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Docket Number

A95A2412

Advocates

John R. Parks, District Attorney, Richard E. Nettum, Assistant District Attorney, for appellant. Mark G. Pitts, for appellee.

Judges

RUFFIN, Judge.

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Smart Summary

Case Summary: THE STATE v. WILLIAMS, A95A2412 (Court of Appeals of Georgia, Feb. 6, 1996)

Factual and Procedural Background

Gregory Williams was indicted for possession of marijuana with intent to distribute. The State appealed from the trial court's order granting Williams's motion to suppress evidence obtained from a search of his person. The underlying events, viewed in the manner most favorable to supporting the trial court's ruling, were as follows: Officers Ethridge and Sapp stopped two vehicles—one for a broken taillight and the other for having no license plate. While Officer Ethridge attended to the vehicle with no tag, Officer Sapp watched the other vehicle, which contained Williams (the passenger) and the driver, Flemming Martin. Sapp told Ethridge that he had seen the driver hand the passenger "money and something else" and that the passenger placed what he had been handed into his pocket. Ethridge removed Williams from the car, asked what he had been handed and whether he was carrying a weapon; Williams replied that he was not. Ethridge conducted a pat-down for weapons; during the pat-down he felt an object he described as "like a bag with something in it" in Williams's pants pocket. After Williams said it was "only money," Ethridge testified he "knew there was something in there other than money" and, for safety, handcuffed Williams. Ethridge then reached into Williams's pocket and removed money and a clear plastic bag containing marijuana.

Legal Issues Presented

Whether the seizure of the plastic bag containing marijuana was lawful under the "plain feel" doctrine as articulated in Minnesota v. Dickerson (i.e., whether the object's identity was "immediately apparent" through a lawful Terry pat-down).
Whether the continued search of Williams's pocket was justified as a protective weapons search under Terry v. Ohio.
Whether, under the totality of the circumstances, there was probable cause (or plain view by Officer Sapp) to arrest and search Williams such that the motion to suppress should have been denied.

Arguments of the Parties

State's Arguments

The State argued that the seizure of the plastic bag was valid under the "plain feel" corollary to the plain view doctrine as set out in Minnesota v. Dickerson — i.e., that the contraband nature of the object was readily apparent to Officer Ethridge during the pat-down.
Alternatively, the State contended, under the totality of the circumstances, that there was probable cause to arrest and search Williams. Specifically, the State relied on Officer Sapp's testimony that Williams pulled a wad of money from his pocket with a small zip lock bag protruding, arguing that the marijuana was in plain view.

Appellee's Arguments

The opinion does not contain a detailed account of the appellee's legal arguments beyond the fact that Williams filed and prevailed on a motion to suppress; the trial court granted that motion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Terry v. Ohio, 392 U.S. 1 (1968)	Authority for a limited protective weapons search (Terry pat-down) to ensure officer safety.	The court noted the State did not rely on Terry as justification. The court also observed that, to the extent the trial court found a protective weapons-search justification unconvincing, that credibility determination was not clearly erroneous given the circumstances (Williams was handcuffed and the object did not feel like a typical weapon).
Minnesota v. Dickerson, 508 U.S. ___, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)	The "plain feel" corollary to the plain view doctrine: a lawful pat-down permits seizure of contraband if the object's contour or mass makes its identity immediately apparent without further probing.	The court applied Dickerson and concluded Ethridge's testimony showed he could not immediately identify the object by touch; thus Dickerson did not authorize the continued exploration and seizure in this case.
Seaman v. State, 214 Ga. App. 878, 449 S.E.2d 526 (1994)	Illustrative application of Dickerson: an officer overstepped a Terry pat-down by squeezing, sliding, and manipulating an object in a suspect's pocket after determining no weapon was present.	The court cited Seaman to exemplify the limits Dickerson places on a pat-down and used it to support its conclusion that Ethridge's continued exploration exceeded the bounds of a permissible Terry frisk.
State v. Foster, 209 Ga. App. 143, 433 S.E.2d 109 (1993)	Standard of appellate review for motions to suppress: evidence construed most favorably to uphold trial court findings; factual and credibility determinations adopted unless clearly erroneous.	The court applied this standard to uphold the trial court's factual findings and credibility determinations regarding whether the bag or marijuana was in plain view and concluded there was sufficient evidence to support the suppression order.

