On July 3, 2013, the Court of Appeals of Georgia decided Felton v. State [i] which serves as an excellent review of the law related to investigative detentions based upon dispatches and frisks of individuals being lawfully detained. The facts of Felton are as follows:
[T]he 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 when 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. [ii]
Felton was arrested, and he later filed a motion to suppress the marijuana. The trial court denied the motion and held that the frisk was lawful. Further, the trial court found that the bag was removed from Felton’s pocket by his consent. As such, the motion was denied and Felton was convicted. Felton then appealed the denial of the motion to suppress.
On appeal, Felton first argued that the police lacked sufficient reasonable suspicion to detain him while they investigated the dispatch. The court of appeals first examined legal rules applicable to this issue. First, the court noted:
The U. S. Supreme Court recognized the difficulty in defining ‘the elusive concept of what cause is sufficient to authorize police to stop a person,’ and concluded that the essence of the elusive concept was to take the totality of the circumstances into account and determine whether the detaining officer has ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U. S. 411, 417-418 (101 SCt 690, 66 LE2d 621) (1981). “This demand for specificity in the information upon which police action is predicated is the central teaching of [the Supreme Court’s] Fourth Amendment jurisprudence.’ Terry v. Ohio, [392 U. S. 1, 2, n. 18 (88 SCt 1868, 20 LE2d 889) (1968)]. Vansant v. State, 264 Ga. 319, 320 (443 SE2d 474) (1994). [iii]
Second, the court noted that officers must then balance the rights of citizens against the need for effective law enforcement. The court stated:
[A] law enforcement officer may conduct a constitutional investigatory stop of an individual when the officer is able to point to specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant that intrusion. Over a decade later, the Court restated the standard when it held that an investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. [iv]
The facts used to support reasonable suspicion are then to be viewed based upon “the totality of the circumstances.” Thus, applying the facts of this case to the rules above, the court found it relevant that officers were investigating a complaint from a concerned citizen who remained on the scene regarding a heated dispute between Felton, and a woman. The court noted that although the complaint or dispatch did not specifically allege a crime was committed, the officers were authorized to briefly detain Felton to determine if he was about to engage in criminal activity. As such, the court held the detention was lawful.
Second, Felton argued that the frisk of his person was not lawful under the Fourth Amendment. The court first examined the law that is applicable to this issue. The court stated:
When conducting an investigatory stop, an officer is entitled to conduct a limited pat-down of the suspect for weapons if the officer reasonably believes that the suspect poses a threat to his safety or that of others. Terry, 392 U. S. at 28-31. It is not required that the officer “be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id. at 27. A pat-down for weapons is authorized “only if the officer has a reasonable belief preparatory to an intended pat-down that the suspect is armed and presents a danger to the officer or others.” (Punctuation and footnote omitted; emphasis in original.) Ramsey v. State, 306 Ga. App. 726, 728 (703 SE2d 339) (2010). [v]
Further, the court also noted:
The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. Sibron v. New York, 392 U. S. 40 (88 SCt 1889, 20 LE2d 917) (1968).“[T]he issue is whether the officer has objectively reasonable grounds to believe or suspect that the person may be armed.” State v. Kipple, 294 Ga. App. 420, 421 (1) (669 SE2d 185) (2008). [vi]
Thus, in order to lawful conduct a frisk, an officer must be able to articulate a reasonable belief that a suspect is armed and dangerous. The court then applied the facts of Felton’s case to the rules above. The court first noted that the officer who frisked Felton did not testify that he believed that Felton was armed and dangerous. The court then stated:
[The officer] merely asserted that he believed that people who kept their hands in their pockets might be hiding something. Accordingly, the State failed to establish that the officer was authorized to conduct a pat-down of Felton, and the trial court’s conclusion that because the officers were conducting an authorized Terry stop, they were authorized to conduct a pat-down of Felton’s person is contrary to our law. [vii]
As such, the court held that the frisk was not lawful because the officer failed to articulate facts to support a reasonable belief that Felton was armed and dangerous.
While the State argued that the officer removed the bag that contained the marijuana from Felton’s pocket with his consent, the court of appeals noted that the marijuana must still be suppressed because it was discovered based upon the unlawful frisk.
Therefore, the court of appeals reversed the trial court’s denial of the motion to suppress.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] A13A0244, 2013 Ga. App. LEXIS 575
[ii] Id. at 3-5
[iii] Id. at 7
[iv] Id. at 8
[v] Id. at 10
[vii] Id. at 11