                              THIRD DIVISION
                              DILLARD, P. J.,
                           GOBEIL and HODGES, 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 25, 2019




In the Court of Appeals of Georgia
 A19A1623. THE STATE v. NEWSOME.

      GOBEIL, Judge.

      Cameron Steele Newsome was charged with theft by receiving stolen property

and numerous drug-related offenses after law enforcement found stolen property and

evidence of a methamphetamine laboratory during a search of Newsome’s apartment.

The trial court granted Newsome’s motion to suppress the evidence from the search,

concluding that the information upon which the search warrants were based was

obtained by an unlawful intrusion into the home’s curtilage. On appeal, the State

contends that the trial court misapplied the law governing the circumstances under

which law enforcement may approach a home’s rear door in the conduct of a

warrantless knock and talk procedure. For the reasons that follow, we affirm.
      When reviewing a trial court’s ruling on a motion to suppress, we must follow

three fundamental principles:

      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.
      These principles apply equally whether the trial court ruled in favor of
      the State or the defendant.


Phillips v. State, 338 Ga. App. 231, 231 (789 SE2d 421) (2016) (citation, punctuation

and emphasis omitted). We conduct a de novo review of the trial court’s application

of the law to the undisputed facts. State v. Mohammed, 304 Ga. App. 230, 230 (695

SE2d 721) (2010).

      Construed most favorably to the trial court’s findings and judgment, the

evidence shows that in June 2016, authorities in Oglethorpe County were

investigating a report of stolen property. The stolen items consisted of various tools,

including a bench grinder, a welder, a tire mounting machine, a belt sander, and a

drill. The victim’s daughter reported the incident to law enforcement initially, but she

                                           2
later admitted that she and her boyfriend gave the tools to Newsome in exchange for

drugs. An investigator with the Oglethorpe County Sheriff’s Office, Michael

Mathews, tracked Newsome’s location to a residence in Clarke County. Mathews

conceded that the information he obtained from the victim’s daughter was insufficient

to support the issuance of a search warrant, but he traveled to Newsome’s apartment

to question Newsome about the tools and further the investigation through the use of

a knock and talk procedure.

      When Mathews arrived at the apartment on June 22, 2016, he knocked on the

front door several times, but received no answer.1 Mathews testified that, when

conducting a knock and talk procedure, his usual practice is to knock on the back

door if no one answers the front door “because some people have rooms where

they’re just in the back of the house and they can’t hear the front of the house.” He

then walked to the back of the residence.

      Newsome’s apartment is located on the second floor of a quadplex, a building

which includes three other apartments. The front door of the apartment is accessible

by walking through a common area. The back yard of the apartment is not connected

      1
        Newsome was not home when Mathews attempted to question him at the
apartment. He arrived at the apartment later that day while officers were conducting
a search pursuant to a warrant.

                                            3
to the front of the apartment by a sidewalk or driveway, and is accessible only by

walking through the grass. Newsome’s rear door is located on a second-floor deck,

which is surrounded by railing, and separated from the adjacent apartment by a

wooden privacy partition. The deck can be reached by climbing a flight of stairs

which leads to Newsome’s apartment only.

       Mathews ascended the flight of stairs and, upon reaching the back deck,

observed a pair of pliers, which “spark[ed] [Mathews’s] interest” because the crime

involved the theft of tools. The rear doors of Newsome’s apartment are made of glass.

As he knocked on the back door, Mathews looked through the glass and observed

grinders and other tools on the floor in the apartment. Mathews took pictures of the

tools and sent them to the victim, who confirmed that some of the tools belonged to

him.

       Investigator Mathews immediately contacted a member of the Athens-Clarke

County Sheriff’s Department, Sergeant David Wortham, and asked him to prepare a

search warrant for the stolen property. Law enforcement then arrived at Newsome’s

residence to execute the search warrant. Once inside, they discovered additional tools

and observed indications that Newsome was manufacturing methamphetamine.

Wortham then obtained a second search warrant for the methamphetamine-related

                                          4
contraband, and officers discovered additional evidence indicative of a

methamphetamine lab in Newsome’s apartment.

      Newsome moved to suppress the evidence seized in his home, including any

fruit of the illegal search and seizure.2 The trial court held a hearing on the motion,

at which it heard testimony from the investigating officers and viewed photographs

depicting the exterior of Newsome’s apartment complex. The court granted the

motion, finding that Mathews’s presence at Newsome’s back door was not authorized

because there was no evidence that the back door was treated as a public entrance.

