©2018 Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute (www.llrmi.com)
On February 16, 2018, the Court of Appeals of Georgia decided the State v. McCloud[i], in which the court discussed whether evidence should be suppressed based on the officer’s subjective belief at the time of the search or whether the court should apply an objective standard. The relevant facts of McCloud, taken directly from the case, are as follows:
[T]he evidence, as testified to by the only witness at the motion to suppress hearing, demonstrates that a patrol officer with the Atlanta Police Department observed a “pretty bad” two car accident and stopped to investigate and assist the victims. Each car was occupied by two passengers, and McCloud was in the driver’s seat of one of the cars. McCloud told the officer that his wallet was at home and that he did not have his driver’s license. The officer asked McCloud to step out of the car, then handcuffed McCloud “to detain him. . . because [the officer] needed to figure out everything that was going on in the situation.” The officer testified that he routinely handcuffs individuals who do not have their driver’s license, “because of the nature of [his] assignment” and confirmed that he does so to detain them until he “can find out who [they] are.”
The officer testified that although there was probable cause to arrest McCloud for “not having [his] driver’s license [on his person],” McCloud was only detained at that point “to identify who he was.”
Regarding the encounter, the officer testified that:
[McCloud] seemed a little tense about the whole situation. It kind of made me nervous. We had a conversation about what was – why was he being so tense. He relaxed. I put him in handcuffs and moved him to the car. When I got to the vehicle, as per our standard, before you put any person in a vehicle, you frisk them incident to placing them in the back of the vehicle. Plus, the nature of the area, it’s a violent crime area, lots of incidents in my knowledge, training and experience that occur in that area. So I frisked him for weapons. Upon frisking him for weapons, I felt an object that was immediately recognizable as a baggy of some sort, called contraband. I seized that item. It ended up being 10 grams of powder cocaine.
The baggy was located in “one of [McCloud’s] pockets. According to the officer’s testimony, “at this point [McCloud] was under arrest. I [had] just seized narcotics from his person. So I went ahead and did a complete, thorough search before putting him in the vehicle.” The officer retrieved a loaded .22 caliber magazine from McCloud’s pocket and, during his subsequent search of McCloud’s vehicle “incident to arrest as well as impound from the accident, because it was not drivable . . . located a .22 caliber handgun missing its magazine . . . in the center console.”[ii]
McCloud was charged with weapons and drug offenses under Georgia law. He filed a motion to suppress and, ultimately, the trial court granted the motion. The trial court reasoned that it was reasonable to detain McCloud, but the officer did not articulate a reasonable belief that McCloud was “armed and dangerous;” therefore, the frisk that discovered the cocaine was unreasonable. The trial court held that an officer cannot, as a matter of practice, use the fact that he is placing someone in a police car without articulating the “armed and dangerous” standard. The State appealed the grant of the motion to suppress to the Court of Appeals of Georgia.
On appeal the court first examined some legal principles pertinent to whether the motion to suppress should have been granted or denied. The legal principles, taken directly from the case, were as follows:
1. Police officers are “authorized to arrest [a defendant] for the commission of a traffic offense in their presence.” Ridgeway v. State, 205 Ga. App. 218 (422 SE2d 4) (1992).
2. If, when arrest is made, the facts and circumstances known to the arresting officer are sufficient to warrant a prudent person in believing that the accused had committed or is committing an offense, the warrantless arrest passes constitutional muster. Callaway v. State, 257 Ga. 12, 13-14 (2) (354 SE2d 118) (1987).
3. Because the standard for probable cause depends on what a reasonable officer could have concluded from those facts and circumstances, the standard of probable cause is an objective one, and the subjective thinking of the actual officers in a particular case is not important.” Hughes v. State, 296 Ga. 744, 749 (2) (770 SE 2d 636) (2015).
4. The existence of probable cause authorizes a search incident to arrest . . . even if an officer believes that he is, at the moment the search is undertaken, detaining rather than arresting the person searched.”(Citations and punctuation omitted.) Coney v. State, 316 Ga. App. 303, 307 (3) (a), (b) (728 SE2d 899) (2012).
5. OCGA § 17-5-1 further authorizes an officer, after making a lawful arrest, to search the defendant’s person and the area within his immediate presence for the purpose of protecting the officer from attack, preventing the defendant from escaping, or discovering or seizing the fruits of the crime or any articles used in the commission of the crime.
6. When officers impound a car, “they may inventory its contents to protect the property of the owner and to protect the officers from potential danger and against claims for lost or stolen property. Scott v. State, 316 Ga. App. 341, 342-43 (729 SE2d 481) (2012)
7. [W]hile the police may not impound a car to search for contraband, they may impound a vehicle if they must take charge of it for some reason. And ultimately, the test for the validity of the police’s conduct is whether, under the circumstances then confronting the police, their conduct was reasonable within the meaning of the Fourth Amendment. Grizzle v. State, 310 Ga. App. 577, 579 (1) (713 SE2d 701) (2011).
8. An officer is not required to ask the owner what [he] would like to do with [his] car when the owner has been arrested and there is no one present at the scene to take custody of the car and safely remove it[.] . . . Although the officer did not inquire whether [McCloud] could make other arrangements for the retrieval of [his] car, he was not required to do so. This is especially true when the vehicle impedes or poses a potential danger to traffic. Scott v. State, 316 Ga. App. at 343.
The court applied the legal principals above to the facts of McCloud’s case. The court stated that even though the officer believed he was merely detaining McCloud to determine his identity, “for the purposes of the Fourth Amendment, the officer had probable cause to arrest McCloud for driving without a driver’s license and the ensuing search of his person was incident to an arrest pursuant to OCGA § 17-5-1.”[iii] Thus, the search was legal as a “search incident to arrest.”
Regarding the admissibility of the gun found in McCloud’s vehicle, the court noted that it did not need to decide if a search incident to arrest of the vehicle was reasonable because the officer was conducting a lawful inventory. There was no other licensed driver on the scene to take McCloud’s vehicle and even if there was, the vehicle was inoperable due to damage. Further, the officer is not required to ask the owner what he wants to do with his vehicle. As such, the impound and inventory were lawful, and the gun discovered pursuant to this was admissible.
The court of appeals reversed the decision of the trial court and held that the motion to suppress should be denied.
Practice Pointer for Georgia Officers:
• In Georgia, if an arrested driver requests an officer allow a passenger to take the vehicle or requests to arrange an alternate disposition of the vehicle, the officer must attempt to honor a reasonable request.
• A reasonable request is one that does not cause unreasonable delay.
[i] A17A1833 (Ga. App. Decided February 16, 2018)
[ii] Id. at 2-3