Martin v. State

• Decision Date: 15 June 2012
• Docket Number: No. A12A0063.,A12A0063.
• Citation: 316 Ga.App. 220,729 S.E.2d 437,12 FCDR 2051
• Parties: MARTIN v. The STATE.
• Court: Georgia Court of Appeals

316 Ga.App. 220

729 S.E.2d 437

12 FCDR 2051

MARTIN

v.The STATE.

No. A12A0063.

Court of Appeals of Georgia.

June 15, 2012.

Lisamarie Nellyn Bristol, for Martin.

Layla Hinton Zon, Walter Cliff Howard, Marie Elizabeth Greene, for The State.

ADAMS, Judge.

James W. Martin, Jr. appeals the trial court's order denying his motion to suppress evidence seized from his truck. For the following reasons, we reverse.

The proper standard of review was recently reiterated by the Supreme Court:

(W)hen a motion to suppress is heard by the trial judge, that judge sits as the trier of facts.... (T)he trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous.... (T)he reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment. [Cit.] However, as a reviewing court, “(we) owe no deference to the trial court's conclusions of law. Instead, we are free to apply anew the legal principles to the facts.” [Cit.]

Clay v. State, 290 Ga. 822(2), 725 S.E.2d 260 (2012).

The record, including a videotape of the incident, shows that at approximately 2:20 a.m. on January 4, 2010, Walton County Sheriff's Deputy Yarbrough spotted Martin's truck parked behind a closed funeral home with the engine running and the passenger door one-quarter open. The deputy decided to investigate, and after parking his patrol car and approaching on foot, he saw two people inside the truck. Yarbrough was initially concerned for the occupants' welfare—it was 19 degrees outside and neither person appeared to be breathing—and he thought for a moment that Martin was dead. In fact, the occupants were asleep, and Martin woke up when Yarbrough tapped on the window. Martin then woke up the woman in the driver's seat. Yarbrough testified that Martin and the woman appeared lethargic and sluggish, their speech was slurred, their eyes were glassed over, and they were not able to answer questions as quickly as the deputy would have expected a person to be able to do.

Yarbrough confirmed the occupants' identities and asked what they were doing parked behind the funeral home. Martin and the woman said that they had no place to stay, that they got tired, and they were there to take a nap. Martin said that he lived in the truck, and he explained that the owner of the funeral home had given him permission to park there and rest. The deputy realized that he knew Martin had a pending charge of drug possession; he also had information “from another source” that Martin was possibly selling methamphetamine in another area of Walton County. But the dispatch center reported that a computer check revealed no outstanding warrants for Martin, and his license “came back clean” at about four minutes and fifteen seconds into the stop. Yet Yarbrough called for a second deputy, And at about six to eight minutes into the stop, Deputy Stowe arrived.

Yarbrough then asked Martin and the woman if there were any narcotics in the vehicle. He explained:

I asked them if there was anything illegal in the vehicle because I had concerns that, just based off their manifestations of how they were acting and that they were real, real sluggish, slow to respond, and I had asked them if there was anything illegal in the vehicle because I had a feeling that there was possibly, they were either using narcotics or that maybe there was narcotics in the vehicle. [And] [b]ased off my prior knowledge of Mr. Martin and having the one possession charge and also the information I'd been receiving.

(Emphasis supplied.) The couple denied having any narcotics in the truck. At a little over eight minutes into the stop Yarbrough then asked for permission to search; Martin replied that without a warrant he did not want the officer to search his truck. After the refusal, about 11 minutes into the stop, Yarbrough inquired as to whether a K–9 unit was available. Three or so minutes later, the officer said that although he could not smell anything in the vehicle, “If it's anything, he's going to have meth in the vehicle.” He testified, “ I had a feeling that there was something going on other than just the fact that they were sleeping there.” (Emphasis supplied.) He testified that although the couple had just woken up and their demeanor could be consistent with someone who had just been in a deep sleep, Martin's demeanor never really changed during the encounter; he continued to be slow to answer questions, and his speech was “ slurred a little bit.”