Moreover, the court concluded that Mathews’s approach to the rear door, after

receiving no response at the front door, was unauthorized because the officer had no

reason to believe that the apartment was occupied, and thus had no reason to believe

that an attempt to knock on the back door would have been more successful or

welcome. The State now appeals the ruling on the motion to suppress.

      The Fourth Amendment to the United States Constitution protects against

“unreasonable searches and seizures[.]” U.S. Const. Amend. IV. The protections


      2
         Officers discovered several tablet computers in Newsome’s apartment during
their initial search. Newsome’s charge of theft by receiving stolen property relates to
the tablets. There is no evidence in the record that Newsome was charged with a
crime in connection with the stolen tools.

                                          5
afforded by the Fourth Amendment extend to the home and its curtilage. State v.

Gallup, 236 Ga. App. 321, 323 (1) (b) (512 SE2d 66) (1999). Curtilage has been

described as “the area immediately surrounding a dwelling house,” and the extent of

the curtilage “is determined by factors that bear upon whether an individual

reasonably may expect that the area in question should be treated as the home itself.”

United States v. Dunn, 480 U. S. 294, 300 (II) (107 SCt 1134, 94 LE2d 326) (1987).

A warrantless search of the curtilage violates the Fourth Amendment unless an

exception to the warrant requirement applies. See Leon-Velaquez v. State, 269 Ga.

App. 760, 761 (1) (605 SE2d 400) (2004) (“Generally, a law enforcement officer’s

entry into a home without a search warrant and without consent or exigent

circumstances constitutes an unjustified, forcible intrusion that violates the Fourth

Amendment.”) (footnote omitted). However, “the plain view doctrine authorizes

seizure of illegal or evidentiary items visible to a police officer only if the officer[]”

is lawfully present at the location where the seizure occurred. State v. Schwartz, 261

Ga. App. 742, 745 (2) (583 SE2d 573) (2003) (citation omitted).

      Here, the State does not contest that the back door and deck areas of

Newsome’s apartment are part of the home’s curtilage. Further, it is undisputed that

Mathews did not have a search warrant when he approached Newsome’s residence.

                                            6
Rather, the State contends that Mathews was lawfully on the back deck (as a

prerequisite to his plain view observation of the stolen tools) as part of his knock and

talk investigation after receiving no response at the front door. Therefore, the State

argues, the trial court erred in granting Newsome’s motion to suppress. We disagree.

      Warrantless searches of the curtilage “are per se unreasonable under the Fourth

Amendment–subject only to a few specifically-established and well-deliniated

exceptions.” Katz v. United States, 389 U. S. 347, 357 (88 SCt 507, 19 LE2d 576)

(1967). One such exception is a “knock and talk” procedure, which involves law

enforcement approaching a home or residence for the purpose of investigating a crime

or making inquiries of the occupant. See Kentucky v. King, 563 U. S. 452, 466-467

(III) (B) (131 SCt 1849, 179 LE2d 865) (2011) (“[T]he police may wish to speak to

the occupants of a dwelling before deciding whether it is worthwhile to seek

authorization for a search. They may think that a short and simple conversation may

obviate the need to apply for and execute a warrant.”). The use of a knock and talk

technique as an investigatory tool does not violate the Fourth Amendment, so long

as “police utilize normal means of access to and egress from the house[.]” Cupe v.

State, 327 Ga. App. 642, 646 (760 SE2d 647) (2014). The rationale underlying the

knock and talk exception is that there is no reasonable expectation of privacy subject

                                           7
to Fourth Amendment protection where the public is welcome. See State v. Zackery,

193 Ga. App. 319, 320 (387 SE2d 606) (1989) (a police officer makes a “valid

intrusion” upon property when “such an officer is merely taking the same route as

would any guest or other caller.”) (citation omitted). Whether a person has a

reasonable expectation of privacy in a particular area of the home’s curtilage, and

thus the extent to which a law enforcement officer may approach the back door of a

home without a warrant, depends upon the facts and circumstances of each case. See

Ohio v. Robinette, 519 U. S. 33, 39 (117 SCt 417, 136 LE2d 347) (1996) (in

examining the totality of the circumstances to determine reasonableness, our analysis

“eschewe[s] bright-line rules, instead emphasizing the fact specific nature of the

reasonableness inquiry”).

