Hill v. State

• Decision Date: 25 June 2019
• Docket Number: A19A0553,A19A0578
• Citation: 351 Ga.App. 58,830 S.E.2d 478
• Parties: HILL v. The STATE. Bullock v. The State.
• Court: Georgia Court of Appeals

351 Ga.App. 58

830 S.E.2d 478

HILL

v.The STATE.

Bullock

v.The State.

A19A0553

A19A0578

Court of Appeals of Georgia.

June 25, 2019

Jordan Kerry Van Matre, McDonough, for Appellant in A19A0553.

Darius T. Pattillo, Sharon Lee Hopkins ADA, for Appellee.

Juwayn Nadim Haddad, Decatur, for Appellant in A19A0578.

McMillian, Judge.

Defendants Jonathan S. Hill and Rico Bullock were jointly tried before a jury and convicted of trafficking in methamphetamine and possession of a firearm during the commission of a felony. They filed motions for new trial, as amended, which the trial court denied following a hearing. Hill and Bullock then filed separate appeals, which we have consolidated for review. As more fully set forth below, we now affirm in both appeals.

Construed to support the jury’s verdict,¹ the evidence shows that on May 14, 2015, a Henry County police officer (hereinafter "arresting officer") visually observed a car traveling south on Interstate 75 in Henry County at speeds in excess of 80 mph, which he then confirmed with two laser radar readings.² The arresting officer initiated a traffic stop, and the driver of the vehicle immediately pulled over. The officer approached the passenger side of the vehicle, as was his custom during an interstate stop because of safety and security concerns. The arresting officer immediately detected a strong odor of burnt marijuana and a fainter odor of raw marijuana, both of which the officer said he had been trained to recognize. The driver, subsequently identified as defendant Bullock, produced a valid license but not an insurance card because the car was a rental. By this point, the officer had already observed signs of extreme nervousness on the part of the driver, which included shaking hands and a heartbeat that was visible through Bullock’s t-shirt. The officer also said that he observed that the passenger, subsequently identified as Hill, was pressed back into his seat and did not make eye contact or speak with him, which the arresting officer said in his experience was unusual because the passenger is usually more talkative than the driver since they are not worried about getting a ticket.

Because of the "nervousness and the smell of marijuana" the officer decided he had probable cause to search but first called for backup. The backup officer arrived within minutes, and the arresting officer advised Bullock that based on the marijuana smell, he intended to conduct a probable cause search of the vehicle. Bullock told the arresting officer that his wife, Hill, and he occasionally smoked marijuana and it was probably coming from his clothes.

The arresting officer proceeded to search the vehicle, starting with the front center console between the passenger and driver’s seats, where he discovered a loaded Smith and Wesson Model 39 semiautomatic pistol.³ He next looked in the backseat, where he observed what appeared to be, based on his training and experience, "little bits of loose marijuana primarily in the rear passenger floorboard." The arresting officer next looked into the trunk, where he observed a blue paper shopping or gift bag sitting directly in the center of the trunk with a pair of men’s gray Nike tennis shoes sitting on top. Two food-storage type containers, each wrapped in plastic wrap, were in the bag underneath the shoes. The substance in the containers field tested positive for methamphetamine, and subsequent lab testing confirmed the substance was methamphetamine weighing approximately 996.97 grams.

Defendants were placed under arrest and searched. Police discovered $ 1000 in Hill’s left front pants pockets, and $ 91 was removed from his right front pants pocket; Hill told police that the $ 1000 was his payment for picking up the narcotics and transporting them back to Macon, Georgia. Hill and Bullock were interviewed by a Narcotics Investigator once they arrived at the jail, and following a Jackson -Denno hearing, the Investigator testified about defendants’ inculpatory statements at trial. The Investigator said he first interviewed Bullock, who immediately made the statement that "he was dead" because he did not follow instructions to wait until the morning to travel back to Macon when the traffic would be heavier and the risk of getting stopped therefore diminished. He further testified that Bullock told him that he had gone to an apartment complex in Norcross, Georgia, where he was supposed to pick up something and take it back to Macon where he lived.

The Narcotics Investigator also interviewed Hill, who told him that he had received a telephone call that the drugs had been delayed and that he was going to have to go to Norcross to pick them up, although normally they were delivered to Macon. Hill also said that they were advised to leave in the morning rush hour traffic, but that they left that night because they were tired and ready to get home, which Bullock had also said was the reason they did not wait. The Investigator testified that Hill told him that when he arrived in Norcross he went inside the apartment and exchanged the money while the methamphetamine was being weighed. Hill also told him that normally he only "moved around" in the Macon area, where his job was to collect the money for previous methamphetamine he had dropped off.

