☢ test - Í

and to hold that the police may not, upon request, although exigent circumstances do not appear, approach the outer doors of a dwelling absent a warrant or consent of an owner or occupant would work that result.’ (cit.) This is true even when the officer entered the back yard of the property.” State v. Schwartz, 261 Ga.App. 742, 583 S.E.2d 573 (June 18, 2003). Deputies Tanner and Brown went to Defendants’ house to arrest Charles Walker, Mrs. Schwartz’s brother. The arrest warrant listed the house as Mr. Walker’s place of residence. Deputy Tanner went to the front door, while Brown went to a window 7 to 8 feet away from the door, “at the side of the house where the carport and the front of the house [met].” The window was covered with blinds, but the slats were open at that time. Brown observed Mr. Schwartz with a marijuana cigarette in his hand and a large plastic bag of a green leafy substance on the table in front of Mrs. Schwartz. He relayed these observations to Tanner, who then knocked on the Schwartz’s door without identifying himself. Brown subsequently watched as Mrs. Schwartz stuck the plastic bag in a diaper bag under the table. Mr. Schwartz came to the door, told the officers that Mr. Walker was not there, gave them an address where he could be found, and refused them entry three different times. The officers, however, did not leave. Instead, Brown showed Mr. Schwartz the arrest warrant and said that he and Tanner needed to enter the house to search for Mr. Walker. “After some hesitation,” Mr. Schwartz allowed the deputies in and gave them permission to search the house for Mr. Walker. When the search did not produce Mr. Walker, Brown told Defendants that he had another issue to discuss with them and then relayed what he had seen through the window. Defendants thereafter admitted to possession of marijuana and handed the officers the hidden bag, a marijuana cigarette, rolling papers, and an additional, smaller bag of marijuana. The trial court found that the deputies had no right to look through Defendants’ window, but, had they the right, no exigent circumstances authorized the warrantless seizures. Held: Brown had no right to look through the window. Defendants’ home was set back 100 feet from the street and surrounded by a fence. The marijuana could not “be seen through the window from anywhere other than their property.” Meanwhile, the officer’s “authority to approach the house…did not justify his observation through the window,” as Brown could not have “gained this vantage point by traveling along the route any visitor would travel to the…front door.” Safety considerations, in turn, did not justify the intrusion since the officers knew that Mr. Walker was not charged with a violent crime. Nevertheless, even if Brown had been entitled to look through the window, the seizures were unconstitutional. The deputies did not have a search warrant, and, at the time of entry, the marijuana was no longer in plain view. Since they had determined that Mr. Walker was not in the house, “the seizure [also] clearly exceeded their scope of authority under the arrest warrant.” Exigent circumstances — in particular, the danger of the marijuana being destroyed — were also absent, as “[t]here [was] no evidence that the Schwartzes knew the police were outside their home when they hid the marijuana” or “that [they] were aware that Brown had seen the marijuana from the window.” The evidence, therefore, was properly suppressed. But note, an arrest warrant gives officers power to search anywhere in the person's residence where the person might be located, where they have probable cause to believe the person is in the residence, Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), State v. Wright, 204 Ga.App. 382, 419 S.E.2d 334 (1992). Brown v. State, 261 Ga.App. 351, 582 S.E.2d 516 (May 21, 2003). “[I]n a case involving a third party’s consent to search, ‘the State has the burden to prove not only that consent was voluntary but that the third party had authority over, and other sufficient relationship to, the premises sought to be inspected. [A]n unconsented police entry into the home constitutes a search within the meaning of the Fourth Amendment.’... Resolution of this issue requires determining whether the objective facts available to the officer at the time would warrant a person of reasonable caution to conclude that the third party had authority over the premises.” Officer’s only information was that the residence was defendant’s, not that of the man who opened the door. Mere presence of person who opens door is not enough to assume power to consent to search. Fincher v. State, 276 Ga. 480, 578 S.E.2d 102 (February 24, 2003). “[W]here a law enforcement officer had entered the curtilage and observed contraband before receiving consent to search,” the later consent “‘amounts to a waiver of the warrant requirement with respect to the search previously conducted’ .... [and ratifies] the prior warrantless entry into the curtilage....” Bolton v. State, 258 Ga.App. 217, 573 S.E.2d 479 (October 31, 2002). Consent to search defendant’s residence was not validly given where officers entered without consent, without a warrant, and without exigent circumstances. “Here, although the State argues that the officers entered Bolton’s residence because the officers perceived an exigency, Bolton’s flight to another part of the house, at the motion to suppress hearing, Officer Thomas testified that he perceived no exigent circumstances requiring his entry into Bolton’s home. Further, the State does not explain how Bolton’s flight into another room created an exigency.” No apparent reason why officers couldn’t have taken time to seek a warrant.