On May 7, 2018, the Supreme Court of Georgia decided Caffee v. State[i], in which the court discussed whether, based upon the odor of marijuana during a traffic stop, an officer may conduct a warrantless search of an occupant if a search of the vehicle does not reveal the source of the odor. The relevant facts of Caffee, taken directly from the case, are as follows:
[O]n November 1, 2015, Deputy Mark Patterson pulled over Caffee’s truck for having an expired tag. During the stop, Deputy Patterson smelled the odor of raw marijuana coming from Caffee’s truck. Deputy Patterson testified that, based upon his training and experience, he was familiar with the smell of raw marijuana.
After Caffee exited the truck, Deputy Patterson asked Caffee if he had marijuana in the truck. Caffee said no. Deputy Patterson decided to search Caffee’s truck for drugs but waited for another officer to arrive. While waiting, Deputy Patterson conducted a pat-down search of Caffee, but found no weapons or contraband. When back-up arrived, Deputy Patterson searched the entire truck and found only two small empty bottles that smelled of marijuana. According to Deputy Patterson, the odor of raw marijuana dissipated from the truck during the search while the doors were open. When Deputy Patterson approached Caffee to ask about the two containers found in the truck, Patterson again smelled the odor of raw marijuana. Deputy Patterson searched Caffee’s outer clothing and found in Caffee’s shirt pocket a small plastic bag containing less than an ounce of marijuana. Caffee did not consent to any of the searches. Caffee was arrested and charged with possession of marijuana and driving with an expired tag.[ii]
Caffee filed a motion to suppress the marijuana as the product of a warrantless search that violated the Fourth Amendment. The trial court denied the motion and held that the deputy had probable cause to search Caffee’s shirt based on the totality of the circumstances. Caffee appealed the denial of his motion to suppress to the Court of Appeals of Georgia. The court of appeals upheld the decision of the trial court and held that, based on the officer’s training and experience, and the totality of the circumstances, the officer had probable cause to search Caffee’s person. Caffee requested that the Supreme Court of Georgia hear the case was granted certiorari.
The Supreme Court first stated that the Court of Appeals used an improper standard of review, and relied upon facts that were not determined by the trial court. Thus, the Supreme Court proceeded with its analysis based upon facts determined by the trial court that were in the record.
The Supreme Court next stated that the Court of Appeals used an incorrect analysis to determine that the search was lawful. While they correctly held that probable cause was present to believe that Caffee possessed marijuana, they did not then use an established exception to the warrant requirement to justify the warrantless search.
The court then examined legal principles that are relevant in Caffee’s case. The Supreme Court stated
Searches conducted without a warrant are unreasonable under the Fourth Amendment unless they fall within a well-established exception to the warrant requirement. Arizona v. Gant, 556 U.S. 332, 338 (129 SCt 1710, 173 LE2d 485) (2009); Williams v. State, 296 Ga. 817, 819 (771 SE2d 373) (2015). Some such exceptions include searches conducted pursuant to consent, the existence of exigent circumstances, and searches incident to a lawful arrest. See Olevik v. State, 302 Ga. 228, 234 (2) (b) (806 SE2d 505) (2017); Williams, 296 Ga. at 819.
Valid consent to search obviates the need for either a warrant or probable cause, see Williams, 296 Ga. at 821, but most other warrantless searches require probable cause as a necessary precondition. See State v. LeJeune, 276 Ga. 167, 182 (2) (576 SE2d 888) (2003) (the “automobile exception” to warrant requirement must be supported by probable cause to search); Carranza v. State, 266 Ga. 263, 264-265 (1) (467 SE2d 315) (1996) (even where probable cause exists, a warrantless search of a person’s home is prohibited absent exigent circumstances or consent). Even the search-incident-to-arrest exception requires some sort of probable cause, because this exception applies only if there is probable cause to arrest. See Rawlings v. Kentucky, 448 U. S. 98 (100 SCt 2556, 65 LE2d 633) (1980).[iii] [emphasis added]
The Supreme Court also noted that the there are two different situations where probable cause may exist: (1) probable cause to arrest and (2) probable cause to search. The court stated
Although the nature of the probable cause inquiry is the same for arrests and searches, the focus of the inquiry is different for each. See Pabon, 871 F3d at 181-182. When reviewing whether a police officer had probable cause to search, the focus is on whether the available facts would lead a person of reasonable caution to believe that contraband or evidence of a crime was present in the place that was searched. See Harris, 568 U.S. at 243; Sullivan v. State, 284 Ga. 358, 360-361 (2) (667 SE2d 32) (2008). When considering whether a police officer had probable cause to arrest, a court must evaluate whether the facts and circumstances known to the police officer would have led a reasonable officer to believe that the suspect probably had committed, was committing, or was about to commit a crime. See Hughes, 296 Ga. at 748 (2); Devega v. State, 286 Ga. 448, 451 (4) (b) (689 SE2d 293) (2010).
