Johnson v. State

Decided December

Page, Sprouse, Scranton, Ford, Calhoun, Tucker & B. Marcus Traurig, Greenberg King, appellants. Jr., Michael J. for Jerry Land, Buchanan, Buchanan Leonardo, & A. Lori M. for appellees.

A11A0941. THE JOHNSON v. STATE. Judge. Andrews, guilty Arron Lavell Johnson was found at a bench trial of (3, possession 4-methylene- of a schedule II controlled substance dioxymethamphetamine) Georgia in violation of the Controlled Sub- stipulated stances Act. Johnson and the State to evidence that he possession agreed try inwas of the controlled substance and transcript produced pre-trial hearing case based on the at the on his suppress Georgia motion to substance, evidence of the controlled Investigation report, City Bureau of Crime Lab and the of Snellville report. Police incident Johnson’s sole enumeration of error is that by denying suppress the trial court erred his motion to evidence person showing possession found a search of his that he was in following the controlled substance. reasons, For the we affirm. correctly suppress

1. The trial court denied Johnson’s motion to and admitted the evidence found in the search. produced that,

The State evidence while officers detained investigate activity, they Johnson to their of criminal patted weapons person pursuant down Johnson for and searched his possession. to his consent and found the controlled substance in support suppression Johnson contended in of his motion that the consent to search was tainted and invalid because it was obtained illegally by police questioning while he was detained and for the pat-down protection against in violation of the Fourth Amendment contrary, unreasonable search and seizure. To the the evidence proper shows that the detention and the were and that the during pursuant search conducted the detention was to valid con- sent. undisputed, credibility

The relevant facts were there were no suppress issues, and the trial court denied the motion to without making findings giving any explanation. Accordingly, the standard appellate independently novo, review is de and we review the application evidence to determine whether the trial court erred its undisputed of the law Palmer, to the facts. State v. (2009); Woods, State v. 280 Ga. 758-759 (604 (2006); Silva v. 506, following: The evidence showed the At a.m., about 3:00 Snellville police received a call from a Steak and restaurant, Shake which was open reporting for business hour, at that that the restaurant’s video suspi- camera showed that a black male ciously “hanging dressed all black was “hiding” dumpster out” or near the restaurant’s employees located behind the restaurant. The restaurant and the police robbery recently were aware that an armed had occurred at police dispatched the restaurant. Three officers were to A the scene. short distance from restaurant, the one of the officers man, saw a description later Johnson, identified as who matched the of the man walking seen away behind the restaurant. The officer saw Johnson (the Kroger grocery from the restaurant near a store other store area), open in the called the other two radio, officers on his and then stopped question doing Johnson to him about what he was in the approached patted weapons, area. The officer Johnson, him down for prior and found none. The officer testified that he was aware of the robbery suspected armed restaurant, at the that he another armed robbery possibly was about occur, and that he conducted the pat-down safety for his own to determine if Johnson was armed. At about the same time, the other two officers arrived where Johnson stopped. doing The officers asked Johnson what he was in the day, responded area at that time of and Johnson that he was there get phone company.” point, “to the number of a cab At that one of the officers asked Johnson if he him, had narcotics on which he person denied, and asked for consent to search his for narcotics. conducting Johnson search, consented to the and the officer person search found the controlled substance at issue on Johnson’s and arrested him. protection

There is no violation of the Fourth Amendment against unreasonable searches and seizures where a officer stops person investigate suspicion the officer’s reasonable “that person stopped engaged activity.” is, be, or is about to in criminal Cortez, United States v. 411, 449 U. S. 690, SC 66 LE2d (1981); Terry Ohio, 1868, 392 U. S. 9 SC 20 LE2d suspicion investigative stop, To establish reasonable to make an totality “specific of the circumstances must show that the officer had together which, articulable facts taken with rational inferences [provided] particularized objective from those facts . . . basis suspecting particular person stopped activity.” for of criminal 474) (1994) (punctua- Vansant v. omitted). considering totality tion In circumstances, process “[t]his experience allows officers to draw on their own specialized training to make inferences from and deductions about might the cumulative information available to them that well elude person.” Arvizu, an untrained United States v. U. S. 740) (2002) (citations punctuation SC 151 LE2d

