Johnson v. State
| Decision Date | 14 May 2009 |
| Docket Number | No. A09A0184.,A09A0184. |
| Citation | 678 S.E.2d 539,297 Ga. App. 847 |
| Parties | JOHNSON v. The STATE. |
| Court | Georgia Court of Appeals |
Douglas P. Smith, for appellant.
Tommy K. Floyd, Dist. Atty., John A. Pipkin III, Asst. Dist. Atty., for appellee.
Randy Lee Johnson appeals from his convictions for possessing a trace amount of methamphetamine and giving a false name to a police officer. Johnson argues that the trial court erred by denying his motion to suppress because the State failed to meet its burden of demonstrating Johnson's voluntary consent to search. We agree and reverse.
"Where the evidence is uncontradicted and no question regarding the credibility of [the] witnesses is presented, the trial court's application of the law to the undisputed facts [when ruling on a motion to suppress] is subject to de novo appellate review." (Citation omitted.) Morris v. State, 239 Ga.App. 100(1), 520 S.E.2d 485 (1999). Only one witness, the arresting officer, testified at the suppression hearing in this case.
The officer explained that he stopped the car in which Johnson was a passenger for crossing two times over the fog line. After obtaining identification from the driver, he asked her to identify the male passenger in the back of the car and she told the officer "his name was Randy." When the officer asked Randy Johnson for identification, he claimed that he did not have any and told the officer his name was Kenny Burns.
Because the officer smelled burnt marijuana when he first spoke to the driver, he asked for permission to search her vehicle. When she responded that she was "in a hurry to get home" and did not directly answer the officer's request for consent, he decided to use his dog to "conduct a free air sniff of the vehicle." He asked all of the occupants of the vehicle to get out and asked Johnson "for consent to pat him down and make sure he didn't have any weapons." The officer testified that The officer then arrested Johnson for giving a false name and date of birth. After Johnson was arrested, another officer thoroughly searched him and found a pen casing with a white powdery substance inside it that tested positive for methamphetamine.
When the officer was asked if Johnson ever withdrew his consent to search his person, the officer replied, The officer also explained that Johnson would not have been free to leave at the time of the pat-down search.
Johnson asserts that the State failed to meet its burden of proving that he voluntarily consented to hand the officer the identification card in his pocket. We agree.
(Citations, punctuation and footnotes omitted.) State v. Jourdan, 264 Ga.App. 118, 120-121(1), 589 S.E.2d 682 (2003). In this case, the record demonstrates without dispute that Johnson expressly consented only to a pat-down search for weapons.
A Terry pat-down, unlike a full search, is conducted for the purpose of ensuring the safety of the officer and of others nearby, not to obtain evidence for use at trial. It is a minimal intrusion reasonably designed to discover guns, knives, clubs, or other weapons that could prove dangerous to a police officer. Under Terry, an officer is authorized to pat down a suspect's outer clothing. He may intrude beneath the surface in only two instances: (1) if he comes upon something that feels like a weapon, or (2) if he feels an object whose contour or mass makes its identity as contraband immediately apparent, i.e., the "plain feel" doctrine.
(Citation, punctuation and footnote omitted.) Sudduth v. State, 288 Ga.App. 541, 542(2), 654 S.E.2d 446 (2007). Therefore, when the officer felt the identification card, he could not have lawfully intruded into Johnson's pocket to retrieve it. Id. at 543, 654 S.E.2d 446. See also Foster v. State, 285 Ga.App. 441, 444, 646 S.E.2d 302 (2007) ().
The State asserts that Johnson's conduct in complying with the officer's request to hand him the identification card in his pocket provided additional consent to search. Johnson counters that he was merely complying with an order of the...
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...of his right to refuse consent, this knowledge is one factor to be considered in assessing voluntariness.”). FN30. Johnson v. State, 297 Ga.App. 847, 849, 678 S.E.2d 539 (2009) (citation and punctuation omitted); see also Jourdan, 264 Ga.App. at 121(1), 589 S.E.2d 682 (same). 31. We note th......
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......Liles, 311 Ga.App. at 356, 716 S.E.2d 228. Nevertheless, this Court is “required to scrutinize closely an alleged consent to search.” Johnson v. State, 297 Ga.App. 847, 848, 678 S.E.2d 539 (2009). Geuze admitted he did not ask Corey for permission to enter the garage. And when Geuze was asked if Corey gave consent for him to enter, Geuze replied, “At no particular time did she offer or forward to me such consent.” ......
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