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Docket Number

No. A09A0342.

Attorney(S)

Amanda R. Batchelor, for appellant. Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.

Judges

ADAMS, Judge.

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Smart Summary

Case Summary: ADKINS v. THE STATE, No. A09A0342 (Court of Appeals of Georgia, June 5, 2009)

Factual and Procedural Background

In the early morning of August 25, 2007, Henry County police responded to an anonymous call reporting a suspicious white vehicle parked with its lights off in a neighborhood cul-de-sac and containing two people. Officers found no car in the cul-de-sac but observed a white Cadillac pulling away; the officer stopped the Cadillac, which was occupied solely by Rebekah Jeneen Adkins. Adkins produced a valid Georgia driver's license and explained she had been dropping off her boyfriend; she appeared visibly nervous. A records check revealed Adkins was on active probation for possession of methamphetamine and subject to a probation condition requiring submission to searches and specimen provision. Adkins told officers she had no narcotics and consented to a search. Officers found a change purse containing a glass pipe and a pill bottle with a small bag later identified as methamphetamine. Adkins was convicted of possession of methamphetamine and moved to suppress the evidence, arguing the stop lacked articulable suspicion and the search lacked probable cause. The trial court ruled the initial stop was illegal but held the subsequent search was lawful because it was authorized by Adkins' probation condition and the connection between the illegal stop and the search was attenuated, citing State v. Cooper and Ruffin v. State. Adkins appealed the denial of her motion to suppress. The Court of Appeals reviewed the motion de novo and reversed the trial court's denial of the motion to suppress; the judgment was reversed.

Legal Issues Presented

Whether the initial traffic stop of Adkins' vehicle was supported by articulable suspicion (the parties and the court agreed the stop was invalid).
Whether the subsequent search of Adkins' vehicle was lawful based on: (a) a probation condition authorizing searches of probationers upon reasonable or good-faith suspicion, and (b) Adkins' consent — and, relatedly, whether the search and any consent were sufficiently attenuated from the illegality of the initial stop so that the evidence need not be suppressed.

Arguments of the Parties

Appellant's (Adkins') Arguments

Adkins moved to suppress the evidence on the ground that no articulable suspicion existed to support the traffic stop.
She argued there was no probable cause to justify the search of her car and that any consent was tainted by the illegal stop.

