Lead Opinion
Arron Lavell Johnson was found guilty at a bench trial of possession of a schedule II controlled substance (3, 4-methylene-dioxymethamphetamine) in violation of the Georgia Controlled Substances Act. Johnson and the State stipulated to evidence that he was in possession of the controlled substance and agreed to try the case based on the transcript produced at the pre-trial hearing on his motion to suppress evidence of the controlled substance, the Georgia Bureau of Investigation Crime Lab report, and the City of Snellville Police incident report. Johnson’s sole enumeration of error is that the trial court erred by denying his motion to suppress evidence found in a search of his person showing that he was in possession of the controlled substance. For the following reasons, we affirm.
1. The trial court correctly denied Johnson’s motion to suppress and admitted the evidence found in the search.
The State produced evidence that, while police officers detained Johnson to investigate their suspicion of criminal activity, they patted down Johnson for weapons and searched his person pursuant to his consent and found the controlled substance in his possession. Johnson contended in support of his suppression motion that the consent to search was tainted and invalid because it was obtained while he was illegally detained by police for questioning and for the pat-down in violation of the Fourth Amendment protection against unreasonable search and seizure. To the contrary, the evidence shows that the detention and the pat-down were proper and that the search conducted during the detention was pursuant to valid consent.
The relevant facts were undisputed, there were no credibility issues, and the trial court denied the motion to suppress without making findings or giving any explanation. Accordingly, the standard of appellate review is de novo, and we independently review the evidence to determine whether the trial court erred in its application of the law to the undisputed facts. State v. Palmer,
The evidence showed the following: At about 3:00 a.m., Snellville police received a call from a Steak and Shake restaurant, which was open for business at that hour, reporting that the restaurant’s video camera showed that a black male dressed in all black was suspiciously “hanging out” or “hiding” near the restaurant’s dumpster located behind the restaurant. The restaurant employees and the police were aware that an armed robbery had recently occurred at the restaurant. Three police officers were dispatched to the scene. A short distance from the restaurant, one of the officers saw a man, later identified as Johnson, who matched the description of the man seen behind the restaurant. The officer saw Johnson walking away from the restaurant near a Kroger grocery store (the only other store open in the area), called the other two officers on his radio, and then stopped Johnson to question him about what he was doing in the area. The officer approached Johnson, patted him down for weapons, and found none. The officer testified that he was aware of the prior armed robbery at the restaurant, that he suspected another armed robbery was possibly about to occur, and that he conducted the pat-down for his own safety to determine if Johnson was armed. At about the same time, the other two officers arrived where Johnson was stopped. The officers asked Johnson what he was doing in the area at that time of day, and Johnson responded that he was there “to get the phone number of a cab company.” At that point, one of the officers asked Johnson if he had any narcotics on him, which he denied, and asked for consent to search his person for narcotics. Johnson consented to the search, and the officer conducting the search found the controlled substance at issue on Johnson’s person and arrested him.
There is no violation of the Fourth Amendment protection against unreasonable searches and seizures where a police officer stops a person to investigate the officer’s reasonable suspicion “that the person stopped is, or is about to be, engaged in criminal activity.” United States v. Cortez,
Applying these standards, the evidence was sufficient to show that the officers who stopped and questioned Johnson had a basis for a reasonable suspicion that Johnson was, or was about to be, engaged in criminal activity, and had a reasonable belief that he posed a threat to their safety. Johnson matched the description of the man seen by restaurant employees hiding or loitering at 3:00 a.m. behind the restaurant where they worked at which an armed robbery had recently occurred. Given these circumstances, it was reasonable for the officers to suspect that Johnson was about to engage in criminal activity and to stop him to investigate what he was up to. In response to initial questions about why he was there, Johnson responded that he was there “to get the phone number of a cab company.” In light of the report that Johnson was seen loitering or hiding behind the restaurant, this improbable response could only have served to heighten reasonable suspicions that he was about to engage in some type of illegal activity. The fact that one of the officers who stopped Johnson subjectively characterized his explanation for being present there as “probable” was irrelevant to the Fourth Amendment inquiry. “An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify the action. The officer’s subjective motivation is irrelevant.” Brigham City v. Stuart,
2. The evidence was sufficient to show beyond a reasonable doubt that Johnson was guilty of the charged offense. OCGA § 16-13-30 (a); Jackson v. Virginia,
Judgment affirmed.
