Gobeil, Judge.Following a bench trial, John Parker Wiggins was convicted of possession of less than an ounce of marijuana. On appeal from the judgment of conviction, Wiggins asserts that the trial court erred in denying his motion to suppress because undisputed facts show that, absent a warrant, the responding sheriff’s deputy had no reasonable or articulable suspicion on which to enter the backyard of a residence where Wiggins was arrested.[1] We agree and reverse.In reviewing a trial court’s ruling on a motion to suppress, the appellate court must follow three 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.
Cupe v. State, 327 Ga. App. 642, 644 (1) (760 SE2d 647) (2014) (footnote omitted). To the extent that “the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court’s application of the law to the undisputed facts.” Jones v. State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012). Construed most favorably to the trial court’s findings and judgment, the evidence showed the following facts. On September 27, 2016, at approximately 11 p.m., Deputies Trent Anding and Tommy Grier of the Fayette County Sheriff’s Office responded to a report of a loud party at a residence whose owners were suspected of being out of town. Upon arrival, the deputies noticed numerous cars parked in the driveway and on the street outside the property and could hear loud noises coming from the rear of the residence. At the suppression hearing, Deputy Anding testified that the officers walked down the driveway “skirting the left side of the driveway towards the wood line.” The officers had to walk “to the back of the driveway before [they] could see the backyard.” As the officers proceeded down the driveway, they passed a walkway to the front door. The officers never attempted to knock on the front door to confirm whether the homeowners were present in the house.[2] Rather, Deputy Anding described that the officers could “obviously hear a party coming from the backyard” and “[u]sually, if there’s a party going on, everyone’s going to be at the party.” While still standing in the driveway, the officers observed a large party occurring in the backyard with several people on a raised porch. Given these circumstances, Deputy Anding testified that he suspected that the partygoers had broken into the house while the homeowners were out of town. Deputy Anding announced his presence as a Deputy Sheriff and instructed “[e]verybody [to] stay there.” The individuals were not free to leave at that point. When an unidentified individual yelled “run,” the officers observed some people jump off the back of a balcony. The deputies then gave chase and detained one of the individuals[3] attempting to flee. Deputy Anding also saw a backpack being thrown off the balcony. After detecting the smell of marijuana, Deputy Anding discovered marijuana inside the backpack. Wiggins admitted to Deputy Anding that the backpack belonged to him, and subsequently was arrested and charged with possession of less than an ounce of marijuana. At the suppression hearing, Wiggins testified that on the date in question, “[t]he homeowner, Malachi”[4] invited him to the house to celebrate a birthday party. Wiggins planned to spend the night at the house and celebrate Malachi’s birthday with all of their friends. Wiggins had been to the house previously, including visits to the pool in the backyard. Wiggins confirmed that he had utilized the driveway to access both the pool and the backyard in the past, although he usually went to the front door, as he did on the night in question. Wiggins testified that on the night of the party, he could not see the parked police car at the front of the house or the driveway from the porch in the backyard and noticed the officers only when they entered the backyard with flashlights.Wiggins moved to suppress the officers’ entry into the backyard and the subsequent search of his backpack, arguing that Deputy Anding’s discovery of the marijuana in the backpack resulted from the deputy’s unauthorized entry into the curtilage of the private residence. As a result, Wiggins argued, all evidence discovered by law enforcement on the day of the search was illegally seized and should have been suppressed by the trial court. The trial court denied Wiggins’s motion, finding that based on reports of a party at the residence while the homeowners were out of town, Deputy Anding was authorized to investigate whether the individuals had permission to be at the property. Moreover, the court concluded that because Deputy Anding “was taking the same route as any other guest” in his approach towards the back of the residence, his observations of the backyard from the driveway did not qualify as a search. Wiggins 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. “When a defendant moves to suppress evidence based on an illegal search, the state must bear the burden of proving that the search was lawful.” LeonVelazquez v. State, 269 Ga. App. 760, 761 (1) (605 SE2d 400) (2004) (footnote omitted); see also OCGA § 17530 (b). “The protections afforded by the Fourth Amendment extend to the home and its curtilage.” Arp v. State, 327 Ga. App. 340, 342 (1) (759 SE2d 57) (2014). 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). Our Supreme Court has defined curtilage as “the yards and grounds of a particular address, its gardens, barns, and buildings.” Espinoza v. State, 265 Ga. 171, 173 (2) (454 SE2d 765) (1995) (citation and punctuation omitted). “It is the general rule that a warrant is required to search the curtilage,” which includes the backyard of a residence. Arp, 327 Ga. App. at 343 (1) (citation and punctuation omitted). “Without more, even probable cause to believe that a crime has been committed or is being committed does not authorize a warrantless search of one’s dwelling.” Leon-Velazquez, 269 Ga. App. at 762 (1) (punctuation and footnote omitted). “In order to claim the protection of the Fourth Amendment against unreasonable search and seizure, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.” Smith v. State, 284 Ga. 17, 21 (3) (663 SE2d 142) (2008) (citation and punctuation omitted).A person has a legitimate expectation of privacy in his or her home and may have a legitimate expectation of privacy in a house in which the person is an overnight guest; however, one who is merely present with the consent of the householder may not claim the protection of the Fourth Amendment.
