Smith v. State, 454 S.E.2d 635 (Ga. Ct. App. 1995). · Go Syfert
Smith v. State, 454 S.E.2d 635 (Ga. Ct. App. 1995). Cases Citing This Book View Copy Cite
139 citation events (85 in the last 25 years) across 1 distinct court.
Strongest positive: Caffee v. the State (gactapp, 2017-05-10)
Treatment trajectory · 1996 → 2026 · click a year to view as-of
1996 2011 2026
Top citers, strongest first. 26 distinct citers.
discussed Cited as authority (rule) Caffee v. the State
Ga. Ct. App. · 2017 · confidence medium
Appx. 597, 605 (II) (A) (1) (11th Cir. 2015) (unpublished). 13 (Punctuation omitted.) Barraco v. State, 244 Ga.App. 849, 850 (1) ( 537 SE2d 114 ) (2000), quoting Smith v. State, 216 Ga.App. 453, 454-455 (2) ( 454 SE2d 635 ) (1995). 14 Caffee had two large dogs in his truck, which Patterson had him remove and hold while the truck was searched. 15 See Davis v. State, 322 Ga. App. 217, 218-220 ( 744 SE2d 393 ) (2013); Barraco, 244 Ga. App. at 850 (1); Pollack v. State, 294 Ga. App. 400, 403-404 (3) (b) ( 670 SE2d 165 ) (2008).
discussed Cited as authority (rule) Hayes v. State
Ga. Ct. App. · 2008 · confidence medium
Thus, we have long approved consensual searches because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so.”) (citations omitted). 33 See Cuaresma, supra. 34 Any ambiguity in the evidence must be resolved in favor of the judgment, because “we adopt the trial court’s findings of fact unless they are clearly erroneous, i.e., not supported by any evidence.” (Citation omitted; emphasis supplied.) Perez v. State, 280 Ga. App. 241 ( 633 SE2d 572 ) (2006). 35 (Citations and punctuation omitted.) Smith v. State, 216 Ga. App. 453, 454 (2) ( 454 S…
discussed Cited as authority (rule) Bennett v. State
Ga. Ct. App. · 2007 · confidence medium
Blackburn, P. J., and Bernes, J., concur. 1 The trial court also found Bennett guilty of possessing methamphetamine, but the trial court merged this count into the charge of possessing methamphetamine with the intent to distribute at sentencing. 2 See Jackson v. State, 280 Ga. App. 716 ( 634 SE2d 846 ) (2006). 3 See id. at 716-717 . 4 The State does not dispute that Bennett was detained from the time of the initial traffic stop until his subsequent arrest. 5 See Ohio v. Robinette, 519 U. S. 33, 39 (117 SC 417, 136 LE2d 347) (1996). 6 (Punctuationomitted.) State v. Jourdan, 264 Ga. App. 118, 12…
examined Cited as authority (rule) State v. Bibbins (3×)
Ga. Ct. App. · 2004 · confidence medium
Thus, while the facts of Davis and Watts may have involved a search warrant, the legal, "burden shifting" discussion contained therein applies to this case and all other cases involving motions to suppress. [37] See Daniel v. State, supra at 846, 597 S.E.2d 116 . [38] Schneckloth v. Bustamonte, supra at 247, 93 S.Ct. 2041 . [39] Id. at 226 , 93 S.Ct. 2041 ; Hunter v. State, 190 Ga.App. 52, 53 (1), 378 S.E.2d 338 (1989). [40] Schneckloth v. Bustamonte, supra at 226-227, 93 S.Ct. 2041 . [41] Id. at 229 , 93 S.Ct. 2041 . [42] OCGA §§ 5-6-34(b); 5-7-1(a)(4). [43] See, e.g., State v. Habib, 260 G…
discussed Cited as authority (rule) Gonzales v. State
Ga. Ct. App. · 2002 · confidence medium
Andrews, P. J., and Mikell, J., concur. 1 See Nelson v. State, 247 Ga. App. 455 ( 544 SE2d 189 ) (2001) (violation of OCGA § 40-2-41 constitutes valid basis for initiating traffic stop). 2 Tate v. State, 264 Ga. 53, 54 (1) ( 440 SE2d 646 ) (1994). 3 Id. 4 Simmons v. State, 223 Ga. App. 781, 782 (2) ( 479 SE2d 123 ) (1996). 5 Migliore v. State of Ga., 240 Ga. App. 783, 786 ( 525 SE2d 166 ) (1999); Simmons, supra; Rogers v. State, 206 Ga. App. 654, 659 (3) ( 426 SE2d 209 ) (1992). 6 State v. Sims, 248 Ga. App. 277, 278 ( 546 SE2d 47 ) (2001) (citing Florida v. Bostick, 501 U. S. 429, 434 (111 S…
examined Cited as authority (rule) Berry v. State (10×) also: Cited "see"
Ga. Ct. App. · 2001 · confidence medium
United States v. Sharpe, 470 U. S. 675, 682 (105 SC 1568, 84 LE2d 605) (1985); Smith v. State, 216 Ga. App. 453, 454 ( 454 SE2d 635 ) (1995).