Notes
Even assuming that questioning about narcotic activity was unrelated to the suspicion which supported the lawful investigative detention, the additional questioning and consensual search relating to narcotics did not constitute a Fourth Amendment violation. The record shows that this questioning took place during Johnson’s otherwise lawful investigative detention, and “[a] valid ongoing seizure is not rendered ‘unreasonable’ simply because, during its course, certain unrelated questions, which the detainee is free to decline to answer, are posed to him or her.” Salmeron v. State,
Concurrence Opinion
concurring specially.
I write separately because I believe both the majority and the dissent have used the incorrect standard of review. I agree with the majority that any initial illegality did not taint the subsequent consent to search, and I agree with the judgment reached by the majority.
1. Standard of Review. I object, as set out in my special concurrence in State v. Austin,
Here, there was testimony at the hearing on the motion to suppress, and it was the trial court’s duty to make a credibility determination regarding the officer who testified. Although no written findings of fact were entered, the trial court obviously made a credibility determination by denying the motion to suppress. Where such a determination is made, a clearly erroneous standard of review applies.
If any of my colleagues are in doubt about the proper standard of review on appeal, I urge them, indeed I beg them, to glance at Division 2 of Judge Melton’s excellent majority opinion in Miller.
2. (a) I agree with the dissent that the first officer’s encounter with the defendant, “which included the pat-down, was a second-tier encounter.” But the dissent wrongly conflates the Terry stop, which was clearly legal, and the pat-down, whose constitutionality is more nearly arguable.
A second-tier, or Terry, police-citizen encounter is a “brief investigatory stop[ ] that must be supported by reasonable suspicion.”
(b) The Terry stop in this case passes muster under either the Georgia or the United States Constitution. But technically speaking, we consult here only the latter, because Johnson did not invoke our state Constitution in the trial court. The trial court must have decided that the varied inferences to be drawn from the testimony boiled down to the following facts: the time was 3:00 a.m.; only two businesses were open in the shopping center, a grocery store and a restaurant; restaurant personnel reported Johnson hiding or lurking among the restaurant’s dumpsters; and the restaurant had been the victim of a recent armed robbery. The officer must have suspected that Johnson was or was about to be involved in criminal activity. On those facts, i.e., inferences, a brief investigative stop was constitutional.
Based on those facts, a trial court need not, as a matter of law, find that a Terry stop was justified. A trial court could legally reach a contrary conclusion. A ruling either way would be authorized by the above-listed facts.
(c) Not every investigative, Terry-type stop includes a pat-down. When it does, the officer must have had additional, specific suspicions, and the trial court must have found additional facts, in order for the pat-down to pass constitutional muster. Under federal law, a pat-down as part of a Terry stop is permissible only when it is “supported by a reasonable belief that the defendant was armed and presently dangerous. ”
(d) We need not decide whether the pat-down was legal, because the pat-down had nothing to do with Officer Rankin’s asking for consent, or with Johnson’s being present to give consent, or with the finding of the contraband. If the pat-down were a “poisonous tree,” the contraband was not its “fruit.” It was, however, the “fruit” of the Terry stop which preceded the pat-down. That stop was legal, and
3. The dissent in the case at bar, as well as authoritative precedents from our Supreme Court and the United States Supreme Court and persuasive opinions from the Eleventh Circuit Court of Appeals, discuss whether an allegedly unconstitutional act by the police “tainted” a later discovery of contraband.
There is no need to use a “taint” analysis, or the elaborate rules thereunder, when the illegal act was not a cause-in-fact of the later obtaining of the evidence. In other words, when the later evidence was not the “fruit of the poisonous tree” in the first place, why get into a complicated “taint” analysis?
