||GEORGIA COURT HOLDS OFFICER MUST TESTIFY TO TRAINING AND EXPERIENCE FOR ODOR OF MARIJUANA TO ESTABLISH PROBABLE CAUSE OR REASONABLE SUSPICION

GEORGIA COURT HOLDS OFFICER MUST TESTIFY TO TRAINING AND EXPERIENCE FOR ODOR OF MARIJUANA TO ESTABLISH PROBABLE CAUSE OR REASONABLE SUSPICION

On January 7, 2020, the Court of Appeals of Georgia decided In the Interest of C.B., a Child[i], in which the court examined whether an officer had sufficient reasonable suspicion to justify the pedestrian stop of C.B.  The relevant facts of C.B., taken directly from the case, are as follows:

The record reflects that at about 10:00 p.m., while driving on Highway 19 in Glenwood, Georgia, a police officer saw a person, C.B., wearing a backpack and walking on the side of the road. The officer knew that there had been numerous break-ins within the last two weeks in Glenwood, close to where C.B. was walking. The officer thought it was suspicious to be walking down the street with a backpack at night in an area where break-ins had recently occurred, so he put on his car’s blue lights and pulled over in front C.B. to ask C.B.’s name. After the officer got out of the car, he immediately smelled alcohol on C.B.’s breath and then smelled the “odor of marijuana on him.” When asked, C.B. would not give the officer his name. The officer told C.B. to stay in front of his vehicle until he could get a patrol vehicle there, but C.B. quickly left the scene. The officer followed C.B. in his car, and C.B. eventually came back towards the car. When the officer attempted to put C.B. in handcuffs, C.B. pushed back against the officer. C.B. was eventually placed in handcuffs with the help of other officers who had arrived at the scene. When the officers searched C.B.’s backpack, they found a grinder that contained marijuana residue and a bottle of alcohol.

C.B. was charged with four counts of obstruction of an officer, possession of less than an ounce of marijuana, possession and use of drug related objects, and underage possession of alcohol.[ii]

C.B. filed a motion to suppress and argued that the officer lacked probable cause or reasonable suspicion to detain him.  The trial court agreed and granted the motion.  The State appealed the grant of the motion to suppress to the Court of Appeals of Georgia.

The issue on appeal was whether the officer had sufficient reasonable suspicion to detain C.B.

The court first discussed the core legal principles applicable to this issue.  The court stated

Supreme Court holdings sculpt out . . . 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.” In the Interest of S.B., 207 Ga. App. 60, 61 (427 SE2d 52) (1993) (punctuation omitted). “In a first-tier encounter, a police officer may approach an individual, 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 officer does not detain the citizen or create the impression that the citizen may not leave.” Cash v. State, 337 Ga. App. 511, 514 (2) (786 SE2d 560) (2016) (punctuation omitted). “[O]nce a reasonable person no longer believes that he is free to leave, the encounter becomes a second-tier detention requiring a showing of reasonable suspicion.” Walker v. State, 314 Ga. App. 67, 70 (1) (722 SE2d 887) (2012). “To meet the reasonable suspicion standard, the police must have, under the totality of the circumstances, a particularized and objective basis for suspecting the person is involved in criminal activity.” Id.[iii]

The court first noted the initial encounter where officer pulled over to the side of the road and asked C.B. his name, was a consensual encounter.  The court stated that even though the officer stopped in front of C.B., there was still space for him to go around the officer.  Additionally, the court stated that the officer’s use of his blue lights did not transform the initial encounter into a detention because it was dark and the danger posed by other traffic made the blue lights reasonable to minimize the hazard.    The court stated

[G]iven the late hour [and] the hazard presented by vehicles parked on the side of a dark highway,” the use of the officer’s blue lights as he pulled over to the side of the road did not necessarily raise the level of interaction, as a reasonable person would still feel free to continue walking away from the officer. See Cash, 337 Ga. App. at 514-515 (2).[iv]

However, the court stated that the moment the officer told C.B. to stay in front of his car, C.B. was no longer free to leave and this escalated the encounter into an investigative detention (Tier II), such that reasonable suspicion of criminal activity was required.  The State argued that the officer had reasonable suspicion based on the totality of the circumstances which included (1) the location, (2) the time of night, (3) C.B.’s refusal to provide his name, and (4) the odor of alcohol and marijuana.  The court noted that during the motion to suppress, the State did not provide evidence of the officer’s training and experience in recognizing the odor of marijuana; this was the reason the juvenile court held there was not reasonable suspicion and granted the motion to suppress.