omitted). may susceptible Even where the circumstances be to an explanation, ‘‘[a] innocent determination that reasonable possibility exists . . . need not rule out the of innocent conduct.” Id. conducting investigatory stop, Moreover, in at 277. an an officer is suspect weapons entitled to conduct a limited if reasonably suspect poses the officer believes that the a threat to his safety Terry, required or that of others. 392 U. S. at 28-31. It is not absolutely armed; the officer “be certain that the individual is reasonably prudent the issue in is whether a man the circumstances safety would be warranted the belief that his or that of others was danger.” Id. at 27. Applying standards, the these evidence was sufficient to show stopped questioned that the officers who Johnson had a basis for engaged was, be, a reasonable that Johnson or was about to activity, posed in criminal and had a reasonable belief that he safety. description threat to their Johnson matched the of the man employees hiding loitering seen restaurant or at 3:00 a.m. behind they robbery the restaurant where recently worked at which an armed had circumstances, occurred. Given these it was reasonable for suspect engage the officers to activity that Johnson was about to in criminal stop investigate up response him and to what he was to. In questions why responded to initial there, about he was Johnson get phone company.” light he was there “to number of a cab In report loitering hiding of the restaurant, heighten that Johnson was seen behind the improbable response

this could have served to suspicions engage reasonable that he was about to in some type illegal activity. stopped The fact that one of the officers who subjectively explanation being present Johnson characterized his “probable” there as was irrelevant to the Fourth Amendment inquiry. “An Amendment, action is ‘reasonable’ under the Fourth regardless long mind, of the individual officer’s state of as as the objectively, justify circumstances, viewed the action. The officer’s subjective Brigham City Stuart, motivation is irrelevant.” (126 650) (2006) (citation 398, 1943, U. S. SC 164 LE2d omitted); punctuation App. State, 474, Johnson v. 478-480 601) (2009) (on reconsideration). Rather, motion for it is duty this Court’s to determine whether the officers’ actions were light objective reasonable under the Fourth Amendment of all the including unlikely explanation moving facts, Johnson’s that he was get phone about in the company.” area that hour “to number of a cab general questions circumstances, Under the the officers’ doing specific question about what he was and the related to narcotic activity reasonably scope investigative were within the of the deten- given suspicious activity Moreover,

tion.1 Johnson’s behind the prior robbery restaurant, restaurant and the armed at the it was also initially stopped reasonable for the officer who Johnson to believe pat weapons. that he could be armed and to him down for But even assuming supported by was not a reasonable belief that posed danger, yielded Johnson was armed and brief, because it was investigative evidence, and was not a basis for the further subsequent detention, it did not taint Johnson’s consent to the Langston search. Ga. n. 3 (2010); (2009). St. Fleur v. 852-853 request It follows that Johnson’s consent to the officer’s person correctly valid, search his for narcotics was and the trial court suppress. denied the motion to beyond

2. The evidence was sufficient to show a reasonable guilty charged § doubt that Johnson was offense. OCGA (a); Virginia, 16-13-30 Jackson v. 443 U. S. 307 SC 61 LE2d Judgment Phipps, J., Dillard, J., Mikell, P. concur. affirmed. specially judgment only. J., Smith, J., C. concurs and in the P. judgment only. Barnes, J., McFadden, J., P concur in the dissents. Judge, concurring specially. MIKELL, Chief separately majority I write because I believe both the and the agree dissent have used the incorrect majority of I standard review. with the illegality subsequent initial did not taint agree judgment by search, I consent to majority. with the reached object, my special 1. I Standard Review. as set out in of Georgia concurrence in holding, State v. to the line of decisions Austin,2 reciting, or at least that whenever the evidence the trial “undisputed” appeal court was “uncontroverted,” or the review on stronger special is de novo. Far ammunition than a concurrence a judge appellate Supreme of an court, however, intermediate is our Court’s 2010 appeal decision Miller v. State.3 The standard of review on granting majority certiorari,

was reason for and the 1 assuming questioning activity Even about narcotic was unrelated to supported investigative detention, questioning which the lawful the additional and consensual relating search to narcotics did not constitute a Fourth Amendment violation. The record questioning place during investigative shows that detention, this took Johnson’s otherwise lawful ongoing because, simply “[a] valid seizure is not rendered ‘unreasonable’ course, during questions, answer, its certain unrelated which the detainee is free to decline to posed (2006); Aponte are to him or her.” Salmeron v. SE2d 779-782 671) (2011) (Mikell, J., concurring specially). 821-825 288 Ga. 286 holding opinion’s novo standard our court is that the use of a de opinion paragraph makes the The first of was reversible error. holding crystal Melton, “we find that the As stated Justice clear. by applying Appeals de novo standard of review.”4 erred a

Court of Appeals Why to err in the face of this of continues the Court mystifies controlling precedent me. testimony hearing on the motion

Here, was at the there credibility duty suppress, court’s to make a and it was the trial Although regarding who testified. the officer determination obviously findings made entered, the trial court of fact were written suppress. by denying credibility the motion to determination a clearly of made, erroneous standard such a determination Where review applies.5 colleagues proper any my standard of are in doubt about the

