*1 THE STATE. COLE v. A01A1999. 720) Presiding Judge.
Andrews, methamphet- guilty possessing of was found Jason Neil Cole during marijuana his car conducted a search of and found amine claiming appeals stopped police He a traffic offense. he was for after by denying illegal erred his and that trial court the search was motion to fic the suppress conclude the traf- results. Because we the search voluntarily legal stop and that Cole consented and detention were search, we affirm. to hearing following before the trial at a stopping suppression Cole for failure to motion. After
court on Cole’s properly lane, noticed the smell of mari- maintain his Officer Smith juana coming He that Cole from the interior of Cole’s car. observed eyes. watery, shaking, acting nervous, bloodshot When and had marijuana, more he Cole became even the officer told Cole smelled agitated. observations, the sus- Based on these nervous and pected marijuana the influence of and asked Cole be under step him on his feet. The him out of the car so he could observe steady appeared that, that Cole on his feet and other officer stated eyes, “okay.” appeared than he bloodshot might marijuana suspecting car, the officer there Still asked Cole for consent to search the car. When Cole refused to telling Cole, a time consent, the officer asked for consent second satisfy my suspicions smelling “[t]his take five minutes to will marijuana, you’re telling vehicle, me is in the the odor of then searching why problem do have a with me it.” When asked go get drug dog he could a to come out and sniff the he then told Cole car, the officer testified that he could not recall whether or not he so, Cole, that it was he did but he made that statement report write down in his that he did so. The officer further did not although Cole was free to leave after he testified refused the first believed Cole consented when for consent methamphetamine time. The he asked the second during the car the search. were found under the driver’s seat of challenge authority stop 1. Cole does not offense, the detention and for the traffic but claims claim. to the search were unwarranted. There is no merit to this led When the officer smelled appearance and observed Cole’s demeanor, reasonable, under he had (1968), Cole Ohio, S. 1 20 LE2d to detain v. to U. driving investigate influence of mari- whether he was under the marijuana. possession was in or Similarly, claims that the search was 2. there is no merit to dog involuntary go get drug Cole he could or because officer told illegal product of an detention because that the search was initially after he refused to con- Cole was free to leave officer believed sent to the search. ruling that Cole’s consent to search was no for the claim that the officer made a state-
trial court found basis drug getting dog The trial to Cole about to coerce the consent. ment telling *2 Officer he could not recall court noted that Smith testified dog testimony get drug supported he could a and that this was Cole police report the that the officer did not write in his that he fact any evidence, such comment. Based on this the trial court con- made cluded that “no affirmative
testimony by Smith or statements in [the claim] police report support Smith’s that Smith threatened drug dog Defendant with a ... if Defendant did not consent.” Cole testify hearing, did not any at the and he never said that the officer made drug dog. Accordingly, statement to him a about the evi- alleged dog drug dence the trial before court about the statement was making the officer’s that he could not recall such a state- possible ment, but it was he did so.
Although proving the State had the burden of that the consent to necessary produce search was additional evidence it was not for the State to
affirmatively disproving possibility the that the the drug dog. Rather, made the statement a about simply argue State could made, that the statement not and it up weight given possi- to the trial court to consider the (276 bility that it was made. State, 397, See Anderson v. 247 Ga. 603) (1981). appeal suppress, SE2d “On of a motion to the evidence is favorably uphold findings judgment construed most of the findings disputed credibility court; trial the trial court’s on facts and adopted they clearly are unless are erroneous and will not be dis- (Citations any punc- if turbed tuation there is evidence to them.” omitted.) (494 (1) Sprauve App. State, 478, v. 229 Ga. 294) (1997). Applying principles, supports SE2d these the evidence finding get- the trial court’s that the officer made no statement about ting drug dog. a get drug
Moreover, if even the officer did tell Cole that he could dog if he did not consent to the this did not constitute coer- involuntary. cion that rendered the consent The fact that the officer marijuana coming detected the smell of from the interior of the car was sufficient to create a reasonable that Cole had mari- in the car. State v. Montford, 339, Ga. 340-341 (457 suspicion justified minimum, At a Terry Ohio, officer’s detention of Cole under 1, v. 392 U. S. to investi- gate activity justified criminal and would have scope investigation officer’s use of a within the of that dog around the exterior of the car to see whether the detected sniff Having dog illegal drugs. a trained at 341. Montford, 217 Ga. meaning of the not a search within the exterior of a car is sniff I, Amendment Constitution or Art. Sec. of the United States Fourth Georgia Id. at 341. It follows Constitution. I, Par. XIII of the drug dog, get not an this was asserted he could even the officer authority by claiming attempt had lawful to coerce consent Compare Bumper v. North if Cole refused to consent. search the car 797) (1968) (88 1788, LE2d Carolina, 391 U. S. 549-550 (consent acquiescence a claim of lawful author- to search voluntary). ity considered is not suppression
Furthermore,
the officer testified at the
the fact that
hearing
thought
after he refused the
Cole was “free to leave”
that he
any
does not establish that
first
for consent to search
officer’s
continued detention was
subjective
illegal.
