(Ga. L. 1966, p. 567, § 13.)
Cross references.- Appeal by state from order, decision, or judgment sustaining motion to suppress evidence illegally seized, § 5-7-1.
Law reviews.- For article discussing limited application of this section by the state appellate courts and advocating a state exclusionary rule, see 11 Ga. L. Rev. 105 (1976). For article surveying developments in Georgia criminal law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 95 (1981). For annual survey of criminal law, see 38 Mercer L. Rev. 129 (1986). For annual survey on criminal law and procedure, see 42 Mercer L. Rev. 141 (1990). For note, "Arizonia v. Evans: Carving Out Another Good-Faith Exception to the Exclusionary Rule," see 47 Mercer L. Rev. 1135 (1996). For note, "United States v. Patane: The Supreme Court's Continued Assault on Miranda," see 56 Mercer L. Rev. 1499 (2005). For comment on Talbert v. State, 224 Ga. 291, 161 S.E.2d 279 (1968), see 5 Ga. St. B.J. 256 (1968). For comment on Connally v. State, 237 Ga. 203, 227 S.E.2d 352, see 11 Ga. L. Rev. 200 (1976). For comment on warrantless search of defendant's home, see 41 Emory L.J. 321 (1992).
JUDICIAL DECISIONSANALYSIS
General Consideration
Purpose of section procedural.
- O.C.G.A. § 17-5-30 authorizes a motion to suppress any evidence illegally seized and thereby forestall a full-blown trial with all a trial's ramifications when the state cannot establish that the state's incriminating evidence is admissible as evidence. Though the invasion of privacy may be the underlying right to be protected, the purpose of that section is procedural, to suppress that which is inadmissible. State v. Johnston, 160 Ga. App. 71, 286 S.E.2d 47 (1981), aff'd, 249 Ga. 413, 291 S.E.2d 543 (1982).
Purpose of motion to suppress.
- Motion to suppress is used to suppress evidence (property) illegally seized. Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975), cert. denied, 428 U.S. 910, 96 S. Ct. 3223, 49 L. Ed. 2d 1218 (1976).
Restraint in use of illegally obtained evidence.
- O.C.G.A. § 17-5-30 not only affords protection from constitutionally violative searches and seizures but also authorizes restraint in use of illegally obtained evidence. State v. Johnston, 160 Ga. App. 71, 286 S.E.2d 47 (1981), aff'd, 249 Ga. 413, 291 S.E.2d 543 (1982).
Broad range of unlawful search and seizures covered.
- Language of O.C.G.A. § 17-5-30 is broad enough to encompass unlawful seizures which do not involve any question of a search in violation of U.S. Const., amend. 4. In fact, the heading of that section states as much. State v. Johnston, 160 Ga. App. 71, 286 S.E.2d 47 (1981), aff'd, 249 Ga. 413, 291 S.E.2d 543 (1982).
Section protects only against unreasonable search and seizure.
- Ga. L. 1966, p. 567, § 13 (see O.C.G.A. § 17-5-30) furnishes a procedural device for the protection of constitutional guaranties against unreasonable search and seizure only. Hawkins v. State, 117 Ga. App. 70, 159 S.E.2d 440 (1967).
Attacking validity of indictment.
- O.C.G.A. § 17-5-30 is not a proper method of attacking the validity of an indictment. Ibietatorremendia v. State, 163 Ga. App. 399, 294 S.E.2d 646 (1982).
Motion to suppress is statutory and relates only to "evidence illegally seized." Goswick v. State, 150 Ga. App. 279, 257 S.E.2d 303 (1979).
Motion not common law.
- Because a motion to suppress was not a part of the common law and prior to 1966 "was unknown in the law of this state" it has only such scope and jurisdiction as are contained within Ga. L. 1966, p. 567, § 13 (see O.C.G.A. § 17-5-30) and it is not error for a court to refuse to hear the motion. Goswick v. State, 150 Ga. App. 279, 257 S.E.2d 303 (1979).
Not applicable to suppression of statements.
- Despite a claim that a defendant's motion to suppress inculpatory statements made during a police interview was procedurally defective under O.C.G.A. § 17-5-30(b), the granting of such a motion could not be reversed on that basis as the statute only applied to the suppression of tangible evidence. State v. Lee, 295 Ga. App. 49, 670 S.E.2d 879 (2008).
Suppression motion properly denied.
- Trial court properly denied the defendant's motion to suppress evidence found during the execution of a search warrant as the appellate court found that, after reviewing all of the information in the affidavit as a whole, it provided sufficient probable cause for the magistrate to issue the search warrant and that the information provided was not stale. The warrant was executed the same day that the warrant was issued and was supported by a law enforcement affidavit reciting a stop made of the defendant's vehicle for a failure to have tags and various drugs and drug-related items found in the vehicle that served as the basis for obtaining the search warrant for the defendant's home. Cleveland v. State, 290 Ga. App. 835, 660 S.E.2d 777 (2008).
Evidence in plain view was not suppressed.
- Suppression of evidence seized from a defendant's home and car was not required as deputies initially entered the defendant's home in search of an assault victim with the defendant's consent, entry into the home was also supported under the exigent circumstances exception to the warrant requirement, blood evidence that was observed in plain view could be seized, photos of evidence inside the home that were in plain view could be taken even if the exigency had expired, photos taken of blood and hair evidence that were in plain view in the defendant's car did not offend U.S. Const., amend. IV, and even if opening the door of the car to assist in taking the photos constituted a warrantless search, it was justified by the exigencies of the case. Lord v. State, 297 Ga. App. 88, 676 S.E.2d 404 (2009).
Trial court did not err in refusing to suppress statements the defendant made after an officer told the defendant that withholding information would make things worse for the defendant because the officer's statement to the defendant was, in context, an admonition not to damage the defendant's credibility but to tell the truth, and the statement did not show the physical or mental torture or the coercion by threats that constitutes the remotest fear of injury forbidden by former O.C.G.A. § 24-3-50 (see O.C.G.A. § 24-8-824); since no promises of lighter punishment were made, such an admonition to tell the truth did not constitute hope of benefit so as to render involuntary any statement made thereafter. Madrigal v. State, 287 Ga. 121, 694 S.E.2d 652 (2010), overruled on other grounds, State v. Kelly, 290 Ga. 29, 718 S.E.2d 232 (2011).
Evidence seized from motel room not suppressed.
- Trial court did not err in denying the defendant's motion to suppress evidence seized in a hotel suite because under the totality of the circumstances, the magistrate was authorized to make a pragmatic, commonsense judgment that there was a fair probability that a search of the suite would produce evidence that the occupants were in possession of drugs; a detective interviewed a member of the hotel's housekeeping staff who had seen drugs in the suite, and the affidavit showed that the witness, who was identified by name in the affidavit, reported that a guest in the room requested that the suite be cleaned while the guests went to get something to eat and that immediately upon entering the suite, the housekeeper observed a large quantity of what appeared to be marijuana and other drugs lying openly on the desk and television. Glass v. State, 304 Ga. App. 414, 696 S.E.2d 140 (2010).
Suppression motion denied regarding evidence from briefcase.
- Trial court did not err in denying the defendant's motion to suppress evidence officers seized from the defendant's briefcase because the contents of the briefcase were seized pursuant to a valid search warrant based upon information wholly independent from law enforcement's illegal use of the friend to obtain the briefcase and, thus, the search met the criteria for admissibility under the independent source doctrine; although the defendant had a reasonable expectation of privacy in the defendant's locked briefcase and did not abdicate control or responsibility of the briefcase, the investigating officer became aware of the existence of the briefcase and the briefcase's contents based upon the statements of the victim and another woman and was able to obtain a search warrant for the briefcase's contents based upon that information. Wilder v. State, 304 Ga. App. 891, 698 S.E.2d 374 (2010).
Trial court did not err in denying the defendant's motion to suppress a firearm police officers seized from the defendant's person because the officers conducting the initial pat-down of the defendant acted in accordance with the Fourth Amendment, and there was no taint upon the second pat-down leading to seizure of the firearm; because the initial pat-down of the defendant was supported by particularized facts observed by the officers, and the defendant's actions were consistent with the officers' hypothesis that the defendant was contemplating a robbery of a store manager, the trial court was authorized to find that a reasonably prudent person under the circumstances would have been warranted in believing that the defendant posed a danger to his or her safety, such that the officers' act of conducting the initial pat-down search for a weapon was constitutionally permissible. Lewis v. State, 307 Ga. App. 593, 705 S.E.2d 693 (2011).
Denial of suppression motion for saliva testing in rape case.
- Trial court did not err in denying the defendant's motion to suppress as there was a substantial basis for concluding that probable cause existed for the issuance of the search warrant for a saliva sample from the defendant because the officer averred in the affidavit that there was probable cause to believe that the defendant had committed the rape of the victim; and the affidavit included averments that the victim's assailant had attempted vaginal penetration repeatedly, and that a rape kit had been completed soon after the assault. Mincey v. State, 332 Ga. App. 690, 774 S.E.2d 752 (2015).
Good-faith exception inapplicable.
- Good-faith exception to the exclusionary rule enunciated by the U.S. Supreme Court in United States v. Leon, 468 U.S. 987 (1984) is not applicable in Georgia in light of the legislatively-mandated exclusionary rule found in O.C.G.A. § 17-5-30. Gary v. State, 262 Ga. 573, 422 S.E.2d 426 (1992).
Even though the federally permissible good-faith exception to the probable cause requirement in the execution of a search warrant has been rejected in Georgia, such rule has no bearing when the subject evidence is the fruit of a bona fide investigation of an independent crime witnessed by the arresting officer. King v. State, 211 Ga. App. 12, 438 S.E.2d 93 (1993).
There is no "good faith" exception to the statutory exclusionary rule. State v. Gallup, 236 Ga. App. 321, 512 S.E.2d 66 (1999).
In a criminal prosecution in which the search warrant was invalidated because the warrant had been executed by an assistant magistrate, the state could not claim a good faith exception as none had been provided for in O.C.G.A. § 17-5-30. Beck v. State, 283 Ga. 352, 658 S.E.2d 577 (2008).
Trial court did not err in granting the defendant's motion to suppress because the only possible justification for the search and seizure involving the defendant was the officers' good-faith belief that the defendant was on probation and subject to a valid Fourth Amendment waiver; however, that option was foreclosed by case law as Georgia did not recognize a good faith exception to the exclusionary rule. State v. New, 331 Ga. App. 139, 770 S.E.2d 239 (2015), cert. denied, No. S15C1075, 2015 Ga. LEXIS 429 (Ga. 2015).
Exclusionary rule does not reach as far as does U.S. Const., amend. 4. State v. Young, 234 Ga. 488, 216 S.E.2d 586, cert. denied, 423 U.S. 1039, 96 S. Ct. 576, 46 L. Ed. 2d 413 (1975).
Entrapment is not a rationale for suppressing evidence, but an affirmative defense to a criminal prosecution. State v. Baker, 216 Ga. App. 66, 453 S.E.2d 115 (1995).
Grant of motion not subject to double jeopardy restrictions.
- Because grant of suppression motion is a matter of law for the trial court, it is not subject to double jeopardy restrictions of evidentiary findings, which are not subject to appeal by the state. Chastain v. State, 158 Ga. App. 654, 281 S.E.2d 627 (1981).
Information from informant sufficient to establish probable cause.
- Motion to suppress was properly denied because, although an officer possibly could have provided the magistrate with more detail concerning the confidential informant's past reliability, considering the information about the informant's relationship with the defendant and how the informant came to be in the defendant's apartment; that the officer knew the informant and found the information from the informant to be reliable in the past; the recent time frame for when the informant had been in the apartment and viewed suspected drugs and paraphernalia; and the confirmation that the occupants were convicted felons, the information relayed to the magistrate provided a substantial basis for the magistrate's finding of probable cause. Galloway v. State, 332 Ga. App. 389, 772 S.E.2d 832 (2015).
Persons entitled to benefit of section.
- Under the express terms of this section, the only persons entitled to the statute's benefit are persons "aggrieved by an unlawful search and seizure." No provision is made in this section for pretrial suppression of evidence deemed illegal for reasons other than unlawful search and seizure. Barnett v. State, 123 Ga. App. 369, 180 S.E.2d 921 (1971).
Pretrial motions to suppress are available only to persons aggrieved by unlawful searches and seizures. Foote v. State, 141 Ga. App. 18, 232 S.E.2d 366 (1977).
Standing.
- After defendant was charged with an offense, the essential element of which is possession, the defendant is endowed with automatic standing to challenge the validity of the searches of which the defendant complains. Reece v. State, 152 Ga. App. 760, 264 S.E.2d 258 (1979).
Because a murder defendant presented no admissible testimony on the question whether the defendant was aggrieved by an unlawful search and seizure, the defendant could not prove that the defendant had standing to raise a challenge to the legality of the search of a tote bag that had allegedly been stolen from one of the victims. Stinski v. State, 281 Ga. 783, 642 S.E.2d 1 (2007).
Because the defendant's own statements failed to show standing to contest an allegedly defective search warrant affidavit for a house the defendant claimed no connection to, trial counsel's reasonable strategic decision not to move for suppression of the evidence seized as a result was upheld. Lawton v. State, 285 Ga. App. 45, 645 S.E.2d 571 (2007), cert. denied, No. S07C1244, 2007 Ga. LEXIS 670 (Ga. 2007).
Because there was no evidence that the defendant was a subscriber of the phones tapped and no evidence that the defendant's voice was heard during the wiretapped conversations, the defendant lacked standing to seek suppression of the conversations from those wiretaps. Deleon-Alvarez v. State, 324 Ga. App. 694, 751 S.E.2d 497 (2013).
No standing to object to search.
- Passenger in car owned by driver's father has no standing to object to the search. Autry v. State, 150 Ga. App. 584, 258 S.E.2d 268 (1979).
Lack of standing to challenge search of hotel room as not "aggrieved" party.
- Order suppressing evidence seized from a hotel room was error because the defendant was a mere invitee visiting the room and, under O.C.G.A. § 17-5-30(a), only a person aggrieved by an unlawful search and seizure was permitted to move to suppress evidence; the defendant had no reasonable expectation of privacy in the hotel room searched, and thus the defendant was not "aggrieved" by the search within the meaning of § 17-5-30(a) and the Fourth Amendment and lacked standing to contest the search. State v. Carter, 299 Ga. App. 3, 681 S.E.2d 688 (2009).
Hearsay within hearsay.
- Mere existence of "hearsay upon hearsay" was not fatal to a search warrant because under the totality of the circumstances, the magistrate was informed of the underlying circumstances involving an undercover buy from the defendant, independent of the double hearsay, which did not depend upon the reliability of the hearsay declarations; further, a known informant's statements to police against penal interest elevated that statements' reliability. Cochran v. State, 281 Ga. 4, 635 S.E.2d 701 (2006).
Motion improper when motion fails to show defendant controls personalty seized or premises.
- When the motion to suppress failed to state facts showing that the property was taken from any house or place owned, occupied, or used by the defendant, or that the defendant had any proprietary interest in or right to possession of the property seized, the motion fails to show that the defendant was a person "aggrieved by an unlawful search and seizure" within the terms of Ga. L. 1966, p. 567, § 13. Norrell v. State, 116 Ga. App. 479, 157 S.E.2d 784 (1967).
Trial court is the finder of fact on motions to suppress evidence, and the trial court, rather than an appellate court, must judge the credibility of the witnesses and the weight of the evidence; a trial court correctly held that an officer's warrantless entry into the defendant's bedroom without the defendant's consent was illegal, but failed to decide if the defendant's later consent to search was freely and voluntarily given, and thus, the trial court's suppression order was vacated and the case was remanded. State v. Brown, 269 Ga. App. 875, 605 S.E.2d 628 (2004).
Burden of proof.
- When a defendant moves to suppress evidence based on an illegal search, the state bears the burden of proving that the search was lawful. State v. Kramer, 260 Ga. App. 546, 580 S.E.2d 314 (2003).
Failure to file motion did not constitute ineffective assistance of counsel.
- Defendant's claim that trial counsel was ineffective in failing to move to suppress defendant's post-arrest statement was without merit as trial counsel viewed the statement as exculpatory and failed to make the motion as part of counsel's trial strategy. Ogden v. State, 266 Ga. App. 399, 597 S.E.2d 491 (2004).
Defendant could not show that trial counsel's failure to file a motion to suppress constituted deficient performance because the defendant did not establish that a motion to suppress would have been granted; although the defendant argued that an officer's encounter with the defendant was unsupported by articulable facts of criminal conduct, under the totality of circumstances, the defendant's actions supported a reasonable, particularized suspicion that the defendant was involved in criminal activity. Odom v. State, 304 Ga. App. 615, 697 S.E.2d 289, cert. denied, No. S10C1801, 2010 Ga. LEXIS 927 (Ga. 2010).
Defendant's trial counsel was not deficient for failing to file a motion to suppress evidence because the defendant failed to show that police officers lied under oath during the trial; therefore, the defendant was unable to show that, if defense counsel had filed a motion to suppress on that basis, the trial court would have granted the motion. Bass v. State, 309 Ga. App. 601, 710 S.E.2d 818 (2011).
Defendant failed to establish that there was a reasonable probability that, but for the alleged deficiencies of trial counsel, the outcome of the trial would have been different because the defendant could not show prejudice due to trial counsel's failure to file a motion to suppress the approximately $1,500 discovered when the defendant was searched; even if the evidence had been excluded, the remaining evidence adduced at trial was overwhelming. Lowe v. State, 310 Ga. App. 242, 712 S.E.2d 633 (2011).
Trial counsel did not render ineffective assistance by failing to move to suppress evidence found on the defendant's person because any motion to suppress would have been without merit; when the officers lawfully approached and questioned the defendant the smell of alcohol on the defendant's person and emanating from a cup, and the officers' earlier observations of the defendant staggering and stumbling in the middle of the roadway, gave the officers probable cause to arrest the defendant for unlawfully walking upon the roadway while under the influence of alcohol, O.C.G.A. § 40-6-95, and the cocaine and digital scales subsequently found in the defendant's pockets were discovered pursuant to a lawful search incident to an arrest. White v. State, 310 Ga. App. 386, 714 S.E.2d 31 (2011).
Trial counsel did not perform deficiently by failing to renew the motion to suppress after evidence was presented at trial because there was no evidence that a renewed motion would have been granted or that the defendant suffered prejudice as a result of counsel's performance. Gibson v. State, 290 Ga. 6, 717 S.E.2d 447 (2011).
Trial counsel was not ineffective for failing to file a motion to suppress because probable cause to arrest the defendant and to search the defendant incident to that arrest had been shown on undisputed facts; therefore, the defendant could not make the requisite strong showing that a motion to suppress the evidence found during that search would have been meritorious. Coney v. State, 316 Ga. App. 303, 728 S.E.2d 899 (2012).
No ineffective assistance with suppression motion on wiretaps.
- Motion to remand for a hearing to determine if the defendant had standing or if trial counsel was ineffective for failing to move for suppression of the wiretaps was denied because the defendant lacked standing to seek suppression of the evidence from the wiretaps. Deleon-Alvarez v. State, 324 Ga. App. 694, 751 S.E.2d 497 (2013).
Because the defendant's lawyer elicited testimony from the prosecution witnesses that the defendant was never identified as an owner or subscriber of the three targeted cell phones monitored, nor was the defendant ever identified as a participant of the intercepted conversations, the defendant did not have standing to pursue suppression of the wiretap evidence, and neither the defendant's trial counsel nor counsel on a motion for new trial performed deficiently for failing to raise the suppression issue. Deleon-Alvarez v. State, 324 Ga. App. 694, 751 S.E.2d 497 (2013).
No ineffective assistance in failing to suppress evidence from cellphones.
- Trial counsel was not ineffective for failing to file motions to suppress search warrants for the two recovered cell phones and the information obtained therefrom because, although the warrants erroneously stated the date of the murder as November 6, 2014 rather than November 6, 2013, mere typographical or clerical errors did not ordinarily provide a basis to suppress the evidence; and, even if the error in the warrants was deemed not to be purely typographical or clerical, and the extracted data outside the permissible scope of the warrants, the defendant did not claim, much less show, any specific resulting prejudice. Dent v. State, 303 Ga. 110, 810 S.E.2d 527 (2018).
Cited in Gilmore v. State, 117 Ga. App. 67, 159 S.E.2d 474 (1967); Wood v. State, 224 Ga. 121, 160 S.E.2d 368 (1968); Taylor v. State, 118 Ga. App. 605, 164 S.E.2d 876 (1968); Austin v. State, 121 Ga. App. 244, 173 S.E.2d 452 (1970); Brundage v. Wilkins, 121 Ga. App. 652, 175 S.E.2d 108 (1970); Johnson v. State, 226 Ga. 805, 177 S.E.2d 699 (1970); Bridges v. State, 227 Ga. 24, 178 S.E.2d 861 (1970); Pruitt v. State, 227 Ga. 188, 179 S.E.2d 339 (1971); Johnston v. State, 227 Ga. 387, 181 S.E.2d 42 (1971); Huff v. Walker, 125 Ga. App. 251, 187 S.E.2d 343 (1972); Reed v. State, 126 Ga. App. 323, 190 S.E.2d 587 (1972); Traylor v. State, 127 Ga. App. 409, 193 S.E.2d 876 (1972); McCrary v. State, 229 Ga. 733, 194 S.E.2d 480 (1972); Reid v. State, 129 Ga. App. 657, 200 S.E.2d 454 (1973); Mobley v. State, 130 Ga. App. 80, 202 S.E.2d 465 (1973); Cadle v. State, 131 Ga. App. 175, 205 S.E.2d 529 (1974); Rogers v. State, 131 Ga. App. 136, 205 S.E.2d 901 (1974); Nealey v. State, 233 Ga. 326, 211 S.E.2d 286 (1974); Merritt v. State, 133 Ga. App. 956, 213 S.E.2d 84 (1975); Cook v. State, 134 Ga. App. 712, 215 S.E.2d 728 (1975); Ray v. State, 235 Ga. 467, 219 S.E.2d 761 (1975); Cash v. State, 136 Ga. App. 149, 221 S.E.2d 63 (1975); Connally v. State, 237 Ga. 203, 227 S.E.2d 352 (1976); Faglier v. State, 139 Ga. App. 104, 228 S.E.2d 25 (1976); State v. Keith, 139 Ga. App. 399, 228 S.E.2d 332 (1976); Ricks v. State, 140 Ga. App. 298, 231 S.E.2d 113 (1976); Dorsey v. State, 141 Ga. App. 68, 232 S.E.2d 405 (1977); Miller v. State, 238 Ga. 560, 233 S.E.2d 793 (1977); Yeldell v. State, 240 Ga. 37, 239 S.E.2d 364 (1977); Smith v. Hopper, 240 Ga. 93, 239 S.E.2d 510 (1977); Respess v. State, 145 Ga. App. 570, 244 S.E.2d 251 (1978); West v. State, 146 Ga. App. 120, 245 S.E.2d 478 (1978); Watson v. State, 147 Ga. App. 847, 250 S.E.2d 540 (1978); Whitlock v. State, 148 Ga. App. 203, 251 S.E.2d 59 (1978); Mitchell v. State, 150 Ga. App. 44, 256 S.E.2d 652 (1979); State v. Thomas, 150 Ga. App. 170, 257 S.E.2d 28 (1979); Rick v. State, 152 Ga. App. 519, 263 S.E.2d 213 (1979); State v. Hodge, 154 Ga. App. 293, 267 S.E.2d 906 (1980); State v. Sanders, 154 Ga. App. 305, 267 S.E.2d 906 (1980); Woods v. State, 154 Ga. App. 799, 270 S.E.2d 23 (1980); Wallin v. State, 248 Ga. 29, 279 S.E.2d 687 (1981); Sheriff v. State, 158 Ga. App. 506, 280 S.E.2d 904 (1981); Butler v. State, 159 Ga. App. 895, 285 S.E.2d 610 (1981); Hunter v. State, 249 Ga. 114, 288 S.E.2d 214 (1982); Lewis v. State, 161 Ga. App. 209, 288 S.E.2d 278 (1982); Evans v. State, 161 Ga. App. 468, 288 S.E.2d 726 (1982); Hartline v. State, 161 Ga. App. 847, 288 S.E.2d 902 (1982); State v. Johnston, 249 Ga. 413, 291 S.E.2d 543 (1982); Romano v. State, 162 Ga. App. 816, 292 S.E.2d 533 (1982); Hayes v. State, 163 Ga. App. 259, 293 S.E.2d 728 (1982); State v. Smith, 164 Ga. App. 142, 296 S.E.2d 141 (1982); Thompson v. State, 164 Ga. App. 104, 296 S.E.2d 400 (1982); Lavelle v. State, 250 Ga. 224, 297 S.E.2d 234 (1982); Durden v. State, 250 Ga. 325, 297 S.E.2d 237 (1982); Rivers v. State, 250 Ga. 288, 298 S.E.2d 10 (1982); Green v. State, 250 Ga. 610, 299 S.E.2d 544 (1983); State v. Roberson, 165 Ga. App. 727, 302 S.E.2d 591 (1983); Olson v. State, 166 Ga. App. 104, 303 S.E.2d 309 (1983); Recoba v. State, 167 Ga. App. 447, 306 S.E.2d 713 (1983); Sloan v. State, 172 Ga. App. 620, 323 S.E.2d 834 (1984); Amerson v. State, 177 Ga. App. 97, 338 S.E.2d 528 (1985); Kloszewski v. State, 177 Ga. App. 153, 338 S.E.2d 741 (1985); Turner v. State, 178 Ga. App. 888, 345 S.E.2d 99 (1986); Lane v. State, 180 Ga. App. 168, 348 S.E.2d 711 (1986); State v. Oliver, 183 Ga. App. 92, 357 S.E.2d 889 (1987); Doe v. State, 185 Ga. App. 347, 364 S.E.2d 78 (1987); Hernandez v. State, 185 Ga. App. 704, 365 S.E.2d 867 (1988); State v. Stokes, 185 Ga. App. 718, 365 S.E.2d 477 (1988); Hamilton v. State, 185 Ga. App. 749, 365 S.E.2d 542 (1988); Van Huynh v. State, 258 Ga. 663, 373 S.E.2d 502 (1988); Newsome v. State, 192 Ga. App. 846, 386 S.E.2d 887 (1989); Harbin v. State, 193 Ga. App. 248, 387 S.E.2d 367 (1989); State v. Schwall, 193 Ga. App. 694, 388 S.E.2d 705 (1989); Williams v. State, 199 Ga. App. 122, 404 S.E.2d 296 (1991); O'Neal v. State, 199 Ga. App. 757, 406 S.E.2d 247 (1991); Buchanan v. State, 200 Ga. App. 416, 408 S.E.2d 721 (1991); State v. Jackson, 201 Ga. App. 810, 412 S.E.2d 593 (1991); Ruffin v. State, 201 Ga. App. 792, 412 S.E.2d 850 (1991); State v. Suddeth, 207 Ga. App. 103, 427 S.E.2d 76 (1993); Williams v. State, 208 Ga. App. 153, 430 S.E.2d 42 (1993); McCullough v. State, 211 Ga. App. 16, 438 S.E.2d 369 (1993); Tackett v. State, 211 Ga. App. 664, 440 S.E.2d 74 (1994); Bradley v. State, 213 Ga. App. 468, 444 S.E.2d 842 (1994); Stewart v. State, 217 Ga. App. 45, 456 S.E.2d 693 (1995); Brown v. State, 218 Ga. App. 469, 462 S.E.2d 420 (1995); Woods v. State, 243 Ga. App. 195, 532 S.E.2d 747 (2000); State v. Mallard, 246 Ga. App. 357, 541 S.E.2d 46 (2000); State v. Graddy, 262 Ga. App. 98, 585 S.E.2d 147 (2003); Pinch v. State, 265 Ga. App. 1, 593 S.E.2d 1 (2003); Johnson v. State, 261 Ga. App. 98, 581 S.E.2d 715 (2003); McIvory v. State, 268 Ga. App. 164, 601 S.E.2d 481 (2004); Dunlap v. State, 291 Ga. 51, 727 S.E.2d 468 (2012); Moss v. State, 298 Ga. 613, 783 S.E.2d 652 (2016).
Searches
1. In General
Use of ruse to enter.
- Ruse or subterfuge may be used to enter premises under warrant. Sherrill v. State, 158 Ga. App. 564, 281 S.E.2d 313 (1981).
Applicability to searches conducted without warrants.
- O.C.G.A. § 17-5-30 governs every case in which a defendant challenges a search and seizure, regardless of the grounds upon which the challenge is based, and it covers all searches, not just those involving search warrants. Harvey v. State, 217 Ga. App. 776, 459 S.E.2d 433 (1995), aff'd, 266 Ga. 671, 469 S.E.2d 176 (1996).
Defendant lacked standing to protest search.
- State's failure to introduce a search warrant and supporting affidavit at a suppression hearing was immaterial: the defendant lacked standing to challenge the warrant since the defendant had no proprietary, possessory, or privacy interest in the searched premises and the defendant's suppression motion's allegations were insufficient to put the state on notice about how the defendant intended to attack the warrant's validity. Hall v. State, 258 Ga. App. 502, 574 S.E.2d 610 (2002).
"Plain feel" doctrine.
- "Plain feel" doctrine was exceeded and the contraband seized should have been suppressed after an officer patted down the defendant during a traffic stop and felt an object in the defendant's pocket that the officer could not identify, but knew was not a weapon, and then removed the object which the officer discovered was a plastic bag containing marijuana. Boatright v. State, 225 Ga. App. 181, 483 S.E.2d 659 (1997).
Because an issue of "plain feel" was not raised in the motion to suppress and the state was not properly placed on notice that this issue would be raised at the hearing on the motion, the evidentiary basis on which the trial court found the search exceeded the bounds of the "plain feel" doctrine was not fully developed, and a second evidentiary hearing was required. State v. Roddy, 231 Ga. App. 91, 497 S.E.2d 653 (1998).
Since the record was devoid of any testimony or evidence that the seizing officer articulated a suspicion that would have reasonably led the officer to believe that the object seized from a coin pocket of the defendant's jeans was contraband, never observed any portion of the plastic bag protruding from the pocket, and never testified that it was immediately apparent that the object was contraband, the "plain feel" exception did not apply and the trial court properly granted suppression of the item seized. State v. Henderson, 263 Ga. App. 880, 589 S.E.2d 647 (2003).
Trial court erred in granting the defendant's motion to suppress evidence of the victim's blood found on the defendant's shoes because, under the "plain view" exception to the warrant requirement, the police had probable cause to believe that the blood the police observed on the defendant's shoes when the police approached the defendant was evidence of defendant's commission of the murder. State v. Tye, 276 Ga. 559, 580 S.E.2d 528 (2003).
Trial court erred in granting the defendant's motion to suppress rings a police officer seized from the defendant's pocket during a pat-down search because the seizure was authorized under the plain feel doctrine; the officer's knowledge that a man matching the defendant's description was suspected of stealing numerous rings shortly beforehand and nearby gave the officer probable cause to believe that the items the officer felt in the defendant's pocket were the stolen rings, and had the rings been in the officer's plain view when the officer detained the defendant, the officer could have seized the rings under the plain view doctrine. State v. Cosby, 302 Ga. App. 204, 690 S.E.2d 519 (2010).
"Plain view" doctrine permits warrantless search.
- Motion to suppress evidence obtained during a warrantless search of the defendant's bedroom was properly denied because the homeowner invited the police into the homeowner's house and the police never entered the defendant's room before obtaining a warrant; because the investigator saw the marijuana in "plain view" while standing in a place the investigator had a right to be, there was not an unlawful warrantless search. Phillips v. State, 269 Ga. App. 619, 604 S.E.2d 520 (2004).
Suppression motion properly denied.
- Because sufficient exigent circumstances existed to authorize a sheriff's deputy to enter the defendant's backyard and seize a number of animals that the officer observed were malnourished and mistreated, and given the harsh weather conditions and impending holiday, obtaining a warrant would have been unreasonable, the defendant's motions to suppress and in limine seeking to preclude admission of the evidence seized were properly denied. Moreover, the evidence seized after the defendant's lawful arrest, and observed in plain view by the officer upon being allowed to enter the defendant's residence, was also properly admitted. Morgan v. State, 289 Ga. App. 209, 656 S.E.2d 857 (2008).
Evidence properly admitted.
- Motion to exclude was properly denied as the officer's approach and initial inquiries to the defendant amounted to a first-tier encounter that did not have to be supported by reasonable suspicion of criminal wrongdoing and it was during that encounter that the defendant told the officer that the defendant had a crack pipe on the defendant's person, supplying reasonable suspicion for the ensuing detention. Chamblee v. State, 317 Ga. App. 673, 732 S.E.2d 327 (2012).
Terry pat-down search is authorized when the officer reasonably believes that a search is necessary to protect the officer from attack, including the search of passengers in vehicles omitted from the original police notifications. Dowdy v. State, 209 Ga. App. 311, 433 S.E.2d 293 (1993).
In Georgia, a Terry pat-down search is authorized when the officer reasonably believes that a pat-down search is necessary to protect the officer from attack. Williams v. State, 265 Ga. App. 489, 594 S.E.2d 704 (2004).
Pat-down search exceeded permissible scope.
- Trial court erred in denying the defendant's motion to suppress evidence seized from the defendant during a Terry pat-down search for weapons as the state failed in the state's burden of proving that the search was lawful pursuant to O.C.G.A. § 17-5-30(b); although the officer had justification to conduct the pat-down search for weapons, when there was no indication that the officer believed that the box found in the defendant's pocket contained a weapon, opening the box exceeded the permissible scope of the search. Cartwright v. State, 265 Ga. App. 520, 594 S.E.2d 723 (2004).
Because a police officer was unable to provide specific facts to justify a concern that the item in the defendant's pocket was a weapon, defendant's Fourth Amendment rights were violated when the officer reached into the defendant's pockets; consequently, the trial court erred in denying the defendant's motion to suppress. Castleberry v. State, 275 Ga. App. 37, 619 S.E.2d 747 (2005).
Because the state introduced no evidence that the defendant consented to an officer's opening of a matchbox retrieved from the defendant's pants, the officer was not concerned that a weapon was hidden in the box, and the box was not readily identifiable as contraband, the search of the defendant's person exceeded the permissible scope of a pat-down for weapons, requiring suppression of the cocaine found inside the matchbox. Mason v. State, 285 Ga. App. 596, 647 S.E.2d 308 (2007).
Officer was justified in conducting a pat-down when the officer testified that the officer observed the defendant place something in the defendant's pocket and then place the defendant's hand in the defendant's pocket; the defendant refused to remove the defendant's hand although the officer repeatedly instructed the defendant to do so; and the officer became concerned for the officer's safety because of the defendant's actions. However, the trial court erred in denying the defendant's motion to suppress since the officer could not identify the object the officer felt as either a weapon, or by its contour and mass, contraband and thus the intrusion into the defendant's pocket was impermissible. Sudduth v. State, 288 Ga. App. 541, 654 S.E.2d 446 (2007).
Because the defendant expressly consented only to a pat-down search for weapons, a police officer could not have lawfully intruded into the defendant's pocket to retrieve an identification card; accordingly, the trial court erred by denying the defendant's motion to suppress. Johnson v. State, 297 Ga. App. 847, 678 S.E.2d 539 (2009).
Requiring removal of shoes was excessive.
- While the defendant's nervous behavior, including ignoring the officer's directions not to move the defendant's hands or reach toward the defendant's feet and moving clothing around; the defendant's actions in reaching toward the front of the car while observing the officers through the rear window; and the officer's knowledge of the defendant's prior drug history, provided a reasonable basis to support a pat-down search for weapons under the Terry standard, the search went beyond the Terry-authorized search when the officer directed the defendant to remove the defendant's shoes because the officer never testified the officer felt any object in or around the defendant's shoes to justify requiring the removal of the shoes. State v. Cleveland, 319 Ga. App. 225, 738 S.E.2d 273 (2012).
No authority to conduct pat-down so motion to suppress should be granted.
- Trial court erred in denying the defendant's motion to suppress a gun police officers found on the defendant's person because although the officers had a sufficient basis for a brief initial Terry stop since the defendant partially fit the description given by the victim of the person who attacked the victim, the officers had no authority to conduct the pat-down that discovered the weapon on the defendant's person; the fact that the officers suspected that the defendant could have been the one that assaulted the victim did not reasonably give rise to a belief that the defendant was armed and a threat to the officers, and because the record revealed no proof of other circumstances known to the officers when the officers commenced the frisk that would lead a reasonable officer to conclude that the defendant had a weapon or instrument capable of being used as a weapon on the defendant's person, the state did not carry the state's burden of proving the propriety of the search. Daniels v. State, 307 Ga. App. 216, 704 S.E.2d 466 (2010).
Search by officer, who is parent of suspect.
- Trial court's order denying the defendant's motion to suppress was reversed and the case was remanded with direction that the trial court determine whether the defendant's father, an officer, had probable cause to search the defendant's vehicle. Pruitt v. State, 263 Ga. App. 814, 589 S.E.2d 591 (2003).
Search incident to lawful arrest.
- Police officers had probable cause to arrest the defendant for theft by receiving stolen property, in violation of O.C.G.A. § 16-8-7, based on a determination that the defendant admitted to having received, stored, and disposed of a stolen four-wheeler, the officers' search incident to the arrest was legal and the defendant's subsequent motion to suppress, pursuant to O.C.G.A. § 17-5-30, was properly denied; during the search of defendant's person, the officers recovered methamphetamine and the defendant was convicted of drug-related offenses. James v. State, 265 Ga. App. 660, 595 S.E.2d 359 (2004).
Because the seizure of cash found on the defendant's person was conducted based on a lawful arrest for a domestic violence act of assault, given information by the defendant's girlfriend, the girlfriend's obvious injuries, and the defendant's attempt to flee, the trial court properly denied suppression of the evidence; however, because the defendant maintained a reasonable expectation of privacy in the curtilage surrounding the defendant's residence, absent a warrant or exigent circumstances, suppression of cocaine found in that area was erroneously denied. Rivers v. State, 287 Ga. App. 632, 653 S.E.2d 78 (2007).
Marijuana found in a search of the defendant incident to the defendant's arrest was admissible under O.C.G.A. § 17-5-30 because a police dispatcher's statement to an officer that there was an outstanding arrest warrant for the defendant provided the probable cause necessary to arrest the defendant and, as a consequence, the search incident to the arrest was lawful under O.C.G.A. § 17-5-1. State v. Edwards, 307 Ga. App. 267, 704 S.E.2d 816 (2010).
Search of cell phone incident to lawful arrest was proper.
- When evidence showed that the defendant's cell phone was an instrumentality of the crime of cocaine trafficking and that the details of the drug transaction were arranged by telephone, the trial court did not err in denying the defendant's motion to suppress the search of the cell phone because the defendant's cell phone was confiscated during a lawful search incident to the defendant's arrest and because it was an instrumentality of the crime that was probative of criminal conduct. Lopez v. State, 267 Ga. App. 532, 601 S.E.2d 116 (2004).
Officer listening did not rise to interrogation and justify suppression.
- Order denying a motion to suppress the statements the defendant made to police after invoking a right to remain silent and have counsel present was not clearly erroneous as the defendant continued to make unsolicited statements after the invocation, and the officer was not interrogating the defendant by choosing to listen. Mulvaney v. State, 281 Ga. App. 620, 636 S.E.2d 762 (2006).
Computer insurance inquiry insufficient for stop and evidence suppressed.
- Because the trial court had ample evidence to support the court's conclusion that the reason police officers supplied as the basis to stop the defendant's vehicle, specifically, an alleged computer insurance inquiry, was "suspect and insufficient", the court properly granted the defendant's motion to suppress the evidence seized from the vehicle as a result of the stop. State v. Starks, 281 Ga. App. 15, 635 S.E.2d 327 (2006).
Forensic computer analysis not suppressed.
- No basis existed under O.C.G.A. § 17-5-24 for suppressing the results of forensic computer analysis because the analysis required expert skill, and without such expertise, it was conceivable that evidence could have been overlooked or even destroyed; the computer examination was conducted at the direction of Georgia peace officers to enable the officers to complete the officers' own investigation. Twiggs v. State, 315 Ga. App. 191, 726 S.E.2d 680 (2012).
Suppression of evidence in sexual abuse cases.
- Defendant's suppression motion was properly denied as: (1) the search warrant affidavit outlined the information provided by a New Hampshire detective's investigation, including the fact that the defendant had electronically sent the detective sexually explicit photographs of young boys; (2) the officer's affidavit also included information regarding the detective's extensive background and vast experience in the investigation of child sexual exploitation cases; (3) the detective's investigation provided probable cause to search the defendant's residence wherever that was; (4) the warrant sought sexually explicit photographs and other sexually explicit visual depictions of children, as well as the computer hardware and software used to create, store, and distribute those depictions; and (5) the affidavit contained information based on the detective's contact and electronic correspondence with the defendant indicating the likelihood that the defendant's computer files would contain evidence of child sexual exploitation, given that the affidavit stated that those who sexually exploited children often kept sexually explicit photographs and other images in their possession and often stored those images in computer files. Walthall v. State, 281 Ga. App. 434, 636 S.E.2d 126 (2006).
Evidence of prior conduct between defendant and victim admissible.
- Trial court did not err in permitting a witness to testify about the decedent victim's statement concerning the defendant's prior acts of abuse as testimony about prior difficulties between the defendant and a victim was admissible at trial to show the nature of the relationship and to demonstrate motive, intent, or bent of mind of the defendant in committing the act. Banegas v. State, 283 Ga. App. 346, 641 S.E.2d 593 (2007).
