Kelley v. State

740 S.E.2d 201, 320 Ga. App. 462, 2013 Fulton County D. Rep. 833, 2013 WL 1092832, 2013 Ga. App. LEXIS 215
CourtCourt of Appeals of Georgia
DecidedMarch 18, 2013
DocketA12A2159
StatusPublished

This text of 740 S.E.2d 201 (Kelley 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
Kelley v. State, 740 S.E.2d 201, 320 Ga. App. 462, 2013 Fulton County D. Rep. 833, 2013 WL 1092832, 2013 Ga. App. LEXIS 215 (Ga. Ct. App. 2013).

Opinions

MCFADDEN, Judge.

Ron O’Neal Kelley was charged with possession of cocaine, OCGA § 16-13-30 (a), and possession of tools for the commission of crime, OCGA § 16-7-20, after a law enforcement officer found cocaine and a digital scale in his pants pockets during the stop of a vehicle in which he was a passenger. The trial court denied Kelley’s motion to suppress these items, and we granted interlocutory review. Because the search of Kelley’s pockets exceeded the scope of a constitutionally permissible pat-down search, we reverse.

The officer who searched Kelley was the only person to testify at the suppression hearing, and the relevant facts are not in dispute. We review de novo the trial court’s application of the law to these undisputed facts. State v. Underwood, 283 Ga. 498, 500 (661 SE2d 529) (2008); Nunnally v. State, 310 Ga. App. 183, 185 (2) (713 SE2d 408) (2011).

The officer testified that, on November 10, 2010, he attempted to stop a car that he observed speeding. The driver did not stop immediately but instead drove to a residence and parked in its driveway. The officer placed the driver in custody for attempting to elude police. By that time, a group of people had gathered around Kelley, who was sitting in the passenger seat of the car with his hands sticking out of the window. The officer dispersed the people and asked Kelley to get out of the car. He then performed a pat-down search of Kelley while Kelley held his hands in the air. During the pat-down search, he felt in one of Kelley’s pockets a round object, slightly smaller than a piece of candy, that he could not identify. When he asked Kelley to identify the object, Kelley reached toward his pocket. At that point, the officer handcuffed Kelley, reached into his pocket and extracted a small bag of a substance later determined to be crack cocaine. He found a digital scale in one of Kelley’s other pockets.

Kelley moved to suppress the items found in his pockets. The state, in opposing this motion, had the burden of proving that the officer’s search was lawful. Foster v. State, 285 Ga. App. 441, 442 (646 SE2d 302) (2007). There is no evidence that the search was conducted either pursuant to a warrant or with Kelley’s consent and, as Kelley points out, the officer did not testify that, at the time of the pat-down search, he believed Kelley was armed and dangerous. See Molina v. State, 304 Ga. App. 93, 95-96 (695 SE2d 656) (2010) (officer must be able to point to particular facts from which he reasonably inferred that a person was armed and dangerous in order to perform self-protective search for weapons); Teal v. State, 291 Ga. App. 488, 489 (662 SE2d 268) (2008) (officer cannot, as a matter of general practice, [463]*463pat down any person asked to exit a car, but instead must have a reasonable basis for concluding that the person is armed and presents a danger to the officer or others). Instead, the officer referred to his “standard operating procedure” of patting down any occupant of a car stopped for eluding, stated that he was “concerned” about the people who had approached the car at the house, and testified that he “did not know if [Kelley] was armed or not. That was the reason for the pat-down.”

Notwithstanding the officer’s failure to testify that he believed Kelley was armed and dangerous at the time of the stop, we will assume without deciding that the officer’s expressed “concerns” about the vehicle driver’s failure to immediately comply with the stop and about Kelley’s interactions with bystanders at the stop gave the officer a reason to believe that Kelley was armed and dangerous and that the pat-down search thus was constitutionally permissible under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). We nevertheless agree with Kelley that the state has failed to show the officer was authorized to go beyond the pat-down search and reach into Kelley’s pockets.

A Terry pat-down [search], unlike a full search, is conducted for the purpose of ensuring the safety of the officer and of others nearby, not to obtain evidence for use at trial. It is a minimal intrusion reasonably designed to discover guns, knives, clubs, or other weapons that could prove dangerous to a police officer.