In light of the above, the court of appeals set out to determine if the State must provide evidence that an officer has training and experience in recognizing the odor of marijuana.  The court examined precedent related to this question and stated

We have determined that an officer’s detection of marijuana odor may provide probable cause, if the officer shows that he has been trained and has experience in detection of illegal drugs. State v. Folk, 238 Ga. App. 206, 209 (521 SE2d 194) (1999) (“a trained police officer’s perception of the odor of burning marijuana, provided his ability to identify that odor is placed into evidence, constitutes sufficient probable cause to support the warrantless search of a vehicle“). See also State v. Kazmierczak, 331 Ga. App. 817, 822 (771 SE2d 473) (2015) (to determine whether probable cause exists to issue a search warrant, magistrate judge could consider whether “the officer was qualified to recognize the odor based on his or her training and experience“); State v. Alford, 347 Ga. App. 208, 216 (3) (818 SE2d 668) (2018) (similar).  We have also held that an officer’s detection of the odor of marijuana may establish reasonable suspicion. Cole v. State, 254 Ga. App. 424, 425 (2) (562 SE2d 720) (2002) (citations omitted) (“the smell of marijuana coming from the interior of [a] car was sufficient to create a reasonable suspicion that [a defendant] had marijuana in the car [, and at] a minimum, this suspicion justified the officer’s detention to investigate the possible criminal activity.”). [v]

Thus, the question the court had to answer in order to determine if reasonable suspicion was present to justify the detention was as follows:  Must an officer testify as to his training and experience in marijuana odor detection for his observance of the smell of marijuana to constitution reasonable suspicion?[vi]

The court of appeals, in light of the precedent discussed above, answered the above question and stated

[W]ithout a foundation for the officer’s ability to detect the odor of marijuana, his testimony regarding the odor of marijuana does not support a reasonable suspicion of illegal activity.[vii]

As such, the officer’s testimony that he smelled the odor of marijuana, without testimony as to his training and experience in recognizing the odor of marijuana, did not establish reasonable suspicion to justify C.B.’s detention.

The state further argued that the totality of the circumstances support a finding of reasonable suspicion.  However, the court of appeals stated that none of C.B.’s activities, such as walking on the side of the road at night, being in high-crime area, wearing a backpack, and smelling of alcohol were sufficient to establish reasonable suspicion.  Additionally, the court stated that refusing to identify himself also does not create reasonable suspicion.  Specifically, the court stated

[T]he mere refusal to identify oneself to an officer in a tier-one encounter is not a crime and cannot establish reasonable suspicion of crime. Id.; see also State v. Jones, 303 Ga. App. 337, 340 (693 SE2d 583) (2010) (a decision to exercise the right to avoid a police officer “can hardly give rise to a reasonable suspicion of criminal activity; otherwise, a citizen could never exercise his right to avoid an officer without that officer then claiming that the exercise of that right gave the officer a reasonable suspicion of criminal activity.”).[viii]

Lastly, the court discussed the fact that the officer detected the odor of alcohol on C.B.  The court stated that the detection of this odor did not establish reasonable suspicion because the officer didn’t testify that C.B. appeared “obviously underage.”  Additionally, the court noted that the officer did not testify that C.B. appeared intoxicated.  As such, the detection of the odor of alcohol did not establish reasonable suspicion.

Therefore, the court of appeals affirmed the grant of the motion to suppress.

________________________________

Citations

[i] A19A2095 (Ga. App. January 7, 2020)

[ii] Id.

[iii] Id.

[iv] Id.

[v] Id.

[vi] Id.

[vii] Id.

[viii] Id.

Print Friendly, PDF & Email
By |2020-12-29T08:35:18-05:00December 29th, 2020|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.