examined Cited as authority (rule) State v. Gibbons (4×) also: Cited "see, e.g."
Ga. Ct. App. · 2001 · confidence medium
Simmons v. State, supra, 223 Ga. App. at 782 ; Smith v. State, 216 Ga. App. 453, 454-455 (2) ( 454 SE2d 635 ) (1995).
discussed Cited as authority (rule) Carthon v. State
Ga. Ct. App. · 2001 · confidence medium
J., dissenting). 12 State v. Becker, 240 Ga. App. 267, 270 (1) ( 523 SE2d 98 ) (1999); Seith v. State, 225 Ga. App. 684, 686-687 ( 484 SE2d 690 ) (1997). 13 (Emphasis omitted.) Joiner v. State, 239 Ga. App. 843, 848 (2) ( 522 SE2d 25 ) (1999). 14 (Citations, punctuation and emphasis omitted.) Lyons v. State, 244 Ga. App. 658, 663 (2) ( 535 SE2d 841 ) (2000); Seith, supra, 225 Ga. App. at 685 . 15 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). 16 Berkemer v. McCarty, 468 U. S. 420, 439 (104 SC 3138, 82 LE2d 317) (1984) (traffic stops analogous to Terry stops); Smith v. State, 216 Ga. App. 453, 4…
discussed Cited as authority (rule) State v. Sims
Ga. Ct. App. · 2001 · confidence medium
However, as is shown in Migliore and Smith v. State, 216 Ga. App. 453, 454-455 ( 454 SE2d 635 ) (1995), if the officer continues to detain the subject after the conclusion of the traffic stop and interrogates him or seeks consent to search without reasonable suspicion of criminal activity, the officer has exceeded the scope of a permissible investigation of the initial traffic stop.
cited Cited as authority (rule) Lyons v. State
Ga. Ct. App. · 2000 · confidence medium
(Citations and punctuation omitted.) Smith v. State, 216 Ga. App. 453, 454 (2) ( 454 SE2d 635 ) (1995).
cited Cited as authority (rule) Barraco v. State
Ga. Ct. App. · 2000 · confidence medium
Smith v. State, 216 Ga. App. 453, 454-455 ( 454 SE2d 635 ) [(1995)].
discussed Cited as authority (rule) State v. Hanson (2×)
Ga. Ct. App. · 2000 · confidence medium
Smith v. State, 216 Ga.App. 453, 455 (2), 454 S.E.2d 635 (1995).
examined Cited as authority (rule) Almond v. State (5×) also: Cited "see"
Ga. Ct. App. · 2000 · confidence medium
See State v. Blair, 239 Ga. App. 340, 341 ( 521 SE2d 380 ) (1999). 5 Florida v. Royer, 460 U. S. 491, 500 (II) (103 SC 1319, 75 LE2d 229) (1983) (plurality opinion); see Smith v. State, 216 Ga. App. 453, 454 (2) ( 454 SE2d 635 ) (1995). 6 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). 7 Smith, supra, 216 Ga. App. at 455 (2); see Migliore, supra, 240 Ga. App. at 785 ; Blair, supra, 239 Ga. App. at 341 ; United States v. Fernandez, 18 F3d 874, 878 (10th Cir. 1994). 8 Smith, supra, 216 Ga. App. at 455 (2); see Blair, supra, 239 Ga. App. at 342 ; see generally OCGA § 17-5-30 (a). 9 Smith, supra, 2…
cited Cited as authority (rule) State v. Williams
Ga. Ct. App. · 2000 · confidence medium
Smith v. State, 216 Ga. App. 453, 454 (2) ( 454 SE2d 635 ) (1995).
discussed Cited as authority (rule) Migliore v. State
Ga. Ct. App. · 1999 · confidence medium
Pitts v. State of Ga., 207 Ga. App. 606, 607 (1) ( 428 SE2d 650 ) (1993). 2 Hughes v. State, 269 Ga. 258, 259 (1) ( 497 SE2d 790 ) (1998). 3 Espinoza v. State, 265 Ga. 171, 172 (1) ( 454 SE2d 765 ) (1995). 4 Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). 5 216 Ga. App. 453, 454 (2) ( 454 SE2d 635 ) (1995). 6 (Citations and punctuation omitted.) Id. 7 State v. Blair, 239 Ga. App. 340, 341 ( 521 SE2d 380 ) (1999); Simmons v. State, 223 Ga. App. 781, 782 (2) ( 479 SE2d 123 ) (1996). 8 Supra. 9 Supra. 10 Supra. 11 Blair, supra at 340 . 12 Id. at 342 (citing generally Tate v. State, 2…
cited Cited as authority (rule) State v. Blair
Ga. Ct. App. · 1999 · confidence medium
As authority in support of its decision, the court cited Smith v. State, 216 Ga. App. 453, 454 (2) ( 454 SE2d 635 ) (1995).
discussed Cited as authority (rule) State v. Hall
Ga. Ct. App. · 1998 · confidence medium
