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Court of Appeals of Georgia.


No. A08A0664.

Decided: May 12, 2008

Richard Parker, for Appellant. Joseph Kenneth Mulholland, Dist. Atty., Samuel M. Olmstead, Ryan Curtis Cleveland, Asst. Dist. Attys., for Appellee.

 Following a bench trial, Octavian Teal was convicted of possession of cocaine with the intent to distribute and possession of marijuana with the intent to distribute.  OCGA § 16-13-30.   Teal claims that the trial court erred in denying his motion to suppress evidence seized during an allegedly unlawful search.   We agree and reverse.

 An appellate court reviewing a trial court's order concerning a motion to suppress evidence must construe the evidence most favorably to the upholding of the trial court's findings and judgment.  Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646 (1994).   Where, as here, 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 review.  Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474 (1994).

So viewed, the record shows that police officers stopped a car in which Teal was a passenger so that they could serve an active warrant on the driver.   While one of the officers served the warrant on the driver, the other officer asked Teal to exit the vehicle and turn around so he could conduct a Terry pat-down search.   See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).   When the officer felt “little baggies” in one of Teal's pockets, Teal attempted to get away from the officer.   After Teal was arrested, a search of his pockets produced baggies containing a total of 4.24 grams of crack cocaine and 17.5 grams of marijuana.

At the hearing on the motion to suppress, the officer who conducted the pat-down testified that he performed the same “as a matter of safety,” but he also admitted that it was his general practice to automatically pat down any person he asked to exit a car.   The officer agreed that he had no reason to believe that Teal was armed, but testified that he “was just checking to make sure.”

 On a motion to suppress, the burden of proving the search was lawful is on the State.  OCGA § 17-5-30.   See State v. Slaughter, 252 Ga. 435, 438, 315 S.E.2d 865 (1984).   Here, the State had to show that “a reasonably prudent man in the circumstances [of the officer] would be warranted in the belief that his safety or that of others was in danger.  Terry [, supra at] 27, 88 S.Ct. 1868․” (Citation omitted.)  Milby v. State, 256 Ga.App. 429, 430, 569 S.E.2d 256 (2002).

In Edgell v. State, 253 Ga.App. 775, 778, 560 S.E.2d 532 (2002), this Court was presented with a similar case in which an officer testified that a Terry pat-down was conducted for safety reasons, while also acknowledging that he had no suspicion that the defendant was armed or a threat to his personal safety.   As we held in Edgell,

[t]he safety of officers is of extreme importance to this Court.   Nonetheless, our constitution requires an officer to provide evidence to show that an act alleged to be performed for his safety [or the safety of others] was actually performed for that purpose in conformance with the requisite standards of Terry.   Without appropriate evidence that the officer had a reasonable basis for concluding that [Teal] was armed or was otherwise a threat to his personal safety, the [Terry pat-down was] unconstitutional.   Because the evidence in this case does not show that [the officer] had a reasonable basis for concluding that [Teal] was armed or dangerous prior to performing his automatic and habitual pat-down, the pat-down was constitutionally improper․

(Citation and punctuation omitted.)  Id.

Given that the discovery of the crack cocaine and marijuana immediately followed and were in response to the unconstitutional search, the production of the drugs was tainted, and they should have been suppressed.  Wilson v. State, 272 Ga.App. 291, 293, 612 S.E.2d 311 (2005).

Judgment reversed.

MILLER, Judge.

BLACKBURN, P.J., and ELLINGTON, J., concur.

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