Development of film discovered in search incident to arrest.
- Trial court did not abuse the court's discretion in refusing to suppress photographs that were developed from film that was in a disposable camera found in the defendant's duffle bag at the time of defendant's arrest because: (1) the defendant lacked standing to challenge the admission of the evidence since the camera belonged to the defendant's brother, most of the photographs had been taken by the brother, and the camera had only been borrowed by the defendant; (2) the film was admissible under the same rationale as an inventory search because police had to develop the film to determine to whom the camera belonged before the police could return the camera to the owner; and (3) the film was the fruit of a search incident to the defendant's lawful arrest because it was found in the defendant's duffle bag in a search incident to the defendant's arrest. Wright v. State, 276 Ga. 454, 579 S.E.2d 214 (2003), cert. denied, 540 U.S. 1106, 124 S. Ct. 1059, 157 L. Ed. 2d 892 (2004).
Application to circumstantial evidence.
- Jury should be able to consider and weigh the evidence, even though the evidence may be circumstantial; thus, the defendant's motion to suppress a gun found alongside a highway was properly denied. Ross v. State, 281 Ga. App. 891, 637 S.E.2d 491 (2006).
Evidence seized from employment investigations suppressed.
- Trial court properly suppressed the oral and written statements made by the defendant, a public employee, during an internal investigation interview conducted by the Georgia Department of Corrections, and after the defendant was forbidden to seek the advice of counsel as the defendant had an objective belief that a failure to cooperate with the investigation by taking part in the interview and signing a written document entitled "Notice of Interfering with On-Going Internal Investigation" would result in a loss of employment; thus, the defendant's right against self-incrimination was violated. State v. Aiken, 281 Ga. App. 415, 636 S.E.2d 156 (2006).
Search pursuant to arrest for assaulting officers following illegal stop.
- Though evidence would not have been admissible if discovered as the result of police officers' unconstitutional roadblock and illegal Terry-stop of the defendant's car before the defendant reached the roadblock, the defendant's gratuitous shoving of police was an aggravated battery, and the discovery of drugs the defendant threw while fleeing from that battery meant the discovery of the evidence was sufficiently attenuated from the illegal stop to justify its admission into evidence and denial of a defendant's motion to suppress. Strickland v. State, 265 Ga. App. 533, 594 S.E.2d 711 (2004).
Technical irregularities in search warrants.
- Raising of technical irregularities in search warrants is not favored by the law, especially if the defendant has not timely exercised the defendant's statutory right by a motion to suppress evidence allegedly illegally seized. Parker v. State, 118 Ga. App. 837, 166 S.E.2d 41 (1968).
2. Consent
Scope of consent.
- Given that a police officer was granted consent to search the defendant's hotel room to search for the victim's stolen truck keys, upon the officer's receipt of an inconclusive response that a set of keys found could belong to the victim, a continued search, which yielded methamphetamine, was reasonable, and did not exceed the original scope of consent granted; thus, the trial court did not err in denying the defendant's motion to suppress the drug evidence that officers found as a result of a continued search. Shuler v. State, 282 Ga. App. 706, 639 S.E.2d 623 (2006).
Because the consent received by an officer to search the defendant's pockets for weapons did not extend to allowing the officer to remove the contents of those pockets, when the officer testified that the contents did not feel like a weapon or an object immediately identifiable as contraband, the defendant's motion to suppress should have been granted. Foster v. State, 285 Ga. App. 441, 646 S.E.2d 302 (2007), cert. denied, No. S07C1428, 2007 Ga. LEXIS 625 (Ga. 2007).
Defendant was not entitled to suppression of, inter alia, marijuana seized from the trunk of a car in which the defendant was a passenger because a police officer did not exceed the scope of the driver's consent to search, which allegedly was limited to looking in the car, by opening the trunk as the officer had discussed the problems with contraband being transported on the state highways prior to requesting the driver's consent; thus, the driver was on notice that the officer was looking for contraband. Davis v. State, 297 Ga. App. 319, 677 S.E.2d 372 (2009).
Consent established even though defendant handcuffed.
- Trial court did not err in denying the defendant's motion to suppress evidence police officers seized from the defendant's apartment because the state satisfied the state's burden of showing that the defendant's consent to the search was not the product of coercion, express or implied, and although the defendant was handcuffed at the time the defendant consented to the search, voluntary consent could be given while a suspect was handcuffed; the evidence supported a finding that one of the officers requested and received the defendant's consent to search under permissible circumstances, and the officer testified that the officer's gun was not drawn and that the defendant was compliant. Silverio v. State, 306 Ga. App. 438, 702 S.E.2d 717 (2010).
Consent established.
- Denial of the motion to suppress was not error as there was some evidence to support the trial court's finding that consent to search was given; the trial court chose to disbelieve the defendant's witness and to believe the testimony of the police officers that the officers received consent to enter and to check the apartment. Yemane v. State, 277 Ga. App. 286, 626 S.E.2d 238 (2006).
Trial court properly denied the defendant's motion to suppress evidence as the drugs located in the residence were found after the defendant voluntarily gave police consent to enter and the drugs were spotted by one officer in plain view. Saadatdar v. State, 277 Ga. App. 339, 626 S.E.2d 552 (2006).
Because the defendant waived the defendant's Miranda rights and because the defendant freely and voluntarily consented to a search of the defendant's premises, to a drug test, and to an interview, the defendant's consent was not the product of coercion; accordingly, the trial court properly denied the defendant's motion to suppress. Handy v. State, 298 Ga. App. 633, 680 S.E.2d 646 (2009).
Trial court did not err in denying the defendant's motion to suppress evidence a police officer found in the defendant's wallet during a traffic stop of the vehicle in which the defendant was a passenger because the defendant voluntarily consented to the officer's search of the wallet; although the officer did not have a proper basis to frisk the defendant after asking the defendant to exit the automobile, the contraband was not uncovered during the unlawful pat-down, and the prior unlawful pat-down did not operate to invalidate the defendant's later consent to the search of the wallet. Rogue v. State, 311 Ga. App. 421, 715 S.E.2d 814 (2011).
Trial court did not err in denying a motion to suppress evidence a police officer seized in a hotel room because the trial court was authorized to find that the state satisfied the state's burden of showing that the defendant's consent to enter the hotel room was voluntary and not the product of coercion, express or implied; the officer's testimony and the defendant's statement supported a finding that the officer requested and received the defendant's consent to enter the hotel room under circumstances that did not suggest either coercion or threat, and the trial court was authorized to infer that the defendant's consent to search was freely given in the calculated hope that the officer would not find the hidden contraband. Liles v. State, 311 Ga. App. 355, 716 S.E.2d 228 (2011).
Trial court did not err in failing to grant the defendant's motion to suppress a pistol because the search of a residence was properly conducted when the police obtained the consent of the homeowner; the defendant, who was a visitor at the residence, was physically present but failed to express any refusal of consent or any objection to a police search. Rockholt v. State, 291 Ga. 85, 727 S.E.2d 492 (2012).
Trial court properly denied the defendant's motion to suppress with regard to the defendant's drug conviction because the case involved a first-tier encounter wherein the officer asked for consent to search, which was given by the defendant and, therefore, the search was not a seizure and did not require articulable suspicion. Carter v. State, 319 Ga. App. 624, 737 S.E.2d 724 (2013).
Consent must be uncoerced.
- Consent to search must be the product of an essentially free and unrestrained choice by the maker. Williams v. State, 151 Ga. App. 833, 261 S.E.2d 720 (1979).
Trial court did not err in granting the defendant's motion to suppress as the defendant's spouse was coerced into giving consent to a police search of the residence since the police had no search warrant or arrest warrant but only an order awarding temporary custody of the children to the state. State v. Fulghum, 261 Ga. App. 594, 583 S.E.2d 278 (2003).
Trial court properly granted the defendant's motion to suppress both the evidence seized upon being stopped and detained by the sheriff's officers and all statements made to any law enforcement officer following such detention given that: (1) law enforcement exceeded the authority to search the defendant; and (2) the evidence showed that any consent given by the defendant was coerced as the consent was obtained when one of the officers pointed a stun gun at the defendant. State v. Williams, 281 Ga. App. 187, 635 S.E.2d 807 (2006).
An officer's statement to the driver of a vehicle that it would be better for the driver if the driver cooperated because a female officer and a drug dog were on the way did not amount to improper coercion so as to render the driver's admission or voluntary relinquishment of cocaine invalid. Darden v. State, 293 Ga. App. 127, 666 S.E.2d 559 (2008).
Consented search needs no probable cause or warrant.
- Probable cause and a warrant are not required for a search and seizure which is conducted pursuant to consent. Williams v. State, 151 Ga. App. 833, 261 S.E.2d 720 (1979).
Consent to search given after the defendant had a clear understanding that the defendant was free to go and was not under any compulsion to remain to obey the officer's request was voluntary and, thus, denial of the defendant's motion to suppress was upheld. Daniel v. State, 277 Ga. 840, 597 S.E.2d 116 (2004).
Limited consent established.
- Given the defendant's consent to the limited search of the premises, the officers were lawfully in a position to plainly view the items associated with the manufacture of methamphetamine; as a result, the officers developed the probable cause necessary to obtain a warrant and search for additional evidence, supporting denial of defendant's motion to suppress. Wesson v. State, 279 Ga. App. 428, 631 S.E.2d 451 (2006).
Consent given by apartment lessee valid.
- Police officers had reasonable suspicion to stop the defendant and question the defendant, based on the defendant's description matching that of a robbery perpetrator, and the officers then had probable cause to pursue the defendant to an apartment that the defendant retreated to; the lessee provided the officers with consent to search, whereupon the defendant's clothing that matched the robber's description and the robber's gun were found and, accordingly, the defendant's motion to suppress evidence pursuant to O.C.G.A. § 17-5-30 was properly denied. Anderson v. State, 265 Ga. App. 428, 594 S.E.2d 669 (2004).
Consent of housing authority director invalid.
- City housing authority director's consent to the search of a housing unit was not valid; therefore, an officer's warrantless entry into the premises and seizure of marijuana therein was also invalid. The state failed to show that the terms of the housing unit lease authorized the director to enter the premises under certain circumstances. Bowden v. State, 304 Ga. App. 896, 698 S.E.2d 372 (2010).
Consent by defendant's son to search of defendant's bedroom not valid.
- Trial court's grant of defendant's motion to suppress evidence, pursuant to O.C.G.A. § 17-5-30(b), was proper as the defendant's 14-year-old son lacked authority to consent to a search of the defendant's bedroom, although the son resided in the mobile home with the defendant and his girlfriend as the bedroom was not a common area and, accordingly, the second Atkins factor was not met for purposes of U.S. Const. amend. IV; further, the officer who arrived at the home had minimal interaction with the teenager, such that the officer lacked a reasonable belief that the son could validly consent to the search, and the drugs in defendant's bedroom were not available in plain view. State v. McKinney, 276 Ga. App. 69, 622 S.E.2d 429 (2005).
Separate part of parolee's home not subject to search.
- Because law enforcement officers lacked any reason to search the defendant's part of a mobile home, which had been permanently divided in half, the officers could not rely on a waiver of rights executed by the defendant's brother, who was on probation at the time, to authorize a search of the defendant's separate part of that home. Further, no exigent circumstances were present to support a warrantless entry. State v. Kuhnhausen, 289 Ga. App. 489, 657 S.E.2d 592 (2008).
Illegal, warrantless entry into motel room tainted subsequent consent.
- Trial court erred by denying the defendant's motion to suppress drug evidence found in a motel room that the defendant was occupying with another as the warrantless entry into the hotel room by the police violated the Fourth Amendment and the illegal entry tainted defendant's consent to search and rendered the consent invalid. The state also failed to carry the state's burden to show that a third party's subsequent consent to search the room was untainted by the illegal entry. Snider v. State, 292 Ga. App. 180, 663 S.E.2d 805 (2008).
Suppression of evidence from consensual activities.
- Defendant's motion to suppress was properly denied after the defendant voluntarily consented to police officers searching the bedroom and the officers found the firearm in plain view; moreover, the officers did not threaten the defendant into giving the consent merely by telling the defendant that the officers could obtain a warrant based on the officers' earlier seizure of marijuana in another part of the house. Butler v. State, 272 Ga. App. 557, 612 S.E.2d 865 (2005).
Trial court's order denying the defendant's motion to suppress was upheld on appeal as: (1) the defendant lacked standing to contest a search of a cohort's vehicle; (2) the defendant consented to a subsequent search of the defendant's own residence; and (3) the defendant failed to show harm by the introduction of evidence found in vehicles parked in the yard of the residence, which the trial court clearly found to be innocuous. Valle v. State, 282 Ga. App. 223, 638 S.E.2d 394 (2006), cert. denied, No. S07C0405, 2007 Ga. LEXIS 219 (Ga. 2007), 552 U.S. 849, 128 S. Ct. 108, 169 L. Ed. 2d 78 (2007).
Because the defendant's encounters with the police remained consensual and voluntary, and the defendant consented to a continued detention for further questioning, a motion to suppress the evidence seized based on an illegal detention by the police was properly denied. Smith v. State, 281 Ga. 185, 640 S.E.2d 1 (2006).
Because the defendant's consent to search was not obtained by deceit, the defendant voluntarily accompanied officers to the motel room searched, and the consent was not the product of an illegal detention, suppression of the contraband seized was unwarranted. Miller v. State, 287 Ga. App. 179, 651 S.E.2d 103 (2007).
Because a police officer was authorized to stop the defendant's vehicle based on a suspicion that the defendant had illegally dumped trash, and because the defendant consented to a search of the vehicle, the items seized from the vehicle would not have been suppressed; accordingly, the defendant's ineffective assistance claim failed, and the trial court properly denied the defendant's motion to withdraw the defendant's Alford plea. Bishop v. State, 299 Ga. App. 241, 682 S.E.2d 201 (2009).
Trial court did not err in denying the defendant's motion to suppress evidence seized during the warrantless search of the defendant's residence because the evidence supported the trial court's finding that the defendant and the defendant's roommate freely and voluntarily consented to the search of their residence, and the officers testified that the officers did not coerce, threaten, or offer any hope of benefit to obtain the consents; the roommate gave the officers consent to search the common areas of the residence, and after the defendant arrived at the residence, the defendant likewise consented to the searches of the defendant's bedroom and of the defendant's person. Park v. State, 308 Ga. App. 648, 708 S.E.2d 614 (2011).
Consent product of illegal detention.
- State failed to satisfy the state's burden under O.C.G.A. § 17-5-30(b) to show that the son's consent to search the son's room was voluntarily given; as a result of the short period of time that passed between the unlawful detention and the grant of consent, the consent was the product of the son's illegal detention. Black v. State, 281 Ga. App. 40, 635 S.E.2d 568 (2006).
An officer, who knew the defendant, forcibly opened the defendant's vehicle door, thereby physically restraining the defendant's movement so that the defendant's subsequent consent to a search of the defendant's vehicle, after arriving at a location under surveillance for drug manufacturing, was invalid as the consent was the product of a wrongful detention; thus, the trial court erred in denying the defendant's motion to suppress the evidence seized from the vehicle. Smith v. State, 288 Ga. App. 87, 653 S.E.2d 510 (2007).
Trial court erred in denying the defendant's motion to suppress evidence a police officer found while conducting a search of the defendant's person because the purportedly consensual search of the defendant's person was unlawful when the consent was the product of an illegal detention; even if the defendant's consent was not the product of an illegal detention, the search exceeded the scope of the defendant's consent because the defendant's indication that the defendant did not "have a problem" with the officer searching the defendant's pockets could not be interpreted as having extended so far as to have authorized the officer to, after searching all of the defendant's pockets and finding nothing, push the defendant's abdomen, pull the defendant's waistband forward, and look down inside the defendant's pants for narcotics. Walker v. State, 299 Ga. App. 788, 683 S.E.2d 867 (2009).
Two defendants had a reasonable expectation of privacy in a motel room and the room's safe because the defendants were staying there overnight and had clothing there, although neither was a registered guest, so that the defendants both had standing under O.C.G.A. § 17-5-30(a) to object to a search of the room. Because the male guest was illegally detained, that guest's consent to search the room was not valid. State v. Woods, 311 Ga. App. 577, 716 S.E.2d 622 (2011).
Mere acquiescence to authority of officer did not substitute for free and voluntary consent.
- Despite the fact that the trial court concluded that the second of two defendant's warrantless arrest was unauthorized under O.C.G.A. § 17-4-20(a), because mere acquiescence to the authority asserted by a police lieutenant by both the defendants could not substitute for a free and voluntary consent to search, the trial court erred in finding that said acquiescence granted valid consent to the officer. Thus, the trial court's grant of the motions to suppress filed, in part, was reversed. Hollenback v. State, 289 Ga. App. 516, 657 S.E.2d 884 (2008).
Defendant never withdrew consent to search.
- With regard to defendant's conviction for possession of methamphetamine, the trial court properly denied the defendant's motion to suppress the drugs found on the defendant's person as the police obtained the defendant's consent to search the defendant's person and the defendant's failure to produce all of the items from the defendant's pockets did not amount to a withdrawal of the consent to search. Allison v. State, 293 Ga. App. 447, 667 S.E.2d 225 (2008).
Consent of parents of adult child staying at parents' home.
- With regard to defendant's convictions for armed robbery and possession of a gun during a crime, the trial court properly denied the defendant's motions to suppress the evidence found in the defendant's bedroom and in the vehicle that the defendant operated as the defendant's parents had authority to give consent to the police to search the defendant's unlocked bedroom since the defendant did not pay rent and was only home for the summer from college. As to the vehicle, the parents asked the police to locate their vehicle and the police properly seized the vehicle, impounded the vehicle, and obtained a search warrant; thus, the rifle used during the robberies that was found in the trunk of the vehicle was not the product of an illegal search. Warner v. State, 299 Ga. App. 56, 681 S.E.2d 624 (2009), cert. denied, No. S09C1952, 2010 Ga. LEXIS 35 (Ga. 2010).
Grandfather as head of household with power to consent.
- Because the defendant's grandfather, as the head of the household, possessed authority over the entire house, including the defendant's bedroom where the defendant lived rent-free, the trial court properly found that the consent given by the grandfather was properly granted, and hence served as the proper basis to deny the defendant's motion to suppress the evidence seized in the bedroom; as a result, the defendant's armed robbery conviction was upheld on appeal. Rhone v. State, 283 Ga. App. 553, 642 S.E.2d 185 (2007).
3. Locations
Defendant movant aggrieved by search on defendant's premises.
- For a defendant movant to be "aggrieved" by a search on the premises under O.C.G.A. § 17-5-30, the alleged violation must have occurred on the movant's premises or the movant's Fourth Amendment rights must have been infringed in some other manner. Sanders v. State, 181 Ga. App. 117, 351 S.E.2d 666 (1986).
Search of home, arrest therein legal.
- Sufficient probable cause for issuance of arrest and search warrants existed based upon an affidavit from an investigative detective in which the detective described the rape and the rapist, stated that the victim identified the man in discarded photographs as her attacker, and explained that a subsequent investigation revealed that the man in the photographs was the defendant. Davis v. State, 209 Ga. App. 755, 434 S.E.2d 752 (1993).
Because the police were entitled to conduct a limited sweep to ensure the safety of the police prior to obtaining consent to search and because the contraband was not discovered during the "protective sweep", the search did not violate the Fourth Amendment; consequently, the trial court properly denied the defendant's motion to suppress. Nelson v. State, 271 Ga. App. 658, 610 S.E.2d 627 (2005).
There was evidence of sufficient exigent circumstances presented to law enforcement officers to justify a warrantless search of the defendant's home since if a warrant would have been obtained many of those individuals could have attempted to drive home, placing both themselves and the general public at risk; moreover, if a warrant would have been obtained, evidence of the crime of furnishing alcohol to minors could have easily been destroyed when the minors left the scene of the crime. Burk v. State, 284 Ga. App. 843, 644 S.E.2d 914 (2007).
Trial court erred in denying the defendant's motion to suppress as there were no exigent circumstances justifying a warrantless entry into the defendant's home after drugs, drug-related items, and a weapon were found in the defendant's car during a traffic stop, even though the defendant did not end a cell phone call immediately as instructed by a police officer; the state did not show that the warrantless entry was required to prevent the destruction of contraband or that securing the home until a warrant could be obtained was not sufficient. Curry v. State, 271 Ga. App. 672, 610 S.E.2d 635 (2005).
Trial court properly granted the defendants' motions to suppress evidence of drugs and drug paraphernalia found at the residence owned by one defendant as officers had already learned that the person the officers were looking for stayed at a trailer next door, and thus officers engaged in an impermissible search of the curtilage when officers found a bag of drugs 45 feet from the defendants' house; as a result, all evidence seized in the course of subsequent searches of the property was obtained as a direct result of the impermissible intrusion into the curtilage and had to be suppressed as fruit of the poisonous tree. State v. Gravitt, 289 Ga. App. 868, 658 S.E.2d 424 (2008).
Under O.C.G.A. § 17-5-30(b), the state bears the burden of proving the lawfulness of a search when it is an unconsented police entry into a home. Since there were no exigent circumstances justifying the entry of the police into the defendant's trailer to arrest persons for underage drinking, the trial court properly granted the defendants' motion to suppress the evidence seized from the unlawful entry. Statements made by the defendants after exiting the trailer were fruits of the poisonous tree and also had to be excluded. State v. Ealum, 283 Ga. App. 799, 643 S.E.2d 262 (2007).
Consent by roommate did not authorize search.
- Defendant was entitled to suppression of a gun, money, and drugs seized from the defendant's residence because the search was unreasonable under the Fourth Amendment as the defendant was not informed when the police came to the residence and arrested the defendant on an outstanding warrant that the defendant's roommate had consented to the search of the residence; the defendant could have erroneously believed that the search was incident to the arrest on a driving violation. Preston v. State, 296 Ga. App. 655, 675 S.E.2d 553 (2009).
Improper entry into residence justified.
- Denial of a defendant's suppression motion was proper as the police officers were authorized to immediately enter a residence, without announcing the officers' presence as required by O.C.G.A. § 17-5-27 since the occupants fled upon seeing the police into a residence where the police had recently conducted controlled drug buys and the officers had a reasonable belief that the fleeing occupants might retrieve weapons or destroy evidence; once legally inside the residence, the police were authorized to execute a search warrant that led to the discovery of the defendant's involvement in the drug sales. Further, suppression of evidence was not a constitutionally-required remedy for an improper entry pursuant to an otherwise valid search warrant. Jackson v. State, 280 Ga. App. 716, 634 S.E.2d 846 (2006).
Search of apartment where drugs were found in plain view.
- Police who entered the defendant's apartment after receiving a report that the defendant was chased into the apartment by a man who had a gun lawfully entered the apartment and had probable cause to seize and test what appeared to be drugs that were in plain view, and the trial court properly admitted the drugs which police found in plain view and other items which police found after police obtained a search warrant and searched the remaining areas of the defendant's apartment. Miller v. State, 261 Ga. App. 618, 583 S.E.2d 481 (2003).
In a cocaine trafficking prosecution, though the defendant testified that an officer kicked in the door to the defendant's residence as the defendant's landlord testified that there was no damage to the front door, and the trial court was entitled to believe the officer's testimony that the door was open, the officer was entitled to seize drugs seen in plain view through the open door. Therefore, the defendant's motion to suppress the drugs was properly denied. Reid v. State, 298 Ga. App. 889, 681 S.E.2d 671 (2009).
Closed refrigerator.
- Police officer opened the door of an operating, closed refrigerator in a storage unit, after having been called to investigate vandalism and possible burglary, but these circumstances did not rise to the level of emergency involving immediate threats to life or limb, and the warrantless search of the refrigerator was not justified. State v. Gallup, 236 Ga. App. 321, 512 S.E.2d 66 (1999).
Search of relative's residence.
- Trial court properly granted the defendant's motion to suppress evidence recovered from the defendant's brother's townhouse, pursuant to O.C.G.A. § 17-5-30, since it was found that there was no probable cause for issuance of a search warrant of the townhouse merely because the defendant was staying there, as there was no evidence that the defendant had been there at or around the time of committing various crimes and, accordingly, there was no reasonable grounds to believe that evidence of the crimes would be found there. A search warrant must be supported by probable cause or reasonable grounds to believe that evidence of a crime will be found in a particular place. State v. Brantley, 264 Ga. App. 152, 589 S.E.2d 716 (2003).
Search of desk at work.
- Trial court erred by failing to suppress the evidence seized by the police from the defendant's desk at work and concluding that no warrant was required for the search of the desk because the desk was unlocked and was in a workspace shared by numerous coworkers. A warrant was required for the search of the desk and, since the warrant authorizing the search was issued without a showing of probable cause based on the tip of an unidentified caller, and there was no exception to the warrant requirement shown, the fruits of the search of the desk had to be suppressed. Harper v. State, 283 Ga. 102, 657 S.E.2d 213 (2008).
Fruits of aerial search admissible.
- Since the special protection accorded by U.S. Const., amend. 4 to the people in their "persons, houses, papers and effects" is not extended to open fields, evidence obtained from an aerial search of an open field is not inadmissible as the product of an illegal search. Reece v. State, 152 Ga. App. 760, 264 S.E.2d 258 (1979).
Evidence on defendant's person.
- Evidence of guilt which the defendant, either directly or indirectly, was compelled to disclose by an unlawful search and seizure of the defendant's person under illegal arrest is not admissible in a criminal prosecution of the person thus illegally arrested. MacDougald v. State, 124 Ga. App. 619, 184 S.E.2d 687 (1971).
Search of defendant's purse unauthorized and evidence suppressed.
- Defendant, who was not suspected of any crime at the time the defendant consented to a search of the defendant's vehicle, was merely a visitor to the house and did not tell the police officer to search for the keys to the vehicle, but only stated where the defendant thought the keys might be. Defendant never specifically consented to a search of the defendant's purse. Under these circumstances, the trial court was authorized to find that a typical reasonable person would not have understood the exchange between the defendant and the officer to grant the officer permission to search the defendant's purse; therefore, the defendant's motion to suppress narcotics found in the purse was properly granted. State v. Fulghum, 288 Ga. App. 746, 655 S.E.2d 321 (2007).
Motion proper if facts indicate defendant was legitimately on codefendant's property.
- Motion by a defendant to suppress evidence because of an unlawful search and seizure sufficiently alleges that the defendant had standing to challenge the legality of the defendant's arrest, the seizure of the vehicle and the following search if the facts alleged in the motion can be fairly construed to state that the defendant was legitimately on the premises of a codefendant at the time of their arrest and seizure of the latter's property and therefore the fruits of the search and seizure were to be used against the defendant such that defendant would be aggrieved by an unlawful search and seizure. Bramblett v. State, 135 Ga. App. 770, 219 S.E.2d 26 (1975).
Brass knuckles found during investigatory stop occurring in high school parking lot.
- Trial court properly denied a defendant's motion to suppress brass knuckles a police officer found in the defendant's pocket during an investigatory stop in a high school parking lot because under the totality of circumstances, the brief stop was neither arbitrary or harassing but was based on a founded suspicion of criminal activity; it was reasonable for the officer to infer, based on the officer's training, experience, and common sense, that the defendant was looking to engage in criminal activity, and the officer had been hired to secure the lot and to guard against fighting. Esposito v. State, 293 Ga. App. 573, 667 S.E.2d 425 (2008), cert. denied, No. S09C0184, 2009 Ga. LEXIS 267 (Ga. 2009).
Consent given by outbuilding owners and property deemed abandoned.
- With regard to a defendant's convictions for sexual abuse of a child, the trial court properly denied the defendant's motion to suppress various items found in an outbuilding that the defendant, the victim, and the victim's parent had been living in as the owners of the outbuilding consented to the entry by the police as well as had brought certain items to the police themselves. The defendant's failure to retrieve the items for over three months, despite repeated requests on the part of the owners to get the items, as well as the defendant moving out of state sufficiently established that the defendant abandoned the property, thus, no illegal search and seizure was possible. Driggers v. State, 295 Ga. App. 711, 673 S.E.2d 95 (2009).
4. Inventory Search
Inventory search is custodial act not subject to motion.
- That the making and filing of an inventory pursuant to O.C.G.A. § 17-5-2 is merely a ministerial act not affecting the substantive rights of an accused is borne out by the fact that such failure is not a ground for a motion to suppress under Ga. L. 1966, p. 567, § 13. Williams v. State, 125 Ga. App. 170, 186 S.E.2d 756 (1971).
Inventory search pursuant to standard procedure.
- Because the impoundment of the vehicle the defendant had been driving was reasonable and there was evidence to support the trial court's finding that the inventory search, during which bags containing marijuana and cocaine were found, was conducted pursuant to standard police procedure, the trial court's denial of the motion to suppress was not improper. Askew v. State, 326 Ga. App. 859, 755 S.E.2d 283 (2014).
Inventory of personal items of arrestee proper.
- Defendant's motion to suppress was properly denied as a search of defendant's wallet was conducted during an inventory of the defendant's personal items after the defendant was arrested and was not investigatory. Morrison v. State, 272 Ga. App. 34, 611 S.E.2d 720, aff'd, 280 Ga. 222, 626 S.E.2d 500 (2006).
Trial court did not err in denying the defendant's motion to suppress evidence officers found during the booking process at the detention center because the court's finding there was probable cause for the defendant's arrest for firing a handgun at a street light at a hotel and was not clearly erroneous when the combined facts and circumstances known to the arresting officers were sufficient to warrant a prudent person in believing that the defendant had committed the offense of discharging a firearm on the property of another without permission in violation of O.C.G.A. § 16-11-104(a); the defendant matched the unique description of one of the shooters provided by the eyewitness and communicated to the responding officers, and the defendant was encountered by the officers near the scene of the shooting incident shortly after the incident occurrence. Davis v. State, 304 Ga. App. 355, 696 S.E.2d 381 (2010).
Trial court did not err in denying the defendant's motion to suppress because there was evidence to support the trial court's finding that the officers' search of a zippered, red bag found during the inventory search of the defendant's motorcycle was conducted pursuant to State Patrol procedures, which required that all items of value be listed and, thus, did not exceed the permissible scope of the inventory search; there was no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation. Grizzle v. State, 310 Ga. App. 577, 713 S.E.2d 701 (2011).
Suppression of data on electronic devices seized during arrest.
- Trial court properly suppressed evidence derived from the appellees' electronic devices legally seized at the time of arrest as, relying on persuasive authority from the United States Court of Appeals for the Eleventh Circuit, the 539 day delay between the seizure of the devices and issuance of search warrants for data contained in the devices was unreasonable and violated the appellees' rights under the Fourth Amendment and Georgia law. State v. Rosenbaum, 305 Ga. 442, 826 S.E.2d 18 (2019).
Failure to complain when no inventory made constitutes waiver.
- Failure to include in the motion to suppress the police officer's failure to make an inventory of articles seized during a search under Ga. L. 1966, p. 567, § 13 (see O.C.G.A. § 17-5-30) is a waiver of that particular ground. Touchstone v. State, 121 Ga. App. 602, 174 S.E.2d 450 (1970).
Property clearly taken for other than protective reasons.
- After a bag was placed in custody of another individual by the defendant after the defendant's involvement in a traffic accident (such individual putting the bag in the individual's apartment) and, additionally, after the defendant's boyfriend was willing and able to take custody of the bag, the state could not premise seizure of the bag on the necessity to protect the bag from being lost or stolen or to protect themselves; consequently, the police conducted a warrantless investigatory search without probable cause, under the guise of an inventory search, and the defendants' motion to suppress should have been granted. Gaston v. State, 155 Ga. App. 337, 270 S.E.2d 877 (1980).
Informants
Applicability of state law.
- If the informer's privilege to remain anonymous at a probable cause hearing is a state evidentiary question, the court must look to Georgia law. Keith v. State, 238 Ga. 157, 231 S.E.2d 727 (1977).
Information must meet probable cause test.
- Sole question is whether the information to support the warrant meets the test for probable cause; there is no need to reveal the informer's identity. Keith v. State, 238 Ga. 157, 231 S.E.2d 727 (1977).
Tip provided by paid confidential informant and then transferred to the officer through the channels of police communication had more indicia of reliability than an anonymous tip and justified the officer's stop of the defendant's vehicle. Beck v. State, 216 Ga. App. 532, 455 S.E.2d 110 (1995).
Informer's anonymity for probable cause purpose is evidentiary.
- When the state relied on information supplied by an informer to establish probable cause for a warrant, the informer's privilege to remain anonymous presents a question of evidentiary rather than constitutional magnitude at a motion to suppress, when the issue is the preliminary one of probable cause, and guilt or innocence is not at stake. Keith v. State, 238 Ga. 157, 231 S.E.2d 727 (1977).
Anonymous tip lacked detail.
- Defendant's motion to suppress suspected cocaine was properly granted as: (1) police officers lacked probable cause to arrest the defendant for obstruction of justice upon the defendant's flight; (2) an initial uncoercive encounter with the police did not constitute a seizure, and the defendant was free to leave at any time; and (3) the record was devoid of any evidence about the details of an anonymous tip that the defendant was seen selling drugs in the area of the encounter; moreover, given the tip's lack of detail and failure to predict future behavior, observation of the defendant's conduct might have warranted further investigation, but it did not rise to the level of reasonable suspicion needed to briefly detain or even arrest. State v. Dukes, 279 Ga. App. 247, 630 S.E.2d 847 (2006).
9-1-1 call from unidentified informant.
- A9-1-1 call from an unidentified informant did not provide the police with reasonable suspicion to stop the defendant's vehicle, and the stop unreasonably intruded upon defendant's Fourth Amendment rights; as a result, the trial court erred by denying the defendant's motion to suppress. Slocum v. State, 267 Ga. App. 337, 599 S.E.2d 299 (2004).
Direct involvement of confidential informant.
- Trial court did not err in denying the defendant's motion to suppress methamphetamine seized in plain view by officers who were given information by a confidential informant, despite the fact that the informant had never provided this type of information to police before as: (1) that information was sufficiently reliable to give law enforcement a reasonable suspicion to detain the defendant and investigate the informant's report that the defendant would be delivering methamphetamine to a specific location at a certain time; (2) the information contained facts unknown to the general public; and (3) the informant personally provided the information to officers and accompanied the officers to the suspected location of the delivery; moreover, because the defendant did not dispute that the methamphetamine was found, and did not claim that the confidential informant could aid in a defense, the trial court did not err by denying disclosure of the confidential informant's identity. Cole v. State, 282 Ga. App. 211, 638 S.E.2d 363 (2006).
No error occurred in the denial of a defendant's motion to suppress evidence based on a claim that the police lacked probable cause to arrest the defendant; information provided by an informant was reliable and established probable cause because the informant used the defendant as a supplier, the informant set up a buy from the defendant under police supervision, the informant described in accurate detail the vehicle the defendant would be driving and where and when the sale would occur, and in telling the police that the informant could lead the police to the defendant, the informant made an inculpatory statement related to the defendant's own drug trafficking charge. Lopez v. State, 292 Ga. App. 518, 664 S.E.2d 866 (2008).
Anonymous tip sufficient.
- Because the trial court found that officers acting on an anonymous tip that marijuana was being grown at the defendant's residence were within the officers' rights when the officers saw marijuana from the adjoining property, when the officers smelled marijuana from the driveway, and when the officers went to both the front and the back doors of the house in an attempt to make contact with someone, and the grounds given in the affidavit supporting a search warrant application were wholly unconnected with the defendant's arrest and the two protective sweeps, the trial court did not err in denying the defendant's motion to suppress. Padgett v. State, 287 Ga. App. 789, 653 S.E.2d 102 (2007), cert. denied, No. S08C0415, 2008 Ga. LEXIS 209 (Ga. 2008).
Tip provided by unknown informant sufficient when corroborated.
- Denial of motion to suppress was upheld when, contrary to defendant's argument, the affidavit in support of the search warrant provided sufficient probable cause for issuing the warrant; the information provided by the allegedly unreliable, unknown informant was corroborated by the victim's description and an officer's observations of the defendant following the crime. In addition, the affidavit was not insufficient because the affidavit was based on double hearsay provided by the informant to one officer, who then relayed the information to the officer who presented the affidavit. Johnson v. State, 265 Ga. App. 777, 595 S.E.2d 625 (2004).
Tipster's reliability unknown.
- Trial court erred in failing to suppress evidence seized in the wake of an invalid stop of defendant's vehicle because the stop of the vehicle was based on a tip; although the officer was able to corroborate the description of the vehicle, the vehicle's location, and the fact that there was a black male driver and female passenger, the tip did not provide any information concerning the defendant's future behavior and related to easily obtained facts; the tipster did not fit the definition of a concerned citizen and was more akin to a known informant of unknown reliability. Rucker v. State, 276 Ga. App. 683, 624 S.E.2d 259 (2005).
Use of "unknown" informant did not justify suppression.
- Trial court did not err in denying the defendant's motion to suppress, despite a claim that an informant used to apprehend the defendant was not previously known to police and had never provided any information until helping in the prosecution of the defendant, because the informant's tip predicted some aspects of the defendant's future behavior and contained information not available to the general public that was corroborated by the observations of officers; moreover, the defendant's reckless driving and flight from a congested parking lot, which caused a short high-speed chase to ensue, and the fact that the police learned that the defendant often carried a gun, provided the officers with an additional basis to stop the defendant and make an arrest. Patton v. State, 287 Ga. App. 18, 650 S.E.2d 733 (2007).
Reliable and anonymous tip with sufficient detail.
- Defendant was not entitled to suppression of the evidence seized by a police officer making an investigatory stop as the information provided to the officer by a reliable and anonymous tip contained explicit details of the defendant's travel itinerary, which were not known by the general public. Daniels v. State, 278 Ga. App. 263, 628 S.E.2d 684 (2006).
Information provided by confidential informant was reliable.
- Denial of the defendant's motion to suppress was upheld when the personal observations of the affiant officer established the reliability of the confidential informant; among other things, the officer ensured that the informant had no illegal drugs when the informant entered the residence and confirmed that the informant possessed crack cocaine when the informant came out. Browner v. State, 265 Ga. App. 788, 595 S.E.2d 610 (2004).
Trial court did not err in denying the defendant's motion to suppress on the ground that a confidential informant was not reliable because the basis for the informant's knowledge was that the informant overheard one of the codefendants discuss that there was going to be methamphetamine at the address to be searched, and evidence of the informant's reliability included that the informant had been known to the deputy and that the informant had previously provided information to narcotics agents leading to the seizure of methamphetamine and marijuana and to several drug-related arrests. Hawkins v. State, 303 Ga. App. 618, 694 S.E.2d 132 (2010).
Trial court did not err in denying the defendant's motion to suppress drug evidence because the basis of an informant's knowledge was the informant's personal observation of marijuana at the defendant's residence, and the informant's reliability was sufficiently established by evidence that the informant had been known by the investigating officer for 11 or 12 years and had been instrumental in obtaining arrests and convictions in numerous prior cases; while the better practice would have been for the officer to include all information relating to the informant's reliability, the informant's failure to provide the informant's prior criminal history and payment history did not invalidate the warrant in light of the other indicia of the informant's reliability. Williams v. State, 303 Ga. App. 222, 692 S.E.2d 820 (2010).
Because the information provided by a confidential informant was reliable and substantially corroborated by the police officers, probable cause to search the defendant existed; accordingly, because the warrantless search was authorized with or without the defendant's consent, there was no basis to suppress the drug evidence found on the defendant's person. Hall v. State, 310 Ga. App. 397, 714 S.E.2d 7 (2011).
Even if trial counsel was deficient for failing to timely file a motion to suppress, the defendant failed to establish that the defendant was prejudiced by such failure given that a confidential informant's tip was sufficient to establish probable cause without the need for independent corroboration. Williams v. State, 316 Ga. App. 383, 729 S.E.2d 517 (2012).
Previously used informant reliable.
- Trial court properly denied the defendant's motion to suppress evidence seized from the defendant's apartment upon execution of a search warrant. The affidavit of a deputy in support of the warrant was based on an informant's tip that established probable cause as the informant had been in the defendant's apartment and had personally viewed the drugs. Further, the deputy had known the informant for at least six months and the informant had been helpful in five other cases, and therefore no independent corroboration of the informant's tip was necessary. Rocha v. State, 284 Ga. App. 852, 644 S.E.2d 921 (2007).
Tip from known reliable informant.
- Police had a reasonable, articulable suspicion that justified stopping the defendant's truck based on a tip from a known, reliable informant and there was no requirement to provide a basis for predicting specific future behavior of the suspect. Steed v. State, 273 Ga. App. 845, 616 S.E.2d 185 (2005).
In considering the "veracity" of the persons supplying information, the court should not lose sight of the fact that, whether an individual supplying information of a possible crime is a "concerned citizen" to whom a presumption of credibility is accorded or an "anonymous informant," the information provided by either may support the issuance of a warrant when that information is corroborated by further investigation by officers. State v. Towe, 246 Ga. App. 808, 541 S.E.2d 423 (2000).
Decision on informer's existence by trial judge after questioning police.
- Whether or not an informer really exists is a question of evidence to be decided by the trial court after the officers have been thoroughly questioned and cross-examined. Keith v. State, 238 Ga. 157, 231 S.E.2d 727 (1977).
Informant's information not stale.
- Search warrant that a police officer executed was valid because the officer's affidavit in support of the warrant contained sufficient, reliable information that was not stale regarding the officer's reliance on a confidential informant. Rogers v. State, 274 Ga. App. 546, 618 S.E.2d 166 (2005).