Appellee's (State's) Position as Reflected in Trial Court Ruling

The trial court concluded the initial stop was illegal but held the search was lawful because officers were authorized to search pursuant to a probation/search condition applicable to Adkins, and that this probationary authorization attenuated any connection between the illegal stop and the subsequent search. The trial court cited State v. Cooper and Ruffin v. State in support of attenuation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Cooper, 260 Ga. App. 333 (579 SE2d 754) (2003)	Cited by trial court for the principle that a subsequent search incident to arrest can be lawful and attenuate connection to an earlier illegal detention.	The Court of Appeals noted Cooper was cited below but observed Cooper did not involve searches pursuant to a probation condition; rather, Cooper involved an arrest (on outstanding warrants) following an illegal detention, and the search incident to that arrest was held lawful. The court found Cooper inapposite to the present probation-search context.
Ruffin v. State, 201 Ga. App. 792 (412 SE2d 850) (1991)	Cited by trial court for the same attenuation principle where searches incident to arrest following an illegal detention were held lawful.	The Court of Appeals explained Ruffin likewise did not involve searches under a probation condition but involved arrests following illegal detentions; thus Ruffin did not support the trial court's reliance on probation-based search authority here.
State v. Palmer, 285 Ga. 75, 79 (673 SE2d 237) (2009)	Stated principle that appellate review of a trial court's application of law to undisputed facts in a motion to suppress is de novo.	The court invoked Palmer to state its standard of review (de novo) for the motion to suppress because the facts were undisputed.
Thomas v. State, 287 Ga. App. 163, 166-167 (651 SE2d 116) (2007)	Explains that police may search a probationer under a special probation condition if officers observe conduct reasonably suggestive of criminal activity (requiring reasonable or good-faith suspicion).	The court quoted Thomas for the governing standard for probationary searches and then evaluated whether the officers observed conduct reasonably suggestive of criminal activity; it found no supporting facts in the record to meet that standard.
Fox v. State, 272 Ga. 163, 165-166 (527 SE2d 847) (2000)	Used to support the rule regarding probationary searches requiring reasonable suspicion and to note limitations (including that anonymous tips of unknown reliability are generally insufficient).	The court relied on Fox to explain that an anonymous tip without corroboration is generally insufficient to create reasonable suspicion, and to note the officers did not consult or involve a probation officer and appeared to conduct the search for law enforcement purposes.
Bell v. State, 295 Ga. App. 607 (672 SE2d 675) (2009)	Cited for the proposition that nervousness alone is not enough to justify a detention or search.	The court cited Bell to support its conclusion that Adkins' visible nervousness did not provide sufficient basis for detention or search, particularly where the nervousness appeared to result from the illegal stop.
Gonzales v. State, 255 Ga. App. 149, 150 (564 SE2d 552) (2002)	Cited similarly to Bell for the proposition that nervousness alone is insufficient to justify detention or search.	The court cited Gonzales alongside Bell to reinforce that nervousness is not a sufficient basis for detention or search.
Brooks v. State, 285 Ga. 424, 425 (677 SE2d 68) (2009)	States that the State bears the burden to prove consent was freely and voluntarily given under the totality of circumstances; valid consent eliminates need for probable cause or a warrant.	The court used Brooks to explain the State's burden to prove voluntariness of consent and observed Brooks as a contrasting case where probationer's consent to search his home was valid due to absence of unauthorized entry and presence of corroborating tips; the court found the present facts distinguishable.
State v. Lanes, 287 Ga. App. 311, 313 (651 SE2d 456) (2007)	Establishes that consent cannot validate a search if the consent is the product of a wrongful detention.	The court invoked Lanes to explain that consent obtained after an illegal detention may be invalid if it is the fruit of the unlawful detention.
Baker v. State, 277 Ga. App. 520, 523-524 (627 SE2d 145) (2006)	Provides the factors for determining whether evidence derived from illegal police conduct is sufficiently attenuated: temporal proximity, intervening circumstances, and purpose and flagrancy of official misconduct.	The court applied Baker's attenuation factors and concluded that, under the totality of circumstances here (illegal stop, subsequent detention to request consent, lack of intervening circumstances), the taint of the illegal stop was not sufficiently attenuated from the consent and resulting search.

Court's Reasoning and Analysis

The Court of Appeals applied de novo review to the undisputed facts. Although the trial court found the initial stop illegal, it had concluded the subsequent search was lawful because Adkins was subject to a probation condition permitting searches and because that probationary authorization attenuated any connection to the illegal stop. The appellate court examined two alternative grounds advanced to justify the search: (1) the probation-search authority (searches of probationers upon reasonable or good-faith suspicion), and (2) Adkins' consent to the search.

On the probation-search ground, the court cited Thomas and Fox for the governing standard: a probationary search is permissible when police observe conduct reasonably suggestive of criminal activity (a reasonable or good-faith suspicion). The court found the trial court did not identify facts supporting a finding of conduct reasonably suggestive of criminal activity, and the appellate record contained none. The anonymous tip merely reported two persons in a parked car in a low-traffic area; when officers stopped Adkins she was alone, which corroborated her explanation she had dropped off her boyfriend. There was no evidence the neighborhood was high-crime, parking was illegal, or any other criminal activity was occurring. The court also noted that nervousness alone is insufficient to justify detention or search, and Adkins' nervousness appeared to flow from the illegal stop. The court further observed police did not contact a probation officer or involve probation in the search, suggesting the search was conducted for law enforcement rather than probationary purposes. On this basis the court concluded the probation condition did not independently justify the detention or search.

Turning to consent, the court recognized that valid consent can eliminate the need for probable cause but that consent cannot validate a search if it is the product of a wrongful detention (citing Brooks and Lanes). Applying the attenuation framework from Baker — considering temporal proximity between the illegal stop and the consent, any intervening circumstances, and the purpose and flagrancy of the official misconduct — the court concluded the consent was not sufficiently attenuated from the illegal stop. Because the police had no valid basis to initiate the stop, discovered Adkins' probation status as a consequence of that illegal stop, and then detained her while requesting consent without intervening circumstances to purge the taint, the court held the taint of the unreasonable stop was not sufficiently attenuated and the consent was invalid as the product of the wrongful detention.

