Caffee v. State

• Decision Date: 07 May 2018
• Docket Number: S17G1691
• Parties: CAFFEE v. The STATE.
• Court: Georgia Supreme Court

303 Ga. 557

814 S.E.2d 386

CAFFEE

v.The STATE.

S17G1691

Supreme Court of Georgia.

Decided: May 7, 2018

Gregory A. Hicks, for appellant.

Jessica K. Moss, Solicitor-General, Carlton T. Hayes, David M. McElyea, Assistant Solicitors-General, for appellee.

Peterson, Justice. We granted certiorari to consider whether the warrantless search of Richard Caffee resulting in the discovery of marijuana was authorized by an exception to the Fourth Amendment’s warrant requirement. The Court of Appeals concluded that the warrantless search was permissible because it was supported by probable cause to believe that marijuana would be found on Caffee. See Caffee v. State, 341 Ga. App. 360, 801 S.E.2d 71 (2017). Absent consent, probable cause generally is a necessary condition to support a warrantless search of a person, but it is not by itself sufficient; a warrantless search must also fall within a recognized exception to the warrant requirement. To the extent the Court of Appeals suggested otherwise, it was wrong. We nevertheless affirm because the warrantless search was permissible as a search incident to arrest—even though it preceded the formal arrest—as the police officer had developed probable cause to arrest Caffee for possession of marijuana before conducting the search.

When reviewing the grant or denial of a motion to suppress, an appellate court must construe the evidentiary record in the light most favorable to the trial court’s factual findings and judgment. Hughes v. State, 296 Ga. 744, 746 (1), 770 S.E.2d 636 (2015). An appellate court also "generally must limit its consideration of the disputed facts to those expressly found by the trial court." Id.

Viewing the evidence in that light, the record shows that on November 1, 2015, Deputy Mark Patterson pulled over Caffee’s truck for having an expired tag. During the stop, Deputy Patterson smelled the odor of raw marijuana coming from Caffee’s truck. Deputy Patterson testified that, based upon his training and experience, he was familiar with the smell of raw marijuana.

After Caffee exited the truck, Deputy Patterson asked Caffee if he had marijuana in the truck. Caffee said no. Deputy Patterson decided to search Caffee’s truck for drugs but waited for another officer to arrive. While waiting, Deputy Patterson conducted a pat-down search of Caffee, but found no weapons or contraband. When back-up arrived, Deputy Patterson searched the entire truck and found only two small empty bottles that smelled of marijuana.¹

According to Deputy Patterson, the odor of raw marijuana dissipated from the truck during the search while the doors were open. When Deputy Patterson approached Caffee to ask about the two containers found in the truck, Patterson again smelled the odor of raw marijuana. Deputy Patterson searched Caffee’s outer clothing and found in Caffee’s shirt pocket a small plastic bag containing less than an ounce of marijuana. Caffee did not consent to any of the searches. Caffee was arrested and charged with possession of marijuana and driving with an expired tag.

Following a hearing on Caffee’s motion to suppress at which Deputy Patterson testified as the sole witness and a video of the stop was introduced, the court rejected the State’s argument that Patterson’s search of Caffee’s shirt pocket was a lawful pat-down search under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The trial court nevertheless concluded that Patterson had probable cause to search Caffee’s shirt pocket under the totality of the circumstances.²

The Court of Appeals granted Caffee’s application for interlocutory appeal and affirmed the trial court’s ruling that the search of Patterson’s clothing was valid. Caffee, 341 Ga. App. at 360, 801 S.E.2d 71. The Court of Appeals concluded that the police officer had probable cause to believe that marijuana would be found on Caffee’s person because the officer had training and experience in detecting the odor of raw marijuana and physical manifestations of recent marijuana use, observed that Caffee had indications of recent marijuana use (e.g., bloodshot and glassy eyes and "white and risen" taste buds), smelled raw marijuana when he approached Caffee’s truck, noticed that the odor dissipated during the search of the truck while the doors were open and Caffee was outside the vehicle, did not find marijuana in the truck, and smelled marijuana "pretty strongly" upon approaching Caffee after the vehicle search. Id. at 362-363 (1), 801 S.E.2d 71.³

The Court of Appeals’ analysis was both incomplete and beyond the scope of its proper review. We first outline the Court of Appeals’ error in failing to cabin its review and then show how its analysis was flawed, although we ultimately affirm.

