Ware v. State
309 Ga. App. 426
Ga. Ct. App.2011Background
- Deputies responded to a neighborhood dispute and encountered Ware walking away from the scene.
- Ware complied when asked to return and talk, placing hands in his pockets and refusing to remove them.
- Officer Gilbert obtained consent to a pat-down for safety, feeling a soft lump in Ware's pocket.
- The lump was a small bag containing six wrapped bags of marijuana; no further testimony offered at suppression hearing.
- Gilbert testified he conducted the pocket search only after obtaining Ware's consent; the trial court denied the suppression motion.
- Appellate review affirmed, holding the consensual encounter and consent to search valid and not coerced.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the detention and pat-down/search were lawful | Ware contends detention/search unlawful | State argues consensual first-tier encounter and valid consent | Denial of suppression upheld; consent valid |
| Whether consent to search invalidated by potential coercion | Consent tainted by detention or coercion | Consent voluntary and not merely acquiescence | Consent voluntary; search valid |
| Whether Walker v. State controls | Walker undermines validity of detention | Walker inapplicable; no illegal detention | Walker inapplicable |
| Scope of the pat-down and plain feel doctrine | Pat-down expanded beyond safety purpose | Pat-down for safety; consent obtained; no unlawful intrusion | Pat-down limited; search by consent authorized seizure of marijuana |
| Standard of review for suppression rulings | Trial court’s findings should be de novo reviewed | Review under deferential standard; credibility allowed | Deferential standard; credibility resolves the motion |
Key Cases Cited
- Walker v. State, 299 Ga.App. 788, 683 S.E.2d 867 (2009) (applicability limited; inapposite to this case)
- Johnson v. State, 297 Ga.App. 847, 678 S.E.2d 539 (2009) (consent to search must be voluntary and not compelled)
- Brown v. State, 293 Ga.App. 564, 667 S.E.2d 410 (2008) (lacks authority to intrude into pockets absent evidence of weapon)
- Florida v. Bostick, 501 U.S. 429 (U.S. Supreme Court 1991) (consensual encounters may occur without suspicion)
- Brint v. State, 306 Ga.App. 10, 701 S.E.2d 507 (2010) (consent search and its scope under suppression standards)