Myers v. the State ( 2015 )

THIRD DIVISION
ELLINGTON, P. J.,
DILLARD and MCFADDEN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
September 2, 2015
In the Court of Appeals of Georgia
A15A1388. MYERS v. THE STATE.
DILLARD, Judge.
Following a stipulated bench trial, Shameka Shontay Myers was convicted of
possessing less than one ounce of marijuana. Myers appeals this conviction, solely
contending that the trial court erred in denying her motion to suppress evidence
discovered after law enforcement illegally seized a passenger in her vehicle and, thus,
illegally seized her as well. For the reasons set forth infra, we affirm.
At the outset, we note that the Supreme Court of Georgia has reiterated three
fundamental principles to follow in reviewing a ruling on a motion to suppress. First,
the trial court sits as the trier of fact at a hearing on a motion to suppress,1 and
1
Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 SE2d 148) (2013); Miller
v. State, 288 Ga. 286, 286 (1) (702 SE2d 888) (2010).
because it hears the evidence, the court’s “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].”2 Second, the trial court’s decision with
regard to questions of fact and credibility must be accepted “unless clearly
erroneous.”3 Finally, we, as the reviewing court, must construe the evidence “most
favorably to the upholding of the trial court’s findings and judgment.”4
So viewed, the record reflects that at 3:30 a.m. on the day in question, an
officer responded to a noise complaint in a Henry County neighborhood and, while
investigating same, made a mental note of a vehicle parked in front of a house that
had no cars in the driveway. The officer also observed that this vehicle contained two
occupants and its windows were fogged.
After concluding his investigation into the noise complaint, the officer again
passed by the vehicle and decided to make contact. The officer parked nearby and
2
Miller, 288 Ga. at 286 (1) (punctuation omitted); accord Brown, 293 Ga. at
803 (3) (b) (2).
3
Miller, 288 Ga. at 286 (1) (punctuation omitted); accord Brown, 293 Ga. at
803 (3) (b) (2).
4
Miller, 288 Ga. at 286 (1) (punctuation omitted); accord Brown, 293 Ga. at
803 (3) (b) (2).
2
approached the vehicle on foot, noticing that the windows were still foggy. He also
detected the odor of marijuana and saw that the passenger was beginning to exit the
vehicle. The officer instructed the passenger to sit back down in the vehicle, which
the passenger did.
The officer then made contact with the driver, Myers, at her window and
detected an even more overwhelming odor of marijuana when she rolled down the
window. He also observed a hollowed out tobacco wrapper on the ground outside of
the driver’s door. And when he confronted the occupants about the odor, they denied
having marijuana. Thereafter, the officer asked Myers and the passenger to exit the
vehicle separately, conducted a pat down of the passenger, and located marijuana and
drug paraphernalia on the passenger. He then conducted a pat down of Myers and,
although he did not find anything on her, he did discover marijuana in a container on
her side of the vehicle during a subsequent search.
Following her charge for possession of marijuana, Myers filed a motion to
suppress the evidence, arguing that she was illegally detained after the officer
illegally detained the passenger by ordering the passenger back into the vehicle
without reasonable articulable suspicion of criminal activity. And after a hearing on
the matter, the trial court denied Myers’s motion, finding that the officer had
3
reasonable articulable suspicion after he detected the odor of marijuana upon
approaching the vehicle. Following her conviction in a stipulated bench trial, this
appeal by Myers follows.
As we have previously explained, the Supreme Court of the United States has
sculpted out, at least theoretically, three tiers of police-citizen encounters:
(1) communication between police and citizens involving no coercion
or detention and therefore without the compass of the Fourth
Amendment, (2) brief seizures that must be supported by reasonable
suspicion, and (3) full-scale arrests that must be supported by probable
cause.5
In the first tier, police officers may “approach citizens, ask for identification,
and freely question the citizen without any basis or belief that the citizen is involved
in criminal activity, as long as the officers do not detain the citizen or create the
impression that the citizen may not leave.”6 And here, the trial court correctly
determined that the officer’s initial approach to the vehicle fell under the first
5
Brown v. State, 301 Ga. App. 82, 84 (686 SE2d 793) (2009) (punctuation
omitted); accord Santos v. State, 306 Ga. App. 772, 773-74 (1) (703 SE2d 140)
(2010).
6
Brown, 301 Ga. App. at 84 (punctuation omitted); accord Santos, 306 Ga.
