Hollenback v. State
| Decision Date | 06 February 2008 |
| Docket Number | No. A07A2378.,No. A07A2379.,A07A2378.,A07A2379. |
| Parties | HOLLENBACK v. The STATE. Lowery v. The State. |
| Court | Georgia Court of Appeals |
Jana M. Whaley, for appellant (case no. A07A2378).
Alice A. Button, for appellant (case no. A07A2379).
Robert W. Lavender, Dist. Atty., James W. Webb, Asst. Dist. Atty., for appellee.
Law enforcement officers responded to a radio dispatch regarding a disorderly person at a county high school. Upon arrival, they were informed that the subject of the complaint, Hettie Lowery, and her companion, Marcella Hollenback, had gone to the board of education. Upon being arrested there, Lowery was found to be in possession of a handgun. A search of her truck then revealed a variety of contraband drugs.
An indictment was returned charging Lowery and Hollenback jointly and individually with various counts of unlawful drug possession and charging Lowery, individually, with disorderly conduct, possession of a weapon on school property, disruption of a public school, and possession of a firearm during commission of a crime. On motions to suppress filed by both Lowery and Hollenback, the trial court ruled that the seizure of Lowery's handgun was the product of an illegal arrest but that the contraband drugs from her truck were found during a valid consent search. Following the trial court's certification of its order for immediate review, we granted Lowery's and Hollenback's applications for interlocutory appeal. We reverse.
When an appellate court reviews a trial court's decision on a motion to suppress, our responsibility is to ensure that there was a substantial basis for the decision. We are guided by three principles when interpreting the trial court's determination of the facts. When considering such a motion the trial court is the trier of facts. The court hears the evidence, and when its findings are based upon conflicting evidence, they are analogous to a jury verdict and must not be disturbed by an appellate court if any evidence supports them. Also, the trial court's decisions regarding questions of fact and credibility of witnesses must be accepted unless they are clearly erroneous, and the evidence must be construed most favorably toward upholding the trial court's findings and judgment. Additionally, when the evidence is uncontroverted and no question about a witness's credibility exists, the trial court's application of the law to undisputed facts is subject to de novo appellate review.1
Lieutenant Donald Carr of the Madison County Sheriff's Office was the only witness to testify at the hearing on the motions to suppress. He testified that two other officers responded to the call at Madison County High School. When they arrived, the principal and assistant principal informed them that Lowery and Hollenback had come to the school, that Lowery had disrupted the school and engaged in disorderly conduct while there, and that she and Hollenback had then gone to the Madison County Board of Education (BOE). The school principal said that he wanted to bring charges against Lowery. Carr then met the other officers at the BOE, where they found Lowery and Hollenback in the office building engaged in a heated conversation with the assistant school superintendent.
The officers thereupon escorted Lowery and Hollenback out of the building and informed Lowery that she was being arrested as a result of the incident at the high school. Because Hollenback was not being arrested, she was given permission to leave the BOE in a truck that Lowery owned and that the women were using as their means of transportation. Lowery, therefore, handed the keys to her truck to Hollenback. Before Hollenback left, however, Lowery was asked if she had anything in her pockets the officers needed to know about. Lowery responded that she had a gun. Upon searching her, one of the officers then found a loaded .25 caliber pistol in her pocket. Carr, therefore, decided to search the truck for additional weapons. Drugs were found in the women's purses during the search of the truck.
The trial court concluded that Lowery's warrantless arrest was unauthorized under OCGA § 17-4-20(a), because the offenses for which she was arrested were not committed in the presence of any of the officers and, therefore, the search incident to her arrest was invalid. Consequently, evidence of the pistol found in Lowery's pocket was excluded. The trial court further concluded, however, that the search of Lowery's truck was supported by Hollenback's express consent and by Lowery's implied consent. Therefore, the court refused to suppress the evidence seized from the truck.
On the issue of consent, Carr initially testified on cross-examination by Lowery's counsel that, after Lowery had given the keys to her truck to Hollenback, "Hollenback handed me the keys after I asked her if I could look in the truck to make sure there wasn't any other weapons or anything in there." In his later testimony, however, Carr made clear that he had thought that he had legal grounds to search the truck without consent; that he would not have let Hollenback drive the truck away without first searching it; and that, rather than asking Hollenback whether he could search the truck, he told her that he was going to search the truck, whereupon Hollenback, without protest by Lowery,...
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The State v. Austin., A11A0601.
...into a home to conduct a search ... is unreasonable under the Fourth Amendment.” (citations omitted)). FN12. Hollenback v. State, 289 Ga.App. 516, 519, 657 S.E.2d 884 (2008) (footnote and punctuation omitted). FN13. State v. McMichael, 276 Ga.App. 735, 739(1), 624 S.E.2d 212 (2005) (citatio......
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