Johnson v. State

11 FCDR 4067

313 Ga.App. 137

720 S.E.2d 654

JOHNSON

v.The STATE.

No. A11A0941.

Court of Appeals of Georgia.

Dec. 1, 2011.

Marvin Paul Hicks III, for appellant.

Daniel J. Porter, Dist. Atty., Richard Allen Vandever, Asst. Dist. Atty., for appellee.

ANDREWS, Judge.

Arron Lavell Johnson was found guilty at a bench trial of possession of a schedule II controlled substance (3, 4–methylenedioxymethamphetamine) in violation of the Georgia Controlled Substances Act. Johnson and the State stipulated to evidence that he was in possession of the controlled substance and agreed to try the case based on the transcript produced at the pre-trial hearing on his motion to suppress evidence of the controlled substance, the Georgia Bureau of Investigation Crime Lab report, and the City of Snellville Police incident report. Johnson's sole enumeration of error is that the trial court erred by denying his motion to suppress evidence found in a search of his person showing that he was in possession of the controlled substance. For the following reasons, we affirm.

1. The trial court correctly denied Johnson's motion to suppress and admitted the evidence found in the search.

The State produced evidence that, while police officers detained Johnson to investigate their suspicion of criminal activity, they patted down Johnson for weapons and searched his person pursuant to his consent and found the controlled substance in his possession. Johnson contended in support of his suppression motion that the consent to search was tainted and invalid because it was obtained while he was illegally detained by police for questioning and for the pat-down in violation of the Fourth Amendment protection against unreasonable search and seizure. To the contrary, the evidence shows that the detention and the pat-down were proper and that the search conducted during the detention was pursuant to valid consent.

The relevant facts were undisputed, there were no credibility issues, and the trial court denied the motion to suppress without making findings or giving any explanation. Accordingly, the standard of appellate review is de novo, and we independently review the evidence to determine whether the trial court erred in its application of the law to the undisputed facts. State v. Palmer, 285 Ga. 75, 79, 673 S.E.2d 237 (2009); State v. Woods, 280 Ga. 758–759, 632 S.E.2d 654 (2006); Silva v. State, 278 Ga. 506, 507, 604 S.E.2d 171 (2004).

The evidence showed the following: At about 3:00 a.m., Snellville police received a call from a Steak and Shake restaurant, which was open for business at that hour, reporting that the restaurant's video camera showed that a black male dressed in all black was suspiciously “hanging out” or “hiding” near the restaurant's dumpster located behind the restaurant. The restaurant employees and the police were aware that an armed robbery had recently occurred at the restaurant. Three police officers were dispatched to the scene. A short distance from the restaurant, one of the officers saw a man, later identified as Johnson, who matched the description of the man seen behind the restaurant. The officer saw Johnson walking away from the restaurant near a Kroger grocery store (the only other store open in the area), called the other two officers on his radio, and then stopped Johnson to question him about what he was doing in the area. The officer approached Johnson, patted him down for weapons, and found none. The officer testified that he was aware of the prior armed robbery at the restaurant, that he suspected another armed robbery was possibly about to occur, and that he conducted the pat-down for his own safety to determine if Johnson was armed. At about the same time, the other two officers arrived where Johnson was stopped. The officers asked Johnson what he was doing in the area at that time of day, and Johnson responded that he was there “to get the phone number of a cab company.” At that point, one of the officers asked Johnson if he had any narcotics on him, which he denied, and asked for consent to search his person for narcotics. Johnson consented to the search, and the officer conducting the search found the controlled substance at issue on Johnson's person and arrested him.

There is no violation of the Fourth Amendment protection against unreasonable searches and seizures where a police officer stops a person to investigate the officer's reasonable suspicion “that the person stopped is, or is about to be, engaged in criminal activity.” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). To establish reasonable suspicion to make an investigative stop, the totality of the circumstances must show that the officer had “specific and articulable facts which, taken together with rational inferences from those facts ... [provided] a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Vansant v. State, 264 Ga. 319, 320, 443 S.E.2d 474 (1994) (punctuation omitted). In considering the totality of the circumstances, “[t]his process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citations and punctuation omitted). Even where the circumstances may be susceptible to an innocent explanation, “[a] determination that reasonable suspicion exists ... need not rule out the possibility of innocent conduct.” Id. at 277, 122 S.Ct. 744. Moreover, in 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, 88 S.Ct. 1868. 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, 88 S.Ct. 1868.

Applying these standards, the evidence was sufficient to show that the officers who stopped and questioned Johnson had a basis for a reasonable suspicion that Johnson was, or was about to be, engaged in criminal activity, and had a reasonable belief that he posed a threat to their safety. Johnson matched the description of the man seen by restaurant employees hiding or loitering at 3:00 a.m. behind the restaurant where they worked at which an armed robbery had recently occurred. Given these circumstances, it was reasonable for the officers to suspect that Johnson was about to engage in criminal activity and to stop him to investigate what he was up to. In response to initial questions about why he was there, Johnson responded that he was there “to get the phone number of a cab company.” In light of the report that Johnson was seen loitering or hiding behind the restaurant, this improbable response could only have served to heighten reasonable suspicions that he was about to engage in some type of illegal activity. The fact that one of the officers who stopped Johnson subjectively characterized his explanation for being present there as “probable” was irrelevant to the Fourth Amendment inquiry. “An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer's state of mind, as long as the circumstances, viewed objectively, justify the action. The officer's subjective motivation is irrelevant.” Brigham City v. Stuart, 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (citation and punctuation omitted); Johnson v. State, 299 Ga.App. 474, 478–480, 682 S.E.2d 601 (2009) (on motion for reconsideration). Rather, it is this Court's duty to determine whether the officers' actions were reasonable under the Fourth Amendment in light of all the objective facts, including Johnson's unlikely explanation that he was moving about in the area at that hour “to get the phone number of a cab company.” Under the circumstances, the officers' general questions about what he was doing and the specific question related to narcotic activity were reasonably within the scope of the investigative detention. ¹ Moreover, given Johnson's suspicious activity behind the restaurant and the prior armed robbery at the restaurant, it was also reasonable for the officer who initially stopped Johnson to believe that he could be armed and to pat him down for weapons. But even assuming the pat-down was not supported by a reasonable belief that Johnson was armed and posed a danger, because it was brief, yielded no evidence, and was not a basis for the further investigative detention, it did not taint Johnson's subsequent consent to the search. Langston v. State, 302 Ga.App. 541, 544, n. 3, 691 S.E.2d 349 (2010); St. Fleur v. State, 296 Ga.App. 849, 852–853, 676 S.E.2d 243 (2009). It follows that Johnson's consent to the officer's request to search his person for narcotics was valid, and the trial court correctly denied the motion to suppress.

2. The evidence was sufficient to show beyond a reasonable doubt that Johnson was guilty of the charged offense. OCGA § 16–13–30(a); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Judgment affirmed.

PHIPPS, P.J., and DILLARD, J., concur.

MIKELL, C.J., concurs specially and in the judgment only.

SMITH, P.J., and BARNES, P.J., concur in the judgment only.

McFADDEN, J., dissents.

MIKELL, Chief Judge, concurring specially.

I write separately because I believe both the majority and the dissent have used the incorrect standard of review. I agree with the majority that any initial illegality did not taint the subsequent consent to search, and I agree with the judgment reached by the majority.

1. Standard of Review. I object, as...