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GEORGIA COURT UPHOLDS SEIZURE OF PROPERTY ABANDONED IN FOOT CHASE

April 2016

by Brian S. Batterton, Attorney



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©2016 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)

On March 9th, 2016, the Court of Appeals of Georgia decided Newman v. State [i], which serves as instructive concerning the law related to abandonment of property during an encounter with police.  The relevant facts of Newman, taken directly from the case, are as follows:

So viewed, the evidence shows that in June 2013, a police officer was patrolling downtown Rome when he observed Newman in a parking lot behind a parking deck around 3:30 in the morning. Newman was standing near the driver's side of a parked vehicle and the officer thought at first that Newman was peering into the vehicle. The officer testified that there had been a rash of car break-ins in the area and the motion-activated street light was on over the car, so he thought Newman may have been trying to break into it. When the officer drove up to Newman with his window open, the officer "could smell the pungent odor of green marijuana emitting from around [Newman]." When the officer asked Newman if he was okay and why he was back there, Newman explained he was calling for a cab.

The officer asked Newman for identification because of the marijuana smell, and while he waited for his computer to check Newman's information, "the entire time this marijuana smell [was] just reeking into [the officer's] car." The officer then got out of his patrol car, told Newman, with whom he had attended high school, that he smelled marijuana, and asked Newman to empty his pockets. As Newman complied with the request, the officer noticed that he avoided one of the big cargo pockets on his pants that bulged and "kind of sagged a bit." At this point, the officer asked Newman to put his hands on the patrol car to pat him down.

As the officer "went for" the pocket Newman had been avoiding, Newman ran away. A backup officer assisted the first officer in finding Newman hiding in the vicinity, and he was handcuffed and returned to the patrol car. The backup officer searched Newman's possible escape route and found a loaded handgun, a large amount of cash, and a digital scale. The officers also found a bag of marijuana stuck behind a down spout near the parking lot where Newman was stopped. The officers then searched Newman pursuant to arrest and found more cash on him. Newman was arrested and he was charged with and found guilty of loitering, possession of marijuana, obstruction of an officer, and possession of a firearm by a felon. [ii]

Newman was convicted of loitering, possession of marijuana, obstruction and possession of firearm by a convicted felon.  He appealed the sufficiency of the evidence against him regarding the loitering conviction and he also argued ineffective assistance of counsel for failing to file a motion to suppress the evidence seized during the incident. 

Thus, the first issue on appeal was whether the evidence was sufficient to sustain Newman’s loitering and prowling conviction.  The court first stated:

A person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding citizens under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity." OCGA § 16-11-36 (a).

Specifically, as a threshold matter, the statute requires at least some manifestation of aberrant behavior and the circumstances must be such that this behavior warrants alarm for the safety of persons or property in the vicinity. Our Supreme Court [has] concluded that while perspectives may differ as to what conduct is "usual" for law-abiding citizens, the statute narrows the construction of this phrase by making it clear the conduct must be that which would alarm a reasonable person that danger exists to person or property…

OCGA § 16-11-36 (b) offers guidelines that a rational trier of fact may consider while pondering whether a person's conduct gave reasonable alarm, such as "the fact that the person takes flight upon the appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or some object." OCGA § 16-11-36 (b); [iii]

The court then looked at various facts of Newman’s case, particularly, it was late at night, he appeared to be looking in a car, he smelled of marijuana, and his explanation that he was waiting for a cab was questionable based on what law abiding citizens typically do when waiting for a cab (go to a well-lit, more accessible area).  Further, Newman tried to conceal an object in his pants and fled from the officer.  The court then held that these facts authorized the trier of fact to find Newman guilty of loitering and prowling.

The court next addressed the ineffective assistance of counsel issue regarding his previous attorney’s failure to file a motion to suppress.  The court of appeals stated that in order to prevail on this claim, Newman must show a strong likelihood that he would have prevailed on the motion to suppress, had it been filed. 

Regarding this issue, the court stated:

While Newman argues that his trial counsel was ineffective for failure to file a motion to suppress the evidence because the stop was illegal under Terry v. Ohio, 392 U. S. 1 (III) (88 SCt 1868, 20 LEd2d 889) (1968), regardless of the legality of the stop, there was no evidence seized from Newman. The officer found no contraband on Newman, and Newman disavowed ownership of the gun, drugs, cash, and digital scale found along his exit route. Those items "were abandoned property, and therefore, seizure of those items did not implicate the Fourth Amendment." Williams v. State, 310 Ga. App. 90, 92 (2) (712 SE2d 113) (2011). A defendant has no proprietary interest in or legitimate expectation of privacy regarding items found discarded on public property, because "[t]he constitutional protection of the Fourth and Fourteenth Amendments does not apply to property which has been abandoned." (Citation and punctuation omitted.) McKinnon v. State, 305 Ga. App. 871, 872-873 (700 SE2d 875) (2010). See also Burgeson v. State, 267 Ga. 102, 105 (3) (b) (475 SE2d 580) (1996); Walker v. State, 228 Ga. App. 509, 510 (1) (493 SE2d 193) (1997) ("[W]hen drugs are discarded during flight or before the suspect is 'seized,' they are admissible as evidence even if there is an issue about the officer's probable cause or articulable suspicion.").

In other words, because Newman abandoned the evidence prior to submitting to the officer’s authority or being seized by the officer, the evidence was admissible and not subject to suppression under the exclusionary rule.  Therefore, Newman is unable to show the likelihood that he would have prevailed at a motion to suppress.

The judgment of the trial court and the conviction were therefore affirmed.

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Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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CITATIONS:

[i]  A15A1662 (Ga. App. Decided March 9, 2016)

[ii] Id.

[iii] Id.

 

 
       
 


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