Because the focus of the inquiry is different for arrests and searches, finding the existence of probable cause to search does not necessarily answer whether there is probable cause to arrest, or vice versa. See Pabon, 871 F3d at 182; United States v. Savoca, 761 F2d 292, 297 (6th Cir. 1985).[iv] [emphasis added]
The Supreme Court then applied the above legal principles to the Court of Appeal’s analysis. The Court of Appeals held that probable cause alone was enough to search Caffee’s pocket. Caffee argued that a warrant was required to search his pocket.
Applying the above principles to the facts of Caffee’s case, the Supreme Court stated that, based on the totality of the circumstances, the deputy had probable cause to believe that Caffee possessed marijuana on his person. The Supreme Court described the facts relevant to probable cause as follows:
Limiting our review to the facts found by the trial court in its order, the evidence established that the police had probable cause to arrest Caffee for possession of marijuana. Deputy Patterson was familiar with the smell of raw marijuana based on his training and experience. Before the search, he observed that an odor of raw marijuana was coming from Caffee’s vehicle, the odor dissipated when Caffee was out of the vehicle, and the odor returned when Deputy Patterson returned to talk to Caffee after the vehicle search. Moreover, Deputy Patterson found two empty bottles smelling of raw marijuana during a search of Caffee’s vehicle. These facts, which were known to Deputy Patterson prior to any search of Caffee’s person, were sufficient to create probable cause to arrest Caffee for possession of marijuana.
Thus, the analysis by the Supreme Court went as follows:
- The totality of the circumstances provided probable cause to believe Caffee was in possession of marijuana on his person;
- This probable cause provided a valid basis for a lawful arrest; and
- The “search incident to arrest” exception to the warrant requirement provided a lawful basis for a warrantless search.
The Supreme Court continued to explain its rationale as follows:
We arrive at this conclusion on the strength of more than the mere nearby presence of the odor of marijuana. Criminal possession is not committed merely by being nearby the prohibited substance. Rather, it was law enforcement’s ability to localize the odor of marijuana to Caffee’s person that allows us to find probable cause to arrest for that crime. See Jackson, 682 Fed. App’x at 87.
Having determined that Deputy Patterson had probable cause to arrest Caffee for possession of marijuana, the subsequent search of Caffee was valid as a search incident to arrest, even though it preceded any formal arrest.[v] [emphasis added]
The court emphasized the while the search itself cannot uncover evidence that is then used to justify the search, the search can occur prior to the formal arrest as long as probable exists to justify the arrest. The court stated
But the search-incident-to-arrest exception authorizes pre-arrest searches if probable cause to arrest preexisted the search. In Rawlings, the Supreme Court held that law enforcement is authorized to conduct a warrantless search of a suspect whom they have probable cause to arrest for possession of drugs if the “formal arrest follow[s] quickly on the heels of the challenged search[.]” 448 U. S. at 111; see also Sibron, 392 U. S. at 77 (Harlan, J., concurring) (“If the prosecution shows probable cause to arrest prior to a search of a man’s person, it has met its total burden. There is no case in which a defendant may validly say, ‘Although the officer had a right to arrest me at the moment when he seized me and searched my person, the search is invalid because he did not in fact arrest me until afterwards.'” (emphasis in original)). The Rawlings Court was very clear that the warrantless search fell within the search-incident-to-arrest exception, and that it was not “particularly important that the search preceded the arrest rather than vice versa,” because the “fruits of the search” were not necessary to support the probable cause to arrest. Rawlings, 448 U. S. at 111 and n. 6.[vi] [emphasis added]
Therefore, the Supreme Court of Georgia affirmed the denial of the motion to suppress and based its decision upon the fact that the deputy had probable cause to believe that Caffee possessed marijuana on his person, and that provided justification for a lawful arrest, which provided justification for a search incident to arrest. Further, the search incident to arrest can occur immediately before the suspect is formally arrest.
[i]S17G1691 (Ga. Decided May 7, 2018)