Trial court did not err in denying the defendant's motion to suppress because the information a confidential informant provided a narcotics agent was not stale, and in reviewing the totality of the circumstances, the magistrate was authorized to conclude that on a certain date, based on a conversation the informant overheard, methamphetamine was going to be manufactured at the defendant's house; regardless of whether the informant actually heard the information on the date in question, the information provided a substantial basis for believing that when the magistrate issued the warrant methamphetamine was being manufactured at the defendant's residence. Hawkins v. State, 303 Ga. App. 618, 694 S.E.2d 132 (2010).
State need not give informers' names.
- When the state relied on information supplied by an informer to establish probable cause for a search warrant, the state need not reveal the names of the state's informers at a motion to suppress. Keith v. State, 238 Ga. 157, 231 S.E.2d 727 (1977).
Warrant must give circumstances indicating credibility if informant unidentified.
- When a search warrant issues on the basis of information furnished by an unidentified informant the warrant must include underlying circumstances from which the agent concluded that the informant was credible or the informant's information reliable. State v. Mabrey, 140 Ga. App. 577, 231 S.E.2d 461 (1976).
Informant without established reliability.
- Informant without an established past reliability may be used to furnish information leading to the issuance of a valid search warrant if the officer making the affidavit satisfies the requirements of supplying to the magistrate the underlying circumstances from which the credibility of the information was determined. State v. Mabrey, 140 Ga. App. 577, 231 S.E.2d 461 (1976).
Present reliability counts more than past.
- Past reliability of an informant is important in evaluating present credibility, though it is always present reliability which is at issue when a search warrant is being sought. State v. Mabrey, 140 Ga. App. 577, 231 S.E.2d 461 (1976).
Informant who appears honest with no criminal record.
- It is not error to overrule a motion to suppress evidence found as a result of a search after the affiant prosecutor formed the prosecutor's opinion from the demeanor and reputation of and intrinsic corroborative detail furnished by the informer, who was a person with no known criminal record, a mature person, regularly employed, a college student in good standing who demonstrated truthful demeanor, and the detail stated indicated personal knowledge. Davis v. State, 129 Ga. App. 158, 198 S.E.2d 913 (1973).
Because law enforcement had the authority to conduct a warrantless search of the defendant's automobile based upon information supplied to law enforcement from a reliable, honest, and law-abiding informant, which was independently confirmed by officers investigating the tip, the trial court did not err when the court denied a motion to suppress the evidence seized in the defendant's car. Fleming v. State, 281 Ga. App. 207, 635 S.E.2d 823 (2006).
Showing officer's basis for probable cause.
- When affidavits fail (1) to give reasons for an informant's reliability; and (2) to either state how the informer obtained the information or that the tip described the criminal activity in such detail that the magistrate may know it is more than a casual rumor circulating in the underworld, or an accusation based merely on an individual's general reputation, a trial judge errs in overruling a motion to suppress. Moreland v. State, 132 Ga. App. 420, 208 S.E.2d 193 (1974).
For court to sustain a police officer's determination of probable cause on the basis of information provided by an informant, the state, at the hearing on the motion to suppress, is required to produce evidence showing that the police officer knew how the informant received the information or else had such detailed information that the officer knew the information to be more than mere rumor or suspicion. State v. Wells, 153 Ga. App. 308, 265 S.E.2d 111 (1980).
Defendant's suppression motion was properly denied as a search warrant was based on probable cause because Clayton County investigators purchased an illegal video poker machine from a subject in Clayton County, who said the machine was obtained from a particular address in DeKalb County, and both DeKalb and Clayton investigators observed "several other illegal video poker machines" at that address; while the investigators could not tell from looking at the machines whether the machines were legal or not, the test was only whether the evidence established a fair probability that contraband would be found. Jones v. State, 276 Ga. App. 810, 625 S.E.2d 4 (2005).
Because: (1) the state conceded that the state's informant was not reliable as the informant never previously provided information to the state's investigator; and (2) the police failed to independently investigate and corroborate the information provided to the police by that informant in support of a search warrant affidavit, the magistrate lacked a substantial basis for determining that probable cause existed to search the defendant's home; thus, the evidence seized as a result should have been suppressed. St. Fleur v. State, 286 Ga. App. 564, 649 S.E.2d 817 (2007).
Suppression required if informant unreliable.
- Court erred in refusing to suppress evidence seized due to a search warrant based on an informant when neither the informant nor the informant's information were shown to be reliable; the convictions at issue were unsupported without the tainted evidence and reversal was required. Land v. State, 259 Ga. App. 860, 578 S.E.2d 551 (2003).
Denial of the defendant's suppression motion was error as a search warrant was based upon the statements of a confidential informant (CI) whose reliability, credibility, and source of information were unknown, law enforcement officers had failed to corroborate the CI's claim that the defendant was selling drugs from the residence, and the officers did not observe the CI's conduct before or after the controlled buy. Chatham v. State, 323 Ga. App. 51, 746 S.E.2d 605 (2013).
Identification Procedures
Photographic identification.
- Trial court erred in granting a defendant's motion to suppress a photographic identification as the two steps of the test for determining whether a photographic identification was admissible were erroneously conflated since, without ruling on whether the lineup procedure was impermissibly suggestive, the trial court applied the totality of the circumstances factors and ruled that the victim's identification was without any substantial factual basis; thereafter, the trial court again applied the totality of the circumstances factors and found that there was a substantial likelihood of misidentification of the defendant as the intruder. State v. Norton, 280 Ga. App. 657, 634 S.E.2d 810 (2006).
Trial court did not err in admitting a photograph of the victim with the victim's spouse because the jury observed the victim's spouse when the spouse testified and identified the photograph, and the trial court determined that the admission of the photograph would not give rise to a strong emotion. Haynes v. State, 287 Ga. 202, 695 S.E.2d 219 (2010).
Trial court properly denied the defendant's motion to suppress the victim's identification of the defendant in a pretrial photo array because the array was not impermissibly suggestive; the six men depicted were of the same race or ethnicity, the same general age group, and had similar hairstyles and facial hair. Delgiudice v. State, 308 Ga. App. 397, 707 S.E.2d 603 (2011).
Independent source for identification.
- Trial court erred in granting the defendant's motion to suppress an identification based on a hearsay recounting that something along the lines of an improper show-up occurred; further, there was an independent source for the identification as the victim knew the defendant and the other suspect and identified the defendant in a photographic array. State v. Byrd, 266 Ga. App. 121, 596 S.E.2d 426 (2004).
Identification evidence not suppressed.
- Trial court did not err in denying the defendant's motion to suppress the evidence of the identification during a one-on-one show-up, based on the totality of the circumstances as the victim got a good look at the defendant from about three feet away, immediately was able to give a description to police, only a short time passed between the robbery and the identification, and the victim had a clear opportunity to see the robber up close during the middle of the day. Fitzgerald v. State, 279 Ga. App. 67, 630 S.E.2d 598 (2006).
Because there was no likelihood of irreparable misidentification, especially since a witness stated that the witness's identification of the defendant was based upon seeing the defendant at the scene of the crime, and because the victim and witness both identified the defendant as the shooter at trial, any error in the admission of the show-up identification was harmless; therefore, the defendant's motion to suppress was properly denied. Lee v. State, 298 Ga. App. 630, 680 S.E.2d 643 (2009).
Trial court properly denied the defendant's motion to suppress identification evidence because the trial court was authorized to find that no substantial likelihood of irreparable misidentification existed; the victim identified the defendant within thirty minutes of the offense, and the victim stated that the victim got a good look at all of the assailants and was one hundred percent sure and knew for a fact that the defendant was the person who demanded money and punched the victim in the face, noting that "it was fresh in his head." Law v. State, 308 Ga. App. 76, 706 S.E.2d 604 (2011).
Trial court did not clearly err in denying the defendant's motion to suppress the victim's pre-trial identification of the defendant as the perpetrator because the trial court's ruling was supported by evidence that the victim: (1) knew the defendant from the neighborhood; (2) described the defendant to an officer on the scene; (3) spent 30 minutes or more with the defendant in an apartment talking with the defendant then defending against the attack; (4) quickly and confidently identified the defendant as the victim's assailant upon seeing the defendant's picture; and (5) identified the defendant at the hearing on the motion to suppress and at trial. Leeks v. State, 309 Ga. App. 724, 710 S.E.2d 908 (2011).
Identification evidence was not subject to suppression on the basis that the lineup procedure was impermissibly suggestive as, even assuming that the officer indicated to the witness that the lineup contained a photograph of the second suspect, there was nothing about the identification procedure that would have inevitably led the witness to identify the defendant as the gunman. The lineup consisted of photographs of six males, all of whom were the same race, appeared to be approximately the same age, and had similar hairstyles, facial hair, and facial features; thus, no one photograph stood out from the others. Williams v. State, 316 Ga. App. 821, 730 S.E.2d 541 (2012).
One-on-one identification evidence admissible.
- Trial court did not err in denying the defendant's motion to suppress the victim's pre-trial identification of the defendant during a one-on-one show-up at the police station because the victim had the opportunity to view the attacker's face and focused attention thereon, and the victim's description of the attacker was fairly accurate; the existence of some inconsistencies did not render the victim's testimony inadmissible, but rather was a matter for the jury. Butler v. State, 290 Ga. 412, 721 S.E.2d 876 (2012).
Denial upheld when admission of pre-trial identification was not erroneous.
- Denial of the defendant's motion to suppress based on an alleged error in the admission of a pre-trial identification was upheld as there was no indication that the photographic line-up was impermissibly suggestive or that the identification was not based solely upon the recognition of the defendant by the victim during the actual robbery. Pinson v. State, 266 Ga. App. 254, 596 S.E.2d 734 (2004).
Applicability
1. In General
Applicability to all motions to suppress.
- So as not to create two procedures, one statutory and the other nonstatutory, all motions to suppress should be governed by O.C.G.A. § 17-5-30 to the extent possible. State v. Slaughter, 252 Ga. 435, 315 S.E.2d 865 (1984).
Applicable only to criminal defendants.
- Since the companies were not criminal defendants, the company's appeal of the trial court's denial of a motion to suppress was inappropriate as O.C.G.A. § 17-5-30 did not apply; thus, the insurance commissioner did not have to prove the commissioner's authority to conduct an investigation and, since the law was clear on the appealed issues, the commissioner was entitled to a frivolous appeal penalty. Nat'l Viatical, Inc. v. State, 258 Ga. App. 408, 574 S.E.2d 337 (2002).
Applicable only to searches and seizures made by peace officers.
- See State v. Young, 234 Ga. 488, 216 S.E.2d 586, cert. denied, 423 U.S. 1039, 96 S. Ct. 576, 46 L. Ed. 2d 413 (1975).
O.C.G.A.
§ 17-5-30 does not apply necessarily to searches by state officials. - Mere fact that action is taken by state officials is not adequate to invoke the exclusionary rule even if that section violates U.S. Const., amend. 4. State v. Young, 234 Ga. 488, 216 S.E.2d 586, cert. denied, 423 U.S. 1039, 96 S. Ct. 576, 46 L. Ed. 2d 413 (1975).
Applicable to tangible evidence only.
- Motion to suppress is to be aimed at tangible evidence only, not to confessions or identification testimony, such that the trial court did not err in failing to grant a motion to suppress the defendant's statements or the victim's identification testimony. Robinson v. State, 208 Ga. App. 528, 430 S.E.2d 830 (1993).
Defendant's purported confused mental state is not an acceptable legal reason for suppression of evidence seized following the defendant's arrest. Rauschenberg v. State, 161 Ga. App. 331, 291 S.E.2d 58 (1982).
No pretrial suppression of unlawful evidence legally seized.
- Only persons entitled to the benefit of Ga. L. 1966, p. 567, § 13 (see O.C.G.A. § 17-5-30) are persons aggrieved by an unlawful search and seizure. No provision is made in that section for pretrial suppression of evidence deemed illegal for reasons other than unlawful search and seizure. Norrell v. State, 116 Ga. App. 479, 157 S.E.2d 784 (1967); Pass v. State, 227 Ga. 730, 182 S.E.2d 779 (1971); Reynolds v. State, 147 Ga. App. 488, 249 S.E.2d 305 (1978).
Motion to suppress evidence illegally seized must be based on evidence obtained as a result of an unlawful search and seizure. Davis v. State, 155 Ga. App. 511, 271 S.E.2d 648 (1980).
Waiver as part of drug court contract upheld.
- Under the terms of a drug court contract, the defendant waived any right to suppress evidence seized as a result of a warrantless search, and absent evidence to the contrary and bad faith on the part of law enforcement, the waiver remained enforceable. Wilkinson v. State, 283 Ga. App. 213, 641 S.E.2d 189 (2006).
Customer not "aggrieved" by telephone company bill's seizure.
- Defendants lacked standing under O.C.G.A. § 17-5-30 since the defendants were not "aggrieved" by the seizure of telephone toll records because the records belonged to the phone company. Van Nice v. State, 180 Ga. App. 112, 348 S.E.2d 515 (1986), cert. denied, 480 U.S. 931, 107 S. Ct. 1568, 94 L. Ed. 2d 760 (1987).
Lack of objective and particularized basis led to suppression.
- Trial court properly granted the defendant's motion to suppress evidence seized by law enforcement which showed that the first officer on the scene lacked a particularized and objective basis for suspecting that the defendant was involved in criminal activity, and after a back-up officer arrived, neither officer was placed in fear of the officer's safety by the defendant's actions; thus, the first officer's acts of detaining the defendant and asking for consent to search were unlawful. State v. Lanes, 287 Ga. App. 311, 651 S.E.2d 456 (2007), cert. denied, No. S08C0051, 2008 Ga. LEXIS 85 (Ga. 2008).
Because the evidence sufficiently showed that the defendant's mental condition was clearly vulnerable, and that the defendant: (1) could not read; (2) had to be forcibly restrained while the consent form was initially being read; (3) was weeping while the remainder of the form was read; and (4) never actually signed the consent form, the trial court properly found that any consent to submit to blood and urine tests was not freely and voluntarily given. Moreover, the proper standard of review on appeal, based on the fact that credibility was an issue, was not a de novo standard, but a clearly erroneous standard. State v. Stephens, 289 Ga. App. 167, 657 S.E.2d 18 (2008).
Not error to deny motion if property not used against defendant.
- It is harmless error to deny a motion to suppress if property seized under an illegal search warrant and which appellant sought to have returned to appellant by a motion to suppress is never tendered in evidence. Reid v. State, 129 Ga. App. 660, 200 S.E.2d 456 (1973).
Since no evidence gathered in the search of the defendant's computer or the defendant's jail cell was tendered and admitted against the defendant, even if the trial court erred in denying the defendant's motion to suppress with regard to those two search warrants, the error was harmless. Glenn v. State, 288 Ga. 462, 704 S.E.2d 794 (2010).
Evidence arising from first level police-citizen encounter.
- Trial court erroneously granted a motion to suppress concluding that: (1) police had no particularized objective basis for seizing the men, including the defendant; (2) the officer had no reason to pat down the first man and did so as a pretext to search for drugs; and (3) the defendant did not voluntarily consent to the search; the defendant lacked standing to object to the search, the defendant had no reasonable expectation of privacy in the bag which contained the contraband, and the stop, which led to the seizure, as a first tier encounter, was reasonable. State v. Robinson, 278 Ga. App. 511, 629 S.E.2d 509 (2006).
Trial court did not err in denying the defendant's motion to suppress as a stop by a police officer qualified as a first level police-citizen encounter, and upon learning of an outstanding warrant for the defendant, the officer had probable cause to make an arrest and conduct a search incident thereto; further, the state was not required to introduce the warrant into evidence in order to establish the warrant's validity. Lucas v. State, 284 Ga. App. 450, 644 S.E.2d 302 (2007).
Trial court correctly denied the defendant's motion to suppress on the ground that a police officer lacked reasonable suspicion to stop and detain the defendant because there was testimony indicating that the police encounter with the defendant up to the point of the defendant's arrest was consensual and involved no coercion or detention; therefore, the trial court was authorized to find that the encounter was of the first tier, a communication between the police and a citizen involving no coercion or detention, and did not require a showing that the officer acted with reasonable suspicion of criminal activity, and once the officer learned that the defendant had been driving with a suspended license, the officer had probable cause to arrest the defendant. Grimes v. State, 303 Ga. App. 808, 695 S.E.2d 294 (2010).
Trial court erred in denying the defendant's motion to suppress because the officer lacked reasonable suspicion of criminal activity for an investigatory stop, the defendant's exercise of the right to avoid a first-tier encounter was not relevant to whether the officer had reasonable suspicion of criminal activity, and items the defendant discarded during flight were related to the illegal detention and inadmissible. Walker v. State, 323 Ga. App. 558, 747 S.E.2d 51 (2013).
Probable cause for arrest.
- In a case when the defendants were convicted of trafficking in cocaine, the trial court did not err in finding that there was probable cause to arrest the two defendants because after the codefendant met the two defendants in a nearby apartment complex, the defendant returned with the package of cocaine to sell to the undercover agent, and the second defendant parked that defendant's truck facing the area of the anticipated exchange, apparently so that the second defendant and the first defendant could watch the drug deal; therefore, the trial court did not err by denying the first defendant's motion to suppress. Lopez v. State, 267 Ga. App. 532, 601 S.E.2d 116 (2004).
Trial court did not err in denying a motion to suppress as the defendant's presence at the scene of an ongoing robbery, coupled with the defendant's flight from police, supplied sufficient probable cause justifying an arrest, and police thereafter conducted a lawful Terry pat-down. Vega v. State, 285 Ga. App. 405, 646 S.E.2d 501 (2007).
Trial court did not err in failing to suppress all the evidence discovered as a result of the defendant's arrest because the arresting officer had probable cause to make an arrest for DUI. Caraway v. State, 286 Ga. App. 592, 649 S.E.2d 758 (2007), cert. denied, No. S07C1736, 2007 Ga. LEXIS 686 (Ga. 2007).
Probable cause to support arrest meant no suppression of evidence.
- Appeals court rejected the defendant's contention that a written statement should have been suppressed because the statement was obtained after the defendant was arrested without probable cause and improperly detained as the evidence sufficiently showed that the defendant's presence at the scene of an alleged robbery, coupled with the defendant's flight from police, justified the arrest made, therefore supplying the requisite degree of probable cause to support the arrest. McCoy v. State, 285 Ga. App. 246, 645 S.E.2d 728 (2007).
State court lacked jurisdiction over money seized by local authorities, then delivered to federal authorities for a federal forfeiture proceeding pursuant to 21 U.S.C. § 881, the forfeiture section of the Controlled Substances Act. King v. State, 264 Ga. 282, 443 S.E.2d 844 (1994).
Defendants not prejudiced if fruits of search ruled admissible.
- If the evidence authorized the trial judge in ruling that the warrantless search was legal in that the search was based on probable cause and exigent circumstances precluded the police officer from obtaining a warrant, the defendants could not argue that the defendants were prejudiced because presentation to the jury of the fruits of the search was improper. State v. Peabody, 247 Ga. 580, 277 S.E.2d 668 (1981).
Motion to suppress not deemed motion in limine to exclude testimony.
- Trial court correctly ruled that a motion to suppress was moot because no tangible physical evidence was admitted at trial, and even if the trial court granted the motion to suppress, the ruling did not constitute a ruling that all testimony related to the seized vehicle was inadmissible as the defendant's failure to object to the evidence at the time of introduction at trial was a waiver of any illegal search and seizure; thus, the defendant's motion to suppress could not be deemed a motion in limine to exclude testimony regarding the events that occurred after the initial stop. Maxwell v. State, 285 Ga. App. 685, 647 S.E.2d 374 (2007).
Suppression motion improperly granted.
- Because a police officer possessed sufficient information regarding both the defendants via a police dispatcher, who was relaying information from a9-1-1 caller, and after signaling for the defendants to pull the vehicle over, the officer observed both the defendants switch places, the officer observed sufficient and particular facts to investigate both men for driving under the influence; hence, the trial court erroneously ordered suppression of the evidence obtained from the resulting traffic stop. State v. Bingham, 283 Ga. App. 468, 641 S.E.2d 663 (2007).
Because the defendant's apparent violation of O.C.G.A. § 40-6-16(a) gave the investigating officer a reasonable and articulable suspicion to stop the defendant and inquire further, the trial court erred in granting the defendant's motion to suppress a refusal to take a breath test in connection with DUI charges; moreover, the trial court erroneously concluded that the defendant could have had an innocent explanation for a last-minute swerve to avoid hitting the officer's patrol car as the issue went to the question of guilt or innocence and was not the dispositive question on a motion to suppress. State v. Rheinlander, 286 Ga. App. 625, 649 S.E.2d 828 (2007).
Because the evidence gathered while the defendant's residence was under surveillance, including the contents of the defendant's garbage as well as an officer's specific testimony regarding marijuana residue found on a piece of plastic wrap, supported a finding of probable cause necessary to justify the issuance of a search warrant for the defendant's residence, suppression of the evidence seized as a result of the execution of the search warrant was improper. State v. Davis, 288 Ga. App. 164, 653 S.E.2d 311 (2007).
Trial court erroneously granted suppression of the evidence seized in a traffic stop involving two defendants in which an officer, after arresting the first defendant for obstruction, searched the car and found a substance which a field test showed to be cocaine as the stopping officer was authorized to make the stop based on a violation of O.C.G.A. § 40-6-202 and because the officer could search the passenger compartment of the car incident to the arrest of the first defendant. State v. Stafford, 288 Ga. App. 309, 653 S.E.2d 750 (2007), aff'd, 284 Ga. 773, 671 S.E.2d 484 (2008).
Trial court erred in finding that a no-knock warrant lacked probable cause and in granting suppression of the evidence seized pursuant to the warrant because both the warrant's affiant and a credible informant provided sufficient information that drugs were being sold at the location; moreover, a violation of the knock and announce rule did not require suppression of the evidence found in an otherwise valid search. State v. Ballew, 290 Ga. App. 751, 660 S.E.2d 732 (2008).
Suppression motion properly granted.
- Police officer unreasonably invaded the defendants' privacy by looking through the defendants' window before knocking on the defendants' door when executing an arrest warrant for a third party when: (1) there was insufficient evidence that the third party lived with the defendants; (2) even if the police were authorized to enter the defendants' home, looking through the window was unreasonable as the officer did not reach the window by traveling the route any visitor would travel to reach the front door; and (3) the officer did not have articulable facts which would warrant a reasonably prudent officer to believe that the third party was a danger. State v. Schwartz, 261 Ga. App. 742, 583 S.E.2d 573 (2003).
Because it was objectively reasonable for the defendant, a deputy sheriff, to have had a subjective belief that a termination from employment in that capacity would result by not cooperating with a GBI agent in an interrogation, the statements the defendant made as a result of the interrogation were properly suppressed as involuntarily made. State v. Stanfield, 290 Ga. App. 62, 658 S.E.2d 837 (2008).
Trial court properly denied the defendant's motion to suppress as the officer was authorized to initiate the traffic stop after observing the defendant's seat belt violation and was thereafter authorized to make a reasonable inquiry and investigation. After learning that the defendant did not have a valid driver's license, the officer had probable cause to arrest the defendant and after observing the defendant reach into a pocket, retrieve a plastic bag, and attempt to conceal the bag, the officer had probable cause to search the vehicle for contraband. Horne v. State, 318 Ga. App. 484, 733 S.E.2d 487 (2012).
Probable cause supported an officer's search of defendant's person based on: (1) an officers' initial detection of the odor of marijuana in a house; (2) the primary resident's lie concerning other people being present in the house; (3) defendant's extreme nervousness in front of officers; (4) the discovery of drug paraphernalia after the primary resident consented twice to a search of the home; and (5) the fact that a crack pipe was found under the cushion on which the defendant was seated. Denial of a motion to suppress evidence found on the defendant after a search of the defendant's person, given those circumstances, was proper. Williams v. State, 265 Ga. App. 489, 594 S.E.2d 704 (2004).
Motion to suppress properly denied.
- Trial court did not err in denying the defendant's suppression motion as the affidavit provided probable cause for the issuance of a search warrant under the totality of the circumstances test when: (1) a controlled buy from the defendant was described; (2) the defendant's willingness to turn over the cocaine at the defendant's residence was set forth; and (3) a statement from the person who was with the defendant at the time of the defendant's arrest that defendant had taken the person to the residence to pick up cocaine was set forth. Johnson v. State, 267 Ga. App. 549, 600 S.E.2d 667 (2004).
Trial court properly denied the defendants' motion to suppress the evidence seized from the defendants' home pursuant to a warrant as law enforcement officers were authorized to enter the home based on information the officers received from a 911 call in order to protect the property, investigate whether a burglary had occurred therein, or to learn whether someone inside had been injured. Moreover, despite the fact that evidence was seen in plain view during the short protective sweep, the officers nevertheless erred on the side of the Fourth Amendment, and obtained a search warrant before seizing those items. Love v. State, 290 Ga. App. 486, 659 S.E.2d 835 (2008).
Motion to suppress was properly denied as the trial court did not err in concluding that the officer had reasonable suspicion that the driver was, or was about to be, engaged in criminal activity because the burglary to which the officer responded appeared to be in progress given that someone apparently intended to come back for the air-conditioning units stacked by the open door into the premises; the hour was late, the businesses were closed, and there was no reason for anyone to be driving to the businesses or to the empty properties; the driver was in a pick-up truck capable of transporting several air-conditioning units; and the driver quickly retreated when the driver saw the police car. The above factors were sufficient to give the officer a particularized and objective basis for a reasonable suspicion to stop the vehicle and to investigate. Waldron v. State, 321 Ga. App. 246, 741 S.E.2d 301 (2013).
Second investigatory stop justified search.
- Defendant's suppression motion was properly denied, even though an officer lacked a reasonable suspicion of criminal activity to support a first investigatory stop, as the defendant's flight after the officer's general questions, the defendant's suspicious claim that the defendant was biking home from a job ten miles away, and the defendant's proximity to a car with flashing lights consistent with a triggered car alarm, supported a second investigatory stop; the evidence the defendant sought to suppress was obtained after the second investigatory stop. Crowley v. State, 267 Ga. App. 718, 601 S.E.2d 154 (2004).
Identification.
- Victim's out-of-court identification of the defendant as the person who robbed the victim was admissible because the victim, a cab driver, had ample time and lighting in which to observe the defendant and identified the defendant shortly after the crime occurred. Hollie v. State, 277 Ga. App. 103, 625 S.E.2d 507 (2005).
Probable cause lacking.
- Because the circumstances of the defendant's low-speed flight from an uniformed detective, who was driving an unmarked vehicle, were insufficient to present law enforcement with evidence of a particular crime, the defendant could not be charged with the crime of attempting to elude an officer, and police lacked the probable cause sufficient to warrant an arrest for the offense; thus, the search incident to the arrest was invalid, warranting suppression of the evidence seized. Stephens v. State, 278 Ga. App. 694, 629 S.E.2d 565 (2006).
Suppression motion improperly denied.
- In a prosecution for driving under the influence, the trial court erroneously denied the defendant's motion to suppress evidence seized as a result of a traffic stop made by an officer armed with only a "be on the lookout" warning as the officer lacked a particularized and objective basis for suspecting that the defendant was involved in any criminal activity, but admitted to possessing only scant information about the driver, the year and make of the vehicle being driven, and the vehicle's direction of travel; moreover, the mere fact that the defendant's gold Ford truck was located in the vicinity of the alleged crime did not necessarily give rise to articulable suspicion. Murray v. State, 282 Ga. App. 741, 639 S.E.2d 631 (2006).
Because no exigency existed to justify a search after the defendant was handcuffed and placed under the watchful eye of a police officer, and even assuming that the defendant was under arrest while being detained in the kitchen, a search of the defendant's bedroom which yielded a shotgun found under the bed in the bedroom, a box of unspent shotgun shells, and some loose unspent shotgun shells, was not one incident to arrest; thus, the defendant's possession of a firearm while a convicted felon conviction was reversed, and the case was remanded for a new trial in which the illegally-obtained evidence could not be introduced. Hicks v. State, 287 Ga. App. 105, 650 S.E.2d 767 (2007).
Suppression motion properly denied.
- Defendant's suppression motion was properly denied as a magistrate's issuance of a search warrant for defendant's home was supported by probable cause for purposes of the Fourth Amendment, Ga. Const. 1983, Art. I, Sec. I, Para. XIII, and O.C.G.A. § 17-5-30 since: (1) witnesses reported seeing the defendant at the victim's home near the time that the victim disappeared; (2) the farm manager who located the victim's body told police that the defendant commonly used the farm for hunting; (3) the defendant had a tumultuous relationship with the victim; and (4) the defendant's mailbox was painted in a similar camouflage as the cattle trough in which the victim was found; as the warrant for the house was proper, the warrant for the defendant's truck was not fruit of the poisonous tree. Fortson v. State, 277 Ga. 164, 587 S.E.2d 39 (2003), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018).
Appellate court's finding that O.C.G.A. § 40-8-73.1 was unconstitutional as no rational connection existed between the residence of the driver of a vehicle and the goal of improving law enforcement officer safety during traffic stops, did not warrant suppression of evidence seized during a traffic stop of the defendant's vehicle because the investigating officer had reason to believe that the vehicle's windows were tinted darker than that permitted by the statute. Ciak v. State, 278 Ga. 27, 597 S.E.2d 392 (2004).
Trial court properly denied the defendant's motion to suppress evidence seized pursuant to a warrant in a prosecution filed against the defendant for various sex crimes, when despite alleging specific ages, given the totality of the circumstances, the affidavit sought information of sexual activity involving minor children and was predicated on information provided by a parent involving sexual activity between the defendant and the victim, who was the parent's daughter. Phillips v. State, 283 Ga. App. 319, 641 S.E.2d 294 (2007).
Defendant's motion to suppress was properly denied as: (1) an investigating officer had a reasonable articulable suspicion to stop the defendant's vehicle, based on a violation of O.C.G.A. § 40-6-40 for driving on the wrong side of the road; and (2) a 25-minute delay in reading the implied consent warning was not unreasonable under the circumstances presented. Dunbar v. State, 283 Ga. App. 872, 643 S.E.2d 292 (2007).
Because: (1) evidence seized from the defendant's residence as a result of an interrogation was sufficiently attenuated from any illegality to be admissible; (2) the duration of the search had no bearing on the subsequent consent given by the defendant's roommate; (3) the consent was not a product of any illegal conduct; and (4) there was no evidence of any flagrant misconduct and coercion on the part of the investigating law enforcement officers involved, the evidence was properly admitted. Spence v. State, 281 Ga. 697, 642 S.E.2d 856 (2007).
Because: (1) it was reasonable for the arresting officers to act upon an investigating deputy's observations; (2) law enforcement had reasonably trustworthy information to warrant law enforcement's belief that the defendant had committed or had participated in committing a burglary; and (3) a determination of probable cause to arrest the defendant could rest on the collective knowledge of the police, given the communication between them, probable cause supported the defendant's warrantless arrest and supported the admission of the seized evidence. Murphy v. State, 286 Ga. App. 447, 649 S.E.2d 565 (2007).
Trial court did not err in denying the defendant's motion to suppress the evidence seized by law enforcement given the totality of the circumstances presented including: (1) an anonymous tip; (2) the two responding officers' personal observations of the defendant's actions at the scene; and (3) the officers' brief investigative detention of the defendant; thus, a pat-down of the defendant's outer clothing was reasonable. Carter v. State, 287 Ga. App. 597, 651 S.E.2d 759 (2007), cert. denied, No. S08C0246, 2008 Ga. LEXIS 172 (Ga. 2008).
Because a detective's suspicions were raised by the defendant's odd behavior and the detective thought that something might be hidden in the defendant's shoes, the detective was permitted to detain the defendant in order to maintain the status quo while obtaining more information concerning that suspicion; thus, when combined with the defendant's valid consent, suppression of the evidence seized was unwarranted. Lane v. State, 287 Ga. App. 503, 651 S.E.2d 798 (2007), cert. denied, No. S08C0187, 2008 Ga. LEXIS 185 (Ga. 2008).
Because two police officers were validly and lawfully at the back steps leading to the back door of the defendant's residence investigating a possible burglary at the time it became obvious the officers needed to talk to the occupants of the residence to determine the occupants' knowledge of the burglary suspect, and the officers were not required to go the the front door of the residence in order to initiate the inquiry, when the officers saw the defendant in plain view packaging 35 grams of cocaine and 94 grams of marijuana into smaller packages, the trial court did not err in denying suppression of that evidence. King v. State, 289 Ga. App. 461, 657 S.E.2d 570 (2008).
Trial court did not err in denying motions to suppress filed by the two defendants because: the officer (1) had a reasonable and sufficient basis for initiating a traffic stop of the car the defendants were traveling in based on a belief that the license plate on the subject vehicle might have belonged on another car, and hence, was illegally transferred; and (2) did not improperly prolong the stop once the defendants told conflicting stories of their travels and one declined to grant the officer consent to search. Andrews v. State, 289 Ga. App. 679, 658 S.E.2d 126 (2008), cert. denied, No. S08C0963, 2008 Ga. LEXIS 507 (Ga. 2008).
Trial court properly denied the defendant's motion to suppress certain DNA evidence linking the defendant to the crimes charged because the record showed that, when asking for the issuance of a warrant authorizing the state to take the defendant's blood sample, police informed the magistrate about the salient facts known to the police at the time including: (1) the pizza order that lured the victim to an apartment belonging to the defendant's friend; (2) the fact that the defendant used the friend's phone on the night in question; and (3) the defendant confessed to being involved in the crimes. Moreover, when these facts were included with the others considered by the magistrate, probable cause to issue the warrant continued to exist. Carter v. State, 283 Ga. 76, 656 S.E.2d 524 (2008).
Trial court properly denied the defendant's motion to suppress drug evidence because the stop of the defendant's vehicle was justified based on the police having observed the defendant at a residence under surveillance for suspected drug activity: (1) the defendant went in and out of the residence under surveillance in under five minutes; (2) the defendant had a drug seller as a passenger in the defendant's vehicle; and (3) the defendant drove to the passenger's residence. The stop was a second-tier encounter that required reasonable suspicion, and the collective knowledge of the officers involved, based on the officers' observations, justified the defendant's stop. Satterfield v. State, 289 Ga. App. 886, 658 S.E.2d 379 (2008).
Trial court properly denied the defendant's motion to suppress the evidence seized as a result of a pat-down search because the defendant consented to the search and, under the plain-feel doctrine, the officer conducting the search was authorized to retrieve a plastic bag suspected to be illegal contraband from the defendant's watch pocket. Dunn v. State, 289 Ga. App. 585, 657 S.E.2d 649 (2008), cert. denied, No. S08C1021, 2008 Ga. LEXIS 496 (Ga. 2008).
Given that an officer, responding to a disturbance call in a remote location of the precinct involving the defendant, had a reasonable safety concern, and because the call described the defendant as loud, belligerent, and possibly intoxicated, the officer had a sufficient basis to conduct a pat-down search of the defendant; hence, the defendant's motion to suppress the evidence of a concealed weapon and drugs found following a search was properly denied. Walker v. State, 289 Ga. App. 657, 658 S.E.2d 207 (2008).
Because the defendant committed a traffic violation by crossing a solid yellow line in the roadway, and was not legitimately faced with an obstruction, despite claiming that it was undoubtedly convenient to pass the slow moving van driving ahead, a police officer had a reasonable and articulable suspicion to initiate a traffic stop of the defendant's vehicle; thus, the trial court properly denied the defendant's motion to suppress the evidence seized as a result of that stop. Przyjemski v. State, 290 Ga. App. 22, 658 S.E.2d 807 (2008).
Because the affidavit accompanying a search warrant contained sufficient probable cause and the resulting search was not rendered illegal merely because the date on the warrant post-dated the search by one day, the trial court did not err in denying the defendant's motion to suppress evidence seized pursuant to the warrant. Jones v. State, 289 Ga. App. 767, 658 S.E.2d 386 (2008).
Because law enforcement officers were given permission to enter a landowner's land in order to investigate the presence of possible trespassers for engaging in other illegal activity on the property, and found the defendant and a cohort, the officers gained a reasonable and articulable suspicion that the two individuals were involved in some form of criminal activity, the very least of which was criminal trespass, and therefore had the authority to detain the individuals in a brief investigative stop; thus, suppression of the evidence seized as a result of the encounter was properly denied, after the cohort ran, and the defendant failed to comply with the officers' orders, given that those actions amounted to probable cause to support a warrantless arrest and a search thereafter. Burgess v. State, 290 Ga. App. 24, 658 S.E.2d 809 (2008).
Given that the defendant was unable to offer a credible explanation for being on the grounds of a housing project, and failed to provide a law enforcement officer with a clear answer when asked about the ownership of a car the defendant had been leaning on, the officer had probable cause to make a warrantless arrest of the defendant for loitering; thus, the trial court properly denied the defendant's motion to suppress the evidence seized as a result of that arrest. Boyd v. State, 290 Ga. App. 34, 658 S.E.2d 782 (2008).
Because: (1) the victim's identification of the defendant was based upon independent memory which the victim fairly accurately recalled in developing the composite sketch; (2) there was an independent basis for the victim's identifications; and (3) there was no substantial likelihood of misidentification under these circumstances, the trial court did not err in admitting the identification evidence and the trial court's finding that there was no likelihood of misidentification was supported by the record. Price v. State, 289 Ga. App. 763, 658 S.E.2d 382 (2008).
Given that an officer, responding to a disturbance call in a remote location of the precinct involving the defendant, had a reasonable safety concern, and because the call described the defendant as loud, belligerent, and possibly intoxicated, the officer had a sufficient basis to conduct a pat-down search of the defendant; hence, the defendant's motion to suppress the evidence of a concealed weapon and drugs found following a search was properly denied. Walker v. State, 289 Ga. App. 657, 658 S.E.2d 207 (2008).
Evidence, including the odor of alcohol emanating from the defendant's person, the defendant's slurred speech, and the defendant's bloodshot and watery eyes, was more than sufficient to support the trial court's determination that the defendant's conduct and demeanor resulted from intoxication, supporting probable cause for arrest, and the results of a blood test did not require suppression. Schlanger v. State, 290 Ga. App. 407, 659 S.E.2d 823 (2008).
Defendant's motion to suppress was properly denied as there was sufficient evidence for the trial court to conclude that an officer's initial contact with the defendant was a valid second-tier encounter since the officer already knew that the defendant's vehicle had an incorrect tag; as part of a valid second-tier encounter, the officer was authorized to conduct a pat-down search for weapons. As the defendant clearly had a large object in the defendant's pocket, and the trial court had the opportunity to observe the actual size and contours of the object, the officer's suspicion that the pocket contained a weapon was reasonable. Shoemaker v. State, 292 Ga. App. 97, 663 S.E.2d 423 (2008).
Trial court did not err in denying the defendant's motion to suppress because the search of the defendant's pockets was valid; the officers had a particularized and objective basis for suspecting that the defendant was involved in criminal activity, and because the pat-down was brief, yielded no evidence, and was not a basis for the further investigative detention, it did not taint the defendant's subsequent consent to the search of the pockets. Mwangi v. State, 316 Ga. App. 52, 728 S.E.2d 729 (2012).
Search and seizure not valid when defendant no longer on probation.
- Trial court did not err in granting the defendant's motion to suppress because, given that the defendant was no longer a probationer and had not waived the defendant's Fourth Amendment rights, the warrantless searches and seizures were not valid. State v. New, 331 Ga. App. 139, 770 S.E.2d 239 (2015), cert. denied, No. S15C1075, 2015 Ga. LEXIS 429 (Ga. 2015).
2. Drug Evidence
Sufficient separation between legal and illegal activities by officer.
- Although a police officer's initial entry into the defendant's residence was illegal since the officer entered after a guest opened the door and the guest was not authorized to allow the officer to enter, the defendant's Fourth Amendment rights were not violated and the trial court did not err in denying the defendant's motion to suppress as the officer left the residence upon finding the defendant was in the bathroom and did not return until the defendant requested that the officer reenter, at which time the defendant voluntarily consented to the search that later revealed the drugs on the defendant's property; the subsequent search was sufficiently attenuated from the initial illegal search that the trial court properly denied the motion to suppress. Brown v. State, 261 Ga. App. 351, 582 S.E.2d 516 (2003).
Free air search leading to drugs.
- Defendant's motion to suppress was properly denied as a "free air search" by a drug sniffing dog around the exterior of a vehicle stopped during a purportedly valid traffic stop in which the police did not have an articulable, reasonable suspicion of any illegal drug activity was valid under Ga. Const. 1983, Art. I, Sec. I, Para. XIII. Bowens v. State, 276 Ga. App. 520, 623 S.E.2d 677 (2005).
Valid first-tier encounter.
- Denial of the defendant's motion to suppress was proper; a deputy's initial contact with the defendant was a first-tier encounter, requiring neither reasonable suspicion nor invoking Fourth Amendment protection and, as the defendant admitted that the defendant smoked marijuana upon being asked to explain its odor on defendant's person, the defendant was lawfully arrested and searched. Harding v. State, 283 Ga. App. 287, 641 S.E.2d 285 (2007).
Trial court did not err in denying the defendant's motion to suppress because the initial encounter was a first-tier encounter requiring no suspicion since the defendant was already stopped and the officer did not block the defendant's vehicle, activate the blue lights, or otherwise indicate that the defendant was unable to leave; the subsequent pat-down was proper because the pat-down was performed pursuant to the defendant's consent, which the defendant freely gave when requested by the officer. Kirkland v. State, 316 Ga. App. 310, 728 S.E.2d 907 (2012).
