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State v. Gooch3/19/2004
The State appeals from an order of the Gwinnett Superior Court granting Clayton Jewell Gooch's motion to suppress drugs located during a consent search of his person. Because the trial court's ruling was based on **342 an erroneous application of law to the facts of this case, we reverse.
The only evidence at the motion to suppress was adduced from the testimony of the two officers on the scene; Gooch did not testify or otherwise contest the officers' testimony. "When reviewing a trial court's order on a motion to suppress where the facts are undisputed, we apply a de novo standard of review to the trial court's application of the law to the facts. [Cit.]" [FN1]
FN1. Swan v. State, 257 Ga.App. 704, 705, 572 S.E.2d 64 (2002).
The evidence of record shows that five young men were traveling in a vehicle through Duluth on Highway 120 eastbound at approximately 4:00 a.m. The driver of the car was Bryan Cummings, and appellant Gooch was a passenger in the back seat. Corporal Hutchinson with the Duluth Police Department stopped the vehicle because it had a handwritten piece of paper stating "Tag Applied For" attached to the rear license plate area, instead of a statutorily authorized tag. Upon approaching the driver's side of the car, Hutchinson immediately smelled the odor of an alcoholic beverage emanating from the vehicle in general and from driver Cummings in particular. Due to the number of passengers and the necessity of conducting a DUI investigation, Hutchinson called for backup; Officer Lacow *747 responded and maintained surveillance over the passengers while Hutchinson questioned Cummings.
When asked whether he had been drinking, Cummings admitted to having consumed "three beers" at a local bar, Julians. It is undisputed that Cummings also volunteered to Hutchinson that he had been smoking marijuana and that he had marijuana in the car. Cummings gave the officer a partially smoked marijuana cigarette from the vehicle's ashtray. Corporal Hutchinson asked Cummings to step out of the car; the officer performed a field evaluation and determined that Cummings was under the influence of drugs and alcohol. He arrested Cummings and impounded his car with the intent to search it to determine if more marijuana was inside.
During Hutchinson's DUI investigation of the driver, Officer Lacow smelled the odor of alcohol coming from the vehicle. After the marijuana cigarette was turned over and the driver taken into custody, the passengers were asked to step out of the car so that it could be searched. Officer Lacow engaged in conversation with the passengers, who told him they had attended a "Nickelback" concert earlier that night. The officers asked the passengers if they were in possession of marijuana, and each responded in the negative although "they did admit to drinking." Appellant Gooch admitted that he was "very intoxicated." The officers then asked for consent to search each passenger, and each agreed. Lacow testified that he asked for consent to search the passengers as a group and then re-asked each individual passenger for consent prior to the actual search. It is undisputed that appellant Gooch voluntarily consented to a search of his person. While patting down Gooch, Lacow felt a bulge in his front pocket; he asked Gooch if he would remove the item from his pocket, and it is undisputed that Gooch voluntarily did so, revealing a bag of marijuana and a pipe. Gooch was then searched incident to arrest, and a Schedule II drug was located in pill-form on his person.
In its order granting Gooch's motion to suppress, the trial court concluded that there was no independent basis for conducting a pat-down of the passengers since there was no evidence that officer safety was an issue. The trial court further held that
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