4. In the case at bar, the contraband evidence was arguably obtained via the consent search, which resulted from the original Terry stop of Johnson by Officer Spahr. That stop was not illegal, so there was no poisonous tree for the evidence to be the fruit of. Pretermitting whether the pat-down was legal, it is irrelevant to our
I agree with the judgment only.
Id.
I acknowledge that a special rule, allowing de novo review, may apply when the trial court makes no explicit findings of fact. But the better practice would be to posit what would be the minimal findings of fact required to support the trial court’s decision on the motion and to review those under a clearly erroneous standard.
Supra at 289-290 (2).
State v. Palmer,
State v. Underwood,
(Footnote omitted.) State v. Baker,
It is unlikely that we would permit an inference of criminal intent to be drawn solely from testimony that a citizen was dressed “all in black.” Many people prefer black clothing without harboring criminal intent.
The dissent makes the same mistake as did Officer Spahr. Appellate reports, state and federal, include many examples of Terry stops which were not accompanied by a pat-down, and the particulars of the suspicion required for a valid Terry stop may not be the same as the circumstances required for a valid pat-down, as discussed below.
(Punctuation omitted.) Molina v. State,
Compare St. Fleur v. State,
E.g., Oregon v. Elstad,
Suppose a defendant is properly arrested, pursuant to a valid arrest warrant. After “booking” and while being escorted to his cell in the county jail, he is unconstitutionally assaulted by a deputy sheriff who has no connection with his case. Eight hours later, an inventory search of the defendant’s car reveals contraband. Would we waste time analyzing whether the assault had “tainted” the later finding of the contraband?
Dissenting Opinion
dissenting.
The majority opinion takes liberties with the evidence. When the majority finds Officer Spahr’s testimony convenient, it accords his opinion unwarranted deference. When it finds his testimony as to a different opinion inconvenient, it disregards his testimony and ascribes to him an opinion exactly opposite of the one he expressed. I therefore respectfully dissent.
Officer Spahr lacked authority to conduct the pat-down; and Johnson’s consent to the subsequent search that turned up the drugs was not freely and voluntarily given, but rather was tainted by the illegal pat-down. Therefore, the trial court should have granted Johnson’s motion to suppress, and I would reverse his conviction.
1. Although I agree with the majority that the applicable standard is de novo review, I begin with analysis of the standard of review in order to respond to Chief Judge Mikell’s special concurrence. Normally “a trial court’s ruling on disputed facts and credibility at a suppression hearing must be accepted on appeal unless clearly erroneous.” Stale v. Palmer,
Notwithstanding Chief Judge Mikell’s objection, Palmer mandates de novo review in the present case. Palmer may not be distinguished on the basis that the evidence here includes testimony. It is true that our Supreme Court has held that a “trier of fact can choose to reject even ‘undisputed’ testimony if that factfinder believes that witness’ testimony to be unreliable.” Tate v. State,
Nor is there support for the Chief Judge’s position in Miller v. State,
Contrary to Chief Judge Mikell, Miller dovetails with Palmer, supra,
Where, as here, none of the evidence is contradicted and the trial court makes no findings of fact, the appellate courts face the potentially difficult question whether the trial court nevertheless disbelieved some of that testimony. By expressly setting out such credibility determinations, trial courts can assure their findings of fact will receive the deference on appeal to which they are entitled.
2. I now turn to the question whether Officer Spahr had constitutionally adequate grounds to conduct the pat-down search. I would find that the state did not meet its burden of establishing that Officer Spahr reasonably suspected that Johnson was armed and dangerous or otherwise a threat to his personal safety. So Officer Spahr did not have constitutionally adequate grounds for the pat-down.
Before an officer places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. If an officer conducts a pat-down for weapons without sufficient justification, any evidence discovered is inadmissible under the exclusionary rule. Constitutionally adequate, reasonable grounds for a pat-down for weapons for officer or bystander safety are present when, based on particular and articulable facts, the officer actually and reasonably suspects that the individual is armed and dangerous or is otherwise a threat to personal safety.