If of glance urge beg appeal, them, I them, I indeed review on majority opinion Judge in Miller.6 Melton’s excellent Division thinking current of a leaves no doubt about the This Division justices. majority Miller, decision, is the latest Because Supreme expression review, standard of it our Court on the rulings by implication in Palmer7 and that Court’s earlier overruled Underwood.8 (a) agree the first officer’s encounter with the dissent that pat-down, defendant, was a second-tier with the “which included stop, wrongly Terry which conflates the encounter.” But the dissent constitutionality pat-down, clearly legal, is more whose and the nearly arguable. Terry, police-citizen “brief second-tier,

A encounter is a suspi- stop[ supported ] investigatory that must be reasonable suspicion,” of whether the officer had “reasonable cion.”9Discussion i.e., or about to be that a crime had been committed was deferring findings to the of the committed, shows the wisdom of our possible judge, bailiwick, with subtle who is familiar with his trial judicial speech circuit, in his or her differences in dialect or habits of by lay jargon officers and with used local law enforcement improbable Spahr, example, highly in that Officer For it is witnesses. his shopping explanation being testimony for at the about Johnson’s 4 Id. 5 rule, review, allowing may apply acknowledge special when the trial that a de novo posit findings practice what would explicit But the better would be to makes no of fact. court support findings required decision on the motion and of fact to the trial court’s be the minimal clearly to review those under a erroneous standard. 6 (2). Supra at 289-290 (2009). Palmer, State v. 285 Ga. 75 Underwood, State v. (Footnote omitted.) Baker, State v.

center 3:00 a.m. while all in used black, dressed the term “probable” in the sense and force with the that the word has for us example, “probable” we discuss, when for cause.10And Officer apparently Terry stops was under the that all illusion include a pat-down.11

(b) Terry stop passes The this case muster under either the Georgia technically speaking, or the States United Constitution. But only latter, we consult here because Johnson did not invoke our state Constitution the trial court. The trial court must have testimony decided that the be varied inferences to drawn from the following a.m.; boiled down to the facts: the time was 3:00 two open shopping grocery center, businesses were in the a store and a personnel reported hiding lurking restaurant; restaurant Johnson or among dumpsters; the restaurant’s and the restaurant had been the robbery. suspected victim of a recent armed The officer must have activity. that Johnson was was or about to be involved in criminal On investigative stop facts, i.e., inferences, those a brief was constitu- tional. facts,

Based on those a not, law, trial court need as a matter of stop Terry justified. legally find that a was A trial court could reach contrary ruling way A a conclusion. either would be authorized the above-listed facts. (c) every investigative, Terry-type stop pat-down. Not includes a specific suspi- does, itWhen the officer must had additional, have cions, and facts, the trial court must found have additional order pat-down pass for law, constitutional muster. Under federal a pat-down part Terry stop permissible only as when it is “supported by a reasonable belief that the was defendant armed and ”12 presently dangerous.

(d) pat-down legal, We need not decide whether the was because pat-down nothing asking had to do with Rankin’s being present give consent, consent, with Johnson’s or with the finding “poisonous If contraband. were tree,” was, the contraband It however, was its “fruit.” the “fruit” of Terry stop preceded pat-down. legal, stop which That 10 unlikely permit solely It is would that we an inference of criminal to be drawn intent testimony Many people prefer clothing from that a citizen was dressed in black.” “all black harboring without intent. criminal 11 Spahr. reports, The Appellate dissent the same makes mistake as did state and federal, many examples Terry stops by accompanied pat-down, include which were not a required particulars Terry stop may the of the be for a valid the same as the required pat-down, circumstances a valid as discussed below. 12 (Punctuation omitted.) (695 656) State, 93, App. (2010), Molina v. Ga. 304 95 SE2d (II) 238) (100 (1979). citing Illinois, 85, 338, Ybarra v. U. 444 S. 92-93 SC 62 LE2d See also Johnson, 323, 781, v. Arizona 555 U. S. 327 172 SC LE2d

143 legal.13 so the consent search was bar, in the case at as well as authoritative

3. The dissent Supreme Supreme precedents from our Court and the United States persuasive opinions from the Eleventh Circuit Court of Court and allegedly by Appeals, whether an unconstitutional act the discuss theory, discovery In all a later of contraband.14 “tainted” original illegal evidence which was discovered later as a result of the by exploiting by police; words, the or, act original illegal other was obtained yet or, words, was “caused” act; other exclusionary original illegal suppressed rule act, should be under the problem Wong with the rule laid down in in Sun v. United States.15One might suppression Wong result in of evidence Sun is that it illegal act, absent the but was which would not have been obtained intervening long or after such acts as would obtained after that act unjust. precedents posit suppression Thus, the seem to make illegal act and evidence obtained later the connection between illegal might “taint” from the act is be so attenuated suppressed. removed, later evidence need not be Elabo so that the promulgated been to decide whether or not the taint rate rules have removed. But confusion can arise when those rules are used has been unnecessarily. analysis, rules

