Banks v. State
In Banks v. State, 229 Ga. App. 414, 493 S.E.2d 923 (1997), the Georgia decision relied upon by the district court in this case, police officers on routine patrol about midnight were surprised to see a light burning in a commercial building and two unfamiliar cars parked nearby. Aware that two businesses on the same beat had been burglarized the night before, they checked the door of the business.
Finding it unlocked, they entered the building, immediately smelled burning marijuana, and then discovered the defendant-owner. He led them to a back room containing marijuana smoke and a marijuana pipe and gave the officers the marijuana he had on him.
The Banks court held that officers who find an unlocked closed business during a normal security sweep may conduct a limited intrusion for the purpose of securing the area and making sure no intruders are present. 229 Ga. App. at 415-16.
It noted the Tenth Circuit's expressed concern in United States v. Bute about creating a "wholesale exception" and found such an intrusion proper only when: (1) the officer holds a reasonable belief that the building's owner or rightful occupants would not object to the intrusion and (2) circumstances are sufficient to give the officer an articulable suspicion that unauthorized persons are on the premises. 229 Ga. App. at 416-17.