Mckinney v. State

• Decision Date: 08 September 2014
• Docket Number: No. A13A2385.,A13A2385.
• Citation: 755 S.E.2d 315,326 Ga.App. 753
• Court: Georgia Court of Appeals
• Parties: McKINNEY v. The STATE.

326 Ga.App. 753

755 S.E.2d 315

McKINNEY

v.The STATE.

No. A13A2385.

Court of Appeals of Georgia.

March 18, 2014.

Reconsideration Denied April 2, 2014.

Certiorari Denied Sept. 8, 2014.

Robert Christian Rutledge, for Appellant.

Suzanne Zgraggen Brookshire, Asst. Dist. Atty., Rosemary M. Greene, Dist. Atty., for Appellee.

DOYLE, Presiding Judge.

Following a jury trial, Micah Andre McKinney was convicted of possession of marijuana with the intent to distribute ¹ and possession of more than one ounce of marijuana.² He appeals the denial of his subsequent motion for new trial, arguing that (1) the trial court erred by denying his motion to suppress; (2) the trial court erred by conducting the motion to suppress hearing in the presence of the jury; and (3) he received ineffective assistance of counsel. For the reasons that follow, we affirm.

Viewed in favor of the verdict,³ the evidence shows that during the evening on April 20, 2011, Officer Corey Tate was working as a K–9 police dog handler when he observed a car operating on the highway without tail or tag lights. When Officer Tate made contact with the vehicle, the driver, McKinney, changed lanes without signaling. Officer Tate executed a traffic stop and approached the car, which also contained a male passenger, Jerrell Manghane. After McKinney conceded that he had been driving without his lights, Officer Tate directed him to exit the vehicle, advised him of his Miranda⁴ rights, and began writing him a courtesy warning. McKinney, who seemed nervous, told Officer Tate that he lived in Chattanooga but had come to Atlanta to take his son home to Decatur. Before turning his back on McKinney and approaching the car to speak with Manghane, Officer Tate asked McKinney for permission to pat him down for weapons. McKinney consented and began to “jerk everything out of his pocket.”

After confirming that McKinney did not have any weapons, Officer Tate approached the car, obtained Manghane's identification, and asked Manghane about their reason for being in the area. Manghane, who seemed nervous and evasive, stated that he and McKinney were on the way to Atlanta so Manghane could see his aunt; Manghane did not mention McKinney's son.

Based on the men's inconsistent stories, Officer Tate believed they were being deceitful, and he asked McKinney if he had anything illegal in the vehicle. McKinney replied that he did not, offered to allow the officer to search the trunk, and eventually agreed to allow the officer to search the vehicle. When Officer Tate asked McKinney to sign the consent form for the search, McKinney withdrew his consent after Manghane advised him that he did not have to allow the search.

Officer Tate then asked Officer Pullen, who was already on the scene, to retrieve his K–9 dog. The dog performed a free-air sniff around the vehicle, and alerted twice, once on the driver's side and once on the passenger's side of the car. Police then searched the car and found three-quarters of a pound of marijuana on the backseat floorboard behind the driver's seat. The marijuana was packaged in seven small baggies, which were contained in a Ziploc bag, which was contained in a large, white, plastic bag; the officer who searched the car could smell the odor of raw marijuana inside the car when he manipulated the bag.

Manghane, who was also charged, entered a guilty plea prior to trial. At the conclusion of the evidence, the jury found McKinney guilty of possession of more than one ounce of marijuana and possessing marijuana with the intent to distribute. McKinney appeals the denial of his subsequent motion for new trial.

1. McKinney argues that the trial court erred by denying his motion to suppress. We disagree.

There are three principles we apply when reviewing a trial court's ruling on a motion to suppress:

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.⁵

The United States Supreme Court recently explained the standard for reviewing a finding of probable cause based on a drug-detection dog's alert:

The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure. And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State's case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence.... The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog's alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test.⁶

Here, the dog's handler, Officer Pullen, testified that he and his dog, Simba, which he had for four years, were trained and certified each year. As of November 2011, Officer Pullen had conducted 786 searches with Simba. McKinney did not challenge Simba's training, however, but instead argued that the officers did not have probable cause to conduct the search because Simba did not in fact alert during the search, but instead stopped to relieve himself.

Officer Pullen testified that he walked Simba around the vehicle, and while he was near the driver's side door, Simba indicated that he was “working odor” by raising his head and wagging his tail. Officer Pullen walked Simba back around the car, and Simba sat down on the driver's side, indicating a final alert. Officer Pullen then walked him to the passenger's side, where Simba again indicated he was working odor and then attempted to indicate an alert by sitting, but was unable to complete the alert because he had to relieve himself.⁷ Officer Tate also testified that he saw Simba alert on the driver's side door, as did a third officer on the scene. McKinney points out, however, that the videotape of Simba's search conflicted with Officer Pullen's testimony that Simba alerted on the driver's door by sitting down.

Whether Simba in fact alerted on the car was a question of fact for the trial court, which we must accept unless clearly erroneous. Officer Pullen's testimony regarding his experience with Simba and his observations and conclusions regarding the dog's behavior was sufficient to support the conclusion that he alerted on the car. Moreover, “[i]n reviewing the trial court's denial of [McKinney's] motion to suppress, we consider whether the totality of the circumstances, and not merely the drug dog's alert, supports a finding of probable cause.” ⁸ Here, the officers' testimonies regarding Simba, along with Officer Tate's testimony regarding the conflicting stories between the two men and their nervousness, was sufficient to support the trial court's denial of the motion to suppress.⁹

2. McKinney contends that the trial court erred by hearing the motion to suppress during the trial because it deprived him of his Fourth Amendment right to testify at the suppression hearing in order to protect his Fifth Amendment right to remain silent at trial. We find no basis for reversal.

McKinney filed his motion to suppress on Friday, October 28, 2011, two business days before the November 2, 2011 trial. Immediately before trial, counsel advised the court that McKinney had filed a motion to suppress, and the court indicated that it would hear the motion during the course of the trial. Trial counsel responded, “Okay, I'll do it at that stage.” Trial counsel did not advise the court at that time that McKinney wished to testify at the suppression hearing, nor did...