320 Ga. App. 792
Ga. Ct. App.2013Background
- At approximately 1:00 a.m. on January 23, 2009, a deputy was informed of a subject walking toward a known drug suspect’s residence.
- The deputy, after patrolling, encountered Andrews, whom he knew, and initiated contact from his patrol vehicle.
- Andrews voluntarily stated he had nothing illegal and began emptying his pockets; the officer then asked if Andrews had a problem with a pat-down.
- During the pat-down, the officer felt a hard chunky substance in Andrews’ sweatshirt pocket and seized a bag containing cocaine.
- The trial court granted suppression, ruling the stop/search were unlawful and beyond consent; the State appealed seeking reversal.
- The appellate court reversed, holding that Andrews consented to a pat-down and that the search of the pocket fell within the scope of that consent and plain-feel doctrine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consent to pat-down extended to removal from pocket | Andrews consented to pat-down only; scope limited | Consent extended to permissible Terry search including contraband | Consent extended to the pocket search under Terry/plain-feel |
| Whether the search exceeded the scope of consent | Search exceeded consent by removing contents | Search within consent to pat-down, incl. contraband under plain-feel | Search did not exceed consent; lawfully seized cocaine under plain-feel/terry authority |
| Whether first-tier encounter justification affects suppression ruling | Encounter lacked basis for detention | First-tier encounter allows requests for consent to search without suspicion | First-tier encounter permissible; search within scope of consent under Terry/plain-feel |
Key Cases Cited
- Carrera v. State, 261 Ga. App. 832, 834 (584 SE2d 2) (2003) (2003) (no detention for consent to search; first-tier contact permitted)
- State v. Cosby, 302 Ga. App. 204, 205 (690 SE2d 519) (2010) (2010) (plain-feel doctrine permits seizure if object identified by feel)
- Dunn v. State, 289 Ga. App. 585, 586 (1) (b) (657 SE2d 649) (2008) (2008) (plain-feel extends to contraband identified by touch)
- Springsteen v. State, 206 Ga. App. 150, 152-153 (424 SE2d 832) (1992) (1992) (consent to search may allow reaching into pockets under Terry)
- Foster v. State, 285 Ga. App. 441, 443-444 (646 SE2d 302) (2007) (2007) (content removal from pockets requires weapon-like justification)
- Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994) (1994) (three-part standard for reviewing suppression judgments; defer to trial findings)