that he
The officer’s
belief
authority
not
continued
does
lacked
to detain Cole for
objectively show the officer had such author
control where the facts
ity.
App. 837,
State,
v.
Farmer
suspicion justifies a deten
“Because we decide whether reasonable
objective facts,
are not limited
the detain
on all the
we
tion based
ing
subjective opinions.”
Jones,
990 F2d
officer’s
United States
(8th
1993),
denied,
States,
Cole’s consent methamphetamine correctly suppress denied the motion to marijuana found in the search. Ellington, Judgment JJ., Johnson, J,P. Ruffin affirmed. Eldridge, Phipps, JJ., Miller and dissent.
concur. Judge, dissenting. Eldridge, to search Officer Smith was not Because the consent obtained respectfully I must dissent. that Cole’sfailure to maintain 1. After Officer Smith determined marijuana, being lane not the result of under the influence of a Smith decided to ask for consent to search Cole’s car because he thought might refused consent. It was there be there. Cole then Officer Smith testified: inspect and he stated no the first
A: I his vehicle wanted point on, I have to hold him he’s time. So at that to free go. . . . Q: If when he said no to the consent and he had tried to leave, would he have been free to leave? Yes,
A: sir. you you anything Q: Did think had to hold him on at that point?
No,A: sir. (Emphasis supplied.) again this, Smith did not tell Cole but instead asked during for consent to search. And it was this second already go Officer Smith had determined that Cole was free to after get drug dog testified if Smith threatened to admirably Smith, Cole did not consent to a search. in an candid fash- ion, admitted that he had used such threat before with other detain- possibly ees and had used it in this instance: asking Q: And then as far as whether or not he didn’t you’d go get drug dog, you you’ve consent, ally said that actu- particular people made that statement to before? Yes,
A: sir. you you you Q: And said that didn’t recall whether or not made that statement to Mr. Cole?
No,A: sir. Okay.
Q: So could have him, made that statement to is you’re telling that what the Court? possible, yes,
A: It’s sir. prove freely The State has the burden to consent was and volun- tarily given, tially product and consent to search “must of an essen- free and unrestrained choice its maker.”1 Cole did not have present drug dog the burden to “affirmative evidence” that the state- present ment that such inwas fact made. The State had the burden to evidence majority’s Moreover, statement was not made. asser- simply argue tion that “the State could that the statement was not patently prosecu- made” is insufficient. It is a tenet of the law that a argument tor’s evidence, and, is not case, there was no factual upon prosecutor argue basis which the could that state- plainly ment made, was not since Officer Smith testified that “It’s *4 possible, yes, majority’s holding sir” he made such statement. The presents interesting development a new and in the law when the permitted by State is to meet an affirmative constitutional burden proving only something that an officer “cannot recall” if he said or did he should and, further, not have done testifies it is he did it. 1 (Punctuation omitted.) (2) (390 896) State, 490, App. Walton v. 194 Ga. 492 SE2d (1990).
428 — Since the evidence before the trial court and before this past, is that Officer Smith made statements
Court and yes, possible, prose- “[¡]?8 here, sir,” he made such statement (or sense) matter of fact or law common meet its cution cannot as a getting burden to show that “Officer Smith made no statement about by drug dog,” adopted by as was concluded the trial court and majority. finding that Officer Smith did not threaten Cole with a clearly drug dog is erroneous.2 interesting Equally stop/detention
2. for the future of cases majority’s suspicion” is the conclusion that “reasonable articulable specifically imputed an can be to officer who testifies that “I have go,” on, to free hold he’s to but continues to detain the believe this is the suspect in order to a consent to search.3 I obtain Georgia appellate time in an first court has found that an officer who suspicion did not have a reasonable articulable and has it should had supplied propriety majority’s imputa- it for him. The of the reviewing ability “probable tion is based on a court’s to find cause” where an officer is unsure whether such exists.4 my “probable objective however, view, cause,” anis determi- by objective factors; nation an officer or otherwise based on suspicion” subjective while “reasonable articulable is a determination objective an field officer based on circumstances on the objective such, scene. As circumstances in the field do not create suspicion wrongdoing, an officer a reasonable we cannot it to him after the fact.5 pretermitting majority
But
this and
that a
of this Court
impute
suspicion”
wishes to
be able
“reasonable articulable
an
especially diverting
it,
officer who does not have
I find this case an
majority’s holding
strong, strong
vehicle for the
because of the
evi-
absolutely
dence that Officer Smith was
correct when he determined
2
(1) (494
State,
478,
Sprauve
v.