Holding and Implications

Holding: The Court of Appeals reversed the trial court's denial of Adkins' motion to suppress and reversed the judgment. The court held the search was not justified under Adkins' probation condition and Adkins' consent to the search was the product of the illegal stop and therefore could not validate the search.

Implications: The direct effect of this decision is reversal of the trial court's judgment denying the motion to suppress (the opinion states "Judgment reversed"). The court did not announce a new legal rule beyond applying existing precedent (Thomas, Fox, Baker, Brooks, Lanes, etc.), and its disposition rests on the application of established attenuation and consent principles to the facts of this case. No broader, novel precedent was proclaimed in the opinion.

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ADKINS v. THE STATE.

ADAMS, Judge.

Rebekah Jeneen Adkins was convicted on one count of possession of methamphetamine. On appeal, she asserts that the trial court erred in denying her motion to suppress the evidence that led to her conviction.

In the early morning hours of August 25, 2007, two officers from the Henry County Police Department responded to a call reporting a suspicious white vehicle parked with its lights off in a neighborhood cul-de-sac. The caller reported that two people were inside the vehicle. The caller reported that the vehicle was suspicious because there was rarely any traffic in that area. Upon their arrival on the scene, police found no car in the cul-de-sac, but the officers observed a white Cadillac pulling away from the area, with one person inside. One of the officers initiated a traffic stop, and Adkins, who was the Cadillac's sole occupant, immediately pulled over. Adkins produced a valid Georgia driver's license and told the officers that she was in the area to drop off her boyfriend at his parents' house. She explained that they sat in the car with the lights off because his parents were inside sleeping. When her boyfriend got out of the car, she left to return home. The officer stated that during this exchange, Adkins was visibly shaking and would not maintain eye contact with him.

When the officers ran a check on Adkins' license, they discovered that she was on active probation, which Adkins explained was for possession of methamphetamine. She admitted that as a condition of probation she was required to submit to a search and to provide a specimen. Adkins told officers that she had no narcotics with her and gave them consent to search the car. The officers subsequently discovered a small blue change purse containing a glass smoking pipe and a white pill bottle. The pill bottle contained a small clear plastic bag with a substance that was later identified as methamphetamine. When the officer showed Adkins the drugs, she said they belonged to her boyfriend, but when police called him, he denied any knowledge of them.

The officer who stopped Adkins' car testified that he initiated the stop in response to the suspicious vehicle report and to determine why the car was in the neighborhood. He questioned Adkins further based upon both the report and her extreme nervousness.

Adkins moved to suppress this evidence on the ground that no articulable suspicion existed to support the stop and no probable cause existed to justify the search of her car. The trial court agreed that the initial stop was illegal, but ruled that the search of Adkins' car was legal. The court found that the officers could properly search pursuant to the search and specimen condition in Adkins' probation, which attenuated any connection between the illegal stop and the subsequent search of her car, citing State v. Cooper, 260 Ga. App. 333 ( 579 SE2d 754) (2003), and Ruffin v. State, 201 Ga. App. 792 ( 412 SE2d 850) (1991). Accordingly, the trial court denied Adkins' motion to suppress.

We note, however, that neither Cooper nor Ruffin involved searches conducted pursuant to a condition of probation. Rather, in both of those cases, although the defendants were illegally detained, police discovered outstanding arrest warrants and placed the defendants under arrest. This Court found that the subsequent searches incident to arrest were legal, and this legality attenuated any connection with the illegal detention. Cooper, 260 Ga. App. at 337 (2); Ruffin, 201 Ga. App. at 794-795 (2) (a).

The facts in this case are undisputed, and we apply a de novo review to the trial court's application of the law to the facts in considering the motion to suppress. State v. Palmer, 285 Ga. 75, 79 ( 673 SE2d 237) (2009). Neither the State nor Adkins takes issue with the trial court's finding that the initial stop was invalid, so we limit our consideration to the trial court's holding that the search was authorized by Adkins' probation condition, which attenuated any connection with the illegal stop.

