Fritzius v. State

484 S.E.2d 743, 225 Ga. App. 642, 97 Fulton County D. Rep. 1703, 1997 Ga. App. LEXIS 464
CourtCourt of Appeals of Georgia
DecidedMarch 21, 1997
DocketA96A1667
StatusPublished
Cited by22 cases

This text of 484 S.E.2d 743 (Fritzius 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
Fritzius v. State, 484 S.E.2d 743, 225 Ga. App. 642, 97 Fulton County D. Rep. 1703, 1997 Ga. App. LEXIS 464 (Ga. Ct. App. 1997).

Opinions

Birdsong, Presiding Judge.

After a stipulated bench trial, Fritzius was convicted on one count of possession of methamphetamine, a Schedule II controlled substance (OCGA §§ 16-13-26 (3) (B); 16-13-30 (a)), and one count of possession of a firearm during the commission of a crime (OCGA § 16-11-106 (b) (4)). He appeals from the denial of his motion to suppress evidence seized in what he contends was an illegal search, violative of the Fourth Amendment to the United States Constitution and of Art. I, Sec. I, Par. XIII of the Constitution of the State of Georgia. He makes no independent argument on the state constitutional [643]*643grounds, so we do not address that issue. Null v. State, 216 Ga. App. 641, 642 (455 SE2d 359).

Officer Beveridge, in uniform and accompanied by his drug detection dog, was preparing to participate with a police narcotics unit in executing a search warrant on a mobile home occupied by Henry Fallaw. Another officer who was conducting surveillance of the mobile home saw two men leave it, enter a vehicle and drive off. Officer Beveridge was asked merely to identify the occupants of the vehicle to see if one was Fallaw. While the search was conducted, the officer stopped the car approximately two miles away.

He requested the driver’s license and proof of insurance, which the driver said he did not have because he had lost his wallet. The driver, who actually was Henry Fallaw, also said he believed he did have a valid license and gave the officer the name and birth date of his brother William. Beveridge noticed Fallaw was nervous and asked if he had any illegal weapons or drugs on his person. Fallaw first said no, then admitted he had two marijuana cigarettes in his back pocket. Beveridge took those and placed Fallaw under arrest.

Passenger Fritzius exited the vehicle at Beveridge’s direction. He told the officer he had no illegal drugs or weapons on his person and consented to a search, which produced nothing. The car was registered to Fritzius, and he refused the officer’s request for consent to search its interior. The officer brought the drug detection dog from his car and directed him to do an odor search of the car’s exterior. The dog alerted to the vehicle’s door, and a small plastic bag containing methamphetamine was found under the floor mat on the passenger’s side where Fritzius had been sitting. A revolver was found under Fritzius’ seat.

Fritzius contends the vehicle stop was invalid because it was not supported by reasonable, articulable suspicion as required under Terry v. Ohio, 392 U. S. 1, 23 (88 SC 1868, 20 LE2d 889). He does not complain independently of Beveridge’s actions after the stop. Our analysis commences according to the following guide, derived from pronouncements of the United States Supreme Court. “ ‘Momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken t< ¿ ether with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment. An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. (Cit.)’ [Cit.]” State v. McFarland, 201 Ga. App. 495, 496 (411 SE2d 314). A Terry stop “ ‘must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal [644]*644conduct. [Cits.]’ ” TarwidL v. State, 184 Ga. App. 853, 854 (1) (363 SE2d 63).

Fritzius does not dispute that the search warrant for the mobile home was based upon probable cause to believe drug activity took place there. The warrant was about to be executed when the vehicle and its occupants left. Fritzius contends Beveridge had no suspicion the vehicle’s occupants were engaged in drug activity but only stopped the car to identify the occupants. Beveridge testified he stopped the vehicle because it had just left the mobile home and another officer asked him to find out if Fallaw, who was named in the warrant, was in the car. Additionally, the record reveals a certain stipulation of facts which purports on its face to contain matters beyond that already in evidence. Held:

When a person is leaving a premises which is about to be searched pursuant to a warrant, a brief, momentary detention by law enforcement personnel is permitted when supported by articulable suspicion or probable cause. Michigan v. Summers, 452 U. S. 692, 699- 700 (101 SC 2587, 69 LE2d 340). In Summers, a warrant had been obtained to search a house for narcotics. As the officers approached the house, they encountered owner Summers descending the front steps. They asked for his assistance in gaining entry and detained him while they searched the premises. In deciding the detention was supported by articulable suspicion, the Court examined both the character of the intrusion on Summers’ liberty and personal security, and the justification for the intrusion. Id. at 700- 701. As to the character, the Court noted that the detention was less intrusive than the search pursuant to the warrant, and that the fact that the detention occurred at the residence “add[ed] only minimally to the public stigma associated with the search itself.” Id. at 701- 702. As to the justification for detention, the Court noted the interest in preventing flight if any contraband was found, the interest in reducing the risk of harm to officers involved in the search, and the interest in facilitating the search by the resident’s presence. Id. at 702-703. It also noted that a magistrate had found there was probable cause to believe someone in the residence was committing a crime, providing another “objective justification for the detention.” Id. at 703.

“On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. [Cit.]” Burse v. State, 209 Ga. App. 276 (433 SE2d 386). The Court found as fact, inter alia, that the vehicle was stopped because the police expected one occupant to be the resident of the search premises. The record does not reveal that this finding of fact is clearly erroneous within the meaning of [645]*645Burse, supra.

It is a well-established appellate rule that on appeal the evidence must be viewed in the light most favorable to support the verdict. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737). Thus, in determining whether the State met its burden of proof that the search and resulting seizure were legal, this Court must view the evidence of record in accordance with the dictates of Grant, supra. In determining the legality of a search, this Court can consider all evidence of record, including that found in pretrial, trial and post-trial proceedings. Bonds v. State, 188 Ga. App. 135 (372 SE2d 448); accord Underwood v. State, 218 Ga. App. 530 (1) (462 SE2d 434).

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Fritzius v. State
484 S.E.2d 743 (Court of Appeals of Georgia, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
484 S.E.2d 743, 225 Ga. App. 642, 97 Fulton County D. Rep. 1703, 1997 Ga. App. LEXIS 464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fritzius-v-state-gactapp-1997.