(Citations and punctuation omitted.) Santos v. State,
The state has the burden of proving that the pat-down was lawful. Molina,
Officer Spahr articulated no particular facts from which he could have reasonably drawn either inference. Officer Spahr testified that he decided to pat down Johnson because of his presence, at 3:00 a.m., in the parking lot of a shopping center at which an armed robbery had occurred a few weeks earlier. He explained that
[t]he purpose of that is at the time that I conducted the Terry pat-down, I was one of the only officers on the scene, and so just for my safety dealing with the subject one-on-one at that time of night in this situation where it may have been an armed robbery or something like that about to occur, then I just feel that for my safety I need to pat the subject down and make sure he doesn’t have any weapons upon his person.
But that is not a sufficient reason. See State v. Hopper,
Unable to find sufficient support in the officer’s testimony, the majority turns to the written police reports, which were stipulated into evidence. Attempting to justify reliance on those reports, the majority misreads United States v. Arvizu,
*148 We think it quite reasonable that a driver’s slowing down, stiffening of posture, and failure to acknowledge a sighted law enforcement officer might well be unremarkable in one instance (such as a busy San Francisco highway) while quite unusual in another (such as a remote portion of rural southeastern Arizona). [The searching officer] was entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the area’s inhabitants.
Id. at 275-276. See also Higdon,
It follows that the majority errs in holding that we should defer to Officer Spahr’s testimony “that he suspected another armed robbery was possibly about to occur” simply because of his “experience and specialized training.” We may not accord the officer such “sweeping deference.” See Ornelas,
Officer Spahr did not testify about any circumstances that he observed that would cause a reasonable person to conclude that an armed robbery was about to occur or that any other crime had occurred or was about to occur. There is no evidence connecting Johnson to the earlier robbery at the restaurant or, apart from the simple possession for which he has been convicted, to any other criminal conduct.
Relying on the brief summaries of the restaurant employee’s initial telephone report set out in the officers’ written reports, the majority notes that Johnson had been seen “loitering or hiding behind the restaurant.” Cf. OCGA § 16-11-36 (setting out the elements of the misdemeanor of loitering). But when the officer approached Johnson, he was walking toward the open grocery store at the other side of the shopping center. As detailed above, Johnson gave the officer an explanation of his presence, and the officer testified that he found that explanation “probable.” The majority would reject the officer’s unambiguous sworn testimony. Instead it examines the one-sentence summary of Johnson’s explanation in the officer’s written report — “When asked what he was doing in the shopping center the subject stated that he lived off of Pinehurst View Court and had come to the shopping center to get the phone number of a cab company.” — and declares that explanation to be “improb
The majority’s construction of the evidence is unsustainable. Having sought to over-extend the principle that we may defer to certain inferences drawn by experienced, trained officers, the majority pivots and cites the countervailing rule that reasonable-suspicion analysis is objective and not controlled by the officers’ state of mind. See Brigham City, Utah v. Stuart,
The single relevant sentence in Officer Spahr’s report is too slender a reed to support the weight the majority would attach to it. More fundamentally, especially given the limited information in this record, the officer’s determination that Johnson’s explanation was “probable” is the sort of inference to which we should defer. See Higdon,
Both the majority and the Chief Judge find unconvincing Johnson’s explanation of his conduct, as that explanation is reflected in Officer Spahr’s report. I agree that what Officer Spahr wrote is unconvincing. He provides no details of the explanation. He does not explain why he found it “probable.” But, as detailed above, notwithstanding the majority’s and Chief Judge’s determination to misunderstand him, Officer Spahr’s testimony made it clear that he found it so.
And the majority would substitute its judgment not only for the officer’s but also for that of the prosecuting attorney, who having had the opportunity to confer with the officer, chose not to elicit additional testimony about Johnson’s explanation or about the officer’s reasons for finding it credible.