In the absence of consent, police can legally search pursuant to a special condition of probation if they observe conduct reasonably suggestive of criminal activity:

[T]here must be some conduct reasonably suggestive of criminal activity to trigger the search. It can be prompted by a good-faith suspicion, arising from routine police investigative work. Accordingly as a general rule, the police can search a probationer, who is subject to such a special condition of probation, at any time, day or night, and with or without a warrant, provided there exists a reasonable or good-faith suspicion for search, that is, the police must not merely be acting in bad faith or in an arbitrary and capricious manner (such as searching to harass probationer).

Thomas v. State, 287 Ga. App. 163, 166-167 (1) ( 651 SE2d 116) (2007). See also Fox v. State, 272 Ga. 163, 165-166 (2) ( 527 SE2d 847) (2000). The trial court found conduct reasonably suggestive of criminal activity to trigger the search, but did not identify any facts supporting this conclusion, and we find none in the record.

The encounter began with an anonymous call reporting two people parked in a car in an area that usually had little or no traffic. There was no evidence, however, that the neighborhood in which Adkins was parked was a high crime area, that it was illegal to park in that area or that Adkins was engaged in any other criminal activity. Moreover, "[i]t has been held that a tip from an informant of unknown reliability is generally insufficient to create a reasonable suspicion of criminal activity" unless the tip provides details of the illegal activity that the police can corroborate by observation. Fox v. State, 272 Ga. at 166 (2). Here, in contrast, the circumstances corroborated Adkins' explanation of her presence. The caller reported two people in the car, but Adkins was alone when the police stopped her, thus supporting her claim that she was in the neighborhood to drop off her boyfriend. The only other factor cited to support Adkins' detention was her extreme nervousness, but it is well settled that nervousness alone is not enough to justify a detention or search. See Bell v. State, 295 Ga. App. 607 ( 672 SE2d 675) (2009); Gonzales v. State, 255 Ga. App. 149, 150 ( 564 SE2d 552) (2002). Moreover, police observations of Adkins' nervousness arose directly from the illegal stop. Accordingly, we find that the condition of probation was not alone sufficient to justify Adkins' detention and the subsequent search.

Additionally as in Fox, the officer in this case "did not attempt to contact a probation officer for input on [Adkins'] probation, did not involve a probation officer in the actual search, and appears to have conducted the search solely for law enforcement purposes rather than probationary purposes." Fox, 272 Ga. at 167, n. 16.

Nevertheless, Adkins consented to the search, and we must also consider whether that consent was valid or whether it was tainted by the illegal stop. "In order to justify a warrantless search on the grounds of consent, the State has the burden of proving that the consent was freely and voluntarily given under the totality of the circumstances." (Citations and punctuation omitted.) Brooks v. State, 285 Ga. 424, 425 ( 677 SE2d 68) (2009). It is well settled that valid consent eliminates the need for either probable cause or a search warrant. Id. But "consent cannot validate a search if the consent is the product of a wrongful detention." (Citation and punctuation omitted.) State v. Lanes, 287 Ga. App. 311, 313 ( 651 SE2d 456) (2007). We must determine, therefore, whether the evidence in this case was obtained "by exploitation of [the illegal stop] or instead by means sufficiently distinguishable to be purged of the primary taint. Thus, even if evidence would not have been discovered but for the illegal police conduct, if the derivative evidence has only an attenuated link to the illegality, it need not be suppressed." (Footnotes omitted.) Baker v. State, 277 Ga. App. 520, 523 (2) ( 627 SE2d 145) (2006). In making this determination, we consider "the temporal proximity of an illegal seizure and consent, intervening circumstances, and the purpose and flagrancy of the official misconduct." (Footnote omitted.) Id. at 523-524 (2).

Here, the police had no valid basis for initiating a stop of Adkins' car. As a result of that illegal stop, they determined that Adkins was on probation, and without any evidence of criminal activity, they illegally detained her while requesting consent to search. Considering the totality of these circumstances, we find that "the taint of the unreasonable stop was not sufficiently attenuated." (Footnote omitted.) Baker, 277 Ga. App. at 524 (2). Compare Brooks v. State, 285 Ga. at 426 (probationer's consent to search his home was valid where there was no allegation that officers' entry onto his property was unauthorized and police previously had received two tips that probationer was involved in illegal conduct). Accordingly, the trial court erred in denying Adkins' motion to suppress, and we reverse.

Judgment reversed. Blackburn, P. J., and Doyle, J., concur.