(Citation omitted.) Sudduth v. State, 288 Ga. App. 541, 542 (2) (654 SE2d 446) (2007). Accordingly, an officer may intrude beneath the surface of a suspect’s outer clothing in only two instances: “(1) if he comes upon something that feels like a weapon, or (2) if he feels an object whose contour or mass makes its identity as contraband immediately apparent.” (Citation omitted.) Id. The officer must express a degree of certainty in identifying the item as contraband, id., although the officer need not “conclusively identify” it as a specific drug. Holmes v. State, 267 Ga. App. 651, 653 (601 SE2d 134) (2004).

The officer’s testimony in this case does not support his intrusion into Kelley’s pockets. He stated that he retrieved the round object in Kelley’s pocket “for officer safety” because he was concerned about Kelley putting his hands on that item. But when asked whether he thought the round object was a weapon, the officer responded, “I didn’t know at that particular time that I had my hand on it. It was still inside his pocket.” The officer then reiterated, “I didn’t know what [the object] was at the time it was in his pocket and I could not [464]*464see that object.” We have held that an officer is not authorized during a pat-down search to intrude into a defendant’s pocket to retrieve an item that the officer cannot identify, simply because the officer believes the item could be a weapon or could contain a weapon. See Brown v. State, 293 Ga. App. 564, 565-566 (1) (667 SE2d 410) (2008) (officer testified that he felt a “hard foreign object” in the defendant’s pocket, that he did not know what the object was, but that “anything can house a weapon”); Howard v. State, 253 Ga. App. 158, 159-161 (558 SE2d 745) (2002) (officer testified that he felt in defendant’s pocket a “very hard and round object,” that he was “really unsure of what it was at that time,” and that he “could not rule out ‘specifically’ that the object. . . might be a weapon”). While an officer need not

be absolutely positive that an object is a weapon in order to protect himself by looking to make sure[,] ... to satisfy the Fourth Amendment when dealing with what may be an unusual weapon, an officer must provide specific and articulable facts which reasonably support a suspicion that the particular suspect is armed with an atypical weapon which would feel like the object felt during the pat-down [search].

(Citations and punctuation omitted.) Howard, 253 Ga. App. at 161. Cf. Mohamed v. State, 276 Ga. 706, 710 (2) (583 SE2d 9) (2003) (officer authorized to intrude into defendant’s pocket after feeling what he believed to be firm plastic cards where his testimony showed that, at time he reached into pocket, he knew defendant had already lied about two items in his pockets that could be used as weapons and he knew that the sort of objects he felt in the pocket could be fashioned into weapons).

The state cites Pace v. State, 219 Ga. App.

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Related

Terry v. Ohio
392 U.S. 1 (Supreme Court, 1968)
Teal v. State
662 S.E.2d 268 (Court of Appeals of Georgia, 2008)
Sudduth v. State
654 S.E.2d 446 (Court of Appeals of Georgia, 2007)
Holmes v. State
601 S.E.2d 134 (Court of Appeals of Georgia, 2004)
Foster v. State
646 S.E.2d 302 (Court of Appeals of Georgia, 2007)
Howard v. State
558 S.E.2d 745 (Court of Appeals of Georgia, 2002)
Mohamed v. State
583 S.E.2d 9 (Supreme Court of Georgia, 2003)
Brown v. State
667 S.E.2d 410 (Court of Appeals of Georgia, 2008)
Molina v. State
695 S.E.2d 656 (Court of Appeals of Georgia, 2010)
Pace v. State
466 S.E.2d 254 (Court of Appeals of Georgia, 1995)
State v. Underwood
661 S.E.2d 529 (Supreme Court of Georgia, 2008)
Nunnally v. State
713 S.E.2d 408 (Court of Appeals of Georgia, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
740 S.E.2d 201, 320 Ga. App. 462, 2013 Fulton County D. Rep. 833, 2013 WL 1092832, 2013 Ga. App. LEXIS 215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelley-v-state-gactapp-2013.