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Lowe v. State

Court of Appeals of Georgia, First Division

October 23, 2019

LOWE
v.
THE STATE

          BARNES, P. J., MERCIER and BROWN, JJ.

          Barnes, Presiding Judge.

         This Court granted Susan Lowe's application for an interlocutory appeal of the trial court's order denying her motion to suppress. On appeal, Lowe contends that the trial court erred in denying her motion to suppress because the search was not justified on the basis of probable cause nor under any exception to the warrant requirement. Upon our review, we reverse.

In reviewing a trial court's ruling on a motion to suppress:
First, the trial judge's 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. Fourth, we review questions of law de novo.

         (Punctuation and citations omitted.) Reyes v. State, 334 Ga.App. 552, 552 (1) (780 S.E.2d 674) (2015).

[A]ppellate courts must focus on the facts found by the trial court in its order, as the trial court sits as the trier of fact. 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.

         (Citations and punctuation omitted.) Caffee v. State, 303 Ga. 557, 557 (814 S.E.2d 386) (2018).

         Guided by these principles, the evidence demonstrates that agents with the Savannah Police Department's Counter Narcotics Team were conducting surveillance on a house on Cottonvale Road based on an anonymous complaint, in the form of a tip sheet. According to the complaint, "M. S.", an unidentified male, was, among other things, selling drugs at the address, and M. S. drove a Ford van. When agents observed a Honda Passport containing two females depart from the address, they followed the vehicle to conduct "mobile surveillance." Three agents in separate vehicles followed the car as it stopped at a Wells Fargo Bank, then continued traveling on Highway 17. One of the agents involved in the mobile surveillance testified at the hearing on the motion to suppress that the decision was made to "follow [the vehicle] and in the event that it gave us probable cause for a traffic infraction, we were going to get [it] stopped." . The agents wanted the vehicle "pulled over, if the opportunity presented itself. . . to be able to search the vehicle and its passengers." The agents radioed the police department to "get a marked unit in the area for when the vehicle committed an infraction." One of the agents trailing the vehicle observed "the vehicle change lanes without giving any kind of signal," and he notified the marked police cars, who then made the traffic stop. Two policemen involved in the traffic stop testified at the motion to suppress hearing. One of the officers testified that they were not given the reason agents wanted the vehicle stopped over the radio, but that were requested to "get probable cause to stop the vehicle." He testified that agents later told him that they wanted to stop the vehicle "to identify the occupants."

         The officer who made the stop approached the driver, who was identified as Lowe, and asked for her license. He testified that he had a conversation with Lowe, but that it was difficult to do so because "she was very nervous. She was shaking." A back-up officer and the agents were also on the scene. The officer gave Lowe's license to the agents who told him to "see if [he could] get her to consent to a search of the car." Although Lowe refused to consent, the officer testified that he misunderstood and told the agents that she had consented to the search.[1]

         During this time, the backup officer approached the passenger window and asked the passenger for identification He testified that the passenger "reached towards the floorboard and when she came back up, I could see in her hand that she had a black mesh pouch and sticking out of that pouch was a plastic baggie. And I noticed some green leafy substance on there." The officer testified that he observed the plastic bag with the green leafy substance when the passenger opened the bag.[2] The officer removed the plastic bag from the pouch and placed it on the roof of the vehicle. He then asked the passenger if there was "anymore in the car" and if there was anything else [he] need[ed] to know about." He asked the passenger again what she had in the car, and what he would find when he searched the car. The passenger responded that she did not have anything else, and the officer then asked Lowe, who's purse was visible, if she had anything in her purse. The women were then removed from the car, and the officer placed the plastic bag back in the car on the passenger's seat and then searched the contents of the pouch. During the ensuing search of the car, the officers retrieve a plastic Ajax container under the driver's floorboard containing methamphetamine. Lowe was subsequently arrested and charged with trafficking in and possession of methamphetamine, possession of marijuana, less than one ounce, and possession of drug related objects. .

         Lowe filed a motion to suppress, arguing, among other things, that the search of her car was unlawful because it was not based on any exception to the Fourth Amendment's warrant requirement. The trial court denied Lowe's motion, finding the search valid under the automobile exception to the Fourth Amendment in that:

the mesh bag and the alleged marijuana were observed inside of [Lowe's] car. [Lowe] and the passenger were seated next to each other in the vehicle. Based on the evidence before it, the Court finds the officers had probable cause to conduct the subsequent warrantless search of the vehicle.

         The trial court relied on this Court's decision in State v. Sarden, 305 Ga.App. 587, 589 (699 S.E.2d 880) (2010), for the proposition that, even in the absence of an exigency preventing an officer from obtaining a search warrant, the automobile exception permits a ...


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