Seaman v. State, A94A1684

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A94A1684 | Ga. Ct. App. | Oct 5, 1994

Smith, Judge.

Lewis Seaman entered a conditional plea of nolo contendere tc possession of less than an ounce of marijuana after his motion to sup press the contraband was denied. He reserved the right to appeal th< denial of his motion to suppress pursuant to Mims v. State, 201 Ga App. 277, 278-279 (1) (410 S.E.2d 824" court="Ga. Ct. App." date_filed="1991-09-23" href="https://app.midpage.ai/document/mims-v-state-1388214?utm_source=webapp" opinion_id="1388214">410 SE2d 824) (1991).1

The evidence introduced at the hearing on the motion to sup press showed that law enforcement officers executed an arrest warran for Keith Parr at his home in Clayton County. Detective Sergean Steven Kenneth Rose, Jr., of the Fayette County Sheriff’s Depart ment was assigned to the Fayette County Narcotics Suppression Tasl Force. He testified he came to Clayton County, along with seven o eight other officers, to assist in the execution of the warrant. As hi approached the. house, he heard other officers shouting for someone t< stop. One individual was taken into custody outside the house. How ever, Rose was told the officers believed someone had run into th house. Based on that information, he decided to enter the residence

He and another officer knocked on a glass door, and Parr’s wif let them into the house. They proceeded through the house, lookin for the person who had fled. The other officer found Seaman in an other room. Rose then conducted a patdown of Seaman, looking fo weapons. During the patdown, Rose detected a plastic baggie in th *879pocket of Seaman’s shorts and observed several inches of clear plastic baggie exposed. Rose testified that he knew it was a plastic baggie when he felt it and that he believed it contained contraband. Rose removed the baggie, which contained a green, leafy material later proved to contain marijuana.

Seaman appears to base his contention that the evidence should have been suppressed on two grounds. We do not agree with either contention.

1. First, citing Baez v. State, 206 Ga. App. 522" court="Ga. Ct. App." date_filed="1992-10-28" href="https://app.midpage.ai/document/baez-v-state-1277835?utm_source=webapp" opinion_id="1277835">206 Ga. App. 522 (425 SE2d 885) (1992), Seaman argues the State failed to meet its burden of proving the search of Seaman and seizure of the contraband were lawful, because the State did not produce at the hearing the arrest warrant for Parr.

However, Baez is distinguished on its facts. There, the accused specifically challenged the validity of the warrant, which the State failed to produce. Baez, supra at 527. In a motion to suppress, an accused must place the State on notice of the issue to be raised at the hearing on the motion, State v. Armstrong, 203 Ga. App. 159" court="Ga. Ct. App." date_filed="1992-03-03" href="https://app.midpage.ai/document/state-v-armstrong-1270025?utm_source=webapp" opinion_id="1270025">203 Ga. App. 159, 160 (1) (416 S.E.2d 537" court="Ga. Ct. App." date_filed="1992-03-03" href="https://app.midpage.ai/document/state-v-armstrong-1270025?utm_source=webapp" opinion_id="1270025">416 SE2d 537) (1992), and the burden is on the State to produce the warrant only when its validity is challenged. Neither in his motion nor at the hearing did Seaman challenge the validity of the arrest warrant. Moreover, in his motion he admitted the existence of the warrant. The State was not required to produce the warrant under these circumstances.

2. Second, Seaman argues that Rose’s search of his person exceeded the permissible scope of a Terry patdown. In support of this argument, Seaman cites Minnesota v. Dickerson, 508 U. S._(113 SC 2130, 124 LE2d 334) (1993).

In Dickerson, the Supreme Court approved the “plain feel” or “plain touch” corollary to the “plain view” doctrine, holding that if contraband is identified through an officer’s sense of touch in the course of a lawful Terry patdown, it may be seized. 124 LE2d at 345-347. Applying that principle to the facts in Dickerson, however, the Supreme Court found that the officer had overstepped the bounds of a Terry patdown by squeezing, sliding, and manipulating the object in the suspect’s pocket before identifying it, even after determining that the pocket contained no weapon. Id. at 347 (III).

The facts in this case are different. The patdown was properly performed to determine whether Seaman was armed. Rose, who had more than nine years’ experience as a police officer and over four years’ experience working as a narcotics officer, believed the object in Seaman’s pocket was a clear plastic baggie containing contraband upon initially feeling it in Seaman’s pocket, and he then visually observed a portion of the baggie protruding from the pocket. No evidence was presented indicating that Rose manipulated the object in *880Seaman’s pocket in any way before identifying it. We agree with the trial court that under these circumstances, the “plain feel” principle approved in Dickerson applies. The trial court properly denied Seaman’s motion to suppress.

Decided October 5, 1994 Reconsideration denied October 19, 1994. Lee Sexton, for appellant. Keith C. Martin, Solicitor, Michael P. Baird, Assistant Solicitor, for appellee.

Judgment affirmed.

Pope, C. J., and McMurray, P. J., concur.

This procedure was still permissible on February 16, 1994, the date the plea was ei] tered, but has since been disapproved. Hooten v. State, 212 Ga. App. 770" court="Ga. Ct. App." date_filed="1994-03-15" href="https://app.midpage.ai/document/hooten-v-state-1378206?utm_source=webapp" opinion_id="1378206">212 Ga. App. 770, 775 (1) (442 SE2 836) (1994). See Jackson v. State, 214 Ga. App. 726 (448 SE2d 761) (1994).