1. The Court of Appeals failed to apply the proper standard of review.

We have repeatedly said that on an appeal from the grant or denial of a motion to suppress, appellate courts must "focus on the facts found by the trial court in its order , as the trial court sits as the trier of fact." Hughes, 296 Ga. at 746 (1), 770 S.E.2d 636 (citation and punctuation omitted; emphasis in original). An appellate court may, however, "consider facts that definitively can be ascertained exclusively by reference to evidence that is uncontradicted and presents no questions of credibility, such as facts indisputably discernible from a videotape." State v. Allen, 298 Ga. 1, 2 (1) (a), 779 S.E.2d 248 (2015) (citation and punctuation omitted).

But here, the Court of Appeals supplemented the trial court’s findings with additional findings of its own that relied on testimony that inherently presented questions of credibility and were not "indisputably discernable" from the video of the stop.⁴ The Court of Appeals found that Deputy Patterson had training and experience in detecting the physical manifestations of recent marijuana use, and that he observed indications that Caffee recently used marijuana. Although Deputy Patterson testified about his experience detecting recent marijuana use and that Caffee’s bloodshot, glassy eyes and "white and risen" taste buds on his tongue reflected such use, the trial court made no findings as to these points. The trial court was not required to accept Deputy Patterson’s testimony on these issues, even though it was not contradicted. See Tate v. State, 264 Ga. 53, 56 (3), 440 S.E.2d 646 (1994) ("Credibility of witnesses and the weight to be given their testimony is a decision-making power that lies solely with the trier of fact. The trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony."). We do not know why the trial court said nothing about whether Caffee exhibited signs of recent marijuana use, but we do know that it was not within the province of the Court of Appeals to make its own findings in this respect. See Williams v. State, 301 Ga. 60, 61, 799 S.E.2d 779 (2017) ("The Court of Appeals erred by assuming that the trial court must have accepted all of [the deputy’s] testimony as true, and then, based on that erroneous assumption, going on to make its own additional factual findings that were not contained in the trial court’s order.").

2. The Court of Appeals’ analysis was wrong, but its ultimate conclusion that the search was reasonable was correct.

The Court of Appeals affirmed the trial court’s denial of Caffee’s motion to suppress based on a determination that there was probable cause to search Caffee under the totality of the circumstances. In so doing, the Court of Appeals omitted any discussion of whether the warrantless search fell within an exception to the Fourth Amendment’s warrant requirement.⁵

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Const. Amend. IV. Ordinarily, a search is deemed to be reasonable when conducted pursuant to a judicial warrant, which the Fourth Amendment requires to be supported by probable cause. Id. ("[N]o Warrants shall issue, but upon probable cause, supported by Oath and affirmation[.]"); see also Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Searches conducted without a warrant are unreasonable under the Fourth Amendment unless they fall within a well-established exception to the warrant requirement. Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) ; Williams v. State, 296 Ga. 817, 819, 771 S.E.2d 373 (2015). Some such exceptions include searches conducted pursuant to consent, the existence of exigent circumstances, and searches incident to a lawful arrest. See Olevik v. State, 302 Ga. 228, 234 (2) (b), 806 S.E.2d 505 (2017) ; Williams, 296 Ga. at 819, 771 S.E.2d 373.

Valid consent to search obviates the need for either a warrant or probable cause, see Williams, 296 Ga. at 821, 771 S.E.2d 373, but most other warrantless searches require probable cause as a necessary precondition. See State v. Lejeune, 276 Ga. 179, 182 (2), 576 S.E.2d 888 (2003) (the "automobile exception" to warrant requirement must be supported by probable cause to search); Carranza v. State, 266 Ga. 263, 264-265 (1), 467 S.E.2d 315 (1996) (even where probable cause exists, a warrantless search of a person’s home is prohibited absent exigent circumstances or consent). Even the search-incident-to-arrest exception requires some sort of probable cause, because this exception applies only if there is probable cause to arrest. See Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).

When courts conduct a probable cause inquiry, it is important to remember that there are two different but analytically similar types of probable cause: the probable cause to arrest and the probable cause to search. As to how they are similar, both are governed by the same standard—a "fair probability" on which "reasonable and prudent people, not legal technicians, act"...