                               FOURTH DIVISION
                                 DOYLE, P. J.,
                            COOMER and MARKLE, JJ.

                     NOTICE: Motions for reconsideration must be
                     physically received in our clerk’s office within ten
                     days of the date of decision to be deemed timely filed.
                                 http://www.gaappeals.us/rules


                                                                         July 9, 2019




In the Court of Appeals of Georgia
 A19A0889. CHAMBERS v. THE STATE.

      PER CURIAM.

      Convicted of possession of cocaine with intent to distribute, Robert Kenzie

Chambers appeals, contending that (1) the trial court erred in denying his motion to

suppress because his detention was not justified by exigent circumstances, and (2) his

trial counsel rendered ineffective assistance in failing to request a jury charge on

simple possession. For the reasons that follow, we affirm.

      Viewed in the light most favorable to the verdict,1 the evidence shows that in

January 2009, an agent with the Oconee Drug Task Force received a tip from an

unpaid confidential informant. The agent had known the informant for five years, the

informant’s previous tips had resulted in ten to fifteen arrests, and the informant had

      1
          Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
never given the agent false information. The agent contacted members of local law

enforcement and relayed the tip: Chambers was traveling to his residence in a gold

Ford Explorer driven by his girlfriend and he would be carrying a large quantity of

crack cocaine. The agent asked an officer with the Helena Police Department to be

on the lookout for Chambers and to detain him. The officer drove to Chambers’s

residence and observed Chambers’s girlfriend pull into the driveway in a gold

Explorer, with Chambers in the passenger seat.

      The officer approached the passenger side of the vehicle and told Chambers

and his girlfriend to put their hands on the dash. Meanwhile, several teenagers

gathered around the vehicle. Chambers reached into his pants, pulled out a gray cloth

bag, threw the bag out the window of the vehicle to his son, and told him to run. The

officer asked for the bag, and Chambers’s son handed it to the officer. The bag

contained numerous pieces of suspected crack cocaine, three bags of suspected

powder cocaine, and numerous small baggies. Subsequent testing showed the

suspected narcotics to be 12.67 grams of cocaine.

      Prior to trial, Chambers filed a motion to suppress, arguing that there was no

probable cause for the stop. The motion was denied from the bench following a

hearing.

                                         2
        At trial, the agent testified that the street value of the drugs was approximately

$1,267 and, based on his experience, Chambers did not possess the drugs for personal

use. In his defense, Chambers testified and denied owning the bag. He further

testified that he had given a ride to a man he knew, who had left the bag in his car,

and explained that he threw the bag out of the window so that his son could throw it

away.

        A jury convicted Chambers of possession with intent to distribute. He timely

filed a motion for new trial in 2010, which was not denied until 2018. This appeal

follows.2

        2
          Chambers’s trial took place on November 16, 2010, and the judgment of
conviction was entered that same day. Trial counsel filed a motion for new trial on
December 13, 2010. In 2012, Chambers filed a pro se motion for new counsel and a
pro se amended motion for new trial, raising, for the first time, his claim for
ineffective assistance. On October 30, 2012, Chambers’s current counsel filed an
entry of appearance. On November 1, 2012, Chambers filed a pro se request for a
hearing on his motion for new trial and a brief in support of his motion. No hearing
was set. On July 18, 2014, Chambers again filed his pro se amended motion for new
trial. On August 22, 2016, Chambers sent a letter to the clerk of court, inquiring about
his motion for new trial. Rather than setting the matter for a hearing, the clerk
returned Chambers’s pro se motions to him and suggested that he direct any further
questions to his “former attorney” – who still represents him today – or the district
attorney. At some point in the intervening years, the judge who presided over
Chambers’s trial retired.
        Apparently, it was not until the Supreme Court’s directive in Owens v. State,
303 Ga. 254 (811 SE2d 420) (2018), that the clerk of court reviewed the criminal case
files, “discovered” that Chambers’s motion remained pending, and referred the matter

                                            3
      1. Chambers contends that the trial court erred in denying his pretrial motion

to suppress because, even if the officer had probable cause to detain him, his

detention was not justified by exigent circumstances.