      We previously have held that police may approach a side or rear door of a

residence under certain circumstances, such as where access to the front door is

blocked, or where the finder of fact could have concluded that the rear door was used

as a public means of access. See, e.g., Zackery, 193 Ga. App. at 320 (“a police officer

who is unable to approach the front door of a residence and tries to knock upon a side

door only makes a ‘valid intrusion’ upon the property”); Cupe v. State, 327 Ga. App.

at 646 (1) (“although the police had elected to talk with [the defendant] at his back

                                          8
door, as opposed to walking around to the front door, a trier of fact could conclude

that the rear of [the defendant’s] property and the back door were normal means of

access to and egress from the house[]”). On the other hand, we have, under different

circumstances, held that an officer’s approach to a home’s rear door violates the

Fourth Amendment. Compare Arp v. State, 327 Ga. App. 340, 343 (1) (759 SE2d 57)

(2014) (officers’ entry into backyard and positioning themselves immediately outside

the back door, without a search warrant, was not authorized absent exigent

circumstances; back door and window were not visible or in plain view from street

or from anywhere the officers were authorized to be upon arriving at the home, and

there was no evidence that the back door was treated as a public entrance) with

Zackery, 193 Ga. App. at 319-320 (no Fourth Amendment violation when officers

approached side door of home and observed marijuana; officers were lawfully present

at side door because front door was blocked by lawn mower and apparently not in

use).

        In its ruling below, the trial court focused its analysis on whether the back door

was a public entrance for purposes of the Fourth Amendment. “[A]partment residents

have a reasonable expectation of privacy in the curtilage surrounding their

apartment.” Espinoza v. State, 265 Ga. 171, 173 (2) (454 SE2d 765) (1995). The

                                            9
record in this case supports the trial court’s conclusion that Mathews did not have an

implied license to enter the back deck area. There is no evidence that the front door

was inaccessible, or that Newsome treated the back door as a public entryway. Nor

is there evidence that the back door and deck area “were visible or in plain view from

the street or from anywhere the officers were authorized to be upon arriving at the

home.” Arp, 327 Ga. App. at 343 (1). “The absence of a fence enclosing [Newsome’s]

yard is not conclusive, particularly since he rented the property[, and] his lack of

exclusive control over the land [does not] eliminate his expectation of privacy.”

Espinoza, 265 Ga. at 173-174 (2). The back door and deck area are surrounded by

railing, and a wooden privacy partition separates Newsome’s deck from the adjacent

property. The back deck and door are not visible from the street in front of the house,

and there is no sidewalk or driveway connecting the front and back of the apartment.

The only means of access to and egress from the second-story rear door is via a

staircase leading only to Newsome’s apartment. Under these circumstances, the trial

court did not err in concluding that Newsome had a reasonable expectation of privacy

in the back door of his residence. See id. at 173-174 (2) (affirming trial court’s grant

of motion to suppress because defendant had a reasonable expectation of privacy in



                                          10
the yard outside the driveway leading to his apartment and contraband was discovered

in an area where visitors to the duplex would not be expected to go).

      Additionally, the trial court’s conclusion that the officer’s approach to the rear

door, after receiving no response at the front door, was unreasonable given the small

size of the apartment and the lack of evidence that it was occupied at the time

Mathews attempted to question Newsome, is not clearly erroneous. See State v.

Lyons, 167 Ga. App. 747, 747 (307 SE2d 285) (1983) (officers’ approach to the back

door of a home, after receiving no response at the front door, was permissible in part

because it was “[b]ased upon their belief that the residence was occupied). Therefore,

the trial court was authorized to conclude that the officer was not entitled to enter the

curtilage in the manner in which he did, and that he was not in a place that he was

authorized to be when he viewed the stolen tools. Accordingly, the trial court did not

err in granting Newsome’s motion to suppress.

      Judgment affirmed. Hodges, J., concurs. Dillard, P. J., concurs fully and

specially.




                                           11
 A19A1623. THE STATE v. NEWSOME.



      DILLARD, Presiding Judge, concurring fully and specially.