There is no need to use a “taint” or the elaborate illegal a of the later thereunder, when the act was not cause-in-fact obtaining words, In evidence of the evidence. other when the later place, why get poisonous in the first was not the “fruit of the tree” analysis? complicated into a “taint” arguably bar, In evidence was the case at the contraband original search, which resulted from the

obtained via the consent Terry stop Spahr. stop illegal, That was not so of Johnson Officer poisonous tree for the evidence to be the fruit of. there was Pretermitting pat-down legal, whether the was it is irrelevant to our 13 (2) (676 (2009) (“officers State, 849, Compare St. Fleur v. 296 Ga. 853 SE2d (footnote [contraband]”) omitted), exploit discovering the did not as a means for 514) (1988) (“the State, 184, with Brown v. 188 Ga. 187 SE2d consent was act]”). product [unconstitutional of the 14 (II) (A) (105 298, 1285, (1985); Elstad, E.g., Oregon v. 470 U. S. 306 SC 84 LE2d (evidence (3) (592 838) (2004) clearly Poppell, at issue was “fruit State v. 597 SE2d therefore, State, tree”; analysis unnecessary); poisonous of the “taint” was Burnham (evidence (5) (c) (453 449) (1995) confession, 129, 134 issue, product illegal a Ga. (1) “taint”); sufficiently 11-12 arrest and was not attenuated to remove Moore v. (later-obtained 766) (1993) evidence, confession, illegality not “tainted” because violation); process was a technical Miranda violation and not a due Devier 150) (1984) (7) (a) (323 (later-obtained evidence, confession, not obtained 616 exploitation tree”). i.e, illegality, poisonous also United States v. not “fruit of the See (II) (C) (11th Miller, 1987); Thompson, F2d F2d 549-550 Cir. United States v. (III) (11th 1983). 1356, 1361-1362 Cir. U. 9 LE2d S. SC

inquiry. discovery It was not a cause-in-fact of the of the contrab and.16 agree judgment only.

I with the Judge, dissenting.

McFADDEN, majority opinion The takes liberties with the evidence. When the majority Spahr’s testimony finds Officer convenient, it accords his opinion testimony unwarranted deference. When it finds his as to a opinion disregards testimony different inconvenient, it opinion exactly opposite expressed. ascribes to him an of the one he respectfully I therefore dissent. authority pat-down; lacked to conduct the subsequent up drugs

Johnson’s consent to the search that turned freely voluntarily given, was not but rather was tainted illegal pat-down. granted Therefore, the trial court should have suppress, Johnson’s motion to and I would reverse his conviction. Although agree majority applicable I with the begin analysis review, standard is de novo with of the standard of respond Judge special review order to to Chief Mikell’s concur- Normally ruling disputed rence. ibility “a trial court’s on facts and cred- suppression hearing accepted appeal at a must be on unless clearly Palmer, erroneous.” Stale v. 75, 285 Ga. SE2d (2) (658 (2009), (2008). citing Petty State, SE2d dispute where, here, “But as the facts are not in and no findings appellate were made court, trial court owes no ruling deference to the trial court’s and the standard of review is de (1) citing Palmer, novo.” 285 Ga. at Vansant v. 264 Ga. 319 Notwithstanding Judge objection, Chief Mikell’s Palmer man- present may dates de novo review the case. Palmer not be distin- guished testimony. on the basis that the evidence here includes It is Supreme true that our to witness’ n. 5 Court has held that a “trier of fact can choose reject ‘undisputed’ testimony even if that factfinder believes that testimony (3), to be unreliable.” Tate v. arresting Palmer, But in here, Supreme as an officer suppression hearing; testified at the and the Court reversed application our of “a deferential standard of review to the trial court’s findings.” 285 Ga. at 77. See also State v. Underwood, 529) (2008) (“The Appeals applied wrong Court of 16Suppose properly arrested, pursuant a defendant is to a valid arrest warrant. After “booking” being county jail, while escorted to unconstitutionally his cell in the he is deputy later, assaulted Eight sheriff who has no connection with his case. hours an inventory search of the defendant’s car analyzing reveals contraband. Would we waste time whether finding the assault had “tainted” the later of the contraband? judgment. this, In cases such as to the trial court’s standard of review undisputed, suppression motion are relevant to a where the facts proper clearly appeal novo, de not errone- of review on standard ous.”), reversing 338) (2007) (“Based Underwood, 640, 642 v. 285 Ga. State hearing transcript . . . of on our review the findings, support construing we trial court’s as evidence to that say finding clearly appeal, Tate erroneous. we cannot that must on (1)[.]”). State, Judge’s position support in Miller v. for the Chief Nor is there points true, out, he It is as clearly opinion paragraph this court holds that the first of that body opinion applying novo review. But the erred in de had makes holding. equally Justice Melton basis for that clear the “focus[ed] (emphasis order,” court in its found the trial on the facts “overt[ ] including original) trial court’s id. at According credibility to Justice Id. at 288. . . . determination.” repeatedly majority opinion, order the trial court’s Melton’s officer’s] unreliability arresting [the “explicitly of addresses overtly language testimony,” that “is id. and contains credibility concluded, the Thus, Justice Melton determination.” [that] applied clearly “in Id. at case.” erroneous standard of review Contrary Judge Palmer, with Mikell, Miller dovetails to Chief supra, de novo above, Palmer mandates 285 Ga. 75. As detailed findings dispute no were not in review where “the facts are (Emphasis supplied.) I 285 Ga. at 79. made the trial court.” implicitly reject Judge argument Miller Mikell’s therefore Chief App. 640. Palmer and Underwood, 285 Ga. overruled Palmer and distinguishable from Miller. It follows on their facts Underwood are e.g., Boring by implication. See, overrule them that Miller did not (2010) (2) (694 (declining 576, 580-581 implication when the cases case overruled others to find that a were factually distinguishable). trial is contradicted and the

