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State v. McCloud

Court of Appeals of Georgia, First Division

February 16, 2018

THE STATE
v.
MCCLOUD.

          Barnes, Presiding Judge.

         Roverto 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.

         Upon 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).

         So 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."

         The 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."

         Regarding 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.

         The 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 console."

         McCloud 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.

         In reversing its prior disposition, the trial court found that there

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 original).

         On 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 ...


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