Valid second-tier encounter uncovers narcotics.
- Defendant's suppression motion was properly denied because the methadone found in a lockbox was discovered during a valid second-tier encounter for a possible driving under the influence (DUI) violation after: (1) officers found the defendant asleep and unable to be roused at the wheel of a vehicle still in drive in the roadway, with an empty beer can next to the defendant; (2) an officer had not concluded the DUI stop when the officer asked the defendant about the lockbox; (3) the officer was free to ask the defendant additional questions to gather evidence of possible intoxication; and (4) the officer's question was related to the investigation of a possible DUI. Hendrix v. State, 273 Ga. App. 792, 616 S.E.2d 127 (2005).
Independent basis for arrest.
- Denial of a defendant's motion to suppress was affirmed as the defendant's flight from an improper Terry stop gave the police officers an independent basis to arrest the defendant; thus, the methamphetamine found in close proximity was admissible. Reynolds v. State, 280 Ga. App. 712, 634 S.E.2d 842 (2006).
Drugs in plain view.
- Defendant's motion to suppress methamphetamine was properly denied because exigent circumstances justified an officer in retrieving the defendant's weapon from the vehicle after the defendant admitted that the weapon was concealed and that the defendant did not have a permit for the weapon, and had twice started toward the vehicle to get the weapon personally, and the methamphetamine was in plain view in the bag that contained the weapon. Wright v. State, 272 Ga. App. 423, 612 S.E.2d 576 (2005).
Because the police were authorized to seize marijuana found in plain view, seen through the window of an apartment where the police were executing an arrest warrant on another individual, once the defendant answered a knock on the apartment door, police also had the right to search incident to the defendant's arrest for possession of marijuana and based on the exigency of the circumstances; hence, the trial court erred in granting a motion to suppress the marijuana without explaining the court's interpretation of the evidence or ruling on the credibility of the witnesses. State v. Venzen, 286 Ga. App. 597, 649 S.E.2d 851 (2007).
Trial court did not err by limiting the admissibility of items in a defendant's felony murder trial to those items seized incident to the defendant's arrest in the early morning hours and in plain view during the processing of the crime scene as an approximately 15-minute video recording of the premises, which was viewed by the trial court, supported the officers' testimony that guns, shell casings, significant amounts of cash, and items appearing to be crack cocaine were all in plain view and, under the circumstances, presented probable cause as being contraband or evidence of the crime of the felony murder of an officer. Fair v. State, 284 Ga. 165, 664 S.E.2d 227 (2008).
Trial court properly denied a defendant's motion to suppress the drug evidence found in the defendant's apartment as the evidence authorized the warrantless entry into the apartment based on the officers observing a marijuana cigarette lying next to the door and immediately smelling the strong odor of burnt marijuana when the door was opened. Lawrence v. State, 298 Ga. App. 94, 679 S.E.2d 94 (2009).
Officer's knowledge of defendant's prior drug conviction.
- Because officers had probable cause to arrest the defendant, based on the officers' awareness of the defendant's prior arrest following an explosion at a methamphetamine lab and that the defendant was subject to bond requirements related to such arrest, and, at the time of the search, the defendant was in the company of an individual who was driving on a suspended license and carrying methamphetamine, which was in violation of the defendant's bond conditions, the trial court properly denied the defendant's motion to suppress the evidence seized pursuant to the search incident to a valid arrest. Collins v. State, 281 Ga. App. 240, 636 S.E.2d 32 (2006).
Observations of officers justified.
- Evidence in the record supported the denial of a motion to suppress as officers testified regarding their observations, surveillance techniques, experience with drug sales, and the general modes of operation of persons involved in drug sales, the officers were authorized to stop the defendant's vehicle as one involved in a drug sale, acting in concert with another vehicle as counter-surveillance and showing an obvious interest in the endeavor; further, because the detention lasted at most, 15 minutes, such was not unreasonable and did not amount to an impermissible seizure. Hickman v. State, 279 Ga. App. 558, 631 S.E.2d 778 (2006).
Trial court properly denied a defendant's motion to suppress the drug contraband found under the passenger seat of the vehicle in which the defendant was sitting as the vehicle had sped passed a residence wherein police officers were awaiting the return of an arrestee. The driver's actions in passing the residence warranted an investigative stop based on the belief that the arrestee was in the car and the traffic stop was authorized based on the officers observing the vehicle speeding, thus, the stop of the vehicle was not illegal. McBee v. State, 296 Ga. App. 42, 673 S.E.2d 569 (2009).
Trial court did not err in denying the defendant's motion to suppress because the evidence provided sufficient reasonable articulable suspicion to support a brief detention of the defendant; an officer had a particularized and objective basis for suspecting that the defendant was involved in criminal activity when the officer told the defendant to leave a residence because the officer was aware that the owner of the residence was known for dealing narcotics from a number of prior cases the officer had personally worked on, and the officer believed that the defendant was at the residence to buy marijuana. Hilbun v. State, 313 Ga. App. 457, 721 S.E.2d 656 (2011).
Sale of drugs in officer's presence.
- Warrantless arrest of the defendant was authorized on the ground that a sale of cocaine was committed in the officers' presence, and after the defendant retreated into a motel room, the exigencies of the situation demanded an immediate entry into the room for the officer to arrest the defendant without a warrant; hence, there was no basis for suppression of the evidence seized thereafter. Fortson v. State, 283 Ga. App. 120, 640 S.E.2d 693 (2006).
Controlled buy observed by officer.
- Controlled buy conducted under the observation of the officer alone was sufficient to establish probable cause, and there was no evidence that the officer knew, or should have known, that more than one person resided at the residence. Ibekilo v. State, 277 Ga. App. 384, 626 S.E.2d 592 (2006).
Undercover drug activities by law enforcement.
- Because the totality of the circumstances known to the law enforcement officers participating in the drug investigation and the undercover purchase of narcotics supplied sufficient probable cause that contraband would be found inside the vehicle the defendant was driving, suppression of the drug evidence seized during the search of this vehicle was properly denied. Stroud v. State, 286 Ga. App. 124, 648 S.E.2d 476 (2007).
Use of informant in narcotics cases.
- Defendant's suppression motion was properly denied as: (1) the police personally heard an individual say to the informant on the telephone that the individual had a kilogram of cocaine in the individual's hotel room that the individual intended to sell to the informant if the informant would come to that certain hotel at a certain time, where that individual would be waiting on the third-floor balcony to throw the informant a key; (2) when the informant arrived at the designated hotel at the designated time, the police observed the defendant standing on the third-floor balcony and further observed the defendant respond favorably to the informant's request not to throw down the key and instead to come to the back door to let the informant in; (3) the police did not arrest the defendant until the defendant appeared at that back door; and (4) the information received from an untested informant might have been helpful and corroborating, but the personal observations and perceptions of the police alone more than sufficed to supply the probable cause needed for a warrantless arrest. Fleming v. State, 282 Ga. App. 373, 638 S.E.2d 769 (2006).
Trial court did not err in denying the defendant's motion to suppress drug evidence because the evidence established the existence of probable cause for the issuance of the search warrant for the defendant's residence; at the suppression hearing, the investigating officer testified as to the same information provided in the affidavit and that the officer had known the informant for 11 or 12 years, the officer had used the informant in at least 20 to 30 prior investigations, and the officer had provided the magistrate with information about the informant's prior work with other officers beyond what was set forth in the affidavit. Williams v. State, 303 Ga. App. 222, 692 S.E.2d 820 (2010).
Trial court did not err in denying the defendant's motion to suppress evidence police officers found at a residence because under the totality of the circumstances, the magistrate had a substantial basis for concluding that there was a fair probability contraband would be found at the residence; the affidavit for the search warrant revealed that an informant participated in a drug buy using law enforcement funds, and an officer transported the informant to the premises, where the informant made the purchase, and the informant provided the purchased contraband to the officer. Pass v. State, 309 Ga. App. 440, 710 S.E.2d 641 (2011).
Drugs found during pat-down search.
- Trial court did not err in denying the defendant's motion to suppress the cocaine found by an officer after a precautionary pat-down as the officer's actions in responding to a suspicious-person complaint and immediately encountering the defendant were reasonable and neither arbitrary nor harassing; hence, the seizure was authorized as incident to a lawful arrest. Simmons v. State, 281 Ga. App. 654, 637 S.E.2d 70 (2006), cert. denied, No. S07C0216, 2007 Ga. LEXIS 77 (Ga. 2007).
Trial court properly denied the defendant's motion to suppress marijuana seized as a result of a pat-down search conducted by an investigating officer as: (1) the officer observed sufficient, articulable facts to believe that an aggravated assault suspect might be leaving town; and (2) upon smelling burnt marijuana, and the possibility that weapons might be present, a pat-down of those individuals present, including the defendant, was supported by the totality of the circumstances known to the officer at the time. Brown v. State, 283 Ga. App. 250, 641 S.E.2d 551 (2006).
Because an officer was authorized to: (1) detain the defendant for investigatory purposes based on a9-1-1 call reporting a domestic disturbance; (2) pat the defendant down for weapons; (3) seize the cocaine from the defendant's pocket under the plain feel doctrine; (4) search the defendant's vehicle; and (5) seize the contraband found during that search, the trial court properly denied the defendant's motion to suppress. Lester v. State, 287 Ga. App. 363, 651 S.E.2d 766 (2007).
Trial court properly denied a defendant's motion to suppress the evidence of marijuana found on the defendant's person following a traffic stop based on the person's vehicle having a window tint violation as the arrest was lawful based on the officer having probable cause to place the defendant under arrest and subsequently search the defendant's person due to the defendant's admission to having smoked marijuana recently; the smell of marijuana coming from the defendant's person; the bulge in the defendant's pants; the defendant's nervous demeanor; and the defendant's attempt to prevent a lawful pat-down of the defendant's person in the area of the suspicious bulge. Williams v. State, 293 Ga. App. 842, 668 S.E.2d 825 (2008).
Trial court erred in denying the defendant's motion to suppress evidence a police officer found while conducting a search of the defendant's person because the seizure of the drugs was not lawful when the detention of the defendant was unreasonable; the officer articulated no particularized and objective basis for suspecting that the defendant was or was about to be involved in criminal activity, and the officer's stated reasons for detaining the defendant did not constitute an objective basis for suspecting the defendant of involvement in drug activity and justify an investigatory detention when there were no complaints that day of drug activity or of the defendant's involvement in such activity. Walker v. State, 299 Ga. App. 788, 683 S.E.2d 867 (2009).
Trial court erred in granting a defendant's motion to suppress crack cocaine police officers found in the defendant's pants' pocket during a pat-down search because the officers made a valid Terry stop, and the defendant was not free to leave; the undisputed testimony from the officers was that based on the officers' experience, outside window tinting was often performed on stolen cars, the defendant and the other men were working on a car in a vacant lot, the car had no tag, and the men were gathered around the car in a way that could be construed as trying to conceal a stolen automobile. State v. Miller, 300 Ga. App. 55, 684 S.E.2d 80 (2009).
Trial court did not err when the court denied the defendant's motion to suppress because the contact between the defendant and an officer was a first-tier consensual encounter, and the officer was authorized to seize marijuana from the defendant's pocket since the officer asked for consent to search the pocket, and the defendant gave consent; there was no evidence that the encounter involved coercion or detention, and upon feeling a soft, spongy item in the defendant's pocket, the officer was not automatically authorized to search the pocket, but the officer testified that the officer asked for consent to search the pocket and that the defendant gave the defendant's consent. Ware v. State, 309 Ga. App. 426, 710 S.E.2d 627 (2011).
Traffic stop leading to narcotics.
- Trial court properly denied the defendant's motion to suppress the methamphetamine seized as a result of a traffic stop of the vehicle the defendant was a passenger in as sufficient evidence supported the trial court's finding that an officer's stop of the vehicle was justified by the officer's reasonable articulable suspicion of a crime, specifically, a violation of O.C.G.A. § 40-8-20. Richardson v. State, 283 Ga. App. 89, 640 S.E.2d 676 (2006).
Trial court did not err in denying the defendant's motion to suppress cocaine seized after a valid traffic stop had essentially concluded as a state trooper's objective observations, when combined with the extensive experience the trooper possessed in drug interdiction and knowledge of drug smuggling patterns, supplied sufficient facts to conclude that the defendant might have been engaged in criminal activity. Giles v. State, 284 Ga. App. 1, 642 S.E.2d 921 (2007).
Trial court properly denied the defendant's motion to suppress the marijuana seized as the search of the defendant's truck was conducted after a valid traffic stop after the defendant gave the officer consent to conduct the search, and nothing supported the defendant's claim that this consent was coerced because the consent was obtained during a custodial interrogation and without the benefit of Miranda warnings as the officer's questioning did not unduly prolong the traffic stop and did not result in an unauthorized seizure or an equivalent custodial detention for which Miranda warnings were required. Trujillo v. State, 286 Ga. App. 438, 649 S.E.2d 573 (2007).
Trial court did not err in denying the defendants' motions to suppress drug evidence because the defendants failed to establish that the actions of the arresting officer unreasonably expanded the scope or duration of the traffic stop; because the officer's suspicions were piqued by observations of a truck's condition, the strong scent of perfume emanating from the cab, the demeanor of one of the defendants, and the other defendant's responses to the officer's brief questioning, the officer was then prompted and authorized to request a K-9 unit and to run criminal histories on both defendants, and there was no evidence to suggest that the officer delayed in making either query. Young v. State, 310 Ga. App. 270, 712 S.E.2d 652 (2011).
State failed to meet the state's burden, under O.C.G.A. § 17-5-30(b), of proving that the search of the defendant's vehicle, following a stop for a traffic violation, and the seizure of the marijuana that was found in the vehicle was lawful because there was no evidence that the investigative detention of the defendant lasted no longer than was necessary to effectuate the purpose of the traffic stop and there was no evidence that the scope of the defendant's detention was carefully tailored to its underlying justification. Moreover, no evidence was adduced that the prolonged detention was justified by a reasonable, articulable suspicion of other criminal activity. Nunnally v. State, 310 Ga. App. 183, 713 S.E.2d 408 (2011).
Trial court erred in granting the defendant's motion to suppress evidence resulting from a police officer's search and seizure because, although the defendant was subjected to a tier-two Terry-type investigative detention, the defendant was not in custody, and the defendant was detained for a reasonable time to investigate in conjunction with the valid stop, and the officer's question regarding whether the defendant was in possession of contraband occurred within a few seconds of the stop, such that no reasonable person could believe that they were under arrest and that they were not free to leave after the officer had been afforded a reasonable time to finish conducting a traffic investigation. State v. Hammond, 313 Ga. App. 882, 723 S.E.2d 89 (2012).
Probable cause to suspect drug possession.
- Upon a de novo review, the appeals court found that because law enforcement had probable cause to suspect that the defendant possessed cocaine, a warrantless arrest of the defendant was lawful; thus, an order granting suppression was reversed. State v. Bryant, 284 Ga. App. 867, 644 S.E.2d 871 (2007), cert. denied, No. S07C1242, 2007 Ga. LEXIS 540 (Ga. 2007).
Trial court did not err in denying the defendant's motion to suppress cocaine a detective found in the defendant's pocket because the defendant's presence on the premises being searched and the defendant's apparent attempt to flee from the premises provided probable cause for the detective to believe that the defendant possessed or was, at least, a party to the crime of possessing, the unlawful contraband specified in the warrant, which authorized the detective to detain the defendant and to conduct a warrantless search of the defendant's person. Sheats v. State, 305 Ga. App. 475, 699 S.E.2d 798 (2010).
Trial court did not err in denying the defendant's motion to suppress drugs seized from the defendant's person because a narcotics investigator had probable cause to restrain the defendant and order the defendant to spit out the baggy; the investigator observed the defendant make a series of furtive attempts at concealing the clear plastic baggy, which the investigator believed, based on experience, contained drug contraband. Lewis v. State, 317 Ga. App. 391, 730 S.E.2d 757 (2012).
Police gained entry without authorization and drugs not admitted.
- Prosecution failed to prove that a search and seizure of drug evidence was lawful as the police went to the defendant's home with the specific intention of obtaining consent to search, the police went at night, in force, and entered the home when the defendant was not there, the police gained entry without proper authorization, and unlawfully detained and handcuffed the people inside the home; consequently, the defendant's subsequent consent upon returning home was not purged of the taint of the illegal entry into the home and the illegal seizure of the defendant's person. Pledger v. State, 257 Ga. App. 794, 572 S.E.2d 348 (2002).
Search of hotel room.
- Trial court did not err in denying the defendant's motion to suppress evidence seized in a hotel suite because the affidavit supporting the search warrant for a hotel suite recited probable cause to believe that drugs would be found on the premises under the defendant's possession, custody, and control, namely the two-room suite that the hotel designated and rented to the defendant. Glass v. State, 304 Ga. App. 414, 696 S.E.2d 140 (2010).
Actions of defendant's attorney.
- Trial court did not err in denying the defendants' motion to suppress evidence as the record showed that the defendants' attorneys stated that there was no objection to admission of the cocaine that was seized from the defendants following a stop of the defendants' vehicle; affirmatively stating that there was no objection in effect concedes the point that the motion to suppress evidence was properly denied. Fernandez v. State, 275 Ga. App. 151, 619 S.E.2d 821 (2005).
Suppression motion properly denied following search of vehicle and compartments pursuant to arrest and impoundment.
- Trial court did not err in denying a motion to suppress evidence because the defendant lacked standing to challenge the legality of the search of a bag belonging to a passenger in the defendant's care and, in any event, after the defendant and the passenger were arrested, the police were authorized to search the interior of the car, including closed containers inside the passenger compartment, both as a search incident to the arrests and pursuant to impounding the uninsured car. Driscoll v. State, 295 Ga. App. 5, 670 S.E.2d 824 (2008).
Suppression motion denied to trucker after drug dog alerted.
- Trial court properly denied the defendant's motion to suppress because the investigating officer had reasonable articulable suspicion of other illegal activity based upon the drivers' suspicious behavior related to the curtain on the sleeping compartment, the co-driver's criminal drug history, the inconsistency in the logbooks as compared to what the officer would normally expect to see, the lack of a seal on the load, and the alert obtained by the drug dog detection canine. Sherod v. State, 334 Ga. App. 314, 779 S.E.2d 94 (2015), cert. denied, No. S16C0368, 2016 Ga. LEXIS 118 (Ga. 2016), cert. denied, 137 S. Ct. 51, 196 L. Ed. 2d 55 (U.S. 2016).
Inventory search as part of impoundment proper.
- Pretermitting whether the search was an appropriate search incident to arrest, the court upheld the propriety of inventory searches subject to a reasonable impoundment in order to protect an owner's property and to protect officers from claims over lost or stolen property. Accordingly, the inventory search was proper. Dover v. State, 307 Ga. App. 126, 704 S.E.2d 235 (2010).
Suppression motion properly granted.
- Trial court properly granted a defendant's motion to suppress drug evidence seized from the defendant's apartment as the court found that the defendant nor the defendant's friend had consented to the search and exigent circumstances did not exist since the police had confirmed that the defendant was not one of the robbers the police were pursuing and no sound or movement was coming from within the apartment to have given the police a reasonable basis to search the apartment. State v. Culpepper, 295 Ga. App. 525, 672 S.E.2d 494 (2009).
Trial court did not err in granting the defendant's motion to suppress the contents of a bag a police officer seized because search of the bag was not justified since police officers' initial approach to a vehicle and questioning of the defendant fell within the realm of a first-tier encounter, requiring no reasonable suspicion of criminal activity, and during that encounter, the defendant was free to refuse to answer or ignore the officers' requests and go on the defendant's way; once one of the officers prevented the defendant from exercising that right, the encounter escalated to a second-tier encounter, but the defendant had done nothing to give rise to a particularized and objective basis for suspecting the defendant was involved in criminal activity, and the defendant's subsequent refusal to answer the officer's questions as to what was in the bag, and the defendant's placing the bag back in the cupholder, also gave the officer no basis for an investigatory detention. State v. Jones, 303 Ga. App. 337, 693 S.E.2d 583 (2010).
Suppression motion granted after backpack search.
- After the hospital security officers allegedly noticed an odor of marijuana emanating from the defendant's backpack, confiscated the backpack, searched the backpack, found marijuana in the backpack, and called the police, and the responding officer searched the bag without obtaining a warrant, the defendant's motion to suppress was properly granted because the officer did not testify that the officer personally smelled marijuana; the state did not present any testimony from the hospital security officers who allegedly smelled the marijuana, confiscated the bag, searched the bag, and found marijuana in the bag; and the state did not argue that the defendant consented or that there were exigent circumstances justifying a warrantless search. State v. Cook, 337 Ga. App. 205, 786 S.E.2d 876 (2016).
3. Probationers
Search upon execution of probation arrest warrant.
- Contraband seized in a search of the defendant's home upon execution of a probation arrest warrant should have been suppressed because the warrant was invalid, having been issued on the basis of an earlier illegal search of the defendant. Boatright v. State, 225 Ga. App. 181, 483 S.E.2d 659 (1997).
Warrantless search of parolee.
- Trial court erred in granting the defendant's motion to suppress evidence seized after an automobile search given that law enforcement had reliable information that the defendant was transporting drugs as: (1) the defendant was on parole, and that as a condition thereof, had specifically consented to a warrantless search; (2) the information received from an informant about the defendant's actions was reliable; and (3) no evidence was presented that the officers acted in bad faith or to harass the defendant. State v. Cauley, 282 Ga. App. 191, 638 S.E.2d 351 (2006), cert. denied, No. S07C0420, 2007 Ga. LEXIS 148 (Ga. 2007).
Evidence from probationer's apartment.
- Trial court erred in denying a probationer's motion to suppress the evidence seized from the probationer's apartment as, even though the entry into the apartment for the purpose of effecting an arrest of the probationer was permissible, most of the evidence was seized without a warrant after the probationer was not found in the apartment and had to be excluded under the Fourth Amendment as the search conducted was only permissible insofar as the search involved the observation of items of obvious evidentiary value in plain view during the time and activities required to attempt the probationer's arrest. The probationer was never placed on notice that the probationer was going to be subjected to warrantless searches, and the state failed to demonstrate any exigent circumstances justifying the warrantless search. Jones v. State, 282 Ga. 784, 653 S.E.2d 456 (2007).
Consent arising from probationary status.
- Trial court did not err in denying the defendant's motion to suppress as a consent to search was properly imposed as a condition of the defendant's probation and did not amount to a waiver of rights; thus, the defendant's tacit acceptance of this special condition provided the police with the authority to search. Peardon v. State, 287 Ga. App. 158, 651 S.E.2d 121 (2007).
Waiver of rights as special condition of probation.
- Trial court did not err in denying the defendant's motion to suppress the results of a search of the defendant's person and home because the defendant validly waived the defendant's Fourth Amendment rights under the United States Constitution and Ga. Const. 1983, Art. I, Sec. I, Para. XIII when the defendant entered into a negotiated guilty plea to possession of a firearm and possession of marijuana; the transcripts of the defendant's guilty plea revealed that the defendant was informed by the assistant district attorney that a Fourth Amendment waiver was part of the negotiation, neither the defendant nor the attorney objected to the Fourth Amendment waiver during the plea, the trial court explained the Fourth Amendment waiver to the defendant on the record, and the defendant signed a waiver as a special condition of probation. Morrow v. State, 311 Ga. App. 323, 715 S.E.2d 744 (2011), cert. denied, No. S11C1872, 2011 Ga. LEXIS 993 (Ga. 2011).
No hearing required as to suppression motion at probation revocation hearing.
- Separate hearing on a defendant's motion to suppress in a nonjury probation revocation hearing is not necessary. Davenport v. State, 172 Ga. App. 606, 324 S.E.2d 201 (1984).
4. Statements and Testimony
Motion not applicable to anticipated testimony.
- Testimony is not within the scope of the motion to suppress as authorized by Ga. L. 1966, p. 567, § 13. Reid v. State, 129 Ga. App. 660, 200 S.E.2d 456 (1973), criticized, Childers v. State, 130 Ga. App. 555, 203 S.E.2d 874 (1974).
Motion to suppress directed at anticipated testimony rather than "property" does not lie. Cauley v. State, 130 Ga. App. 278, 203 S.E.2d 239 (1973), cert. denied, 419 U.S. 877, 95 S. Ct. 140, 42 L. Ed. 2d 117 (1974).
Witness and victim testimony not subject to motion.
- Testimony of eyewitnesses and victims of alleged crimes is outside the scope of a motion to suppress as contemplated under Ga. L. 1966, p. 567, § 13. Baker v. State, 230 Ga. 741, 199 S.E.2d 252 (1973).
Sheriff's testimony not subject to motion.
- Testimony of a sheriff concerning the property seized in an illegal search could be objected to at trial but could not be made the object of a motion to suppress. Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975), cert. denied, 428 U.S. 910, 96 S. Ct. 3223, 49 L. Ed. 2d 1218 (1976).
Defendant initiated discussions not suppressed.
- Defendant's motion to withdraw the defendant's guilty plea based on the defendant's claim that defense counsel failed to appeal the denial of a suppression motion was properly rejected because it was not ineffective assistance to fail to make a meritless appeal and the motion to suppress was properly denied because the defendant voluntarily reinitiated discussions with law enforcement officers after the interview was terminated due to the defendant's request for counsel. Rios v. State, 281 Ga. 181, 637 S.E.2d 20 (2006).
Hospitalization and pain did not render statement involuntary.
- Trial court did not err in admitting the defendant's second statement to police made during a hospitalization and while the defendant was taking pain medication as neither circumstance rendered the statement involuntary. Sanders v. State, 281 Ga. 36, 635 S.E.2d 772 (2006).
Motion denied if statements to police were voluntarily made.
- Defendant testified that the defendant changed out of wet clothes after arriving at the police station, was not threatened, was advised of the defendant's rights, and was not intoxicated, and the interviewing officer testified that the defendant did not appear to be intoxicated, understood the questions asked, appeared clearheaded, and waived the defendant's rights, thus, the trial court's finding that the defendant freely and voluntarily made statements after waiving defendant's rights, and that the statements were made free of threats or other improper conduct on the part of law enforcement officers, was amply supported by evidence and was not clearly erroneous. Moody v. State, 277 Ga. 676, 594 S.E.2d 350 (2004).
Police officer's testimony believed.
- Trial court properly denied the defendant's motion to suppress as the trial court was authorized to believe the police officer's testimony that the officer was qualified to detect the odor of unburned marijuana based on the officer's training and experience and, thus, that the officer recognized the smell of the ten pounds of unburned marijuana the defendant had in the trunk of the defendant's car despite defense counsel's attempt to impeach the officer with the officer's testimony from a prior case that there was no difference between the smell of burnt and unburned marijuana; accordingly, the motion to suppress was properly denied and the defendant's conviction for a violation of the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., was affirmed. King v. State, 267 Ga. App. 546, 600 S.E.2d 647 (2004).
Statements made by possibly intoxicated defendant.
- Despite the defendant's possible intoxication, a statement given to police was knowingly and voluntarily made, and a waiver of the rights accorded under Miranda was intelligent; thus, the trial court did not err in admitting the defendant's videotaped custodial statements into evidence. Bryant v. State, 286 Ga. App. 493, 649 S.E.2d 597 (2007).
Suppression of data on electronic devices seized during arrest.
- Georgia Supreme Court held that the state may appeal a grant of the defendant's motion to suppress data on electronic devices properly seized during an arrest under O.C.G.A. § 5-7-1(a)(4) because even under a strict construction of § 5-7-1(a)(4), the state has a direct right of appeal when the trial court grants a pre-trial motion to exclude evidence on the ground that the evidence was obtained illegally. State v. Rosenbaum, 305 Ga. 442, 826 S.E.2d 18 (2019).
Voluntary confession held admissible.
- Based on the totality of the circumstances and the undisputed evidence, because the defendant's confession to a police detective was voluntary and admissible under former O.C.G.A. § 24-3-50 (see O.C.G.A. § 24-8-824), not coerced or received as a result of promises made, and not subject to exclusion due to improper methods used by the police, the trial court did not err in admitting the confession; further, exclusion of the confession was not required based on a violation of the defendant's right to counsel. Swain v. State, 285 Ga. App. 550, 647 S.E.2d 88 (2007).
Trial court did not err in allowing the defendant's statements to the police into evidence because the evidence supported the findings that the statements were freely and voluntarily made, under noncustodial circumstances; a detective testified that the defendant voluntarily came to the police station for an interview, that the defendant was not in custody during the interview and was free to leave at any time, that the defendant was not threatened or promised anything, and that the defendant was allowed to leave the station after the interview. Beaudoin v. State, 311 Ga. App. 91, 714 S.E.2d 624 (2011).
Defendant did not demonstrate any harm as a result of the trial court's denial of the motion to suppress statements the defendant made to the police at a hospital because the defendant's on-the-scene confessions, as well as remarks the defendant made to a police officer en route to the hospital, were spontaneous and unsolicited statements not made in response to any form of custodial interrogation; therefore, the confessions were not subject to the strictures of Miranda and were admissible without the warnings having been given. Dailey v. State, 313 Ga. App. 809, 723 S.E.2d 43 (2012), cert. denied, No. S12C0969, 2012 Ga. LEXIS 551 (Ga. 2012).
Custodial statement of Spanish speaking defendant freely and voluntarily made.
- Because a taped recording of the defendant's custodial statement showed that the defendant was fully informed of the defendant's rights in both English and Spanish, the defendant understood those rights, and neither threats nor promises were made in exchange for the custodial statement, the trial court did not err in finding that the statement was admissible as freely and voluntarily given. Pineda v. State, 287 Ga. App. 200, 651 S.E.2d 148 (2007).
Statements made by defendant to polygraph examiner properly admitted.
- With regard to a defendant's conviction on three counts of cruelty to children in the first degree based on injuries to the child of defendant's romantic friend, the trial court did not err by admitting the incriminating statements that the defendant used too much force in putting the child into a swing, which the defendant made to the polygraph examiner during the pre-polygraph examination interview as, the examiner and the investigator testified that, prior to making any statements, the defendant was read the defendant's Miranda warnings, had voluntarily signed a waiver of rights form, and had voluntarily signed a form stipulating that the results of the polygraph examination would be admissible evidence and both the waiver of rights form and the stipulation were produced for the trial court's review during a suppression hearing and were introduced into evidence at trial after the defendant's motion to suppress was denied. Legan v. State, 289 Ga. App. 244, 656 S.E.2d 879 (2008).
Effect of fact that evidence taken from non-English speaker.
- Trial court is authorized to suppress evidence taken from a non-English speaker when there is conflicting evidence relating to the non-English speaker's consent. State v. Izquierdo, 160 Ga. App. 33, 285 S.E.2d 769 (1981).
Inculpatory statements by illiterate defendant.
- Despite an illiterate defendant's claim that the trial court erred by admitting inculpatory statements to investigators, the defendant's statements were properly admitted as the defendant: (1) had no difficulty communicating with investigators; (2) never indicated any confusion or misunderstanding; (3) never invoked a right to remain silent; and (4) was not coerced into talking with investigators. Furthermore, the defendant's illiteracy in and of itself did not demand a finding of a less-than-knowledgeable waiver in the face of evidence to the contrary. White v. State, 281 Ga. 20, 635 S.E.2d 720 (2006).
Seizure of written confession.
- Written confession of the defendant is not property illegally seized, and thus is not subject to a motion to suppress. Reid v. State, 129 Ga. App. 660, 200 S.E.2d 456 (1973), criticized, Childers v. State, 130 Ga. App. 555, 203 S.E.2d 874 (1974).
Confession was not made in confidence to chaplain only.
- Trial court did not err when the court denied defendant's motion to suppress the confession defendant made to the police chaplain because the trial court obviously believed the chaplain's adamant denial that the chaplain had repeated defendant's confession to the police. The testimony revealed that defendant confessed to the police officer in the chaplain's presence. Blocker v. State, 265 Ga. App. 846, 595 S.E.2d 654 (2004).
Statements made while blood sample taken.
- Fact that a defendant was also subject to a search warrant seeking samples of blood and hair did not amount to an unusual susceptibility to a particular form of persuasion and did not mean the defendant was in custody. Keith v. State, 279 Ga. App. 819, 632 S.E.2d 669 (2006).
Statement induced by written promise not to press additional charges held involuntary.
- Defendant was granted a new trial for convictions for felony murder and other crimes after it was determined that the defendant's statement to the detectives as to the location of the gun used in the murder and the defendant's provision of the gun to two coindictees was involuntary and inadmissible under former O.C.G.A. § 24-3-50 (see O.C.G.A. § 24-8-824) as the statement was induced by a written promise not to press any additional weapons charges against the defendant. Foster v. State, 283 Ga. 484, 660 S.E.2d 521 (2008).
Defendant's statement not suppressed.
- Defendant was not in custody when incriminatory statements were made to police. An officer found the defendant in an apartment and merely sought to ascertain whether the defendant or any of the apartment's occupants knew about the charged incident, and testimony indicated that neither the defendant nor the occupants were handcuffed or otherwise restrained; thus, the defendant's motion to suppress was properly denied. Navarro v. State, 279 Ga. App. 311, 630 S.E.2d 893 (2006).
Because the record failed to contain any indication that the defendant: (1) informed the officers to end an interview; (2) wished to speak with counsel; or (3) wished to leave the station, and after the statements were made the defendant was driven home by an officer, the appeals court affirmed the trial court's finding that the defendant was not in custody for purposes of Miranda; therefore, admission of these non-custodial statements was proper. Vaughn v. State, 282 Ga. 99, 646 S.E.2d 212 (2007).
Spontaneous outburst admissible.
- Because the defendant's spontaneous outburst was voluntarily made and not the product of police interrogation, the evidence was not subject to a hearsay exception, Miranda warnings were not required, and the statement was admissible. Tennyson v. State, 282 Ga. 92, 646 S.E.2d 219 (2007).
Given the totality of the circumstances, and the defendant's age, education, and knowledge of both the substance of the charge and nature of the rights to an attorney and the right to remain silent because the defendant voluntarily gave a statement to a police detective about an uncharged armed robbery, absent any threats, coercion, or promises in exchange for doing so, the statement was admissible. Swain v. State, 285 Ga. App. 550, 647 S.E.2d 88 (2007).
Because a police officer who heard the defendant's statement that the defendant shot someone because the person took some marijuana from the defendant testified that the defendant uttered the statement spontaneously, and the police officer did not question or threaten the defendant, nor did anything to coerce the defendant to make the statement, the trial court's ruling that the defendant made the statement freely and voluntarily was not clearly erroneous. Johnson v. State, 287 Ga. App. 352, 651 S.E.2d 450 (2007).
Suppression not required when defendant not under arrest.
- Based on an officer's unequivocal testimony that the defendant was not under arrest when a challenged statement was made, but the officer was merely investigating the victim's stolen vehicle claim, and hence Miranda warnings were not required, suppression of the statement was not required. Marshall v. State, 286 Ga. App. 86, 648 S.E.2d 674 (2007).
Because testimony from the interrogating officer, and the forms by which the defendant waived Miranda and the right to be represented during questioning by an attorney, supported the trial court's denial of the defendant's motion to suppress, the appeals court found no error in the trial court's decision. Roberts v. State, 282 Ga. 548, 651 S.E.2d 689 (2007).
Because the evidence sufficiently showed that the defendant made a rational and intelligent choice to waive the rights outlined under Miranda and speak with police detectives on two separate and distinct occasions, the trial court did not err in denying a motion to suppress those statements. Starks v. State, 283 Ga. 164, 656 S.E.2d 518 (2008).
With regard to a defendant's convictions for aggravated sexual assault and child molestation, the trial court properly denied the defendant's motion to suppress the custodial statement made because the defendant was not in custody when the defendant agreed to speak to the detectives in the defendant's office when the defendant admitted to touching the victim and that the statement was subsequently repeated at the station after the defendant was read the defendant's Miranda rights. The statement was made voluntarily and was not the sort of in-custody interrogation forbidden by Miranda. Ellison v. State, 296 Ga. App. 752, 675 S.E.2d 613 (2009).
Trial court did not err in denying the defendant's motion to suppress statements the defendant made during an on-scene police investigation because Miranda warnings were unnecessary when the defendant's initial statements on-the-scene were voluntarily made under noncustodial circumstances; the defendant voluntarily admitted to stabbing the victim in the defendant's apartment after an officer advised the defendant that the officer was investigating a report of a possible dead body, and even if the defendant was a suspect while in the presence of police, there was no evidence that the defendant was under any form of restraint or that the defendant had been placed under arrest. Additionally, the trial court did not err in denying the defendant's additional motion to suppress the defendant's post-Miranda written statement to a detective as not knowingly, voluntarily, and intelligently made because upon being advised that a dead body had been recovered at the defendant's apartment, the detective advised the defendant of the defendant's Miranda rights, and the defendant then waived and gave the defendant's written confession immediately thereafter; nothing of record supported the defendant's claim that the defendant was subjected to an interview lasting "three to four hours," and the defendant did not otherwise contend that the defendant's confession was coerced or induced upon hope of benefit. Rowe v. State, 302 Ga. App. 239, 690 S.E.2d 884 (2010).
Trial court did not err in failing to suppress a statement the defendant made to the police because the statement was made during the course of a subsequent interview that the defendant initiated and was admissible; the defendant contacted the case detective and requested a meeting, the detective met with the defendant and again advised the defendant of the defendant's right to counsel, and the defendant waived the defendant's right to counsel and made an incriminating statement. Haynes v. State, 287 Ga. 202, 695 S.E.2d 219 (2010).
Trial court did not err by denying the defendant's motion to suppress an in-custody statement the defendant made after waiving the defendant's rights under Miranda because the preponderance of the evidence supported the trial court's findings that the officers read the defendant the defendant's rights in the defendant's home in the presence of the defendant's parents and explained the rights to the defendant and that the defendant voluntarily agreed to talk to the officers, and the fact that the defendant was initially found incompetent to stand trial did not demand the conclusion that the defendant lacked the mental capacity to knowingly and voluntarily waive the defendant's rights; the true analysis is whether the totality of the circumstances show that the statement was free and voluntary. Fife v. State, 306 Ga. App. 425, 702 S.E.2d 454 (2010).
Officer's inquiry on address not suppressed.
- Trial court did not err in denying the defendant's motion to suppress statements the defendant made in response to questioning at the time of the defendant's arrest regarding whether the defendant lived at an apartment and where the defendant's bedroom was located therein because a police officer testified at the suppression hearing that the officer asked the defendant where the defendant lived in order to determine whether the defendant could give consent to search; inquiring as to a suspect's address is a question commonly associated with arrest and custody and provides no basis for suppression of the response. Silverio v. State, 306 Ga. App. 438, 702 S.E.2d 717 (2010).
Trial court properly denied the defendant's motion to suppress statements the defendant made to police officers because the trial court did not err when the court determined, under the objective circumstances attending the police officers' interrogation of the defendant, that a reasonable person in the defendant's position would not have understood that the defendant was in custody at the time the defendant gave the defendant's statements to the officers. Crawford v. State, 288 Ga. 425, 704 S.E.2d 772 (2011).
Because the defendant failed to compile a record that demonstrated all that transpired in the trial court with regard to the defendant's motion to suppress statements the defendant made to police officers, the supreme court presumed that the evidence before the trial court supported the court's decision to deny the motion; the appellate record contained no transcription of the defendant's interview as recorded on DVDs, and the defendant failed to make application for the transmission of the DVDs to the supreme court pursuant to Ga. S. Ct. R. 71(1). Crawford v. State, 288 Ga. 425, 704 S.E.2d 772 (2011).
Trial court did not err in refusing to suppress the defendant's custodial statement because the two officers who interviewed the defendant testified that the defendant was read, and that the defendant understood the defendant's Miranda rights, that the defendant agreed to talk with the police, that the defendant was not coerced or threatened in any way, that the defendant was not offered any hope of benefit in order to convince the defendant to talk to the police, and that the questioning of the defendant ceased as soon as the defendant asked for a lawyer. Carter v. State, 289 Ga. 51, 709 S.E.2d 223 (2011).
Right to remain silent equivocal thus no suppression.
- Trial court did not err in finding the defendant's statements to a police officer admissible because the defendant's invocation of the defendant's right to remain silent, if any, was equivocal since that statement conflicted with the defendant's immediately preceding verbal indication that the defendant was willing to speak with the detective; thus, the officer had no obligation to stop questioning the defendant, and the officer's attempt to clarify whether the defendant wished to speak with the officer was not improper. Law v. State, 308 Ga. App. 76, 706 S.E.2d 604 (2011).
Superior court did not err in denying the defendant's motion to suppress statements the defendant made to law enforcement officers because the defendant's initial statement to a detective was non-custodial, unsolicited and was supported by the record and, therefore, the defendant's capacity to understand the substance of the defendant's rights under Miranda in regard to the first statement was irrelevant; the defendant's initial patrol car statement that the victim's death was an accident was made while the defendant was not in custody, and the defendant's statement was not given in response to any questioning by the detective. Barrett v. State, 289 Ga. 197, 709 S.E.2d 816 (2011).
Conversation voluntarily started with officer thus no suppression.
- Trial court did not err in denying the defendant's motion to suppress a statement the defendant made in response to an officer's interrogation regarding the ownership of a vehicle because the trial court's determination that the defendant's statements were not solicited and, therefore, were not protected under Miranda were not clearly erroneous since the trial court's findings of fact were supported by the testimony of the officer; the defendant voluntarily started a conversation with the officer by admitting that the defendant was not who the defendant previously stated the defendant was, and the defendant stated that the defendant did not know whose vehicle it was but that the defendant gave somebody drugs so that the defendant could use the car. Bone v. State, 311 Ga. App. 390, 715 S.E.2d 789 (2011).
