Silva v. State

• Decision Date: 12 October 2004
• Docket Number: No. S04G0216.,S04G0216.
• Citation: 604 S.E.2d 171,278 Ga. 506
• Parties: SILVA v. The STATE.
• Court: Georgia Supreme Court

604 S.E.2d 171

278 Ga. 506

SILVA v. The STATE.

No. S04G0216.

Supreme Court of Georgia.

October 12, 2004.

Summer & Summer, Daniel A. Summer, W. Bennett Gaff, Gainesville, for appellant.

Jason Deal, Dist. Atty., E. Paul Stanley, Kiesha R. Storey, Asst. Dist. Attys., for appellee.

HINES, Justice.

This Court granted a writ of certiorari in State v. Silva, 263 Ga.App. 371, 587 S.E.2d 762 (2003), to determine whether the Court of Appeals correctly applied the de novo standard of review in reversing the trial court's grant of a motion to suppress. Finding that it did, we affirm.

While on patrol, a police officer observed Edward Silva driving 74 miles per hour in a 45 miles per hour zone. The officer activated his blue lights in an attempt to stop Silva, but Silva did not pull over immediately. While Silva was still traveling at a high speed, the officer observed him leaning to his right at a severe angle, apparently placing his right hand underneath the passenger seat; Silva continued to drive in that position as he passed a stopped car, braked rapidly, changed lanes, and pulled to the right side of the road. Once Silva stopped, the officer approached from the passenger side, as he was concerned for his safety because of Silva's actions in front of the passenger seat. That window was open, and the officer asked Silva why he was speeding and what he had placed under the seat; Silva responded that he was in a hurry to get to his child, and that he had not placed anything under the seat, but was attempting to retrieve a cellular telephone. The officer had Silva exit the car and "patted him down" to ensure he had no weapons. After finding no weapons on his person, the officer looked underneath the passenger seat expecting to find a "weapon or something of that nature." He smelled unburned marijuana, discovered a brick of marijuana under the seat, and arrested Silva.

Silva moved to suppress the marijuana as the result of an illegal search, the trial court conducted a hearing on the motion, and granted it. The Court of Appeals reversed the trial court, finding that the officer was legally justified in looking under the seat, and that the marijuana was therefore in "plain view" when he encountered it. Silva, supra at 373, 587 S.E.2d 762. Further facts are reported in the decision of the Court of Appeals, Silva, supra.

The Court of Appeals did not err in determining that the de novo standard of review was to be applied when it reviewed the decision of the trial court on the motion to suppress. The majority opinion of the Court of Appeals relies upon the principle that "where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review," citing Vansant v. State, 264 Ga. 319, 320, 443 S.E.2d 474 (1994). Silva, supra at 371, 587 S.E.2d 762. Applying that principle, the majority found that the officer's act of looking under the seat was justified, as a reasonably prudent officer in his circumstances would be warranted in believing that his safety was in danger. Silva, supra at 373, 587 S.E.2d 762.

The Court of Appeals dissent relies upon the principle that "a trial court's decision with regard to the questions of fact and credibility must be accepted unless clearly erroneous," citing Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646 (1994). Silva, supra at 374, 587 S.E.2d 762. The dissent asserts that the trial court resolved a conflict in the evidence because in the officer's written report of the incident, he stated that he saw Silva lean over while driving "in an apparent attempt to retrieve an item or conceal an item," which conflicted with the officer's testimony at the hearing that he suspected that Silva had retrieved, or concealed, a weapon. Id at 374-375, 587 S.E.2d 762. But there was no conflict. Of course, the word "item" can include a myriad of objects, including a variety of weapons. The lack of specificity in using "item" in this instance, does not mean the two words conflict. And examination of the entire incident report¹ shows that the officer was searching for a weapon; he wrote that he "frisked [Silva] for weapons" and "frisked the front seat area for weapons."

Further, even if the trial court did resolve any inconsistency in the evidence, it clearly credited the officer's testimony that he looked into the car because he feared that Silva had placed a weapon there,² and no inconsistency affected its ruling. In reviewing the issue before it from the bench and discussing the officer's actions, the court stated "he has no idea that there are any drugs involved, but he thinks there may be a weapon there." The court also stated: "[t]he door was opened to look for a weapon.... There was no other reason for doing that." The court phrased the issue on the motion to suppress as: "[d]id the officer have the right under the Constitution to open the door and look for a weapon?" And: "[d]o officers have the right to search a vehicle for weapons?" The court then asked the parties to further argue and answer its question, "[w]hat is the law" as to that issue.

After that focused argument, the trial court stated that it had concluded that the law permitted the officer to pat down Silva's person, but that the law did not allow the "the extension of the search to the automobile," and the court granted the motion to suppress. The court's written order states that the court "finds that the initial search of defendant and defendant's automobile was illegal...." The only conclusion that can be reached on review is that the trial court credited the officer's testimony, believed that he was indeed looking for a weapon, and decided the motion on an issue of law rather than on any issue of conflicting evidence. The de novo standard of review was the correct one to be applied by the Court of Appeals.

Nor did the Court of Appeals err in reversing the trial court under that standard. "[I]nvestigative detentions involving suspects in vehicles are especially fraught with danger to police officers." Michigan v. Long, 463 U.S. 1032, 1047(III), 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). The officer's belief that Silva was potentially dangerous was objectively reasonable. Id. at 1051, 103 S.Ct. 3469. He had seen Silva acting suspiciously to conceal an object, and Silva then gave an explanation that the officer found implausible, given the recklessness with which Silva changed lanes. The officer did not plan to place Silva in custody based upon any traffic violation, and thus knew Silva would be returning to his car, with the unknown and potentially dangerous item under the front seat. In such circumstances, a reasonably prudent officer would have concerns for his safety, and the officer in this case acted appropriately. An officer who has detained an occupant of a motor vehicle may conduct a search founded on the reasonable belief, based on articulable facts and rational inferences, that the occupant may gain immediate control of a weapon. State v. Jarrells, 207 Ga.App. 192, 427 S.E.2d 568 (1993). See United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) (what constitutes articulable facts and "founded suspicions" is judged by the totality of the circumstances). The fact that Silva was outside his car, standing by the officer's vehicle, when the search was conducted does not change the matter; a suspect re-entering his car after an investigative detention will have access to any weapon therein. Michigan v. Long, supra at 1051-1052, 103 S.Ct. 3469.

Nor is it of any moment that Silva gave the officer an explanation for his behavior that did not involve a weapon or illegal drugs. As the Court of Appeals noted, there is no constitutional requirement that the officer stake his safety on Silva's explanation of his actions. Silva, supra at 373, 587 S.E.2d 762. See Hayes v. State, 202 Ga.App. 204, 205, 414 S.E.2d 321 (1991).

Judgment affirmed.

All the Justices concur, except BENHAM, J., who dissents.

BENHAM, Justice, dissenting.

I respectfully dissent from the majority's affirmance of...