State v. Andrews

• Citation: 320 Ga.App. 792,740 S.E.2d 748
• Decision Date: 26 March 2013
• Docket Number: No. A12A2107.,A12A2107.
• Parties: The STATE v. ANDREWS.
• Court: United States Court of Appeals (Georgia)

320 Ga.App. 792

740 S.E.2d 748

The STATE

v.ANDREWS.

No. A12A2107.

Court of Appeals of Georgia.

March 26, 2013.

Timothy Grady Vaughn, Dist. Atty., Joshua Wade Powell, Asst. Dist. Atty., for Appellant.

Steven Mitchell Harrison, for Appellee.

BARNES, Presiding Judge.

The State appeals from the trial court's order granting a motion to suppress evidence seized from a pat-down search of Perry Andrews. Andrews was arrested and indicted for possession of cocaine. He filed a motion to suppress alleging that he was illegally detained and searched. Following a hearing, the trial court granted his motion. For the reasons set forth below, we reverse.

When an appellate court reviews a trial court's order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court's judgment of the facts. 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 it. 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.

(Citation and punctuation omitted.) Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646 (1994).

So viewed, the evidence demonstrates that at approximately 1:00 a.m. on January 23, 2009, a deputy with the Telfair County Sheriff's office was on patrol when another officer contacted him and told him that “there was a subject ... walking to a known drug suspect's residence.” The officer testified at the motion to suppress hearing that he “circled the block a couple of times[,] ... jumped a street” and then made contact with the subject, whom he identified as Andrews after he rolled his window down and “noticed who it was.” The officer testified that he knew Andrews and “made small talk like, hey, haven't seen you in a while.”

Andrews told the officer that he was out walking, and the officer, who was still sitting in his patrol vehicle, testified that since he “knew where [Andrews] was coming from ... [he] asked him did he have anything illegal on him.” The officer further testified that he did not see Andrews come out of the residence of the suspected drug dealer, but that he could see the front yard of the residence from where he was stopped.

Andrews told the officer that he did not have anything illegal and “started emptying out his pockets.” The officer exited his patrol vehicle, and asked Andrews if he had anything else on him, and when Andrews responded that he did not, he asked Andrews if he “had a problem” with being patted down. Andrews responded “no,” and when the officer patted him down he “felt a hard chunky substance” in the pocket of Andrews' sweatshirt. Believing the substance to be contraband, the officer “reached in [Andrews'] pocket and seized it.” The officer retrieved a small baggie containing an off-white substance which was later determined to be cocaine.

Andrews testified that after being stopped, the officer asked him if he had

any weapons or anything illegal on him and I said, No. [The officer] stepped out of the vehicle. He asked me, ... Do you mind if I search you? I said, No and I pulled out what I had in my pockets. I said I don't have anything on me. He said, Well, can you turn around and put your hands on the car and let me pat you down.

Andrews further testified that he “felt that [he] had to allow [the officer] to search” him, but that he had never felt threatened during the encounter and, when asked if he had felt that he was in the officer's custody and could not leave, he responded, “No.” Andrews also testified that he consented to the pat-down.

In granting Andrews' motion to suppress, the trial court found:

When the officer got out of his patrol car and immediately began patting [Andrews] down and searching his pockets, the encounter with [Andrews] was elevated to a second tier investigation. [Andrews] testified that he felt he was not free to go when the Officer got out of his patrol car and put his hands on [Andrews] to search him. There is simply no particularized or objective basis for the Officer to detain and seize [Andrews] at that time and conduct a search of his clothing. This was not a pat down for weapons for the Officer's safety as the Officer did not testif[y] that he had any suspicion that [Andrews] might pose[ ] a threat to the Officer. The Court can only conclude that the search was for contraband. Even though [Andrews] voluntarily pulled items from his pocket, the Officer's own search of [Andrews] would have exceeded the parameters of any consent of [Andrews] to show the Officer what was in his pocket.... As the Officer did not have any particularized or reasonable suspicion to justify searching [Andrews], the search was unlawful....

(Emphasis supplied.)

The trial court further found that the officer “did not ask permission to search [Andrews] nor did [Andrews] testify that he consented to the search of his clothing and pockets,” and that Andrews' conduct in “pulling out the items from his pocket to show the Officer did not give the Officer any form of consent to conduct a further search of [Andrews'] pockets himself.” (Emphasis supplied.) It also found that the officer “did not ask for consent nor did [Andrews] give his consent.”

Although the trial court may resolve any inconsistencies in the evidence and make credibility determinations, the trial court's factual finding that there was no consent asked for or given is clearly erroneous. The officer and Andrews both testified that Andrews consented to a pat-down search after the officer got out of his car and before the officer patted Andrews down.¹ The parties dispute, however, whether Andrews' consent to the pat-down encompassed the officer's further intrusion into his pocket to retrieve the cocaine.

With this in mind, the State contends on appeal that the search was based on a valid consent that Andrews gave to the officer. It further contends that the scope of the consent...