*1 v. THE STATE. HAYES A91A1295. Judge. Presiding Carley, guilty possession appellant of trial, was found After bench appeals
methamphetamine from § 16-13-30.He of OCGA violation judgment on the trial court’s and sentence entered of conviction guilt. finding of Appellant his motion to the denial of as error enumerates appellant’s hearing fоllowing
suppress. motion on evidence adduced at The findings of fact: Of- make the the trial court to authorized prior executing surveilling to a search ficers, a certain house who were stop methamphetamine, appellant his vehicle observed for warrant front of appellant еxited, his vehicle was never the house. person spoken enough possibly who was on him to have to a close premises. appellant in- off, an officer followed When drove question stop appellant him at a distance from to structions premises. lights patrol car, the blue of his When the оfficer turned on appellant eventually immediately stop. appellant did Before did not appellant opened had the center con- the officer observed that appellant his vehicle. Because the officer was concerned that sole of may stopping weapon him so as to enable to retrieve a have avoided immediately appellant why console, he he had not out of the asked why responded Appellant responded lights and he had reached into the console. to the blue merely pack ciga- getting a that he had been рroof explanation, and, in of his rettes from the console ostensible pocket. appellant produced pack cigarettes The from his officer weap- appellant nevertheless determined to conduct However, officer touched the outside of the left ons. when thе appellant’s pants, appellant grabbed pushed the officer’shand and of it making body sideways prevent as the officerfrom and turned his so to pocket. The officer then told
contact with the outside of the appellant complied, place top appellant on the of the car when his hands appellant’s pocket. doing, In so
the officer reached into investigatory purpose, trying officer had no but was to deter- appellant mine whether was armed. The officer discovered no underlay ap- appellant’s pocket, pellant’s prosecution. but did find the contraband which Appellant stopped was observed when he his vehicle front of a house where execution of a search warrant was imminent. rant had been issued on was war- activity probable drug cause to believe that being conducted at the house. From the location wherе he speak stopped enough vehicle, had been close may person premises. Although have who was on the this not been probable was ac- sufficient to establish cause to believe that tually activity, certainly engaged suspected drug suffi- suspicion so as to authorize a brief articulable cient to establish an investigatory See Edwards (1) (391 Jackson v. 177) (1989); Eisenberger App. 673, 674 investigatory testified that
The officer who effectuated *2 might suspected appellant and, under the circum that be armed he stopped, stances, appellant was not unreasonable. When he was that foot, was in was not on but his vehicle. “recоgnized investigative involving suspects in that detentions ve
has hicles Michigan especially fraught danger police
are to officers.” (III) (103 Long, U. S. stop appellant predicated upon suspi Moreover, of was a the possible drug activity prior of his to cion involvement the appellant opening the officer had observed the console his (1st Gilliard, vehicle. See United States v. 847 F2d Cir. 1988) (reasonable suspicion suspect was he that armed where was sus pected drugs of involvement with and where officers knew that “fire ”) Appellant [drug] summarily arms are ‘tools of the discount the officer’s trade.’ would opened appellant that had
observation the con аppellant ostensibly explained opening sole, because had of his by producing cigarettes. appellant suggests However, console his no why constitutionally compelled accept reason pected drug the officerwas to a sus explanation, certainly
violator’s аnd we no know of con provision require stitutional which would that the officerstake his life appellant’s explanation upon on rather than determi officer’sown appellant Notwithstanding “expla nation of whether was armed. his appellant certainly nation,” could have secured a certainly placed ciga console and could have it beneath or his behind pocket entirely. rettes or in a different Accordingly, clearly the officer to authorized a mini- conduct
mally pat-down intrusive to determine whether was armed. attempted just pat-down, The officer to conduct such a but by grabbing pushing frustrated that effort and the officer’s hands by turning body sideways prevent his to the officer from touching pocket. Although appellant already outside his had subject pat-down, appellant urges refused to himself to a that the of- engaging ficer was nevertheless limited to in fur- attempts pat-down сlearly ther to conduct a This is er- Having appellant might roneous. a reasonable that be already having armed been frustrated his efforts to conduct a minimally pat-down, certainly intrusive the officer was authorized to appel- conclude that was more “reasonable” for him to reach into disprove suspicions lant’s order confirm or than it was him to continue to leave himself vulnerable attack. 889) (1968) Terry is not Ohio, 392 U. S. authority proposition has effectuated an an officer who necessarily potentially lim- investigatory is armed individual of a pat-down. conducting the con- To ited, all under trаry, Terry for an officerto it was not unreasonable held that suspect potentially armed who had of a conducted have Terry procedure. actually involved “itself submitted to person, subsequent patdown careful of a we were search the to note that the limitations tive search ‘(w)e dеvelop length however, case, in this need not upon protec- places Amendment which the Fourth weapons. to be These will have limitations and seizure for developed individual cases.’ circumstances in the concrete factual (III). Michigan Long, supra supplied.) (Emphasis at 1047 [Cit.]” investigative рrotective validity evaluating or of an officer’s “In ‘(t)ouchstone always analysis Terry, ... is of our under conduct gov- particular all the reasonableness in circumstances “the (Em- security.’” personal [Cit.]” a citizen’s ernmental invasion of (III). Michigan Long, supra supplied.) phasis investigation, investigation larly “[A] at 1051 рolice here, involves a such as the one that occurred particu- range,’ [cit.], when the officer remains ‘at close part has not been because a full custodial arrest vulnerable *3 ‘quick effected, decision as to how to and the officer must make danger. protect [Cit.] . . .’ In such himself and others from adopt required alternative we have not that officers safety to avoid the intrusion involved means to ensure their in order part supplied (Emphasis in and in a encounter.” omitted (III). Michigan Long, supra part.) v. 1052 at “Terry Accordingly, limit a search to a so-called does not Any designed guns, limited intrusion to discover search. permissible. [is] [Cit.] knives, instruments of assault clubs or other opinion circumstances[, that[,] the under the the officer’s We are of act overly reaching appellant’s in [left]-hand not of] into Appellant’s pushing the hand when trusive. he conduct officer’s subsequent attempted pa[t] [pocket], his conduct down the and body sideways], coupled [turning [the with fact that officer the suspected drug appellant, violator, reach into the console had seen stepping vehicle], before would create a reasonable Warren, 550, State v. that was armed.” 603 P2d 552 (Ariz. (la) (353 1979). App. App. Compаre 768, Brown v. 181 Ga. 770 572) (1987) (no SE2d evidence that defendant resisted 199) (1a) (259 frisk); Wyatt App. 207, v. 151 Ga. 210 SE2d officer, (1979) (search by having that of wallet no reasonable armed); 129, v. 133 defendant was Smith 911) (1976) (no frisk). A evidence that resisted hold defendant safety contrary consequences ing grave for the to the would have
207 po require state. It enforcement officers of this “would the law having quick officers, to make determinations about faced with lice self-protection area, in the must defense of innocent citizens and the instantaneously ‘less intrusive’ exists to what alternative also decide any presented suspect the will be neutralized. ensure threat Terry, practical explained [cit.], reasons we have [Cit.] For past, require police adopt now, [do] and not alternative not in measures supplied.) legitimate Terry-type (Emphasis
to avoid a intrusion.” Michigan Long, (III), v. fn. 16. 1052 The officer’s proportionate response were aс actions cordingly, to those of appellant’s proper. motion was denial Judgment Sognier, McMurray, Birdsong, J., J.,P. C. affirmed. Pope, Cooper, Judge Andrews, J., JJ., P. Arnold con- Shulman Beasley, specially. J., cur. concurs Judge, concurring specially.
Beasley,
By supplemental brief,
1.
defendant asserts
violation of his
rights.
state
derlying purpose
It
constitutional
has earlier been observed that the un-
exclusionary
Georgia’s
may
rule,
§ 17-5-30,
OCGA
protection
right
privacy.
Johnston,
be the
State v.
(286
47)
(291
(1981),
543)
App. 71, 73
249
413
aff’d
Ga.
ground
supplemental
if
brief,
Even
a new
could be raised in a
cf.
916)
(1983),
Quick State,
492,
de-
provision,
1983,
fendant
Art.
cites
constitutional
Ga. Const.
supports
argument urging
I,
I,
Sec. Par. XIII. He
it with no
an
independent
ground
only
dealing
state
cases
cites
fed-
provisions.
ignores
eral
instructions and
Defendant
the United States
principles
government
of the federal
of our
structure
(102
regard. Oregon Kennedy,
this
456 U. S. 667
SC
416) (1982);
Upton,
(104
LE2d
Massachusetts v.
of the
before it
be
could
said to have warranted a
weapon.
reasonable
caution
the belief that the
contained a
Terry, supra.
justification
рro
Because the sole
for the search is the
police
exceeding
purpose
officer,
tection of the
an extended search
Wyatt
of the search is
unreasonable.
199) (1979). Ordinarily
207, the officer must
1 Terry Ohio,
pat down and then intrude beneath the surface if he confirms his suspicion” by upon coming something “reasonable belief or which (3) (227 (la) (353 weapon. like feels Smith Brown permitted isWhat is the use of the tactile sense to give weapon present. the officer a reasonable belief that a concealed is interrupted pat- case, In this down. the act of the defendant the authorized pushed away, proceed After his hand was the officer did not something the weapon, although to ascertain the existence of which felt like a top the defendant’s hands were on of the car and placed Instead, were back there. he confirmed that what defendant obviously hiding weapon by removing item, was not a which plastic bag, pocket. person’s was a movement, coupled from defendant’s evasive keep knowledge, what he had hidden from the officer’s activity, pat-
with his earlier constituted a substitute for a permit down which raises a invasive search. hidden, belief that a is as so an Thus, the officer’saction was “within permissible supra inapplicable Brown, bounds.” at 771. is to aid “evidence-gathering supra an Ybarra, function.” at 94. including protective Whether the defendant’s gave probable movements, drugs rise to cause to believe that inwere pocket, purposе is not at issue. The officer testified that his for searching cording pocket weapons safety. was for so as to assure his Ac- Ybarra, 94-96, a reasonable or belief that the contained narcotics would not authorize a search. The higher probable necessary. Terry inap- standard of cause would be is plicable “evidence-gathering to aid an function.”
Decided December 1991. Frey, E.
William Attorney, Keller, Robert E. District Collier, Albert B. Assistant Attorney, appellee. District A91A1454.HEAD v. THE STATE. Presiding Judge. Carley, Appellant jury guilty burglary, was tried before a and found aggravated robbery. appeals assault, judgments He jury’s conviction and sentences entered the trial court on the ver- guilt.
dicts of 1. The victim testified that he had known for a number