Following a jury trial, Micah Andre McKinney was convicted of possession of marijuana with the intent to distribute
Viewed in favor of the verdict,
After confirming that McKinney did not have any weapons, Officer Tate approached the car, obtained Manghane’s identification, and asked Manghane about their reason for being in the area. Manghane, who seemed nervous and evasive, stated that he and
Based on the men’s inconsistent stories, Officer Tate believed they were being deceitful, and he asked McKinney if he had anything illegal in the vehicle. McKinney replied that he did not, offered to allow the officer to search the trunk, and eventually agreed to allow the officer to search the vehicle. When Officer Tate asked McKinney to sign the consent form for the search, McKinney withdrew his consent after Manghane advised him that he did not have to allow the search.
Officer Tate then asked Officer Pullen, who was already on the scene, to retrieve his K-9 dog. The dog performed a free-air sniff around the vehicle, and alerted twice, once on the driver’s side and once on the passenger’s side of the car. Police then searched the car and found three-quarters of a pound of marijuana on the backseat floorboard behind the driver’s seat. The marijuana was packaged in seven small baggies, which were contained in a Ziploc bag, which was contained in a large, white, plastic bag; the officer who searched the car could smell the odor of raw marijuana inside the car when he manipulated the bag.
Manghane, who was also charged, entered a guilty plea prior to trial. At the conclusion of the evidence, the jury found McKinney guilty of possession of more than one ounce of marijuana and possessing marijuana with the intent to distribute. McKinney appeals the denial of his subsequent motion for new trial.
1. McKinney argues that the trial court erred by denying his motion to suppress. We disagree.
There are three principles we apply when reviewing a trial court’s ruling on a motion to suppress:
First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.5
The United States Supreme Court recently explained the standard for reviewing a finding of probable cause based on a drug-detection dog’s alert:
The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure. And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence.... The question — similar to every inquiry into probable cause — is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test.6
Here, the dog’s handler, Officer Pullen, testified that he and his dog, Simba, which he had for four years, were trained and certified
Officer Pullen testified that he walked Simba around the vehicle, and while he was near the driver’s side door, Simba indicated that he was “working odor” by raising his head and wagging his tail. Officer Pullen walked Simba back around the car, and Simba sat down on the driver’s side, indicating a final alert. Officer Pullen then walked him to the passenger’s side, where Simba again indicated he was working odor and then attempted to indicate an alert by sitting, but was unable to complete the alert because he had to relieve himself.
Whether Simba in fact alerted on the car was a question of fact for the trial court, which we must accept unless clearly erroneous. Officer Pullen’s testimony regarding his experience with Simba and his observations and conclusions regarding the dog’s behavior was sufficient to support the conclusion that he alerted on the car. Moreover, “[i]n reviewing the trial court’s denial of [McKinney’s] motion to suppress, we consider whether the totality of the circumstances, and not merely the drug dog’s alert, supports a finding of probable cause.”
2. McKinney contends that the trial court erred by hearing the motion to suppress during the trial because it deprived him of his Fourth Amendment right to testify at the suppression hearing in order to protect his Fifth Amendment right to remain silent at trial. We find no basis for reversal.
McKinney filed his motion to suppress on Friday, October 28, 2011, two business days before the November 2, 2011 trial. Immediately before trial, counsel advised the court that McKinney had filed a motion to suppress, and the court indicated that it would hear the motion during the course of the trial. Trial counsel responded, “Okay, I’ll do it at that stage.” Trial counsel did not advise the court at that time that McKinney wished to testify at the suppression hearing, nor did counsel do so before the trial court ruled on the motion to suppress.
“[T]he trial court has a broad discretion in regulating and controlling the business of the court, and the appellate court should never interfere with its exercise unless it is made to appear that wrong or oppression results from its abuse, or the court in some manner takes away rights the parties have under the law.”
3. Finally, McKinney contends that trial counsel was ineffective by failing to object to the trial court’s decision to conduct the motion to suppress in the presence of the jury.
To establish ineffective assistance of counsel under Strickland v. Washington, [12 ] [McKinney] must prove (1) that [his] trial counsel’s performance was deficient, and (2) that counsel’s deficiency so prejudiced [his] defense that a reasonable probability exists that the result would have been different but for the deficiency. The trial judge, who oversaw the trial and heard the evidence presented at the hearing on the motion for new trial, makes the findings on whether the performance was deficient and whether it prejudiced the defendant, findings that this Court does not disturb unless clearly erroneous. Additionally, a court is not required to address the performance portion of the inquiry before the prejudice component or even to address both components if the defendant has made an insufficient showing on one.13
In this case, it was within the trial court’s discretion to conduct the motion to suppress hearing during the trial, and McKinney has not demonstrated that testifying at the suppression hearing outside the presence of the jury would have changed the outcome of the trial. Furthermore, given Manghane’s testimony at trial that he helped McKinney locate a drug dealer and purchased $900 worth of marijuana at McKinney’s request, McKinney has failed to demonstrate that a reasonable probability exists that the outcome of the trial would have been different but for trial counsel’s purported deficiency. Because McKinney has failed to establish prejudice, we find no error in the trial court’s denial of the motion for new trial on the basis of ineffective assistance of counsel.
Judgment affirmed.
Notes
OCGA § 16-13-30 (j) (1).
OCGA § 16-13-30 (j) (1).
See Jackson v. Virginia,
Miranda v. Arizona,
(Punctuation omitted.) Brown v. State,
Florida v. Harris,_U. S._,_(II) (
According to Officer Pullen, Simba was experiencing stomach distress and had relieved himself in the back of the patrol car immediately prior to the search.
Dawson v. State,
See id.
(Punctuation omitted.) Christopher v. State,
See Weaver v. State,
(Punctuation and footnotes omitted.) Simons v. State,
See, e.g., Mason v. State,