Court's Reasoning and Analysis

The court reviewed the evidence in the light most favorable to sustaining the trial court's ruling. It first addressed the State's reliance on the "plain feel" doctrine from Minnesota v. Dickerson. The court summarized Dickerson's rule: during a lawful Terry pat-down, an officer may seize an object if its contour or mass makes its identity immediately apparent by touch alone. The court then examined Officer Ethridge's testimony. Ethridge admitted he did not feel anything resembling a typical weapon (knife, gun, stick, mace) during the pat-down and stated that, although he felt a bag-like object and believed it was more than money, he could not identify its exact nature by palpation — he "did not know if it would be marijuana or cocaine or heroin or what it might be."

Based on that testimony, the court concluded the object's contour did not make its identity immediately apparent to Ethridge; accordingly, Ethridge's continued exploration and seizure were not authorized under the plain feel doctrine or Dickerson. Although the State had not argued that the search was justified as a protective weapons search under Terry, the court observed that if the trial court doubted that explanation, that doubt was not clearly erroneous because Williams was handcuffed and Ethridge conceded the object did not feel like a typical weapon but rather like a plastic bag — rendering further manipulation unrelated to the limited purpose of a Terry frisk.

The court next considered the State's alternative contention that, under the totality of the circumstances, there was probable cause to arrest and search Williams — specifically, that the marijuana was in plain view based on Officer Sapp's testimony that Williams pulled a wad of money with a small zip lock bag protruding. The court noted Ethridge did not testify to seeing that. Whether the bag or its contents were ever in Officer Sapp's plain view was a factual issue for the trial court. Applying the appellate standard of review (adopted from State v. Foster), the court found there was sufficient evidence to support the trial court's factual findings and credibility determinations and therefore no error in the suppression ruling.

Holding and Implications

JUDGMENT AFFIRMED.

Holding: The Court of Appeals affirmed the trial court's order granting Williams's motion to suppress. The court held that (1) under the facts as found by the trial court, the "plain feel" doctrine under Minnesota v. Dickerson did not authorize the continued exploration of Williams's pocket because the object's identity was not immediately apparent by touch, and (2) any contention that the seizure was justified as a Terry protective frisk or by plain view/probable cause was a matter of fact for the trial court and its adverse credibility determinations and findings were supported by the record.

Implications: The direct effect of the decision is that the trial court's suppression order stands and the seized plastic bag containing marijuana was properly suppressed under the circumstances presented. The opinion applies established limits on pat-down searches under Terry and the plain-feel doctrine as articulated in Dickerson; it does not purport to announce a new legal rule beyond applying those precedents to the facts of this case.

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THE STATE v. WILLIAMS

RUFFIN, Judge.

Gregory Williams was indicted for possession of marijuana with intent to distribute. The State appeals from the trial court's order granting Williams's motion to suppress. For reasons which follow, we affirm.

Viewed in a light to support the trial court's ruling, the evidence showed that Officers Ethridge and Sapp stopped two cars, one for a broken taillight and the other for no license plate. While Ethridge tended to the car with no tag, Sapp watched the other car which contained Williams and his co-defendant, Flemming Martin. When Ethridge finished with the first car, Sapp told him that he saw the driver of the second car hand the passenger "money and something else" and the passenger put what he had been handed in his pocket. Ethridge then removed the passenger, Williams, from the car and asked what he had been handed by the driver, Martin. Ethridge also asked whether Williams was carrying a weapon, and Williams responded that he was not. Ethridge testified that fearing for his safety, he then patted down Williams for weapons. While doing so, Ethridge felt an object "like a bag with something in it" in Williams's pants pocket and asked Williams what it was. Williams responded that it was only money. Ethridge testified that he "knew there was something in there other than money" and that "for everybody's safety" he therefore handcuffed Williams. Ethridge then reached into Williams's pocket and pulled out money and a clear plastic bag containing marijuana.