Our Supreme Court has rejected the majority’s approach. See Miller,
Chief Judge Mikell would go even further. Invoking “subtle differences in dialect or habits of speech” and local “jargon,” he proposes that we defer to the trial court’s possible determination that Officer Spahr did not mean what he plainly said. If this court
If we were policy makers writing on a blank slate, we would be free to adopt a policy that would authorize a pat-down when a lone officer questions someone who seems to match a suspicious-person report at 3:00 in the morning. And respect for the dangers inherent in police work might lead us to do so. But we are not policy makers writing on a blank slate. And there are countervailing considerations. As our Supreme Court reminded us in Vansant, when it reversed us and reinstated a trial court’s grant of a motion to suppress:
No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.
Vansant,
3. Since the pat-down was illegal, the relevant question becomes whether Johnson’s consent to the subsequent search that turned up the drugs was voluntarily given and not the product of the illegal pat-down. Contrary to Chief Judge Mikell, the legality of the Terry stop itself is not at issue; so there is no reason to discuss whether the consent was also a product of the Terry stop. As to the relevant question, the state failed to meet its burden of proof.
Officer Spahr did not discover the MDMA during the illegal pat-down. Officer Rankin found the drugs when he conducted a search pursuant to Johnson’s consent. The question, then, is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” (Punctuation omitted.) McKinney v. State,
Johnson argues that he did not freely and voluntarily give his consent because he was surrounded by three officers, one of whom
The [s]tate has the burden of proving that the consent was freely and voluntarily given under the totality of the circumstances. The crucial test is whether the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.
(Citations and punctuation omitted.) Davis v. State,
To determine whether the encounter became consensual, the courts must look to the totality of the circumstances in determining whether a reasonable person would have felt free to leave. A nonexhaustive list of factors that have been identified by courts in making this determination includes the existence and nature of any prior seizure; whether there was a clear and expressed endpoint to any such prior detention; the character of police presence and conduct in the encounter under review (for example — the number of officers, whether they were uniformed, whether police isolated subjects, physically touched them or directed their movement, the content or manner of interrogatories or statements, and “excesses” factors stressed by the United States Supreme Court); geographic, temporal and environmental elements associated with the encounter; and the presence or absence of express advice that the citizen-subject was free to decline the request for consent to search. In general, a full examination must be undertaken of all coercive aspects of the police-citizen interaction.
(Citations and punctuation omitted.) McMichael,
The only testimony about Johnson’s consent was Officer Spahr’s testimony that, “Officer Rankin asked for consent to search the person — or the subject person for narcotics. The subjéct’s reply was, yes he could search his person. . . . And he consented to the search.” Officer Rankin did not testify at the hearing. Officer Spahr testified that nothing led him to believe that Johnson objected to the request. Johnson never asked if he could leave, nor did any of the officers tell
Further, I would hold that Johnson’s consent was tied to the illegal pat-down. “The relevant factors [in making this determination] include the temporal proximity of an illegal seizure and consent, intervening circumstances, and the purpose and flagrancy of the official misconduct.” Brown,
[Tjhere was no significant lapse of time between the unlawful detention and the consent [, and] no intervening circumstances dissipated the effect of the unlawful detention. . . . Therefore, we [should] hold that the consent was the product of the illegal detention, and that the taint of the unreasonable [pat-down] was not sufficiently attenuated.
Id.
Chief Judge Mikell’s special concurrence asserts, at Division 2, that “any initial taint” arising out of the pat-down “was dissipated by the fact that,” when he asked Johnson to consent to another, more intrusive search, Officer Rankin “was apparently unaware of the initial pat-down.” The Chief Judge’s special concurrence goes on to charge that our analysis disregards causation and therefore constitutes an unwarranted and unprecedented extension of the exclusionary rule. He is mistaken on both counts. Both of his mistakes arise from a misunderstanding of the core legal issue before us. The Chief Judge erroneously confines his analysis to the motives and knowledge of the second officer. It is true, of course, that considerations relating to officers’ motives and incentives underlie much Fourth Amendment law. But the core legal issue before us is whether the state met its burden of proving “both that the consent [to the second, more intrusive search] was voluntary and that it was
Arguing that the pat-down did not taint Johnson’s consent to the subsequent search, the majority cites Langston v. State,
For these reasons, the trial court should have granted Johnson’s motion to suppress, his conviction should be reversed, and I respectfully dissent.