¶1dissenting.
¶2I dissent due to the ruling in Division 1.
¶3There is nothing in the record to reflect that there was a threat of imminent destruction of the shoe track so as to create exigent circumstances for a search of the curtilage and seizure of items found there before a search warrant was obtained.
¶4Pretermitting the question of whether the officers were authorized to go into the backyard initially, enabling them to discover the track, or whether they were authorized to remain to protect the track, the exigency argument fails to persuade me. Instead of securing the premises to protect the evidence, the two police officers were “looking around in the rear of the house, you know checking the perimeter out, on the outside of the house.” This officer further explained, “We were looking for anything that would relate to that case, in — on the outside of the residence. I went back behind the residence, some 200 feet. In some trees, bushes, there was a white, plastic garbage bag that was in the bushes there, and inside of this bag was a three-quarter length green coat. ... I showed the bag to the Sheriff and to Investigator Weekly, and then we secured it and looked at the perimeter even moreso.” It was then that he spotted the glass milk jug under the overturned chair.
¶5In addition to the fact that the officers were unauthorized to be in the place where they noticed the evidence in question, the green coat was clearly not in plain view. It was contained in a white, plastic garbage bag. The discovering officer “pulled the edge of [the bag] up with my flashlight and saw it.”
¶6As there were no exigent circumstances to authorize the warrant-less search and seizure, I conclude that the trial court erred in denying the motion to suppress. “[A]bsent consent or exigent circumstances, even though police officers have probable cause to search, they may not enter a home [or its curtilage] without a warrant merely because they plan to obtain one subsequently.” Griffith v. State, 172 Ga. App. 255, 257 (1) (322 SE2d 921) (1984). There is no “continuing the investigation” exception to the warrant requirement. Id.
¶7Segura v. United States, 468 U. S. 796 (104 SC 3380, 82 LE2d 599) (1984), does not provide authority for an opposite result. In Segurathe evidence challenged in the Supreme Court was seized after a search warrant was issued. It held that even if the initial entry into the premises was illegal, the evidence was discovered during a
¶8search pursuant to an independently-sourced valid warrant, and the connection between the illegal police conduct and the discovery of the evidence was “sufficiently attenuated as to dissipate the taint.” Segura, supra,468 U. S. at 815. The search at issue here was conducted before the issuance of a warrant. Moreover, in Segurathere was “no evidence that the agents in any way exploited their presence in the apartment; they simply awaited the issuance of the warrant.” Segura, supra,468 U. S. at 812. Here, instead of simply securing the premises and awaiting the issuance of the warrant, see Segura, supra,468 U. S. at 809-810, the officers conducted a search. As pointed out previously, the evidence obtained during the warrantless search was crucial.
¶9Because I cannot conclude that there was no reasonable possibility of the improperly admitted evidence having contributed to the guilty verdict, that evidence reflecting identification of defendant as the offender, the convictions must be reversed. Schneble v. Florida, 405 U. S. 427, 432 (92 SC 1056, 31 LE2d 340) (1972). Not only did the evidence challenged implicate defendant in the offenses for which he was on trial, but the coat also went to the identification of defendant as the perpetrator of the independent crime of attempted rape.
¶102. I agree with the remaining divisions of the opinion.
¶11I am authorized to state that Judge Carley joins in this dissent.