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Debord v. State10/26/2005
RUFFIN, C. J., JOHNSON, P. J., BARNES, J.
Following a bench trial and subsequent denial of his motion for new trial, Grady Dwight Debord appeals from his conviction for possession of methamphetamine contending that the trial court erred in denying his motion to suppress. For the reasons that follow, we reverse.
When reviewing a trial court's decision on a motion to suppress, this court's responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court's findings on disputed facts and credibility are adopted unless they are clearly erroneous.
(Citation and punctuation omitted.) Sikes v. State, 247 Ga. App. 855, 856 (1) (545 SE2d 73) (2001). Here, the only evidence at the motion to suppress was adduced from the testimony of the two officers on the scene; Debord did not testify. Consequently, "where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review." Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).
So construed, testimony at the motion to suppress hearing reveals that a Cherokee County police officer stopped a vehicle in which Debord was a passenger for a defective tag light. The officer asked the driver and Debord for identification, and determined that the driver had an outstanding warrant. The officer testified that he recognized Debord from a previous narcotics violation. Another officer arrived as back-up, and as the first officer arrested the driver, the second officer questioned Debord.
The responding officer testified that he asked Debord to step out of the vehicle and then asked him whether he had any weapons. He said that although Debord said that he was not armed, the officer noticed a pocketknife "clipped to his pants pocket." The officer testified that he pointed the knife out to Debord and "removed that pocketknife as security to myself before I conducted a Terry frisk." The officer "discovered in [Debord's] top, left breast pocket of his shirt, based on training and knowledge and experience, a marijuana pipe." Debord was arrested for possession of the marijuana pipe, and a during the search incident to arrest, a wrapper containing methamphetamine was recovered.
Debord argued that there was no justification for the initial pat- down search, and that even if the frisk was permissible, reaching into his pockets to retrieve the pipe was not. The State argued that the officer plainly felt "what he can identify, based on his training and experience, as a marijuana pipe. He then goes into the pocket, pulls it our and, indeed, it is that pipe."
In denying the motion to suppress, the trial court held that Debord's obvious inebriation required
detention and inquiry before they would authorize him to either leave or they arrest him. So, I think, even without danger. . . they have a right to do a Terry frisk for their safety. However, the evidence is undisputed that they did see a knife. Now, I know there's not one here now, and that's certainly a matter that the Court can consider, but the evidence is undisputed that they did see a knife. The evidence is undisputed that he does have a history of drug violations. The evidence is undisputed that he had been drinking. All of these make it, in my opinion, a sufficient basis for the officers to conduct a Terry frisk.
We do not agree.
A reasonable search for weapons for the protection of the police officer is permitted where he has reason to believe that he is
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