Foster v. State
| Decision Date | 02 May 2007 |
| Docket Number | No. A07A0334.,A07A0334. |
| Citation | 285 Ga. App. 441,646 S.E.2d 302 |
| Parties | FOSTER v. The STATE. |
| Court | Georgia Court of Appeals |
Kenneth R. Croy, Marietta, for appellant.
Patrick H. Head, District Attorney, Dana J. Norman, Nicholas Salter, Assistant District Attorneys, for appellee.
Brian Foster was charged with possession of cocaine, possession of less than one ounce of marijuana, and possession of cocaine inside the guard lines established at a jail. Foster moved to suppress the contraband on grounds that it was seized incident to an unlawful search. After denying Foster's motion to suppress, the trial court convicted him of the first two charges at a stipulated bench trial. Foster appeals. Because an application of the law to the facts found by the trial court mandates the conclusion that the search was unlawful, we reverse.
At the hearing on the motion to suppress, Cobb County Police Officer Robert Dorsey testified that he was patrolling a high-drug crime area near Six Flags Drive when he observed Foster sitting in a darkened, parked car some distance from the entrance to a hotel. Because Dorsey's suspicions were aroused, he parked his patrol car and approached Foster's car. By the time Dorsey got to Foster's car, he noticed that Foster had exited it. Dorsey testified that he According to Dorsey, Foster then began to appear very nervous and kept putting his hands into his pockets despite Dorsey's requests that he not do so.
Dorsey further testified that he asked Foster whether he was in possession of any drugs or weapons; that Foster said no; that, without threatening Foster in any way, he then asked him "for my safety, is it okay if I search your pockets"; and that Foster consented. Dorsey testified that while he was checking Foster's pockets, he immediately found "a suspected blunt or cigar of suspected marijuana" in his right front jacket pocket. When asked what made him think it was suspected marijuana, Dorsey responded,
After arresting Foster, Dorsey continued searching him and found a small "glassine-type" baggie with marijuana in his right front jeans pocket and then another baggie with crack cocaine in his outer left jacket pocket. Another officer searched Foster's car and located more marijuana and crack cocaine residue in a garbage bag on the front floorboard. After Foster was taken to jail, he was found to be in possession of baggies with suspected crack cocaine residue.
Material parts of Dorsey's testimony were disputed by Foster and another witness. Foster testified that after Dorsey asked to talk to him, he told him that he was going to search him out of concern for officer safety without asking for consent. Foster's version of events was supported by Yvette Hines, an eyewitness with whom he also had a close personal relationship.
When an appellate court reviews a trial court's order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court's judgment of the facts. 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.1
Nonetheless, "[t]he burden of proving a search was lawful is on the state."2 The state thus has the burden of proving the validity of a consensual search.3 Moreover, "[w]e are required to scrutinize closely an alleged consent to search."4 And the trial court's application of the law to facts is subject to de novo review.5
The United States Supreme Court has identified three levels of encounters between an individual and police. The first involves the mere accosting by an officer usually requesting name and identification. There is no threshold requirement and indeed the individual may refuse to answer or ignore the request and go on his way if he chooses, for this does not amount to any type of restraint and is not encompassed by the Fourth Amendment. The second is the "Terry type" stop involving temporary restraint, a brief "seizure" which must be supported by articulable suspicion. The third is an actual or de facto arrest which requires probable cause and involves restraint of one's liberty.6
Accordingly, the first-tier encounter, unlike the other two, is consensual in nature.
The voluntariness of consent is determined by the totality of the circumstances; no single factor controls. The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of objective reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect. The appropriate inquiry is whether a reasonable person would feel free to decline the officers' request to search or otherwise terminate the encounter.7
"Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual's identification; and request consent to search — as long as the police do not convey a message that compliance with their requests is required."8 "This court also has recognized a distinction between an officer's `appropriately deferential' request for cooperation and a demand rising to the level of a stop."9 Adjudged by these principles, Dorsey's testimony authorized the court to find that his encounter with Foster was consensual and that Foster's consent to the search was freely given.10
Dorsey testified, however, that the consent he obtained from Foster was to search his pockets for weapons out of concern for officer safety. In searching for weapons, "a two-step process must ordinarily be followed: (1) The officer must pat down first, and (2) then intrude beneath the surface only if he comes upon something which feels like a weapon."11
Unlike a full search, a frisk is conducted solely for the purpose of insuring the safety of the officer and of others nearby, not to procure evidence for use at a subsequent trial. It must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.12
After completing a frisk of a person's outer clothing, an officer may ...
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Hernandez-Espino v. State, A13A1434.
...validity of a consensual search. Moreover, we are required to scrutinize closely an alleged consent to search.” Foster v. State, 285 Ga.App. 441, 442, 646 S.E.2d 302 (2007) (citations and punctuation omitted). In reviewing the denial of a motion to suppress on appeal, “we owe no deference t......
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State v. Knudsvig
...The purpose of the search is to insure officer safety not to procure evidence for use at a subsequent trial. Foster v. State, 285 Ga. App. 441, 443-44, 646 S.E.2d 302 (2007). Terry allows police to conduct a limited pat-down of a suspect's outer clothing to try to locate potentially dangero......
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Chamblee v. State
...not constitute a seizure and need not be supported by an articulable suspicion”) (emphasis in original); see also Foster v. State, 285 Ga.App. 441–443, 646 S.E.2d 302 (2007) (officer's testimony authorized the trial court to find that his encounter with defendant was consensual and that def......
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Brown v. State
... ... Judgment reversed as to Counts 1 through 3. Judgment vacated as to Count 4 and case remanded for a new trial as to that count only ... BARNES, C.J., and PHIPPS, J., concur ... --------------- ... 1. See Foster v. State, 285 Ga.App. 441, 442, 646 S.E.2d 302 (2007) ... 2. (Citation and punctuation omitted.) Id. at 443, 646 S.E.2d 302 ... 3. (Citation and punctuation omitted.) Id. at 444, 646 S.E.2d 302 ... 4. Compare Shoemaker v. State, 292 Ga.App. 97, 98(1), 663 S.E.2d 423 (2008) (officer reasonably ... ...