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State v. Preston

Court of Appeals of Georgia, Second Division

February 19, 2019

THE STATE
v.
PRESTON.

          MILLER, P. J., BROWN and GOSS, JJ.

          MILLER, PRESIDING JUDGE.

         Vanlen Roshaud Preston was charged with numerous drug-related offenses, possession of a firearm during commission of a felony, obstructing a police officer, and loitering after police found drugs, drug-related paraphernalia, and a weapon during a search of his car. The trial court granted Preston's motion to suppress the evidence from the search, and the State now appeals. After a thorough review of the record, we conclude that the trial court erred in granting the motion to suppress because the police officer had reasonable suspicion of criminal activity when he approached Preston. The search of the car was permissible under the automobile exception because the police observed the firearm in plain sight while obtaining Preston's identification. Accordingly, we reverse the trial court's order suppressing the evidence.

There are three fundamental principles which must be followed when conducting an appellate review of a trial court's ruling on a motion to suppress. First, 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. These principles apply equally whether the trial court ruled in favor of the State or the defendant.

(Citations, punctuation, and emphasis omitted.) Phillips v. State, 338 Ga.App. 231 (789 S.E.2d 421) (2016); see also Hughes v. State, 296 Ga. 744, 746 (1) (770 S.E.2d 636) (2015).

         So viewed, the evidence showed that a Clayton County police sergeant was at a gas station when he observed Preston make contact with multiple people in a five minute period. The sergeant had been trained to recognize hand-to-hand drug transactions when he was an undercover detective in the narcotics division and had made approximately 200 arrests for hand-to-hand drug transactions. Based on this training, the sergeant believed that Preston had engaged in hand-to-hand drug sales. The sergeant contacted two nearby police officers, relayed what he had observed, and asked them to investigate. The officers drove into the gas station parking lot, and shortly thereafter, Preston got into his car and pulled up to an available gas pump. As Preston exited his car and walked toward the store, one of the officers approached him and requested identification. The officer instructed Preston to sit on the cement near the pump. When Preston gave the officer his name, the officer asked him to produce his identification. As Preston opened the car door to get his identification, and sat in the car, the officer peered inside the car from his position by the driver's side door. From that vantage point, the officer observed a firearm in the car, and he believed that Preston was reaching for the weapon. Preston admitted that he had a gun in the car.

         The officer removed Preston from the car, and the two struggled. Eventually, police were able to handcuff Preston. Police then tased him, while he was handcuffed, and searched him. During the search, police found over $1, 000 in cash, in multiple denominations. In the car, police found numerous Xanax and oxycodone pills, powder cocaine, crack cocaine, "Flex, "[1] baggies, and a scale.

         The trial court suppressed all the evidence, finding that the police officer who interacted with Preston had observed no criminal conduct and thus had no reasonable suspicion to conduct a second-tier stop. The trial court further concluded that Preston was seized under the Fourth Amendment when he was instructed to sit on the concrete near the pumps and that the officer then conducted an unlawful search, requiring the evidence be suppressed. The State now appeals.

         On appeal, the State argues that the trial court erred in concluding that there was no reasonable suspicion because the collective knowledge of the officers provided a reasonable suspicion that drug transactions occurred. The State further contends that the officer detected the odor of marijuana, which gave him probable cause to search the car.[2] We agree that the police conducted a valid search.

         Under the Fourth Amendment, there are three tiers of police-citizen encounters:

a first-tier encounter involves only voluntary communications between police and citizens without any coercion or detention by law enforcement; a second-tier encounter involves a brief detention of a citizen by police to investigate the possibility that a crime has been or is being committed; and a third-tier encounter is an arrest and must be supported by probable cause.

(Citations omitted.) Johnson v. State, 343 Ga.App. 310, 312 n. 4 (807 S.E.2d 101) (2017).

It is well-established that "a seizure does not occur simply because a police officer approaches an individual and asks a few questions. Rather, an encounter escalates from a first-tier consensual interaction to a second-tier investigatory detention only when the individual is "seized" by the officer, i.e., only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of the individual.

(Citations and punctuation marks omitted.) Dougherty v. State, 341 Ga.App. 120, 124-125 (799 S.E.2d 257) (2017). Here, the officer initially approached Preston asking for identification, an interaction that was clearly a first-tier encounter. Id. When the officer instructed Preston to sit on the cement near the gas pump, however, that encounter rose to the level of a second tier. Walker v. State, 299 Ga.App. 788, 790 (1) (683 S.E.2d 867) (2009) (encounter became second-tier investigatory detention when suspect sat on pavement at the ...


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