Where, here, as none of the evidence appellate findings fact, the courts face of court makes potentially question the trial court nevertheless difficult whether setting testimony. By expressly out such some of that disbelieved findings credibility determinations, can assure their trial courts they appeal are entitled. on to which will receive the deference fact Spahr question had consti- whether Officer 2. I now turn to the tutionally adequate grounds search. would to conduct the establishing that Officer meet its burden of find that the state did not Spahr reasonably dangerous suspected armed and that Johnson was safety. personal So Officer did or otherwise a threat to pat-down. constitutionally adequate grounds have (1) “There are three levels police-citizen encounters: consen- police-citizen sual communication that involves no coercion deten- (2) tion; brief investigatory that must be stops supported by reason- (3) arrests, suspicion; able which must be supported by probable (Citation omitted.) Baker, State v. 258, cause.” 261 Ga. 259 App. 133) (2003). Johnson, SE2d Officer encounter with Spahr’s which the pat-down, included a second-tier encounter. To be Id. consti- tutional, a second-tier encounter requires suspicion reasonable that v. in State, person engaged the is criminal Chapman stopped activity. (2006). 810) Ga. App. 200, Pat-downs, 279 202 SE2d a subset of encounters, addition, second-tier require, suspicion reasonable that Ohio, presently dangerous. Terry v. suspect the is armed 392 U. S. (III) (88 (1968). 889) 1, 1868, 27 SC 20 LE2d Before places an officer a hand the citizen in person on of a search of he must anything, adequate, have constitutionally If reasonable for an grounds doing so. officer conducts a weapons for justification, without sufficient evidence is discovered inadmissible under the exclusionary rule. Constitutionally adequate, reasonable for a grounds pat-down for or weapons bystander safety officer are present when, facts, on particular based articulable the officer actually suspects that the individual reasonably is armed and dangerous personal is otherwise a threat safety.

(Citations omitted.) State, Santos v. and punctuation 306 Ga. App. (1) (703 140) (2010). 772, 774 A pat-down SE2d is constitutionally under Fourth if permissible Amendment it is “supported by a reasonable belief that defendant was armed presently (Punctuation omitted.) State, Molina v. dangerous. ...” Illinois, 93, citing Ybarra v. (2010), 95 444 U. S. (II) (100 238) (1979). 92-93 85, 338, SC 62 LE2d The state has burden proving pat-down was Molina, lawful. That App. at 95. burden entails proving that reasonably the officer believed suspect to have been “armed or Lewis v. otherwise dangerous.” 595 (1) (692 Meadows v. (2011); 42 Ga. App. Ohio, Terry v. See U. S. at 7. The majority correctly notes that a second-tier encounter is authorized if the officer has reasonable suspicion person stopped is, “that or is be, Cortez, United about criminal States engaged activity.” (II) (A) (101 U. S. SC LE2d See also Ohio, Terry S. matter, 392 U. at 16-19. practical As a reasonable suspicion person engaged activity that a about to be criminal encompasses suspicion person often dangerous. a reasonable that a is armed and Spahr’s testimony

Officer was not sufficient to establish reasonable either that Johnson was armed or otherwise dangerous engage activity. or that he was about to in criminal Spahr particular articulated no facts from which he could reasonably have drawn either inference. Officer testified that pat presence, a.m., he decided to down Johnson because of his at 3:00 parking shopping robbery in the lot of a center at which an armed explained had occurred a few weeks earlier. He

[t]he purpose of that is at the time that conducted the Terry pat-down, scene, I was one of the officers on the just my safety dealing subject and so for with the one-on- night may one in at that time of this situation where it have robbery something been an armed like that about to just my safety pat occur, then I feel for that need to subject any weapons down and make sure he doesn’t have upon person. Hopper, App.

