Felton v. State

745 S.E.2d 832, 322 Ga. App. 630, 2013 Fulton County D. Rep. 2391, 2013 WL 3336658, 2013 Ga. App. LEXIS 575
CourtCourt of Appeals of Georgia
DecidedJuly 3, 2013
DocketA13A0244
StatusPublished

This text of 745 S.E.2d 832 (Felton v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Felton v. State, 745 S.E.2d 832, 322 Ga. App. 630, 2013 Fulton County D. Rep. 2391, 2013 WL 3336658, 2013 Ga. App. LEXIS 575 (Ga. Ct. App. 2013).

Opinions

ANDREWS, Presiding Judge.

Jermoris Felton appeals his conviction for possession of marijuana. He contends the trial court erred by denying his motion to suppress evidence seized from his person in violation of his right to be free from unreasonable search and seizure. We agree and reverse his conviction.

1. Felton’s sole enumeration of error alleges that the trial court erred by denying his motion to suppress. He contends that the facts of this case do not support a brief investigative stop, the pat-down was unwarranted, and the removal of the item from his pocket exceeded the officer’s authority. When reviewing a trial court’s decision on a motion to suppress, an appellate court’s

responsibility is to ensure that there was a substantial basis for the decision. We are guided by three principles when interpreting the trial court’s determination of the facts. When considering such a motion the trial court is the trier of facts. The court hears the evidence, and when its findings [631]*631are based upon conflicting evidence, they are analogous to a jury verdict and must not be disturbed by an appellate court if any evidence supports them. Also, the trial court’s decisions regarding questions of fact and credibility of witnesses must be accepted unless they are clearly erroneous, and the evidence must be construed most favorably toward upholding the trial court’s findings and judgment. Additionally, when the evidence is uncontroverted and no question about a witness’s credibility exists, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citation and punctuation omitted.) Hobbs v. State, 272 Ga. App. 148 (1) (611 SE2d 775) (2005). To the extent this issue concerns mixed questions of fact and law, we will accept the trial court’s findings on disputed facts and witness credibility unless they are clearly erroneous, but independently apply the law to the facts. Morrow v. State, 272 Ga. 691, 693 (1) (532 SE2d 78) (2000). “Further, in reviewing the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial.” Whitehead v. State, 258 Ga. App. 271, 273 (1) (574 SE2d 351) (2002). As the evidence is uncontroverted and no question about witness credibility is present, the trial court’s ruling on Felton’s motion to suppress is subject to de novo appellate review.

Viewed in this manner, the evidence shows that a police officer responded to a dispatch based upon a 911 call from a concerned citizen about a violent, verbal dispute between a man and a woman in a white car parked in a convenience store parking lot. He was dispatched to investigate “a domestic disturbance in progress.” When the officer arrived at the location, however, he found a white car stopped in the turn lane of the roadway with a woman behind the steering wheel. A man, later identified as Felton, was walking near the car toward the convenience store. The officer directed the woman to drive the car into the store’s parking lot, and motioned to Felton to come to the police car so the officer could talk to him about what was going on. Felton did not immediately comply with the officer’s request, but ultimately did so. The officer was investigating a domestic disturbance in progress, but he did not see Felton commit any crime.

About this time, a second officer arrived on the scene, and the first officer directed Felton to talk to the second officer. The first officer then spoke with the woman in the car, who was crying. The officers did not have a clue what was going on. The first officer then spoke with the concerned citizen who told him she was pumping gas [632]*632when she heard the two in a “heated argument verbally”; she said it was so volatile she decided to call 911.

The second officer spoke with Felton who told him that he and his girlfriend had been arguing. Felton kept putting his hand in his coat pocket. The officer repeatedly ordered Felton to remove his hand from his coat pocket and noted that Felton was becoming increasingly nervous. Felton was very hesitant to answer any of the questions he was asked; he was very hesitant and fidgety. At first, Felton did not take his hands out of his pockets even though he was directed to do so, but he ultimately did so. From the officer’s experience, people who are hesitant to remove their hands from their pockets might be hiding something. As a result of his concern that Felton might be hiding something in his pockets, the officer asked Felton if he could pat him down for “any weapons or illegal items” and when Felton did not respond, he patted down Felton. Felton had not been aggressive before this, and his demeanor was quiet. The officer stated it was a Terry frisk.

