Womack v. State

• Decision Date: 24 June 2020
• Docket Number: A20A0759
• Citation: 355 Ga.App. 804,845 S.E.2d 747
• Parties: WOMACK v. The STATE.
• Court: Georgia Court of Appeals

355 Ga.App. 804

845 S.E.2d 747

WOMACK

v.The STATE.

A20A0759

Court of Appeals of Georgia.

June 24, 2020

Mary Elizabeth Horton, for Appellant.

Darius T. Pattillo, Michael Allen Bodiford, for Appellee.

Rickman, Judge.

Following a stipulated bench trial, Christopher Womack was convicted of possession of less than one ounce of marijuana. He appeals, contending that the trial court erred by denying his motion to suppress evidence found during the search and seizure that led to his arrest. For the reasons that follow, we reverse.

"In reviewing a trial court's ruling on a motion to suppress, this Court must construe the record in the light most favorable to the factual findings and judgment of the trial court and accept the trial court's findings of disputed fact unless they are clearly erroneous." (Citations omitted.) State v. Turner , 304 Ga. 356, 356, 818 S.E.2d 589 (2018). Further, "[a]n appellate court also generally must limit its consideration of the disputed facts to those expressly found by the trial court." (Citations and punctuation omitted.) Caffee v. State , 303 Ga. 557, 557, 814 S.E.2d 386 (2018). "[T]he trial court's application of the law to undisputed facts is subject to de novo review." (Citations and punctuation omitted.) State v. Clay , 339 Ga. App. 473, 473, 793 S.E.2d 636 (2016). Finally, the burden of proving the validity of a consensual search is on the State. See Thompson v. State , 348 Ga. App. 609, 612 (1), 824 S.E.2d 62 (2019).

The trial court found as a matter of fact that an officer observed Womack exit a tobacco shop, "look[ ] around," and, when he noticed the officers's patrol car, begin to "power walk" in the other direction. The officer believed that this behavior, which occurred in a "high crime/high drug area," may have constituted loitering. The officer then approached Womack, asked if he could see Womack's identification, and asked for consent to search his person, which Womack gave.

The court further found that when the officer attempted to take off Womack's backpack in order to perform the search, Womack pulled away, and the officer grabbed his wrist. The court found that "simultaneously" Womack said, "wait, wait, there is marijuana in my backpack." Inside the backpack the officer found a Mason jar that contained two clear packages of marijuana and a digital scale. The officer then arrested Womack for possession of less than one ounce of marijuana.

The court concluded as a matter of law that the officer did not detain or seize Womack when he first approached Womack and questioned him and that Womack consented to a search. But the court also found that "[b]ased upon [Womack's] demeanor, his attempt to avoid the [o]fficer, [and] his presence with a backpack in a high crime/high drug area, [the officer] had a particularized and objective basis for suspecting that [Womack] was involved in criminal activity." The court further found that after the officer "touched the backpack for the legitimate purpose of conducting the consent search of [Womack's] person, [Womack's] demeanor instantly changed and he pulled away from the officer," which justified the officer in believing that there must be weapons or contraband in the backpack; the court continued, "but before he could come to this justifiable conclusion, [Womack] made the spontaneous statement that there was marijuana in the backpack." The court found that this statement was made prior to Womack being in custody and not in response to any questions asked by the officer. Accordingly, the trial court denied Womack's motion to suppress.

On appeal, Womack contends the trial court erred by denying the motion to suppress. He argues that the officer conducted a second-tier encounter¹ without reasonable articulable suspicion of criminal activity and thus his consent was invalid; that even if the encounter was consensual, the officer did not have Womack's consent to search the backpack; and that Womack withdrew his consent to search when the officer grabbed the backpack.

1. We first hold that although the trial court did not err in finding that Womack initially was not detained, the court clearly erred in findings of fact concerning the precise timing of the events during the officer's encounter with Womack. Critically, the undisputed facts show that Womack confessed to marijuana in the backpack after he had been detained.

(a) The trial court did not clearly err in concluding that the officer did not detain Womack initially.