But that is not a sufficient reason. See State 293 Ga. 735) (2008) (“A person’s presence high 220, 222 mere in a give crime area does not activity, rise to reasonable of criminal they if even observe conduct which believe consistent general pattern activity.”). with a of such support testimony,

Unable to find sufficient in the officer’s majority police reports, stipulated turns to the written which were Attempting justify reports, into evidence. majority to reliance on those Arvizu, 266, misreads United States v. 534 U. S. SC correctly quotes holding 744, 151 LE2d It Arvizu ability that de novo review entails consideration of the of trained and experienced might officers draw inferences “that well elude an person.” recognized untrained And it is true that this court has give weight de novo review authorizes us “to due to inferences drawn judges [the historical] from facts law resident and local enforce- (a) (583 Higdon App. ment officers.” 556) (2003) (quoting States, Ornelas v. United 517 S.U. 911) (1996)). majority’s analysis SC 134 LE2d But the exceeds propositions. Supreme the outer limits of those As the United States compatible in Ornelas, Court held de novo review is not with “a policy sweeping deference.” 517 U. S. at 697. And'we have held specific, that the inferences drawn must be articulable and based on Higdon, Supreme fact. at 733. The United States Court persuasively illustrated the sort of inference to which deference is supra, Arvizu, authorized in 534 U. S. 266. quite slowing

We think it reasonable that a down, driver’s acknowledge stiffening posture, sighted and failure to might law enforcement officer well be unremarkable one (such busy highway) quite instance as a San Francisco while (such portion unusual another as a remote of rural Arizona). [The searching officer] southeastern was entitled light to make an assessment of the situation in of his specialized training familiarity with the customs of the area’s inhabitants. Higdon, quoting Id. at 275-276. See also (“To a) layman(, example, panel Ornelas, 517 U. S. at 700 for loose (an) may suggest only

below the back seat armrest in automobile . . . (an (has) experienced officer), tear, wear and roughly but to who searched suggests drugs may 2,000 cars narcotics, it be panel. appeals give weight secreted inside the An court should due finding a trial court’s that the officer was credible and the inference reasonable.”). was majority holding It follows that the errs in that we should defer Spahr’s testimony suspected to Officer “that he another armed robbery possibly simply “experi- about to occur” because of his specialized training.” may ence and We not accord the officer such “sweeping Ornelas, deference.” See 517 U. S. at 697. Spahr testify any

Officer did not about circumstances that he person observed that would cause a reasonable to conclude that an robbery any armed was about to occur or that other crime had connecting occurred or was about to occur. There is no evidence robbery apart Johnson to the earlier or, at the restaurant from the simple possession for which he convicted, has been other criminal conduct.

Relying employee’s on the brief summaries of the restaurant telephone report reports, initial set out in the officers’ written the majority “loitering hiding finding it credible. approach. rejected majority’s Supreme See has the Our Court (“the analysis requires make it to Miller, Ga. at 290 dissent’s 288 court”); by credibility Palmer, trial determinations not made the (because findings dispute were not in “the facts are Ga. at 79 novo”). by is de We of review court, the trial . . . the standard made simply proof of have been satisfied deem the state’s burden to cannot authority invoking by the own disbelieve state’s the trial court’s to witness. Invoking Judge go “subtle even further. Mikell would

Chief “jargon,” speech” he local in of dialect or habits differences proposes possible determination the trial court’s that we defer to did not Spahr plainly If said. this court mean what he Officer that speculation were authorized decide cases on the basis of about meanings plain language, thing hidden there would no such be as principled appellate review. policy writing slate,

If we were makers on a blank we would be adopt policy pat-down free to that would authorize a when a lone questions suspicious-person officer report someone who seems to match a respect morning. dangers

at 3:00 the And for the inherent might policy work lead to do us so. But we are not makers writing countervailing on a blank slate. And there are consider- Supreme Vansant, As ations. our Court reminded us in when it grant us reversed a trial reinstated court’s of a motion to suppress: right carefully guarded, sacred, is