Ethridge admitted that during the pat-down, he did not feel anything that felt like a typical weapon such as a knife, gun, stick, pepper spray, or mace. When asked whether he felt anything that felt like an atypical weapon, Ethridge responded, "I didn't know. When I felt the object in the pants pocket, I knew it was not a knife or a gun. I didn't know what it was. I knew it was something more than money. . . . I could tell . . . by palpating that there was something else in the pocket, and . . . him saying there was only money in the pocket, made me very anxious and very concerned that it might be a weapon."

1. The State never argues that the motion to suppress should have been denied because Ethridge's continued search was authorized as a protective weapons search under Terry v. Ohio, 392 U.S. 1 ( 88 SC 1868, 20 L.Ed.2d 889) (1968). Rather, citing Minnesota v. Dickerson, 508 U.S. ___ (113 SC 2130, 124 L.Ed.2d 334) (1993), it argues that the seizure of the plastic bag was valid because its contraband nature was readily apparent to Ethridge. We disagree.

In Dickerson, the Supreme Court held that the "plain feel" corollary to the "plain view" doctrine allows an officer to seize contraband which is plainly identified through the officer's sense of touch during a valid Terry pat-down: "If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context." (Emphasis supplied; footnote omitted.) Id. 124 L.Ed.2d at 346. Applying these principles to the particular facts of the case, however, the Supreme Court in Dickerson "found that the officer had overstepped the bounds of a Terry patdown by squeezing, sliding, and manipulating the object in the suspect's pocket before identifying it, even after determining that the pocket contained no weapon. [Cit.]" Seaman v. State, 214 Ga. App. 878, 879 (2) ( 449 S.E.2d 526) (1994).

In this case, Ethridge maintained alternatively that he searched Williams's pocket because he was concerned that the unidentified object which felt like a bag could be a weapon and because it could "possibly" be contraband. With respect to the possibility of contraband, Ethridge testified that he "really couldn't tell" what kind of contraband it might be. Even after palpating and feeling Williams's pocket, Ethridge testified that "[a]ll I could tell was basically that it was something in a bag. Before I reached in . . . his pocket, I felt . . . it again and I could pretty well tell that it was not crack cocaine or the feel of crack cocaine, that it was a bag and that there was something in it. I did not know if it would be marijuana or cocaine or heroin or what it might be."

Taking this testimony at face value, we find that the object's contour did not make its identity immediately apparent to Ethridge, even after he palpated Williams's pocket. Accordingly, his continued exploration of Williams's pocket was not authorized under the plain feel doctrine or Dickerson. And although the State never argues that the continued search was authorized as a protective weapons search under Terry, to the extent the trial court found that explanation unconvincing, such was not clearly erroneous given that Williams was handcuffed and that Ethridge conceded that the object did not feel like a knife, gun, stick, or mace, but rather like a plastic bag, thereby making his continued exploration of the pocket unrelated to the sole justification of a protective Terry search.

2. The State contends the motion to suppress should have been denied under the totality of the circumstances because there was probable cause to arrest and search Williams. Specifically, the State argues that based on Sapp's testimony, the marijuana was in plain view. Sapp testified that when he and Ethridge approached Williams and asked what the driver had given him, Williams replied money and pulled from his pocket a wad of money which had a small zip lock bag protruding. Ethridge, however, never testified to this version of events.

Whether the plastic bag or the marijuana in it was ever in the plain view of Sapp was an issue of fact for the trial court. "When we review a trial court's decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court's findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them." (Citations and punctuation omitted.) State v. Foster, 209 Ga. App. 143, 143-144 ( 433 S.E.2d 109) (1993). Because there was sufficient evidence to support the trial court's order, we find no error.

Judgment affirmed. Beasley, C.J., and Pope, P.J., concur.