      In reviewing a trial court’s ruling on a motion to suppress, this Court must

construe the record in the light most favorable to the trial court’s factual findings and

judgment, and “all relevant evidence of record, including evidence introduced at trial,

as well as evidence introduced at the motion to suppress hearing, may be considered.”

Pittman v. State, 286 Ga. App. 415, 416 (650 SE2d 302) (2007) (punctuation

omitted). The trial judge sits as the trier of fact and its “findings based upon



to a judge for a hearing. See id. at 260 (4); Uniform Superior Court Rule 39.3.1.
Finally, the court set Chambers’s motion for new trial for a hearing on August 16,
2018, which was rescheduled to September 19, 2018, after the Department of
Corrections failed to produce him for the August hearing. In the meantime, Chambers
filed a counseled amended motion for new trial. Following the hearing, Chambers’s
motion for new trial was denied on October 4, 2018. The case was docketed in this
Court on December 4, 2018.
       Suffice to say, “[t]his sort of extraordinary post-conviction, pre-appeal delay
puts at risk the rights of defendants and crime victims and the validity of convictions
obtained after a full trial. It is the duty of all those involved in the criminal justice
system, including trial courts and prosecutors as well as defense counsel and
defendants, to ensure that the appropriate post-conviction motions are filed, litigated,
and decided without unnecessary delay.” Morgan v. State, 290 Ga. 788, 789 n.2 (725
SE2d 255) (2012) (citation and punctuation omitted). Nevertheless, this delay does
not affect the outcome of this appeal as Chambers has asserted no error associated
with it. See id.

                                           4
conflicting evidence are analogous to the verdict of a jury and should not be disturbed

by a reviewing court if there is any evidence to support them.” Brown v. State, 293

Ga. 787, 802-803 (3) (b) (2) (750 SE2d 148) (2013) (punctuation omitted). “A trial

court’s ruling on a motion to suppress will be upheld if it is right for any reason.”

Burkes v. State, 347 Ga. App. 790, 791 (1) (821 SE2d 33) (2018).

      Here, the trial court found that the informant’s tip was reliable and

corroborated by the officer’s observations on the scene, such that there was probable

cause to arrest Chambers. Without making any additional factual findings, the court

also found “exigent circumstances[.]”

      Generally, the Fourth Amendment prohibits warrantless searches unless “they

fall within a well-established exception to the warrant requirement, including

searches conducted pursuant to consent, the existence of exigent circumstances, and

searches incident to a lawful arrest.” State v. Turner, 304 Ga. 356, 359 (1) (818 SE2d

589) (2018) (punctuation omitted). However, Fourth Amendment rights are personal,

and, as such, “a defendant may move to suppress evidence obtained through an illegal

search and seizure only when his own rights were violated.” Jones v. State, 320 Ga.

App. 681, 685 (2) (740 SE2d 655) (2013) (punctuation omitted).



                                          5
      In this case, the unpaid informant had a history of providing reliable

information to the agent, and the informant’s tip was corroborated by the officer’s

observation at the scene that Chambers was traveling to his home in the passenger

seat of his gold Explorer driven by his girlfriend. “When coupled with corroboration

by the personal observation of a police officer, a reliable informant’s tip is sufficient

to establish probable cause for a warrantless search.” Wells v. State, 212 Ga. App. 60,

63 (2) (441 SE2d 460) (1994). Accordingly, the officer had probable cause to detain

Chambers. See id.

      Moreover, upon approaching the vehicle, the officer ordered Chambers to place

his hands on the dash, but instead Chambers threw the bag out of the window. As our

Supreme Court has explained, “absent physical force,” an encounter with a police

officer is not considered a seizure under the Fourth Amendment, unless there is

“submission to the assertion of authority.” State v. Walker, 295 Ga. 888, 891 (764

SE2d 804) (2014). Because Chambers did not comply with the officer’s command,

his abandonment of the bag was not the fruit of any seizure, and there was no need

to suppress the bag. See id.; Sims v. State, 258 Ga. App. 662, 663 (574 SE2d 879)

(2002) (affirming denial of motion to suppress when defendant threw away bag

containing cocaine before submitting to officer’s request).

