McCormack v. State
325 Ga. App. 183
Ga. Ct. App.2013Background
- McCormack was convicted after a bench trial of two counts of possessing controlled substances (alprazolam and hydrocodone), two counts of possessing drugs not in original containers, and being a pedestrian on the roadway.
- On appeal, McCormack challenged the denial of his motion to suppress evidence obtained from a stop and search of his person.
- The officer pat-down discovered a small pill box; the officer opened the box and found Xanax and Lortab pills, which McCormack allegedly possessed without prescriptions.
- The trial court found the pat-down for weapons justified and that McCormack consented to removal of the box; it did not explicitly address consent to opening the box.
- The appellate court reversed the suppression of the controlled substances counts, affirmed the pedestrian conviction, and remanded for further proceedings consistent with the ruling that opening the box was not justified; the pedestrian conviction was affirmed on independent, sufficient evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was opening the pill box during the Terry pat-down justified? | McCormack | McCormack | No; opening exceeded the pat-down scope |
| Was McCormack's opening of the box supported by consent? | McCormack | State | No; consent to removal did not prove consent to opening |
| Did the State waive alternative theories by not presenting them at trial? | McCormack | State | Yes; waived arguments to justify opening the box |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (1968) (limits pat-downs to safety and outer clothing; excludes general searches for evidence)
- Cartwright v. State, 265 Ga. App. 520, 521 (594 SE2d 723) (2004) (opening a box found during pat-down exceeds permissible search scope)
- Jourdan v. State, 264 Ga. App. 118, 120 (589 SE2d 682) (2003) (consent to pat-down does not authorize opening containers)
- Mason v. State, 285 Ga. App. 596, 597-598 (647 SE2d 308) (2007) (consent to removal of item but not to its opening)
- Williams v. State, 318 Ga. App. 715, 718-719 (734 SE2d 535) (2012) (consent considerations and scope of what is authorized)