Compare Parker v. State, 233 Ga. App. at 617-618 (finding search unlawful where officer testified that he asked for consent to search following a traffic stop “just for the hell of it”); Simmons v. State, 223 Ga. App. 781, 782 (2) ( 479 SE2d 123 ) (1996) (finding search unlawful where driver was merely nervous in responding to police questions, but did not give conflicting information); Smith v. State, 216 Ga. App. 453, 455 (2) ( 454 SE2d 635 ) (1995) (officer’s hunch that driver possessed narcotics did not justify probe beyond basis for original traffic stop).
cited Cited as authority (rule) Parker v. State
Ga. Ct. App. · 1998 · confidence medium
The state’s attempt to distinguish the case at issue from Smith v. State, 216 Ga. App. 453, 454 (2) ( 454 SE2d 635 ) (1995), is unpersuasive.
discussed Cited as authority (rule) Hinson v. State (2×)
Ga. Ct. App. · 1998 · confidence medium
So I could have questioned her later on as to the facts of the case, which I did in fact do." At the time of the search the officer did not know whether Hinson would be formally arrested or allowed to reenter his car. *699 An investigative stop must be "limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop." (Citation and punctuation omitted.) Smith v. State, 216 Ga.App. 453, 454 (2), 454 S.E.2d 635 (1…
examined Cited "see" Bius v. State (4×)
Ga. Ct. App. · 2002 · signal: see · confidence high
See Smith v. State, 216 Ga. App. 453, 455 (2) ( 454 SE2d 635 ) (1995).
examined Cited "see" Bell v. State (3×)
Ga. Ct. App. · 2001 · signal: see · confidence high
Smith, P. J., and Phipps, J., concur. 1 State v. Winnie, 242 Ga. App. 228, 229 ( 529 SE2d 215 ) (2000). 2 Id. 3 OCGA § 40-8-76.1 (f). 4 See State v. Milsap, 243 Ga. App. 519, 520 ( 528 SE2d 865 ) (2000). 5 OCGA § 40-8-76.1 (f). 6 Davis v. State, 232 Ga. App. 320, 321-322 (1) ( 501 SE2d 836 ) (1998). 7 State v. Blair, 239 Ga. App. 340, 341 ( 521 SE2d 380 ) (1999). 8 Id.; Barraco v. State, 244 Ga. App. 849, 850 (1) ( 537 SE2d 114 ) (2000). 9 Blair, supra; see Almond v. State, 242 Ga. App. 650, 652 (1) ( 530 SE2d 750 ) (2000). 10 Migliore v. State of Ga., 240 Ga. App. 783, 785 ( 525 SE2d 166 ) …
discussed Cited "see" State v. Cunningham
Ga. Ct. App. · 2000 · signal: see · confidence high
See Smith v. State, 216 Ga. App. at 454-455 (2); State v. Kwiatkowski, 238 Ga. App. 390 ( 519 SE2d 43 ) (1999); see generally Parker v. State, 233 *667 Ga. App. 616, 617-619 (1) ( 504 SE2d 774 ) (1998).
discussed Cited "see" State v. Kwiatkowski (2×)
Ga. Ct. App. · 1999 · signal: see · confidence high
See Smith v. State, 216 Ga. App. 453, 454-455 (2) ( 454 SE2d 635 ) (1995).
discussed Cited "see" Simmons v. State (2×)
Ga. Ct. App. · 1996 · signal: see · confidence high
See Smith v. State, 216 Ga. App. 453, 455 ( 454 SE2d 635 ) (1995).
discussed Cited "see, e.g." Navicky v. State (2×)
Ga. Ct. App. · 2000 · signal: compare · confidence low
J., and Smith, P. J., concur. 1 Compare Bowers v. State, 221 Ga. App. 886 ( 473 SE2d 201 ) (1996) (physical precedent only); Brown v. State, 188 Ga. App. 184 ( 372 SE2d 514 ) (1988). 2 Taylor v. State, 230 Ga. App. 749, 750 (1) (a) ( 498 SE2d 113 ) (1998). 3 Id. at 750-751 (1) (b) (noting that the Whren v. United States, 517 U. S. 806 (116 SC 1769, 135 LE2d 89) (1996) test for determining whether a traffic stop is pretextual supplants the test set forth in Tarwid v. State, 184 Ga. App. 853, 854 (1) ( 363 SE2d 63 ) (1987)). 4 Gamble v. State, 223 Ga. App. 653, 656 (3) ( 478 SE2d 455 ) (1996). 5…
discussed Cited "see, e.g." Sutton v. State (2×)
Ga. Ct. App. · 1996 · signal: compare · confidence low
See Pitts v. State, 221 Ga. App. 309 (2) ( 471 SE2d 270 ) (1996); compare Smith v. State, 216 Ga. App. 453 (2) ( 454 SE2d 635 ) (1995).
SMITH
v.
State
A94A2622.
Court of Appeals of Georgia.
Feb 28, 1995.
454 S.E.2d 635
Daniel B. Kane, for appellant., David McDade, District Attorney, Jackie N. Stanton, James E. Barker, Assistant District Attorneys, for appellee.
Ruffin.
Cited by 43 opinions  |  Published
Ruffin, Judge.