The Narcotics Investigator further testified that as Hill was about to be transported to jail, he told the Investigator that the GPS to the apartment was still on his phone and that he could look at it and gave him the pass code. The Narcotics Investigator said that he used the pass code Hill gave him to gain access to the phone, and he found a Norcross address in the phone that matched the address Hill provided as being the location where he picked up the methamphetamine. Based on this and other evidence presented at trial, defendants were convicted of trafficking in methamphetamine and possession of a firearm during the commission of a felony, and given identical sentences of 30 years, to serve 25 with the remainder on probation.

CASE NO. A19A0553.

1. Hill first argues that the trial court erred in denying his motion to suppress, challenging the credibility of the officer who initiated the stop and contending that the officer unreasonably prolonged the stop.

" ‘Under the automobile exception to the warrant requirement imposed by the Fourth Amendment, a police officer may search a car without a warrant if he has probable cause to believe the car contains contraband, even if there is no exigency preventing the officer from getting a search warrant.’ " (Citation and punctuation omitted.) Shell v. State , 315 Ga. App. 628, 631 (2), 727 S.E.2d 243 (2012). Applying this exception, our Supreme Court and this Court have held that where a trained police officer detects the odor of burning or burnt marijuana coming from a vehicle, the officer has probable cause to conduct a warrantless search of the vehicle, provided that the officer’s ability to identify the odor is placed into evidence. See Douglas v. State , 303 Ga. 178 (2), 811 S.E.2d 337 (2018) ; Jones v. State , 319 Ga. App. 678, 679 (1), 738 S.E.2d 130 (2013) ; Williams v. State , 273 Ga. App. 637, 639 (1), 615 S.E.2d 789 (2005) ; State v. Folk , 238 Ga. App. 206, 209, 521 S.E.2d 194 (1999) (whole court). Such a search can encompass "every part of the vehicle which might have concealed the drug contraband, including the trunk and closed containers." (Citation and punctuation omitted.) Jones , 319 Ga. App. at 679 (1), 738 S.E.2d 130.

State v. Alford , 347 Ga. App. 208, 214 (3), 818 S.E.2d 668 (2018).

In reviewing a ruling on a motion to suppress, we review the trial court’s factual findings for clear error and its legal conclusions de novo. See Vansant v. State , 264 Ga. 319, 320 (1), 443 S.E.2d 474 (1994). In addition, in reviewing such a ruling, an appellate court must construe the evidentiary record in the light most favorable to the trial court’s factual findings and judgment. An appellate court also generally must limit its consideration of the disputed facts to those expressly found by the trial court.

Caffee v. State , 303 Ga. 557, 557, 814 S.E.2d 386 (2018) (citations and punctuation omitted.)

Kennebrew v. State , 304 Ga. 406, 409, 819 S.E.2d 37 (2018).

The arresting officer who initiated the stop and the officer who was called as backup both testified at the motion to suppress hearing and at trial.⁴ Based on the officers’ "uncontradicted testimony," the trial court made an oral finding, which it incorporated into the final order on the motion, that the initial stop was lawful because Hill was speeding and that probable cause to conduct a warrantless search of the vehicle was established by the officer’s testimony that he detected the odor of burnt marijuana coming from the vehicle upon approaching the vehicle and conversing with the occupants. Because the officer smelled the marijuana upon approaching the vehicle and immediately called for backup so he could safely search the vehicle based on his detection of the odor of marijuana, there was no unconstitutional prolongation of the traffic stop in this case. Accordingly, this enumeration is without merit. Douglas v. State , 303 Ga. 178, 181-82 (2), 811 S.E.2d 337 (2018) (odor of marijuana emanating from the vehicle provided probable cause to search); Jones v. State , 319 Ga. App. 678, 678-79 (1), 738 S.E.2d 130 (2013) (smell of burnt and raw marijuana by trained officer established probable cause to search, including the trunk of the vehicle where the cocaine was found); Williams v. State , 273 Ga. App. 637, 638 (1), 615 S.E.2d 789 (2005) (odor of burnt and burning marijuana sufficient to establish probable cause to search the vehicle).

2. Hill next argues that the trial court erred by admitting his in-custody statement, arguing that he was not properly advised of his Miranda warnings and that the trial court failed to carefully review the waiver of Miranda warnings.

The record shows that the Narcotics Investigator...