Barnes, Presiding Judge.
McCloud was charged with possession of cocaine, possession of
a firearm during the commission of a that felony, possession
of a firearm by a convicted felon, and failure to have his
driver's license on his person while operating a motor
vehicle. McCloud filed a motion to suppress the drug and gun
evidence, which the trial court initially denied, but upon
reconsideration, granted. The State appeals from that order
and contends that the trial court erred in finding that the
officer's search of McCloud was unreasonable under the
Fourth Amendment because he was not under arrest at the time
of the search, but merely detained. Upon our review, and
finding that the search was lawful, we reverse the trial
court's grant of McCLoud's motion to suppress.
our review of a trial court's ruling on a motion to
suppress, we are guided by three principles;
[f]irst, when a motion to suppress is heard by the trial
judge, that judge sits as the trier of facts. The trial judge
hears the evidence, and his findings based upon conflicting
evidence are analogous to the verdict of a jury and should
not be disturbed by a reviewing court if there is any
evidence to support them. Second, the trial court's
decision with regard to questions of fact and credibility
must be accepted unless clearly erroneous. Third, the
reviewing court must construe the evidence most favorably to
the upholding of the trial court's findings and judgment.
(Punctuation omitted.) Brown v. State, 293 Ga. 787,
803 (3) (b) (2) (750 S.E.2d 148) (2013), quoting Miller
v. State, 288 Ga. 286, 286-287 (702 S.E.2d 888) (2010).
viewed, the evidence, as testified to by the only witness at
the motion to suppress hearing, demonstrates that a patrol
officer with the Atlanta Police Department observed a
"pretty bad" two car accident and stopped to
investigate and assist the victims. Each car was occupied by
two passengers, and McCloud was in the driver's seat of
one of the cars. McCloud told the officer that his wallet was
at home and that he did not have his driver's license.
The officer asked McCloud to step out of the car, then
handcuffed McCloud "to detain him. . . because [the
officer] needed to figure out everything that was going on in
the situation." The officer testified that he routinely
handcuffs individuals who do not have their driver's
license, "because of the nature of [his]
assignment" and confirmed that he does so to detain them
until he "can find out who [they] are."
officer testified that although there was probable cause to
arrest McCloud for "not having [his] driver's
license [on his person], " McCloud was only detained at
that point "to identify who he was."
the encounter, the officer testified that
[McCloud] seemed a little tense about the whole situation. It
kind of made me nervous. We had a conversation about what was
- why was he being so tense. He relaxed. I put him in
handcuffs and moved him to the car. When I got to the
vehicle, as per our standard, before you put any person in a
vehicle, you frisk them incident to placing them in the back
of the vehicle. Plus, the nature of the area, it's a
violent crime area, lots of incidents in my knowledge,
training and experience that occur in that area. So I frisked
him for weapons. Upon frisking him for weapons, I felt an
object that was immediately recognizable as a baggy of some
sort, called contraband. I seized that item. It ended up
being 10 grams of powder cocaine.
baggy was located in "one of [McCloud's] pockets.
According to the officer's testimony, "at this point
[McCloud] was under arrest. I [had] just seized narcotics
from his person. So I went ahead and did a complete, thorough
search before putting him in the vehicle." The officer
retrieved a loaded .22 caliber magazine from McCloud's
pocket and, during his subsequent search of McCloud's
vehicle "incident to arrest as well as impound from the
accident, because it was not drivable . . . located a .22
caliber handgun missing its magazine . . . in the center
filed a motion to suppress the drug and gun evidence, which
after a hearing, the trial court denied. The trial court
determined that the search of McCloud's person and car
"were lawful" because "[a]t the time [McCloud]
was put in handcuffs and searched, probable cause existed for
an arrest on the traffic violation of driving without a
license." McCloud filed a motion to reconsider, after
which, the trial court granted McCloud's motion to
suppress the drug and gun evidence.
reversing its prior disposition, the trial court found that
was probable cause. . . to arrest [McCloud] when he failed to
produce his license. . . [but McCloud] was not in
fact placed under arrest at that juncture. Instead the
officer, in his discretion, chose not to arrest [McCloud] and
instead merely intended to temporarily detain him until his
identification could be obtained and the officer further
investigated the collision. Therefore, the Court should have
analyzed the pat-down as a Tier 2 search. The Court finds the
temporary detainment and handcuffing of [McCloud] was lawful.
However, there is no evidence taht [the officer] reasonable
believed [McCloud] was armed or presented a danger to the
officer or others when he conducted the Tier 2 pat-down. . .
. [A]n automatic police procedure of patting down persons
being detained in a police car does not make an
unconstitutional search constitutional. (Emphasis in
appeal, the State contends that the existence of probable
cause to arrest McCloud for driving without his driver's
license in his immediate possession rendered the ...