Eric Ake Smith was convicted of possession of less than one ounce of marijuana in violation of the Georgia Controlled Substances Act. On appeal, Smith contends the trial court erred in denying his motion to suppress.

The evidence shows that one morning, shortly after midnight, Smith was pulled over by an investigator in the narcotics division of the Douglasville Police Department. The officer testified he observed Smith swerve into different lanes three or four times, and pulled him over because he suspected Smith could have been under the influence of alcohol or drugs. The officer told Smith why he pulled him over and requested his driver’s license, which Smith produced. The officer then asked Smith if he had been drinking. When Smith told the officer he had not been drinking, the officer asked why Smith was weaving. Smith told the officer he was very tired because he had traveled from another state. The officer testified Smith had no odor of alcohol on his breath and no field sobriety tests were administered.

Following the questions regarding Smith’s weaving, the officer asked if he could search Smith’s pickup truck. When Smith would not give his consent to the search, the officer asked if he had any contraband, specifically narcotics, in the truck. When Smith denied having contraband and explained that he just did not want the officer to search the truck, the officer told Smith he would have to call the K-9 unit. The officer testified he detained Smith because he “suspected he[*454] possibly could have had narcotics in his vehicle,” then went back to his patrol car, requested the K-9 unit and checked the status of Smith’s driver’s license. When asked the basis for his suspicion, the officer stated that because Smith “wouldn’t consent to a search, [he] felt he had something to hide in the vehicle.” After checking the license and calling for the K-9 unit, the officer observed Smith seated in the truck and placing something in his mouth. When the officer approached the truck, he saw part of a plastic bag sticking out of Smith’s mouth. Following the officer’s instructions, Smith stepped out of the truck and spit out a bag of what appeared to be marijuana.