Trial court did not err in denying the defendant's motion to exclude the defendant's out-of-court statement to a detective because the record supported the ruling that the detective reasonably suspected that the defendant was or had been engaged in criminal activity, and the defendant was not under arrest; the detective not only witnessed the defendant engage in a drug transaction, but on the morning of the stop, the defendant obtained a written statement from another party to the transaction confirming the defendant's involvement. The detective also recognized the defendant and the defendant's vehicle from the scene. Arnett v. State, 311 Ga. App. 811, 717 S.E.2d 312 (2011).
Trial court did not err in admitting into evidence statements the defendant made in an interview with a television correspondent because the defendant was not in custody for Miranda purposes when the statements were made; the correspondent was not an agent of the state, and a reasonable person in the defendant's position would have believed that he or she was free to terminate the interview and leave. Anguiano v. State, 313 Ga. App. 449, 721 S.E.2d 652 (2011).
Immigrant's statement not suppressed.
- Trial court did not err in refusing to suppress the in-custody statements the defendant, who was a Lithuanian immigrant, made to the police because during the interrogation, officers answered the defendant's questions, and the defendant told the officers that the defendant understood what was being said; at no time did the defendant invoke the right to silence or right to counsel. Milinavicius v. State, 290 Ga. 374, 721 S.E.2d 843 (2012).
Even assuming that the trial court erred by admitting the statements the defendant made to the police at a hospital as not tainted by a Miranda violation, the error was harmless in light of the fact that the police statements were cumulative of other unchallenged confessions by the defendant; the defendant repeatedly identified oneself at the scene as the sole perpetrator. Dailey v. State, 313 Ga. App. 809, 723 S.E.2d 43 (2012), cert. denied, No. S12C0969, 2012 Ga. LEXIS 551 (Ga. 2012).
Court of appeals did not err in reversing an order granting the defendant's motion to suppress the defendant's confession under former O.C.G.A. § 24-3-50 (see O.C.G.A. § 24-8-824) because police officers did not induce the defendant's confession with a "hope of benefit" within the meaning of former § 24-3-50; the defendant could not have reasonably understood the officers' statements to mean that the defendant would never be charged or arrested for the defendant's crimes, and even if the defendant's confession was induced by the defendant's hope that the officers would, as promised, let the defendant go home after the interview, it was not per se inadmissible under former § 24-3-50. Brown v. State, 290 Ga. 865, 725 S.E.2d 320 (2012).
Trial court did not err by denying the defendant's motion to suppress the defendant's statement because the information the codefendant provided to the police was corroborated by the facts and circumstances that police officers had independently gathered from the scene of the victim's shooting; as the result of the codefendant's confession, the officers had reasonably trustworthy information to conclude that the defendant was involved in the victim's murder. Alatise v. State, 291 Ga. 428, 728 S.E.2d 592 (2012).
Defendant's statement should not have been suppressed.
- Trial court erroneously suppressed the statements given by the defendant to law enforcement because given the totality of the circumstances apparent from the record, the defendant voluntarily waived the defendant's Miranda rights. The defendant: (1) spoke clearly; (2) did not appear to be under the influence of alcohol or drugs; (3) appeared to understand what was read; (4) was not threatened or coerced in any way; (5) appeared very calm; (6) was not promised anything by police in exchange for the defendant's cooperation; (7) did not appear to have any mental issues; (8) had only been detained for approximately 20 minutes before the defendant was Mirandized; and (9) asked the investigator to come back to speak with the defendant after a brief interruption in the interview. The mere fact that there was no written Miranda waiver or electronic recording of the interview did not render the waiver involuntary. State v. Hardy, 281 Ga. App. 365, 636 S.E.2d 36 (2006).
Trial court properly suppressed those statements made by the defendant in violation of Miranda, and after the defendant invoked the right to counsel, as mere act of allowing the defendant to meet with an attorney did not permit law enforcement to re-initiate any conversation with the defendant at a later time without defense counsel present. State v. Sammons, 283 Ga. 364, 659 S.E.2d 598 (2008).
Trial court erred in suppressing statements the defendant made during an interview with detectives after the defendant invoked the defendant's right to counsel because the defendant's admissions were not elicited by interrogation, much less coerced, and were admissible at trial since the defendant repeatedly initiated conversation and interrupted the detectives to discuss various topics, including the defendant's concern for the victim and the defendant's account of what had happened at the crime scene, and at no point in the interview did the detectives expressly question the defendant about the crimes, even after the defendant invited such discussion by beginning to talk about the crimes; although the detectives remained in the room with the defendant for a few minutes after the defendant invoked the defendant's right to counsel, the record of the interview unequivocally showed that the detectives did not engage in any coercive conduct by doing so, and once the detectives took the defendant into custody, the detectives were not obliged to stop listening to what the defendant chose to say or to immediately leave the room so that the detectives could not hear the defendant. State v. Brown, 287 Ga. 473, 697 S.E.2d 192 (2010).
Trial court erred in granting the defendant's motion to suppress a confession because the investigators' statements that the defendant would go home after the interview did not offer the defendant a "hope of benefit" that would otherwise render the defendant's confession inadmissible, and even if the complained-of statements did constitute an improper "hope of benefit," the investigators did not actually induce the defendant's confession; the investigators' statement that the defendant would not be arrested on the spot was collateral and not the type of "hope of benefit" contemplated by former O.C.G.A. § 24-3-50 (see O.C.G.A. § 24-8-824). State v. Brown, 308 Ga. App. 480, 708 S.E.2d 63 (2011), aff'd, 290 Ga. 865, 725 S.E.2d 320 (2012).
Defendant's statement should have been suppressed.
- Trial court erred by denying the defendant's motion to suppress the defendant's statement to police that the defendant was in the victim's subdivision on the night of the murder because the defendant unambiguously requested the presence of the defendant's lawyer, and any questioning should have stopped immediately; any ambiguity was created solely by the investigator's subsequent questioning. Manley v. State, 287 Ga. 338, 698 S.E.2d 301 (2010).
Defendant's admission that the defendant sold vacuum cleaners that had been stolen from a daycare center should have been suppressed because after producing drug paraphernalia, admitting to owning the paraphernalia, and admitting to recently buying and using drugs, a reasonable person would certainly perceive himself or herself to be in police custody, and the officer's questioning was clearly aimed at establishing the defendant's guilt; there was a reasonable possibility that the improperly admitted evidence contributed to the jury's verdict because there was testimony that the daycare center was located in a neighborhood subject to high crime and drug activity, and the witnesses gave inconsistent descriptions about the color of the vacuum cleaners and the suspect's clothing. Thompson v. State, 313 Ga. App. 844, 723 S.E.2d 85 (2012).
Defendant's statement suppressed when defendant did not understand rights.
- Trial court did not err in granting the defendant's motion to suppress a statement the defendant gave to the police following the defendant's arrest because the trial court could have accepted the defendant's testimony from the hearing on the motion to suppress that the defendant did not understand the defendant's rights or any waiver of those rights when at least some evidence existed to support the finding that the defendant's signature on a waiver of rights form did not indicate that the defendant understood the defendant's rights and wished to waive those rights; the trial court could have concluded that the defendant signed the form at a detective's direction because the detective made no effort to ascertain whether the defendant understood the defendant's rights and did not testify that the detective believed the defendant understood the rights, when the defendant asked whether the form represented the charges against the defendant the detective responded that the document merely stated that the defendant was a suspect and that the defendant needed to sign the document so the defendant could clear things up, and at no time did the conversation cease, allowing the defendant a clear opportunity to read the form. State v. Floyd, 306 Ga. App. 402, 702 S.E.2d 467 (2010).
Uncontradicted witness statement can still be rejected.
- Trial court's order granting the defendant's motion to suppress was affirmed as the trial court did not believe the uncontradicted testimony that an officer had a good faith, reasonable, articulable suspicion that the defendant had made an illegal U-turn; the trial court was not required to believe a witness, even if the testimony was uncontradicted, and could accept or reject any portion of the testimony. State v. Hester, 268 Ga. App. 501, 602 S.E.2d 271 (2004).
Objection that statements stem from illegal arrest must come during trial.
- When a motion to suppress avers that the statements were secured by police officers as a result of an illegal arrest and detention, not as a result of an unlawful search and seizure, such statements should have been made the basis of objections at the trial and not the basis of a pretrial motion to suppress under Ga. L. 1966, p. 567, § 13. Pass v. State, 227 Ga. 730, 182 S.E.2d 779 (1971).
Illegally seized property and testimony tested by different procedures.
- Admissibility of property seized in an unlawful search and the admissibility of testimony are tested by different rules and procedures. Reid v. State, 129 Ga. App. 660, 200 S.E.2d 456 (1973), criticized, Childers v. State, 130 Ga. App. 555, 203 S.E.2d 874 (1974).
Non-custodial spontaneous statement held admissible.
- Trial court did not err in admitting a spontaneous remark the defendant made to a police officer in serving an arrest warrant for the crime charged as the remark was admissible as a non-custodial statement which was not obtained as the result of police interrogation. Bettis v. State, 285 Ga. App. 643, 647 S.E.2d 340 (2007), cert. denied, No. S07C1535, 2007 Ga. LEXIS 862 (Ga. 2007).
Testimony challenged at trial.
- When testimony is tendered relative to the property seized, the testimony's admissibility is not tested by a motion under Ga. L. 1966, p. 567, § 13 (see O.C.G.A. § 17-5-30), but by a proper objection made when the evidence is tendered at the trial. Reid v. State, 129 Ga. App. 660, 200 S.E.2d 456 (1973), criticized, Childers v. State, 130 Ga. App. 555, 203 S.E.2d 874 (1974).
When testimony is tendered relative to the property seized, the testimony's admissibility is not tested by a motion under Ga. L. 1966, p. 567, § 13 (see O.C.G.A. § 17-5-30), but by a proper objection made when the testimony is tendered at the trial. If an order has been granted, the order affords a basis or ground for making the objection to the testimony. If the motion was denied, an objection may nevertheless be lodged on the ground that the testimony relates to property which was illegally seized during an unlawful search, and if the objection is overruled, the ruling may become a proper subject of an enumeration of error on appeal. Childers v. State, 130 Ga. App. 555, 203 S.E.2d 874 (1974).
Conflicts in testimony.
- Trial judge, as the finder of fact on the motion to suppress, is authorized to resolve conflicts in testimony. Brooks v. State, 129 Ga. App. 393, 199 S.E.2d 578 (1973).
Suppression of statements impacted by timing of Miranda warnings.
- Defendants' motions to suppress were granted and denied in part as it was error to exclude a statement the defendant made while not in custody; however, delayed Miranda warnings cannot be considered to be effective under Missouri v. Seibert, 542 U.S. 600 (2004), and the trial court did not err in suppressing the defendants' oral and written statements made after the detectives administered Miranda warnings. State v. Pye, 282 Ga. 796, 653 S.E.2d 450 (2007), overruled on other grounds by State v. Abbott, 303 Ga. 297, 812 S.E.2d 255 (2018).
Because a defendant's motion to suppress specifically requested the suppression of all statements made by the defendant's codefendants as products of defendant's illegally-obtained confession, the state could not now complain that the state did not receive reasonable notice that the defendant intended to seek suppression of their live testimony at trial. Stidham v. State, 299 Ga. App. 858, 683 S.E.2d 906 (2009).
5. Vehicles
A. In General
Radar speed detection devices.
- Admissibility of evidence gained by use of radar speed detection device properly may be raised by a motion in limine although the motion may be styled as, or in the form of, a motion to suppress, and the trial court has discretion to hear the motion pretrial or to reserve the ruling on the admissibility of such evidence until it is offered as evidence during trial. Wiggins v. State, 249 Ga. 302, 290 S.E.2d 427 (1982). See also Carver v. State, 199 Ga. App. 842, 406 S.E.2d 236 (1991) (holding that the fifth element for admissibility stated in Wiggins no longer applies to state enforcement officers).
Roadblocks.
- Trial court erred in denying the defendant's motion to suppress in a case in which the defendant was subsequently convicted of three offenses based on evidence that was obtained at a roadblock that a police officer working in the field authorized; the trial court should have granted the motion because supervisory personnel, and not an officer in the field, were required to approve roadblocks given the fact that a roadblock involved a warrantless stop of a vehicle. Thomas v. State, 277 Ga. App. 88, 625 S.E.2d 455 (2005).
Trial court properly denied a motion to suppress evidence seized from a roadblock as the roadblock's primary purpose was to check for drivers' licenses, seat belts, and vehicle registrations, and not general law enforcement. Cater v. State, 280 Ga. App. 891, 635 S.E.2d 246 (2006).
Trial court did not err in denying the defendant's suppression motion as the arresting officer was authorized to conclude that in turning off a roadway to evade a roadblock, the defendant committed a possibly illegal backing maneuver, upon which the officer was permitted to investigate; moreover, the officer's honest belief that a traffic violation was committed, even if ultimately proven incorrect, could nevertheless demonstrate the existence of at least an articulable suspicion and reasonable grounds for a traffic stop. Terry v. State, 283 Ga. App. 158, 640 S.E.2d 724 (2007).
Trial court did not err in denying the defendant's motion to suppress on grounds that a roadblock was unlawful as the state presented sufficient evidence that the checkpoint was set up for a legitimate purpose and the decision to implement the roadblock was made by law enforcement supervisory personnel. Wright v. State, 283 Ga. App. 393, 641 S.E.2d 605 (2007).
Because a form document, entitled the "Henry County Police Department Roadblock & Safety Checkpoint Record," introduced at a motion to suppress hearing by the state was properly admitted as a business record under former O.C.G.A. § 24-3-14 (see O.C.G.A. § 24-8-803), and the testimonial evidence regarding the primary purpose of the roadblock passed constitutional muster in that the roadblock was legitimately conducted as part of a statewide "zero tolerance" campaign, the defendant's motion to suppress the evidence seized as a result was properly denied. Yingst v. State, 287 Ga. App. 43, 650 S.E.2d 746 (2007).
Trial court properly denied a defendant's motion to suppress the evidence obtained from a police roadblock with regard to the defendant's conviction for driving under the influence as the trial court properly determined that the roadblock was conducted for a legitimate primary purpose, namely to check for valid licenses, insurance, impaired drivers, and safety concerns, which were consistent with the purposes set forth in the initiation form. Further, a variance in the location of the roadblock to an intersection of a street instead of on the actual street was insignificant and did not invalidate the roadblock. Coursey v. State, 295 Ga. App. 476, 672 S.E.2d 456 (2009).
Denial of the defendant's motion to suppress was supported by the evidence as a roadblock was proper. All vehicles were stopped at the roadblock and were delayed only one to two minutes unless a violation was noted. The evidence was sufficient to show that the defendant was stopped 17 minutes after the roadblock began. McGlon v. State, 296 Ga. App. 77, 673 S.E.2d 513 (2009), cert. denied, No. S09C0996, 2009 Ga. LEXIS 359 (Ga. 2009).
Trial court did not err in denying the defendant's motion to suppress evidence obtained during a roadblock because the evidence was sufficient to show that the decision to implement the roadblock was made by a supervisory officer, which prevented the field officers from exercising unfettered discretion in stopping the drivers since the lieutenant and corporal who implemented the roadblock testified that they were supervisors in the traffic unit of the county sheriff's office; the trial court was authorized to find that the purposes of the roadblock, which were to serve as a traffic safety checkpoint and to check driver's licenses and to identify drivers driving under the influence, were as stated by the lieutenant and corporal, and each of the identified purposes set forth in the order for the roadblock was a legitimate primary purpose. Rappley v. State, 306 Ga. App. 531, 702 S.E.2d 763 (2010).
Trial court did not err in denying the defendant's motion to suppress evidence obtained at a roadblock because given the evidence presented, the trial court was authorized to conclude that the sergeant issued the order for the roadblock properly and initiated, authorized, and supervised the roadblock and that the sergeant's decision to implement the roadblock was made at the programmatic level for a legitimate primary purpose; the evidence supported the trial court's findings of fact that the information on the roadblock approval form, which stated the reasons for the roadblock, did not conflict with any evidence presented as to when the roadblock was to be conducted or by whom the roadblock was authorized. Owens v. State, 308 Ga. App. 374, 707 S.E.2d 584 (2011), cert. denied, No. S11C1036, 2011 Ga. LEXIS 498 (Ga. 2011).
Trial court did not err in denying the defendant's motion to suppress evidence seized at a roadblock because the state met the state's burden of establishing the legitimate purpose of the roadblock by introducing a certified copy of a department of public safety roadblock approval form; the programmatic purposes set out in the roadblock form were supported by the other evidence at the suppression hearing, and the police officers' actions at the scene were in line with those purposes. Hite v. State, 315 Ga. App. 221, 726 S.E.2d 704 (2012), cert. denied, No. S12C1286, 2012 Ga. LEXIS 1020 (Ga. 2012).
Police checkpoint for traffic.
- While the defendant claimed the trial court should have granted the defendant's motion to suppress evidence on the ground that a police checkpoint was established for the illegal purpose of looking for evidence of burglaries or thefts, the unrefuted evidence established that the officers were authorized to stop the defendant when the officers witnessed the defendant commit traffic offenses by driving in the wrong lane at an excessive rate of speed; the trial court did not err in denying the defendant's motion to suppress. Yarbrough v. State, 264 Ga. App. 848, 592 S.E.2d 681 (2003).
Search incident to arrest.
- Search of a vehicle was authorized as a search incident to a lawful arrest as the officers reasonably believed that the vehicle possibly contained evidence of the crime under investigation, in that the officers saw the defendant and another individual, for whom the officers had an arrest warrant, driving in a vehicle similar to one seen leaving a crime scene, and the officers saw clothing on the backseat matching the description of the clothing worn by the two gunmen at the time of the crime. Williams v. State, 316 Ga. App. 821, 730 S.E.2d 541 (2012).
Improper expansion of scope of traffic investigation justified suppression.
- Police officers impermissibly expanded the traffic stop without reasonable, articulable suspicion, resulting in an illegal detention of both the driver of the vehicle and the passenger and the defendant's consent to search the vehicle was the product of this illegal detention; thus, the evidence obtained as a result of the illegal search was rightfully suppressed. Specifically, the police officer requested permission to search the car "before you guys take off" after returning the defendant's license and giving a warning, but while continuing to detain and question the defendants; thus, it was doubtful that any reasonable person in these circumstances would have felt free to disregard the police officer and go. State v. Conner, 288 Ga. App. 517, 654 S.E.2d 461 (2007).
Suppression of evidence after violation of § 40-5-33. - Violation of O.C.G.A. § 40-5-33 did not justify the defendant's continued detention by the police and the officer's decision to detain the defendant while the officer waited for another officer to bring a written warning book was unreasonable; thus, under the totality of the circumstances, the officer did not have specific, articulable facts that could constitute a particularized and objective basis for suspecting that the defendant was involved in any criminal activity thereby making the search unreasonable under the Fourth Amendment and requiring suppression of the evidence seized from the vehicle. Bennett v. State, 285 Ga. App. 796, 648 S.E.2d 126 (2007).
B. Driving Under the Influence
Consent to test.
- Trial court erred in denying the defendant's motion to suppress the results of a state-administered breath test given after the defendant initially refused to take such a test as there was no evidence that the defendant was asked a second time whether the defendant would consent to the test or that the defendant rescinded the defendant's refusal and thereafter consented. Howell v. State, 266 Ga. App. 480, 597 S.E.2d 546 (2004).
Trial court was not required to suppress evidence of the defendant's breath test results, although the defendant refused to take a breath test when asked at the scene, the defendant rescinded that refusal by agreeing to take the test at the police station. Stapleton v. State, 279 Ga. App. 296, 630 S.E.2d 769 (2006).
Trial court erred in suppressing the defendant's refusal to submit to a state-administered chemical breath test as the implied consent notice given by a sheriff's deputy was substantially accurate and timely given, and irrespective of whether the refusal resulted from the defendant's confusion, it nevertheless remained a refusal. State v. Brookbank, 283 Ga. App. 814, 642 S.E.2d 885 (2007).
Because the defendant: (1) was not in custody for the purposes of Miranda when asked to perform field sobriety tests; (2) did not make any statement or take any overt act which would have caused a reasonable person to believe that the encounter was anything more than a temporary detention; and (3) voluntarily submitted to field sobriety tests, suppression of the results of the tests was properly denied. McDevitt v. State, 286 Ga. App. 120, 648 S.E.2d 481 (2007), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019).
Admission of drunkenness.
- Despite the defendant's claim that an officer's detention was illegal and that any statement uttered while detained should have been suppressed, suppression of the statement was properly denied given that: (1) the officer encountered the defendant after responding to a9-1-1 call reporting a crime at a specific location; and (2) the officer's personal observations, when coupled with the defendant's admission as to being drunk and driving a car onto the curb, as the9-1-1 dispatcher stated, supplied the officer with probable cause to arrest the defendant. Moore v. State, 281 Ga. App. 141, 635 S.E.2d 408 (2006).
Implied consent warning.
- Trial court did not have to find that the officer read the implied consent warning before arresting the defendant in order to grant the motion to suppress as the court's grant of the motion was adequately supported by the state's failure to meet the state's burden of proving that the implied consent warning was read after the arrest. The state failed to meet the burden because the trial court found the officer's testimony lacked credibility and there was no other evidence showing that the warning was given after the defendant's arrest. State v. Stelzenmuller, 285 Ga. App. 348, 646 S.E.2d 316 (2007).
Trial court did not err in denying the defendant's motion to suppress the results of a blood test as the notice given to the defendant by a state trooper under the implied consent law, O.C.G.A. § 40-5-67.1(a), was sufficiently accurate to permit the defendant to make an informed decision about whether to consent to testing, and the evidence failed to show that the defendant requested an independent test. Collins v. State, 290 Ga. App. 418, 659 S.E.2d 818 (2008).
Trial court did not err in denying the defendant's motion to suppress and motion in limine to exclude the defendant's field sobriety test results because the implied consent warning was timely given; a HEAT Unit officer gave the defendant the warning immediately after the defendant's arrest. Waters v. State, 306 Ga. App. 114, 701 S.E.2d 550 (2010).
Probable cause to believe defendant less safe driver.
- Denial of the defendant's motion to suppress was not error because the police officer who pulled the defendant over had probable cause to believe that the defendant was a less safe driver because defendant was all over the road, smelled of alcohol, and threw up all over and the officer could have arrested the defendant under O.C.G.A. § 40-6-391, rather than wait for a DUI officer. Abrahamson v. State, 276 Ga. App. 584, 623 S.E.2d 764 (2005).
Sufficient evidence existed for the arresting officer to believe that the defendant was under the influence of alcohol, specifically: the defendant's erratic driving; detecting the odor of alcohol on the defendant's breath; observing that the defendant was very emotional, had been crying, and had a flushed face and watery eyes; and that the defendant admitted to consuming alcohol. The trial court properly denied suppression of the evidence. Slayton v. State, 281 Ga. App. 650, 637 S.E.2d 67 (2006).
Trial court did not err in denying the defendant's motion to suppress evidence seized by a state trooper who was lawfully investigating a serious injury accident the defendant was involved in as evidence the trooper found, including some steel wool and prescription drugs, when coupled with other information the trooper possessed concerning the nature and cause of the crash, provided sufficient probable cause for the trooper to believe that the defendant was driving under the influence; further, the appeals court agreed that the evidence would have been inevitably discovered. Cunningham v. State, 284 Ga. App. 739, 644 S.E.2d 878 (2007).
Because a sheriff's deputy lawfully stopped the defendant for twice crossing the center line in violation of O.C.G.A. § 40-6-48(1) and given: (1) the deputy sheriff's specialized DUI training; and (2) the defendant's admission of ingesting alcohol, failure to maintain lane, bloodshot eyes, performances on several field sobriety tests, and strong odor of alcohol, the evidence seized in connection with the stop was admissible; moreover, the defendant's claim that the state failed to establish a violation of § 40-6-48(1) and the defendant's eventual acquittal of failure to maintain a lane were not determinative of whether the traffic stop was lawful. Steinberg v. State, 286 Ga. App. 417, 650 S.E.2d 268 (2007), cert. denied, No. S07C1725, 2008 Ga. LEXIS 113 (Ga. 2008).
Defendant's claim that the trial court erred in denying a motion to suppress because an officer lacked probable cause to arrest the defendant failed. Given the defendant's conduct while driving, coupled with the defendant's physical condition at the scene, including stumbling, slurred speech, confusion, and difficulty balancing, the officer had probable cause to arrest the defendant for driving under the influence. Castaneda v. State, 292 Ga. App. 390, 664 S.E.2d 803 (2008).
No probable cause for DUI arrest.
- Although the defendant had glassy and watery eyes, smelled of alcohol, and admitted to drinking a glass of wine, other testimony supported an inference that the defendant was not an impaired driver; accordingly, the defendant's motion to suppress was properly granted based on a finding that there was no probable cause to arrest the defendant for violating O.C.G.A. § 40-6-391(a)(1). State v. Goode, 298 Ga. App. 749, 681 S.E.2d 199 (2009), disapproved, Hughes v. State, 296 Ga. 744, 770 S.E.2d 636 (2015).
Officer's observation of defendant's intoxicated state.
- Trial court properly refused to suppress evidence based on the defendant's initial encounter as a deputy initiated a first-level police-citizen encounter, not a seizure, when the deputy approached the defendant's stopped car and asked the defendant to get out; it was only after the deputy smelled alcohol on the defendant and noticed the defendant's bloodshot eyes that the officer acted upon a reasonable suspicion that the defendant might be intoxicated. Johnson v. State, 268 Ga. App. 426, 602 S.E.2d 177 (2004).
Statements made by defendant during initial encounter.
- Because a reasonable person in the defendant's position would not have believed any freedom of action had been more than temporarily curtailed by an officer's investigation for a possible DUI, and the defendant was not in custody or arrested until after the field sobriety tests were performed, at which point the officer had probable cause for the arrest and read the implied consent rights, the trial court did not err in denying suppression of the defendant's statement made to the officer or the field sobriety evaluations. Amin v. State, 283 Ga. App. 830, 643 S.E.2d 4 (2007).
Test of defendant's choice.
- Denial of the defendant's motion to suppress for failure to give the defendant a reasonable opportunity to have an additional breath test performed by a person of the defendant's own choosing pursuant to O.C.G.A. § 40-6-392(a)(3) was not error; complying with the defendant's request would have taken a trooper away from an accident with injuries that required the trooper's presence, the location requested by the defendant was over 40 miles away and outside the trooper's territory, and there was no evidence that defendant had made arrangements for a test by defendant's personal physician. Smith v. State, 277 Ga. App. 81, 625 S.E.2d 497 (2005).
Because the trial court found that the arresting officer made a reasonable effort to accommodate the defendant's request for an independent blood test pursuant to O.C.G.A. § 40-6-392(a)(3), the court did not err in denying the defendant's motion to suppress the test. Whittle v. State, 282 Ga. App. 64, 637 S.E.2d 800 (2006).
Because the arresting officer failed to make a reasonable effort to accommodate the defendant's request to obtain an independent blood test in accordance with O.C.G.A. § 40-6-392(a)(3), but instead rebuffed every suggestion the defendant made in order to secure the independent test, and, despite security risks, accommodations could have been made, the trial court did not err in granting the defendant's motion in limine to suppress the results of the state-administered breath test. State v. Howard, 283 Ga. App. 234, 641 S.E.2d 225 (2007).
Trial court did not err in granting the defendant's motion to suppress evidence of a state-administered breath test because the state failed to reasonably accommodate the defendant's request for an independent blood test; when an officer learned that the defendant did not have sufficient cash for a blood test at one of the recommended hospitals the defendant should have been offered the opportunity to use a telephone to make other arrangements, and the officer's unilateral determination that the defendant would be unable to pay for the blood test, without confirming the hospitals' policies regarding payment and without offering to accommodate the defendant in obtaining a method of payment, was insufficient. State v. Davis, 309 Ga. App. 558, 711 S.E.2d 76 (2011).
Breath test results properly admitted.
- Trial court did not err in denying the defendant's motion in limine to suppress the results of a state-administered breath test as an officer's implied consent warning was substantively accurate so as to allow the defendant to make an informed decision about whether to consent to the test, and solely referred to the defendant's privilege to drive within the State of Georgia with a Georgia driver's license, and not the defendant's Pennsylvania license; further, the officer's initial statement was nothing more than an attention-grabbing preface, and as such did not constitute a substantive change that altered the meaning of the implied consent notice thereafter recited to the defendant. McHugh v. State, 285 Ga. App. 131, 645 S.E.2d 619 (2007).
Because the evidence sufficiently showed that the defendant asked for a blood test in response to the officer's request to submit to the state-administered breath test, clearly attempting to designate the state-administered test, not request an independent test, and the defendant understood that the type of test that would be done was solely of the state's choosing, the trial court properly denied a motion to suppress the breath test results obtained. Brooks v. State, 285 Ga. App. 624, 647 S.E.2d 328 (2007).
Defendant's motion in limine claiming that an intoxilyzer's seizure of the defendant's breath samples was unlawful because the intoxilyzer's electronic components and operating parts were not properly attached and in good working order as required by O.C.G.A. § 40-6-392 was subject to the requirements of O.C.G.A. § 17-5-30, relating to motions to suppress. State v. Carter, 292 Ga. App. 322, 665 S.E.2d 14 (2008).
Fact that a defendant did not have sufficient breath to complete the second of two breath tests did not require suppression of the first test, which indicated a blood alcohol level of .146. Thrasher v. State, 292 Ga. App. 566, 666 S.E.2d 28 (2008).
Trial court did not err in admitting the results of the defendant's portable alco-sensor test because even though the defendant was in custody for purposes of Miranda, the portable test was administered in response to a demand from the defendant, not the officer; thus, the situation was more akin to a spontaneous outburst from an unwarned suspect or a test conducted pursuant to the Georgia Implied Consent Statute, O.C.G.A. § 40-6-392. Hale v. State, 310 Ga. App. 363, 714 S.E.2d 19 (2011), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019).
Defendant's speeding, bloodshot eyes, and the odor of alcohol coming from the car gave the officer reasonable and articulable suspicion to detain the defendant for the purpose of administering the horizontal gaze nystagmus test, which the defendant failed, giving the officer probable cause to arrest the defendant and supporting the denial of the defendant's motion to suppress. Harkleroad v. State, 317 Ga. App. 509, 732 S.E.2d 278 (2012).
Court erred in suppressing results of state-administered breath tests.
- Trial court erred in granting the defendant's motions in limine to suppress the results of the state's breath tests as the police officer who arrested defendant properly read to defendant the implied consent rights; the trial court erred because the court found that the defendant was not read those rights at the scene of the arrest, but the defendant was arrested in a local park for criminal trespass, not DUI, and the defendant was read the implied consent rights after the defendant was taken to a detention center and arrested there for DUI. State v. Jones, 261 Ga. App. 357, 583 S.E.2d 139 (2003).
Because the defendant was informed of the Miranda rights in a timely manner and the procedure employed to gain the defendant's consent was fair and reasonable, the trial court erred in suppressing the results of the state-administered breath test. State v. Allen, 272 Ga. App. 169, 612 S.E.2d 11 (2005).
Intoxilyzer results improperly excluded when inspection certificate available.
- Intoxilyzer test results were improperly excluded under O.C.G.A. § 40-6-392 since the state produced a properly prepared and executed certificate of inspection certifying that the electronic components and operating parts of the device were properly attached and in good working order. Any failure of the device to have pass an operational requirement by registering a 0.074 reading in the device's analysis of the control solution during the difference check went to the weight, not the admissibility, of the test results. State v. Carter, 292 Ga. App. 322, 665 S.E.2d 14 (2008).
Court should have excluded breath test.
- Trial court erred in not suppressing the results of the state-administered breath test that the defendant gave after the defendant was arrested for driving under the influence of alcohol; the defendant exercised the defendant's right to also request that an additional test be performed by asking that the defendant be given an independent urine test, and since that right was not honored, the state-administered breath test was not admissible to support the defendant's conviction. Johnson v. State, 261 Ga. App. 633, 583 S.E.2d 489 (2003).
Sequential breath tests admissible despite intervening failed test.
- Because an intervening failed breath test, due to the defendant's inability to provide an adequate sample, did not render otherwise valid breath alcohol test results inadmissible, and given that the fact of an intervening failed breath test went to the weight, not the admissibility, of the test results, suppression of the results was properly denied; moreover, the appeals court declined to hold that the word "sequential" also meant without any gaps in the procedure due to the test taker's inability to give an adequate breath sample. Davis v. State, 286 Ga. App. 443, 649 S.E.2d 568 (2007).
Printout of sequential breath tests.
- Trial court erred, in effect, granting part of the defendant's motion to suppress by ruling that a printout related to the defendant's sequential breath tests had to be redacted to reflect the results of the first, lower test only, as O.C.G.A. § 40-6-392(a)(1)(B) contemplated the admission of both sequential tests results even though the lower of the two results was determinative for certain purposes. State v. Kruzel, 261 Ga. App. 90, 581 S.E.2d 711 (2003).
Blood test results improperly admitted.
- Trial court erred in denying the defendant's motion to suppress the results of a blood test as the defendant was erroneously advised by a police officer that the implied consent statute was applicable due to the seriousness of the injuries sustained in the accident; although the officer's statement was correct at the time of the accident, the Georgia Supreme Court has since then ruled that O.C.G.A. § 40-5-55(a) was unconstitutional, and since the defendant had not been arrested for a violation of O.C.G.A. § 40-6-391 at the time the consent to the blood test was given. Buchanan v. State, 264 Ga. App. 148, 589 S.E.2d 876 (2003).
Trial court erred in granting the defendant's motion to suppress results from a blood test performed prior to any arrest as: (1) the evidence showed that the defendant was involved in a car wreck resulting in serious injury before blood was drawn; and (2) a sheriff's deputy had probable cause to suspect that the defendant had been driving under the influence of alcohol; moreover, contrary to the defendant's assertion, the fact that a loss of consciousness was temporary did not cause the blood test to fall outside the ambit of O.C.G.A. § 40-5-55(c). State v. Umbach, 284 Ga. App. 240, 643 S.E.2d 758 (2007).
Suppression of blood test not required.
- In a prosecution for DUI, the trial court did not err in denying the defendant's motion to suppress the blood test evidence as the trial court properly allowed the discovery of notes, memoranda, graphs, or computer printouts pertaining to the blood sample taken, as well as all chain of custody documentation, because such items were the only items deemed relevant to the prosecution; suppression of the blood test results was not required as the defendant waived error on appeal as to the absence of one of the two lab testers. Cottrell v. State, 287 Ga. App. 89, 651 S.E.2d 444 (2007), cert. denied, No. S07C1894, 2007 Ga. LEXIS 816 (Ga. 2007).
Trial court did not err in denying the defendant's motion to suppress the results of a blood-alcohol-content test that was obtained via the seizure of the defendant's blood samples and pursuant to a search warrant because the warrant was narrowly drafted to seek only the blood samples and medical records from the hospital where the defendant was treated on the night of the accident; even if the warrant could be construed as authorizing a broader seizure of all of the defendant's medical records instead of only those relevant to the defendant's treatment related to the accident, the defendant failed to show that any such broader seizure occurred and, thus, failed to show any harm. Jones v. State, 313 Ga. App. 590, 722 S.E.2d 202 (2012).
Chemical test results.
- Order denying suppression of chemical test results admitted against a defendant was proper under the implied consent statute, O.C.G.A. § 40-5-55. The test was requested based on sufficient probable cause and valid consent was given. A formal arrest of the defendant prior to reading the implied consent rights was not required. Hannah v. State, 280 Ga. App. 230, 633 S.E.2d 800 (2006).
Trial court properly granted the defendant's motion to suppress the results of a chemical test of blood based on the undue delay between the arrest, after a traffic stop, and the reading of the implied consent warnings as: (1) the state trooper was presented with numerous opportunities to issue the warnings to the defendant, but did not; and (2) the trial court rejected the trooper's rationale for not reading the defendant the implied consent warnings at any other earlier opportunity, implicitly determining that the trooper's testimony was not credible. State v. Austell, 285 Ga. App. 18, 645 S.E.2d 550 (2007).
Trial court did not err in denying the defendant's motion to suppress and motion in limine to exclude the defendant's field sobriety test results because the officers who stopped the defendant's vehicle were not required to advise the defendant of the defendant's Miranda rights prior to the field sobriety testing since although the defendant was not free to leave, the defendant was not handcuffed or placed in the patrol car during the investigation, and in addition to informing the defendant of the reason for the stop, the officers told the defendant that the officers had to wait for a HEAT Unit officer to determine whether the defendant was too impaired to safely operate the defendant's vehicle; based upon the circumstances, the trial court was authorized to find that a reasonable person would believe that the defendant's freedom of action was only temporarily curtailed pending further investigation during the traffic stop, and the delay of approximately twenty-five minutes between the initial stop and the HEAT Unit officer's arrival at the scene did not automatically convert the investigation into a custodial situation. Waters v. State, 306 Ga. App. 114, 701 S.E.2d 550 (2010).
Trial court did not err in denying the defendant's motion to suppress evidence of the results of field sobriety tests on the ground that the tests were administered without the defendant having the benefit of a Miranda warning because the defendant was not in custody until after the field sobriety tests were complete; the defendant was allowed to walk around and was not put into handcuffs or a patrol car while the defendant and the first officer awaited the arrival of the second officer, and a reasonable person in the defendant's position could conclude that the person's freedom of action was only temporarily curtailed and that a final determination of the person's status was simply delayed. DiMauro v. State, 310 Ga. App. 526, 714 S.E.2d 105 (2011).
Chemical test results inadmissible.
- Trial court erred in denying the defendant's motion to suppress the defendant's chemical test results that were obtained under the implied consent statute, O.C.G.A. § 40-5-55(a), as the defendant was not arrested after a fatal crash for any offense in violation of O.C.G.A. § 40-6-391 nor was there probable cause to arrest the defendant for any such violation. Costley v. State, 271 Ga. App. 692, 610 S.E.2d 647 (2005).
Error in admitting chemical test results harmless in light of other evidence.
- While the appeals court agreed that the trial court erred in denying the defendant's motion to suppress the results of the chemical test of the defendant's blood, the error was harmless as other evidence presented by the state, specifically the defendant's admission to being intoxicated and the testimony of other witnesses describing the witnesses' observations, proved the defendant's intoxication. Harrelson v. State, 287 Ga. App. 664, 653 S.E.2d 98 (2007).
Intoxilyzer 5000 test results.
- Trial court did not err in denying suppression of the results of the defendant's Intoxilyzer 5000 and other field sobriety tests administered upon a defendant's arrest for driving under the influence of alcohol in violation of O.C.G.A. § 40-6-391 as: (1) the arguments concerning the officer's ability to manipulate the Intoxilyzer 5000 test went to the weight, and not admissibility of the evidence; (2) the officer was sufficiently trained to administer the tests; (3) the state showed substantial compliance with the required procedures; and (4) no due process violation resulted from the evidence being admitted. Stewart v. State, 280 Ga. App. 366, 634 S.E.2d 141 (2006).
Trial court erred in granting the defendant's motion to suppress a breath test slip from an intoxilyzer and all testimony about the intoxilyzer because no surprise occurred when the defendant's attorney had already been shown the breath test slip and cross-examined a police officer about the slip at the motion hearing, and the state agreed to provide the defendant a copy; although the better practice would have been to provide the defendant a copy of the slip before the trial date, the record demonstrated that the state provided a copy at the hearing on the pretrial motion. State v. Tan, 305 Ga. App. 55, 699 S.E.2d 74 (2010).
Trial court erred in granting the defendant's motion to suppress a breath test slip from an intoxilyzer and all testimony about the intoxilyzer because the state was not required to produce the breath test slip to the defendant ten days before trial as a part of discovery since the breath test slip did not constitute a written scientific report within the meaning of O.C.G.A. § 17-16-23; no test or analysis was performed because the sample was insufficient, and the breath test slip did not show any test results but reflected only a measurement of breath volume. State v. Tan, 305 Ga. App. 55, 699 S.E.2d 74 (2010).
Results of improperly obtained intoximeter test.
- Results of improperly obtained intoximeter test are subject to motion to suppress or, alternatively, subject to objection at time evidence is offered as this is consistent with the mandate of O.C.G.A. § 40-6-392 that the use of such tests in criminal trials shall be subject to the strictest protections, and is also within the parameters of O.C.G.A. § 17-5-30. State v. Johnston, 160 Ga. App. 71, 286 S.E.2d 47 (1981), aff'd, 249 Ga. 413, 291 S.E.2d 543 (1982).
Burden of proof concerning intoximeter test's legality.
- State has burden of proving that seizure of appellee's breath resulting in the intoximeter results is in accordance with mandated procedures. State v. Johnston, 160 Ga. App. 71, 286 S.E.2d 47 (1981), aff'd, 249 Ga. 413, 291 S.E.2d 543 (1982).
Although a breath machine was taken out of service after the defendant's test, the state submitted circumstantial evidence in accordance with O.C.G.A. § 40-6-392(f) that the machine was in good working order during the test; therefore, the trial court erred in granting the defendant's motion to suppress. State v. Rackoff, 264 Ga. App. 506, 591 S.E.2d 379 (2003).
Inappropriate ground for suppressing intoxilyzer results.