"The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and voluntariness is a question of fact to be determined from all the circumstances." (Citation and punctuation omitted.) Ohio v. Robinette , 519 U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). "So long as a reasonable person would feel free to ‘disregard the police and go about his business,’ the encounter is consensual and no reasonable suspicion is required." (Citation and punctuation omitted.) Florida v. Bostick , 501 U.S. 429, 434 (II), 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).

Here, the officer testified that he exited his patrol car, approached Womack on foot, and asked to see his identification; that he did not block Womack's path to the highway; that Womack could have walked away; and that Womack was cooperative and was free to leave at the time that he consented to the search. The officer also consistently testified that he was only conducting a first-tier encounter and that at all times prior to grabbing Womack's wrist, he was free to leave. Thus, the trial court's finding that the officer did not detain or restrain Womack before asking him for his identification and consent to search is supported by the evidence and therefore not clearly erroneous. See Grant v. State , 246 Ga. App. 376, 377 (2), 540 S.E.2d 634 (2000).

(b) The court clearly erred, however, when it found that Womack was not detained when he confessed to the marijuana.

The court found that when the officer grabbed Womack's wrist, Womack "simultaneously" stated that there was marijuana in his backpack. On this topic, the officer first testified generally that "at the time I grabbed his wrist and I was going to detain him and he said wait, wait, wait, there is marijuana in my backpack." Later, after referring to the police report of the incident that he prepared, the officer acknowledged that when he grabbed Womack's wrist, Womack said that there was "something" in the backpack that was not his. The officer then asked Womack what the something was. Only then did Womack state that there was marijuana in the backpack. Thus the correct order of the relevant events is this: the officer took hold of the backpack; Womack pulled away; the officer grabbed Womack's wrist; Womack said that there was something in his backpack; the officer asked what it was; Womack stated that it was marijuana.

Next, the court found that the statement that there was marijuana in the backpack "was made prior to [Womack's] being in custody and was not made in response to any questions asked by the officer." The evidence on this topic was that, in response to the court's own question, the officer clearly admitted that once he grabbed Womack's wrist, Womack was not free to leave. And, as shown above, after grabbing Womack's wrist, the officer asked Womack what was in the backpack. It was then that Womack confessed to marijuana in the backpack.

Accordingly, at the time that Womack confessed to the marijuana, he clearly was being detained. "[A] seizure occurs only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." (Citation and punctuation omitted.) State v. Walker , 295 Ga. 888, 890, 764 S.E.2d 804 (2014) ; see also Jones v. State , 291 Ga. 35, 37 (1), 727 S.E.2d 456 (2012). It follows that unless the officer was legally authorized at that point to detain Womack, the confession was a product of an illegal detention.

2. We next hold as a matter of law that none of the reasons articulated by the trial court justified the officer in grabbing Womack's wrist.

(a) The court made multiple somewhat conflicting conclusions of law that relate to the question of whether the officer was authorized to detain Womack. The court first held that at the time the officer made contact with Womack, he had sufficient information to conduct a tier-two stop as follows: The court held as a matter of fact that

[The officer] believed that the behavior of the defendant in an area that he described as a high crime/high drug area may have risen to the level of a violation of OCGA § 16-11-36 [,] the statute which prohibits loitering.

This finding of fact as to what the officer believed is supported by the officer's testimony. But the court then held as a matter of law that

Based upon [Womack's] demeanor, his attempt to avoid the [o]fficer, [and] his presence with a backpack in a high crime/high drug area, [the officer] had a particularized and objective basis for suspecting that [Womack] was involved in criminal activity."

In this conclusion, the trial court erred. "At best, the officer's stated reasons raised a subjective, unparticularized suspicion or hunch." Walker v. State , 299 Ga. App. 788, 791 (1), 683 S.E.2d 867 (2009).

The officer testified that when he first saw Womack walk out of the store, "[h]e seemed like a regular person. He just walked out the store." But because Womack then "looked around, noticed us and started to power walk off," the officer developed a suspicion that "something might be up," or that Womack was "committing some kind of crime." When asked, "What were you suspicious of at that point?," the officer replied, "I was just suspicious of a possible crime." When asked what made him speak with Womack, the officer replied, "His demeanor." But the officer was not certain that Womack even noticed the patrol car before his power walk. He added that he had "located drugs in backpacks in high crime areas late at night," but he never...