                                           6
      Finally, to the extent that Chambers challenges the officer’s authority to search

the bag, “when the accused disavows ownership of or other legitimate possessory

interest in the item searched, he has no legitimate expectation of privacy in that item,

and thus a search violates no right.” Scandrett v. State, 244 Ga. App. 200, 201 (534

SE2d 908) (2000) (punctuation omitted). Chambers testified that the bag did not

belong to him. As such, he had no legitimate expectation of privacy in it and lacked

standing to challenge its search. See Duncan v. State, 346 Ga. App. 777, 784 (2) (815

SE2d 294) (2018) (holding that defendant had no legitimate expectation of privacy

in bag and lacked standing to challenge search of bag when he contended that

someone else owned bag); Scandrett, 244 Ga. App. at 201 (affirming denial of motion

to suppress when defendant denied any possessory interest in the bag that was

searched).

      Ultimately, the contents of the bag were admissible, and the trial court did not

err in denying Chambers’s motion to suppress.3

      3
         In his brief, Chambers argues that no “exigent circumstances” justified his
detention, but this argument is not persuasive. As a general matter, exigent
circumstances are used to justify warrantless entry into a house when, inter alia, an
officer reasonably fears the imminent destruction of evidence. James v. State, 294 Ga.
App. 656, 659 (670 SE2d 181) (2008). Here, there was no entry into Chambers’s
house or vehicle prior to the discovery of the bag. Nevertheless, pretermitting whether
exigent circumstances have any application in this case, the officer could have

                                           7
      2. Chambers also argues that his trial counsel provided ineffective assistance

by failing to request a jury charge on simple possession of cocaine as a lesser-

included offense of possession with intent to distribute.

      In order to prevail on a claim of ineffective assistance, Chambers must show

both that counsel’s performance was deficient and that the deficiency prejudiced him

such that there is a reasonable probability that, but for the deficiency, the outcome of

his trial would have been different. Grant v. State, 295 Ga. 126, 130 (5) (757 SE2d

831) (2014) (citing Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d

674) (1984)). “There is a strong presumption that trial counsel provided effective

representation and, as a general rule, matters of reasonable trial tactics and strategy,

whether wise or unwise, do not amount to ineffective assistance of counsel.”

Richardson v. State, 276 Ga. 548, 552 (3) (580 SE2d 224) (2003). On review, we

defer to the trial court’s factual findings and credibility determinations unless clearly

erroneous, but we review its legal conclusions de novo. Grant, 295 Ga. at 130 (5).

      At the hearing on the motion for new trial, counsel testified that he did not

request a jury charge on simple possession because Chambers was not interested in

reasonably feared the destruction of evidence, in light of the tip, the teenagers
surrounding the vehicle, and the fact that Chambers actually threw the bag out of the
vehicle. See id.

                                           8
serving any prison time. To that end, Chambers refused a plea offer. With this in

mind, counsel believed that the only chance for an acquittal was to force the State to

meet its burden of showing possession with intent to distribute, as opposed to simple

possession.

      The undisputed evidence at trial was that the bag contained 12.67 grams of

cocaine and that the cocaine was not possessed for personal use. Notably, there was

no evidence to support possession of a smaller amount of cocaine. Moreover, trial

counsel’s decision not to request a jury charge on a lesser-included offense in order

to pursue an all-or-nothing defense was a matter of trial strategy. See Allen v. State,

286 Ga. App. 469, 474 (2) (b) (649 SE2d 583) (2007). Accordingly, Chambers has

not shown that his counsel was ineffective.

      Judgment affirmed. Division Per Curiam. All Judges concur.




                                          9