- In a prosecution for driving under the influence of alcohol, the defendant's motion to suppress intoxilyzer results premised solely on the contention that the defendant was not guilty of the offense of striking a fixed object, which the officer was initially investigating, was not an appropriate ground for the motion. Goddard v. State, 244 Ga. App. 730, 536 S.E.2d 160 (2000).
Failure to raise constitutional issue as to intoximeter results.
- Defendant was not entitled to a pretrial hearing pursuant to O.C.G.A. § 17-5-30 since the defendant's motion to suppress intoximeter results did not raise any grounds involving constitutional guarantees against unreasonable search and seizure. Stanley v. State, 195 Ga. App. 706, 394 S.E.2d 785 (1990).
Properly conducted tests admissible.
- Trial court did not err in denying a defendant's motion to suppress the results of the defendant's horizontal gaze nystagmus (HGN) field sobriety test and of the Intoxilyzer 5000 breath test as the administrating officer testified to the officer's experience and training as well as the testing and scoring method used regarding the HGN test, and the defendant's constitutional challenges to the admissibility of the Intoxilyzer 5000 breath test results had already been decided in prior case law precedent adversely to the defendant. Laseter v. State, 294 Ga. App. 12, 668 S.E.2d 495 (2008).
Use of HGN test results.
- Trial court erred in suppressing the results of the defendant's breathalyzer test because the court failed to consider the horizontal gaze nystagmus test results when deciding whether the officer had probable cause to arrest the defendant. State v. Tousley, 271 Ga. App. 874, 611 S.E.2d 139 (2005).
HGN test results admissible.
- Trial court erred in excluding the defendant's horizontal gaze nystagmus (HGN) test results because there was error only with two of six clues and a score of four out of six constituted evidence of impairment, and the state laid a proper foundation by showing that the officer was sufficiently experienced in administering the test and that the officer properly administered and interpreted the test with regard to four of the clues found. State v. Tousley, 271 Ga. App. 874, 611 S.E.2d 139 (2005).
Suppression motion properly denied.
- Trial court properly admitted an Intoxilyzer 5000's certificate of inspection as non-testimonial as well as the defendant's breath test results; even if error was presented, it was harmless since the defendant was acquitted of driving under the influence with an unlawful blood alcohol concentration. Moreover, the incident report was properly admitted under the rule of completeness as the trial court was authorized to find that it was necessary for the state to admit all relevant parts of the incident report in evidence to show that the omissions noted by the defendant were not so material as to have effected the accuracy of the report. Phillips v. State, 289 Ga. App. 281, 656 S.E.2d 905 (2008).
C. Searches
Automobile exception to warrant requirement.
- Trial court did not err in denying the defendant's motion to suppress items that were found in the trunk of the defendant's car after the defendant was apprehended on suspicion of shoplifting despite the defendant's claim that the defendant did not consent to the search of the car as the trial court weighed the credibility of the testimony and the record supported the trial court's finding that the defendant freely and voluntarily consented to the search; moreover, even if the defendant did not consent to the search, the search was valid under the automobile exception to the warrant requirement, which allows a warrantless search of a vehicle when there is probable cause, because the police had probable cause to search the vehicle in light of information from a store manager who saw the defendant place store items in the defendant's trunk without paying for the items and in light of the defendant's subsequent conduct of shoplifting at another store down the road within 30 minutes of the original incident. Horne v. State, 260 Ga. App. 640, 580 S.E.2d 644 (2003).
Trial court committed no error in denying the defendant's motion to suppress physical evidence officers seized from a pickup truck because the search was authorized under the automobile exception to the warrant requirement when under the totality of the circumstances, the officers had probable cause to believe that the truck contained the illegal crystal methamphetamine that was to form the basis of the drug deal; a narcotics investigator's conversations and interactions with the defendant, combined with the observations of the undercover agents who maintained continuous surveillance of the pickup truck and the movements of the defendant and a codefendant, would have led a reasonable person to believe that the drug contraband was in the truck. Martinez v. State, 303 Ga. App. 166, 692 S.E.2d 766 (2010).
Trial court erred in granting the defendant's motion to suppress cocaine an officer found in the defendant's car because the defendant's consent, a search warrant, or exigent circumstances were not required in order to render the search constitutional since the search of the car was authorized under the automobile exception, which applied even if the car was not stopped along a highway but was stationary in a place not regularly used for residential purposes; the officer had probable cause to believe that the car contained crack cocaine, and the officer's observation of what the officer suspected, based upon the officer's law enforcement experience, to be crack cocaine would have led a reasonably discrete and prudent person to believe that drug contraband was in the car. State v. Sarden, 305 Ga. App. 587, 699 S.E.2d 880 (2010).
Intensive search of cars.
- After a valid stop for following too closely, the deputies' actions throughout the detention were reasonable and motivated by a genuine concern for the protection of others on the interstate that arose from the totality of the rapidly escalating situation confronting the deputies. Montoya v. State, 232 Ga. App. 24, 499 S.E.2d 699 (1998).
Open car door provided plain view.
- Because the defendant was already stopped at the side of a road and a police chief, lawfully wanting to question the defendant about the incorrect vehicle tag number that the defendant had given earlier, walked passed an open car door and saw a gun in plain sight, there was no stop and the chief had a right to retrieve the gun; consequently, the trial court did not err by refusing to suppress the evidence of the gun. Eldridge v. State, 270 Ga. App. 84, 606 S.E.2d 95 (2004).
Investigatory stop.
- Trial court properly denied the defendant's motion to suppress as the police officer had a sufficient, articulable suspicion necessary to make an investigatory stop of the defendant's vehicle since the police observed during a surveillance that the occupants of the car, including the defendant, were engaged in a number of hand-to-hand transactions in an area known as an open-air drug market. Kates v. State, 271 Ga. App. 326, 609 S.E.2d 710 (2005).
Trial court erred by granting the defendant's motion to suppress the evidence of a DUI violation obtained during the traffic stop of the defendant's vehicle by committing clear error in finding that the officer lacked a reasonable, articulable suspicion to stop the defendant's car as the officer had received a radio dispatch and had obtained information from a fast-food restaurant employee that suspicious persons in a vehicle were banging on the windows and cursing at the fast-food restaurant. Such actions involved engaging in disorderly conduct, which was an allegation of a crime that gave the officer grounds for conducting a brief traffic stop of the defendant's vehicle for investigatory purposes. State v. Melanson, 291 Ga. App. 853, 663 S.E.2d 280 (2008).
Trial court did not err in denying the defendant's motion to suppress due to alleged illegal traffic stops as even though police officers did not actually see a drug transaction involving the defendant, the circumstances justified an investigative stop of another vehicle driven by individuals observed in an exchange with the defendant in a parking lot. The officers were acting on information that tied a vehicle of the same make and model of the defendant's vehicle to illegal drug activity. Darden v. State, 293 Ga. App. 127, 666 S.E.2d 559 (2008).
Trial court did not err in granting the defendant's motion to suppress all evidence seized after the vehicle the defendant was driving was stopped because the defendant did not abandon the car or lose any reasonable expectation of privacy with regard to the car; when the defendant ran away after the traffic stop, the police officer had just observed the defendant park the car within a parking space of an apartment complex, where the person to whom the car's registered owner had entrusted the vehicle, and because the evidence from which the officer ascertained the defendant's identify derived from documents found during the unlawful search of the car, the trial court did not err in rejecting the state's argument that the items retrieved from the sidewalk were admissible in a trial against the defendant. State v. Nesbitt, 305 Ga. App. 28, 699 S.E.2d 368 (2010).
Trial court did not err in denying the defendant's motion to suppress evidence a police officer recovered from the defendant's vehicle because the evidence supported the trial court's finding that the officer did not unreasonably prolong the stop of the vehicle, and once the drug dog alerted to the vehicle, the officer had probable cause to search the vehicle; a brief detention was authorized because it was reasonable for the officer to be suspicious in light of the defendant's furtive movement at the initial point of the stop, and that suspicion was heightened when the defendant attempted to explain that the defendant was looking for the defendant's wallet but then retrieved the defendant's license from a different part of the car, and when the defendant revoked the defendant's consent to search. Hardaway v. State, 309 Ga. App. 432, 710 S.E.2d 634 (2011).
Officer had probable cause to believe that, by lying about whether weapons were in a vehicle, the defendant had violated O.C.G.A. § 16-10-20 because at the time the defendant produced the rental agreement for the vehicle, the officer saw a firearm in the center console of the rental car, which the defendant apparently tried to conceal by quickly closing the console; when the officer asked the defendant whether any weapons were in the car the defendant denied it, and that was a reason for the officer to detain the defendant and to secure the firearm for the officer's own safety. Culpepper v. State, 312 Ga. App. 115, 717 S.E.2d 698 (2011).
Trial court erred in denying the defendant's motion to suppress as the officer simply did not have reasonable suspicion that the defendant was engaged in or about to be engaged in a violation of the law after the officer found the defendant sleeping in a car in the parking lot of a funeral home, with the permission of the funeral home's owner, the officer did not see or smell any illegal substances; the officer did not question the defendant regarding the defendant's appearance or demeanor; the officer did not determine if the defendant had consumed alcohol; and the officer did not perform any field tests to determine if the defendant was under the influence of anything. Martin v. State, 316 Ga. App. 220, 729 S.E.2d 437 (2012).
Search based on lawful arrest.
- Because an officer had probable cause to arrest a vehicle's occupants, including the defendant, after encountering a truck matching the description in a be-on-the-lookout bulletin, with the same number of occupants as advised therein, traveling on the road and in the direction identified, and from a location known by the officer to be the scene of an armed robbery, a search based on a lawful arrest was upheld; as a result, the trial court properly denied the defendant's motion to suppress the evidence seized as a result of a search incident to the arrest. Boone v. State, 282 Ga. App. 67, 637 S.E.2d 795 (2006).
Search of vehicle incident to lawful arrest.
- Officer's search of the defendant's vehicle incident to the defendant's arrest was lawful because the crime for which the defendant was under arrest was the possession of bagged marijuana in the defendant's pocket, and it was reasonable to believe that evidence relevant to the offense could be found in the vehicle from which the defendant exited. Kirkland v. State, 316 Ga. App. 310, 728 S.E.2d 907 (2012).
Consensual automobile search when the defendant a passenger.
- Trial court erred in granting the defendant's motion to suppress; since the police had probable cause to search the driver's vehicle because a police officer had smelled the odor of burning marijuana coming from the car following a valid traffic stop and the driver had given consent to search the car, the police did not need to establish that probable cause existed to search individual containers in the car which might contain contraband since the probable cause that existed to search the car gave the police the right to also search each of the car's containers, and, thus, the trial court should not have suppressed evidence of contraband found in the book bag of the passenger, the defendant. State v. Selph, 261 Ga. App. 541, 583 S.E.2d 212 (2003).
Trial court erred in suppressing evidence found in a consensual search of a car in which the defendant was a passenger as the police officer did not impermissibly expand the scope or the duration of a valid traffic stop for an improperly displayed tag in violation of O.C.G.A. § 40-2-41 by determining the status of the driver's license and whether the driver or defendant had outstanding warrants against them; even though 26 minutes into the stop the officer had not yet written the driver a ticket for the improperly displayed tag, the officer was not required to write the ticket and conclude the stop prior to diligently completing the background checks, which were delayed by the driver's admission that the driver might have had an outstanding warrant in another county that the officer had not discovered, and investigating the officer's reasonable suspicions regarding alcohol and open containers arising out of the officer's knowledge of another officer's encounter with the men earlier in the evening. State v. Williams, 264 Ga. App. 199, 590 S.E.2d 151 (2003).
Consensual automobile search.
- Trial court did not err in denying a defendant's motion to suppress evidence gathered in the search of the defendant's vehicle, which resulted in the seizure of a plastic bag containing additional baggies that tested positive for methamphetamine, in light of the state's evidence indicating that the defendant was driving under the influence; while the state introduced evidence indicating that the defendant had been driving under the influence, the state's evidence also showed that the arresting officer asked for and got the defendant's consent only after the defendant convinced the officer that the defendant was in full possession of the defendant's faculties. Davis v. State, 287 Ga. App. 478, 651 S.E.2d 750 (2007), cert. denied, No. S08C0176, 2008 Ga. LEXIS 179 (Ga. 2008).
Trial court correctly denied the defendant's motion to suppress evidence obtained during a traffic stop because: (1) there was probable cause for the initial stop, based on an officer's observance of a traffic violation - a nonfunctional tag light; (2) the officer sought and obtained the defendant's voluntary permission to search the car; (3) there was no evidence that the stop was unreasonably prolonged by questioning; and (4) there was no evidence that the officer performed a pat-down search nor that the officer ever put the officer's hands in the defendant's pocket. Carnes v. State, 293 Ga. App. 549, 667 S.E.2d 620 (2008).
Trial court did not err in denying the defendant's motion to suppress evidence a police officer found in the defendant's vehicle because the defendant's consent to search the vehicle was not the product of an illegal detention since after returning the defendant's driver's license and issuing a warning ticket, the officer told the defendant that the defendant was free to leave, but the defendant remained on the scene and engaged in casual conversation about the high level of drug activity in the area and the fact that the defendant worked nearby; the defendant's conduct showed that the defendant did not feel intimidated by the officer's presence, and under the circumstances, the initial traffic stop had de-escalated into a consensual encounter when the officer requested consent to search, which the defendant readily provided, and there was no evidence that the officer coerced the defendant's consent, tricked the defendant, or conveyed a message that the defendant's consent to search was required. Davis v. State, 306 Ga. App. 185, 702 S.E.2d 14 (2010).
Trial court did not err in denying the defendant's motion to suppress marijuana a police officer found during the search of the defendant's car because the evidence showed that the defendant was legally detained when the officer requested consent to search; the officer's testimony reflected that the officer sought consent to search immediately after issuing a verbal warning. Nix v. State, 312 Ga. App. 43, 717 S.E.2d 550 (2011).
Defendant's motion to suppress was properly denied because the officer had reasonable articulable suspicion to conduct a traffic stop based on an alert from the license-plate recognition system showing that a wanted person could be driving the subject vehicle, the defendant's driving on a suspended license provided probable cause for an arrest, and the defendant consented to a search of the vehicle. Hill v. State, 321 Ga. App. 817, 743 S.E.2d 489 (2013).
Consent to search of vehicle.
- Trial court properly denied the defendant's suppression motion as the defendant's car was searched with the defendant's consent while the officer was investigating the officer's reasonable suspicion that the defendant might be transporting drugs or stolen merchandise, even though the defendant had been given a traffic citation at the time that the consent was requested; the officer testified at the suppression hearing that the officer still needed to verify the VIN of the car and to verify that the car was an actual rental vehicle and not a stolen car when the consent was requested, and that the defendant was free to leave, but that because of the officer's concerns about the car, the car was not going anywhere. Vaughn v. State, 263 Ga. App. 536, 588 S.E.2d 330 (2003).
Because the defendant committed two traffic violations, an ensuing stop of the defendant's vehicle was not unjustifiably extended, the defendant voluntarily granted the officers consent to search, and a canine free-air search was undertaken immediately and as a result of the defendant's consent, the trial court properly denied suppression of the evidence seized as a result of the stop. Noble v. State, 283 Ga. App. 81, 640 S.E.2d 666 (2006).
Trial court properly denied the defendant's suppression motion as the evidence showed that once an officer obtained the defendant's consent to conduct a free air search around the vehicle the defendant was driving, a drug dog alerted for contraband within the vehicle, and once this occurred, the officer had probable cause to believe the defendant was transporting drugs. Garvin v. State, 283 Ga. App. 242, 641 S.E.2d 176 (2006).
Trial court did not err in denying either the defendant's motion to suppress the methamphetamine seized during the consensual search of the defendant's vehicle or a motion to suppress the defendant's voluntary custodial statement as the testimony of the arresting and investigating officers established that the defendant did not display any problems with the understanding of the English language as did videotapes of the vehicle search and the in custody interview, which likewise showed the defendant having no problems with the English language. Therefore, the defendant's consent to the search of the vehicle nor the defendant's waiver of the defendant's Miranda rights were invalidated. Serrano v. State, 291 Ga. App. 500, 662 S.E.2d 280 (2008).
Trial court did not err in denying the defendant's motion to suppress because an officer did not extend the duration of a traffic stop; the officer's testimony supported the conclusion that the officer asked for consent to search during the time that the officer was issuing citations, and the officer's questioning did not extend the duration of the defendant's detention. Arroyo v. State, 309 Ga. App. 494, 711 S.E.2d 60 (2011).
Officer's basis for stop.
- Denial of the defendant's suppression motion was upheld on appeal as: (1) the defendant's vehicle was not stopped by the investigating officer; (2) the defendant voluntarily pulled into a driveway and stopped; (3) the officer did not prevent the defendant's departure; and (4) the officer had a reasonable and objective basis to conclude that the defendant committed the traffic offense of improper backing in violation of O.C.G.A. § 40-6-249(a). Collier v. State, 282 Ga. App. 605, 639 S.E.2d 405 (2006), cert. denied, No. S07C0542, 2007 Ga. LEXIS 217 (Ga. 2007).
Search of vehicle justified by officer's observations.
- Search of a van was lawful under the independent basis of the automobile exception to the warrant requirement since the objective facts known to the deputy after the deputy lawfully stopped the van, including needle marks on the occupants' arms, drug paraphernalia, and evidence of drug usage on the floor of the front seat, gave the deputy probable cause to believe that the van contained contraband. Autry v. State, 277 Ga. App. 305, 626 S.E.2d 528 (2006).
Officers' initial approach of the defendant's vehicle and request for consent to search were warranted, even without an articulable suspicion of criminal activity at the time of the officers' approach; moreover, even if a reasonable articulable suspicion of criminal activity had been required to briefly detain the defendant, the officers had such suspicion upon seeing: (1) individuals approach defendant's car in an area known for drug activity; (2) the individuals turn and walk away upon seeing the police; and (3) the defendant's passenger swallowing what appeared to be a crack rock as the police approached. Sego v. State, 279 Ga. App. 484, 631 S.E.2d 505 (2006).
Traffic stop by a sheriff's deputy was not unreasonably prolonged without a reasonable articulable suspicion of criminal activity based on evidence that: (1) a rental agreement in the defendant's possession had expired; (2) the officer was justified in calling for the drug dog because the officer did not know whether the car was stolen and because the defendant was nervous, backed toward the car when the defendant declined consent to search, and confessed to an open container violation; and (3) the trial court properly credited testimony from the dog's handler that the dog alerted when the dog showed interest in the passenger door, although the dog's response was not an active alert; thus, the trial court properly rejected the defendant's motion to suppress. Tanner v. State, 281 Ga. App. 101, 635 S.E.2d 388 (2006).
Defendant failed to establish that trial counsel's failure to timely file a motion to suppress evidence a police officer seized from the defendant's vehicle prejudiced the case because the warrantless search of the vehicle was lawful under the automobile exception to the warrant requirement; the objective facts known to the officer after the car was lawfully stopped gave the officer probable cause to believe that the car contained contraband, and those facts included the smell of marijuana in the car, flakes of what the officer suspected to be marijuana on the floorboards of the car, and the defendant's visible agitation during the traffic stop. Brown v. State, 311 Ga. App. 405, 715 S.E.2d 802 (2011).
Trial court did not err in denying the defendant's motion to suppress evidence a police officer recovered from a rental car because the officer had reasonable grounds for detaining the defendant since the officer found the defendant and a friend in the parking lot of a closed business late at night, knew that several burglaries and thefts had occurred in the area recently, and observed that the defendant and the friend appeared to be nervous when the officer spoke with the defendant and the friend; in the course of securing a firearm the officer saw a firearm in the center console of the rental car, the officer saw in plain view a digital scale with white residue, affording the officer probable cause to effect a custodial arrest of the defendant. Culpepper v. State, 312 Ga. App. 115, 717 S.E.2d 698 (2011).
Trial court did not err by denying the defendant's motion to suppress evidence an officer seized from the defendant's vehicle because the suspected contraband was in plain view from outside the vehicle, and once the officer smelled the odor of marijuana on the recovered item, the officer had even stronger grounds to search the vehicle; because the officer saw the item before returning the defendant's license or issuing the ticket, the officer was not exceeding the scope of the initial traffic stop by seizing the object. Arnold v. State, 315 Ga. App. 798, 728 S.E.2d 317 (2012).
Search of vehicle not justified by officer's observation.
- Trial court erred by denying two defendants' motion to suppress the drug evidence found in the vehicle in which one defendant was driving, and the other defendant was a passenger, because the search of the vehicle was conducted after the defendants were illegally detained after a traffic stop. The officers were justified in stopping the vehicle upon observing the vehicle speeding but by only observing nervousness and an expandable baton, the officers exceeded the scope of a permissible search by continuing to detain the defendants without any cause to believe the defendants were dangerous; thus, the search was not justified. Bell v. State, 295 Ga. App. 607, 672 S.E.2d 675 (2009).
Standard for inventory searches.
- Contents of an impounded vehicle are routinely inventoried to protect the property of the owner, protect the officers against claims for lost or stolen property, and protect the police from potential danger, and the validity of such conduct is not dependent upon the absolute necessity for the police to take charge of property to preserve the property, but depends instead on whether the police conduct was reasonable under the Fourth Amendment in light of the circumstances confronting the police at the time; thus, police were authorized to impound and later perform a routine inventory of the defendant's car when the defendant was arrested at the home of a friend in connection with a murder and the disappearance of the defendant's spouse, the defendant's car was at the home of the friend, and police knew that the defendant had been planning to leave the state with the friend and that the defendant's car was wanted in an investigation in another county because, under the circumstances, the police had reason to believe that the defendant's detention would be lengthy and the officers were not required to trust that the car would remain untouched if they left the car at the friend's home. Wright v. State, 276 Ga. 454, 579 S.E.2d 214 (2003), cert. denied, 540 U.S. 1106, 124 S. Ct. 1059, 157 L. Ed. 2d 892 (2004).
Inventory search of vehicle.
- Defendant's motion to suppress evidence of cocaine and crack pipes found during an inventory search of the car was properly denied as: (1) the police impound was not unlawful; (2) waiting a reasonable time, usually 20 minutes, prior to having the car towed, was not unreasonable as a matter of law; and (3) the officers were not required to call the defendant's relatives first. Carlisle v. State, 278 Ga. App. 528, 629 S.E.2d 512 (2006).
Because an officer was authorized to arrest the defendant for weaving, a decision to impound the vehicle the defendant was driving was not unreasonable and an inventory search of the vehicle was authorized; thus, the trial court did not err in denying the defendant's motion to suppress the evidence seized as a result of the search. Lopez v. State, 286 Ga. App. 873, 650 S.E.2d 430 (2007).
Trial court did not err in denying the defendant's motion to suppress because the trial court's finding that the impoundment of the defendant's motorcycle was reasonably necessary under the circumstances was supported by the evidence because the defendant was arrested for attempting to elude police and for several traffic offenses, including driving with an expired license, the defendant was not going to be allowed to drive the motorcycle under any circumstances. Grizzle v. State, 310 Ga. App. 577, 713 S.E.2d 701 (2011).
Impoundment of defendant's car was reasonable under U.S. Const., amend. IV, and the resulting inventory search was proper as the defendant and the defendant's companion were arrested, no one remained to take custody of the car, and the car was on the shoulder of an exit ramp where the car would have impeded a large truck attempting to exit the highway. Scott v. State, 316 Ga. App. 341, 729 S.E.2d 481 (2012).
Trial court erred in denying the defendant's motion to suppress because the inventory search of a van was unreasonable under the Fourth Amendment due to a lack of evidence of police policy; the record contained no evidence about the police department's policy or procedures on inventory searches, but rather, the officers simply testified that the officers' searches of a flatbed wrecker, the van, and the van's contents were inventory searches pursuant to the impoundment. Capellan v. State, 316 Ga. App. 467, 729 S.E.2d 602 (2012).
Search after suspect abandoned vehicle.
- Probable cause existed to search a vehicle, which was left behind when a suspect fled a drug transaction upon seeing a police officer approach; it was of no consequence that the car was impounded before the warrant was issued for the car's search. Scott v. State, 277 Ga. App. 126, 625 S.E.2d 526 (2006).
Because a motion to suppress the evidence seized from the vehicle that the defendant and the defendant's cohorts were riding in would have been futile as the evidence showed the defendants abandoned the vehicle on foot after being involved in a high-speed chase with police, the defendant's trial counsel could not have been ineffective in failing to file the motion. Skaggs-Ferrell v. State, 287 Ga. App. 872, 652 S.E.2d 891 (2007).
Trial court did not err in denying the defendant's motion to suppress evidence an officer seized from the defendant's vehicle because the evidence undisputedly showed that the defendant had abandoned the vehicle, and since the defendant abandoned the defendant's car, the defendant had no standing to assert the claim that the search was invalid as a warrantless search incident to an arrest; the defendant abandoned the defendant's vehicle when the defendant fled to escape police, leaving the vehicle parked in a stranger's driveway with the door open, and before searching the open vehicle, an officer even confirmed with the landowner that the defendant's vehicle was not parked there with the owner's permission. Johnson v. State, 305 Ga. App. 635, 700 S.E.2d 612 (2010).
Search proper as inventory and as incident to driver's arrest.
- Because an inventory search of a codefendant's vehicle after impoundment was reasonable, and because the search was performed incident to the codefendant's lawful arrest, there was no basis to suppress the evidence seized from the search. Williams v. State, 308 Ga. App. 464, 708 S.E.2d 32 (2011).
Evidence found during search of vehicle after accident admissible.
- When the defendants were taken to a hospital after a one-party automobile accident, leaving the vehicle posing a threat to public safety, and the officer conducted an investigative inventory before a private wrecker towed the vehicle, evidence of cocaine discovered by the officer during the normal investigative search will not permit a motion to suppress under O.C.G.A. § 17-5-30. State v. Izquierdo, 160 Ga. App. 33, 285 S.E.2d 769 (1981).
Trial court erred in granting the defendant's motion to suppress evidence including cocaine and a pistol found in a duffel bag on the floorboard of the defendant's vehicle after the car was involved in an accident killing a deer since the defendant was unable to provide proof that the vehicle was insured, and impoundment was therefore valid; thus, the items seized were both admissible through the inventory search of the lawfully impounded vehicle, and via a search incident to the defendant's arrest for operating the vehicle without insurance and driving on a suspended license. State v. Howard, 264 Ga. App. 691, 592 S.E.2d 88 (2003).
Car being towed.
- There was no error in denying a motion to suppress as an officer's direction removing the defendant from a car following a traffic stop, which led to the discovery of cocaine, was reasonable given the circumstances. Though the officer had no basis for suspecting unlawful activity, the defendant could not remain in the car because the car was going to be towed. Carter v. State, 297 Ga. App. 608, 677 S.E.2d 792 (2009).
D. Traffic Stops
Stop based on erroneous facts.
- It was not error to admit evidence and statements showing intoxication, even though the stop of the defendant's automobile was due to an error on the part of the officer or the dispatcher who "ran the tag" and erroneously determined that the automobile was stolen. Cunningham v. State, 231 Ga. App. 420, 498 S.E.2d 590 (1998).
Reasonable belief justifying stop.
- Trial court's denial of the defendant's motion to suppress evidence that was found in a car the defendant was driving was not clearly erroneous when the initial stop of the defendant by officers was made with a reasonable articulable suspicion of criminal activity when the defendant, the defendant's companion, and the car met descriptions that the police were searching for in connection with the burglaries. When the defendant immediately fled on foot when police stopped the vehicle, probable cause to search the car, which turned out to be stolen, existed. Porter v. State, 264 Ga. App. 526, 591 S.E.2d 436 (2003).
Motion to suppress was properly denied when the officer had a reasonable basis to make an investigatory stop of defendant's vehicle; it was reasonable for the officer to infer, based on the officer's training, experience, and common sense that the person driving the truck who stopped, looked at the officer while the officer was at the house attempting to serve the warrant, and then took off, could have been the person the officer was trying to find and arrest. Howard v. State, 265 Ga. App. 835, 595 S.E.2d 660 (2004).
Despite the defendant's claim that a sheriff's deputy lacked a specific and articulable suspicion of criminal activity necessary to execute a traffic stop of the defendant's vehicle and thus that the evidence seized thereafter had to be suppressed, the appeals court found otherwise as sufficient facts had been conveyed to the deputy prior to the stop for the deputy to have a reasonable belief that the defendant had been involved in a domestic dispute and might be under the influence of alcohol to justify a finding that the resulting stop was valid; hence, suppression was properly denied. Lacy v. State, 285 Ga. App. 647, 647 S.E.2d 350 (2007), cert. denied, No. S07C1514, 2007 Ga. LEXIS 620 (Ga. 2007).
Because a concerned citizen reported that a suspected drunk driver was driving a specific vehicle in a specific location, a police officer had a reasonable, articulable suspicion to justify an investigative traffic stop; accordingly, the defendant did not show a basis for reversing the trial court's order denying the defendant's motion to suppress. Adcock v. State, 299 Ga. App. 1, 681 S.E.2d 691 (2009).
Trial court did not err in denying the defendant's motion to suppress when a police officer was authorized to stop the vehicle the defendant was driving because of a perceived traffic violation and to continue the officer's investigation because the defendant did not have a driver's license; the particularized and objective basis for the initial stop was the information from the Georgia Crime Information Center that the male owner of the registered vehicle defendant was operating had a suspended driver's license, and once the stop was made, and it was ascertained that the defendant was not the owner of the car, the officer had a duty to further investigate only because the defendant could not produce a driver's license. Humphreys v. State, 304 Ga. App. 365, 696 S.E.2d 400 (2010).
Trial court did not err in denying the defendants' motion to suppress evidence police officers seized pursuant to search warrants for a residence and vehicles and a traffic stop because all of the facts, taken together, justified the stop based on a reasonable articulable suspicion that the occupants of the vehicles were involved in an active marijuana growing operation; a search warrant for the residence was pending based on probable cause to believe that an active marijuana growing operation was being conducted inside, the officers had information from multiple sources that the residence was a marijuana grow house, the house exhibited the physical characteristics of other grow houses that had been recently discovered, and the officers observed the defendants driving away from the residence in tandem with a truck and large recreational trailer, which had been obscured in the backyard behind a privacy fence. Prado v. State, 306 Ga. App. 240, 701 S.E.2d 871 (2010).
Statute later rendered unconstitutional did not invalidate stop.
- Trial court did not err in denying the defendant's motion to suppress after finding that the excessive-window-tinting statute, O.C.G.A. § 40-8-73.1(b), was unconstitutional because an officer had a reasonable articulable suspicion to justify the traffic stop; the officer observed that the defendant's vehicle had darkly tinted windows and reasonably believed that to be in violation of § 40-8-73.1, and the fact that the statute was later found to be unconstitutional did not render the stop invalid. Christy v. State, 315 Ga. App. 647, 727 S.E.2d 269 (2012).
Trial court did not err by denying the defendant's motion to suppress evidence obtained during a traffic stop because there was some evidence that the defendant attempted to avoid a roadblock; the defendant made an immediate, sudden turn into a driveway, reversed course, and drove away from the checkpoint at the same time that the police officer noticed the defendant's headlights. Blakely v. State, 316 Ga. App. 213, 729 S.E.2d 434 (2012).
Both initial stop and unrelated questions permissible.
- Denial of the defendant's motion to suppress was proper because the officer's observation of the defendant's car crossing over the lane line without a signal and of an inoperable third brake light gave the officer probable cause that a traffic violation had occurred and the officer's questioning of the defendant unrelated to the stop did not prolong the stop. White v. State, 319 Ga. App. 540, 732 S.E.2d 107 (2012).
Second investigatory stop justified.
- Trial court erred in granting the defendant's motion to suppress evidence since the vehicle was properly stopped a second time after the police officer stopped the vehicle originally for a traffic violation and observed that the defendant's female companion appeared to be the driver, and let the defendant go with a warning; however, the officer had a reasonable suspicion of criminal activity that warranted the second investigatory stop when the officer saw the car stall as the woman tried to drive away, as the officer suspected that the woman had never driven that type of car, and that the defendant actually had been driving at the time the officer stopped the vehicle for the first offense the officer observed. State v. Trammel, 270 Ga. App. 395, 606 S.E.2d 613 (2004).
Terry stop of vehicle on information from police dispatch.
- Police dispatcher who reports a crime at a specified location gives police an articulable suspicion to investigate and detain individuals at the scene. When a police officer received a dispatch on suspicion of drunk driving describing the defendant and the defendant's vehicle, and the officer saw the defendant in the defendant's vehicle matching that description immediately after receiving the dispatch, the officer had a reasonable, articulable suspicion to justify a Terry stop and it was error to grant the defendant's motion to suppress the stop even though the stop was made without the officer observing any traffic violations. State v. Harden, 267 Ga. App. 381, 599 S.E.2d 329 (2004).
Dispatcher's descriptions of vehicle justified stop.
- Because police officers saw a vehicle matching a dispatcher's description shortly after receiving the dispatch, and the vehicle attempted to elude the officers, in violation of O.C.G.A. § 40-6-395(a), the officers had a specific and articulable reason to stop the vehicle; consequently, the trial court properly denied the defendant's motions to suppress, in limine, and for a new trial. Francis v. State, 275 Ga. App. 164, 620 S.E.2d 431 (2005).
Trial court did not err in denying a defendant's motion to suppress evidence because a traffic stop of the defendant was authorized; an officer had a particularized and objective basis for suspecting the defendant of criminal activity based on the officer's knowledge that the officer was to be on the lookout for a car similar in description to the car the defendant was driving and the officer's observations of the defendant's suspicious driving. Aponte v. State, 296 Ga. App. 778, 676 S.E.2d 279 (2009).
Stop based on be-on-the-lookout bulletin.
- Motion to suppress was properly denied in a defendant's trial for driving under the influence of alcohol and violating the open container law as an officer's be-on-the-lookout (BOLO) bulletin provided reasonable suspicion of criminal activity sufficient to authorize the stop of the defendant's vehicle; the BOLO provided particularized information describing the color, manufacturer, and model of the vehicle, the number and race of the vehicle's occupants, and the vehicle's location and direction of travel. Faulkner v. State, 277 Ga. App. 702, 627 S.E.2d 423 (2006).
Trial court properly granted the defendant's motion to suppress as the investigating officer lacked any particularized basis to suspect the defendant of any criminal activity, and information contained in a "be on the lookout" alert for a certain vehicle failed to supplant the officer's belief that the defendant was involved in a reported burglary given that: (1) the description of the vehicle being driven and the suspect were inadequate; (2) no information was provided about the lapse of time between the crime occurring and the traffic stop; (3) no information was provided about the number of persons about in the area; and (4) the defendant was not engaged in any activity which would have otherwise authorized a traffic stop. State v. Dias, 284 Ga. App. 10, 642 S.E.2d 925 (2007).
Stop justified despite ulterior motives.
- Defendant was properly convicted of trafficking in methamphetamine because the trial court did not err in denying the defendant's motion to suppress items police officers seized as a result of a traffic stop of the defendant's vehicle when the stop was lawful under the circumstances; because the officer witnessed the defendant commit a traffic violation, the officers' action in pulling over the vehicle after the defendant committed the traffic violation was valid, even though the officers had ulterior motives in initiating the stop. Gonzalez v. State, 299 Ga. App. 777, 683 S.E.2d 878 (2009).
No justification for stop.
- Because: (1) an investigating officer did not have a particularized and objective reason to suspect the defendant of any criminal activity before stopping the defendant's vehicle; and (2) the act of driving at night, lawfully, on a public road, and in a high crime area, did not justify the stop in the absence of additional circumstances, the trial court erred in denying the defendant's motion to suppress. Young v. State, 285 Ga. App. 214, 645 S.E.2d 690 (2007).
Trial court did not err in granting the defendant's motion to suppress because the trial court was authorized to find that the police officer who initiated the traffic stop lacked an articulable suspicion to believe that the defendant was impeding the flow of traffic in violation of O.C.G.A. § 40-6-184(a) when under the facts, the officer's belief that the defendant was impeding the flow of traffic was an insufficient basis for initiating an investigative stop; the court of appeals would not disturb the trial court's findings, which was based upon conflicting witness testimony, that at the time of the traffic stop, the defendant was traveling above the posted minimum speed limit and only a few miles below the posted maximum speed limit when the defendant's vehicle was passed by two vehicles that were speeding. State v. Parke, 304 Ga. App. 124, 695 S.E.2d 413 (2010).
Trial court properly granted the defendant's motion to suppress evidence a deputy sheriff obtained in the course of a traffic stop because the court's findings that the deputy did not really believe at the time of the stop that the absence of side view mirrors supplied proper grounds for a stop and that the deputy did not, in fact, see anyone toss anything from the car were not clearly erroneous; the factual findings were based not only upon a video that was absent from the record on appeal but also upon an assessment of the credibility of the deputy. State v. Reid, 313 Ga. App. 633, 722 S.E.2d 364 (2012).
Tags being old and worn not justification.
- Because it was evident that the officer's claim of the tag's condition as being worn and old and appearing more than 30 days out of date, which was the sole articulated basis for the investigatory stop, was found by the trial court to lack credibility, and the appellate court found no clear error in the trial court's credibility determination, the state failed to adduce credible evidence that the officer observed a tag that appeared more than 30 days old, and supplied no basis to disturb the trial court's decision to grant the defendant's motion to suppress. State v. Castillo, 330 Ga. App. 828, 769 S.E.2d 571 (2015).
Stop was not pretextual.
- Defendant's motion to suppress was properly denied because an investigatory stop was not pretextual, but was based on a reasonable, articulable suspicion after corroboration of a tip from a known tipster, along with a traffic offense; the tip contained details as to future actions that were not easily predicted, and a detective corroborated the tip before ordering the stop by verifying the vehicle's make, model, year, color, route, location, and occupant. Wright v. State, 272 Ga. App. 423, 612 S.E.2d 576 (2005).
Trial court did not err in denying the defendant's motion to suppress items police officers seized as a result of a traffic stop of the defendant's vehicle because the stop was lawful under the circumstances; because the officer witnessed the defendant commit a traffic violation, the officers' action in pulling over the vehicle after the defendant committed the traffic violation was valid, even though the officers had ulterior motives in initiating the stop. Gonzalez v. State, 299 Ga. App. 777, 683 S.E.2d 878 (2009).
Traffic stop initiated by conversation with concerned citizen improper.
- Because a traffic stop of the defendant's vehicle was not based on the commission of a traffic violation or illegal act, but instead was based on the unreliable information provided by a concerned citizen to a police sergeant which amounted to hearsay gleaned from an overheard conversation, and did not provide the officer with the type of "inside information" that would not have been known to the public at large, the defendant's motion to suppress the marijuana seized as a result of the traffic stop was properly granted. State v. Holloway, 286 Ga. App. 129, 648 S.E.2d 473 (2007).
Search of person on reasonable suspicion after routine traffic stop.
- Motion to suppress was properly denied when an officer, who pulled over a van on a traffic stop for following too closely, had justification to investigate the driver and the driver's passenger since a reasonable suspicion of criminal activity accompanied the totality of the facts on the stop: (1) the officer noticed an unusual amount of activity when the officer turned the officer's lights on to pull the car over; (2) the van did not pull over for a mile or two after the officer turned the officer's lights on, which was highly unusual; and (3) the driver and the passenger were extremely nervous when questioned and the driver and the passenger gave conflicting reports on why the driver and the passenger were traveling in the area. Rucker v. State, 266 Ga. App. 293, 596 S.E.2d 639 (2004).
Search after investigative stop for DUI.
- When the state presented uncontradicted evidence that the police stopped the defendant for driving while under the influence after seeing the defendant's vehicle weaving over the yellow centerline, this was sufficient to support the legality of a search and seizure. State v. Haddock, 235 Ga. App. 726, 510 S.E.2d 561 (1998).
Defendant's continued detention proper.
- Defendant's motion to suppress was properly denied as the defendant's continued detention after an investigatory stop was justified based on a marijuana smell in the vehicle, the defendant's nervousness, and that the defendant twice attempted to go to the vehicle to get the defendant's gun, which was in a bag with methamphetamine. Wright v. State, 272 Ga. App. 423, 612 S.E.2d 576 (2005).
Trial court erred in finding that the defendant's continued detention after a license check was without legal justification as a police sergeant, after detecting an odor of alcohol from the defendant's vehicle, was legally justified to determine whether the defendant was driving while under the influence, and could not do so without conducting field sobriety tests; moreover, a search of the defendant occurred only after the defendant granted the officer consent to do so and the consent was voluntarily given. State v. Johnson, 282 Ga. App. 102, 637 S.E.2d 825 (2006), cert. denied, No. S07C0374, 2007 Ga. LEXIS 58 (Ga. 2007).
Trial court properly denied a defendant's motion to suppress the evidence of drug contraband found in the defendant's vehicle after the vehicle was stopped due to a broken taillight as the officers had the right to detain the defendant while awaiting word as to possible outstanding warrants; a certified drug recognition expert questioned the defendant and observed the defendant having bloodshot eyes, droopy eyelids, and displaying relaxed inhibitions; and the defendant sufficiently and voluntarily consented to the search of the vehicle as was shown on a videotape of the traffic stop, despite the defendant being handcuffed at the time. Maloy v. State, 293 Ga. App. 648, 667 S.E.2d 688 (2008).
Trial court did not err in denying the defendant's motion to suppress marijuana a police officer found in a vehicle in which the defendant was a passenger because the defendant was legally detained when the officer sought the driver's consent to search, and the officer made the officer's request shortly after completing the officer's check of the occupants' identification, which was within six minutes of initiating the stop; having found that the defendant was not subject to an illegal detention, the trial court did not err in further concluding that the defendant lacked standing to challenge the search on other grounds. Baker v. State, 306 Ga. App. 99, 701 S.E.2d 572 (2010).