      I agree with the majority that the officer’s approach to the rear door of

Newsome’s apartment—after receiving no response at the front door—was

unreasonable under both the United States and Georgia constitutions,1 and thus the

trial court was right to grant the motion to suppress.2 Even so, I write separately to



      1
        See U. S. Const. Amend. IV (“The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated . . . .”); Ga. Const. Art. 1, § 1, ¶ XIII (“The right of the people to be
secure in their persons, houses, papers, and effects against unreasonable searches and
seizures shall not be violated . . . .”); Olevik v. State, 302 Ga. 228, 234 (2) (b) (806
SE2d 505) (2017) (“The Fourth Amendment to the United States Constitution and
Paragraph XIII of the Georgia Constitution protect against unreasonable searches and
seizures.”).
      2
         I concur fully in the majority’s thoughtful and well-reasoned opinion. As a
result, it may be cited as binding precedent. See Court of Appeals Rule 33.2 (a) (1).
emphasize that—in addition to running afoul of the rightly maligned “reasonable

expectation of privacy” test from Katz v. United States3—the officer also violated our

federal and state constitutions because he obtained information against Newsome by

“physically intruding” on his home and trampling upon his property rights.4 As

Justice Scalia aptly noted for the majority in Florida v. Jardines,5 “when the


      3
          389 U.S. 347 (88 SCt 507, 19 LE2d 576) (1967). Notwithstanding my
increasingly Burkean tendencies as a jurist, I share Justice Thomas’s view that the
Katz test has “no basis in the text or history of the Fourth Amendment,” “invites
courts to make judgments about policy, not law,” and that “[u]ntil we confront the
problems with this test, Katz will continue to distort Fourth Amendment
jurisprudence.” Carpenter v. United States, ___ U.S. ___ (138 SCt 2206, 2236, 201
LE2d 507) (2018) (Thomas, J., dissenting); id. at 2238 (II) (“By defining ‘search’ to
mean ‘any violation of a reasonable expectation of privacy,’ the Katz test
misconstrues virtually every one of [the words contained in the Fourth
Amendment].”); see also id. at 2264 (“Katz’s problems start with the text and original
understanding of the Fourth Amendment . . . . The Amendment’s protections do not
depend on the breach of some abstract ‘expectation of privacy’ whose contours are
left to the judicial imagination. Much more concretely, it protects your ‘person,’ and
your ‘houses, papers, and effects.’ Nor does your right to bring a Fourth Amendment
claim depend on whether a judge happens to agree that your subjective expectation
to privacy is a ‘reasonable’ one. Under its plain terms, the Amendment grants you the
right to invoke its guarantees whenever one of your protected things (your person,
your house, your papers, or your effects) is unreasonably searched or seized. Period.”)
(Gorsuch, J., dissenting). See generally Harvey A. Schneider, Katz v. United States:
The Untold Story, 40 MCGEORGE L. REV. 13, 18-20 (VII) (2009) (explaining how the
Katz test developed).
      4
          Florida v. Jardines, 569 U.S. 1, 5 (II) (133 SCt 1409, 185 LE2d 495) (2013).
      5
          Id.

                                           2
Government obtains information by physically intruding on persons, houses, papers,

or effects, a search within the original meaning of the Fourth Amendment has

undoubtedly occurred.”6 And as in Jardines, this bedrock constitutional principle

makes this case relatively straightforward.

      Here, the officer was “gathering information” in an area belonging to Newsome

and “immediately surrounding his house—in the curtilage of the house, which we




      6
         Id. (punctuation omitted); see Grady v. North Carolina, __ U.S. __, __ (135
SCt 1368, 1370, 191 LE2d 459) (2015) (per curiam) (noting that in United States v.
Jones, 565 U.S. 400 (132 SCt 945, 181 LE2d 911) (2012), “[w]e stressed the
importance of the fact that the Government had ‘physically occupied private property
for the purpose of obtaining information.’ Under such circumstances, it was not
necessary to inquire about the target’s expectation of privacy in his vehicle’s
movements in order to determine if a Fourth Amendment search had occurred.
[When] . . . the Government obtains information by physically intruding on a
constitutionally protected area, such a search has undoubtedly occurred” (punctuation
& citation omitted)); see also United States v. Jones, 565 U.S. 400, 404-05 (II) (A)
(132 SCt 945, 181 LE2d 911) (2012) (“It is important to be clear about what occurred
in this case: The Government physically occupied private property for the purpose of
obtaining information. We have no doubt that such a physical intrusion would have
been considered a ‘search’ within the meaning of the Fourth Amendment when it was
adopted . . . . The text of the Fourth Amendment reflects its close connection to
property, since otherwise it would have referred simply to ‘the right of the people to
be secure against unreasonable searches and seizures’; the phrase ‘in their persons,
houses, papers, and effects’ would have been superfluous. Consistent with this
understanding, our Fourth Amendment jurisprudence was tied to common-law
trespass, at least until the latter half of the 20th century.” (punctuation & citations
omitted)).

