don’t live here.” Shannon said he had come

to visit Holtzclaw, but she was not there. The front door would not open, so he had

found another door unlocked and had entered the house to wait for Holtzclaw.

Shannon explained that he did not have a key to the house, but Holtzclaw would be

back soon. The officers asked Shannon if they could walk through the house to see

if anyone else was there, and Shannon said “that’s fine with me, but like I said, this

is not my house.”

      After entering the house, police encountered a man named Kevin, who

provided a false name and date of birth. Police started to arrest Kevin, but he resisted,

and an altercation ensued. After Kevin was subdued, the officers checked the rest of

the house and noticed an odor of marijuana and a marijuana smoking device in a

separate bedroom. After the initial sweep of the house, Shannon “insisted [on] trying

to contact” Holtzclaw, but officers were unable to reach her, so they decided to apply

for a warrant to search the house.

      Thereafter, investigators arrived, and two officers left the scene to apply for the

warrant; on their way, they were advised that Holtzclaw had arrived at her residence,

so they went back to speak to Holtzclaw.

                                           3
      When Holtzclaw arrived, she observed that “officers [were] coming in and out

of the front door of my house. They were already in there[,] and they had already

[taken] Kevin to jail[,] and Shannon was not there. . . . [Police] were in there and

didn’t have permission to be in my house. . . Nobody was there. Just the police

officers with the front door wide open.”

      Much of the ensuing conversation with Holtzclaw was recorded on an audio

recorder triggered by police when they began speaking to her. In that conversation,

police asked for consent to search her house, repeatedly assuring Holtzclaw that she

would have an opportunity to explain the circumstances for anything they found and

whether it was brought there by visitors. The officer also explained to Holtzclaw that

they had already found “a marijuana pipe” in the house, and they were in the process

of obtaining a search warrant: “Either way, we’re gonna find it, so, search warrant or

not, so, if you think the search warrant’s gonna lessen the blow, I mean, it’s not.”

      Holtzclaw declined consent to search her house, but allowed officers to search

her purse and car. Police found a syringe and her mother’s prescription pills in

Holtzclaw’s car, but nothing in her purse. A few minutes later, after further

discussion, the officer again asked for consent to search her house, and Holtzclaw

said she did not “want to go to jail for something someone else did,” pointing out that

                                           4
other people had stayed in her house the prior night. The officer again reiterated that

he would allow Holtzclaw a chance to explain whatever they find. Ultimately,

Holtzclaw consented to a search of her house.

      During the search, police found syringes in Holtzclaw’s bedroom and

methamphetamine in a jewelry box on her dresser. Holtzclaw was arrested and taken

to jail, where an additional packet of suspected methamphetamine was found on her

person. Holtzclaw was charged with crossing the guard line of the county jail with a

controlled substance and possessing methamphetamine and alprazolam.

      Holtzclaw moved to suppress the evidence found in her house, arguing that the

police lacked authority to enter it initially and that her subsequent consent was not

voluntarily given. Following an evidentiary hearing, the trial court granted the

motion, ruling that Shannon did not have authority to allow police into Holtzclaw’s

home while she was not there and that her subsequent consent based in part on that

initial entry was involuntary. The State now appeals.

      1. The State contends that the trial court erred by ruling that the police lacked

a reasonable, good faith belief that Shannon had authority to let them into

Holtzclaw’s house. We disagree.



                                          5
             The Fourth Amendment states that people “shall be secure in their
      person, houses, papers, and effects, against unreasonable searches and
      seizures.” Fundamentally, there exists a justified expectation of privacy
      against unreasonable intrusions into the home. . . [A] police entry into
      the home constitutes a search within the meaning of the Fourth
      Amendment. Once an officer physically enters a home, he is “searching”
      it in that he is observing it with his senses.5


Thus, we must first determine whether police had authority to enter and thereby

search Holtzclaw’s home during their initial entry based on Shannon’s consent.

      Police conceded that they did not act pursuant to any exigency, and the only

basis for their initial entry was Shannon’s consent.6

      In a case such as this involving a third party’s consent to search, the
      State has the burden to prove not only that consent was voluntary but
      that the third party had authority over, and other sufficient relationship
      to, the premises sought to be inspected. To resolve the issue of third
      party consent, we must determine whether the objective facts available
      to the officer at the time would warrant a person of reasonable caution
      to conclude that the third party had authority over the premises. The

      5
       (Citations, punctuation, and emphasis omitted.) Hunt v. State, 302 Ga. App.
578, 581 (1) (691 SE2d 368) (2010).
      6
        At the suppression hearing, the officer who spoke with Shannon explained
that they had no basis for entering Holtzclaw’s house other than Shannon’s consent:
“Had he refused . . . at that time we would have had to leave the house. We would
have had no further action to take at that time.”