479
3
(2) (547
679) (2001) (“An
Gibbons,
859,
Compare
863
questions
suspect
origi
who
and detains a
for reasons other than those connected with the
purpose
stop
scope
permissible investigation
nal
of the
exceeds the
unless he has ‘reason
suspicion’
activity.”).
able
of other criminal
4 Indeed,
Jones,
upon
majority,
405,
the case relied
United States v.
990 F2d
(8th
1993), premised
probable
analysis
Klingler
Cir.
its conclusion on cause
denied,
contained in
(8th
(90
States,
299,
1969),
127,
v. United
409 F2d
Cir.
cert.
Q: It didn’t smell in the was like the smoke was No, sir, it was like it A: but in car, a lot the car. it had been smoked big window, like a cloud of Q: he rolled down the When billowing didn’t come out? smoke that’s into the vehi-
No,A: sir. . . . It’s the smoke embedded recently hard to tell if it’s been smoked or cle, and it’s kind of it’s old. . . . you beginning you prior Now,
Q: stated that this you or whatever want to call it that this embedded smoke you slight I used the words a odor? was A: From believe my standing at the driver’s side door with head two . . . to three feet above the car. [M]yquestion may smoking
Q: is, Mr. Cole not have been at may smoking days people all; some other have been earlier. possibility slight Is that a on the odor? based possible. A: It is assuming
Q: direct, Am I in I hear correct since didn’t it on any marijuana coming per- that did not smell from his you? son, did report.
A: It’s not . . . something you put your Q: Well, that would be would report happened. put report? had it . . . You’d it in the Yes, A: sir. addition, into whether Cole be
driving drugs stepped under the influence of showed “Once he steady me, feet, out of the vehicle and talked to other than the bloodshot he was on his eyes, fairly okay.” he seemed to be burning Folk,6 In we determined that the odor of mari juana justify alone was sufficient to an officer’swarrantless search of distinguished a vehicle. In Patman v. State7 we between odor of burning marijuana “suggests marijuana present,” which is still marijuana “merely suggests and the smell of smoke which that mari present past.” predicated Such distinction was on necessary the fact that the standard for a detention is a reasonable that a “either or would soon suspect currently activity.”8 an unlawful engaged Here, Smith, scene, present Officer on the determined from the including circumstances smell surrounding “nothing he had further to hold Cole on.” And the above evidence cer- conclusion, tainly supports since the odor of fresh; Cole, himself, did not “slight”; appear neither smelled if he marijuana nor acted as were under the influence. However, above, on the basis of evidence as noted we *6 boot to Officer Smith’s determination that Cole was free to go. finds, instead, majority that odor on the scene an odor that this Court obviously did not was of such con- experience sequence immediacy it should have created a “reasonable in suspicion” Officer Smith that Cole engaged — even it did wrongdoing though Respectfully, not. I cannot give credence to this exercise of clairvoyant powers.
Because the facts this case do not support suspi- reasonable cion of current based on the odor wrongdoing plainly determination to the contrary, Court cannot such impute reasonable to Officer Smith even it wanted to.
I am authorized to state that Judge Miller and Judge Phipps join in this dissent.
Decided March 26, 2002 Reconsideration denied March Cook, Steven A. for appellant. Head,
Patrick H. Attorney, District Henry R. Dana J. Thompson, Norman, Assistant District Attorneys, for appellee. S.,
A01A2174. In the Interest of B. A. a child. A02A0148. JOHNSON STILLS et al.
Ruffin, Judge.
These two concern a appeals County Houston Juvenile Court’s order terminating Steven Trainer’s parental rights B. A. S. and a County Fulton Court’s Superior granting order the petition and Christal Stills to adopt the child. The case has a long and conten- tious history partially is discussed the Supreme Court of (Emphasis supplied.) Banks,