Detention not prolonged.
- Trial court did not err in denying the defendant's motion to suppress because the officer was authorized to perform a traffic stop; since the officer asked the defendant about marijuana around the same time the officer was verifying the defendant's license, the officer did not unreasonably prolong the detention. Parker v. State, 317 Ga. App. 93, 730 S.E.2d 717 (2012).
Order granting the defendant's motion to suppress was reversed because the undisputed evidence showed that the open-air dog sniff occurred while the officer conducted the mission of the traffic stop, and it did not prolong the traffic stop since the K-9 handler conducted the search while the officer was still checking the driver's license. State v. Herman, 344 Ga. App. 359, 810 S.E.2d 183 (2018).
Search incident to an arrest following a traffic stop.
- Trial court did not err in denying the defendant's motion to suppress the crack cocaine found in a search incident to an arrest of the defendant for having an open container of alcohol following a traffic stop because the defendant's car was parked in a high crime area so that the traffic stop was legally permissible. Welch v. State, 263 Ga. App. 70, 587 S.E.2d 220 (2003).
Defendant's motion to suppress was properly denied because methamphetamine and an illegal weapon found in the defendant's vehicle gave an officer probable cause to arrest the defendant; the resulting search of the defendant's vehicle, which yielded additional methamphetamine and a large quantity of marijuana, was justified as a search incident to a lawful arrest. Wright v. State, 272 Ga. App. 423, 612 S.E.2d 576 (2005).
Trial court did not err in denying a defendant's motion to suppress evidence in the defendant's prosecution for financial transaction card theft under O.C.G.A. § 16-9-31; the defendant's repeated reaching into the glove compartment while trying to find a car rental agreement, coupled with the defendant's initial lack of cooperation when asked to exit the car and the fact that the defendant reached to the defendant's waistband several times, provided a police officer with the basis for conducting a pat-down search, which led to a broader search when the officer observed a bag of marijuana sticking out of the defendant's waist band resulting in the defendant's arrest. Leonard v. State, 281 Ga. App. 184, 635 S.E.2d 795 (2006).
Inability to read license plate justifying stop.
- Trial court erred in granting the suppression motions filed by both the first and second defendant, who occupied the vehicle stopped as a violation of O.C.G.A. § 40-2-41 provided a sufficient reason for the traffic stop; moreover, the trial court erred in ruling that some portions of O.C.G.A. § 40-2-41 did not apply to the out-of-state license plate on the subject vehicle and by ruling that even though the word "Carolina" on the license plate was not legible and, hence, there was no violation of the statute because the police officer testified about an inability to recognize it as a South Carolina license plate. State v. Davis, 283 Ga. App. 200, 641 S.E.2d 205 (2007).
Investigatory stop for taillight violation.
- Grant of the defendant's motion to suppress was not clearly erroneous as the officer stopping the defendant's automobile for an investigatory stop provided no factual basis for believing that the defendant's older model automobile violated the taillight specifications in O.C.G.A. § 40-8-23(e) simply because newer models violated the statute; further, the trial court could have found that the officer's testimony that the officer had conducted research into the newer models' taillights was less than credible. State v. Keddington, 264 Ga. App. 912, 592 S.E.2d 532 (2003).
Dark tinted windows.
- Defendant's vehicle was properly stopped for following too closely to another vehicle even though the police officer making the stop indicated at the suppression hearing that the officer initially followed the vehicle only due to the vehicle's excessive window tint. Perry v. State, 274 Ga. App. 551, 618 S.E.2d 172 (2005).
Trial court erred in granting the defendants' motion to suppress the drug evidence seized following a traffic stop for a violation of O.C.G.A. § 40-8-73.1 as an officer's observations of a vehicle's dark tinted windows, and belief that the windows violated the statute were sufficient to justify the stop; moreover, a free air search by a drug-sniffing dog did not violate the defendants' Fourth Amendment rights. State v. Simmons, 283 Ga. App. 141, 640 S.E.2d 709 (2006).
Stop based on seat belt violation.
- Consensual search upon a traffic stop for a seatbelt violation supported the trial court's denial of a motion to suppress as the search conducted pursuant to the defendant's consent was not a search based solely on the defendant's failure to wear a seatbelt. Blitch v. State, 281 Ga. 125, 636 S.E.2d 545 (2006).
Because sufficient evidence existed to support a finding that the arresting officer had a clear and unobstructed view of the defendant not wearing a seat belt as required by O.C.G.A. § 40-8-76.1(f), the officer's subsequent stop of the defendant's vehicle was supported by probable cause, making suppression of the evidence thereafter seized unwarranted; as a result, reconsideration of the court's ruling did not amount to an abuse of discretion. Schramm v. State, 286 Ga. App. 156, 648 S.E.2d 392 (2007).
Traffic stop ended prior to consent.
- Defendant was entitled to suppression of marijuana found in a potato chip bag in a car in which the defendant was a passenger because a police officer improperly asked the driver for consent to search the vehicle after handing the driver a citation for a seatbelt violation; the traffic stop ended before the driver gave consent. State v. Felton, 297 Ga. App. 35, 676 S.E.2d 434 (2009).
Speeding justified stop.
- Defendant's motion to suppress was properly denied; the stop of the defendant was reasonable because the defendant was exceeding the speed limit and crossed the center line twice. Morrison v. State, 272 Ga. App. 34, 611 S.E.2d 720, aff'd, 280 Ga. 222, 626 S.E.2d 500 (2006).
Trial court did not err in denying the defendant's motion to suppress evidence a police officer obtained through a traffic stop of a driver's vehicle because the stop of the defendant and the driver was valid since the officer's observation that the vehicle was traveling 40 miles per hour in a 35-mile-per-hour zone authorized the officer to initiate the traffic stop, and the officer was on the lookout for the vehicle based on information relayed by the county drug squad; the stop was not illegally extended because it did not matter whether the request to search came during the traffic stop or immediately thereafter, and there was no illegal detention since the questioning was almost instantaneous, all indications were that the search of the vehicle was by consent of the driver. Hammont v. State, 309 Ga. App. 395, 710 S.E.2d 598 (2011).
Purpose of stop not related to later offense.
- Fact that the charge against the defendant of driving as an habitual violator of motor vehicle laws was not related to the original purpose of the stop did not require the exclusion of the arresting officer's testimony relating to the charge if the stop was proper. State v. Roe, 211 Ga. App. 129, 438 S.E.2d 186 (1993).
Suppression of evidence following impoundment without basis.
- Trial court properly granted the defendant's motion to suppress evidence obtained after the defendant's car was impounded during a traffic stop because, even though the officer had reasonable articulable suspicion to initiate the traffic stop based on criminal database search results that the defendant's car was not insured, once the defendant provided proof of insurance in an acceptable manner, the officer did not have probable cause to arrest the defendant or issue the defendant a citation; and, without probable cause to issue the citation, the officer had no basis for impounding the defendant's vehicle. State v. Lewis, 344 Ga. App. 630, 811 S.E.2d 436 (2018).
Defendant's continued detention after traffic stop improper.
- Trial court erred in denying the defendant's motion to suppress evidence deputies seized from the defendant's car because the deputies did not have reasonable grounds upon which to continue to detain the defendant after the deputies called for a drug dog; the state offered no evidence that the deputies still were investigating the defendant's failure to properly signal a right turn when the deputies called for a canine unit to come to the scene and detained the defendant until the dog arrived or that the deputies had a reasonable suspicion that the defendant was involved in some criminal activity besides the traffic violation when the deputies called for the drug dog and continued to detain the defendant until the dog arrived and sniffed the car. Dominguez v. State, 310 Ga. App. 370, 714 S.E.2d 25 (2011).
Suppression motion properly denied.
- Drugs were lawfully seized because the defendant's commission of a traffic offense pursuant to O.C.G.A. § 40-2-6.1 allowed an officer to make a valid traffic stop of the defendant's vehicle and thus allowed the officer to ask for consent to search and use a drug-sniffing dog to sniff the exterior of the vehicle. Thus, the defendant's motion to suppress was properly denied. Thomas v. State, 289 Ga. App. 161, 657 S.E.2d 247 (2008), cert. dismissed, No. S08C0959, 2008 Ga. LEXIS 491 (Ga. 2008).
Suppression motion erroneously granted on basis of venue.
- Grant of defendant's motion to suppress on the basis of venue was reversed because the state did not need to establish venue at the pretrial hearing on the defendant's motion to suppress as it was not relevant to the issues raised in the motion, which challenged the reasonable basis for the traffic stop or whether the resulting search of the defendant and the defendant's vehicle were supported by probable cause. State v. Wallace, 338 Ga. App. 611, 791 S.E.2d 187 (2016).
6. Videotape
Identification by videotape.
- Because a victim's identification of the defendant as the robber was corroborated by other witnesses, the evidence was sufficient to support the defendant's conviction for armed robbery as well as to provide probable cause for a search warrant; because it was proper for the witnesses to identify the defendant from a videotape, the trial court did not err by denying the defendant's motions to suppress and in limine. Bradford v. State, 274 Ga. App. 659, 618 S.E.2d 709 (2005).
Failure to proffer videotape evidence.
- Order suppressing a videotape made by one of the officers involved in the stop of the defendant was upheld on appeal as the state failed to proffer the videotape for inclusion in the record; hence, nothing was presented for the appeals court to review. State v. Winther, 282 Ga. App. 289, 638 S.E.2d 428 (2006).
Suppression of videotape not required.
- Trial court did not err by denying the motion to suppress because the proper implied consent warning, as enacted by the General Assembly, was read to the defendant without error, there was nothing in the record supporting the defendant's contention that the state suppressed the videotape of the stop in bad faith, and the stop was not pretextual as the corporal observed the defendant staggering, the defendant's car weaving, and erratic driving prior to stopping the defendant. Monas v. State, 270 Ga. App. 50, 606 S.E.2d 80 (2004).
It was not error for the trial court to refuse to suppress a portion of the defendant's videotaped interview with police on the basis that the statements about the defendant's alcohol consumption improperly placed the defendant's character at issue because generally an adult's consumption of alcohol was irrelevant to the issue of character. Sanford v. State, 284 Ga. 785, 671 S.E.2d 820 (2009).
7. Youthful Offenders
O.C.G.A.
§ 17-5-30 does not apply to searches by school officials. - Granting that public primary and secondary school students have minimal rights under U.S. Const., amend. 4 to be free from searches and seizures by school officials, nonetheless the exclusionary rule is not applicable to enforce those rights, and students aggrieved by the action of school officials must fall back upon such other legal remedies as applicable law may allow the students. State v. Young, 234 Ga. 488, 216 S.E.2d 586, cert. denied, 423 U.S. 1039, 96 S. Ct. 576, 46 L. Ed. 2d 413 (1975).
Applicability to searches by school officials.
- Trial court's denial of the defendant's motion to suppress evidence obtained from the defendant's classroom computer, pursuant to O.C.G.A. § 17-5-30, was proper when a school principal and school technical expert accessed the defendant's computer, and there was no indication that they were acting in the capacity of, or at the request of, law enforcement personnel; the exclusionary rule of U.S. Const., amend. 4 is only applicable to actions undertaken by law enforcement officers and does not apply to the actions of school officials. Joines v. State, 264 Ga. App. 558, 591 S.E.2d 454 (2003).
Applicability to searches by private individuals.
- Upon a de novo review of the trial court's application of the law to the facts, because a warrantless search of the defendant's gym locker was conducted by private citizens and not by law enforcement, the search did not implicate the Fourth Amendment; hence, the trial court did not err in denying the defendant's motion to suppress the evidence seized as a result of the search. Hobbs v. State, 272 Ga. App. 148, 611 S.E.2d 775 (2005).
Search of juvenile at school not authorized.
- Law enforcement officer, who was acting as an agent for a school principal in searching a juvenile, upon reports that the juvenile had been overheard making arrangements to sell drugs on school grounds, was not authorized to search the juvenile absent probable cause to do so; thus, when the juvenile was searched and drugs were found, the court properly granted the juvenile's motion to suppress. State v. K.L.M., 278 Ga. App. 219, 628 S.E.2d 651 (2006).
Juvenile defendant's statement not suppressed.
- Given an analysis of the Riley factors, and the fact that the juvenile defendant knowingly and voluntarily waived any constitutional rights due under Miranda, suppression of a custodial statement to law enforcement was not required. Green v. State, 282 Ga. 672, 653 S.E.2d 23 (2007).
Warrants and Affidavits
Absence of warrant is not material either to guilt or punishment. Gilreath v. State, 247 Ga. 814, 279 S.E.2d 650 (1981), cert. denied, 456 U.S. 984, 102 S. Ct. 2258, 72 L. Ed. 2d 862 (1982).
Arrest on valid warrant.
- Defendant's motion to suppress was properly denied as to an arrest warrant that was supported by probable cause since a witness identified the defendant and stated that the defendant was present at the murder scene and another witness confirmed the identification through a photo lineup and testified to observing the defendant carry out the actual crime; even if the affidavit contained allegedly misleading information that one witness was the victim's cousin and that the defendant was identified by witnesses via a six-photo lineup, the remaining information was still sufficient to support the probable cause finding. Waters v. State, 281 Ga. 119, 636 S.E.2d 538 (2006).
Invalid arrest warrant.
- Because a search yielding evidence used against the defendant was incident to the execution of an arrest warrant which was later invalidated, and no good faith exception existed, the evidence seized against the defendant should have been suppressed as the arresting officer had no other basis to search the car in which the defendant was a passenger. Register v. State, 281 Ga. App. 822, 637 S.E.2d 761 (2006), cert. denied, 2007 Ga. LEXIS 216 (Ga. 2007).
Affidavit for search warrant insufficient.
- Lack of information about informants and lack of corroboration to show reliability required the trial court to grant the defendant's motion to suppress. Elom v. State, 248 Ga. App. 273, 546 S.E.2d 50 (2001).
Defendant, who was charged with cocaine trafficking and possession of marijuana with intent to distribute, was entitled to suppression of evidence from the search of the defendant's residence because the search warrant was based on an officer's affidavit containing untrue information; the officer's interview with a person, who was arrested with the defendant, did not contain information, which was included in the officer's affidavit, that this person saw the defendant retrieve drugs from the home and hide the drugs in the woods or that this person saw drug paraphernalia in the defendant's residence. State v. Willis, 302 Ga. App. 355, 691 S.E.2d 261 (2010).
Denial of motion to suppress was reversed because the affidavit failed to provide any underlying details that would allow the magistrate to evaluate whether the conclusions were based on specific facts (derived, for example, from physical evidence or eyewitness testimony) rising to the level of probable cause or whether the conclusions were instead based on mere speculation or presumptions. Willoughby v. State, 315 Ga. App. 401, 727 S.E.2d 194 (2012).
Officer's affidavit insufficient.
- Police officer's failure to independently corroborate any of the information provided by source A (an unidentified third party) to an anonymous tipster rendered the officer's affidavit insufficient to establish the reliability of either source. Absent a showing that the information in the affidavit was reliable, the trial court erred in denying the motion to suppress. Sutton v. State, 319 Ga. App. 597, 737 S.E.2d 706 (2013).
Affidavit for search warrant sufficient.
- Even if a magistrate improperly relied upon a bloody sheet seen in plain view in a defendant's home as a basis for issuing a search warrant for the home, the arrest warrant still contained ample evidence from which to find probable cause that the defendant committed a battery on a victim inside the defendant's home; the evidence included the victim's physical injuries, the victim's statement that the defendant had shoved a curling iron down the victim's throat, and the presence of other blood observed inside the house after deputies entered in search of the assault victim. Lord v. State, 297 Ga. App. 88, 676 S.E.2d 404 (2009).
Once the trial court found that the detective's affidavit contained sufficient facts for the issuance of the search warrant, it was up to the defendant to produce evidence to support the defendant's motion to suppress. Defendant not only failed to do so but failed to insist on a full evidentiary hearing; thus, the state met the state's burden of proof as a matter of law and the denial of the defendant's motion to suppress was mandated. Adams v. State, 300 Ga. App. 294, 684 S.E.2d 404 (2009).
Based on the totality of the circumstances, an affidavit provided a magistrate with a substantial basis for concluding that probable cause existed to believe that contraband would be found in two vehicles because the affidavit in support of the warrant recited the positive alert by an officer's canine as well as the marijuana growing operation in the residence from which the vehicles drove away. Prado v. State, 306 Ga. App. 240, 701 S.E.2d 871 (2010).
Trial court did not err in denying the defendant's motion to suppress evidence a detective found in the defendant's home because given the totality of the circumstances, the magistrate who issued the search warrant was authorized to conclude that there was a fair probability that contraband would be found at the defendant's home; the detective's affidavit in support of the warrant contained ample facts by which the magistrate could independently evaluate the veracity and reliability of anonymous informants and the informants' information, and a confidential informant's controlled buy of marijuana from the defendant at the defendant's residence on the day the detective applied for the warrant independently confirmed that illegal drug activities were taking place at the home. Taylor v. State, 306 Ga. App. 175, 702 S.E.2d 28 (2010).
Trial court did not err in denying the defendant's motion under O.C.G.A. § 17-5-30 to suppress evidence seized pursuant to search warrants because the reconstituted affidavit supported the issuance of the search warrant; an agent of the Georgia Bureau of Investigation testified that an antifreeze container smelling of gasoline was found in the warranted search of a car registered in the defendant's name and located in the yard of the home of the defendant's parents, and the affidavit executed as part of the application for a warrant to search the car set out the facts surrounding the crime, that the victim's body had been transported from the place where the victim was killed to the site where the victim's body was found, and that the object of the warrant was one of two vehicles registered to the defendant that the defendant likely used to move the body. Glenn v. State, 288 Ga. 462, 704 S.E.2d 794 (2010).
Trial court did not err in denying the defendant's motion under O.C.G.A. § 17-5-30 to suppress evidence seized pursuant to search warrants because the applications for search warrants to search the defendant's apartment and the car for which registration information was given in the detective's affidavit contained sufficient information from which a judicial officer could determine there was a fair probability that evidence of a crime would be found at those sites as the sites were likely methods of transporting the victim and the likely destination of appellant and the victim; in the detective's affidavit, the detective related the discovery of the victim's body and the statements of the victim's friend and roommate concerning the victim's relationship with the defendant, and the victim's pregnancy and identification of the defendant as the father, who was not pleased about the pregnancy. Glenn v. State, 288 Ga. 462, 704 S.E.2d 794 (2010).
Trial court did not err in denying the defendant's motion to suppress evidence seized from a search warrant authorizing entry into the defendant's home because the affidavit submitted in support of the warrant provided a sufficient basis for the magistrate to make a practical, commonsense decision that there was a fair probability that evidence of sexual exploitation of children would be found at the defendant's residence; the National Center for Missing and Exploited Children forwarded the information it received from a security specialist employed by the host of the website to the Georgia Bureau of Investigation (GBI), and the affidavit of a special agent with the GBI set forth facts that showed both the reliability and basis of knowledge of the specialist. James v. State, 312 Ga. App. 130, 717 S.E.2d 713 (2011), cert. denied, No. S12C0347, 2012 Ga. LEXIS 227 (Ga. 2012).
Trial court erred by granting the defendant's motion to suppress all of the evidence seized at a residence because the affidavits underlying the warrants provided the magistrate with sufficient information to support probable cause as the evidence in the affidavits sufficiently corroborated the information received from the informant and established a nexus between the apartment and another address. Based on the suspect's vehicle, the investigators conducted surveillance on the apartment and the other address, a search of the other address uncovered large amounts of cocaine and methamphetamine, and a background check on the suspect connected the suspect to both the apartment and the other address. State v. Perez, 349 Ga. App. 707, 824 S.E.2d 804 (2019).
Evidence seized as result of warrant.
- Because the magistrate was presented with a substantial basis for concluding that evidence of child molestation would be found in the cameras and film located in the defendant's car, and such enabled the magistrate to form probable cause to support the issuance of a search warrant, the trial court properly denied the defendant's motion to suppress the evidence seized as a result of the warrant. Manders v. State, 281 Ga. App. 786, 637 S.E.2d 460 (2006).
Trial court properly denied the defendant's motion to suppress the evidence seized pursuant to a search warrant as: (1) there was a presumption of reliability as to the report of a police officer or undercover agent in the line of duty to a fellow officer in support of the warrant; (2) the affidavit attached to the warrant set forth sufficient facts to establish the reliability of the informant; and (3) a search warrant for the defendant's home was not even necessary because at the time of the search the defendant was on probation. McTaggart v. State, 285 Ga. App. 178, 645 S.E.2d 658 (2007).
Because a search warrant affidavit provided the issuing magistrate with sufficient probable cause connecting the defendant to the residence of a female friend for the magistrate to logically conclude that there was a fair probability that evidence of a crime would be found therein, despite the omission of additional evidence by the affiant, an order granting suppression of the evidence seized therein was reversed; moreover, the police did not have to observe the defendant living with the female, based on the information provided to the police that the pair could still be living together. State v. Hunter, 282 Ga. 278, 646 S.E.2d 465 (2007).
Trial court did not err in denying the defendant's motion to suppress the DNA evidence obtained pursuant to a search warrant as the warrant, given the totality of the circumstances, was based upon sufficient fingerprint evidence which provided an accurate foundation for identifying the defendant as a suspect in all four crimes. Carruth v. State, 286 Ga. App. 431, 649 S.E.2d 557 (2007).
Trial court properly denied suppression of the defendant's blood sample for a DNA comparison pursuant to a particularized search warrant seeking the sample as the warrant and the attached affidavit when read together particularly described the evidence to be seized and gave the executing officers adequate notice of the search warrant's scope and command. Holloway v. State, 287 Ga. App. 655, 653 S.E.2d 95 (2007).
Because the application for a search warrant established that the victim lived in a residence at a specific address, that the defendant lived in the basement apartment located in the residence, that the defendant had severely beaten the victim, and that there was a fair probability that evidence of the crime could be found either in the defendant's apartment or in the victim's part of the residence, probable cause existed to search the defendant's basement apartment and the victim's part of the residence; accordingly, the trial court properly denied the defendant's motion to suppress the evidence found in the apartment. Fletcher v. State, 284 Ga. 653, 670 S.E.2d 411 (2008).
Trial court did not err in refusing to suppress the defendant's hospital records, which showed that the defendant used drugs on the day the defendant shot the victim, because on the evidence's face, the affidavit for the search warrant issued for the records demonstrated a fair probability that evidence of the defendant's drug use would be found in the hospital records; the alleged omissions in the affidavit, which was based on the statements of the defendant's spouse, had the potential to impeach the statements made by the spouse, but the omissions did not eliminate the existence of probable cause because if the omitted material were included in the warrant, probable cause would still exist. Herrera v. State, 288 Ga. 231, 702 S.E.2d 854 (2010).
Failure to leave a copy of the supporting affidavit at the searched premises did not render a warrant facially void for lack of particularity since the warrant referred to the attached affidavit, which specified the exact location of the property to be searched and the particular items to be seized and there was no dispute that the location, the scope of the search, and seizure conformed to the warrant; thus, denial of defendant's motion to suppress was not in error. Battle v. State, 266 Ga. App. 532, 597 S.E.2d 417 (2004).
Trial court did not err in denying the defendant's motion to suppress evidence police officers found at a residence because the fact that the investigator who submitted the affidavit for the search warrant did not leave a copy of the affidavit with the warrant at the premises did not render the warrant invalid; the warrant satisfied the particularity requirement of the Fourth Amendment and Ga. Const. 1983, Art. I, Sec. I, Para. XIII on the warrant's face because the warrant listed the address of the place to be searched and contained a description of the home, and the warrant also listed items to be seized, including marijuana, weighing devices, and other paraphernalia used in the distribution of drugs. Pass v. State, 309 Ga. App. 440, 710 S.E.2d 641 (2011).
Failure to tender warrant or affidavit.
- Trial court erred in denying the defendant's motion to suppress because the state did not carry the state's burden to prove the validity of the warrant in that the affidavit supporting the warrant was not tendered into evidence. Smith v. State, 324 Ga. App. 542, 751 S.E.2d 164 (2013).
Warrant for arrest of defendant's passenger justified search.
- Trial court properly denied a defendant's motion to suppress the evidence of drugs and a handgun found during the warrantless search of the defendant's vehicle as the arrest of the defendant's passenger on an outstanding warrant authorized the stop of the defendant's vehicle and the mobility of the car, coupled with the existence of probable cause to believe the car contained marijuana, based on the officer smelling the marijuana upon approaching the vehicle, authorized the search. Somesso v. State, 288 Ga. App. 291, 653 S.E.2d 855 (2007), cert. denied, No. S08C0505, 2008 Ga. LEXIS 281 (Ga. 2008).
Affidavit containing false statements and omitting material information.
- In reviewing the sufficiency of an affidavit containing false statements and omitting material information, the false statements must be deleted, the omitted truthful material must be included, and the affidavit must be reexamined to determine whether probable cause exists to issue a search warrant. Redding v. State, 192 Ga. App. 87, 383 S.E.2d 640 (1989).
Proof that facts in affidavit false may prove search illegal.
- Proof that the facts sworn to in the supporting affidavit were actually false might well be proof of illegal execution of a search warrant. Wood v. State, 118 Ga. App. 477, 164 S.E.2d 233 (1968).
Search exceeded the warrant.
- Because the scope of the search exceeded the warrant and the search was excessive, the court erred in denying the motion because of the difficulty in enumerating the items improperly seized; the remedy is the suppression and return of the unlawfully seized items. Grant v. State, 220 Ga. App. 604, 469 S.E.2d 826 (1996).
Search did not exceed warrant.
- Because a search warrant referred to the crimes of possession of methamphetamines and theft by receiving stolen property, the warrant did not violate the particularity requirement; therefore, the trial court did not err in denying the defendant's motion to suppress. Allison v. State, 299 Ga. App. 542, 683 S.E.2d 104 (2009).
Insufficient evidence of existence of valid warrant.
- State failed to meet the state's burden under O.C.G.A. § 17-5-30(b) of proving that a search of a defendant's hotel room was made pursuant to a valid warrant because the state failed to produce the warrant or supporting affidavit, and the sheriff's testimony concerning the warrant was hearsay because the sheriff had no personal knowledge of the warrant. Sosebee v. State, 303 Ga. App. 499, 693 S.E.2d 838 (2010).
Warrant and affidavit in record prior to suppression hearing.
- Because the testifying officer had personal knowledge concerning the existence of a valid search warrant and the warrant and supporting affidavit were in the record prior to the suppression hearing, the state met the state's burden of producing evidence showing the validity of the warrant since the defendant offered nothing in opposition, the trial court properly denied the defendant's motion to suppress. Tyre v. State, 323 Ga. App. 37, 747 S.E.2d 106 (2013).
Evidence Acquired Unlawfully
Evidence seized as result of illegal police activity.
- Law proscribes only unreasonable searches and seizures and prohibits the use of evidence seized as a result of lawless police activity. State v. Sanders, 155 Ga. App. 274, 270 S.E.2d 850 (1980).
Trial court did not err in granting the defendant's motion to suppress statements, drugs, paraphernalia, and cash the police found after searching the defendant's home as fruit of the poisonous tree because although the police had authority to enter the house for the purpose of apprehending the defendant, the subsequent reentry by the police was illegal since an officer reentered the house without a warrant, valid consent, or exigent circumstances; both before and at the time of the defendant's arrest, the defendant told the police not to enter the house, and it could not be assumed that the victim's need for assistance justified the officer's reentry because the exigent circumstances authorizing entry for the limited purpose of effecting the defendant's arrest had expired. State v. Driggers, 306 Ga. App. 849, 702 S.E.2d 925 (2010).
Deputy's discovery of the tailgate allegedly from the stolen truck was problematic because the deputy did not have a warrant or consent when the deputy went behind the house and, thus, the deputy's observation of the tailgate behind the house was illegal, and since the state did not show that the observation of the battery charger alone supported the issuance of the search warrant, the defendant's motion to suppress should have been granted. Bowman v. State, 332 Ga. App. 407, 773 S.E.2d 33 (2015).
No exigent circumstances justifying entry.
- Because the state failed to carry the state's burden of establishing exigent circumstances justifying the entry of the police into defendants' trailer to arrest persons for underage drinking, the trial court properly granted the defendants' motion to suppress the evidence seized from the unlawful entry. State v. Ealum, 283 Ga. App. 799, 643 S.E.2d 262 (2007).
Suppression of marijuana and cocaine was proper after three uniformed officers stepped into the codefendant's hotel room without permission and asked about luggage and other bags in the room, because following the officers' entry to retrieve three zipped bags, which the codefendant's said were not theirs, the second defendant acquiesced in an officer's request to search the second defendant's bag and the state did not fulfill the state's burden to show that consent for the search was voluntary. State v. Hamby, 317 Ga. App. 480, 731 S.E.2d 374 (2012).
Exigent circumstances not found.
- Defendant's suppression motion was properly granted when: (1) an officer executing an arrest warrant for a third person had unreasonably looked through the defendants' window, discovering the defendants using marijuana; (2) the officers did not identify themselves as police officers when the officers knocked at the defendants' door; (3) defendants hid the marijuana before opening the door; (4) the police confronted defendants about the marijuana after the police determined that the third person was not in the house; and (5) the appellate court could not conclude, as a matter of law, that there were exigent circumstances justifying the warrantless seizure of the drugs, in that the drugs were in danger of being destroyed, simply because the defendants hid the drugs before opening the door. State v. Schwartz, 261 Ga. App. 742, 583 S.E.2d 573 (2003).
Trial court erred in denying the defendant's motion to suppress evidence as the evidence that the police officer seized was obtained after the officer made a warrantless entry into the defendant's apartment without consent and without exigent circumstances to justify that entry; thus, the contraband that the officer observed or discovered as part of that entry was observed or discovered as a result of the officer being in a location where the officer did not have a lawful right to be. Leon-Velazquez v. State, 269 Ga. App. 760, 605 S.E.2d 400 (2004).
Although police officers had probable cause to investigate a crime, the Fourth Amendment prohibited the police from entering the defendant's home or the home's curtilage without a warrant absent consent or a showing of exigent circumstances; consequently, the trial court erred by denying defendant's motion to suppress evidence of a ten-foot high marijuana plant plainly growing in defendant's backyard. Kirsche v. State, 271 Ga. App. 729, 611 S.E.2d 64 (2005).
Trial court erred in denying the defendant's motion to suppress as the back yard and the back door of the defendant's home fell within the general definition of curtilage of the home and the state failed to show an exception, such as exigent circumstances, to the homeowners' Fourth Amendment right to protection of the back yard/door curtilage of the home. Arp v. State, 327 Ga. App. 340, 759 S.E.2d 57 (2014).
Evidence from exigent circumstances searches.
- Given the existence of exigent circumstances, law enforcement officers were justified in searching the defendant's home without a warrant in order to determine if a child was present and in need of medical attention or in danger of imminent harm; as a result, the trial court properly denied the defendant's motion to suppress evidence seized as a result of that search. Richards v. State, 286 Ga. App. 580, 649 S.E.2d 747 (2007), cert. denied, No. S07C1766, 2007 Ga. LEXIS 702 (Ga. 2007).
Trial court did not err in admitting into evidence the murder weapon and photographs of the crime scene because the search of the defendant's residence was authorized due to the exigent circumstances; officers arrived at the residence to conduct a welfare check and knocked on the door, which caused the door to open slightly, allowing the officers to see the victim lying motionless on the couch, and after the victim failed to respond to the officers' calls, the officers were authorized to proceed into the residence immediately to come to the victim's aid. Gibson v. State, 290 Ga. 6, 717 S.E.2d 447 (2011).
Trial court did not err in denying the defendant's motion to suppress photographs obtained subsequent to the police officers' entry into the defendant's home because the officers' entry was authorized by the exigent circumstances exception to the warrant requirement of the Fourth Amendment; the trial court was authorized to find that the age of the defendant's children, the children's undisputed inability to care for themselves, and the lack of adult supervision due to the defendant's absence and their father's arrest constituted an exigent circumstance that authorized the officers' entry into the residence for the purpose of temporarily supervising the children until a responsible adult arrived to relieve the officers, and once the officers were legally in the house pursuant to the exigent circumstances, the officers were authorized to photograph items of potential evidentiary significance that were in plain view, specifically, the family's living conditions. Staib v. State, 309 Ga. App. 785, 711 S.E.2d 362 (2011).
If police know about crime, warrantless arrest legal.
- If law enforcement officers have sufficient personal knowledge of the acceptance of a bribe to justify the officers' arrest of appellant without a warrant, the arrest is legal without a warrant and the exclusionary rule of Ga. L. 1966, p. 567, § 13 (see O.C.G.A. § 17-5-30) is not applicable to the evidence seized incident to that arrest. Humphrey v. State, 231 Ga. 855, 204 S.E.2d 603, cert. denied, 419 U.S. 839, 95 S. Ct. 68, 42 L. Ed. 2d 66 (1974).
Evidence and motion failing to prove alleged illegal warrantless search.
- If a written motion to suppress evidence is based on allegations of an illegal search without a warrant, and a seizure with a warrant, but there is nothing in the written motion to support a contention that the search, if made with a warrant, was illegal for any of the reasons stated in the statute, and if the evidence adduced on the hearing authorized a determination that the search itself took place with a warrant, the motion to suppress is properly denied. Raines v. State, 123 Ga. App. 794, 182 S.E.2d 491 (1971).
Failure to file motion to suppress to challenge.- Because the defendant did not file a timely motion to suppress any physical evidence in the case, the defendant waived any right to claim that the underlying search which produced the physical evidence was unconstitutional; thus, the defendant was not entitled to exclusion of testimony describing the physical evidence on the basis that the testimony was the fruit of an unconstitutional search. Riley v. State, Ga. App. , S.E.2d (July 21, 2020).
If illegal arrest, fruits not admissible.
- If an arrest without a warrant is illegal, the search is unlawful and the property seized as a result of the arrest should be suppressed as evidence by the trial court. Humphrey v. State, 231 Ga. 855, 204 S.E.2d 603, cert. denied, 419 U.S. 839, 95 S. Ct. 68, 42 L. Ed. 2d 66 (1974).
If there is no legal justification for the arrest, the unlawful fruits may not be introduced in evidence. Moore v. State, 155 Ga. App. 299, 270 S.E.2d 713 (1980).
Trial court erred in denying a defendant's motion to suppress because the state did not establish sufficient probable cause to arrest the defendant for driving under the influence since the state offered no evidence showing that the defendant's driving ability was impaired due to alcohol consumption; evidence that an officer smelled alcohol on the defendant's breath, that an alco-sensor test revealed the presence of alcohol, and that the defendant admitted that the defendant had been drinking "earlier in the day" was insufficient as a matter of law to constitute probable cause to arrest the defendant for driving under the influence. Handley v. State, 294 Ga. App. 236, 668 S.E.2d 855 (2008).
Fruits of pretextual arrest inadmissible.
- When the state never physically produced at any point in the criminal proceedings and when the record did not otherwise confirm the existence of the alleged arrest warrant through which the state justified intruding into the defendant's home, resulting in the eventual search-warrant seizure of a controlled substance discovered pursuant to that arrest, a motion to suppress was improperly denied. Baez v. State, 206 Ga. App. 462, 425 S.E.2d 882 (1992).
Seizure for crime committed independent of warrant.
- Results of a breath test obtained following the stop of the defendant pursuant to an arrest warrant on a family violence charge were untainted by any infirmity in the arrest warrant; the seizure of the breath test evidence resulted from a "second" arrest arising from the police officer's having witnessed the commission of an independent crime. King v. State, 211 Ga. App. 12, 438 S.E.2d 93 (1993).
Evidence obtained under a void warrant, is evidence illegally obtained and the taint of illegal procurement forbids its use as evidence. Anderson v. State, 155 Ga. App. 25, 270 S.E.2d 263 (1980).
Backpack too far from defendant to fall under search incident to arrest exception.
- State failed to meet the state's burden to prove that the warrantless search of the defendant's backpack was lawful as the backpack was under the exclusive control of the officers and the defendant was handcuffed, leaving no danger that the defendant would gain access to the backpack to seize the weapon or destroy evidence. Huff v. State, 346 Ga. App. 120, 816 S.E.2d 304 (2018).
Requirements for Motion
1. In General
Motion must state facts showing search unlawful.
- All motions to suppress, whether based on statutory or nonstatutory grounds, must state facts and not merely conclusions. Boatright v. State, 192 Ga. App. 112, 385 S.E.2d 298 (1989); Taylor v. State, 197 Ga. App. 678, 399 S.E.2d 213 (1990).
O.C.G.A. § 17-5-30(b) requires that a motion to suppress evidence "state facts showing that the search and seizure were unlawful." Unless the defendant has satisfied this requirement, the state is under no duty to present evidence in rebuttal. Wilson v. State, 197 Ga. App. 181, 397 S.E.2d 744 (1990).
O.C.G.A. § 17-5-30 required only that the motion to suppress state facts showing that the search and seizure was unlawful. Watts v. State, 274 Ga. 373, 552 S.E.2d 823 (2001).
Because the defendant never sought a ruling from the trial court on the defendant's motion to suppress evidence obtained during a roadblock, the appellate court had nothing to review because the appellate court could not find that the trial court erred by denying a motion that was never presented to the trial court; further, the motion would have been denied, even if a ruling was sought, because the motion never mentioned the roadblock and never stated any facts showing that a search and seizure were unlawful, as required by O.C.G.A. § 17-5-30(b), and a series of conclusions without support of stated facts did not meet the statutory requirements. Overton v. State, 270 Ga. App. 285, 606 S.E.2d 306 (2004).
Harm or prejudice must be demonstrated before a violation of O.C.G.A. § 17-5-30(b) can be held to give rise to reversible error. State v. Peabody, 247 Ga. 580, 277 S.E.2d 668 (1981); Eidson v. State, 182 Ga. App. 321, 355 S.E.2d 691 (1987).
Defendant only required to state facts concerning illegal warrant.
- O.C.G.A. § 17-5-30 requires the defendant only to "state facts" showing that warrant was unlawful. The statute does not require that those facts be proven or substantiated before the state satisfies the state's burden of proof. The possibility that the defendant may not have competent evidence to support the defendant's allegation is irrelevant until the state has entered evidence that specifically rebuts the defendant's charge. Slaughter v. State, 168 Ga. App. 58, 308 S.E.2d 6 (1983), rev'd in part on other grounds, 252 Ga. 435, 315 S.E.2d 865 (1984).
Contents of motion inadequate.
- Objections to the legality of a search and seizure are not properly brought before the trial court when the motion to suppress evidence states no facts showing wherein the search and seizure were unlawful. Mosier v. State, 160 Ga. App. 415, 287 S.E.2d 357 (1981).
Trial court did not err in dismissing the motion to suppress since the defendants' motion to suppress failed to state any facts alleging why the search and seizure were illegal. Davis v. State, 203 Ga. App. 315, 416 S.E.2d 789, cert. denied, 203 Ga. App. 905, 416 S.E.2d 789 (1992).
Motion to suppress evidence found during a search was insufficient since the defendant stated in the defendant's motion that the warrant pursuant to which the search was conducted was invalid, but did not provide any facts to support such conclusion. Powles v. State, 248 Ga. App. 4, 545 S.E.2d 153 (2001).
Order suppressing evidence gathered at a traffic stop was reversed after the defendant's motion asked the trial court to suppress the fruits of a warrantless search of the defendant's home when there had been no search of the defendant's home, and the motion did not raise an issue of whether the officer had a valid basis to justify a traffic stop. The motion was so grossly inapplicable to the facts of the case that the motion did not give the state reasonable notice of the motion's nature and scope. The officer had a reasonable, articulable suspicion to justify an investigative traffic stop of the defendant solely on the basis of information from a dispatcher who reported that a citizen saw the defendant's vehicle, with the defendant's license number, being driven erratically, by a driver who appeared intoxicated. State v. Gomez, 266 Ga. App. 423, 597 S.E.2d 509 (2004).
Sufficient facts were contained in a motion which revealed the date of the stop, the identity of the person stopped, the identity of the officer who made the stop, the law enforcement organization with which the officer was affiliated, the nature of the stop, the offenses charged, and the conclusion that no violations occurred which would justify the stop. State v. Goodman, 220 Ga. App. 169, 469 S.E.2d 327 (1996).
Consideration of brief filed with motion.
- O.C.G.A. § 17-5-30(b) does not preclude consideration of the defendant's brief, which was filed contemporaneously with the motion to suppress, as part of the motion. Stanley v. State, 206 Ga. App. 125, 424 S.E.2d 90 (1992).
Procedurally defective motion to suppress.
- Motion to suppress which is procedurally defective is properly overruled, and a motion to suppress which is made orally is procedurally defective and a denial thereof is authorized. Graves v. State, 135 Ga. App. 921, 219 S.E.2d 633 (1975).
Must object to defective intoxication test.
- If the defendant previously has not moved to suppress the evidence, results of a defectively administered intoxication test are inadmissible over objection. State v. Johnston, 160 Ga. App. 71, 286 S.E.2d 47 (1981), aff'd, 249 Ga. 413, 291 S.E.2d 543 (1982).
Objection by codefendant's counsel not a motion to suppress.