No held more or is more by right every law, the common than the of individual to the possession person, and control of his own free from all others, restraint of interference unless clear and unquestionable authority of law. citing Terry,

Vansant, 264 Ga. at U. S. illegal, question the 3. Since was the relevant becomes subsequent up whether Johnson’s consent to the search that turned drugs voluntarily given product illegal the pat-down. Contrary was and not the of the Judge legality Terry Mikell,

to Chief of the stop issue; is not itself so there is no reason to discuss whether the product Terry stop. consent was also question, As to the relevant proof. the state failed to meet its burden of during illegal did not discover the MDMA pat-down. drugs Officer Rankin found the he when conducted a pursuant question, search to Johnson’s consent. then, The granting primary illegality, “whether, establishment of the objection evidence which instant is made been has come at exploitation illegality sufficiently of that or instead means distin- (Punctuation omitted.) guishable purged primary to be taint.” (2) (582 McKinney v. 261 Ga. “[I]n involuntary order to eliminate taint from an seizure or proof voluntary arrest, there must be both the consent was product illegal (Emphasis it was not the detention.” supplied.) Brown v. Ga. (1988). Simply put, prove must state that Johnson’s voluntary product consent was but also that his consent not the (3) (592 illegal pat-down. Poppell, of the See State Ga. 838) (2004). argues freely voluntarily give Johnson did not he and because officers, consent he was surrounded three one of whom illegal pat-down, already and he was not told that had conducted the words, In Johnson contends that the encounter he could leave. other encounter, into a first-tier and therefore his had not de-escalated voluntary. App. McMichael, See State v. consent was (1) (624 proving [s]tate The has the burden of that the consent was totality freely voluntarily given cir- under the of the police conduct cumstances. The crucial test is whether the person that he would have communicated to a reasonable police presence go liberty ignore about was not at to his business.

(Citations omitted.) punctuation Davis v. (2) (702 185, 188 consensual, the encounter became

To determine whether totality look to the of the circumstances the courts must determining person whether a reasonable would have felt free to leave. A nonexhaustive list of factors that have been making identified courts in this determination includes any prior seizure; the existence and nature of whether there prior expressed endpoint any was a clear and such police presence detention; the character of and conduct — (for example the encounter under review the number they officers, uniformed, whether iso- whether were subjects, physically or directed their lated touched them interrogatories movement, manner of the content or statements, stressed the United and “excesses” factors Court); Supreme geographic, temporal and environ- States encounter; with the and the mental elements associated presence express advice that the citizen- or absence subject request was free to decline the for consent to search. general,

In coercive a full examination must be undertaken of all

aspects police-citizen of the interaction. omitted.) (Citations punctuation McMichael, 737-738. Spahr’s only testimony

The about Johnson’s consent was Officer testimony that, “Officer Rankin asked for consent to search the — subjéct’s reply person subject person was, or the for narcotics. The yes person. search.” he could search his . . . And he consented hearing. testify testified Officer Rankin did not at the objected request. nothing him to the led to believe that Johnson leave, if officers tell Johnson never asked he could nor did just subjected him he was free to leave. Given that Johnson had been illegal pat-down endpoint search; to an that there had been no clear illegal parking detention; Johnson, to that that alone lot at 3:00 a.m., was then encircled three officers, uniformed and armed who question requested him; continued to that another officer then person; another, consent to more intrusive search of his and that the officers did not advise Johnson that he was free to leave or free to consent, decline I conclude that the conduct would not have person liberty simply communicated to a reasonable he that was at ignore go Accordingly, the officers and about his business. would satisfy showing hold that the state did not its burden of that Johnson freely voluntarily consented to the search.

Further, I would hold that Johnson’s consent was tied to the illegal pat-down. making [in “The relevant factors this determina- temporal tion] proximity illegal include the of an seizure and intervening purpose flagrancy consent, circumstances, and the Brown, of the official misconduct.” at 187. Officer Spahr illegal continued his conversation with Johnson after the pat-down, telling never leave, Johnson that he could and the other asking questions arrived, officers the same that Officer had just During questioning, gave asked. this Johnson his consent.