The officer felt a large item in Felton’s right front pocket. The officer asked Felton what the item was, and Felton responded he did not know. The officer then asked Felton if he could remove the item, and Felton answered, “I don’t care.” The officer removed the item from Felton’s pocket and found a purple Crown Royal cloth bag. The officer testified that as soon as he pulled it out, he noticed the “strong, distinct odor” of marijuana. Felton tried to walk away, but was detained by the officer.

At the conclusion of the hearing, the trial court denied the motion to suppress. The trial court found that the officers’ detention of Felton was authorized because the officers were attempting to ascertain what was going on. In regard to the pat-down, the trial court concluded that if officers had “a right to detain temporarily, then they have a right to pat down to protect themselves.” Based upon this conclusion, the court found that the pat-down was authorized.

Later, upon Felton’s motion for the trial court to reconsider this ruling, the trial court issued a written order denying the motion. The trial court found that the 911 call gave the officers “reasonable, articulable suspicion and a particularized and objective basis for suspecting [Felton] was, or was about to be, engaged in criminal activity.” Thus, the court found that Felton’s brief detainment was a second tier Terry stop.

Addressing Felton’s allegation that the search and removal of the bag from Felton’s pocket was unauthorized, the trial court found that a Terry pat-down permits an officer to look for weapons only, and the officer is not authorized to search for or remove anything other than weapons. During the pat-down, the officer felt a large soft item [633]*633in Felton’s pocket. When the officer requested permission to remove the item, Felton’s response of “I don’t care” consented to the officer’s removal of the object. The trial court denied the motion for reconsideration. After Felton was convicted of possession of marijuana, this appeal followed.

2. Felton argues that the facts of this case do not support a Terry stop because there was no evidence Felton was engaged in or about to engage in criminal activity. A Terry stop is a “brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, [and] may be most reasonable in light of the facts known to the officer at the time. [Cits.]” Stiggers v. State, 151 Ga. App. 546, 547 (260 SE2d 413) (1979).

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Related

Terry v. Ohio
392 U.S. 1 (Supreme Court, 1968)
Sibron v. New York
392 U.S. 40 (Supreme Court, 1968)
United States v. Cortez
449 U.S. 411 (Supreme Court, 1981)
State v. White
398 S.E.2d 778 (Court of Appeals of Georgia, 1990)
Black v. State
635 S.E.2d 568 (Court of Appeals of Georgia, 2006)
Clare v. State
217 S.E.2d 638 (Court of Appeals of Georgia, 1975)
Whitehead v. State
574 S.E.2d 351 (Court of Appeals of Georgia, 2002)
Vansant v. State
443 S.E.2d 474 (Supreme Court of Georgia, 1994)
Postell v. State of Ga.
443 S.E.2d 628 (Supreme Court of Georgia, 1994)
Stiggers v. State
260 S.E.2d 413 (Court of Appeals of Georgia, 1979)
Hobbs v. State
611 S.E.2d 775 (Court of Appeals of Georgia, 2005)
Morrow v. State
532 S.E.2d 78 (Supreme Court of Georgia, 2000)
Molina v. State
695 S.E.2d 656 (Court of Appeals of Georgia, 2010)
State v. Kipple
669 S.E.2d 185 (Court of Appeals of Georgia, 2008)
Ramsey v. State
703 S.E.2d 339 (Court of Appeals of Georgia, 2010)

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Bluebook (online)
745 S.E.2d 832, 322 Ga. App. 630, 2013 Fulton County D. Rep. 2391, 2013 WL 3336658, 2013 Ga. App. LEXIS 575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/felton-v-state-gactapp-2013.