                                          3
have held enjoys protection as part of the home itself.”7 In doing so, the officer

“gathered that information by physically entering and occupying the area to engage

in conduct not explicitly or implicitly permitted by the homeowner.”8 Put another

way, the officer’s investigation “took place in a constitutionally protected area”9 and

was “accomplished through an unlicensed physical intrusion”10 when he stepped off

of the “public thoroughfares”11 and entered the curtilage of Newsome’s home.12 This,

the government may not do.13 And because Newsome’s Fourth Amendment rights “do

      7
          Jardines, 569 U.S. at 5-6 (II).
      8
        Id. at 6 (II); see Grady, 135 SCt at 1370 (relying on Jardines to explain that
a search occurs when police “gathered information by physically entering and
occupying the curtilage of the house to engage in conduct not explicitly or implicitly
permitted by the homeowner,” and holding that a search also occurs when police
attach “a device to a person’s body, without consent, for the purpose of tracking that
individual’s movements” (punctuation & citation omitted)).
      9
           Jardines, 569 U.S. at 7 (II) (B).
      10
           Id.
      11
           Id.
      12
         See id. at 11-12 (III) (“The government’s use of trained police dogs to
investigate the home and its immediate surroundings is a ‘search’ within the meaning
of the Fourth Amendment.”).
      13
          See id. at 11-12 (III) (holding that use of drug-sniffing dog on homeowner’s
porch was a “search” within the meaning of the Fourth Amendment); see also Morse
v. State, 288 Ga. App. 725, 727 (1) (655 SE2d 217) (2007) (“In [this Court’s] view,
there is something odious about the government in a free country intruding upon

                                               4
not rise or fall with the Katz formulation,”14 it is my view that the “traditional

property-based understanding of the Fourth Amendment”15 is a more appropriate

basis to ground our decision.16


privately owned property without a warrant, consent, or exigent circumstances.”).
      14
           Jones, 565 U.S. at 406 (II) (A).
      15
         Jardines, 569 U.S. at 11 (III); see Bunn v. State, 153 Ga. App. 270, 273 (2)
(265 SE2d 88) (1980) (“Although[,] [under Katz,] property concepts are no longer
controlling in application of Fourth Amendment rights, we will not discard them
entirely, but will consider them in conjunction with the totality of all the
circumstances surrounding claimed violations of Fourth Amendment rights. Appellate
courts have consistently held whenever government agents enter upon the curtilage
they necessarily intrude upon the individual’s reasonable expectation of privacy.”
(citation omitted)).
      16
          See Jardines, 569 U.S. at 11 (III) (“The Katz reasonable-expectations test has
been added to, not substituted for, the traditional property-based understanding of the
Fourth Amendment, and so is unnecessary to consider when the government gains
evidence by physically intruding on constitutionally protected areas.” (punctuation
omitted)); Jones 565 U.S. at 409 (II) (A) (“[A]s we have discussed, the Katz
reasonable-expectation-of-privacy test has been added to, not substituted for, the
common-law trespassory test.”); Mobley v. State, __ Ga. __, No. S18G1546, 2019
WL 5301819, at *5 (2) (Oct. 21, 2019) (“[A]s the United States Supreme Court has
made perfectly clear, ‘the Katz reasonable-expectation-of-privacy test has been added
to, not substituted for, the common-law trespassory test.’ If either standard is
satisfied, the government act in question generally will amount to a search that
implicates the Fourth Amendment.” (citations omitted)); see also Jardines, 569 U.S.
at 11 (III) (“One virtue of the Fourth Amendment’s property-rights baseline is that it
keeps easy cases easy.”); Mobley, 2019 WL 5301819, at *5 (2) (“For much of our
history, the Fourth Amendment was understood to be concerned only with
government trespasses upon the rights of individuals under the common law to be
secure in their ‘persons, houses, papers, and effects.’ Accordingly, to determine

                                              5
whether a government act amounted to a search, American courts traditionally asked
whether the act was to obtain information by physically intruding on a
constitutionally protected area.”); Mobley v. State, 346 Ga. App. 641, 650-51 (816
SE2d 769) (2018) (Dillard, C.J., concurring specially) (“[U]nder a ‘property-based’
theory of the Fourth Amendment, the Supreme Court of the United States has held
that law enforcement’s brief physical intrusion into a vehicle constitutes a search
within the meaning of the Fourth Amendment. As a result, arguments like these may
vindicate Fourth Amendment interests even [when] Katz arguments do not.”),
reversed by Mobley, __ Ga. __, No. S18G1546, 2019 WL 5301819 (Oct. 21, 2019).

                                        6