At about 2:33 a.m.,¹ Yarbrough asked the dispatch officer to contact the owner of the funeral home to confirm whether he had given Martin permission to park there, and at about 2:38 a.m., dispatch reported back that it left a message for the owner. During this latter exchange, Yarbrough formally requested that a K–9 officer be called. Four minutes later (about 2:43 a.m.), dispatch reported to Yarbrough that the owner called and confirmed that Martin had permission to sleep there. Yarbrough testified that at this point, however, Martin was not free to leave because he was continuing to investigate the possibility of the presence of narcotics.

At about 2:44 a.m., the officer reported over the radio that “he wanted it noted that it was obvious that [Martin] was under the influence of something.” Yarbrough confirmed during his testimony that he first commented that Martin appeared to be on drugs after dispatch confirmed that Martin had permission to be parked behind the funeral home. At about the same time, a K–9 officer left for the scene, and Yarbrough was told that the K–9 officer was expected to arrive in about 20 minutes. Martin went back to sleep in his truck briefly while everyone was waiting on the K–9 officer to arrive. The K–9 officer arrived between 25 and 28 minutes later, or almost 53 minutes into the encounter. The K–9 officer indicated that the dog alerted, and a subsequent search of the vehicle revealed suspected methamphetamine residue. Martin was arrested and placed in custody at 3:26 a.m.²

1. The trial court found that the event began as a first tier encounter but that by the time the deputy had called for the K–9 officer to be dispatched, the defendant was no longer free to leave, and therefore a second tier encounter was underway. The court found that by that time, Yarbrough had a reasonable and particularized suspicion that Martin and the driver were under the influence of some drug for these reasons: Yarbrough had discovered them asleep at 2:20 a.m. in a deserted parking lot of a funeral home; it was well below freezing; one door was open; Martin and the driver “were notably sluggish, their speech was slurred; they had difficulty answering questions as quickly as a non-intoxicated person in the same situation ...”; and Yarbrough had knowledge of Martin's criminal history and reputation as a drug dealer and user. The court added,

Therefore, regardless of the point at which the encounter shifted from a first tier to a second tier encounter, after the deputy had spoken with [Martin] and the driver and obtained their identification, he had reasonable suspicion that they were under the influence of drugs and might still be in possession of drugs.

The record supports the court's finding that the second tier encounter began when Yarbrough formally called for a K–9 unit at 2:38 a.m., which was about 18 minutes into the stop; Yarbrough essentially testified to as much. See generally In the Interest of D.H., 285 Ga. 51, 53(2), 673 S.E.2d 191 (2009) (re: three types of police-citizen encounters). But even construing the evidence most favorably to upholding the trial court's decision, we disagree with the legal conclusion that “after the deputy had spoken with [Martin] and the driver and obtained their identification,” or by 2:38 a.m., Yarbrough had a reasonable suspicion that Martin was in possession of illegal drugs.

A second-tier, investigatory detention was authorized “ ‘if based on the totality of the circumstances [the officer] had specific and articulable facts which, taken together with rational inferences from those facts, gave [him] a particularized and objective basis for suspecting [Martin] of criminal activity.’[Cit.]” State v. Hopper, 293 Ga.App. 220, 222, 666 S.E.2d 735 (2008). See also Jones v. State, 291 Ga. 35(2), 727 S.E.2d 456 (2012). By 18 minutes into the encounter, Yarbrough knew the following information: (1) Martin and his companion were dead asleep in a running truck with one door ajar at 2:20 a.m. on a very cold night in a funeral home parking lot; (2) the couple claimed that they had no other place to stay and that they had permission of the owner to park and sleep there; (3) when they woke up and thereafter, the couple appeared lethargic and sluggish and they had slurred speech, were groggy, glassy-eyed, and slow to respond; and (4) Martin had a pending charge of possession and there was hearsay regarding Martin possibly selling methamphetamine at some other location. Yarbrough also knew that a computer check of Martin's and his companion's licenses and registration were in order; he had not smelled any odors or seen any substances inside or outside of the truck suggesting illegal activity; Martin was not in the driver's seat; and Martin denied consent to search the truck. Within four more minutes, Yarbrough also knew that Martin...