May v. State

334 Ga.App. 807

780 S.E.2d 455

MAY

v.The STATE.

No. A15A0887.

Court of Appeals of Georgia.

Nov. 20, 2015.

David G. Williams Jr., Philip Earl Clark, for Appellant.

Ronald Victor McNease Jr., Layla Hinton Zon, for the State.

McMILLIAN, Judge.

Following a stipulated bench trial, Rocky Eugene May, Jr. was convicted of possession of methamphetamine and sentenced to three years on probation. May appeals, contending that the trial court erred by denying his motion to suppress evidence seized when police officers responded to a domestic disturbance call at his residence. We affirm.

In Hughes v. State, 296 Ga. 744, 770 S.E.2d 636 (2015), our Supreme Court explained what standard of review appellate courts should apply when reviewing the grant or denial of a motion to suppress. As an overarching principle, "[w]hen the facts material to a motion to suppress are disputed, it generally is for the trial judge to resolve those disputes and determine the material facts." Id. at 746(1), 770 S.E.2d 636. From this principle, the Court identified three corollaries:

First, an appellate court generally must accept those findings unless they are clearly erroneous. Second, an appellate court must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. And third, an appellate court generally must limit its consideration of the disputed facts to those expressly found by the trial court.

(Citations omitted.) Id. Related to these corollaries, the Court also noted that "less deference to the trial court is owed to the extent that material facts definitively can be ascertained exclusively by reference to evidence that is uncontradicted and presents no questions of credibility." Id. at n. 5 (citing case involving material facts that could be discerned from a video recording). See also State v. Allen, ––– Ga.App. ––––, ––––(1)(a), 779 S.E.2d 248, 251 (1)(a) (2015).

The only witness at the hearing on the motion to suppress was a sergeant with the Walton County Sheriff's Office who conducted the search during which the contested evidence was seized. The sergeant's testimony, construed in favor of the trial court's factual findings, showed that on July 18, 2013, he responded to a domestic disturbance call at May's residence. When he arrived, he told May, who was standing on the front porch, that he was responding to a domestic call. May explained that he and his girlfriend had gotten into a dispute over a set of car keys and that she had already left the residence. When a second officer arrived, he requested May's consent to walk through the residence to make sure that May's girlfriend was not inside. May agreed, and the second officer conducted the search while the sergeant remained on the porch with May.

While inside the house, the second officer observed a clear, glass pipe, which the sergeant recognized as a pipe used to smoke methamphetamine. After he observed the pipe, the sergeant thought that he might be dealing with someone who could be under the influence of methamphetamine and advised May that he was going to do a pat-down for the safety of both officers. The sergeant testified that during the pat-down, he felt a "little small bulge in [May's] front, right pocket." He further testified, "I could tell as I manipulated it with my open hand that it was ... some sort of baggie and it had some sort of hard substance in it, crystal substance. In my training and past experience, I knew that was probably going to be contraband, that it was going to be methamphetamine." The State then asked, "So as soon as you began the pat-down, you immediately realized that it was some type of drug or baggie?" The sergeant responded, "Controlled substance, yes, sir." The sergeant asked May if he had any methamphetamine on him, and when May said no, the sergeant reached into May's pocket and pulled out a clear plastic bag that contained less than one gram of methamphetamine. May was arrested and subsequently charged with possession of methamphetamine.

May moved to suppress the evidence obtained from the search of his person and his residence.¹ The trial court denied the motion, ruling that the officer was entitled to conduct a pat-down for weapons for the officers' safety based on the court's determination that (1) "the officers were called to the scene because of a potentially violent, domestic dispute," and (2) the first officer had "testified that in his experience those under the influence of methamphetamine are volatile and potentially dangerous." The court also ruled that the officer was entitled to remove the baggie from May's pocket pursuant to the "plain feel" doctrine. May was subsequently convicted of possession of methamphetamine following a bench trial.

On appeal, May contends that: (1) the pat-down was not justified and (2) the sergeant improperly seized the contraband pursuant to the "plain feel" doctrine.²

1. "Under Terry v. Ohio [392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ], a law enforcement officer, for his own protection and safety, may conduct a [pat-down] to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted." Jones v. State, 314 Ga.App. 247, 250–51(2), 723 S.E.2d 697 (2012). But in order to conduct such a search, the officer first "must have constitutionally adequate, reasonable grounds for doing so." (Citation omitted.) Id. at 251(2), 723 S.E.2d 697. Therefore, "[s]o long as the officer ... has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose." (Citation and punctuation omitted.) Thompson v. State, 230 Ga.App. 131, 133, 495 S.E.2d 607 (1998). "[A]n officer need not 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." (Citation and punctuation omitted.) Mwangi v. State, 316 Ga.App. 52, 56(1)(b), 728 S.E.2d 729 (2012).

In similar circumstances, we have held that investigating the report of a domestic violence situation supported an officer's reasonable belief that the suspect was a safety concern. See Lester v. State, 287 Ga.App. 363, 365, 651 S.E.2d 766 (2007). In addition, in this case, the investigating officer, who was experienced and trained in narcotics detection, found a clear pipe in plain view on a table, which the officer believed had been used to smoke methamphetamine. We have found that suspicion of drug activity is a factor for a reasonable officer to believe that his safety was at risk. Jones, 314 Ga.App. at 251(2), 723 S.E.2d 697. And the sergeant testified that in his experience, persons under the influence of methamphetamine are volatile and dangerous. Accordingly, we discern no error in the trial court's determination that the pat-down was justified.

2. Turning to the issue of whether the seizure of the contraband was allowed under the plain feel doctrine, the law is well established that "[i]f a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons." Minnesota v. Dickerson, 508 U.S. 366, 375(II)(B), 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). Applying this doctrine, the trial court found that "[b]ased on [the sergeant's] testimony, the item's contour and mass, without being otherwise manipulated, made its identity as contraband immediately apparent to him given his training and expertise."

As previously noted, the State asked the sergeant on direct whether as soon as he began the pat-down, he "immediately realized" that the object in May's pocket was "some type of drug or baggie," to which the officer responded, "Controlled substance, yes, sir." May did not object to this question as leading or otherwise, and thus the trial court was authorized to rely on the sergeant's testimony in this regard. May's counsel further explored the specifics of the search during cross-examination, as did the State on re-direct. Although it is true that the sergeant used the word "manipulate" at one point in his testimony, we do not believe that his use of that word negates his other testimony that he immediately identified the object as contraband. Moreover, during cross-examination, the sergeant explained that he might have used the word "manipulate" incorrectly and stood up and showed the trial court how he performed the pat-down.

Under Hughes, this Court must accept the trial court's factual findings unless clearly erroneous, and we must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. Based on that standard of review, we find ample evidence to support the trial court's...