[Tjhere significant lapse was no of time between the unlaw- and] intervening [, ful detention and the consent circum- dissipated stances of effect the unlawful detention. . . . [should] Therefore, we hold that the consent was the product illegal detention, and that the taint of the [pat-down] sufficiently unreasonable was not attenuated. Id. Judge special

Chief Mikell’s asserts, concurrence at Division “any arising dissipated initial taint” out of the “was that,” the fact when he another, asked Johnson to consent to apparently search, more intrusive Officer Rankin “was unaware of pat-down.” Judge’s special goes the initial The Chief concurrence on charge analysis disregards that our causation and therefore unprecedented constitutes an unwarranted and extension of the exclusionary rule. He is mistaken on both counts. Both of his misunderstanding legal mistakes arise from a of the core issue before Judge erroneously analysis us. The Chief confines his to the motives knowledge true, the second officer. It course, relating considerations to officers’ motives and incentives underlie legal much Fourth Amendment law. But the core issue before us is proving whether the state met its burden of “both that the consent [to voluntary search] second, more intrusive and that it was product illegal App. Brown, of the the 188 Ga. detention.” at 187. application analysis of Our that standard has entailed of the relevant contrary Judge’s analysis, causation; chain of but to the Chief through knowledge chain does not run Officer Rankin’s moti- and vations.

Arguing pat-down that the did not taint Johnson’s consent to subsequent majority Langston search, State, the the cites v. 349) (2010)

App. 541, 544, n. 3 SE2d St. Fleur App. 849, Ga. Those cases are not on point. Although pat-downs, significantly both involve both arose — expansion stops. former, different context the of In traffic the Langston’s agreement officer examined license and in- rental quired agreement’s apparent expiration. about the rental In the [argued] latter “St. Fleur search vehicle that the of his was rendered illegal despite drug dog’s dog ‘alert,’ because the sniff and subsequent unjustified pat-down search followed an frisk his (2). person.” App. Fleur, application St. at 852 Neither case sheds light McMichael, on the factors identified App. present Brown, Ga. at Ga. at case. only apparent pat-down Their is that note relevance both that a majority’s search takes argument, a few But if seconds. proves Brevity illegal notwithstanding, it too much. an subsequent search can taint consent an additional search. See Debord v. (2005). granted reasons, For these the trial court should have Johnson’s suppress, respect- motion to reversed, conviction should be and I fully dissent.

Decided December appellant. III,

Marvin Hicks E for Attorney, Porter, Vandever, Daniel J. District A. Assis- Richard Attorney, appellee. tant District

A11A1323. al. VANN FINLEY et Judge. Blackwell, Ryan After Borror an fire Michelle Holt died in electrical County, parents their mobile home Lewis Richmond their sued inspector Augusta Inspection Vann, an electrical with License notes that Johnson had been seen § (setting behind the restaurant.” Cf. OCGA 16-11-36 out the loitering). elements of the misdemeanor of But when the officer approached walking open grocery Johnson, he was toward the store shopping at the other side of the center. above, As detailed Johnson gave explanation presence, the officer an of his and the officer explanation “probable.” testified majority that he found that The reject unambiguous testimony. would the officer’s sworn Instead it summary explanation examines the one-sentence officer’s written of Johnson’s in the in the — report doing “When asked what he was shopping subject center the stated that he lived off of Pinehurst View shopping get phone Court and had come to the center to the number — company.” explanation “improb- a cab and declares that to be 149 suspicion.” “heightened] be a reasonable and to basis able” majority’s is of the evidence unsustainable. The construction may sought principle Having that we defer to the over-extend major- by experienced, officers, trained the inferences drawn certain ity pivots countervailing reasonable-suspicion cites rule that the objective analysis mind. officers’ state of not controlled the is City, Brigham Stuart, S. SC U. See Utah 650) (2006); Ga. Johnson 164 LE2d difficulty applying with that rule here is that The testimony Spahr’s only is evidence in this record Officer the majority report. report written The and Officer Rankin’s written contrary Spahr’s testimony rejects con- and forms his own Officer report. Spahr’s written on the basis of Officer clusion report Spahr’s single is too Officer The relevant sentence weight majority support would to it. attach a reed to slender given fundamentally, especially information this the limited More explanation was that Johnson’s record, the officer’s determination “probable” we should defer. See is the inference to which sort of Higdon, Ornelas, Arvizu, 266; U. S. 729; Ga. see also 517 U. S. unconvincing Judge majority find and the Chief Both explanation explanation conduct, is reflected of his as that Johnson’s agree Spahr’s report. Officer wrote that what Officer explanation. unconvincing. provides details of He does He why “probable.” explain above, notwith- But, as detailed he found it Judge’s standing majority’s misun- determination to the him, and Chief testimony Spahr’s clear he found made it derstand so. it majority judgment not for the substitute its And the would attorney, having prosecuting had who also for but officer’s the opportunity officer, chose not to elicit with to confer testimony explanation or about about Johnson’s additional officer’s reasons

Case Details

Case Name: Johnson v. State

Court Name: Court of Appeals of Georgia

Date Published: Dec 1, 2011

Citation: 313 Ga. App. 137

Docket Number: A11A0941

Court Abbreviation: Ga. Ct. App.