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McCormack v State – a weapons frisk is not authority to open a discovered pill container

McCormack v. State, A13A1390, November 22, 2013.  James McCormack was stopped by police for walking in the roadway and obstructing traffic.  He had a knife clipped to his belt so the Officer investigating McCormack for walking in the roadway performed a search for weapons for officer safety known as a Terry frisk.  No weapons were found but a small square pillbox was felt and removed from McCormack’s pocket with his consent.  However, the Officer opened the box without McCormack’s consent. The Georgia Court of Appeals held that a Terry frisk only allows the removal of objects either identified as weapons or as immediately detectable as illegal. A pillbox is not de facto illegal as it could contain aspirin. While McCormack’s consent allowed the Officer to remove the box, it did not justify him opening the box. See, Brown v. State, 293 GA. App. 564, 566 (2008); Williams v. State, 318 Ga App 715 (2012) and Cartwright v. State,  265 Ga App 520, 521 (2004).  Therefore, the Court of Appeals reversed the ruling of the Clayton County Trial Court in Jonesboro, Georgia which found that the search of the pillbox was permissible finding there wasn’t any evidence to support going into the box.

-Author: George C. Creal, Jr.