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Felton v State – A12A0244 – July 3 2013 – Pat Downs are not automatic

Felton v. State, A13A0244 – July 3, 2013. Hands Off Officer! – Marijuana Suppressed After Illegal Pat-down – Houston County, Warner Robins, Georgia.  A “heated verbal argument” between a Houston County woman and a man, later identified as Jermoris Felton, was witnessed by a concerned citizen who called the police.  Upon the arrival of the police, Mr. Felton was detained by an officer as part of an investigatory stop, also known as a “second-tier” or “Terry” stop.  The officer testified that Mr. Felton kept putting his hand in his pocket and was acting fidgety and nervous.  The officer testified that Mr. Felton even refused to take his hand out of his pocket when requested to do so.   When the officer asked if he could pat down Mr. Felton for “any weapons or illegal items,” Felton stood silent.  Conducting the pat-down anyways, the officer felt a large item in Felton’s pocket.  When asked if the officer had permission to remove the item, Felton stated, “I don’t care.”  The large item was a crown royal bag containing marijuana.  Mr. Felton was subsequently arrested and later convicted, for possession of marijuana.  Of relevance is the fact that the officer failed to testify that he believed Mr. Felton to be armed and dangerous.

After a motion to suppress hearing was held at the Houston County Courthouse in Warner Robins, Georgia, the trial court denied the Defendant’s motion, equating an officer’s right to detain an individual with the right to conduct a pat-down for officer protection.  Luckily, the Georgia Court of Appeals stepped in to rectify the situation and correct the trial court’s puzzling analysis of long-standing and well-settled Fourth Amendment precedent.

The Georgia Court of Appeals held that although the evidence did not show that Mr. Felton was engaged in criminal activity, the officers were authorized to detain him pending investigation.  However, the officer’s authority did not extend to a pat-down of Mr. Felton’s outer clothing.  Citing the seminal United States Supreme Court case of Terry v. Ohio, the Court noted that, “when conducting an investigatory stop, an officer is entitled to conduct a limited pat-down of the suspect for weapons if the officer reasonably believes the suspect poses a threat to his safety or the safety of others.”  Terry, 392 U.S. at 28-31 (emphasis added).   In a similar vein, Georgia case law states that a pat-down of weapons is only authorized when an officer, “has a reasonable belief preparatory to an intended pat-down that the suspect is armed and presents a danger to the officer or others.”  Ramsey v. State, 306 Ga. App. 726, 728 (2010).   Where the officer failed to testify that he believed Felton to be armed and dangerous, the State failed to carry their burden of proving the lawfulness of the pat-down search for weapons.  Molina  v. State, 304 Ga. App. 93, 95 (2010).

And just to be sure we all know when an officer’s fingertips have encroached upon our right to be free from unlawful pat-downs, this Court eloquently added:  “Before he [officer] places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so.  In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.”

The Court passed on deciding whether Mr. Felton consented to a search by stating, “I don’t care” because the illegal pat-down tainted, “all evidence obtained as a result thereof.”

Post by: Eric Bernstein