- Objection to further testimony by a police officer on the grounds that the officer unlawfully initiated a traffic stop was improper as a motion to suppress tangible evidence because the objection was not made in writing as required by O.C.G.A. § 17-5-30(b), and the objection was made by the codefendant's counsel rather than the defendant's counsel. Dunn v. State, 262 Ga. App. 643, 586 S.E.2d 352 (2003).
Claim of error in denying suppression motion waived.
- Defendant waived the defendant's claim that the defendant's suppression motion was improperly denied by affirmatively stating at trial that the defendant had no objection to the admission of the evidence; when a prior motion to suppress has been filed, merely failing to object to the admission of the evidence during the subsequent trial does not constitute a waiver of the grounds asserted in the motion, but affirmatively stating there is no objection to admission of the evidence in effect concedes the point. Mew v. State, 267 Ga. App. 454, 600 S.E.2d 397 (2004).
Contents of motion adequate.
- Motion containing facts showing the date of the search, the general location, the identity of the person searched, the organization with which the officer making the search was affiliated, that defendant did not consent to the search in fact, and the conclusion that the search was unsupported by probable cause or articulable suspicion was sufficient to require the state to meet the state's allegations with proof to the contrary. Hill v. State, 222 Ga. App. 839, 476 S.E.2d 634 (1996).
Motions to suppress that established the type of searches (Terry stops-and-frisks) and identified the legal issues raised (whether the stops-and-frisks were authorized by reasonable suspicion and whether the resulting arrests were supported by probable cause) put the state on notice as to the witnesses whose testimony was required; failure of the motions to identify the officers conducting the stops-and-frisks, and to more fully detail the attendant facts, was not fatal to the sufficiency of the motions. Dean v. State, 246 Ga. App. 263, 540 S.E.2d 246 (2000).
Defendant's motion to suppress met the requirements of O.C.G.A. § 17-5-30(b) because the motion was sufficient to put the state on notice that all of the searches the state conducted pursuant to a warrant were at issue, that it was necessary to have present at the hearing the affiant detective, and that the legal issue for resolution was the sufficiency of the affidavit. Glenn v. State, 288 Ga. 462, 704 S.E.2d 794 (2010).
Motion not applicable to questions on chain of custody.
- Motion to suppress may properly be directed only to the issue of whether evidence has been illegally obtained or seized, not to the issue of chain of custody. Kelly v. State, 145 Ga. App. 780, 245 S.E.2d 20 (1978).
Issue of incorrect address not raised in motion to suppress.
- Trial court erred in granting the motion to suppress when the defendant had ample opportunity to review the warrant in advance of the hearing and assert an incorrect address as a defect in the defendant's motion to suppress, and since the issue was not raised in the motion to suppress and the state was not properly placed on notice that this issue would be raised at the hearing on the motion, the objection must be deemed waived. State v. Armstrong, 203 Ga. App. 159, 416 S.E.2d 537 (1992).
2. Writing
Legislative intent to require motion in writing.
- O.C.G.A. § 17-5-30 clearly evinces the legislative intent that suppression, or exclusion, of the evidence must be founded upon motion, or objection, in writing. Brannen v. State, 117 Ga. App. 69, 159 S.E.2d 476 (1967).
Written motion to suppress required.
- Before a hearing is held on a motion to suppress, the motion must be in writing and state facts showing that the search and seizure were unlawful. Hayes v. State, 168 Ga. App. 94, 308 S.E.2d 227 (1983); Young v. State, 225 Ga. App. 208, 483 S.E.2d 636 (1997).
Appellate court declined to consider the defendant's challenge to the denial of a motion to suppress because the defendant failed to present the arguments to the trial court in the written motion to suppress. Wise v. State, 321 Ga. App. 39, 740 S.E.2d 850 (2013).
No objection required when motion in limine obtained.
- As a preliminary matter, because the defendant obtained a ruling on a motion in limine, the defendant was not under an obligation to object when the state cross-examined the defendant concerning the defendant's sexual history and habits. Having obtained a ruling in limine, it was not necessary for the defendant to raise an objection at trial when the evidence was introduced in order to preserve this issue for appellate review. Herring v. State, 288 Ga. App. 169, 653 S.E.2d 494 (2007), cert. denied, No. S08C0448, 2008 Ga. LEXIS 205 (Ga. 2008).
Oral motion in limine.
- O.C.G.A. § 17-5-30 applies only to motions to suppress evidence made by criminal defendants, and the state's oral motion in limine was therefore not required to be in writing. Brown v. State, 192 Ga. App. 864, 386 S.E.2d 734 (1989).
Trial court did not err in denying the defendant's oral motion made during a trial to suppress evidence obtained from a search of the defendant's person. Belcher v. State, 230 Ga. App. 235, 496 S.E.2d 306 (1998); Bellamy v. State, 243 Ga. App. 575, 530 S.E.2d 243 (2000).
Oral motion inadequate.
- Because the defendant's oral motion to suppress was made on the first day of trial, the motion failed to satisfy the requirements of subsection (b) of O.C.G.A. § 17-5-30 and Uniform Superior Court Rule 31.1; therefore, the trial court did not err in denying the motion. Copeland v. State, 272 Ga. 816, 537 S.E.2d 78 (2000).
Defendant's oral objection at trial to the admission of alleged cocaine seized from the defendant's person based on Fourth Amendment grounds was not reviewable because the defendant failed to file a written motion to suppress the evidence as required by O.C.G.A. § 17-5-30. Nelson v. State, 305 Ga. App. 65, 699 S.E.2d 66 (2010).
Exception allowing oral motion.
- Only when the movant becomes aware of the illegal seizure at such a late hour that a written motion to suppress is impossible should an oral motion to suppress and a hearing thereon be entertained. Rucker v. State, 250 Ga. 371, 297 S.E.2d 481 (1982).
Writing and timely filing required.
- O.C.G.A. § 17-5-30 requires that a motion to suppress evidence be in writing and filed before arraignment. When the defendant's motion did neither, the defendant failed to preserve the right to challenge the validity of the search of the defendant's motel room. Jackson v. State, 252 Ga. App. 268, 555 S.E.2d 908 (2001).
When the defendant waited until trial to raise the argument that a shotgun was illegally seized from the defendant's house, the motion to suppress was not timely under the requirements of O.C.G.A. § 17-5-30 and Ga. Unif. Super. Ct. R. 31.1, so the issue was waived both for trial and on appeal. Cranford v. State, 275 Ga. App. 474, 621 S.E.2d 470 (2005).
In a prosecution for possession of cocaine with intent to distribute, because the defendant failed to voice an objection at trial regarding an inaccuracy in a search warrant affidavit as to the precise location of the alleged cocaine sale which served as the basis of the charge, but instead raised the issue for the first time in a motion for a new trial, the objection was late; thus, the appellate court's review of the issue was waived. Jackson v. State, 281 Ga. App. 368, 636 S.E.2d 34 (2006).
Defendant waived the issue of suppression of drug evidence because the defendant did not file a written motion to suppress under O.C.G.A. § 17-5-30(b) and neither objected to the admission of the drug evidence nor to the deputy's testimony regarding the search. Ferrell v. State, 312 Ga. App. 122, 717 S.E.2d 705 (2011).
Compelling trial court to put oral suppression motion in writing.
- Because the state failed to request that the trial court put an oral order of suppression in writing, and show that the trial court refused to do so, the state did not have the right to appeal from that order; moreover, while the state could have filed a mandamus petition seeking to require the court to put the oral order in writing, the state did not seek that relief. State v. Morrell, 281 Ga. 152, 635 S.E.2d 716 (2006).
Writing held adequate.
- See State v. Blosfield, 165 Ga. App. 111, 299 S.E.2d 588 (1983); State v. Jones, 245 Ga. App. 763, 538 S.E.2d 819 (2000).
Under O.C.G.A. § 17-5-30(b), a defendant waived the right to challenge the lack of a search warrant because the issue had not been raised in the defendant's written motion to suppress, which was premised on the existence of a search warrant. The defendant could have ascertained prior to the motion hearing whether a warrant existed; moreover, even if the defendant was validly surprised at the motion hearing to learn for the first time that no search warrant was issued, the defendant did not request a continuance to amend the motion to suppress to be in accordance with § 17-5-30(b). Young v. State, 282 Ga. 735, 653 S.E.2d 725 (2007).
3. Timely Motion
Motion to suppress must be made at trial. Hawes v. State, 240 Ga. 327, 240 S.E.2d 833 (1977), but see Stewart v. State, 232 Ga. App. 565, 502 S.E.2d 502 (1998).
Motion to suppress must be filed prior to trial.
- Although O.C.G.A. § 17-5-30 does not provide for a specific time when a motion to suppress must be filed, it is clear that the motion shall be filed before trial since the motion's purpose is to avoid the interruption of the trial for the purpose of investigating the collateral issue of the legality of the means by which the evidence was obtained. Stansifer v. State, 166 Ga. App. 785, 305 S.E.2d 481 (1983), but see Hatcher v. State, 224 Ga. App. 747, 482 S.E.2d 443 (1997), and Stewart v. State, 232 Ga. App. 565, 502 S.E.2d 502 (1998); Burch v. State, 213 Ga. App. 392, 444 S.E.2d 370 (1994); Tucker v. State, 222 Ga. App. 517, 474 S.E.2d 696 (1996);.
Initial motion should be at trial, not on habeas corpus.
- If the search warrants were illegal for any reason and the evidence obtained thereunder inadmissible on the prisoners' trials, this can be adjudicated upon such trial, rather than authorize the prisoner's discharge on habeas corpus in advance of the trial. Carlin v. Nevil, 227 Ga. 359, 180 S.E.2d 740 (1971).
Habeas corpus review test.
- Habeas corpus review test on U.S. Const., amend. 4 claims is whether a defendant had a full and fair opportunity to litigate; not whether the claim was, in fact, litigated. Jacobs v. Hopper, 238 Ga. 461, 233 S.E.2d 169 (1977).
Habeas corpus review test for federal courts is adopted for state habeas corpus review: a court need not apply the exclusionary rule on habeas review of a claim under U.S. Const., amend. 4 absent a showing that the prisoner was denied a full and fair litigation of that claim at trial and on direct review. Jacobs v. Hopper, 238 Ga. 461, 233 S.E.2d 169 (1977).
Exclusionary rule does not affect evidence admitted without timely challenge.
- Requirement that all evidence obtained by searches and seizures in violation of U.S. Const., amend. 4 is inadmissible in state courts and is only an exclusionary rule which does not affect the competence of evidence admitted without timely challenge. Graves v. State, 135 Ga. App. 921, 219 S.E.2d 633 (1975).
Untimely but properly challenged evidence competent if rules satisfied.
- Evidence which is merely subject to exclusion but is not timely and properly challenged is competent evidence, provided, of course, that the applicable rules of evidence are satisfied. Touchstone v. State, 121 Ga. App. 602, 174 S.E.2d 450 (1970).
Defendant unaware of grounds for motion.
- This law is similar to Fed. R. Crim. P. 41(e) which expressly provides that the motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion. Thomas v. State, 118 Ga. App. 359, 163 S.E.2d 850 (1968), cert. denied, 394 U.S. 943, 89 S. Ct. 1273, 22 L. Ed. 2d 477 (1969).
Motion to suppress must be made prior to written plea.
- Although there is no time limit set out in O.C.G.A. § 17-5-30 for the filing of a motion to suppress, the motion must be made before the defendant enters defendant's written plea. Waller v. State, 251 Ga. 124, 303 S.E.2d 437 (1983), rev'd on other grounds, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984); Sartin v. State, 201 Ga. App. 612, 411 S.E.2d 582 (1991); Ellis v. State, 216 Ga. App. 232, 453 S.E.2d 810 (1995).
Motion to suppress prior to joining issues.
- O.C.G.A. § 17-5-30 is limited in time only so far as the statute requires filing of a motion to suppress prior to joining of issues. State v. Shead, 160 Ga. App. 260, 286 S.E.2d 767 (1981).
Motion held untimely.
- After the defendant learned of a pistol's seizure ten days before the defendant announced ready to proceed to trial at the call of the trial calendar but nevertheless did not file the defendant's motion to suppress the weapon until the day after the defendant announced ready, the motion was untimely. Highfield v. State, 198 Ga. App. 530, 402 S.E.2d 125 (1991).
Trial court properly denied the defendant's motion to suppress because the motion was untimely filed, only six days before trial in the matter. Baseler v. State, 213 Ga. App. 822, 446 S.E.2d 250 (1994).
Trial court did not abuse the court's discretion by failing to grant the defendant's request to present additional evidence in support of the defendant's motion to suppress which was made after the original hearing and ruling denying the motion. Pickens v. State, 225 Ga. App. 792, 484 S.E.2d 731 (1997).
Motion filed five weeks after arraignment was properly dismissed as untimely. Stewart v. State, 232 Ga. App. 565, 502 S.E.2d 502 (1998).
Failure to timely file results in waiver.
- Trial court did not err in dismissing as untimely a defendant's motion in limine to suppress unlawfully obtained evidence with regard to a cocaine trafficking charge. The defendant waived formal arraignment and pled not guilty, and more than three months later the defendant filed a motion in limine to suppress evidence, arguing that both the cocaine and testimony regarding the cocaine should be excluded on the ground that both were products of an unlawful search; the defendant was unable to circumvent the requirements of Ga. Unif. Super. Ct. R. 31.1 by couching the defendant's motion to suppress as a motion in limine; and the defendant's failure to file a timely motion to suppress waived any right to claim that the search was unconstitutional. Fraser v. State, 283 Ga. App. 477, 642 S.E.2d 129 (2007), overruled in part by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).
Untimely objection amounts to waiver.
- Failure to interpose a timely motion to suppress in compliance with Ga. L. 1966, p. 567, § 13 (see O.C.G.A. § 17-5-30) amounts to a waiver of the constitutional guaranty against illegal search and seizure in respect to the search and seizure in question. Brannen v. State, 117 Ga. App. 69, 159 S.E.2d 476 (1967); Watts v. State, 117 Ga. App. 558, 161 S.E.2d 516 (1968); Lane v. State, 118 Ga. App. 688, 165 S.E.2d 474 (1968); West v. State, 120 Ga. App. 390, 170 S.E.2d 698 (1969); Bissel v. State, 126 Ga. App. 61, 189 S.E.2d 701 (1972); Wilson v. State, 126 Ga. App. 145, 190 S.E.2d 128 (1972); Foskey v. State, 126 Ga. App. 268, 190 S.E.2d 556 (1972); Hawes v. State, 240 Ga. 327, 240 S.E.2d 833 (1977); Wilcoxen v. State, 162 Ga. App. 800, 292 S.E.2d 905 (1982).
There is a waiver of defects in the affidavit upon which the search warrant was issued, or in the warrant itself, or in the absence of a warrant authorizing the search if no timely motion to suppress is filed. Reid v. State, 129 Ga. App. 660, 200 S.E.2d 456 (1973).
Oral objection to evidence obtained by unlawful search and seizure is not sufficient unless preceded by suppression of the evidence pursuant to a motion to suppress in compliance with Ga. L. 1966, p. 567, § 13 (see O.C.G.A. § 17-5-30). Failure to interpose a timely motion to suppress in compliance with that section amounts to a waiver of the constitutional guaranty in respect to the search and seizure in question. Graves v. State, 135 Ga. App. 921, 219 S.E.2d 633 (1975).
Federal habeas petitioner did not offer any compelling reason to disturb the Georgia court's conclusion that the petitioner's suppression motion was untimely filed and, therefore, waived. Holton v. Newsome, 750 F.2d 1513 (11th Cir. 1985).
In a prosecution on four counts of child molestation, the defendant's failure to file a timely motion to suppress waived the right to claim that the seized items were inadmissible as fruits of the poisonous tree. Walker v. State, 277 Ga. App. 485, 627 S.E.2d 54 (2006).
State's failure to object to timely filed motion.
- State waived the state's claim that the defendant's motion to suppress, filed two months after arraignment, was untimely as the state failed to raise the issue or object to the motion on that basis before the trial court; moreover, the state's failure to object was particularly significant in light of the express provision in O.C.G.A. § 17-7-110 allowing the trial court to extend the time for filing. Hicks v. State, 287 Ga. App. 105, 650 S.E.2d 767 (2007).
Waiver of judge's error in denying hearing.
- It is procedural error for the trial court to deny the appellant a hearing upon the appellant's motion to suppress outside the presence of the jury, but if no objection is made to its admission, the appellant waives any objection which might be urged, including those contained in the written motion to suppress. Yarbrough v. State, 151 Ga. App. 474, 260 S.E.2d 369 (1979).
Whether warrant void or otherwise defective.
- Requirement for timely objection to introduction of illegally seized evidence applies with equal force to a warrant that is void as it does to a warrant that is defective for some other reason. Butler v. State, 134 Ga. App. 131, 213 S.E.2d 490 (1975).
Later objection barred.
- Failure to comply with O.C.G.A. § 17-5-30(b) when evidence is first introduced bars a later objection to the admission of such evidence. Gilreath v. State, 247 Ga. 814, 279 S.E.2d 650 (1981), cert. denied, 456 U.S. 984, 102 S. Ct. 2258, 72 L. Ed. 2d 862 (1982).
Failure to request permission to file late motion.
- Trial court did not err by refusing to consider a defendant's motion to suppress which was untimely filed on the day of trial since no written extension for a late filing was requested prior to trial. Thompson v. State, 195 Ga. App. 18, 392 S.E.2d 732 (1990).
Discretion of trial court.
- Defendants failed to show an abuse of the trial court's discretion in denying the request for leave to file the untimely motion to suppress. Davis v. State, 203 Ga. App. 315, 416 S.E.2d 789, cert. denied, 203 Ga. App. 905, 416 S.E.2d 789 (1992).
Objection must be raised when evidence offered.
- To be valid, an objection to evidence based on grounds other than unlawful search and seizure must be voiced at the time the evidence is actually offered. Hawkins v. State, 117 Ga. App. 70, 159 S.E.2d 440 (1967).
Trial court did not err in denying the defendant's motion to suppress a written statement given to police during the course of a pretrial interview, despite that at the time the statement was given, the defendant invoked a right to counsel, as a defense objection to the admission of the statement on this ground came after the statement was already admitted, and was thus untimely. Copeland v. State, 281 Ga. App. 656, 637 S.E.2d 90 (2006).
Waiver results upon failure to make timely objection.
- When testimony is tendered, an objection must be made affording the court the opportunity to rule upon the admissibility of the testimony upon the grounds then urged and in the context of the matter as the matter then appears, and failure to make a timely objection to testimony when the testimony is offered results in a waiver of any objection that might have been urged. Childers v. State, 130 Ga. App. 555, 203 S.E.2d 874 (1974).
Hearing Procedure
Requirement to hold hearing preserved by objection.
- After a motion to suppress has been filed, failure to hold the mandatory hearing is error, and the error is preserved by objection to admission of the evidence sought to be suppressed. Gray v. State, 145 Ga. App. 293, 243 S.E.2d 687 (1978).
Trial court required to address tainted fruit rule.
- Trial court erred by granting the defendant's motion to suppress after concluding that the state failed to prove the legality of the defendant's arrest for failing to tender the open container ordinance as the trial court was required to go on to address and rule on whether the drugs discovered during the subsequent search of the backpack in the vehicle constituted tainted fruit of the arrest based on the officers' testimony regarding the smell of marijuana. State v. Alford, 347 Ga. App. 208, 818 S.E.2d 668 (2018).
Motion sufficient to put state on notice of grounds.
- Defendant's motion to suppress was not insufficient to put the state on notice of the specific grounds of the motion; although the motion did not state the investigating officer's name, the motion stated the indictment number and alleged that a search was illegal and that probable cause was lacking. State v. Owens, 285 Ga. App. 370, 646 S.E.2d 340 (2007).
If state fails to show search validity at hearing, even imperfect motion granted.
- If the state failed to produce any evidence proving the validity of a search and seizure at a hearing, a trial court should grant a motion to suppress, whether or not the sufficiency of the motion made complies with the law and amounts to a legal motion to suppress the evidence. State v. McNutt, 146 Ga. App. 369, 246 S.E.2d 402 (1978).
State need not prove lawful search if no valid attack.
- Ga. L. 1966, p. 567, § 13 (see O.C.G.A. § 17-5-30) does not require that the state present evidence of the legality of a search in the absence of a valid attack thereon. Jacobs v. State, 133 Ga. App. 812, 212 S.E.2d 468 (1975).
State bears burden of proving warrantless search lawful.
- Under a warrantless search and seizure, the burden of proving that the search and seizure was lawful is upon the state. Phillips v. State, 167 Ga. App. 260, 305 S.E.2d 918 (1983).
State's satisfaction of burden to show that search with warrant lawful.
- When a motion to suppress is made on one of the three grounds of O.C.G.A. § 17-5-30(a)(2), challenging the validity of a search and seizure with a warrant, the burden of showing that the search and seizure was lawful is on the state; this burden is satisfied by production of the warrant and the warrant's supporting affidavit, and by showing that the warrant is not subject to the statutory challenge alleged. State v. Slaughter, 252 Ga. 435, 315 S.E.2d 865 (1984).
When a motion to suppress based on a challenge to the warrant is not based upon one of the three statutory grounds of O.C.G.A. § 17-5-30(a)(2), the state's burden is satisfied by production of the warrant and the warrant's supporting affidavit; the burden then shifts to the defendant to show the invalidity of the warrant on nonstatutory grounds. State v. Slaughter, 252 Ga. 435, 315 S.E.2d 865 (1984).
Error in placing burden of going forward on the defendant in a drug prosecution who challenged the validity of the search warrant under O.C.G.A. § 17-5-30 was harmless since the warrant and affidavit were attached to the order and the detective who requested issuance of the warrant was the only witness at the hearing. Bowman v. State, 205 Ga. App. 347, 422 S.E.2d 239 (1992).
State failed to prove lawfulness of encounter.
- After defendant's O.C.G.A. § 17-5-30(b) motion to suppress put the state on notice of the defendant's contention that an initial police encounter was unlawful and the state did not prove the lawfulness, the trial court erred in denying the defendant's motion to suppress. Burrell v. State, 261 Ga. App. 677, 583 S.E.2d 521 (2003).
When state fails to prove municipal ordinance as basis for search.
- If the state fails to prove the existence of a municipal ordinance by introduction of a certified copy of the ordinance, the ordinance, whose existence the court may not judicially recognize, cannot serve as a basis for upholding the arrest and incident search. Owens v. State, 153 Ga. App. 525, 265 S.E.2d 856 (1980), overruled on other grounds, State v. Thackston, 289 Ga. 412, 716 S.E.2d 517 (2011).
Motion must indicate legal basis challenging traffic stop.
- Trial court erred in granting the defendant's motion to suppress based on an improper traffic stop as nothing in the motion to suppress indicated that the defendant was challenging the legal basis for the traffic stop. State v. Conley, 273 Ga. App. 855, 616 S.E.2d 174 (2005).
Burden of persuasion remains.
- Burden of proof referred to in Ga. L. 1966, p. 567, § 13 (see O.C.G.A. § 17-5-30) is a burden of persuasion, and does not shift during the course of the motion hearing even though the burden of producing evidence may shift back and forth. Pope v. State, 134 Ga. App. 455, 214 S.E.2d 686 (1975).
Challenger of a search warrant does not have the burden of proving the warrant's invalidity; once a motion to suppress has been filed, the burden of proving the lawfulness of the warrant is on the state and that burden never shifts. Davis v. State, 266 Ga. 212, 465 S.E.2d 438 (1996).
Since the search warrant and affidavit at issue are not in the record nor before the trial court, the burden of production never shifts to the defendant to produce evidence regarding the allegedly false or omitted information and the trial court erred in denying the motion to suppress. Watts v. State, 274 Ga. 373, 552 S.E.2d 823 (2001).
When the defendant's conviction was reversed because the state did not meet the state's burden of production as to the defendant's suppression motion challenging the sufficiency of a search warrant affidavit when the state produced neither the affidavit nor the resulting search warrant, this was a ruling on the merits which was res judicata, and the defendant's plea in bar in the trial court, on remand, seeking to prevent the state from relitigating the issue, should have been granted. Watts v. State, 261 Ga. App. 230, 582 S.E.2d 186 (2003).
Trial judge is to resolve questions of fact pertaining to the admissibility of evidence subject to a motion to suppress. Gilliland v. State, 139 Ga. App. 399, 228 S.E.2d 314 (1976), vacated on other grounds, 238 Ga. 542, 233 S.E.2d 801 (1977).
Findings of fact not required.
- There is no authority which requires a trial judge to make findings of fact after a hearing on a motion to suppress, if the hearing on the motion, including arguments of counsel, was recorded and transcribed verbatim and is included in the record and transcript accompanying the appeal. Shirley v. State, 166 Ga. App. 456, 304 S.E.2d 468 (1983).
Trial judge's decision on facts and credibility assumed correct.
- Trial court's decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. Williams v. State, 151 Ga. App. 833, 261 S.E.2d 720 (1979); McShan v. State, 155 Ga. App. 518, 271 S.E.2d 659 (1980).
If there is a conflict in the evidence on the motion to suppress, the ruling of the trial court will be upheld if there is evidence to authorize a finding in support of the court's order. State v. Medders, 153 Ga. App. 680, 266 S.E.2d 331 (1980).
Judge hearing the motion to suppress is the trier of fact, and the judge's factual conclusion that there are no exigent circumstances, if supported by evidence, is controlling, even though the set of circumstances which ended with the search began with the stopping of a moving vehicle. State v. Watts, 154 Ga. App. 789, 270 S.E.2d 52 (1980).
On appeal of the denial of a motion to suppress, the evidence is to be construed most favorably to the findings and judgment made and the trial court's findings must be adopted unless determined to be clearly erroneous. Thomas v. State, 203 Ga. App. 529, 417 S.E.2d 353, cert. denied, 203 Ga. App. 908, 417 S.E.2d 353 (1992).
Judge may admit hearsay to show how search conducted.
- Judge may admit testimony on hearing of a motion to suppress, though hearsay, showing how or why the search was made. Jones v. State, 131 Ga. App. 699, 206 S.E.2d 601 (1974).
Judge may admit hearsay to show probable cause.
- In a hearing on a motion to suppress, there is no inhibition against hearsay evidence in the showing of probable cause in an affidavit for obtaining a search warrant. Lloyd v. State, 139 Ga. App. 625, 229 S.E.2d 106 (1976).
Judge may consider matters not introduced.
- Hearing is analogous to one on a motion for summary judgment in that the court may consider a wide variety of matters which need not be "introduced" to the judge. Merritt v. State, 121 Ga. App. 832, 175 S.E.2d 890 (1970).
Defendant requesting judge trial waives right to jury determination of search legality.
- If appellant decides to have the appellant's case tried before a judge alone, the appellant effectively waives the appellant's right to submit to a jury the question of the legality of a search. Aycock v. State, 142 Ga. App. 755, 236 S.E.2d 863 (1977).
Waiver of hearing before jury on motion means no harmful error.
- If the defendant waived any objection regarding a hearing before a jury on the motion to suppress, there was no harmful error in having a judge decide the issue alone. Lloyd v. State, 139 Ga. App. 625, 229 S.E.2d 106 (1976).
Error if judge requires jury.
- If the trial judge in effect compels that the hearing be held before a jury, then error results. Lloyd v. State, 139 Ga. App. 625, 229 S.E.2d 106 (1976).
Section provides way to record issues for appeal of trial judge's ruling.
- Ga. L. 1966, p. 567, § 13 (see O.C.G.A. § 17-5-30) provides the defendant a full and fair opportunity to have claims under U.S. Const., amend. 4 considered prior to the defendant's trial, and the law provides a method by which a defendant may secure a record on these issues that will enable a court, on direct appeal, to review the trial court's ruling. Jacobs v. Hopper, 238 Ga. 461, 233 S.E.2d 169 (1977).
Violation of motion to suppress in jury's presence.
- Although receipt of evidence on a motion to suppress in the presence of jury constitutes a statutory violation, it does not rise to the level of denial of a constitutional right. State v. Peabody, 247 Ga. 580, 277 S.E.2d 668 (1981).
Evidence in support of motion heard in jury's presence.
- When there has been a waiver of the right to have the evidence heard outside of the presence of the jury and no harm or prejudice has occurred to the defendants because the evidence was heard in the jury's presence, reversal of the conviction is unwarranted. State v. Peabody, 247 Ga. 580, 277 S.E.2d 668 (1981).
Motion to suppress outside jury's presence.
- Failure to hear evidence on motion to suppress illegally obtained evidence outside of presence of jury is not per se reversible error. State v. Peabody, 247 Ga. 580, 277 S.E.2d 668 (1981).
Right to have evidence on motion presented outside jury's presence may be waived.
- After the trial judge announces at commencement of trial that the judge will receive evidence on the motion to suppress during the course of the trial and the defense attorneys raised no objections, the defense effectively waived the complaint that has been denied the right to have this evidence presented outside of the jury's presence. State v. Peabody, 247 Ga. 580, 277 S.E.2d 668 (1981).
Commission of error by trial judge cannot be ignored by party.
- Party cannot sit idly by, ignore the commission of error by the trial judge, take the party's chances on a favorable verdict, and then complain on appeal if the favorable verdict does not materialize. State v. Peabody, 247 Ga. 580, 277 S.E.2d 668 (1981).
Reintroduction of previously suppressed evidence in subsequent indictment.
- If evidence has been suppressed as to another indictment, the evidence cannot be reintroduced as to a second indictment. Cook v. State, 141 Ga. App. 241, 233 S.E.2d 60 (1977).
Issues raised initially on appeal not considered.
- Because the defendant on appeal abandoned the "second-tier" argument raised at the suppression hearing, and instead argued that the evidence should have been suppressed because the state failed to show that the officer was in the lawful discharge of any official duty during questioning, the latter argument was not addressed, as the argument was raised for the first time on appeal. Harper v. State, 285 Ga. App. 261, 645 S.E.2d 741 (2007).
Error to barring state to present evidence as sanction.
- No constitutional provision or statute authorizes a trial court to bar the state from presenting evidence at a hearing on a motion to suppress as a sanction for prior prosecutorial conduct that the court deems to be dilatory in nature; because evidence exclusion is an extreme sanction and one not favored in the law, a trial court should exercise great caution before barring the state from showing why evidence the state seeks to admit at trial should not be suppressed. State v. Smith, 308 Ga. App. 345, 707 S.E.2d 560 (2011).
Appeals
Standard of review.
- Trial court's ruling on a motion to suppress will be upheld if it is right for any reason. Strickland v. State, 265 Ga. App. 533, 594 S.E.2d 711 (2004).
On review, the Court of Appeals of Georgia will uphold a trial court's findings as to disputed facts in a motion to suppress unless clearly erroneous, whereas the trial court's application of the law to undisputed facts is subject to de novo appellate review. State v. Harden, 267 Ga. App. 381, 599 S.E.2d 329 (2004).
Because a trial court credited a police officer's testimony and decided the defendant's suppression motion on an issue of law rather than on any issue of conflicting evidence, the Court of Appeals correctly used the de novo standard of review. Silva v. State, 278 Ga. 506, 604 S.E.2d 171 (2004).
Failure to file written motion as waiver of appeal.
- By failing to file a written motion to suppress evidence alleged to have been obtained by an illegal search and seizure as required by Ga. L. 1966, p. 567, § 13 (see O.C.G.A. § 17-5-30), a defendant waives any objection to the evidence on that ground. Peppers v. State, 144 Ga. App. 662, 242 S.E.2d 330 (1978).
By failing to file a written motion to suppress, a defendant waives an appeal on that ground. Dennis v. State, 166 Ga. App. 715, 305 S.E.2d 443 (1983).
Trial court did not err by admitting the results of an intoximeter test even though the prosecution did not introduce evidence that the intoximeter had been calibrated since no objection was made at the time the evidence of the intoximeter results was offered. Although the defendant later attempted to exclude the evidence by an oral motion to suppress, such oral motions are not authorized. Jenkins v. State, 198 Ga. App. 843, 403 S.E.2d 859 (1991).
Trial court properly convicted a defendant of driving under the influence, less safe, in violation of O.C.G.A. § 40-6-391(a)(1), after a bench trial as the evidence showed that: (1) an officer saw the defendant drunk earlier in the evening while responding to a dispute between neighbors; (2) the defendant admitted to drinking; and (3) the defendant admitted to driving the defendant's vehicle while drunk from the defendant's home to a lake home. Any error in the charging instrument was deemed waived on appeal as the defendant should have addressed any purported error by a special demurrer and, likewise, the defendant failed to file a motion to suppress challenging the officers' entry into the defendant's dwelling without authority; thus, that issue was deemed waived. Pruitt v. State, 289 Ga. App. 307, 656 S.E.2d 920 (2008).
Although the defendant filed a motion to suppress evidence seized from the two search warrants executed on the defendant's home on October 20, because the defendant did not move to suppress the evidence seized the day before, which was based on the defendant's consent to search the defendant's person and home, the defendant did not preserve that issue for appeal. Evans v. State, 308 Ga. 582, 842 S.E.2d 837 (2020).
Failure to request ruling meant waiver on appeal.
- Defendant waived the right to argue that the trial court erred in failing to grant a motion to suppress a pistol because the trial court did not make a ruling regarding suppression of the pistol, and the defendant never requested such a ruling; when the pistol was tendered into evidence at trial the defendant expressly stated that the defendant had no objections. Rockholt v. State, 291 Ga. 85, 727 S.E.2d 492 (2012).
Since the defendant did not challenge evidence based on an improper inventory search in the defendant's motion to suppress, the state was not given notice of the issue and the issue was waived on appeal. McBurrows v. State, 325 Ga. App. 303, 750 S.E.2d 436 (2013).
Failure to include trial transcript in record on appeal.
- Because the defendant failed to include the trial transcript in the record for the appellate court to review an order denying the defendant's motion to suppress, the appellate court had to assume as a matter of law that the evidence presented supported the trial court's findings, and that the court properly exercised the court's judgment and discretion. Pittman v. State, 286 Ga. App. 415, 650 S.E.2d 302 (2007).
Failure to raise any issue in trial court challenging search warrant.
- With regard to a defendant's convictions on multiple counts of rape and related crimes, because the defendant did not raise any issue in the trial court regarding either the existence of the warrant for the defendant's blood sample or the adequacy of the supporting affidavit, the appellate court found no merit to the defendant's contention on appeal that the denial of the defendant's motion to suppress evidence obtained from the warrant seeking a blood sample was in error. Baker v. State, 295 Ga. App. 162, 671 S.E.2d 206 (2008), cert. denied, No. S09C0571, 2009 Ga. LEXIS 183 (Ga. 2009).
Guilty plea waives suppression issue on appeal.
- Because the defendant pled guilty to the charges of possession of a firearm by a convicted felon, the defendant waived any claim that the trial court erred in denying the defendant's motion to suppress evidence of the firearm found in the defendant's residence. Stuart v. State, 267 Ga. App. 463, 600 S.E.2d 629 (2004).
If objection overruled, ruling appealable.
- If the motion to suppress is denied, an objection may nevertheless be lodged on the ground that the testimony relates to property which was illegally seized during an unlawful search, and if the objection is overruled the ruling may become a proper subject of an enumeration of error on appeal. Reid v. State, 129 Ga. App. 660, 200 S.E.2d 456 (1973), criticized, Childers v. State, 130 Ga. App. 555, 203 S.E.2d 874 (1974).
Standard of review following grant of motion.
- On appeal from a trial court's ruling on a motion to suppress, an appellate court construes the evidence most favorably to upholding the trial court's ruling, and the appellate court adopts the trial court's findings on disputed facts unless clearly erroneous. Since the trial court sits as the trier of fact, the court's findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support the findings. Rucker v. State, 266 Ga. App. 293, 596 S.E.2d 639 (2004).
Standard of review of denial of a motion to suppress.
- When reviewing a trial court's decision on a motion to suppress, an appellate court's responsibility is to ensure that there was a substantial basis for the decision; the evidence is construed most favorably to uphold the findings and judgment, and the trial court's findings on disputed facts and credibility are adopted unless the findings and judgment are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support the findings. Williams v. State, 265 Ga. App. 489, 594 S.E.2d 704 (2004).
State's appeal.
- State could not appeal from order compelling the return of seized property to the defendant after the state stipulated to not using the property at issue in the trial of the charges pending against the defendant, and the state did not challenge the trial court's ruling on defendant's motion to suppress. State v. McIntyre, 191 Ga. App. 565, 382 S.E.2d 669 (1989).
State's direct appeal of a judgment granting the defendant's motion to suppress evidence that the victims identified the defendant from photographic lineups was authorized by O.C.G.A. § 5-7-1(a)(4) because the state's direct appeal was from an order that: (1) was issued prior to the impaneling of a jury or the defendant being put in jeopardy; and (2) granted the defendant's motion to suppress evidence that was allegedly obtained in an illegal manner, and which the trial court deemed to be "meritorious" even apart from the prosecutor's supposed dilatory conduct; during the final hearing on the defendant's motion, the trial court refused to allow the state to present evidence to contest the motion as a means of sanctioning the state for prosecutorial conduct that the trial court deemed to be dilatory in nature, and the fact that the trial court was the direct cause of the state's inability to meet the state's burden of showing that the identifications were lawfully obtained in no way divested the court of appeals of jurisdiction to hear the state's appeal pursuant to § 5-7-1(a)(4). State v. Smith, 308 Ga. App. 345, 707 S.E.2d 560 (2011).
Reconsideration of suppression order discussed.
- See Chastain v. State, 158 Ga. App. 654, 281 S.E.2d 627 (1981).
RESEARCH REFERENCES
Am. Jur. 2d.
- 29 Am. Jur. 2d, Evidence, §§ 584, 598, 603, 604, 627, 633, 636, 640.
ALR.
- Right to recover property held by public authorities as evidence for use in a criminal trial, 13 A.L.R. 1168.
Admissibility of evidence obtained by illegal search and seizure, 24 A.L.R. 1408; 32 A.L.R. 408; 41 A.L.R. 1145; 52 A.L.R. 477; 88 A.L.R. 348; 134 A.L.R. 819; 150 A.L.R. 566; 50 A.L.R.2d 531.
Right to enforce production of papers or documents by subpoena duces tecum or other process, as affected by unlawful means by which the knowledge of their existence was acquired, 24 A.L.R. 1429.
Jurisdiction to quash search warrant and order return of property seized in liquor cases under federal statutes, 65 A.L.R. 1246.
Right of employee having control of articles for employer to avail himself of rule which excludes evidence obtained by unlawful search and seizure, 86 A.L.R. 346.
Previous illegal search for or seizure of property as affecting validity of subsequent search warrant or seizure thereunder, 143 A.L.R. 135.
Authority to consent for another to search or seizure, 31 A.L.R.2d 1078.
Search warrant: sufficiency of showing as to time of occurrence of facts relied on, 100 A.L.R.2d 525.
Violation of federal constitutional rule (Mapp v. Ohio) excluding evidence obtained through unreasonable search or seizure, as constituting reversible or harmless error, 30 A.L.R.3d 128.
"Fruit of the poisonous tree" doctrine excluding evidence derived from information gained in illegal search, 43 A.L.R.3d 385.
Search and seizure: "furtive" movement or gesture as justifying police search, 45 A.L.R.3d 581.
Lawfulness of "inventory search" of motor vehicle impounded by police, 48 A.L.R.3d 537.
Censorship and evidentiary use of unconvicted prisoners' mail, 52 A.L.R.3d 548.
Admissibility of evidence discovered in search of defendant's property or residence authorized by domestic employee or servant, 99 A.L.R.3d 1232.
Admissibility of evidence discovered in search of defendant's property or residence authorized by defendant's spouse (resident or nonresident) - state cases, 1 A.L.R.4th 673; 65 A.L.R.5th 407.
Propriety in state prosecution of severance of partially valid search warrant and limitation of suppression to items seized under invalid portions of warrant, 32 A.L.R.4th 378.
Officer's ruse to gain entry as affecting admissibility of plain-view evidence - modern cases, 47 A.L.R.4th 425.
Search and seizure: necessity that police obtain warrant before taking possession of, examining, or testing evidence discovered in search by private person, 47 A.L.R.4th 501.
Seizure of books, documents, or other papers under search warrant not describing such items, 54 A.L.R.4th 391.
Search conducted by school official or teacher as violation of fourth amendment or equivalent state constitutional provision, 31 A.L.R.5th 229.
Admissibility of evidence discovered in warrantless search of rental property authorized by lessor of such property - state cases, 61 A.L.R.5th 1.
Searches and seizures: Reasonable expectation of privacy in contents of garbage or trash receptacle, 62 A.L.R.5th 1.
Belief that burglary is in progress or has recently been committed as exigent circumstance justifying warrantless search of premises, 64 A.L.R.5th 637.
Search and seizure: reasonable expectation of privacy in tent or campsite, 66 A.L.R.5th 373.
Admissibility of evidence discovered in search of defendant's property or residence authorized by one, other than relative, who is cotenant or common resident with defendant - state cases, 68 A.L.R.5th 343.
Civilian participation in execution of search warrant as affecting legality of search, 68 A.L.R.5th 549.
Effect of retroactive consent on legality of otherwise unlawful search and seizure, 76 A.L.R.5th 563.
Permissibility and sufficiency of warrantless use of thermal imager or Forward Looking Infra-Red Radar (F.L.I.R.), 78 A.L.R.5th 309.
Adequacy of defense counsel's representation of criminal client regarding search and seizure issues - Pretrial motions - Suppression motions where warrant was involved, 72 A.L.R.6th 1.
Admissibility of evidence discovered in search of defendant's property or residence authorized by defendant's adult relative other than spouse, 160 A.L.R. Fed. 165.