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                                http://www.gaappeals.us/rules


                                                                  November 20, 2015




In the Court of Appeals of Georgia
 A15A0887. MAY v. 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 SE2d 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). 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, No.

S14G1765, 2015 WL 6629769, at *1 (1) (a) (Ga. Nov. 2, 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


                                           2
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

                                            3
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
        However, at the motion hearing, May did not challenge the seizure of the
glass pipe taken from his residence.
      2
       The “plain feel” doctrine is a corollary to the “plain view” doctrine as set out
in Minnesota v. Dickerson, 508 U.S. 366 (113 SCt 2130, 124 LE2d 334) (1993). State

                                           4
      1. “Under Terry v. Ohio [392 U.S. 1 (88 SCt 1868, 20 LE2d 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 SE2d

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). 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 SE2d 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 SE2d 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 SE2d 766)

v. Cosby, 302 Ga. App. 204, 205 (690 SE2d 519) (2010).

                                          5
(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). 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 SCt 2130, 124 LE2d 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.”

                                            6
      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 determination

that the sergeant did not manipulate the contraband and that he immediately

recognized it as such upon putting pressure on the area of May’s front pants pocket.

                                            7
Specifically, the trial court was able to view and assess how the sergeant

demonstrated the pat-down. Since the trial judge had the benefit of observing this

demonstration, and we do not, we must defer to the judge’s implicit finding that the

sergeant’s demonstration provided credible support for his earlier testimony that he

immediately identified the object as contraband. See Nelson v. State, 317 Ga. App.

527, 532, n.5 (731 SE2d 770) (2012).

      Accordingly, we affirm the trial court’s denial of the motion to suppress.

      Judgment affirmed. Doyle, C. J., Andrews, P .J., Boggs and Ray, JJ., concur.

Barnes, P. J., and Phipps, P. J., dissent.




                                             8
 A15A0887. MAY v. THE STATE.

      BARNES, Presiding Judge, dissenting.

      I disagree with the majority’s decision to affirm the trial court’s finding that the

officer in this case was entitled to reach into May’s pocket and pull out contraband

after ostensibly patting him down for weapons. Therefore, I respectfully dissent from

the majority opinion.

      “The right of the people to be secure in their persons ... against unreasonable

searches and seizures, shall not be violated.” U. S. Constitution, Fourth Amendment.

That right is echoed in the Georgia Constitution, Ga. Const. of 1983, Art. I, Sec. I,

Par. XIII. Our judicial system has sought to clarify the conditions under which

governmental intrusion is allowed into our homes and our persons and when it is not.

We have defined the three tiers of police-citizen encounters, and within those tiers,

we have outlined the conditions under which an officer may lawfully put his hands

on a citizen, absent a warrant or exigent circumstances. “[T]o proceed from a stop to

a frisk, the police officer must reasonably suspect that the person stopped is armed
and dangerous.” Arizona v. Johnson, 555 U.S. 323, 326-27 (129 SCt 781, 172 LE2d

694) (2009). If the officer feels an object whose contour or mass makes its identity

apparent as a weapon or contraband, “a warrantless seizure would be justified by the

same practical considerations that inhere in the plain-view context.” Minnesota v.

Dickerson, 508 U.S. 366, 375-76 (113 SCt 2130, 124 LE2d 334) (1993).

      The key is whether the incriminating character of the object in the suspect’s

clothes was immediately apparent to the officer. In Dickerson, the Court agreed with

the Minnesota Supreme Court’s conclusion that the police officer “overstepped the

bounds of the ‘strictly circumscribed’ search for weapons allowed under Terry” v.

Ohio, 392 U.S. 1, 26 (88 SCt 1868, 20 LE2d 889) (1968), when “the officer

determined that the lump [of cocaine] was contraband only after squeezing, sliding

and otherwise manipulating the contents of the defendant’s pocket — a pocket which

the officer already knew contained no weapon.” (Citation and punctuation omitted.)

Dickerson, 508 U.S. at 378 (III).

      As in Dickerson, in this case, the officer’s testimony at the motions hearing

establishes that he did not immediately identify the small amount of

methamphetamine in May’s pocket when he patted May down for weapons. The trial

court’s finding otherwise — that “the item’s contour and mass, without being


                                         2
otherwise manipulated, made its identity as contraband immediate apparent to [the

officer] given his training and expertise” — is simply not supported by the officer’s

testimony and the stipulations of fact agreed to by the prosecution and defense.

      The parties stipulated that the amount of methamphetamine in May’s pocket

“weighed less than one gram,” and I take judicial notice of the fact that an ounce

contains 28 grams. The officer testified that he felt “a little small bulge in [May’s]

right front pocket” and could tell as he “manipulated” the bulge with his open hand

that it was a baggie with a hard substance in it. That is not a seizure supported by the

“plain feel” doctrine and was not authorized by our Federal or Georgia Constitution.

      The rule of law applies equally to the State and the defendant in a criminal

case, and affirming a conviction for possession of a controlled substance under these

circumstances erodes public trust.

      Public confidence in our system of justice is of utmost importance. The
      uniform application of established rules of law both within and outside
      the context of criminal trial proceedings engenders not only the public's
      faith and trust in our system of justice, but also respect for and
      cooperation with the law.


State v. Thackston, 289 Ga. 412, 419 (716 SE2d 517) (2011) (Benham, J., dissenting

in part and concurring in part).


                                           3
      For these reasons, I respectfully dissent from the majority opinion affirming

this conviction.

      I am authorized to state that Presiding Judge Phipps joins in this opinion.




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