App. at 773-74 (1).
4
category of such encounters.7 Furthermore, whether or not the officer’s order that the
passenger return to the vehicle escalated the situation to a second-tier encounter as
the trial court determined,8 the officer at that point unquestionably had reasonable
articulable suspicion to briefly detain both Myers and the passenger.
7
See, e.g., Whitmore v. State, 289 Ga. App. 107, 109 (657 SE2d 1) (2008)
(noting that officer’s approach to make inquiry of vehicles that were already stopped
was a first-tier encounter); Carrera v. State, 261 Ga. App. 832, 834 (584 SE2d 2)
(2003) (“It is well established that an officer’s approach to a stopped vehicle and
inquiry into the situation are not a ‘stop’ or ‘seizure’ but rather clearly fall within the
realm of the first type of police-citizen encounter.” (punctuation omitted)).
8
See Santos, 306 Ga. App. at 774 (“Examples of circumstances that might
indicate a second-tier detention include . . . the use of language or tone of voice
indicating compliance with the officer’s request might be compelled.” (punctuation
omitted)); Akins v. State, 266 Ga. App. 214, 216 (1) (596 SE2d 719) (2004) (“[P]olice
officers may approach a citizen, ask for identification, ask him to roll down a window
or step out of a car, and freely question him without any articulable suspicion, as long
as the officers do not detain the citizen or create the impression that the citizen may
not leave.”); Johnson v. State, 231 Ga. App. 273, 273 (498 SE2d 359) (1998)
(physical precedent only) (“Defendant’s response to the request for identification was
‘do I have to.’ In responding affirmatively, the deputy seized the person of
defendant.”). Cf. Whitmore, 289 Ga. App. at 110 (holding that encounter was still
within the first tier when, after making inquiry of vehicles stopped on the side of the
road, officer “requested that [the drivers] move their vehicles to a parking lot . . . so
as to avoid impeding traffic and to ensure greater safety” (emphasis supplied)); Stokes
v. State, 238 Ga. App. 230, 232 (518 SE2d 447) (1999) (“Asking an individual to step
outside for safety reasons is a permissible action that does not rise to the level of a
seizure. This court has also recognized that distinction between and officer’s
‘appropriately deferential’ request for cooperation and a demand rising to the level
of a stop.” (citations omitted) (emphasis supplied)).
5
Articulable suspicion, of course, requires a “particularized and objective basis
for suspecting that a citizen is involved in criminal activity.”9 This suspicion need not
meet the higher standard of probable cause, but it must be more than a mere caprice
or a hunch.10 Thus, in assessing whether a reasonable articulable suspicion exists, we
are charged with looking to “the totality of the circumstances.”11 And in this case, the
officer observed a vehicle with two occupants parked in a residential area at 3:30
a.m., its windows obscured by fog. Then, as the officer approached the vehicle to
make inquiry of the occupants, he detected the odor of marijuana. Indeed, the officer
testified that he first detected the odor as he approached the vehicle, which was
simultaneous with the passenger’s attempt to exit the vehicle, and that the odor was
why he “would have her stay.” The detection of the odor of marijuana provided the
officer with reasonable articulable suspicion to briefly detain both Myers and the
9
State v. Whitt, 277 Ga. App. 49, 50 (625 SE2d 418) (2005) (punctuation
omitted); accord Padron v. State, 254 Ga. App. 265, 268 (1) (562 SE2d 244) (2002).
10
Whitt, 277 Ga. App. at 50; Padron, 254 Ga. App. at 268 (1).
11
Holmes v. State, 293 Ga. 229, 230 (2) (744 SE2d 701) (2013); State v.
Thompson, 256 Ga. App. 188, 189 (569 SE2d 254) (2002).
6
passenger to conduct an investigation into the matter.12 As a result, the trial court
properly denied Myers’s motion to suppress.
Judgment affirmed. Ellington, P. J., and McFadden, J., concur.
12
See, e.g., Bailey v. State, 283 Ga. App. 365, 368 (2) (641 SE2d 548) (2006)
(holding that trial court “could have concluded that [the officer] smelled marijuana
smoke rather than unburned marijuana in [the defendant’s] vehicle, which gave him
a reasonable articulable suspicion of criminal activity”); Tomlin v. State, 242 Ga.
App. 405, 406 (530 SE2d 27) (2000) (“The odor of marijuana emanating from a car
provides a reasonable suspicion that marijuana is present in the car.”).
7