An officer lawfully in a place who sees evidence relating to a crime in plain view may seize that evidence. In this case, two of three officers investigating a domestic complaint at night went to the back of William Lester Kirsche’s residence as a safety precaution as the third officer knocked on the front door. While in the backyard, one of the officers discovered what appeared to be a large marijuana plant. Based on this evidence, Kirsche was convicted on charges of manufacturing marijuana and possession of marijuana. He now appeals denial of his pre-trial motion to suppress the marijuana discovered by the officers, and the question raised is whether the officers were lawfully in Kirsche’s backyard. A trial judge’s findings of fact on a motion to suppress 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 most favorably to the upholding 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.
The trial court set forth its findings of facts as follows: Hall County deputies, responding to a “domestic call” from the defendant’s daughter, found her at the home of a neighbor. She told them that she and her father had had a disagreement about school, that he had gotten irate and that she had gotten scared and left the home. She told the deputies also that her father was growing marijuana in the backyard of their residence. The deputies then called agents from the Multi-Agency Narcotics Squad MANS Unit. Agent Grindle of the MANS Unit arrived in response and talked to the deputies and to the defendant’s daughter. Agent Grindle then asked the deputies to accompany him as he went to talk to the defendant. Grindle told the deputies to “secure the rear of the residence” while he talked with the defendant. The deputies went to the back door which was located on the side of the house. Deputy Burton testified at the suppression hearing that he knew that when they went to the defendant’s residence that Grindle was probably going to ask for consent to search. He further testified that he went to the rear of the residence to secure it for safety and not to search for the marijuana the defendant’s daughter had reported was growing there. However, in approaching the back door Deputy Burton ran into a marijuana plant, so large it had a “trunk,” just off the patio about 10-15 feet from the door of the residence. He recognized it from his nine years of training and experience as a law enforcement officer, having actually seen marijuana 75-100 times. He reported his find to Agent Grindle and stayed with the defendant while Agent Grindle took a look. The defendant was arrested for manufacturing marijuana and then a search warrant was obtained. The evidence also shows that it was 9:00 p.m. and very dark; that the lot had many trees on it; that the marijuana tree was approximately ten feet tall; that one could not see the marijuana tree from the street; and that there was nothing about the appearance of the front of the house that indicated it was acceptable to walk around the back. Officer Burton also testified that it was standard policy under the circumstances to go into the backyard for safety or security reasons; but that there were no urgent circumstances requiring him to go into the backyard. He testified that the daughter said that her father was upset with her academic performance. No evidence was presented that the officers contacted any other authorities about the possibility that a child might be in danger; the mother returned home during the subsequent search of the premises.