                                           6
      officer’s belief that the third party has authority over another person’s
      property to consent to the search thereof should be based on information
      previously obtained in his investigation as well as facts and
      circumstances existent at the time of the search.7


      The type of authority or relationship to the premises by the third party
      must constitute the following: mutual use of the property by persons
      generally having joint access 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.8


      Here, it is undisputed that the police knew that Holtzclaw owned the home, and

Shannon explained to them that “this is not my house.” Shannon told the officers that

he did not have a key, and he was waiting for the owner, who would be there soon.

      7
          (Punctuation omitted.) Id. at 581-582 (1).
      8
        (Punctuation omitted.) Brown v. State, 261 Ga. App. 351, 353 (1) (582 SE2d
516) (2003), quoting Smith v. State, 264 Ga. 87, 88 (441 SE2d 241) (1994). See also
Georgia v. Randolph, 547 U. S. 103, 110 (II) (A) (126 SCt 1515; 164 LE2d 208)
(2006) (“The authority which justifies the third-party consent does not rest upon the
law of property, with its attendant historical and legal refinements, but rests rather on
mutual use of the property by persons generally having joint access 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.”),
quoting U.S. v. Matlock, 415 U. S. 164, 171 n. 7 (94 SCt 988, 39 LE2d 242) (1974).

                                           7
Based on this evidence, the trial court was authorized to find that it was clear from

the circumstances that Shannon was merely a visitor to the home and had no actual

or apparent authority over it.9 “[T]he mere presence of a third party who opens the

door is insufficient to show the type of authority required” to consent to a search in

the absence of the homeowner.10 Accordingly, this enumeration presents no basis for

reversal.

       2. The State also argues that the trial court erred by finding that Holtzclaw’s

subsequent consent to search her house was involuntary. Again, the record supports

the trial court’s ruling on this issue.

                  A search based on voluntary consent eliminates the need for a
       search warrant or probable cause. The law does not require that a party
       be told of his right to refuse a search or terminate a search. While giving
       such information may be considered, voluntariness is determined by the
       totality of the circumstances, including such factors as the age of the
       accused, his education, his intelligence, the length of detention, whether
       the accused was advised of his constitutional rights, the prolonged
       nature of questioning, the use of physical punishment, and the




       9
           See Brown, 261 Ga. App. at 354.
       10
            Id.

                                             8
      psychological impact of all these factors on the accused. No single
      factor controls.11


      Here, the record shows that Holtzclaw arrived at her residence to see police

“coming in and out of the front door of my house. They were already in there” before

she was asked for consent to search her home.12 Although no overt threats were made

by police, she was told that police already had found a marijuana pipe in her house,

and “[e]ither way, we’re gonna find it, so, search warrant or not, so, if you think the

search warrant’s gonna lessen the blow, I mean, it’s not.” Further, Holtzclaw was

prohibited from going into her house until police were able to search her house with

a warrant. These circumstances authorized the trial court to conclude that Holtzclaw

believed she had very little choice in the matter, particularly because she witnessed

police already in her house. Police were able to leverage their discovery of the

marijuana pipe during the earlier unauthorized search to convince Holtzclaw to

consent to the search. Under these circumstances, the record supports the trial court’s



      11
        (Citations and punctuation omitted.) Martinez v. State, 239 Ga. App. 662,
663 (522 SE2d 53) (1999).
      12
        The trial court expressly found that this was a factor in its decision: “The
Court cannot ignore the Defendant’s testimony that they were already in her house
when she arrived home.”

                                          9
ruling Holtzclaw’s consent was the product of the earlier illegal search and therefore

not voluntary.13

      Judgment affirmed. Miller, P. J., and Reese, J., concur.




      13
         See Pledger v. State, 257 Ga. App. 794, 797-800 (572 SE2d 348) (2002). See
also Snider v. State, 292 Ga. App. 180, 183-184 (663 SE2d 805) (2008) (holding that
consent was not voluntary based on initial unlawful police action); Hogan v. State,
140 Ga. App. 716 (231 SE2d 802) (1976) (“‘A [woman’s] home is [her] castle. The
storm and wind may enter, but the King cannot enter, and all the forces of the Crown
cannot cross the threshold of his ruined tenement.’ These words by Lord Eldon served
as the basis for that portion of the Fourth Amendment in the Bill of Rights declaring
that the people shall be secure in their houses against unreasonable searches and
seizures.”).

                                         10