In determining whether the trial court erred in denying Smith’s motion to suppress the marijuana, we must determine “whether the officer’s action [in pulling Smith over] was justified at its inception, and whether [the detention] was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, 392 U. S. 1, 20 (88 SC 1868, 20 LE2d 889) (1967).

1. Smith argues that the initial stop was unlawful because the weaving was a mere pretext to conduct a drug investigation. We disagree. “[I]n making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the [stop] ‘warrant a man of reasonable caution in the belief that the action taken was appropriate? [Cits.]” Id. at 21-22. In the instant case, those facts were that the officer observed Smith weaving and this weaving “had in fact served as the actual reason for the stop, the immediate purpose of which had been to investigate a possible DUI violation rather than to effect a search for drugs.” Pupo v. State, 187 Ga. App. 765, 766 (1) (371 SE2d 219) (1988). The trial court found, and we agree, that stopping a vehicle under these circumstances was appropriate for the protection of the public. “Consequently, the trial court’s factual determination that the [officer’s] initial detention of the vehicle had constituted a bona fide traffic stop is supported by the evidence and must be sustained on appeal. [Cit.]” Id.

2. We turn now to an inquiry regarding the scope of Smith’s detention. “While a reasonable investigative stop does not offend against the Fourth Amendment, a Terry stop is subject to strict boundaries regarding duration, intent, and scope. [Cit.] Such a stop has been described by this court as a brief stop, limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop. [Cit.]” Raney v. State, 186 Ga. App. 758, 759 (368 SE2d 528) (1988). Thus, the United States Supreme Court has held that “[t]he scope of the detention must be carefully tailored to its underlying justification.” Florida v. Royer, 460 U. S. 491, 500 (103[*455] SC 1319, 75 LE2d 229) (1983).

Decided February 28, 1995. Daniel B. Kane, for appellant. David McDade, District Attorney, Jackie N. Stanton, James E. Barker, Assistant District Attorneys, for appellee.

In this case, the officer testified that he stopped Smith to investigate a possible DUI violation and not to effect a search for drugs. Under these circumstances, the officer would have been authorized to ask Smith for his license to establish his identity, and to ask questions reasonably related to whether or not Smith was driving under the influence. In response to such questions, Smith offered a reasonable response that he was very tired from a long drive. Upon hearing Smith’s explanation, the officer would have been authorized to continue asking questions regarding Smith’s condition, to administer a statutorily authorized field sobriety test, or take any other reasonable steps to determine whether Smith was, as he originally suspected, driving under the influence. However, the evidence is uncontroverted that the officer proceeded to ask Smith questions that did not relate to his suspicion that Smith was driving under the influence and that did not relate to any traffic violations, but instead probed into Smith’s possession of contraband, specifically narcotics, and culminated in the officer’s request to search Smith’s truck. This later questioning was based on the officer’s hunch that Smith’s truck contained narcotics. At the point the officer initiated this later probe, he went beyond the permissible scope of the investigation and his further detention of Smith went beyond that permitted by Terry and its progeny.

“The entire deterrent purpose of the rule excluding evidence seized in violation of the Fourth amendment rests on the assumption that ‘limitations upon the fruit to be gathered tend to limit the quest itself.’ Thus, evidence may not be introduced if it was discovered by means of a [detention] which [was] not reasonably related in scope to the justification for [its] initiation.” (Citations omitted.) 392 U. S. 1 at 29. Accordingly, we find that since the marijuana was discovered during the continued illegal detention of Smith, the trial court erred in not granting his motion to suppress. See Rogers v. State, 206 Ga. App. 654 (426 SE2d 209) (1992).

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.