Fritzius v. State

Judge Harold R. Banke,

dissenting.

I separately dissent because the majority creates new law from whole cloth with no legal or factual justification for so doing. Controlling legal authority permits police to detain a person found on the premises during the execution of a search warrant, but does not *651 authorize police to stop and seize individuals not found on the premises. Michigan v. Summers, 452 U. S. 692 (101 SC 2587, 69 LE2d 340) (1981).

Although the majority opinion purports to cloak itself in Summers , a careful reading of that case strips bare the majority’s legal predicate. By quoting only a snippet of Summers , the majority misconstrues Summers to hold that a search warrant for a place carries implicit or explicit authority to stop and seize a person not at the place specified by the search warrant. Compare Summers, 452 U. S. 692 . What the Supreme Court actually determined was that the officers’ detention of Summers on his property was not violative of the Fourth Amendment because “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” (Footnotes omitted.) Id. at 705 . The Supreme Court noted, “this argument could not justify the initial detention of respondent outside the premises described in the warrant.” (Emphasis supplied.) Id. at 694 .

The majority’s out-of-context quote from Summers is misleading and heads this Court down a slippery slope. Nowhere in Summers did the Supreme Court hold that government officials are authorized to stop and search an individual located miles away from the premises being searched. By erroneously extending Summers to authorize an off-premises detention, the majority misses the essence of Summers , which analyzes the reasonableness of compelling an individual to remain on his property while a lawful search is conducted. Inasmuch as the Supreme Court’s opinion was narrowly tailored to permit the police to intercept and detain a resident on his premises, the majority’s expansion of the rule of Summers is unjustified.

In this case, Fallaw, whose premises were being searched, was driving Fritzius’ vehicle. Neither Fritzius’ vehicle nor Fritzius was named in the search warrant for Fallaw’s trailer. The evidence Fritzius sought to suppress was obtained during a search of his vehicle. The State offered no valid grounds for stopping Fritzius’ vehicle, miles away from the trailer, asserting only that the police wanted to ascertain whether Fallaw was inside the car. Yet the State’s conduct far exceeded that asserted purpose. Summers and its progeny do not authorize the stop and search at issue here.

Nor can the majority show the application of any exception to the warrant requirement. Under extremely rare circumstances under nonbinding federal law, a person may be detained as he leaves the premises subject to the search warrant where his presence is essential to the execution of the warrant. See United States v. Cochran, 939 F2d 337, 339 (6th Cir. 1991) (police could lawfully stop vehicle immediately after it exited the residence where defendant’s presence *652 was crucial due to dangerous and menacing guard dog on premises). In this case, the presence of Fritzius, a nonresident of the trailer, was not essential for the safe execution of the warrant. Nor did the State claim that Fallaw’s presence was needed, inasmuch as agents were already in the process of conducting the search when Fallaw and Fritzius were detained.

Notwithstanding the claim to the contrary, this case is controlled by State v. Crank, 212 Ga. App. 246 ( 441 SE2d 531 ) (1994), where we upheld the suppression of evidence found in Crank’s vehicle. In Crank , police had a warrant for Crank’s person, premises, and vehicles located on his premises. Id. at 247 . Due to concern for police safety, because Crank was known to be armed at all times and had a known proclivity for fighting with police, police set up surveillance to intercept him a safe distance from his home. After Crank was stopped and detained two or three miles from his home, his vehicle, which had been specified in the search warrant, was impounded and searched. We affirmed the trial court’s grant of Crank’s motion to suppress because the seizure was not authorized by Summers , probable cause, or exigent circumstances.

The facts in this case are even more compelling because here, unlike in Crank , the police had no search warrant for Fritzius or his vehicle. Because the State failed to show probable cause, exigent circumstances or any application of an exception to the Fourth Amendment, Fritzius’ motion to suppress the search of his vehicle should have been granted.

In a circuitous effort to distinguish Crank , the majority mischaracterizes the record by stating that Fritzius challenged only the legality of the stop. Fritzius’ motion to suppress expressly provided, “The search and seizure complained of was a violation of the Fourth Amendment.” Fritzius’ motion demanded the suppression of evidence “obtained by virtue of the illegal search.” Fritzius’ appellate brief echoes this argument.

Bales v. State, 216 Ga. App. 856 ( 456 SE2d 112 ) (1995) provides no support for the majority’s position. In that case, while the police were conducting a lawful search, Bales suddenly arrived in a vehicle at the premises being searched. Having discovered narcotics and being on the lookout for the occupant of the house, police had reasonable articulable suspicion to authorize a brief investigative stop of Bales to determine whether he was that person. Id. at 856-857 .

Here, the State cannot show the requisite justification for a brief investigatory stop. Burdette v. State, 210 Ga. App. 471, 472-473 ( 436 SE2d 502 ) (1993); see Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979) (specific and articulable facts which taken together with rational inferences are needed to justify government’s intrusion). Ascertaining whether Fallaw was inside Fritzius’ vehicle, *653 without more, cannot support the invasion of Fritzius’ rights. Such conduct was plainly an unlawful intrusion violative of the Fourth Amendment. Vansant v. State, 264 Ga. 319, 320 (2) ( 443 SE2d 474 ) (1994).

Decided March 21,1997.

Billy J. Dixon, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

Even if Summers did apply to the facts in this case, the stop was improper. As the dissent correctly concludes, none of the Summers factors justified the stop. Because this stop was outside the premises described in the search warrant, and the State could not show that Fallaw’s presence was essential to effectuate their search, it could not be justified by the warrant. See United States v. Cochran, 939 F2d at 339. Nor was there any evidence that the officers were at risk of harm from Fallaw or that the officers were preventing Fallaw’s flight. Summers, 462 U. S. at 702-703.

Under the holding of the majority, law enforcement officials may now temporarily detain vehicles containing persons who recently departed premises subject to the execution of a search warrant. Outside of misapplying Summers , the majority cites absolutely no authority for expanding the scope of police power while constricting the safeguards of the Fourth Amendment. Defining the parameters of this new rule authorizing the “fresh pursuit” of a person who has left premises subject to a search warrant will doubtlessly generate endless controversy and countless motion hearings.

For these reasons, I respectfully dissent. I am authorized to state that Judge Ruffin joins in this dissent.