granted certiorari to consider whether the warrantless search
of Richard Caffee resulting in the discovery of marijuana was
authorized by an exception to the Fourth Amendment's
warrant requirement. The Court of Appeals concluded that the
warrantless search was permissible because it was supported
by probable cause to believe that marijuana would be found on
Caffee. See Caffee v. State, 341 Ga.App. 360 (801
S.E.2d 71) (2017). Absent consent, probable cause generally
is a necessary condition to support a warrantless search of a
person, but it is not by itself sufficient; a warrantless
search must also fall within a recognized exception to the
warrant requirement. To the extent the Court of Appeals
suggested otherwise, it was wrong. We nevertheless affirm
because the warrantless search was permissible as a search
incident to arrest - even though it preceded the formal
arrest - as the police officer had developed probable cause
to arrest Caffee for possession of marijuana before
conducting the search.
reviewing the grant or denial of a motion to suppress, an
appellate court must construe the evidentiary record in the
light most favorable to the trial court's factual
findings and judgment. Hughes v. State, 296 Ga. 744,
746 (1) (770 S.E.2d 636) (2015). An appellate court also
"generally must limit its consideration of the disputed
facts to those expressly found by the trial court."
the evidence in that light, the record shows that on November
1, 2015, Deputy Mark Patterson pulled over Caffee's truck
for having an expired tag. During the stop, Deputy Patterson
smelled the odor of raw marijuana coming from Caffee's
truck. Deputy Patterson testified that, based upon his
training and experience, he was familiar with the smell of
Caffee exited the truck, Deputy Patterson asked Caffee if he
had marijuana in the truck. Caffee said no. Deputy Patterson
decided to search Caffee's truck for drugs but waited for
another officer to arrive. While waiting, Deputy Patterson
conducted a pat-down search of Caffee, but found no weapons
or contraband. When back-up arrived, Deputy Patterson
searched the entire truck and found only two small empty
bottles that smelled of marijuana.According to Deputy
Patterson, the odor of raw marijuana dissipated from the
truck during the search while the doors were open. When
Deputy Patterson approached Caffee to ask about the two
containers found in the truck, Patterson again smelled the
odor of raw marijuana. Deputy Patterson searched Caffee's
outer clothing and found in Caffee's shirt pocket a small
plastic bag containing less than an ounce of marijuana.
Caffee did not consent to any of the searches. Caffee was
arrested and charged with possession of marijuana and driving
with an expired tag.
a hearing on Caffee's motion to suppress at which Deputy
Patterson testified as the sole witness and a video of the
stop was introduced, the court rejected the State's
argument that Patterson's search of Caffee's shirt
pocket was a lawful pat-down search under Terry v.
Ohio, 392 U.S. 1 (88 S.Ct. 1868, 20 L.Ed.2d 889) (1968).
The trial court nevertheless concluded that Patterson had
probable cause to search Caffee's shirt pocket under the
totality of the circumstances.
Court of Appeals granted Caffee's application for
interlocutory appeal and affirmed the trial court's
ruling that the search of Patterson's clothing was valid.
Caffee, 341 Ga.App. at 360. The Court of Appeals
concluded that the police officer had probable cause to
believe that marijuana would be found on Caffee's person
because the officer had training and experience in detecting
the odor of raw marijuana and physical manifestations of
recent marijuana use, observed that Caffee had indications of
recent marijuana use (e.g., bloodshot and glassy eyes and
"white and risen" taste buds), smelled raw
marijuana when he approached Caffee's truck, noticed that
the odor dissipated during the search of the truck while the
doors were open and Caffee was outside the vehicle, did not
find marijuana in the truck, and smelled marijuana
"pretty strongly" upon approaching Caffee after the
vehicle search. Id. at 362-363 (1).
Court of Appeals' analysis was both incomplete and beyond
the scope of its proper review. We first outline the Court of
Appeals' error in failing to cabin its review and then
show how its analysis was flawed, although we ultimately
The Court of Appeals failed to apply the proper standard
repeatedly said that on an appeal from the grant or denial of
a motion to suppress, appellate courts must "focus on
the facts found by the trial court in its order, as
the trial court sits as the trier of fact."
Hughes, 296 Ga. at 746 (1) (citation and punctuation
omitted; emphasis in original). An appellate court may,
however, "consider facts that definitively can be
ascertained exclusively by reference to evidence that is
uncontradicted and presents no questions of credibility, such
as facts indisputably discernible from a videotape."
State v. Allen, 298 Ga. 1, 2 (1) (a) (779 S.E.2d
248) (2015) (citation and punctuation omitted).
here, the Court of Appeals supplemented the trial court's
findings with additional findings of its own that relied on
testimony that inherently presented questions of credibility
and were not "indisputably discernable" from the
video of the stop. The Court of Appeals found that Deputy
Patterson had training and experience in detecting the
physical manifestations of recent marijuana use, and that he
observed indications that Caffee recently used marijuana.
Although Deputy Patterson testified about his experience
detecting recent marijuana use and that Caffee's
bloodshot, glassy eyes and "white and risen" taste
buds on his tongue reflected such use, the trial court made
no findings as to these points. The trial court was not
required to accept Deputy Patterson's testimony on these
issues, even though it was not contradicted. See Tate v.
State, 264 Ga. 53, 56 (3) (440 S.E.2d 646) (1994)
("Credibility of witnesses and the weight to be given
their testimony is a decision-making power that lies solely
with the trier of fact. The trier of fact is not obligated to
believe a witness even if the testimony is uncontradicted and
may accept or reject any portion of the testimony."). We
do not know why the trial court said nothing about whether
Caffee exhibited signs of recent marijuana use, but we do
know that it was not within the province of the Court of
Appeals to make its own findings in this respect. See
Williams v. State, 301 Ga. 60, 61 (799 S.E.2d 779)
(2017) ("The Court of Appeals erred by assuming that the
trial court must have accepted all of [the deputy's]
testimony as true, and then, based on that erroneous
assumption, going on to make its own additional factual
findings that were not contained in the trial court's
The Court of Appeals' analysis was wrong, but its
ultimate conclusion that the search was reasonable was
Court of Appeals affirmed the trial court's denial of
Caffee's motion to suppress based on a determination that
there was probable cause to search Caffee under the totality
of the circumstances. In so doing, the Court of Appeals
omitted any discussion of whether the warrantless search fell
within an exception to the Fourth Amendment's warrant
Fourth Amendment guarantees "[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures[.]" U.S.
Const. Amend. IV. Ordinarily, a search is deemed to be
reasonable when conducted pursuant to a judicial warrant,
which the Fourth Amendment requires to be supported by
probable cause. Id. ("[N]o warrants shall
issue, but upon probable cause, supported by Oath and
affirmation[.]"); see also Mincey v. Arizona,
437 U.S. 385, 390 (98 S.Ct. 2408, 57 L.Ed.2d 290) (1978).
Searches conducted without a warrant are unreasonable under
the Fourth Amendment unless they fall within a
well-established exception to the warrant requirement.
Arizona v. Gant, 556 U.S. 332, 338 (129 S.Ct. 1710,
173 L.Ed.2d 485) (2009); Williams v. State, 296 Ga.
817, 819 (771 S.E.2d 373) (2015). Some such exceptions